RULE 72
in accordance with Sec. 3, Rule 46 of the Rules of Court.
G.R. No. 163604 May 6, 2005
REPUBLIC OF THE PHILIPPINES, petitioner,
vs.
THE HON. COURT OF APPEALS (Twentieth Division), HON. PRESIDING
JUDGE FORTUNITO L. MADRONA, RTC-BR. 35 and APOLINARIA
MALINAO JOMOC, respondents.
DECISION
CARPIO-MORALES, J.:
In "In the Matter of Declaration of Presumptive Death of Absentee
Spouse Clemente P. Jomoc, Apolinaria Malinao Jomoc, petitioner," the
Ormoc City, Regional Trial Court, Branch 35, by Order of September 29,
1999,1 granted the petition on the basis of the Commissioner’s
Report2 and accordingly declared the absentee spouse, who had left his
petitioner-wife nine years earlier, presumptively dead.
In granting the petition, the trial judge, Judge Fortunito L. Madrona,
cited Article 41, par. 2 of the Family Code. Said article provides that for
the purpose of contracting a valid subsequent marriage during the
subsistence of a previous marriage where the prior spouse had been
absent for four consecutive years, the spouse present must
institute summary proceedings for the declaration of presumptive
death of the absentee spouse, without prejudice to the effect of the
reappearance of the absent spouse.
The Republic, through the Office of the Solicitor General, sought to
appeal the trial court’s order by filing a Notice of Appeal.3
By Order of November 22, 1999s,4 the trial court, noting that no record
of appeal was filed and served "as required by and pursuant to Sec.
2(a), Rule 41 of the 1997 Rules of Civil Procedure, the present case
being a special proceeding," disapproved the Notice of Appeal.
The Republic’s Motion for Reconsideration of the trial court’s order of
disapproval having been denied by Order of January 13, 2000,5 it filed a
Petition for Certiorari6 before the Court of Appeals, it contending that
the declaration of presumptive death of a person under Article 41 of
the Family Code is not a special proceeding or a case of multiple or
separate appeals requiring a record on appeal.
By Decision of May 5, 2004,7 the Court of Appeals denied the Republic’s
petition on procedural and substantive grounds in this wise:
At the outset, it must be stressed that the petition is not
sufficient in form. It failed to attach to its petition a certified
true copy of the assailed Order dated January 13,
2000 [denying its Motion for Reconsideration of the
November 22, 1999 Order disapproving its Notice of Appeal].
Moreover, the petition questioned the [trial court’s] Order
dated August 15, 1999, which declared Clemente Jomoc
presumptively dead, likewise for having been issued with
grave abuse of discretion amounting to lack of jurisdiction,
yet, not even a copy could be found in the records. On this
score alone, the petition should have been dismissed outright
However, despite the procedural lapses, the Court resolves to
delve deeper into the substantive issue of the validity/nullity
of the assailed order.
The principal issue in this case is whether a petition for
declaration of the presumptive death of a person is in the
nature of a special proceeding. If it is, the period to appeal is
30 days and the party appealing must, in addition to a notice
of appeal, file with the trial court a record on appeal to
perfect its appeal. Otherwise, if the petition is an ordinary
action, the period to appeal is 15 days from notice or decision
or final order appealed from and the appeal is perfected by
filing a notice of appeal (Section 3, Rule 41, Rules of Court).
As defined in Section 3(a), Rule 1 of the Rules of Court, "a civil
action is one by which a party sues another for the
enforcement or protection of a right, or the prevention of
redress of a wrong" while a special proceeding under Section
3(c) of the same rule is defined as "a remedy by which a party
seeks to establish a status, a right or a particular fact (Heirs of
Yaptinchay, et al. v. Del Rosario, et al., G.R. No. 124320,
March 2, 1999).
Considering the aforementioned distinction, this Court finds
that the instant petition is in the nature of a special
proceeding and not an ordinary action. The petition merely
seeks for a declaration by the trial court of the presumptive
death of absentee spouse Clemente Jomoc. It does not seek
the enforcement or protection of a right or the prevention or
redress of a wrong. Neither does it involve a demand of right
or a cause of action that can be enforced against any person.
On the basis of the foregoing discussion, the subject Order
dated January 13, 2000 denying OSG’s Motion for
Reconsideration of the Order dated November 22, 1999
disapproving its Notice of Appeal was correctly issued. The
instant petition, being in the nature of a special proceeding,
OSG should have filed, in addition to its Notice of Appeal, a
record on appeal in accordance with Section 19 of the
Interim Rules and Guidelines to Implement BP Blg. 129 and
Section 2(a), Rule 41 of the Rules of Court . . . (Emphasis and
underscoring supplied)
The Republic (petitioner) insists that the declaration of presumptive
death under Article 41 of the Family Code is not a special proceeding
involving multiple or separate appeals where a record on appeal shall
be filed and served in like manner.
Petitioner cites Rule 109 of the Revised Rules of Court which
enumerates the cases wherein multiple appeals are allowed and a
record on appeal is required for an appeal to be perfected. The petition
for the declaration of presumptive death of an absent spouse not being
included in the enumeration, petitioner contends that a mere notice of
appeal suffices.
By Resolution of December 15, 2004,8 this Court, noting that copy of
the September 27, 2004 Resolution9requiring respondent to file her
comment on the petition was returned unserved with postmaster’s
notation "Party refused," Resolved to consider that copy deemed
served upon her.
The pertinent provisions on the General Provisions on Special
Proceedings, Part II of the Revised Rules of Court entitled SPECIAL
PROCEEDINGS, read:
RULE 72
SUBJECT MATTER AND APPLICABILITY
OF GENERAL RULES
Section 1. Subject matter of special proceedings. – Rules of
special proceedings are provided for in the following:
(a) Settlement of estate of deceased persons;
(b) Escheat;
(c) Guardianship and custody of children;
(d) Trustees;
(e) Adoption;
(f) Rescission and revocation of adoption;
(g) Hospitalization of insane persons;
(h) Habeas corpus;
(i) Change of name;
(j) Voluntary dissolution of corporations;
(k) Judicial approval of voluntary recognition of
minor natural children;
(l) Constitution of family home;
(m) Declaration of absence and death;
(n) Cancellation or correction of entries in the civil
registry.
Sec. 2. Applicability of rules of civil actions. – In the absence of
special provisions, the rules provided for in ordinary actions
shall be, as far as practicable, applicable in special
proceedings. (Underscoring supplied)
The pertinent provision of the Civil Code on presumption of death
provides:
Art. 390. After an absence of seven years, it being unknown
whether or not the absentee still lives, he shall be presumed
dead for all purposes, except for those of succession.
x x x (Emphasis and underscoring supplied)
Upon the other hand, Article 41 of the Family Code, upon which the
trial court anchored its grant of the petition for the declaration of
presumptive death of the absent spouse, provides:
Art. 41. A marriage contracted by any person during the
subsistence of a previous marriage shall be null and void,
unless before the celebration of the subsequent marriage,
the prior spouses had been absent for four consecutive years
and the spouse present had a well-founded belief that the
absent spouses was already dead. In case of disappearance
where there is danger of death under the circumstances set
forth in the provisions of Article 391 of the Civil Code, an
absence of only two years shall be sufficient.
For the purpose pf contracting the subsequent marriage
under the preceding paragraph, the spouses present must
institute a summary proceeding as provided in this Code for
the declaration of presumptive death of the absentee,
without prejudice to the effect of a reappearance of the
absent spouse. (Emphasis and underscoring supplied)
Rule 41, Section 2 of the Revised Rules of Court, on Modes of Appeal,
invoked by the trial court in disapproving petitioner’s Notice of Appeal,
provides:
Sec. 2. Modes of appeal. -
(a) Ordinary appeal. - The appeal to the Court of Appeals in
cases decided by the Regional Trial Court in the exercise of its
original jurisdiction shall be taken by filing a notice of appeal
with the court which rendered the judgment or final order
appealed from and serving a copy thereof upon the adverse
party. No record on appeal shall be required except in special
proceedings and other cases of multiple or separate appeals
where the law or these Rules so require. In such cases, the
record on appeal shall be filed and served in like manner.
(Emphasis and underscoring supplied)
xxx
By the trial court’s citation of Article 41 of the Family Code, it is
gathered that the petition of Apolinaria Jomoc to have her absent
spouse declared presumptively dead had for its purpose her desire to
contract a valid subsequent marriage. Ergo, the petition for that
purpose is a "summary proceeding," following above-quoted Art. 41,
paragraph 2 of the Family Code.
Since Title XI of the Family Code, entitled SUMMARY JUDICIAL
PROCEEDING IN THE FAMILY LAW, contains the following
provision, inter alia:
xxx
Art. 238. Unless modified by the Supreme Court, the
procedural rules in this Title shall apply in all casesprovided
for in this Codes requiring summary court proceedings. Such
cases shall be decided in an expeditious manner without
 regard to technical rules. (Emphasis and underscoring This resolves the Petition for Review on Certiorari seeking the reversal
supplied) of the Order1 of the Regional Trial Court of Iligan City, Branch 6 (RTC)
dated January 15, 2003 and its Omnibus Order dated April 9, 2003.
x x x,
The undisputed facts are as follows.
there is no doubt that the petition of Apolinaria Jomoc required, and is,
therefore, a summary proceeding under the Family Code, not a special The RTC admitted to probate the holographic will of Alice O. Sheker
proceeding under the Revised Rules of Court appeal for which calls for and thereafter issued an order for all the creditors to file their
the filing of a Record on Appeal. It being a summary ordinary respective claims against the estate. In compliance therewith,
proceeding, the filing of a Notice of Appeal from the trial court’s order petitioner filed on October 7, 2002 a contingent claim for agent's
sufficed. commission due him amounting to approximately P206,250.00 in the
event of the sale of certain parcels of land belonging to the estate, and
That the Family Code provision on repeal, Art. 254, provides as follows: the amount of P275,000.00, as reimbursement for expenses incurred
and/or to be incurred by petitioner in the course of negotiating the sale
of said realties.
Art. 254. Titles III, IV, V, VI, VII, VIII, IX, XI and XV of Book I of
Republic Act No. 386, otherwise known as the Civil Code of
the Philippines, as amended, and Articles 17, 18, 19, 27, 28, The executrix of the Estate of Alice O. Sheker (respondent) moved for
29, 30, 31, 39, 40, 41 and 42 of Presidential Decree No. 603, the dismissal of said money claim against the estate on the grounds
otherwise known as the Child and Youth Welfare Code, as that (1) the requisite docket fee, as prescribed in Section 7(a), Rule 141
amended, and alllaws, decrees, executive orders, of the Rules of Court, had not been paid; (2) petitioner failed to attach
proclamations rules and regulations, or parts a certification against non-forum shopping; and (3) petitioner failed to
thereof, inconsistent therewith are attach a written explanation why the money claim was not filed and
hereby repealed, (Emphasis and underscoring supplied), served personally.

seals the case in petitioner’s favor. On January 15, 2003, the RTC issued the assailed Order dismissing
without prejudice the money claim based on the grounds advanced by
respondent. Petitioner's motion for reconsideration was denied per
Finally, on the alleged procedural flaw in petitioner’s petition before
Omnibus Order dated April 9, 2003.
the appellate court. Petitioner’s failure to attach to his petition before
the appellate court a copy of the trial court’s order denying its motion
for reconsideration of the disapproval of its Notice of Appeal is not Petitioner then filed the present petition for review on certiorari,
necessarily fatal, for the rules of procedure are not to be applied in a raising the following questions:
technical sense. Given the issue raised before it by petitioner, what the
appellate court should have done was to direct petitioner to comply (a) must a contingent claim filed in the probate proceeding
with the rule. contain a certification against non-forum shopping, failing
which such claim should be dismissed?
As for petitioner’s failure to submit copy of the trial court’s order
granting the petition for declaration of presumptive death, contrary to (b) must a contingent claim filed against an estate in a
the appellate court’s observation that petitioner was also assailing it, probate proceeding be dismissed for failing to pay the docket
petitioner’s 8-page petition10 filed in said court does not so reflect, it fees at the time of its filing thereat?
merely having assailed the order disapproving the Notice of Appeal.
(c) must a contingent claim filed in a probate proceeding be
WHEREFORE, the assailed May 5, 2004 Decision of the Court of Appeals dismissed because of its failure to contain a written
is hereby REVERSED and SET ASIDE. Let the case be REMANDED to it for explanation on the service and filing by registered mail?2
appropriate action in light of the foregoing discussion.
Petitioner maintains that the RTC erred in strictly applying to a probate
SO ORDERED. proceeding the rules requiring a certification of non-forum shopping, a
written explanation for non-personal filing, and the payment of docket
G.R. No. 157912 December 13, 2007 fees upon filing of the claim. He insists that Section 2, Rule 72 of the
Rules of Court provides that rules in ordinary actions are applicable to
special proceedings only in a suppletory manner.
ALAN JOSEPH A. SHEKER, Petitioner,
vs.
ESTATE OF ALICE O. SHEKER, VICTORIA S. MEDINA- The Court gave due course to the petition for review
Administratrix, Respondent. on certiorari although directly filed with this Court, pursuant to Section
2(c), Rule 41 of the Rules of Court.3
DECISION
The petition is imbued with merit.
AUSTRIA-MARTINEZ, J.:
However, it must be emphasized that petitioner's contention that rules
in ordinary actions are only supplementary to rules in special
proceedings is not entirely correct.
Section 2, Rule 72, Part II of the same Rules of Court provides:
Sec. 2. Applicability of rules of Civil Actions. - In the absence of special
provisions, the rules provided for in ordinary actions shall be, as far as
practicable, applicable in special proceedings.
Stated differently, special provisions under Part II of the Rules of Court
govern special proceedings; but in the absence of special provisions,
the rules provided for in Part I of the Rules governing ordinary civil
actions shall be applicable to special proceedings, as far as practicable.
The word "practicable" is defined as: possible to practice or perform;
capable of being put into practice, done or accomplished.4 This means
that in the absence of special provisions, rules in ordinary actions may
be applied in special proceedings as much as possible and where doing
so would not pose an obstacle to said proceedings. Nowhere in the
Rules of Court does it categorically say that rules in ordinary actions are
inapplicable or merely suppletory to special proceedings. Provisions of
the Rules of Court requiring a certification of non-forum shoppingfor
complaints and initiatory pleadings, a written explanation for non-
personal service and filing, and the payment of filing fees for money
claims against an estate would not in any way obstruct probate
proceedings, thus, they are applicable to special proceedings such as
the settlement of the estate of a deceased person as in the present
case.
Thus, the principal question in the present case is: did the RTC err in
dismissing petitioner's contingent money claim against respondent
estate for failure of petitioner to attach to his motion a certification
against non-forum shopping?
The Court rules in the affirmative.
The certification of non-forum shopping is required only for complaints
and other initiatory pleadings. The RTC erred in ruling that a
contingent money claim against the estate of a decedent is an initiatory
pleading. In the present case, the whole probate proceeding was
initiated upon the filing of the petition for allowance of the
decedent's will. Under Sections 1 and 5, Rule 86 of the Rules of Court,
after granting letters of testamentary or of administration, all persons
having money claims against the decedent are mandated to file or
notify the court and the estate administrator of their respective money
claims; otherwise, they would be barred, subject to certain exceptions.5
Such being the case, a money claim against an estate is more akin to a
motion for creditors' claims to be recognized and taken into
consideration in the proper disposition of the properties of the estate.
In Arquiza v. Court of Appeals,6 the Court explained thus:
x x x The office of a motion is not to initiate new litigation, but to
bring a material but incidental matter arising in the progress of the
case in which the motion is filed. A motion is not an independent right
or remedy, but is confined to incidental matters in the progress of a
cause. It relates to some question that is collateral to the main object
of the action and is connected with and dependent upon the principal
remedy.7 (Emphasis supplied)
A money claim is only an incidental matter in the main action for the
settlement of the decedent's estate; more so if the claim is contingent
since the claimant cannot even institute a separate action for a mere
contingent claim. Hence, herein petitioner's contingent money claim,
not being an initiatory pleading, does not require a certification
against non-forum shopping.
On the issue of filing fees, the Court ruled in Pascual v. Court of
Appeals,8 that the trial court has jurisdiction to act on a money claim
(attorney's fees) against an estate for services rendered by a lawyer to
the administratrix to assist her in fulfilling her duties to the estate even
without payment of separate docket fees because the filing fees shall
constitute a lien on the judgment pursuant to Section 2, Rule 141 of the
Rules of Court, or the trial court may order the payment of such filing
fees within a reasonable time.9 After all, the trial court had already
assumed jurisdiction over the action for settlement of the estate.
Clearly, therefore, non-payment of filing fees for a money claim against
the estate is not one of the grounds for dismissing a money claim
against the estate.
With regard to the requirement of a written explanation, Maceda v. De
Guzman Vda. de Macatangay10 is squarely in point. Therein, the Court
held thus:
In Solar Team Entertainment, Inc. v. Ricafort, this Court, passing upon
Section 11 of Rule 13 of the Rules of Court, held that a court has the
discretion to consider a pleading or paper as not filed if said rule is not
complied with.
Personal service and filing are preferred for obvious reasons. Plainly,
such should expedite action or resolution on a pleading, motion or
other paper; and conversely, minimize, if not eliminate, delays likely to
be incurred if service or filing is done by mail, considering the
inefficiency of the postal service. Likewise, personal service will do
away with the practice of some lawyers who, wanting to appear clever,
resort to the following less than ethical practices: (1) serving or filing
pleadings by mail to catch opposing counsel off-guard, thus leaving the
latter with little or no time to prepare, for instance, responsive
pleadings or an opposition; or (2) upon receiving notice from the post
office that the registered mail containing the pleading of or other paper
from the adverse party may be claimed, unduly procrastinating before
claiming the parcel, or, worse, not claiming it at all, thereby causing
undue delay in the disposition of such pleading or other papers.
If only to underscore the mandatory nature of this innovation to our set
of adjective rules requiring personal service whenever practicable,
Section 11 of Rule 13 then gives the court the discretion to consider a
pleading or paper as not filed if the other modes of service or filing
were not resorted to and no written explanation was made as to why
personal service was not done in the first place. The exercise of
discretion must, necessarily consider the practicability of personal
service, for Section 11 itself begins with the clause "whenever
practicable".
We thus take this opportunity to clarify that under Section 11, Rule 13
of the 1997 Rules of Civil Procedure, personal service and filing is the
general rule, and resort to other modes of service and filing, the
exception. Henceforth, whenever personal service or filing is
practicable, in the light of the circumstances of time, place and person,
personal service or filing is mandatory. Only when personal service or
filing is not practicable may resort to other modes be had, which must
then be accompanied by a written explanation as to why personal
service or filing was not practicable to begin with. In adjudging the
plausibility of an explanation, a court shall likewise consider the
importance of the subject matter of the case or the issues involved
therein, and the prima facie merit of the pleading sought to be
expunged for violation of Section 11. (Emphasis and italics supplied)
In Musa v. Amor, this Court, on noting the impracticality of personal
service, exercised its discretion and liberally applied Section 11 of Rule
13:
"As [Section 11, Rule 13 of the Rules of Court] requires, service and
filing of pleadings must be done personally whenever practicable. The
court notes that in the present case, personal service would not be
practicable.Considering the distance between the Court of Appeals and
Donsol, Sorsogon where the petition was posted, clearly, service by
registered mail [sic] would have entailed considerable time, effort and
expense. A written explanation why service was not done personally
might have been superfluous. In any case, as the rule is so worded with
the use of "may", signifying permissiveness, a violation thereof gives
the court discretion whether or not to consider the paper as not filed.
While it is true that procedural rules are necessary to secure an
orderly and speedy administration of justice, rigid application of
Section 11, Rule 13 may be relaxed in this case in the interest of
substantial justice. (Emphasis and italics supplied)1âwphi1
In the case at bar, the address of respondent’s counsel is Lopez,
Quezon, while petitioner Sonia’s counsel’s is Lucena City. Lopez,
Quezon is 83 kilometers away from Lucena City. Such distance makes
personal service impracticable. As in Musa v. Amor, a written
explanation why service was not done personally "might have been
superfluous."
As this Court held in Tan v. Court of Appeals, liberal construction of a
rule of procedure has been allowed where, among other cases, "the
injustice to the adverse party is not commensurate with the degree of
his thoughtlessness in not complying with the procedure
prescribed."11 (Emphasis supplied)
In the present case, petitioner holds office in Salcedo Village, Makati
City, while counsel for respondent and the RTC which rendered the
assailed orders are both in Iligan City. The lower court should have
taken judicial notice of the great distance between said cities and
realized that it is indeed not practicable to serve and file the money
claim personally. Thus, following Medina v. Court of Appeals,12 the
failure of petitioner to submit a written explanation why service has
not been done personally, may be considered as superfluous and the
RTC should have exercised its discretion under Section 11, Rule 13, not
to dismiss the money claim of petitioner, in the interest of substantial
justice.
The ruling spirit of the probate law is the speedy settlement of estates
of deceased persons for the benefit of creditors and those entitled to
residue by way of inheritance or legacy after the debts and expenses of
administration have been paid.13 The ultimate purpose for the rule on
money claims was further explained inUnion Bank of the Phil. v.
Santibañez,14 thus:
The filing of a money claim against the decedent’s estate in the probate
court is mandatory. As we held in the vintage case of Py Eng Chong v.
Herrera:
x x x This requirement is for the purpose of protecting the estate of
the deceased by informing the executor or administrator of the claims
against it, thus enabling him to examine each claim and to determine
whether it is a proper one which should be allowed. The plain and
obvious design of the rule is the speedy settlement of the affairs of the
deceased and the early delivery of the property to the distributees,
legatees, or heirs. The law strictly requires the prompt presentation
and disposition of the claims against the decedent's estate in order to
settle the affairs of the estate as soon as possible, pay off its debts and
distribute the residue.15 (Emphasis supplied)
The RTC should have relaxed and liberally construed the procedural
rule on the requirement of a written explanation for non-personal
service, again in the interest of substantial justice.
WHEREFORE, the petition is GRANTED. The Orders of the Regional Trial
Court of Iligan City, Branch 6 dated January 15, 2003 and April 9, 2003,
respectively, are REVERSED and SET ASIDE. The Regional Trial Court of
Iligan City, Branch 6, is hereby DIRECTED to give due course and take
appropriate action on petitioner's money claim in accordance with Rule
82 of the Rules of Court.
No pronouncement as to costs.
SO ORDERED.
RULE 73
G.R. No. 128314 May 29, 2002
RODOLFO V. JAO, petitioner,
vs.
COURT OF APPEALS and PERICO V. JAO, respondents.
YNARES-SANTIAGO, J.:
Rodolfo and Perico Jao were the only sons of the spouses Ignacio Jao
Tayag and Andrea V. Jao, who died intestate in 1988 and 1989,
respectively. The decedents left real estate, cash, shares of stock and
other personal properties.
On April 17, 1991, Perico instituted a petition for issuance of letters of
administration before the Regional Trial Court of Quezon City, Branch
99, over the estate of his parents, docketed as Special Proceedings No.
Q-91-8507.1 Pending the appointment of a regular administrator,
Perico moved that he be appointed as special administrator. He alleged
that his brother, Rodolfo, was gradually dissipating the assets of the
estate. More particularly, Rodolfo was receiving rentals from real
properties without rendering any accounting, and forcibly opening
vaults belonging to their deceased parents and disposing of the cash
and valuables therein.
Rodolfo moved for the dismissal of the petition on the ground of
improper venue.2 He argued that the deceased spouses did not reside
in Quezon City either during their lifetime or at the time of their deaths.
The decedent’s actual residence was in Angeles City, Pampanga, where
his late mother used to run and operate a bakery. As the health of his
parents deteriorated due to old age, they stayed in Rodolfo’s residence
at 61 Scout Gandia Street, Quezon City, solely for the purpose of
obtaining medical treatment and hospitalization. Rodolfo submitted
documentary evidence previously executed by the decedents,
consisting of income tax returns, voter’s affidavits, statements of assets
and liabilities, real estate tax payments, motor vehicle registration and
passports, all indicating that their permanent residence was in Angeles
City, Pampanga.1âwphi1.nêt
In his opposition,3 Perico countered that their deceased parents
actually resided in Rodolfo’s house in Quezon City at the time of their
deaths. As a matter of fact, it was conclusively declared in their death
certificates that their last residence before they died was at 61 Scout
Gandia Street, Quezon City.4 Rodolfo himself even supplied the entry
appearing on the death certificate of their mother, Andrea, and affixed
his own signature on the said document.
Rodolfo filed a rejoinder, stating that he gave the information regarding
the decedents’ residence on the death certificates in good faith and
through honest mistake. He gave his residence only as reference,
considering that their parents were treated in their late years at the
Medical City General Hospital in Mandaluyong, Metro Manila. Their
stay in his house was merely transitory, in the same way that they were
taken at different times for the same purpose to Perico’s residence at
Legaspi Towers in Roxas Boulevard. The death certificates could not,
therefore, be deemed conclusive evidence of the decedents’ residence
in light of the other documents showing otherwise.5
The court required the parties to submit their respective nominees for
the position.6 Both failed to comply, whereupon the trial court ordered
that the petition be archived.7
Subsequently, Perico moved that the intestate proceedings be
revived.8 After the parties submitted the names of their respective
nominees, the trial court designated Justice Carlos L. Sundiam as
special administrator of the estate of Ignacio Jao Tayag and Andrea
Jao.9
On April 6, 1994, the motion to dismiss filed by petitioner Rodolfo was
denied, to wit:
A mere perusal of the death certificates of the spouses issued
separately in 1988 and 1989, respectively, confirm the fact
that Quezon City was the last place of residence of the
decedents. Surprisingly, the entries appearing on the death
certificate of Andrea V. Jao were supplied by movant, Rodolfo
V. Jao, whose signature appears in said document. Movant,
therefore, cannot disown his own representation by taking an
inconsistent position other than his own admission. xxx xxx
xxx.
WHEREFORE, in view of the foregoing consideration, this
court DENIES for lack of merit movant’s motion to dismiss.
SO ORDERED.10
Rodolfo filed a petition for certiorari with the Court of Appeals, which
was docketed as CA-G.R. SP No. 35908. On December 11, 1996, the
Court of Appeals rendered the assailed decision, the dispositive portion
of which reads:
WHEREFORE, no error, much less any grave abuse of
discretion of the court a quo having been shown, the petition
for certiorari is hereby DISMISSED. The questioned order of
the respondent Judge is affirmed in toto.
SO ORDERED.11
Rodolfo’s motion for reconsideration was denied by the Court of
Appeals in the assailed resolution dated February 17, 1997.12 Hence,
this petition for review, anchored on the following grounds:
I
RESPONDENT COURT HAD DECIDED A QUESTION OF
SUBSTANCE IN A WAY NOT IN ACCORD WITH THE LAW AND
IS DIRECTLY CONTRADICTORY TO THE APPLICABLE DECISION
ALREADY RENDERED BY THIS HONORABLE COURT.
II
RESPONDENT COURT ERRED IN DISREGARDING THE RULING
OF THIS HONORABLE COURT IN THE CASE OF EUSEBIO VS.
EUSEBIO, 100 PHILS. 593, WHICH CLEARLY INTERPRETED
WHAT IS MEANT BY RESIDENCE IN SEC. 1 OF RULE 73 OF THE
RULES OF COURT.
III
RESPONDENT COURT ERRED IN HOLDING THAT PHYSICAL
PRESENCE IN A PLACE AT THE TIME OF DEATH IS
DETERMINATIVE OF DECEDENT’S RESIDENCE RATHER THAN
THE INTENTION OF THE DECEDENTS TO ESTABLISH THEIR
PERMANENT RESIDENCE IN ANOTHER PLACE.
IV
RESPONDENT COURT ERRED IN APPLYING BY ANALOGY THE
RESIDENCE CONTEMPLATED IN SEC. 2 OF RULE 4 FOR THE
PURPOSE OF SERVING SUMMONS TO A DEFENDANT IN A
PERSONAL ACTION TO THE RESIDENCE CONTEMPLATED IN
SEC. 1 OF RULE 73 FOR THE PURPOSE OF DETERMINING
VENUE IN THE SETTLEMENT OF THE ESTATE OF A DECEASED.
V
RESPONDENT COURT ERRED IN GIVING MORE WEIGHT TO
THE ENTRY OF PETITIONER AND PRIVATE RESPONDENT IN
THE RESPECTIVE DEATH CERTIFICATES OF THE DECEDENTS
RATHER THAN THE OVERWHELMING EVIDENCE SHOWING
THE CLEAR INTENTION OF THE DECEDENTS TO ESTABLISH
THEIR PERMANENT RESIDENCE IN ANGELES CITY.
VI
 RESPONDENT COURT ERRED IN APPLYING THE PRINCIPLE OF
ESTOPPEL AS AGAINST PETITIONER WHICH CAN NOT BE
MORE PERSUASIVE THAN THE CLEAR INTENTION OF THE
DECEDENTS THEMSELVES TO ESTABLISH PERMANENT
RESIDENCE IN ANGELES CITY.
VII
RESPONDENT COURT ERRED IN DISMISSING THE PETITION
FOR CERTIORARI DESPITE THE CLEAR ABUSE OF DISCRETION
ON THE PART OF THE TRIAL COURT IN INSISTING TO TAKE
COGNIZANCE OF SP. PROCEEDING NO. Q-91-8507.13
The main issue before us is: where should the settlement proceedings
be had --- in Pampanga, where the decedents had their permanent
residence, or in Quezon City, where they actually stayed before their
demise?
Rule 73, Section 1 of the Rules of Court states:
Where estate of deceased persons be settled. – If
the decedent is an inhabitant of the Philippines at the time of
his death, whether a citizen or an alien, his will shall be
proved, or letters of administration granted, and his estate
settled, in the Court of First Instance in the province in which
he resides at the time of his death, and if he is an inhabitant
of a foreign country, the Court of First Instance of any
province in which he had estate. The court first taking
cognizance of the settlement of the estate of a decedent shall
exercise jurisdiction to the exclusion of all other courts. The
jurisdiction assumed by a court, so far as it depends on the
place of residence of the decedent, or of the location of his
estate, shall not be contested in a suit or proceeding, except
in an appeal from that court, in the original case, or when the
want of jurisdiction appears on the record. (underscoring
ours)
Clearly, the estate of an inhabitant of the Philippines shall be settled or
letters of administration granted in the proper court located in the
province where the decedent resides at the time of his death.
Petitioner Rodolfo invokes our ruling in the case of Eusebio v. Eusebio,
et al.,14 where we held that the situs of settlement proceedings shall be
the place where the decedent had his permanent residence or domicile
at the time of death. In determining residence at the time of death, the
following factors must be considered, namely, the decedent had: (a)
capacity to choose and freedom of choice; (b) physical presence at the
place chosen; and (c) intention to stay therein permanently. 15 While it
appears that the decedents in this case chose to be physically present
in Quezon City for medical convenience, petitioner avers that they
never adopted Quezon City as their permanent residence.1âwphi1.nêt
The contention lacks merit.
The facts in Eusebio were different from those in the case at bar. The
decedent therein, Andres Eusebio, passed away while in the process of
transferring his personal belongings to a house in Quezon City. He was
then suffering from a heart ailment and was advised by his doctor/son
to purchase a Quezon City residence, which was nearer to his doctor.
While he was able to acquire a house in Quezon City, Eusebio died even
before he could move therein. In said case, we ruled that Eusebio
retained his domicile --- and hence, residence --- in San Fernando,
Pampanga. It cannot be said that Eusebio changed his residence
because, strictly speaking, his physical presence in Quezon City was just
temporary.
In the case at bar, there is substantial proof that the decedents have
transferred to petitioner’s Quezon City residence. Petitioner failed to
sufficiently refute respondent’s assertion that their elderly parents
stayed in his house for some three to four years before they died in the
late 1980s.
Furthermore, the decedents’ respective death certificates state that
they were both residents of Quezon City at the time of their demise.
Significantly, it was petitioner himself who filled up his late mother’s
death certificate. To our mind, this unqualifiedly shows that at that
time, at least, petitioner recognized his deceased mother’s residence to
be Quezon City. Moreover, petitioner failed to contest the entry in
Ignacio’s death certificate, accomplished a year earlier by respondent.
The recitals in the death certificates, which are admissible in evidence,
were thus properly considered and presumed to be correct by the
court a quo. We agree with the appellate court’s observation that since
the death certificates were accomplished even before petitioner and
respondent quarreled over their inheritance, they may be relied upon
to reflect the true situation at the time of their parents’ death.
The death certificates thus prevailed as proofs of the decedents’
residence at the time of death, over the numerous documentary
evidence presented by petitioner. To be sure, the documents
presented by petitioner pertained not to residence at the time of
death, as required by the Rules of Court, but to permanent residence
or domicile. In Garcia-Fule v. Court of Appeals,16 we held:
xxx xxx xxx the term "resides" connotes ex vi termini "actual
residence" as distinguished from "legal residence or
domicile." This term "resides", like the terms "residing" and
"residence", is elastic and should be interpreted in the light of
the object or purpose of the statute or rule in which it is
employed. In the application of venue statutes and rules –
Section 1, Rule 73 of the Revised Rules of Court is of such
nature – residence rather than domicile is the significant
factor. Even where the statute uses the word "domicile" still
it is construed as meaning residence and not domicile in the
technical sense. Some cases make a distinction between the
terms "residence" and "domicile" but as generally used in
statutes fixing venue, the terms are synonymous, and convey
the same meaning as the term "inhabitant." In other words,
"resides" should be viewed or understood in its popular
sense, meaning, the personal, actual or physical habitation of
a person, actual residence or place of abode. It signifies
physical presence in a place and actual stay thereat. In this
popular sense, the term means merely residence, that is,
personal residence, not legal residence or domicile.
Residence simply requires bodily presence as an inhabitant in
a given place, while domicile requires bodily presence in that
place and also an intention to make it one’s domicile. No
particular length of time of residence is required though;
however, the residence must be more than temporary.17
Both the settlement court and the Court of Appeals found that the
decedents have been living with petitioner at the time of their deaths
and for some time prior thereto. We find this conclusion to be
substantiated by the evidence on record. A close perusal of the
challenged decision shows that, contrary to petitioner’s assertion, the
court below considered not only the decedents’ physical presence in
Quezon City, but also other factors indicating that the decedents’ stay
therein was more than temporary. In the absence of any substantial
showing that the lower courts’ factual findings stemmed from an
erroneous apprehension of the evidence presented, the same must be
held to be conclusive and binding upon this Court.
Petitioner strains to differentiate between the venue provisions found
in Rule 4, Section 2,18 on ordinary civil actions, and Rule 73, Section 1,
which applies specifically to settlement proceedings. He argues that
while venue in the former understandably refers to actual physical
residence for the purpose of serving summons, it is the permanent
residence of the decedent which is significant in Rule 73, Section 1.
Petitioner insists that venue for the settlement of estates can only refer
to permanent residence or domicile because it is the place where the
records of the properties are kept and where most of the decedents’
properties are located.
Petitioner’s argument fails to persuade.
It does not necessarily follow that the records of a person’s properties
are kept in the place where he permanently resides. Neither can it be
presumed that a person’s properties can be found mostly in the place
where he establishes his domicile. It may be that he has his domicile in
a place different from that where he keeps his records, or where he
maintains extensive personal and business interests. No generalizations
can thus be formulated on the matter, as the question of where to
keep records or retain properties is entirely dependent upon an
individual’s choice and peculiarities.
At any rate, petitioner is obviously splitting straws when he
differentiates between venue in ordinary civil actions and venue in
special proceedings. In Raymond v. Court of Appeals19 and Bejer v.
Court of Appeals,20 we ruled that venue for ordinary civil actions and
that for special proceedings have one and the same meaning. As thus
defined, "residence", in the context of venue provisions, means nothing
more than a person’s actual residence or place of abode, provided he
resides therein with continuity and consistency.21 All told, the lower
court and the Court of Appeals correctly held that venue for the
settlement of the decedents’ intestate estate was properly laid in the
Quezon City court.
WHEREFORE, in view of the foregoing, the petition is DENIED, and the
decision of the Court of Appeals in CA-G.R. SP No. 35908 is AFFIRMED.
SO ORDERED.
G.R. No. 133743 February 6, 2007
EDGAR SAN LUIS, Petitioner,
vs.
FELICIDAD SAN LUIS, Respondent.
x ---------------------------------------------------- x
G.R. No. 134029 February 6, 2007
RODOLFO SAN LUIS, Petitioner,
vs.
FELICIDAD SAGALONGOS alias FELICIDAD SAN LUIS, Respondent.
DECISION
YNARES-SANTIAGO, J.:
Before us are consolidated petitions for review assailing the February 4,
1998 Decision 1 of the Court of Appeals in CA-G.R. CV No. 52647, which
reversed and set aside the September 12, 1995 2 and January 31,
1996 3Resolutions of the Regional Trial Court of Makati City, Branch 134
in SP. Proc. No. M-3708; and its May 15, 1998 Resolution 4 denying
petitioners’ motion for reconsideration.
The instant case involves the settlement of the estate of Felicisimo T.
San Luis (Felicisimo), who was the former governor of the Province of
Laguna. During his lifetime, Felicisimo contracted three marriages. His
first marriage was with Virginia Sulit on March 17, 1942 out of which
were born six children, namely: Rodolfo, Mila, Edgar, Linda, Emilita and
Manuel. On August 11, 1963, Virginia predeceased Felicisimo.
Five years later, on May 1, 1968, Felicisimo married Merry Lee Corwin,
with whom he had a son, Tobias. However, on October 15, 1971, Merry
Lee, an American citizen, filed a Complaint for Divorce 5 before the
Family Court of the First Circuit, State of Hawaii, United States of
America (U.S.A.), which issued a Decree Granting Absolute Divorce and
Awarding Child Custody on December 14, 1973. 6
On June 20, 1974, Felicisimo married respondent Felicidad San Luis,
then surnamed Sagalongos, before Rev. Fr. William Meyer, Minister of
the United Presbyterian at Wilshire Boulevard, Los Angeles, California,
U.S.A. 7 He had no children with respondent but lived with her for 18
years from the time of their marriage up to his death on December 18,
1992.
Thereafter, respondent sought the dissolution of their conjugal
partnership assets and the settlement of Felicisimo’s estate. On
December 17, 1993, she filed a petition for letters of
administration 8 before the Regional Trial Court of Makati City,
docketed as SP. Proc. No. M-3708 which was raffled to Branch 146
thereof.
Respondent alleged that she is the widow of Felicisimo; that, at the
time of his death, the decedent was residing at 100 San Juanico Street,
New Alabang Village, Alabang, Metro Manila; that the decedent’s
surviving heirs are respondent as legal spouse, his six children by his
first marriage, and son by his second marriage; that the decedent left
real properties, both conjugal and exclusive, valued at P30,304,178.00
more or less; that the decedent does not have any unpaid debts.
Respondent prayed that the conjugal partnership assets be liquidated
and that letters of administration be issued to her.
On February 4, 1994, petitioner Rodolfo San Luis, one of the children of
Felicisimo by his first marriage, filed a motion to dismiss 9 on the
grounds of improper venue and failure to state a cause of action.
Rodolfo claimed that the petition for letters of administration should
have been filed in the Province of Laguna because this was Felicisimo’s
place of residence prior to his death. He further claimed that
respondent has no legal personality to file the petition because she was
only a mistress of Felicisimo since the latter, at the time of his death,
was still legally married to Merry Lee.
On February 15, 1994, Linda invoked the same grounds and joined her
brother Rodolfo in seeking the dismissal 10 of the petition. On February
28, 1994, the trial court issued an Order 11 denying the two motions to
dismiss.
Unaware of the denial of the motions to dismiss, respondent filed on
March 5, 1994 her opposition 12 thereto. She submitted documentary
evidence showing that while Felicisimo exercised the powers of his
public office in Laguna, he regularly went home to their house in New
On September 12, 1995, the trial court dismissed the petition for letters
of administration. It held that, at the time of his death, Felicisimo was
the duly elected governor and a resident of the Province of Laguna.
Hence, the petition should have been filed in Sta. Cruz, Laguna and not
in Makati City. It also ruled that respondent was without legal capacity
to file the petition for letters of administration because her marriage
with Felicisimo was bigamous, thus, void ab initio. It found that the
decree of absolute divorce dissolving Felicisimo’s marriage to Merry
Lee was not valid in the Philippines and did not bind Felicisimo who was
a Filipino citizen. It also ruled that paragraph 2, Article 26 of the Family
Code cannot be retroactively applied because it would impair the
vested rights of Felicisimo’s legitimate children.
Respondent moved for reconsideration 26 and for the
disqualification of Judge Arcangel but said motions were denied. 28
27

Alabang Village, Alabang, Metro Manila which they bought sometime in

1982. Further, she presented the decree of absolute divorce issued by
the Family Court of the First Circuit, State of Hawaii to prove that the
marriage of Felicisimo to Merry Lee had already been dissolved. Thus,
she claimed that Felicisimo had the legal capacity to marry her by virtue
of paragraph 2, 13 Article 26 of the Family Code and the doctrine laid
down in Van Dorn v. Romillo, Jr. 14
Thereafter, Linda, Rodolfo and herein petitioner Edgar San Luis,
separately filed motions for reconsideration from the Order denying
their motions to dismiss. 15 They asserted that paragraph 2, Article 26
of the Family Code cannot be given retroactive effect to validate
respondent’s bigamous marriage with Felicisimo because this would
impair vested rights in derogation of Article 256 16 of the Family Code.
On April 21, 1994, Mila, another daughter of Felicisimo from his first
marriage, filed a motion to disqualify Acting Presiding Judge Anthony E.
Santos from hearing the case.
Respondent appealed to the Court of Appeals which reversed and set
aside the orders of the trial court in its assailed Decision dated February
4, 1998, the dispositive portion of which states:
WHEREFORE, the Orders dated September 12, 1995 and January 31,
1996 are hereby REVERSED and SET ASIDE; the Orders dated February
28 and October 24, 1994 are REINSTATED; and the records of the case
is REMANDED to the trial court for further proceedings. 29
The appellante court ruled that under Section 1, Rule 73 of the Rules of
Court, the term "place of residence" of the decedent, for purposes of
fixing the venue of the settlement of his estate, refers to the personal,
actual or physical habitation, or actual residence or place of abode of a
person as distinguished from legal residence or domicile. It noted that
although Felicisimo discharged his functions as governor in Laguna, he
actually resided in Alabang, Muntinlupa. Thus, the petition for letters of
administration was properly filed in Makati City.

On October 24, 1994, the trial court issued an Order 17 denying the
motions for reconsideration. It ruled that respondent, as widow of the
decedent, possessed the legal standing to file the petition and that
venue was properly laid. Meanwhile, the motion for disqualification
was deemed moot and academic 18 because then Acting Presiding
Judge Santos was substituted by Judge Salvador S. Tensuan pending the
resolution of said motion.
Mila filed a motion for inhibition 19 against Judge Tensuan
November 16, 1994. On even date, Edgar also filed a motion
reconsideration 20 from the Order denying their motion
reconsideration arguing that it does not state the facts and law
which it was based.
On November 25, 1994, Judge Tensuan issued an Order 21 granting the
motion for inhibition. The case was re-raffled to Branch 134 presided
by Judge Paul T. Arcangel.
On April 24, 1995, 22 the trial court required the parties to submit their
respective position papers on the twin issues of venue and legal
capacity of respondent to file the petition. On May 5, 1995, Edgar
manifested 23 that he is adopting the arguments and evidence set forth
in his previous motion for reconsideration as his position paper.
Respondent and Rodolfo filed their position papers on June 14, 24 and
June 20, 25 1995, respectively.
The Court of Appeals also held that Felicisimo had legal capacity to
marry respondent by virtue of paragraph 2, Article 26 of the Family
Code and the rulings in Van Dorn v. Romillo, Jr. 30 and Pilapil v. Ibay-
Somera. 31 It found that the marriage between Felicisimo and Merry
Lee was validly dissolved by virtue of the decree of absolute divorce
issued by the Family Court of the First Circuit, State of Hawaii. As a
result, under paragraph 2, Article 26, Felicisimo was capacitated to
contract a subsequent marriage with respondent. Thus –
on
for With the well-known rule – express mandate of paragraph 2, Article 26,
for of the Family Code of the Philippines, the doctrines in Van Dorn, Pilapil,
on and the reason and philosophy behind the enactment of E.O. No. 227,
— there is no justiciable reason to sustain the individual view —
sweeping statement — of Judge Arc[h]angel, that "Article 26, par. 2 of
the Family Code, contravenes the basic policy of our state against
divorce in any form whatsoever." Indeed, courts cannot deny what the
law grants. All that the courts should do is to give force and effect to
the express mandate of the law. The foreign divorce having
been obtained by the Foreigner on December 14, 1992,32 the Filipino
divorcee, "shall x x x have capacity to remarry under Philippine laws".
For this reason, the marriage between the deceased and petitioner
should not be denominated as "a bigamous marriage.
Therefore, under Article 130 of the Family Code, the petitioner as the
surviving spouse can institute the judicial proceeding for the settlement
of the estate of the deceased. x x x 33
Edgar, Linda, and Rodolfo filed separate motions for
reconsideration 34 which were denied by the Court of Appeals.
On July 2, 1998, Edgar appealed to this Court via the instant petition for
review on certiorari. 35 Rodolfo later filed a manifestation and motion
to adopt the said petition which was granted. 36
In the instant consolidated petitions, Edgar and Rodolfo insist that the
venue of the subject petition for letters of administration was
improperly laid because at the time of his death, Felicisimo was a
resident of Sta. Cruz, Laguna. They contend that pursuant to our rulings
in Nuval v. Guray 37 and Romualdez v. RTC, Br. 7, Tacloban
City, 38 "residence" is synonymous with "domicile" which denotes a
fixed permanent residence to which when absent, one intends to
return. They claim that a person can only have one domicile at any
given time. Since Felicisimo never changed his domicile, the petition for
letters of administration should have been filed in Sta. Cruz, Laguna.
Petitioners also contend that respondent’s marriage to Felicisimo was
void and bigamous because it was performed during the subsistence of
the latter’s marriage to Merry Lee. They argue that paragraph 2, Article
26 cannot be retroactively applied because it would impair vested
rights and ratify the void bigamous marriage. As such, respondent
cannot be considered the surviving wife of Felicisimo; hence, she has
no legal capacity to file the petition for letters of administration.
The issues for resolution: (1) whether venue was properly laid, and (2)
whether respondent has legal capacity to file the subject petition for
letters of administration.
The petition lacks merit.
Under Section 1, 39 Rule 73 of the Rules of Court, the petition for letters
of administration of the estate of Felicisimo should be filed in the
Regional Trial Court of the province "in which he resides at the time of
his death." In the case of Garcia Fule v. Court of Appeals, 40 we laid
down the doctrinal rule for determining the residence – as
contradistinguished from domicile – of the decedent for purposes of
fixing the venue of the settlement of his estate:
[T]he term "resides" connotes ex vi termini "actual residence" as
distinguished from "legal residence or domicile." This term "resides,"
like the terms "residing" and "residence," is elastic and should be
interpreted in the light of the object or purpose of the statute or rule in
which it is employed. In the application of venue statutes and rules –
Section 1, Rule 73 of the Revised Rules of Court is of such nature –
residence rather than domicile is the significant factor. Even where the
statute uses the word "domicile" still it is construed as meaning
residence and not domicile in the technical sense. Some cases make a
distinction between the terms "residence" and "domicile" but as
generally used in statutes fixing venue, the terms are synonymous, and
convey the same meaning as the term "inhabitant." In other words,
"resides" should be viewed or understood in its popular sense,
meaning, the personal, actual or physical habitation of a person, actual
residence or place of abode. It signifies physical presence in a place and
actual stay thereat. In this popular sense, the term means merely
residence, that is, personal residence, not legal residence or domicile.
Residence simply requires bodily presence as an inhabitant in a given
place, while domicile requires bodily presence in that place and also an
intention to make it one’s domicile. No particular length of time of
residence is required though; however, the residence must be more
than temporary.41 (Emphasis supplied)
It is incorrect for petitioners to argue that "residence," for purposes of
fixing the venue of the settlement of the estate of Felicisimo, is
synonymous with "domicile." The rulings in Nuval and Romualdez are
inapplicable to the instant case because they involve election cases.
Needless to say, there is a distinction between "residence" for purposes
of election laws and "residence" for purposes of fixing the venue of
actions. In election cases, "residence" and "domicile" are treated as
synonymous terms, that is, the fixed permanent residence to which
when absent, one has the intention of returning. 42 However, for
purposes of fixing venue under the Rules of Court, the "residence" of a
person is his personal, actual or physical habitation, or actual residence
or place of abode, which may not necessarily be his legal residence or
domicile provided he resides therein with continuity and
consistency.43 Hence, it is possible that a person may have his residence
in one place and domicile in another.
In the instant case, while petitioners established that Felicisimo was
domiciled in Sta. Cruz, Laguna, respondent proved that he also
maintained a residence in Alabang, Muntinlupa from 1982 up to the
time of his death. Respondent submitted in evidence the Deed of
Absolute Sale 44 dated January 5, 1983 showing that the deceased
purchased the aforesaid property. She also presented billing
statements 45 from the Philippine Heart Center and Chinese General
Hospital for the period August to December 1992 indicating the
address of Felicisimo at "100 San Juanico, Ayala Alabang, Muntinlupa."
Respondent also presented proof of membership of the deceased in
the Ayala Alabang Village Association 46 and Ayala Country Club,
Inc., 47 letter-envelopes 48 from 1988 to 1990 sent by the deceased’s
children to him at his Alabang address, and the deceased’s calling
cards 49stating that his home/city address is at "100 San Juanico, Ayala
Alabang Village, Muntinlupa" while his office/provincial address is in
"Provincial Capitol, Sta. Cruz, Laguna."
From the foregoing, we find that Felicisimo was a resident of Alabang,
Muntinlupa for purposes of fixing the venue of the settlement of his
estate. Consequently, the subject petition for letters of administration
was validly filed in the Regional Trial Court 50 which has territorial
jurisdiction over Alabang, Muntinlupa. The subject petition was filed on
December 17, 1993. At that time, Muntinlupa was still a municipality
and the branches of the Regional Trial Court of the National Capital
Judicial Region which had territorial jurisdiction over Muntinlupa were
then seated in Makati City as per Supreme Court Administrative Order
No. 3. 51 Thus, the subject petition was validly filed before the Regional
Trial Court of Makati City.
Anent the issue of respondent Felicidad’s legal personality to file the
petition for letters of administration, we must first resolve the issue of
whether a Filipino who is divorced by his alien spouse abroad may
validly remarry under the Civil Code, considering that Felicidad’s
marriage to Felicisimo was solemnized on June 20, 1974, or before the
Family Code took effect on August 3, 1988. In resolving this issue, we
need not retroactively apply the provisions of the Family Code,
particularly Art. 26, par. (2) considering that there is sufficient
jurisprudential basis allowing us to rule in the affirmative.
The case of Van Dorn v. Romillo, Jr. 52 involved a marriage between a
foreigner and his Filipino wife, which marriage was subsequently
dissolved through a divorce obtained abroad by the latter. Claiming
that the divorce was not valid under Philippine law, the alien spouse
alleged that his interest in the properties from their conjugal
partnership should be protected. The Court, however, recognized the
validity of the divorce and held that the alien spouse had no interest in
the properties acquired by the Filipino wife after the divorce. Thus:
In this case, the divorce in Nevada released private respondent from
the marriage from the standards of American law, under which divorce
dissolves the marriage. As stated by the Federal Supreme Court of the
United States in Atherton vs. Atherton, 45 L. Ed. 794, 799:
"The purpose and effect of a decree of divorce from the bond of
matrimony by a competent jurisdiction are to change the existing
status or domestic relation of husband and wife, and to free them both
from the bond. The marriage tie, when thus severed as to one party,
ceases to bind either. A husband without a wife, or a wife without a
husband, is unknown to the law. When the law provides, in the nature
of a penalty, that the guilty party shall not marry again, that party, as
well as the other, is still absolutely freed from the bond of the former
marriage."
Thus, pursuant to his national law, private respondent is no longer the
husband of petitioner. He would have no standing to sue in the case
below as petitioner’s husband entitled to exercise control over conjugal
assets. As he is bound by the Decision of his own country’s Court, which
validly exercised jurisdiction over him, and whose decision he does not
repudiate, he is estopped by his own representation before said Court
from asserting his right over the alleged conjugal property. 53
As to the effect of the divorce on the Filipino wife, the Court ruled that
she should no longer be considered married to the alien spouse.
Further, she should not be required to perform her marital duties and
obligations. It held:
To maintain, as private respondent does, that, under our laws,
petitioner has to be considered still married to private
respondent and still subject to a wife's obligations under Article 109,
et. seq. of the Civil Code cannot be just. Petitioner should not be
obliged to live together with, observe respect and fidelity, and render
support to private respondent. The latter should not continue to be
one of her heirs with possible rights to conjugal property. She should
not be discriminated against in her own country if the ends of justice
are to be served. 54 (Emphasis added)
This principle was thereafter applied in Pilapil v. Ibay-Somera 55 where
the Court recognized the validity of a divorce obtained abroad. In the
said case, it was held that the alien spouse is not a proper party in filing
the adultery suit against his Filipino wife. The Court stated that "the
severance of the marital bond had the effect of dissociating the former
spouses from each other, hence the actuations of one would not affect
or cast obloquy on the other." 56
Likewise, in Quita v. Court of Appeals, 57 the Court stated that where a
Filipino is divorced by his naturalized foreign spouse, the ruling in Van
Dorn applies. 58 Although decided on December 22, 1998, the divorce in
the said case was obtained in 1954 when the Civil Code provisions were
still in effect.
The significance of the Van Dorn case to the development of limited
recognition of divorce in the Philippines cannot be denied. The ruling
has long been interpreted as severing marital ties between parties in a
mixed marriage and capacitating the Filipino spouse to remarry as a
necessary consequence of upholding the validity of a divorce obtained
abroad by the alien spouse. In his treatise, Dr. Arturo M. Tolentino
cited Van Dorn stating that "if the foreigner obtains a valid foreign
divorce, the Filipino spouse shall have capacity to remarry under
Philippine law." 59 In Garcia v. Recio, 60 the Court likewise cited the
aforementioned case in relation to Article 26. 61
In the recent case of Republic v. Orbecido III, 62 the historical
background and legislative intent behind paragraph 2, Article 26 of the
Family Code were discussed, to wit:
Brief Historical Background
On July 6, 1987, then President Corazon Aquino signed into law
Executive Order No. 209, otherwise known as the "Family Code," which
took effect on August 3, 1988. Article 26 thereof states:
All marriages solemnized outside the Philippines in accordance with the
laws in force in the country where they were solemnized, and valid
there as such, shall also be valid in this country, except those
prohibited under Articles 35, 37, and 38.
On July 17, 1987, shortly after the signing of the original Family Code,
Executive Order No. 227 was likewise signed into law, amending
Articles 26, 36, and 39 of the Family Code. A second paragraph was
added to Article 26. As so amended, it now provides:
ART. 26. All marriages solemnized outside the Philippines in accordance
with the laws in force in the country where they were solemnized, and
valid there as such, shall also be valid in this country, except those
prohibited under Articles 35(1), (4), (5) and (6), 36, 37 and 38.
Where a marriage between a Filipino citizen and a foreigner is validly
celebrated and a divorce is thereafter validly obtained abroad by the
alien spouse capacitating him or her to remarry, the Filipino spouse
shall have capacity to remarry under Philippine law. (Emphasis
supplied)
x x x x
Legislative Intent
Records of the proceedings of the Family Code deliberations showed
that the intent of Paragraph 2 of Article 26, according to Judge Alicia
Sempio-Diy, a member of the Civil Code Revision Committee, is to avoid
the absurd situation where the Filipino spouse remains married to the
alien spouse who, after obtaining a divorce, is no longer married to the
Filipino spouse.
Interestingly, Paragraph 2 of Article 26 traces its origin to the 1985
case of Van Dorn v. Romillo, Jr. TheVan Dorn case involved a marriage
between a Filipino citizen and a foreigner. The Court held therein that
a divorce decree validly obtained by the alien spouse is valid in the
Philippines, and consequently, the Filipino spouse is capacitated to
remarry under Philippine law. 63 (Emphasis added)
As such, the Van Dorn case is sufficient basis in resolving a situation
where a divorce is validly obtained abroad by the alien spouse. With
the enactment of the Family Code and paragraph 2, Article 26 thereof,
our lawmakers codified the law already established through judicial
precedent.1awphi1.net
Indeed, when the object of a marriage is defeated by rendering its
continuance intolerable to one of the parties and productive of no
possible good to the community, relief in some way should be
obtainable. 64 Marriage, being a mutual and shared commitment
between two parties, cannot possibly be productive of any good to the
society where one is considered released from the marital bond while
the other remains bound to it. Such is the state of affairs where the
alien spouse obtains a valid divorce abroad against the Filipino spouse,
as in this case.
Petitioners cite Articles 15 65 and 17 66 of the Civil Code in stating that
the divorce is void under Philippine law insofar as Filipinos are
concerned. However, in light of this Court’s rulings in the cases
discussed above, the Filipino spouse should not be discriminated
against in his own country if the ends of justice are to be served. 67 In
Alonzo v. Intermediate Appellate Court, 68 the Court stated:
But as has also been aptly observed, we test a law by its results; and
likewise, we may add, by its purposes. It is a cardinal rule that, in
seeking the meaning of the law, the first concern of the judge should be
to discover in its provisions the intent of the lawmaker.
Unquestionably, the law should never be interpreted in such a way as
to cause injustice as this is never within the legislative intent. An
indispensable part of that intent, in fact, for we presume the good
motives of the legislature, is to render justice.
Thus, we interpret and apply the law not independently of but in
consonance with justice. Law and justice are inseparable, and we must
keep them so. To be sure, there are some laws that, while generally
valid, may seem arbitrary when applied in a particular case because of
its peculiar circumstances. In such a situation, we are not bound,
because only of our nature and functions, to apply them just the same,
in slavish obedience to their language. What we do instead is find a
balance between the word and the will, that justice may be done even
as the law is obeyed.
As judges, we are not automatons. We do not and must not unfeelingly
apply the law as it is worded, yielding like robots to the literal
command without regard to its cause and consequence. "Courts are
apt to err by sticking too closely to the words of a law," so we are
warned, by Justice Holmes again, "where these words import a policy
that goes beyond them."
xxxx
More than twenty centuries ago, Justinian defined justice "as the
constant and perpetual wish to render every one his due." That wish
continues to motivate this Court when it assesses the facts and the law
in every case brought to it for decision. Justice is always an essential
ingredient of its decisions. Thus when the facts warrants, we interpret
the law in a way that will render justice, presuming that it was the
intention of the lawmaker, to begin with, that the law be dispensed
with justice. 69
Applying the above doctrine in the instant case, the divorce decree
allegedly obtained by Merry Lee which absolutely allowed Felicisimo to
remarry, would have vested Felicidad with the legal personality to file
the present petition as Felicisimo’s surviving spouse. However, the
records show that there is insufficient evidence to prove the validity of
the divorce obtained by Merry Lee as well as the marriage of
respondent and Felicisimo under the laws of the U.S.A. In Garcia v.
Recio, 70 the Court laid down the specific guidelines for pleading and
proving foreign law and divorce judgments. It held that presentation
solely of the divorce decree is insufficient and that proof of its
authenticity and due execution must be presented. Under Sections 24
and 25 of Rule 132, a writing or document may be proven as a public or
official record of a foreign country by either (1) an official publication or
(2) a copy thereof attested by the officer having legal custody of the
document. If the record is not kept in the Philippines, such copy must
be (a) accompanied by a certificate issued by the proper diplomatic or
consular officer in the Philippine foreign service stationed in the foreign
country in which the record is kept and (b) authenticated by the seal of
his office. 71
With regard to respondent’s marriage to Felicisimo allegedly
solemnized in California, U.S.A., she submitted photocopies of the
Marriage Certificate and the annotated text 72 of the Family Law Act of
California which purportedly show that their marriage was done in
accordance with the said law. As stated in Garcia, however, the Court
cannot take judicial notice of foreign laws as they must be alleged and
proved. 73
Therefore, this case should be remanded to the trial court for further
reception of evidence on the divorce decree obtained by Merry Lee and
the marriage of respondent and Felicisimo.
Even assuming that Felicisimo was not capacitated to marry respondent
in 1974, nevertheless, we find that the latter has the legal personality
to file the subject petition for letters of administration, as she may be
considered the co-owner of Felicisimo as regards the properties that
were acquired through their joint efforts during their cohabitation.
Section 6, 74 Rule 78 of the Rules of Court states that letters of
administration may be granted to the surviving spouse of the decedent.
However, Section 2, Rule 79 thereof also provides in part:
SEC. 2. Contents of petition for letters of administration. – A petition
for letters of administration must be filed by an interested person and
must show, as far as known to the petitioner: x x x.
An "interested person" has been defined as one who would be
benefited by the estate, such as an heir, or one who has a claim against
the estate, such as a creditor. The interest must be material and direct,
and not merely indirect or contingent. 75
In the instant case, respondent would qualify as an interested person
who has a direct interest in the estate of Felicisimo by virtue of their
cohabitation, the existence of which was not denied by petitioners. If
she proves the validity of the divorce and Felicisimo’s capacity to
remarry, but fails to prove that her marriage with him was validly
performed under the laws of the U.S.A., then she may be considered as
a co-owner under Article 144 76 of the Civil Code. This provision governs
the property relations between parties who live together as husband
and wife without the benefit of marriage, or their marriage is void from
the beginning. It provides that the property acquired by either or both
of them through their work or industry or their wages and salaries shall
be governed by the rules on co-ownership. In a co-ownership, it is not
necessary that the property be acquired through their joint labor,
efforts and industry. Any property acquired during the union is prima
facie presumed to have been obtained through their joint efforts.
Hence, the portions belonging to the co-owners shall be presumed
equal, unless the contrary is proven. 77
Meanwhile, if respondent fails to prove the validity of both the divorce
and the marriage, the applicable provision would be Article 148 of the
Family Code which has filled the hiatus in Article 144 of the Civil Code
by expressly regulating the property relations of couples living together
as husband and wife but are incapacitated to marry. 78In Saguid v.
Court of Appeals, 79 we held that even if the cohabitation or the
acquisition of property occurred before the Family Code took effect,
Article 148 governs. 80 The Court described the property regime under
this provision as follows:
The regime of limited co-ownership of property governing the union of
parties who are not legally capacitated to marry each other, but who
nonetheless live together as husband and wife, applies to properties
acquired during said cohabitation in proportion to their respective
contributions. Co-ownership will only be up to the extent of the proven
actual contribution of money, property or industry. Absent proof of the
extent thereof, their contributions and corresponding shares shall be
presumed to be equal.
xxxx
In the cases of Agapay v. Palang, and Tumlos v. Fernandez, which
involved the issue of co-ownership of properties acquired by the
parties to a bigamous marriage and an adulterous relationship,
respectively, we ruled that proof of actual contribution in the
acquisition of the property is essential. x x x
As in other civil cases, the burden of proof rests upon the party who, as
determined by the pleadings or the nature of the case, asserts an
affirmative issue. Contentions must be proved by competent evidence
and reliance must be had on the strength of the party’s own evidence
and not upon the weakness of the opponent’s defense. x x x 81
In view of the foregoing, we find that respondent’s legal capacity to file
the subject petition for letters of administration may arise from her
status as the surviving wife of Felicisimo or as his co-owner under
Article 144 of the Civil Code or Article 148 of the Family Code.
WHEREFORE, the petition is DENIED. The Decision of the Court of
Appeals reinstating and affirming the February 28, 1994 Order of the
Regional Trial Court which denied petitioners’ motion to dismiss and its
October 24, 1994 Order which dismissed petitioners’ motion for
reconsideration is AFFIRMED. Let this case be REMANDED to the trial
court for further proceedings.
SO ORDERED.
G.R. No. 160530 November 20, 2007
CYNTHIA V. NITTSCHER, petitioner,
vs.
DR. WERNER KARL JOHANN NITTSCHER (Deceased), ATTY. ROGELIO P.
NOGALES and THE REGIONAL TRIAL COURT OF MAKATI (Branch
59), respondents.
DECISION
QUISUMBING, J.:
For review on certiorari are the Decision1 dated July 31, 2003 and
Resolution2 dated October 21, 2003 of the Court of Appeals in CA-G.R.
CV No. 55330, which affirmed the Order3 dated September 29, 1995 of
the Regional Trial Court (RTC), Branch 59, Makati City, in SP Proc. No.
M-2330 for the probate of a will.
The facts are as follows.
On January 31, 1990, Dr. Werner Karl Johann Nittscher filed with the
RTC of Makati City a petition for the probate of his holographic will and
for the issuance of letters testamentary to herein respondent Atty.
Rogelio P. Nogales.
On September 19, 1991, after hearing and with due notice to the
compulsory heirs, the probate court issued an order allowing the said
holographic will, thus:
WHEREFORE, premises considered, the Holographic Will of
the petitioner-testator Dr. Werner J. Nittscher executed
pursuant to the provision of the second paragraph of Article
838 of the Civil Code of the Philippines on January 25, 1990 in
Manila, Philippines, and proved in accordance with the
provision of Rule 76 of the Revised Rules of Court is hereby
allowed.
SO ORDERED.4
On September 26, 1994, Dr. Nittscher died. Hence, Atty. Nogales filed a
petition for letters testamentary for the administration of the estate of
the deceased. Dr. Nittscher’s surviving spouse, herein petitioner
Cynthia V. Nittscher, moved for the dismissal of the said petition.
However, the court in its September 29, 1995 Order denied petitioner’s
motion to dismiss, and granted respondent’s petition for the issuance
of letters testamentary, to wit:
In view of all the foregoing, the motion to dismiss is DENIED.
The petition for the issuance of Letters Testamentary, being
in order, is GRANTED.
Section 4, Rule 78 of the Revised Rules of Court, provides
"when a will has been proved and allowed, the court shall
issue letters testamentary thereon to the person named as
executor therein, if he is competent, accepts the trust and
gives a bond as required by these rules." In the case at bar,
petitioner Atty. Rogelio P. Nogales of the R.P. Nogales Law
Offices has been named executor under the Holographic Will
of Dr. Werner J. Nittscher. As prayed for, let Letters
Testamentary be issued to Atty. Rogelio P. Nogales, the
executor named in the Will, without a bond.
 SO ORDERED.5
Petitioner moved for reconsideration, but her motion was denied for
lack of merit. On May 9, 1996, Atty. Nogales was issued letters
testamentary and was sworn in as executor.
Petitioner appealed to the Court of Appeals alleging that respondent’s
petition for the issuance of letters testamentary should have been
dismissed outright as the RTC had no jurisdiction over the subject
matter and that she was denied due process.
The appellate court dismissed the appeal, thus:
WHEREFORE, the foregoing considered, the appeal is
hereby DISMISSED and the assailed Order isAFFIRMED in
toto. The court a quo is ordered to proceed with dispatch in
the proceedings below.
SO ORDERED.6
Petitioner’s motion for reconsideration of the aforequoted decision
was denied for lack of merit. Hence, the present petition anchored on
the following grounds:
I.
BOTH THE CA AND THE LOWER COURT ERRED IN NOT
DISMISSING OUTRIGHT THE PETITION FOR LETTERS …
TESTAMENTARY FILED BY ATTY. NOGALES WHEN,
OBVIOUSLY, IT WAS FILED IN VIOLATION OF REVISED
CIRCULAR NO. 28-91 AND ADMINISTRATIVE CIRCULAR NO.
04-94 OF THIS HONORABLE COURT.
II.
THE CA ERRED IN NOT DECLARING THAT THE LOWER COURT
[HAS] NO JURISDICTION OVER THE SUBJECT MATTER OF THE
PRESENT SUIT.
III.
THE CA ERRED IN CONCLUDING THAT SUMMONS WERE
PROPERLY ISSUED TO THE PARTIES AND ALL PERSONS
INTERESTED IN THE PROBATE OF THE HOLOGRAPHIC WILL OF
DR. NITTSCHER.
IV.
THE CA ERRED IN CONCLUDING THAT THE PETITIONER WAS
NOT DEPRIVED OF DUE PROCESS OF LAW BY THE LOWER
COURT.7
Petitioner contends that respondent’s petition for the issuance of
letters testamentary lacked a certification against forum-shopping. She
adds that the RTC has no jurisdiction over the subject matter of this
case because Dr. Nittscher was allegedly not a resident of the
Philippines; neither did he leave real properties in the country.
Petitioner claims that the properties listed for disposition in her
husband’s will actually belong to her. She insists she was denied due
process of law because she did not receive by personal service the
notices of the proceedings.
Respondent Atty. Nogales, however, counters that Dr. Nittscher did
reside and own real properties in Las Piñas, Metro Manila. He stresses
that petitioner was duly notified of the probate proceedings.
Respondent points out that petitioner even appeared in court to
oppose the petition for the issuance of letters testamentary and that
she also filed a motion to dismiss the said petition. Respondent
maintains that the petition for the issuance of letters testamentary
need not contain a certification against forum-shopping as it is merely a
continuation of the original proceeding for the probate of the will.
We resolve to deny the petition.
As to the first issue, Revised Circular No. 28-918 and Administrative
Circular No. 04-949 of the Court require a certification against forum-
shopping for all initiatory pleadings filed in court. However, in this case,
the petition for the issuance of letters testamentary is not an initiatory
pleading, but a mere continuation of the original petition for the
probate of Dr. Nittscher’s will. Hence, respondent’s failure to include a
certification against forum-shopping in his petition for the issuance of
letters testamentary is not a ground for outright dismissal of the said
petition.
Anent the second issue, Section 1, Rule 73 of the Rules of Court
provides:
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 (now Regional Trial
Court) in the province in which he resides at the time of his
death, and if he is an inhabitant of a foreign country, the
Court of First Instance (now Regional Trial Court) of any
province in which he had estate. … (Emphasis supplied.)
In this case, the RTC and the Court of Appeals are one in their finding
that Dr. Nittscher was a resident of Las Piñas, Metro Manila at the time
of his death. Such factual finding, which we find supported by evidence
on record, should no longer be disturbed. Time and again we have said
that reviews on certiorari are limited to errors of law. Unless there is a
showing that the findings of the lower court are totally devoid of
support or are glaringly erroneous, this Court will not analyze or weigh
evidence all over again.10
Hence, applying the aforequoted rule, Dr. Nittscher correctly filed in
the RTC of Makati City, which then covered Las Piñas, Metro Manila,
the petition for the probate of his will and for the issuance of letters
testamentary to respondent.
Regarding the third and fourth issues, we note that Dr. Nittscher asked
for the allowance of his own will. In this connection, Section 4, Rule 76
of the Rules of Court states:
SEC. 4. Heirs, devisees, legatees, and executors to be notified
by mail or personally. – …
 If the testator asks for the allowance of his own will, notice
shall be sent only to his compulsory heirs.
In this case, records show that petitioner, with whom Dr. Nittscher had
no child, and Dr. Nittscher’s children from his previous marriage were
all duly notified, by registered mail, of the probate proceedings.
Petitioner even appeared in court to oppose respondent’s petition for
the issuance of letters testamentary and she also filed a motion to
dismiss the said petition. She likewise filed a motion for reconsideration
of the issuance of the letters testamentary and of the denial of her
motion to dismiss. We are convinced petitioner was accorded every
opportunity to defend her cause. Therefore, petitioner’s allegation that
she was denied due process in the probate proceedings is without
basis.
As a final word, petitioner should realize that the allowance of her
husband’s will is conclusive only as to its due execution.11 The authority
of the probate court is limited to ascertaining whether the testator,
being of sound mind, freely executed the will in accordance with the
formalities prescribed by law.12 Thus, petitioner’s claim of title to the
properties forming part of her husband’s estate should be settled in an
ordinary action before the regular courts.
WHEREFORE, the petition is DENIED for lack of merit. The assailed
Decision dated July 31, 2003 and Resolution dated October 21, 2003 of
the Court of Appeals in CA-G.R. CV No. 55330, which affirmed the
Order dated September 29, 1995 of the Regional Trial Court, Branch 59,
Makati City, in SP Proc. No. M-2330 are AFFIRMED.
No pronouncement as to costs.
SO ORDERED
RULE 74
G.R. No. 115181 March 31, 2000
MARIA SOCORRO AVELINO, petitioner,
vs.
COURT OF APPEALS, ANGELINA AVELINO, SHARON AVELINO,
ANTONIO AVELINO, JR., TRACY AVELINO, PATRICK MICHAEL AVELINO
and MARK ANTHONY AVELINO, respondents.
RESOLUTION
QUISUMBING, J.:
Before us is a petition for review on certiorari of the Decision of the
Court of Appeals dated February 16, 1994 in CA-G.R. SP No. 31574 as
well as its Resolution dated April 28, 1994 denying petitioner's Motion
for Reconsideration. The assailed Decision affirmed the Order of the
Regional Trial Court of Quezon City, Branch 78, in Sp. Proc. No. Q-91-
10441 converting petitioner's petition for the issuance of letters of
administration to an action for judicial partition.
Petitioner Maria Socorro Avelino is a daughter and compulsory heir of
the late Antonio Avelino, Sr., and his first wife private respondent
Angelina Avelino.
The other private respondents, Sharon, Antonio Jr., Tracy, Patrick and
Mark Anthony all surnamed Avelino are likewise compulsory heirs of
Avelino, Sr. Sharon, an American, is the second wife of Avelino Sr. The
other private respondents are siblings of petitioner Ma. Socorro.
The records reveal that on October 24, 1991, Ma. Socorro filed before
the Regional Trial Court of Quezon City, Branch 78, docketed as SP
Proc. No. Q-91-10441, a petition for the issuance of letters of
administration of the estate of Antonio Avelino, Sr., who died intestate
on April 10, 1989. She asked that she be appointed the administrator of
the estate.
On December 3, 1992, Angelina, and the siblings filed their opposition
by filing a motion to convert the said judicial proceedings to an action
for judicial partition which petitioner duly opposed.
On February 16, 1993, public respondent judge issued the assailed
Order which reads:
Acting on the "Motion to Convert Proceedings to Action for
Judicial Partition", considering that the petitioner is the only
heir not amenable to a simple partition, and all the other
compulsory heirs manifested their desire for an expeditious
settlement of the estate of the deceased Antonio Avelino, Sr.,
the same is granted.
WHEREFORE, the petition is converted into judicial partition
of the estate of deceased Antonio Avelino, Sr. The parties are
directed to submit a complete inventory of all the real and
personal properties left by the deceased. Set the hearing of
the judicial partition on APRIL 13, 1993, at 8:30 o'clock in the
morning. Notify all the parties and their counsel of this
assignment.
SO ORDERED.1
On March 17, 1993, petitioner filed a motion for reconsideration which
was denied in an Order dated June 16, 1993.
On July 23, 1993, Ma. Socorro filed before the Court of Appeals, a
petition for certiorari, prohibition, andmandamus alleging grave abuse
of discretion amounting to lack or excess of jurisdiction on the part of
the trial court, in granting private respondents' motion to convert the
judicial proceeding for the issuance of letters of administration to an
action for judicial partition. Her petition was docketed as CA-G.R. SP
No. 31574.
On February 18, 1994, the respondent appellate court rendered the
assailed decision, stating that the "petition is DENIED DUE COURSE"
and accordingly dismissed. 2
On March 1, 1994, petitioner duly moved for reconsideration, but it
was denied on April 28, 1994.
Hence, this petition. Petitioner assigns the following errors:
 THE COURT OF APPEALS ERRED IN UPHOLDING THE LOWER administrator, and without delay, to grant, if proper,
COURT'S FINDING THAT PARTITION IS PROPER UNDER THE allowance of the will, if any there be, to determine who are
PREMISES. the persons legally entitled to participate in the estate and to
apportion and divide it among them after the payment of
ADMINISTRATION SHOULD BE THE PROPER REMEDY such debts of the estate as the court shall then find to be
PENDING THE DETERMINATION OF THE CHARACTER AND due; and such persons, in their own right, if they are lawful
EXTENT OF THE DECEDENT'S ESTATE.3 age and legal capacity, or by their guardians or trustees
legally appointed and qualified, if otherwise, shall thereupon
be entitled to receive and enter into the possession of the
For resolution, we find that given the circumstances in this case, the
portions of the estate so awarded to them respectively. The
sole issue here is whether respondent appellate court committed an
court shall make such order as may be just respecting the
error of law and gravely abused its discretion in upholding the trial
costs of the proceedings, and all orders and judgments made
court's finding that a partition is proper.
or rendered in the course thereof shall be recorded in the
office of the clerk, and the order of partition or award, if it
Petitioner submits that: First, no partition of the estate is possible in involves real estate, shall be recorded in the proper register's
the instant case as no determination has yet been made of the office.1awp++i1
character and extent of the decedent's estate. She points to the Court's
ruling in Arcilles v.Montejo, 26 SCRA 197 (1969), where we held that
The heirs succeed immediately to all of the rights and properties of the
when the existence of other properties of the decedent is a matter still
deceased at the moment of the latter's death.7 Section 1, Rule 74 of the
to be reckoned with, administration proceedings are the proper mode
Rules of Court, allows heirs to divide the estate among themselves
of resolving the same.4 In addition, petitioner contends that the estate
without need of delay and risks of being dissipated. When a person dies
is in danger of being depleted for want of an administrator to manage
without leaving pending obligations, his heirs, are not required to
and attend to it.
submit the property for judicial administration, nor apply for the
appointment of an administrator by the court.8
Second, petitioner insists that the Rules of Court does not provide for
conversion of a motion for the issuance of letters of administration to
We note that the Court of Appeals found that in this case "the
an action for judicial partition. The conversion of the motion was, thus,
decedent left no debts and the heirs and legatees are all of age."9 With
procedurally inappropriate and should be struck down for lack of legal
this finding, it is our view that Section 1, Rule 74 of the Rules of Court
basis.
should apply.

When a person dies intestate, or, if testate, failed to name an executor

In a last-ditch effort to justify the need for an administrator, petitioner
in his will or the executor so named is incompetent, or refuses the
insists that there is nothing to partition yet, as the nature and character
trust, or fails to furnish the bond required by the Rules of Court, then
of the estate have yet to be determined. We find, however, that a
the decedent's estate shall be judicially administered and the
complete inventory of the estate may be done during the partition
competent court shall appoint a qualified administrator in the order
proceedings, especially since the estate has no debts. Hence, the Court
established in Section 6 of Rule 78.5 The exceptions to this rule are
of Appeals committed no reversible error when it ruled that the lower
found in Sections 1 and 2 of Rule 746 which provide:
court did not err in converting petitioner's action for letters of
administration into an action for judicial partition.
Sec. 1. Extrajudicial settlement by agreement between heirs.
— If the decedent left no will and no debts and the heirs are
Nor can we sustain petitioner's argument that the order of the trial
all of age or the minors are represented by their judicial or
court converting an action for letters of administration to one for
legal representatives duly authorized for the purpose, the
judicial partition has no basis in the Rules of Court, hence procedurally
parties may, without securing letters of administration, divide
infirm. The basis for the trial court's order is Section 1, Rule 74 of the
the estate among themselves as they see fit by means of a
Rules of Court. It provides that in cases where the heirs disagree as to
public instrument filed in the office of the register of deeds,
the partition of the estate and no extrajudicial settlement is possible,
and should they disagree, they may do so in an ordinary
then an ordinary action for partition may be resorted to, as in this case.
action of partition. . .
We have held that where the more expeditious remedy of partition is
available to the heirs, then the heirs or the majority of them may not
Sec. 2. Summary settlement of estates of small value. — be compelled to submit to administration proceedings. 10 The trial
Whenever the gross value of the estate of a deceased person, court appropriately converted petitioner's action for letters of
whether he died testate or intestate, does not exceed ten administration into a suit for judicial partition, upon motion of the
thousand pesos, and that fact if made to appear to the private respondents. No reversible error may be attributed to the Court
Regional Trial Court having jurisdiction of the estate by the of Appeals when it found the trial court's action procedurally in order.
petition of an interested person and upon hearing, which
shall be held not less than one (1) month nor more than three
WHEREFORE, the petition is DENIED for lack of merit, and the assailed
(3) months from the date of the last publication of a notice
decision and resolution of the Court of Appeals in CA-G.R. SP No. 31574
which shall be published once a week for three (3)
are AFFIRMED. Costs against petitioner.
consecutive weeks in a newspaper of general circulation in
the province, and after such other notice to interested
persons as the court may direct, the court may proceed SO ORDERED.1âwphi1.nêt
summarily, without the appointment of an executor or
G.R. No. 156536 October 31, 2006
JOSEPH CUA, petitioner,
vs.
GLORIA A. VARGAS, AURORA VARGAS, RAMON VARGAS, MARITES
VARGAS, EDELINA VARGAS AND GEMMA VARGAS, respondents.
DECISION
AZCUNA, J.:
This is a petition for review under Rule 45 of the Rules of Court seeking
the reversal of the decision1 dated March 26, 2002, and the
resolution2 dated December 17, 2002, of the Court of Appeals in CA-
G.R. SP No. 59869 entitled "Gloria A. Vargas, Aurora Vargas, Ramon
Vargas, Marites Vargas, Edelina Vargas and Gemma Vargas v. Joseph
Cua."
The facts are as follows:
A parcel of residential land with an area of 99 square meters located in
San Juan, Virac, Catanduanes was left behind by the late Paulina
Vargas. On February 4, 1994, a notarized Extra Judicial Settlement
Among Heirs was executed by and among Paulina Vargas' heirs, namely
Ester Vargas, Visitacion Vargas, Juan Vargas, Zenaida V. Matienzo,
Rosario V. Forteza, Andres Vargas, Gloria Vargas, Antonina Vargas and
Florentino Vargas, partitioning and adjudicating unto themselves the
lot in question, each one of them getting a share of 11 square meters.
Florentino, Andres, Antonina and Gloria, however, did not sign the
document. Only Ester, Visitacion, Juan, Zenaida and Rosario signed it.
The Extra Judicial Settlement Among Heirs was published in the
Catanduanes Tribune for three consecutive weeks.3
On November 15, 1994, an Extra Judicial Settlement Among Heirs with
Sale4 was again executed by and among the same heirs over the same
property and also with the same sharings. Once more, only Ester,
Visitacion, Juan, Zenaida and Rosario signed the document and their
respective shares totaling 55 square meters were sold to Joseph Cua,
petitioner herein.
According to Gloria Vargas, the widow of Santiago Vargas and one of
respondents herein, she came to know of the Extra Judicial Settlement
Among Heirs with Sale dated November 16, 1994 only when the
original house built on the lot was being demolished sometime in May
1995.5 She likewise claimed she was unaware that an earlier Extra
Judicial Settlement Among Heirs dated February 4, 1994 involving the
same property had been published in the Catanduanes Tribune.6
After knowing of the sale of the 55 square meters to petitioner, Gloria
Vargas tried to redeem the property, with the following letter 7 sent to
petitioner on her behalf:
29th June 1995
Mr. Joseph Cua
Capilihan, Virac, Catanduanes
Sir:
This is in behalf of my client, Ms. Aurora Vargas,8 (c/o Atty.
Prospero V. Tablizo) one of the lawful heirs of the late Paulina
Vargas, original owner of Lot No. 214 of Virac, Poblacion
covered by ARP No. 031-0031 in her name.
I understand that a document "Extra Judicial Settlement
Among Heirs with Sale" was executed by some of my client's
co-heirs and alleged representatives of other co-heirs, by
virtue of which document you acquired by purchase from the
signatories to the said document, five (5) shares with a total
area of fifty-five square meters of the above-described land.
This is to serve you notice that my client shall exercise her
right of legal redemption of said five (5) shares as well as
other shares which you may likewise have acquired by
purchase. And you are hereby given an option to agree to
legal redemption within a period of fifteen (15) days from
your receipt hereof.
Should you fail to convey to me your agreement within said
15-day-period, proper legal action shall be taken by my client
to redeem said shares.
Thank you.
Very truly yours,
(Sgd.)
JUAN G. ATENCIA
When the offer to redeem was refused and after having failed to reach
an amicable settlement at the barangay level,9 Gloria Vargas filed a
case for annulment of Extra Judicial Settlement and Legal Redemption
of the lot with the Municipal Trial Court (MTC) of Virac, Catanduanes
against petitioner and consigned the amount of P100,000 which is the
amount of the purchase with the Clerk of Court on May 20,
1996.10 Joining her in the action were her children with Santiago,
namely, Aurora, Ramon, Marites, Edelina and Gemma, all surnamed
Vargas.
Subsequently, Carlos Gianan, Jr. and Gloria Arcilla, heirs of the alleged
primitive owner of the lot in question, Pedro Lakandula, intervened in
the case.11
Respondents claimed that as co-owners of the property, they may be
subrogated to the rights of the purchaser by reimbursing him the price
of the sale. They likewise alleged that the 30-day period following a
written notice by the vendors to their co-owners for them to exercise
the right of redemption of the property had not yet set in as no written
notice was sent to them. In effect, they claimed that the Extra Judicial
Settlement Among Heirs and the Extra Judicial Settlement Among Heirs
with Sale were null and void and had no legal and binding effect on
them.12
After trial on the merits, the MTC rendered a decision13 in favor of
petitioner, dismissing the complaint as well as the complaint-in-
intervention for lack of merit, and declaring the Deed of Extra Judicial
Settlement Among Heirs with Sale valid and binding. The MTC upheld
the sale to petitioner because the transaction purportedly occurred
after the partition of the property among the co-owner heirs. The MTC
opined that the other heirs could validly dispose of their respective
shares. Moreover, the MTC found that although there was a failure to
strictly comply with the requirements under Article 1088 of the Civil
Code14 for a written notice of sale to be served upon respondents by
the vendors prior to the exercise of the former's right of redemption,
this deficiency was cured by respondents' actual knowledge of the sale,
which was more than 30 days before the filing of their complaint, and
their consignation of the purchase price with the Clerk of Court, so that
the latter action came too late. Finally, the MTC ruled that respondents
failed to establish by competent proof petitioner's bad faith in
purchasing the portion of the property owned by respondents' co-
heirs.15
On appeal, the Regional Trial Court (RTC), Branch 42, of Virac,
Catanduanes affirmed the MTC decision in a judgment dated
November 25, 1999. The matter was thereafter raised to the Court of
Appeals (CA).
The CA reversed the ruling of both lower courts in the assailed decision
dated March 26, 2002, declaring that the Extra Judicial Settlement
Among Heirs and the Extra Judicial Settlement Among Heirs with Sale,
dated February 4, 1994 and November 15, 1994, respectively, were
void and without any legal effect. The CA held that, pursuant to Section
1, Rule 74 of the Rules of Court, 16 the extrajudicial settlement made by
the other co-heirs is not binding upon respondents considering the
latter never participated in it nor did they ever signify their consent to
the same.
His motion for reconsideration having been denied, petitioner filed the
present petition for review.
The issues are:
Whether heirs are deemed constructively notified and bound,
regardless of their failure to participate therein, by an
extrajudicial settlement and partition of estate when the
extrajudicial settlement and partition has been duly
published; and,
Assuming a published extrajudicial settlement and partition
does not bind persons who did not participate therein,
whether the written notice required to be served by an heir
to his co-heirs in connection with the sale of hereditary rights
to a stranger before partition under Article 1088 of the Civil
Code17 can be dispensed with when such co-heirs have actual
knowledge of the sale such that the 30-day period within
which a co-heir can exercise the right to be subrogated to the
rights of a purchaser shall commence from the date of actual
knowledge of the sale.
Petitioner argues, as follows:
Firstly, the acquisition by petitioner of the subject property subsequent
to the extrajudicial partition was valid because the partition was duly
published. The publication of the same constitutes due notice to
respondents and signifies their implied acquiescence thereon.
Respondents are therefore estopped from denying the validity of the
partition and sale at this late stage. Considering that the partition was
valid, respondents no longer have the right to redeem the property.
Secondly, petitioner is a possessor and builder in good faith.
Thirdly, the MTC had no jurisdiction over the complaint because its
subject matter was incapable of pecuniary estimation. The complaint
should have been filed with the RTC.
Fourthly, there was a non-joinder of indispensable parties, the co-heirs
who sold their interest in the subject property not having been
impleaded by respondents.
Fifthly, the appeal to the CA should have been dismissed as it was not
properly verified by respondents. Gloria Vargas failed to indicate that
she was authorized to represent the other respondents (petitioners
therein) to initiate the petition. Moreover, the verification was
inadequate because it did not state the basis of the alleged truth
and/or correctness of the material allegations in the petition.
The petition lacks merit.
The procedure outlined in Section 1 of Rule 74 is an ex
parte proceeding. The rule plainly states, however, that persons who
do not participate or had no notice of an extrajudicial settlement will
not be bound thereby.18 It contemplates a notice that has been sent
out or issued before any deed of settlement and/or partition is agreed
upon (i.e., a notice calling all interested parties to participate in the said
deed of extrajudicial settlement and partition), and not after such an
agreement has already been executed19 as what happened in the
instant case with the publication of the first deed of extrajudicial
settlement among heirs.
The publication of the settlement does not constitute constructive
notice to the heirs who had no knowledge or did not take part in it
because the same was notice after the fact of execution. The
requirement of publication is geared for the protection of creditors and
was never intended to deprive heirs of their lawful participation in the
decedent's estate. In this connection, the records of the present case
confirm that respondents never signed either of the settlement
documents, having discovered their existence only shortly before the
filing of the present complaint. Following Rule 74, these extrajudicial
settlements do not bind respondents, and the partition made without
their knowledge and consent is invalid insofar as they are concerned.
This is not to say, though, that respondents' co-heirs cannot validly sell
their hereditary rights to third persons even before the partition of the
estate. The heirs who actually participated in the execution of the
extrajudicial settlements, which included the sale to petitioner of
their pro indiviso shares in the subject property, are bound by the
same. Nevertheless, respondents are given the right to redeem these
shares pursuant to Article 1088 of the Civil Code. The right to redeem
was never lost because respondents were never notified in writing of
the actual sale by their co-heirs. Based on the provision, there is a need
for written notice to start the period of redemption, thus:
 Should any of the heirs sell his hereditary rights to a stranger
before the partition, any or all of the co-heirs may be
subrogated to the rights of the purchaser by reimbursing him
for the price of the sale, provided they do so within the
period of one month from the time they were notified in
writing of the sale by the vendor. (Emphasis supplied.)
It bears emphasis that the period of one month shall be reckoned from
the time that a co-heir is notified in writing by the vendor of the actual
sale. Written notice is indispensable and mandatory,20 actual
knowledge of the sale acquired in some other manner by the
redemptioner notwithstanding. It cannot be counted from the time
advance notice is given of an impending or contemplated sale. The law
gives the co-heir thirty days from the time written notice of the actual
sale within which to make up his or her mind and decide to repurchase
or effect the redemption.21
Though the Code does not prescribe any particular form of written
notice nor any distinctive method for written notification of
redemption, the method of notification remains exclusive, there being
no alternative provided by law.22 This proceeds from the very purpose
of Article 1088, which is to keep strangers to the family out of a joint
ownership, if, as is often the case, the presence of outsiders be
undesirable and the other heir or heirs be willing and in a position to
repurchase the share sold.23
It should be kept in mind that the obligation to serve written notice
devolves upon the vendor co-heirs because the latter are in the best
position to know the other co-owners who, under the law, must be
notified of the sale.24 This will remove all uncertainty as to the fact of
the sale, its terms and its perfection and validity, and quiet any doubt
that the alienation is not definitive.25 As a result, the party notified
need not entertain doubt that the seller may still contest the
alienation. 26
Considering, therefore, that respondents' co-heirs failed to comply with
this requirement, there is no legal impediment to allowing respondents
to redeem the shares sold to petitioner given the former's obvious
willingness and capacity to do so.
Likewise untenable is petitioner's contention that he is a builder in
good faith. Good faith consists in the belief of the builder that the land
the latter is building on is one's own without knowledge of any defect
or flaw in one's title.27 Petitioner derived his title from the Extra Judicial
Settlement Among Heirs With Sale dated November 15, 1994. He was
very much aware that not all of the heirs participated therein as it was
evident on the face of the document itself. Because the property had
not yet been partitioned in accordance with the Rules of Court, no
particular portion of the property could have been identified as yet and
delineated as the object of the sale. This is because the alienation made
by respondents' co-heirs was limited to the portion which may be
allotted to them in the division upon the termination of the co-
ownership. Despite this glaring fact, and over the protests of
respondents, petitioner still constructed improvements on the
property. For this reason, his claim of good faith lacks credence.
As to the issue of lack of jurisdiction, petitioner is estopped from raising
the same for the first time on appeal. Petitioner actively participated in
the proceedings below and sought affirmative ruling from the lower
courts to uphold the validity of the sale to him of a portion of the
subject property embodied in the extrajudicial settlement among heirs.
Having failed to seasonably raise this defense, he cannot, under the
peculiar circumstances of this case, be permitted to challenge the
jurisdiction of the lower court at this late stage. While it is a rule that a
jurisdictional question may be raised at any time, an exception arises
where estoppel has already supervened.
Estoppel sets in when a party participates in all stages of a case before
challenging the jurisdiction of the lower court. One cannot belatedly
reject or repudiate its decision after voluntarily submitting to its
jurisdiction, just to secure affirmative relief against one's opponent or
after failing to obtain such relief. The Court has, time and again,
frowned upon the undesirable practice of a party submitting a case for
decision and then accepting the judgment, only if favorable, and
attacking it for lack of jurisdiction when adverse.28
Petitioner's fourth argument, that there is a non-joinder of
indispensable parties, similarly lacks merit. An indispensable party is a
party-in-interest without whom there can be no final determination of
an action and who is required to be joined as either plaintiff or
defendant.29 The party's interest in the subject matter of the suit and in
the relief sought is so inextricably intertwined with the other parties
that the former's legal presence as a party to the proceeding is an
absolute necessity. Hence, an indispensable party is one whose interest
will be directly affected by the court's action in the litigation. In the
absence of such indispensable party, there cannot be a resolution of
the controversy before the court which is effective, complete, or
equitable.30
In relation to this, it must be kept in mind that the complaint filed by
respondents ultimately prayed that they be allowed to redeem the
shares in the property sold by their co-heirs. Significantly, the right of
the other heirs to sell their undivided share in the property to
petitioner is not in dispute. Respondents concede that the other heirs
acted within their hereditary rights in doing so to the effect that the
latter completely and effectively relinquished their interests in the
property in favor of petitioner. Petitioner thus stepped into the shoes
of the other heirs to become a co-owner of the property with
respondents. As a result, only petitioner's presence is absolutely
required for a complete and final determination of the controversy
because what respondents seek is to be subrogated to his rights as a
purchaser.
Finally, petitioner contends that the petition filed by respondents with
the CA should have been dismissed because the verification and
certificate of non-forum shopping appended to it were defective, citing
specifically the failure of respondent Gloria Vargas to: (1) indicate that
she was authorized to represent her co-respondents in the petition,
and (2) state the basis of the alleged truth of the allegations.
The general rule is that the certificate of non-forum shopping must be
signed by all the plaintiffs or petitioners in a case and the signature of
only one of them is insufficient.31 Nevertheless, the rules on forum
shopping, which were designed to promote and facilitate the orderly
administration of justice, should not be interpreted with such absolute
literalness as to subvert their own ultimate and legitimate objective.
Strict compliance with the provisions regarding the certificate of non-
forum shopping merely underscores its mandatory nature in that the
certification cannot be altogether dispensed with or its requirements
completely disregarded.32 Under justifiable circumstances, the Court
has relaxed the rule requiring the submission of such certification
considering that although it is obligatory, it is not jurisdictional.33
Thus, when all the petitioners share a common interest and invoke a
common cause of action or defense, the signature of only one of them
in the certification against forum shopping substantially complies with
the rules.34The co-respondents of respondent Gloria Vargas in this case
were her children. In order not to defeat the ends of justice, the Court
deems it sufficient that she signed the petition on their behalf and as
their representative.
WHEREFORE, the petition is DENIED for lack of merit. Costs against
petitioner.
SO ORDERED.
RULE 75
G.R. No. 176943 October 17, 2008
DANILO ALUAD, LEONORA ALUAD, DIVINA ALUAD, PROSPERO ALUAD,
and CONNIE ALUAD, petitioners,
vs.
ZENAIDO ALUAD, respondent.
DECISION
CARPIO MORALES, J.:
Petitioners’ mother, Maria Aluad (Maria), and respondent Zenaido
Aluad were raised by the childless spouses Matilde Aluad (Matilde) and
Crispin Aluad (Crispin).
Crispin was the owner of six lots identified as Lot Nos. 674, 675, 676,
677, 680, and 682 of the Pilar Cadastre, Capiz. After Crispin died, his
wife Matilde adjudicated the lots to herself. 1
On November 14, 1981, Matilde executed a document entitled "Deed
of Donation of Real Property Inter Vivos"2(Deed of Donation) in favor of
petitioners’ mother Maria3 covering all the six lots which Matilde
inherited from her husband Crispin. The Deed of Donation provided:
That, for and in consideration of the love and affection of the DONOR
[Matilde] for the DONEE [Maria], the latter being adopted and hav[ing]
been brought up by the former the DONOR, by these presents, transfer
and convey, BY WAY OF DONATION, unto the DONEE the property
above-described, to become effective upon the death of the DONOR,
but in the event that the DONEE should die before the DONOR, the
present donation shall be deemed rescinded and [of] no further force
and effect; Provided, however, that anytime during the lifetime of the
DONOR or anyone of them who should survive, they could use[,]
encumber or even dispose of any or even all of the parcels of
land herein donated.4 (Emphasis and underscoring supplied)
On September 30, 1986, Original Certificates of Title over Lot Nos. 674
and 676 were issued in Matilde’s name.
On August 26, 1991, Matilde sold Lot No. 676 to respondent by a Deed
of Absolute Sale of Real Property.5
Subsequently or on January 14, 1992, Matilde executed a last will and
testament,6 devising Lot Nos. 675, 677, 682, and 680 to Maria, and her
"remaining properties" including Lot No. 674 to respondent.
Matilde died on January 25, 1994, while Maria died on September 24 of
the same year.7
On August 21, 1995, Maria’s heirs-herein petitioners filed before the
Regional Trial Court (RTC) of Roxas City a Complaint,8 for declaration
and recovery of ownership and possession of Lot Nos. 674 and 676, and
damages against respondent, alleging:
That in 1978, plaintiff[s] possessed the two (2) parcels of land above-
described until January 1991 when defendant entered and possessed
the two (2) parcels of land claiming as the adopted son of Crispin Aluad
who refused to give back possession until Matilde Aluad died in [1994]
and then retained the possession thereof up to and until the present
time, thus, depriving the plaintiffs of the enjoyment of said parcels of
land x x x;
That after the death of Matilde R. Aluad, the plaintiffs succeeded by
inheritance by right of representation from their deceased mother,
Maria Aluad who is the sole and only daughter of Matilde Aluad[.] 9
To the complaint respondent alleged in his Answer.10
That Lot 674 is owned by the defendant as this lot was adjudicated to
him in the Last Will and Testament of Matilde Aluad x x x while Lot 676
was purchased by him from Matilde Aluad. These two lots are in his
possession as true owners thereof.11 (Underscoring supplied)
Petitioners later filed a Motion for Leave to Amend Complaint Already
Filed to Conform to Evidence12 to which it annexed an Amended
Complaint13 which cited the donation of the six lots via Deed of
Donation in favor of their mother Maria. Branch 15 of the RTC granted
the motion and admitted the Amended Complaint.14
Respondent filed an Amended Answer15 contending, inter alia, that the
Deed of Donation is forged and falsified and petitioners’ change of
theory showed that "said document was not existing at the time they
filed their complaint and was concocted by them after realizing that
their false claim that their mother was the only daughter of Matild[e]
Aluad cannot in anyway be established by them";16 and that if ever said
document does exist, the same was already revoked by Matilde "when
[she] exercised all acts of dominion over said properties until she sold
Lot 676 to defendant and until her death with respect to the other lots
without any opposition from Maria Aluad."17
The trial court, by Decision18 of September 20, 1996, held that Matilde
could not have transmitted any right over Lot Nos. 674 and 676 to
respondent, she having previously alienated them to Maria via the
Deed of Donation. Thus it disposed:
WHEREFORE, in view of the foregoing, judgment is hereby rendered:
1. Declaring the plaintiffs as the rightful owners of the subject Lots Nos.
674 and 676, Pilar Cadastre;
2. Ordering the defendant to deliver the possession of the subject lots
to the plaintiffs;
3. Ordering the defendant to pay the plaintiffs:
a. Thirty thousand pesos (P30,000.00) as attorney’s fees;
b. Twenty thousand pesos (P20,000.00), representing the income from
subject Lot 676, a year from 1991 up to the time said lot is delivered to
the plaintiffs, together with the interest thereof at the legal rate until
fully paid;
c. Ten thousand pesos (P10,000.00), representing the income from the
subject Lot No. 674, a year from 1991 up to the time said lot is
delivered to the plaintiffs, plus legal interest thereof at the legal rate
until fully paid; and
d. The costs of the suit.
Defendant’s counterclaim is ordered dismissed for lack of merit.
SO ORDERED.19
On petitioners’ motion, the trial court directed the issuance of a writ of
execution pending appeal.20 Possession of the subject lots appears to
have in fact been taken by petitioners.
By Decision21 of August 10, 2006, the Court of Appeals reversed the
trial court’s decision, it holding that the Deed of Donation was actually
a donation mortis causa, not inter vivos, and as such it had to, but did
not, comply with the formalities of a will. Thus, it found that the Deed
of Donation was witnessed by only two witnesses and had no
attestation clause which is not in accordance with Article 805 of the
Civil Code, reading:
Art. 805. Every will, other than a holographic will, must be subscribed
at the end thereof by the testator himself or by the testator’s name
written by some other person in his presence, and by his express
direction, and attested and subscribed by three or more credible
witnesses in the presence of the testator and of one another.
The testator or the person requested by him to write his name and the
instrumental witnesses of the will shall, also sign, as aforesaid, each
and every page thereof, except the last on the left margin and all the
pages shall be numbered correlatively in letters placed on the upper
part of each page.
The attestation shall state the number of pages used upon which the
will is written, and the fact that that testator signed the will and every
page thereof, or caused some other person to write his name, under
his express direction, in the presence of the instrumental witnesses,
and that the latter witnessed and signed the will and all the pages
thereof in the presence of the testator, and of one another.
If the attestation clause is in a language not known to the witnesses, it
shall be interpreted to them.
While the appellate court declared respondent as the rightful owner of
Lot No. 676, it did not so declare with respect to Lot No. 674, as
Matilde’s last will and testament had not yet been probated. Thus the
Court of Appeals disposed:
WHEREFORE, finding the instant petition worthy of merit, the same is
hereby GRANTED and the Decision of the Regional Trial Court of Roxas
City, Branch 15, dated 20 September 1996, in Civil Case No. V-6686 for
declaration of ownership, recovery of ownership and possession, and
damages is REVERSED and SET ASIDE.
A new one is entered in its stead declaring defendant-appellant as the
lawful owner of Lot [No.] 676 of the Pilar Cadastre.
Accordingly, plaintiffs-appellees are directed to return the possession
of the said lot to the defendant-appellant.
Moreover, plaintiffs-appellees are ordered to pay P40,000.00 to
defendant-appellant as attorney’s fees and litigation expenses.
Costs against plaintiffs-appellees.
SO ORDERED.22 (Emphasis in the original; underscoring supplied)
Their Motion for Reconsideration23 having been denied,24 petitioners
filed the present Petition for Review,25contending that the Court of
Appeals erred
I
X X X WHEN IT REVERSED THE DECISION OF THE COURT BELOW (RTC,
Branch 15, Roxas City) HOLDING THAT THE DEED OF DONATION INTER
VIVOS IN FAVOR OF PETITIONERS’ MOTHER IS IN FACT A DONATION
MORTIS CAUSA.
II
X X X WHEN IT RULED THAT RESPONDENT IS THE RIGHTFUL OWNER OF
LOT NO. 676 AS LOT BUYER ON THE BASIS OF A DEED OF SALE
EXECUTED BY THE DONOR WHO HAD NO MORE RIGHT TO SELL THE
SAME.
III
X X X WHEN IT FAILED TO DECLARE PETITIONERS THE RIGHTFUL
OWNER OF LOT NO. 674 AFTER HAVING RULED WHEN IT HELD THAT
RESPONDENT CANNOT BE DECLARED OWNER THEREOF.
IV
X X X WHEN IT HELD THAT THE ISSUANCE OF A WRIT OF EXECUTION
PENDING APPEAL IS IN VIOLATION OF PARAGRAPH (a) SECTION 2, RULE
39, OF THE RULES OF COURT (AND ORDERING PETITIONERS TO RETURN
POSSESSION OF LOT 676 TO RESPONDENT) AND ORDERING
PETITIONERS TO PAY ATTORNEY’S FEES AND COST[S] OF SUIT. 26
As did the appellate court, the Court finds the donation to petitioners’
mother one of mortis causa, it having the following characteristics:
(1) It conveys no title or ownership to the transferee before the death
of the transferor; or what amounts to the same thing, that the
transferor should retain the ownership (full or naked) and control of
the property while alive;
(2) That before the death of the transferor, the transfer should be
revocable by the transferor at will,ad nutum; but revocability may be
provided for indirectly by means of a reserved power in the donor to
dispose of the properties conveyed; and
(3) That the transfer should be void if the transferor should survive the
transferee.27 (Emphasis and underscoring supplied)
The phrase in the earlier-quoted Deed of Donation "to become
effective upon the death of the DONOR" admits of no other
interpretation than to mean that Matilde did not intend to transfer the
ownership of the six lots to petitioners’ mother during her (Matilde’s)
lifetime.28
The statement in the Deed of Donation reading "anytime during the
lifetime of the DONOR or anyone of them who should survive, they
could use, encumber or even dispose of any or even all the parcels of
land herein donated"29 means that Matilde retained ownership of the
lots and reserved in her the right to dispose them. For the right to
dispose of a thing without other limitations than those established by
law is an attribute of ownership.30 The phrase in the Deed of Donation
"or anyone of them who should survive" is of course out of sync. For
the Deed of Donation clearly stated that it would take effect upon the
death of the donor, hence, said phrase could only have referred to the
donor Matilde. Petitioners themselves concede that such phrase does
not refer to the donee, thus:
x x x [I]t is well to point out that the last provision (sentence) in the
disputed paragraph should only refer to Matilde Aluad, the donor,
because she was the only surviving spouse at the time the donation
was executed on 14 November 1981, as her husband – Crispin Aluad [–]
had long been dead as early as 1975.31
The trial court, in holding that the donation was inter vivos, reasoned:
x x x The donation in question is subject to a resolutory term or period
when the donor provides in the aforequoted provisions, "but in the
event that the DONEE should die before the DONOR, the present
donation shall be deemed rescinded and [of] no further force and
effect". When the donor provides that should the "DONEE" xxx die
before the DONOR, the present donation shall be deemed rescinded
and [of] no further force and effect" the logical construction thereof is
that after the execution of the subject donation, the same became
effective immediately and shall be "deemed rescinded and [of] no
further force and effect" upon the arrival of a resolutory term or
period, i.e., the death of the donee which shall occur before that of the
donor. Understandably, the arrival of this resolutory term or period
cannot rescind and render of no further force and effect a donation
which has never become effective, because, certainly what donation is
there to be rescinded and rendered of no further force and effect upon
the arrival of said resolutory term or period if there was no donation
which was already effective at the time when the donee
died?32 (Underscoring supplied)
A similar ratio in a case had been brushed aside by this Court, however,
thus:
x x x [P]etitioners contend that the stipulation on rescission in case
petitioners [donee] die ahead of [donor] Cabatingan is a resolutory
condition that confirms the nature of the donation as inter vivos.
Petitioners’ arguments are bereft of merit.33
xxxx
x x x The herein subject deeds expressly provide that the donation shall
be rescinded in case [donees] the petitioners predecease [the donor]
Conchita Cabatingan. As stated in Reyes v. Mosqueda, one of the
decisive characteristics of a donation mortis causa is that the transfer
should be considered void if the donor should survive the donee. This is
exactly what Cabatingan provided for in her donations. If she really
intended that the donation should take effect during her lifetime and
that the ownership of the properties donated to the donee or
independently of, and not by reason of her death, she would not have
expressed such proviso in the subject deeds.34 (Underscoring supplied)
As the Court of Appeals observed, "x x x [t]hat the donation is mortis
causa is fortified by Matilde’s acts of possession as she continued to
pay the taxes for the said properties which remained under her name;
appropriated the produce; and applied for free patents for which OCTs
were issued under her name."35
The donation being then mortis causa, the formalities of a will should
have been observed36 but they were not, as it was witnessed by only
two, not three or more witnesses following Article 805 of the Civil
Code.37
Further, the witnesses did not even sign the attestation clause38 the
execution of which clause is a requirementseparate from the
subscription of the will and the affixing of signatures on the left-hand
margins of the pages of the will. So the Court has emphasized:
x x x Article 805 particularly segregates the requirement that the
instrumental witnesses sign each page of the will from the requisite
that the will be "attested and subscribed by [the instrumental
witnesses]. The respective intents behind these two classes of
signature[s] are distinct from each other. The signatures on the left-
hand corner of every page signify, among others, that the witnesses are
aware that the page they are signing forms part of the will. On the
other hand, the signatures to the attestation clause establish that
the witnesses are referring to the statements contained in the
attestation clause itself. Indeed, the attestation clause is separate and
apart from the disposition of the will. An unsigned attestation clause
results in an unattested will. Even if the instrumental witnesses signed
the left-hand margin of the page containing the unsigned attestation
clause, such signatures cannot demonstrate these witnesses’
undertakings in the clause, since the signatures that do appear on the
page were directed towards a wholly different avowal.
x x x It is the witnesses, and not the testator, who are required under
Article 805 to state the number of pages used upon which the will is
written; the fact that the testator had signed the will and every page
thereof; and that they witnessed and signed the will and all the pages
thereof in the presence of the testator and of one another. The only
proof in the will that the witnesses have stated these elemental facts
would be their signatures on the attestation clause.39 (Emphasis and
underscoring supplied)

Furthermore, the witnesses did not acknowledge the will before the
notary public,40 which is not in accordance with the requirement of
Article 806 of the Civil Code that every will must be acknowledged
before a notary public by the testator and the witnesses.

More. The requirement that all the pages of the will must be numbered
correlatively in letters placed on the upper part of each page was not
also followed.41

The Deed of Donation which is, as already discussed, one of mortis

causa, not having followed the formalities of a will, it is void and
transmitted no right to petitioners’ mother. But even assuming
arguendo that the formalities were observed, since it was not
probated, no right to Lot Nos. 674 and 676 was transmitted to
Maria.42 Matilde thus validly disposed of Lot No. 674 to respondent by
her last will and testament, subject of course to the qualification that
her (Matilde’s) will must be probated. With respect to Lot No. 676, the
same had, as mentioned earlier, been sold by Matilde to respondent on
August 26, 1991.

Petitioners nevertheless argue that assuming that the donation of Lot

No. 674 in favor of their mother is indeedmortis causa, hence, Matilde
could devise it to respondent, the lot should nevertheless have been
awarded to them because they had acquired it by acquisitive
prescription, they having been in continuous, uninterrupted, adverse,
open, and public possession of it in good faith and in the concept of an
owner since 1978.43

Petitioners failed to raise the issue of acquisitive prescription before

the lower courts, however, they having laid their claim on the basis of
inheritance from their mother. As a general rule, points of law,
theories, and issues not brought to the attention of the trial court
cannot be raised for the first time on appeal.44 For a contrary rule
would be unfair to the adverse party who would have no opportunity
to present further evidence material to the new theory, which it could
have done had it been aware of it at the time of the hearing before the
trial court.45

WHEREFORE, the petition is DENIED.

SO ORDERED.