REMEDIOS NUGUID VS. prescribed, are the questions solely to be presented, and to be acted upon, by the court.
FELIX NUGUID and PAZ SALONGA NUGUID Said court at this stage of the proceedings — is not called upon to rule on
G.R. No. L-23445
June 23, 1966
SANCHEZ, J.:
Rosario Nuguid, a resident of Quezon City, died on December 30, 1962, single, without
descendants, legitimate or illegitimate. Surviving her were her legitimate parents, Felix
Nuguid and Paz Salonga Nuguid, and six (6) brothers and sisters, namely: Alfredo,
Federico, Remedios, Conrado, Lourdes and Alberto, all surnamed Nuguid.
On May 18, 1963, petitioner Remedios Nuguid filed in the Court of First Instance of Rizal
a holographic will allegedly executed by Rosario Nuguid on November 17, 1951, some
11 years before her demise. Petitioner prayed that said will be admitted to probate and
that letters of administration with the will annexed be issued to her.
On June 25, 1963, Felix Nuguid and Paz Salonga Nuguid, concededly the legitimate
father and mother of the deceased Rosario Nuguid, entered their opposition to the
probate of her will. Ground therefor, inter alia, is that by the institution of petitioner
Remedios Nuguid as universal heir of the deceased, oppositors — who are compulsory
heirs of the deceased in the direct ascending line — were illegally preterited and that in
consequence the institution is void.
On August 29, 1963, before a hearing was had on the petition for probate and objection
thereto, oppositors moved to dismiss on the ground of absolute preterition.
On September 6, 1963, petitioner registered her opposition to the motion to dismiss. 1äwphï1.ñët
The court's order of November 8, 1963, held that "the will in question is a complete nullity
and will perforce create intestacy of the estate of the deceased Rosario Nuguid" and
dismissed the petition without costs.
A motion to reconsider having been thwarted below, petitioner came to this Court on
appeal.
1. Right at the outset, a procedural aspect has engaged our attention. The case is for the
probate of a will. The court's area of inquiry is limited — to an examination of, and
resolution on, the extrinsic validity of the will. The due execution thereof, the testatrix's
testamentary capacity, and the compliance with the requisites or solemnities by law
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the intrinsic validity or efficacy of the provisions of the will, the legality of any devise or
legacy therein.1
A peculiar situation is here thrust upon us. The parties shunted aside the question of
whether or not the will should be allowed probate. For them, the meat of the case is the
intrinsic validity of the will. Normally, this comes only after the court has declared that the
will has been duly authenticated.2 But petitioner and oppositors, in the court below and
here on appeal, travelled on the issue of law, to wit: Is the will intrinsically a nullity?
We pause to reflect. If the case were to be remanded for probate of the will, nothing will
be gained. On the contrary, this litigation will be protracted. And for aught that appears in
the record, in the event of probate or if the court rejects the will, probability exists that the
case will come up once again before us on the same issue of the intrinsic validity or
nullity of the will. Result: waste of time, effort, expense, plus added anxiety. These are
the practical considerations that induce us to a belief that we might as well meet head-on
the issue of the validity of the provisions of the will in question.3 After all, there exists a
justiciable controversy crying for solution.
2. Petitioner's sole assignment of error challenges the correctness of the conclusion
below that the will is a complete nullity. This exacts from us a study of the disputed will
and the applicable statute.
Reproduced hereunder is the will:
Nov. 17, 1951
I, ROSARIO NUGUID, being of sound and disposing mind and memory, having amassed
a certain amount of property, do hereby give, devise, and bequeath all of the property
which I may have when I die to my beloved sister Remedios Nuguid, age 34, residing
with me at 38-B Iriga, Q.C. In witness whereof, I have signed my name this seventh day
of November, nineteen hundred and fifty-one.
(Sgd.) Illegible
T/ ROSARIO NUGUID
The statute we are called upon to apply in Article 854 of the Civil Code which, in part,
provides:
1
 ART. 854. The preterition or omission of one, some, or all of the compulsory heirs
in the direct line, whether living at the time of the execution of the will or born
after the death of the testator, shall annul the institution of heir; but the devises
and legacies shall be valid insofar as they are not inofficious. ...
Except for inconsequential variation in terms, the foregoing is a reproduction of Article
814 of the Civil Code of Spain of 1889, which is similarly herein copied, thus —
Art. 814. The preterition of one or all of the forced heirs in the direct line, whether
living at the time of the execution of the will or born after the death of the testator,
shall void the institution of heir; but the legacies and betterments4 shall be valid,
in so far as they are not inofficious. ...
A comprehensive understanding of the term preterition employed in the law becomes a
necessity. On this point Manresa comments:
La pretericion consiste en omitar al heredero en el testamento. O no se le
nombra siquiera o aun nombrandole como padre, hijo, etc., no se le instituya
heredero ni se le deshereda expresamente ni se le asigna parte alguna de los
bienes, resultando privado de un modo tacito de su derecho a legitima.
Para que exista pretericion, con arreglo al articulo 814, basta que en el
testamento omita el testador a uno cualquiera de aquellos a quienes por su
muerte corresponda la herencia forzosa.
Se necesita, pues, a) Que la omision se refiera a un heredero forzoso. b) Que la
omision sea completa; que el heredero forzoso nada reciba en el testamento.
It may now appear trite bat nonetheless helpful in giving us a clear perspective of the
problem before us, to have on hand a clear-cut definition of the word annul:
To "annul" means to abrogate, to make void ... In re Morrow's Estate, 54 A. 342,
343, 204 Pa. 484.6
The word "annul" as used in statute requiring court to annul alimony provisions of
divorce decree upon wife's remarriage means to reduce to nothing; to annihilate;
obliterate; blot out; to make void or of no effect; to nullify; to abolish. N.J.S.A.
2:50 — 38 (now N.J.S. 2A:34-35). Madden vs. Madden, 40 A. 2d 611, 614, 136
N..J Eq. 132.7
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ANNUL. To reduce to nothing; annihilate; obliterate; to make void or of no effect;
to nullify; to abolish; to do away with. Ex parte Mitchell, 123 W. Va. 283, 14 S.E.
2d. 771, 774.8
And now, back to the facts and the law. The deceased Rosario Nuguid left no
descendants, legitimate or illegitimate. But she left forced heirs in the direct ascending
line her parents, now oppositors Felix Nuguid and Paz Salonga Nuguid. And, the will
completely omits both of them: They thus received nothing by the testament; tacitly, they
were deprived of their legitime; neither were they expressly disinherited. This is a clear
case of preterition. Such preterition in the words of Manresa "anulara siempre la
institucion de heredero, dando caracter absoluto a este ordenamiento referring to the
mandate of Article 814, now 854 of the Civil Code.9 The one-sentence will here institutes
petitioner as the sole, universal heir — nothing more. No specific legacies or bequests
are therein provided for. It is in this posture that we say that the nullity is complete.
Perforce, Rosario Nuguid died intestate. Says Manresa:
En cuanto a la institucion de heredero, se anula. Lo que se anula deja de existir,
en todo o en parte? No se añade limitacion alguna, como en el articulo 851, en el
que se expresa que se anulara la institucion de heredero en cuanto prejudique a
la legitima del deseheredado Debe, pues, entenderse que la anulacion es
completa o total, y que este articulo como especial en el caso que le motiva rige
con preferencia al 817. 10
The same view is expressed by Sanchez Roman: —
La consecuencia de la anulacion o nulidad de la institucion de heredero por
pretericion de uno, varios o todos los forzosos en linea recta, es la apertura de la
sucesion intestada total o parcial. Sera total, cuando el testador que comete la
pretericion, hubiese dispuesto de todos los bienes por titulo universal de
herencia en favor de los herederos instituidos, cuya institucion se anula, porque
asi lo exige la generalidad del precepto legal del art. 814, al determinar, como
efecto de la pretericion, el de que "anulara la institucion de heredero." ... 11
Really, as we analyze the word annul employed in the statute, there is no escaping the
conclusion that the universal institution of petitioner to the entire inheritance results
in totally abrogating the will. Because, the nullification of such institution of universal heir
— without any other testamentary disposition in the will — amounts to a declaration that
nothing at all was written. Carefully worded and in clear terms, Article 854 offers no
leeway for inferential interpretation. Giving it an expansive meaning will tear up by the
roots the fabric of the statute. On this point, Sanchez Roman cites the "Memoria annual
2
del Tribunal Supreme, correspondiente a 1908", which in our opinion expresses the rule
of interpretation, viz:
... El art. 814, que preceptua en tales casos de pretericion la nulidad de la
institucion de heredero, no consiente interpretacion alguna favorable a la
persona instituida en el sentido antes expuesto aun cuando parezca, y en algun
caso pudiera ser, mas o menos equitativa, porque una nulidad no significa en
Derecho sino la suposicion de que el hecho o el acto no se ha realizado,
debiendo por lo tanto procederse sobre tal base o supuesto, y
consiguientemente, en un testamento donde falte la institucion, es obligado
llamar a los herederos forzosos en todo caso, como habria que llamar a los de
otra clase, cuando el testador no hubiese distribudo todos sus bienes en
legados, siendo tanto mas obligada esta consecuencia legal cuanto que, en
materia de testamentos, sabido es, segun tiene declarado la jurisprudencia, con
repeticion, que no basta que sea conocida la voluntad de quien testa si esta
voluntad no aparece en la forma y en las condiciones que la ley ha exigido para
que sea valido y eficaz, por lo que constituiria una interpretacion arbitraria,
dentro del derecho positivo, reputar como legatario a un heredero cuya
institucion fuese anulada con pretexto de que esto se acomodaba mejor a la
voluntad del testador, pues aun cuando asi fuese, sera esto razon para modificar
la ley, pero no autoriza a una interpretacion contraria a sus terminos y a los
principios que informan la testamentifaccion, pues no porque parezca mejor una
cosa en el terreno del Derecho constituyente, hay razon para convereste juicio
en regla de interpretacion, desvirtuando y anulando por este procedimiento lo
que el legislador quiere establecer. 12
3. We should not be led astray by the statement in Article 854 that, annullment
notwithstanding, "the devises and legacies shall be valid insofar as they are not
inofficious". Legacies and devises merit consideration only when they are so expressly
given as such in a will. Nothing in Article 854 suggests that the mere institution of a
universal heir in a will — void because of preterition — would give the heir so instituted a
share in the inheritance. As to him, the will is inexistent. There must be, in addition to
such institution, a testamentary disposition granting him bequests or legacies apart and
separate from the nullified institution of heir. Sanchez Roman, speaking of the two
component parts of Article 814, now 854, states that preterition annuls the institution of
the heir "totalmente por la pretericion"; but added (in reference to legacies and bequests)
"pero subsistiendo ... todas aquellas otras disposiciones que no se refieren a la
institucion de heredero ... . 13 As Manresa puts it, annulment throws open to intestate
succession the entire inheritance including "la porcion libre (que) no hubiese dispuesto
en virtud de legado, mejora o donacion. 14
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As aforesaid, there is no other provision in the will before us except the institution of
petitioner as universal heir. That institution, by itself, is null and void. And, intestate
succession ensues.
4. Petitioner's mainstay is that the present is "a case of ineffective disinheritance rather
than one of preterition". 15 From this, petitioner draws the conclusion that Article 854
"does not apply to the case at bar". This argument fails to appreciate the distinction
between pretention and disinheritance.
Preterition "consists in the omission in the testator's will of the forced heirs or anyone of
them, either because they are not mentioned therein, or, though mentioned, they are
neither instituted as heirs nor are expressly disinherited." 16 Disinheritance, in turn, "is
a testamentary disposition depriving any compulsory heir of his share in the legitime for a
cause authorized by law. " 17 In Manresa's own words: "La privacion expresa de la
legitima constituye la desheredacion. La privacion tacita de la misma se
denomina pretericion." 18 Sanchez Roman emphasizes the distinction by stating that
disinheritance "es siempre voluntaria"; preterition, upon the other hand, is presumed to
be "involuntaria". 19 Express as disinheritance should be, the same must be supported by
a legal cause specified in the will itself. 20
The will here does not explicitly disinherit the testatrix's parents, the forced heirs. It
simply omits their names altogether. Said will rather than be labeled ineffective
disinheritance is clearly one in which the said forced heirs suffer from preterition.
On top of this is the fact that the effects flowing from preterition are totally different from
those of disinheritance. Preterition under Article 854 of the Civil Code, we repeat, "shall
annul the institution of heir". This annulment is in toto, unless in the will there are, in
addition, testamentary dispositions in the form of devises or legacies. In ineffective
disinheritance under Article 918 of the same Code, such disinheritance shall also "annul
the institution of heirs", put only "insofar as it may prejudice the person disinherited",
which last phrase was omitted in the case of preterition. 21 Better stated yet, in
disinheritance the nullity is limited to that portion of the estate of which the disinherited
heirs have been illegally deprived. Manresa's expressive language, in commenting on
the rights of the preterited heirs in the case of preterition on the one hand and legal
disinheritance on the other, runs thus: "Preteridos, adquiren el derecho a
todo; desheredados, solo les corresponde un tercio o dos tercios, 22 el caso. 23
5. Petitioner insists that the compulsory heirs ineffectively disinherited are entitled to
receive their legitimes, but that the institution of heir "is not invalidated," although the
inheritance of the heir so instituted is reduced to the extent of said legitimes. 24
3
This is best answered by a reference to the opinion of Mr. Chief Justice Moran in
the Neri case heretofore cited, viz:
But the theory is advanced that the bequest made by universal title in favor of the
children by the second marriage should be treated as legado and mejora and,
accordingly, it must not be entirely annulled but merely reduced. This theory, if
adopted, will result in a complete abrogation of Articles 814 and 851 of the Civil
Code. If every case of institution of heirs may be made to fall into the concept of
legacies and betterments reducing the bequest accordingly, then the provisions
of Articles 814 and 851 regarding total or partial nullity of the institution, would. be
absolutely meaningless and will never have any application at all. And the
remaining provisions contained in said article concerning the reduction of
inofficious legacies or betterments would be a surplusage because they would be
absorbed by Article 817. Thus, instead of construing, we would be destroying
integral provisions of the Civil Code.
The destructive effect of the theory thus advanced is due mainly to a failure to
distinguish institution of heirs from legacies and betterments, and a general from
a special provision. With reference to article 814, which is the only provision
material to the disposition of this case, it must be observed that the institution of
heirs is therein dealt with as a thing separate and distinct from legacies or
betterments. And they are separate and distinct not only because they are
distinctly and separately treated in said article but because they are in
themselves different. Institution of heirs is a bequest by universal title of property
that is undetermined. Legacy refers to specific property bequeathed by a
particular or special title. ... But again an institution of heirs cannot be taken as a
legacy. 25
The disputed order, we observe, declares the will in question "a complete nullity". Article
854 of the Civil Code in turn merely nullifies "the institution of heir". Considering,
however, that the will before us solely provides for the institution of petitioner as universal
heir, and nothing more, the result is the same. The entire will is null.
Upon the view we take of this case, the order of November 8, 1963 under review is
hereby affirmed. No costs allowed. So ordered.
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DIGEST: NUGUID VS. NUGUID
(Special Proceedings – Difference between Preterition and Disinheritance)
FACTS:
Rosario died without descendants, legitimate or illegitimate. Surviving her were her
legitimate parents – Felix and Paz, and 6 brothers and sisters.
Remedios, one of the sister filed in court a holographic will allegedly executed by
Rosario instituting the former as the sole, universal heir of all her properties. She prayed
that said will be admitted to probate and that letter of administration be issued to her.
Felix and Paz opposed to the probate of the will on the ground that by the
institution of Remedios as universal heir of the deceased, oppositors – who are
compulsory heirs in the direct ascending line – were illegally preterited and that in
consequence, the institution is void.
Article 854 provides that preterition of one, some or all of the compulsory heirs in
the direct line, whether living at the time of the execution of the will or born after the
death of the testator, shall annul the institution of heir.
Petitioners contention is that the present is a case of ineffective disinheritance
rather than one of preterition drawing the conclusion that Article 854 does not apply in
the case at bar.
ISSUE: WON the institution of one of the sister of the deceased as the sole, universal
heir preterited the compulsory heirs.
HELD:
YES. Where the deceased left no descendants, legitimate or illegitimate, but she
left forced heirs in the direct ascending line – her parents, and her holographic will does
not explicitly disinherit them but simply omits their names altogether, the case is one of
preterition of the parents, not a case of ineffective disinheritance.
PRETERITION “consists in the omission in the testator’s will of the forced heirs or
anyone of them, either because they are not mentioned therein, or, through mentioned,
they are neither instituted as heirs nor are expressly disinherited”. Disinheritance, in turn,
“is a testamentary disposition depriving any compulsory heir of his share in the legitime
for a cause authorized by law”. Where the one sentence will institutes the petitioner as
the sole, universal heir and preterits the parents of the testatrix, and it contains no
4
specific legacies or bequests, such universal institution of petitioner, by itself, is void. And
intestate succession ensues.
SPOUSES ROBERTO AND THELMA AJERO
VS. CA & CLEMENTE SAND
G.R. No. 106720
September 15, 1994
PUNO, J.:
This is an appeal by certiorari from the Decision of the Court of
Appeals 1 in CA-G.R. CV No. 22840, dated March 30, 1992, the dispositive portion of
which reads;
PREMISES CONSIDERED, the questioned decision of November 19,
1988 of the trial court is hereby REVERSED and SET ASIDE, and the
petition for probate is hereby DISMISSED. No costs.
The earlier Decision was rendered by the RTC of Quezon City, Branch 94, 2 in
Sp. Proc. No. Q-37171, and the instrument submitted for probate is the
holographic will of the late Annie Sand, who died on November 25, 1982.
In the will, decedent named as devisees, the following: petitioners Roberto and Thelma
Ajero, private respondent Clemente Sand, Meriam S. Arong, Leah Sand, Lilia Sand,
Edgar Sand, Fe Sand, Lisa S. Sand, and Dr. Jose Ajero, Sr., and their children.
On January 20, 1983, petitioners instituted Sp. Proc. No. Q-37171, for allowance of
decedent's holographic will. They alleged that at the time of its execution, she was of
sound and disposing mind, not acting under duress, fraud or undue influence, and was in
every respect capacitated to dispose of her estate by will.
Private respondent opposed the petition on the grounds that: neither the testament's
body nor the signature therein was in decedent's handwriting; it contained alterations and
corrections which were not duly signed by decedent; and, the will was procured by
petitioners through improper pressure and undue influence. The petition was likewise
opposed by Dr. Jose Ajero. He contested the disposition in the will of a house and lot
located in Cabadbaran, Agusan Del Norte. He claimed that said property could not be
conveyed by decedent in its entirety, as she was not its sole owner.
Notwithstanding the oppositions, the trial court admitted the decedent's holographic will
to probate. It found, inter alia:
Considering then that the probate proceedings herein must decide only
the question of identity of the will, its due execution and the testamentary
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capacity of the testatrix, this probate court finds no reason at all for the
disallowance of the will for its failure to comply with the formalities
prescribed by law nor for lack of testamentary capacity of the testatrix.
For one, no evidence was presented to show that the will in question is
different from the will actually executed by the testatrix. The only
objections raised by the oppositors . . . are that the will was not written in
the handwriting of the testatrix which properly refers to the question of its
due execution, and not to the question of identity of will. No other will was
alleged to have been executed by the testatrix other than the will herein
presented. Hence, in the light of the evidence adduced, the identity of the
will presented for probate must be accepted, i.e., the will submitted in
Court must be deemed to be the will actually executed by the testatrix.
xxx xxx xxx
While the fact that it was entirely written, dated and signed in the
handwriting of the testatrix has been disputed, the petitioners, however,
have satisfactorily shown in Court that the holographic will in question
was indeed written entirely, dated and signed in the handwriting of the
testatrix. Three (3) witnesses who have convincingly shown knowledge of
the handwriting of the testatrix have been presented and have explicitly
and categorically identified the handwriting with which the holographic will
in question was written to be the genuine handwriting and signature of
the testatrix. Given then the aforesaid evidence, the requirement of the
law that the holographic will be entirely written, dated and signed in the
handwriting of the testatrix has been complied with.
xxx xxx xxx
As to the question of the testamentary capacity of the testratix, (private
respondent) Clemente Sand himself has testified in Court that the
testatrix was completely in her sound mind when he visited her during her
birthday celebration in 1981, at or around which time the holographic will
in question was executed by the testatrix. To be of sound mind, it is
sufficient that the testatrix, at the time of making the will, knew
the value of the estate to be disposed of, the proper object of her bounty,
and the character of the testamentary act . . . The will itself shows that
the testatrix even had detailed knowledge of the nature of her estate. She
even identified the lot number and square meters of the lots she had
5
 conveyed by will. The objects of her bounty were likewise identified
explicitly. And considering that she had even written a nursing book
which contained the law and jurisprudence on will and succession, there
is more than sufficient showing that she knows the character of the
testamentary act.
In this wise, the question of identity of the will, its due execution and the
testamentary capacity of the testatrix has to be resolved in favor of the
allowance of probate of the will submitted herein.
Likewise, no evidence was presented to show sufficient reason for the
disallowance of herein holographic will. While it was alleged that the said
will was procured by undue and improper pressure and influence on the
part of the beneficiary or of some other person, the evidence adduced
have not shown any instance where improper pressure or influence was
exerted on the testatrix. (Private respondent) Clemente Sand has testified
that the testatrix was still alert at the time of the execution of the will, i.e.,
at or around the time of her birth anniversary celebration in 1981. It was
also established that she is a very intelligent person and has a mind of
her own. Her independence of character and to some extent, her sense
of superiority, which has been testified to in Court, all show the
unlikelihood of her being unduly influenced or improperly pressured to
make the aforesaid will. It must be noted that the undue influence or
improper pressure in question herein only refer to the making of a will and
not as to the specific testamentary provisions therein which is the proper
subject of another proceeding. Hence, under the circumstances, this
Court cannot find convincing reason for the disallowance of the will
herein.
Considering then that it is a well-established doctrine in the law on
succession that in case of doubt, testate succession should be preferred
over intestate succession, and the fact that no convincing grounds were
presented and proven for the disallowance of the holographic will of the
late Annie Sand, the aforesaid will submitted herein must be admitted to
probate. 3 (Citations omitted.)
On appeal, said Decision was reversed, and the petition for probate of decedent's will
was dismissed. The Court of Appeals found that, "the holographic will fails to meet the
requirements for its validity." 4 It held that the decedent did not comply with Articles 813
and 814 of the New Civil Code, which read, as follows:
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Art. 813: When a number of dispositions appearing in a holographic will
are signed without being dated, and the last disposition has a signature
and date, such date validates the dispositions preceding it, whatever be
the time of prior dispositions.
Art. 814: In case of insertion, cancellation, erasure or alteration in a
holographic will, the testator must authenticate the same by his full
signature.
It alluded to certain dispositions in the will which were either unsigned and undated, or
signed but not dated. It also found that the erasures, alterations and cancellations made
thereon had not been authenticated by decedent.
Thus, this appeal which is impressed with merit.
Section 9, Rule 76 of the Rules of Court provides that will shall be disallowed in any of
the following cases:
(a) If not executed and attested as required by law;
(b) If the testator was insane, or otherwise mentally incapable to make a
will, at the time of its execution;
(c) If it was executed under duress, or the influence of fear, or threats;
(d) If it was procured by undue and improper pressure and influence, on
the part of the beneficiary, or of some other person for his benefit;
(e) If the signature of the testator was procured by fraud or trick, and he
did not intend that the instrument should be his will at the time of fixing
his signature thereto.
In the same vein, Article 839 of the New Civil Code reads:
Art. 839: The will shall be disallowed in any of the following cases;
(1) If the formalities required by law have not been complied with;
(2) If the testator was insane, or otherwise mentally incapable of making
a will, at the time of its execution;
6
 (3) If it was executed through force or under duress, or the influence of
fear, or threats;
(4) If it was procured by undue and improper pressure and influence, on
the part of the beneficiary or of some other person;
(5) If the signature of the testator was procured by fraud;
(6) If the testator acted by mistake or did not intend that the instrument he
signed should be his will at the time of affixing his signature thereto.
These lists are exclusive; no other grounds can serve to disallow a will. 5 Thus, in a
petition to admit a holographic will to probate, the only issues to be resolved are: (1)
whether the instrument submitted is, indeed, the decedent's last will and testament; (2)
whether said will was executed in accordance with the formalities prescribed by law; (3)
whether the decedent had the necessary testamentary capacity at the time the will was
executed; and, (4) whether the execution of the will and its signing were the voluntary
acts of the decedent. 6
In the case at bench, respondent court held that the holographic will of Anne Sand was
not executed in accordance with the formalities prescribed by law. It held that Articles
813 and 814 of the New Civil Code, ante, were not complied with, hence, it disallowed
the probate of said will. This is erroneous.
We reiterate what we held in Abangan vs. Abangan, 40 Phil. 476, 479 (1919), that:
The object of the solemnities surrounding the execution of wills is to close
the door against bad faith and fraud, to avoid substitution of wills and
testaments and to guaranty their truth and authenticity. Therefore, the
laws on this subject should be interpreted in such a way as to attain these
primordial ends. But, on the other hand, also one must not lose sight of
the fact that it is not the object of the law to restrain and curtail the
exercise of the right to make a will. So when an interpretation already
given assures such ends, any other interpretation whatsoever, that adds
nothing but demands more requisites entirely unnecessary, useless and
frustrative of the testator's last will, must be disregarded.
For purposes of probating non-holographic wills, these formal solemnities include the
subscription, attestation, and acknowledgment requirements under Articles 805 and 806
of the New Civil Code.
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
In the case of holographic wills, on the other hand, what assures authenticity is the
requirement that they be totally autographic or handwritten by the testator himself, 7 as
provided under Article 810 of the New Civil Code, thus:
A person may execute a holographic will which must be entirely written,
dated, and signed by the hand of the testator himself. It is subject to no
other form, and may be made in or out of the Philippines, and need not
be witnessed. (Emphasis supplied.)
Failure to strictly observe other formalities will not result in the disallowance of a
holographic will that is unquestionably handwritten by the testator.
A reading of Article 813 of the New Civil Code shows that its requirement affects the
validity of the dispositions contained in the holographic will, but not its probate. If the
testator fails to sign and date some of the dispositions, the result is that these
dispositions cannot be effectuated. Such failure, however, does not render the whole
testament void.
Likewise, a holographic will can still be admitted to probate, notwithstanding non-
compliance with the provisions of Article 814. In the case of Kalaw vs. Relova 132 SCRA
237 242 (1984), this Court held:
Ordinarily, when a number of erasures, corrections, and interlineations made by
the testator in a holographic Will have not been noted under his signature, . . . the
Will is not thereby invalidated as a whole, but at most only as respects the
particular words erased, corrected or interlined. Manresa gave an identical
commentary when he said "la omission de la salvedad no anula el testamento,
segun la regla de jurisprudencia establecida en la sentencia de 4 de Abril de
1985." 8 (Citations omitted.)
Thus, unless the unauthenticated alterations, cancellations or insertions were made on
the date of the holographic will or on testator's signature, 9 their presence does not
invalidate the will itself. 10 The lack of authentication will only result in disallowance of
such changes.
It is also proper to note that the requirements of authentication of changes and signing
and dating of dispositions appear in provisions (Articles 813 and 814) separate from that
which provides for the necessary conditions for the validity of the holographic will (Article
810). The distinction can be traced to Articles 678 and 688 of the Spanish Civil Code,
from which the present provisions covering holographic wills are taken. They read as
follows:
7
 Art. 678: A will is called holographic when the testator writes it himself in
the form and with the requisites required in Article 688.
Art. 688: Holographic wills may be executed only by persons of full age.
In order that the will be valid it must be drawn on stamped paper
corresponding to the year of its execution, written in its entirety by the
testator and signed by him, and must contain a statement of the year,
month and day of its execution.
If it should contain any erased, corrected, or interlined words, the testator
must identify them over his signature.
Foreigners may execute holographic wills in their own language.
This separation and distinction adds support to the interpretation that only the
requirements of Article 810 of the New Civil Code — and not those found in Articles 813
and 814 of the same Code — are essential to the probate of a holographic will.
The Court of Appeals further held that decedent Annie Sand could not validly dispose of
the house and lot located in Cabadbaran, Agusan del Norte, in its entirety. This is correct
and must be affirmed.
As a general rule, courts in probate proceedings are limited to pass only upon the
extrinsic validity of the will sought to be probated. However, in exceptional instances,
courts are not powerless to do what the situation constrains them to do, and pass upon
certain provisions of the will. 11 In the case at bench, decedent herself indubitably stated
in her holographic will that the Cabadbaran property is in the name of her late father,
John H. Sand (which led oppositor Dr. Jose Ajero to question her conveyance of the
same in its entirety). Thus, as correctly held by respondent court, she cannot validly
dispose of the whole property, which she shares with her father's other heirs.
IN VIEW WHEREOF, the instant petition is GRANTED. The Decision of the Court of
Appeals in CA-G.R. CV No. 22840, dated March 30, 1992, is REVERSED and SET
ASIDE, except with respect to the invalidity of the disposition of the entire house and lot
in Cabadbaran, Agusan del Norte. The Decision of the Regional Trial Court of Quezon
City, Branch 94 in Sp. Proc. No. Q-37171, dated November 19, 1988, admitting to
probate the holographic will of decedent Annie Sand, is hereby REINSTATED, with the
above qualification as regards the Cabadbaran property. No costs. SO ORDERED.
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
DIGEST: AJERO VS. CA
FACTS:
The instrument submitted for probate is the holographic will of the late Annie Sand,
who died on November 25, 1982. Petitioners instituted a special proceeding for
allowance of decedent's holographic will and alleged that at the time of its execution, she
was of sound and disposing mind, not acting under duress, fraud or undue influence.
Private respondent opposed the petition on the grounds that the will contained alterations
and corrections which were not duly signed by decedent. The petition was likewise
opposed by Dr. Jose Ajero. He contested the disposition in the will of a house and lot
located in Cabadbaran, Agusan Del Norte. He claimed that said property could not be
conveyed by decedent in its entirety, as she was not its sole owner.
The Court of Appeals found that the decedent did not comply with Articles 813 and
814 of the New Civil Code. It alluded to certain dispositions in the will which were either
unsigned and undated, or signed but not dated. It also found that the erasures,
alterations and cancellations made thereon had not been authenticated by decedent.
ISSUES:
1. Whether or not said will was executed in accordance with formalities prescribed
in law.
2. Whether or not the decedent could validly dispose of the house and lot located
in Cabadbaran, Agusan del Norte, in its entirety.
HELD:
YES. The will was executed in accordance with the formalities prescribed in law. In
the case of holographic wills, what assures authenticity is the requirement that they be
totally autographic or handwritten by the testator himself, as provided under Article 810
of the New Civil Code.
A reading of Article 813 of the New Civil Code shows that its requirement affects
the validity of the dispositions contained in the holographic will, but not its probate. If the
testator fails to sign and date some of the dispositions, the result is that these
dispositions cannot be effectuated. Such failure, however, does not render the whole
testament void, but at most only as respects the particular words erased, corrected or
interlined.
Thus, unless the unauthenticated alterations, cancellations or insertions were
made on the date of the holographic will or on testator's signature, their presence does
not invalidate the will itself. The lack of authentication will only result in disallowance of
such changes.
8

Moreover, the list enumerated in Article 839 of the New Civil Code is exclusive; no
other grounds can serve to disallow a will.
2. NO. Decedent herself indubitably stated in her holographic will that the Cabadbaran
property is in the name of her late father, John H. Sand. Thus, as correctly held by
respondent court, she cannot validly dispose of the whole property, which she shares
with her father's other heirs.
SPS. ALVARO PASTOR, JR. AND MA. ELENA ACHAVAL DE PASTOR
VS. CA, JUAN Y. REYES, JUDGE OF BRANCH I, CFI OF CEBU AND LEWELLYN
BARLITO QUEMADA
G.R. NO. L-56340
JUNE 24, 1983
PLANA, J.:
I. FACTS:
This is a case of hereditary succession.
Alvaro Pastor, Sr. (PASTOR, SR.), a Spanish subject, died in Cebu City on June 5,
1966, survived by his Spanish wife Sofia Bossio (who also died on October 21, 1966),
their two legitimate children Alvaro Pastor, Jr. (PASTOR, JR.) and Sofia Pastor de
Midgely (SOFIA), and an illegitimate child, not natural, by the name of Lewellyn Barlito
Quemada QUEMADA PASTOR, JR. is a Philippine citizen, having been naturalized in
1936. SOFIA is a Spanish subject. QUEMADA is a Filipino by his mother's citizenship.
On November 13, 1970, QUEMADA filed a petition for the probate and allowance of an
alleged holographic will of PASTOR, SR. with the Court of First Instance of Cebu, Branch
I (PROBATE COURT), docketed as SP No. 3128-R. The will contained only one
testamentary disposition: a legacy in favor of QUEMADA consisting of 30% of PASTOR,
SR.'s 42% share in the operation by Atlas Consolidated Mining and Development
Corporation (ATLAS) of some mining claims in Pina-Barot, Cebu.
On November 21, 1970, the PROBATE COURT, upon motion of QUEMADA and after an
ex parte hearing, appointed him special administrator of the entire estate of PASTOR,
SR., whether or not covered or affected by the holographic will. He assumed office as
such on December 4, 1970 after filing a bond of P 5,000.00.
On December 7, 1970, QUEMADA as special administrator, instituted against PASTOR,
JR. and his wife an action for reconveyance of alleged properties of the estate, which
included the properties subject of the legacy and which were in the names of the
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
spouses PASTOR, JR. and his wife, Maria Elena Achaval de Pastor, who claimed to be
the owners thereof in their own rights, and not by inheritance. The action, docketed as
Civil Case No. 274-R, was filed with the Court of First Instance of Cebu, Branch IX.
On February 2, 1971, PASTOR, JR. and his sister SOFIA filed their opposition to the
petition for probate and the order appointing QUEMADA as special administrator.
On December 5, 1972, the PROBATE COURT issued an order allowing the will to
probate. Appealed to the Court of Appeals in CA-G.R. No. 52961- R, the order was
affirmed in a decision dated May 9, 1977. On petition for review, the Supreme Court in
G.R. No. L-46645 dismissed the petition in a minute resolution dated November 1, 1977
and remanded the same to the PROBATE COURT after denying reconsideration on
January 11, 1978.
For two years after remand of the case to the PROBATE COURT, QUEMADA filed
pleading after pleading asking for payment of his legacy and seizure of the properties
subject of said legacy. PASTOR, JR. and SOFIA opposed these pleadings on the ground
of pendency of the reconveyance suit with another branch of the Cebu Court of First
Instance. All pleadings remained unacted upon by the PROBATE COURT.
On March 5, 1980, the PROBATE COURT set the hearing on the intrinsic validity of the
will for March 25, 1980, but upon objection of PASTOR, JR. and SOFIA on the e ground
of pendency of the reconveyance suit, no hearing was held on March 25. Instead, the
PROBATE COURT required the parties to submit their respective position papers as to
how much inheritance QUEMADA was entitled to receive under the wig. Pursuant
thereto, PASTOR. JR. and SOFIA submitted their Memorandum of authorities dated April
10, which in effect showed that determination of how much QUEMADA should receive
was still premature. QUEMADA submitted his Position paper dated April 20, 1980.
ATLAS, upon order of the Court, submitted a sworn statement of royalties paid to the
Pastor Group of tsn from June 1966 (when Pastor, Sr. died) to February 1980. The
statement revealed that of the mining claims being operated by ATLAS, 60% pertained to
the Pastor Group distributed as follows:
1. A. Pastor, Jr. ...................................40.5%
2. E. Pelaez, Sr. ...................................15.0%
3. B. Quemada .......................................4.5%
9
On August 20, 1980, while the reconveyance suit was still being litigated in Branch IX of
the Court of First Instance of Cebu, the PROBATE COURT issued the now assailed
Order of Execution and Garnishment, resolving the question of ownership of the royalties
payable by ATLAS and ruling in effect that the legacy to QUEMADA was not inofficious.
[There was absolutely no statement or claim in the Order that the Probate Order of
December 5, 1972 had previously resolved the issue of ownership of the mining rights of
royalties thereon, nor the intrinsic validity of the holographic will.]
The order of August 20, 1980 found that as per the holographic will and a written
acknowledgment of PASTOR, JR. dated June 17, 1962, of the above 60% interest in the
mining claims belonging to the Pastor Group, 42% belonged to PASTOR, SR. and only
33% belonged to PASTOR, JR. The remaining 25% belonged to E. Pelaez, also of the
Pastor Group. The PROBATE COURT thus directed ATLAS to remit directly to
QUEMADA the 42% royalties due decedent's estate, of which QUEMADA was
authorized to retain 75% for himself as legatee and to deposit 25% with a reputable
banking institution for payment of the estate taxes and other obligations of the estate.
The 33% share of PASTOR, JR. and/or his assignees was ordered garnished to answer
for the accumulated legacy of QUEMADA from the time of PASTOR, SR.'s death, which
amounted to over two million pesos.
The order being "immediately executory", QUEMADA succeeded in obtaining a Writ of
Execution and Garnishment on September 4, 1980, and in serving the same on ATLAS
on the same day. Notified of the Order on September 6, 1980, the oppositors sought
reconsideration thereof on the same date primarily on the ground that the PROBATE
COURT gravely abused its discretion when it resolved the question of ownership of the
royalties and ordered the payment of QUEMADA's legacy after prematurely passing
upon the intrinsic validity of the will. In the meantime, the PROBATE COURT ordered
suspension of payment of all royalties due PASTOR, JR. and/or his assignees until after
resolution of oppositors' motion for reconsideration.
Before the Motion for Reconsideration could be resolved, however, PASTOR, JR., this
time joined by his wife Ma. ELENA ACHAVAL DE PASTOR, filed with the Court of
Appeals a Petition for certiorari and Prohibition with a prayer for writ of preliminary
injunction (CA-G.R. No. SP- 11373-R). They assailed the Order dated August 20, 1980
and the writ of execution and garnishment issued pursuant thereto. The petition was
denied on November 18, 1980 on the grounds (1) that its filing was premature because
the Motion for Reconsideration of the questioned Order was still pending determination
by the PROBATE COURT; and (2) that although "the rule that a motion for
reconsideration is prerequisite for an action for certiorari is never an absolute rule," the
Order assailed is "legally valid. "
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
On December 9, 1980, PASTOR, JR. and his wife moved for reconsideration of the
Court of Appeal's decision of November 18, 1980, calling the attention of the appellate
court to another order of the Probate Court dated November 11, 1980 (i.e., while their
petition for certiorari was pending decision in the appellate court), by which the
oppositors' motion for reconsideration of the Probate Court's Order of August 20, 1980
was denied. [The November 11 Order declared that the questions of intrinsic validity of
the will and of ownership over the mining claims (not the royalties alone) had been finally
adjudicated by the final and executory Order of December 5, 1972, as affirmed by the
Court of Appeals and the Supreme Court, thereby rendering moot and academic the suit
for reconveyance then pending in the Court of First Instance of Cebu, Branch IX. It
clarified that only the 33% share of PASTOR, JR. in the royalties (less than 7.5% share
which he had assigned to QUEMADA before PASTOR, SR. died) was to be garnished
and that as regards PASTOR, SR.'s 42% share, what was ordered was just the transfer
of its possession to the custody of the PROBATE COURT through the special
administrator. Further, the Order granted QUEMADA 6% interest on his unpaid legacy
from August 1980 until fully paid.] Nonetheless, the Court of Appeals denied
reconsideration.
Hence, this Petition for Review by certiorari with prayer for a writ of pre y injunction,
assailing the decision of the Court of Appeals dated November 18, 1980 as well as the
orders of the Probate Court dated August 20, 1980, November 11, 1980 and December
17, 1980, Med by petitioners on March 26, 1981, followed by a Supplemental Petition
with Urgent Prayer for Restraining Order.
In April 1981, the Court (First Division) issued a writ of preliminary injunction, the lifting of
which was denied in the Resolution of the same Division dated October 18, 1982,
although the bond of petitioners was increased from P50,000.00 to P100,000.00.
Between December 21, 1981 and October 12, 1982, private respondent filed seven
successive motions for early resolution. Five of these motions expressly prayed for the
resolution of the question as to whether or not the petition should be given due course.
On October 18, 1982, the Court (First Division) adopted a resolution stating that "the
petition in fact and in effect was given due course when this case was heard on the
merits on September 7, (should be October 21, 1981) and concise memoranda in
amplification of their oral arguments on the merits of the case were filed by the parties
pursuant to the resolution of October 21, 1981 . . . " and denied in a resolution dated
December 13, 1982, private respondent's "Omnibus motion to set aside resolution dated
October 18, 1982 and to submit the matter of due course to the present membership of
the Division; and to reassign the case to another ponente."
10
Upon Motion for Reconsideration of the October 18, 1982 and December 13, 1982
Resolutions, the Court en banc resolved to CONFIRM the questioned resolutions insofar
as hey resolved that the petition in fact and in effect had been given due course.
II. ISSUES:
Assailed by the petitioners in these proceedings is the validity of the Order of execution
and garnishment dated August 20, 1980 as well as the Orders subsequently issued
allegedly to implement the Probate Order of December 5, 1972, to wit: the Order of
November 11, 1980 declaring that the Probate Order of 1972 indeed resolved the issues
of ownership and intrinsic validity of the will, and reiterating the Order of Execution dated
August 20, 1980; and the Order of December 17, 1980 reducing to P2,251,516.74 the
amount payable to QUEMADA representing the royalties he should have received from
the death of PASTOR, SR. in 1966 up to February 1980.
The Probate Order itself, insofar as it merely allowed the holographic will in probate, is
not questioned. But petitioners denounce the Probate Court for having acted beyond its
jurisdiction or with grave abuse of discretion when it issued the assailed Orders. Their
argument runs this way: Before the provisions of the holographic win can be
implemented, the questions of ownership of the mining properties and the intrinsic
validity of the holographic will must first be resolved with finality. Now, contrary to the
position taken by the Probate Court in 1980 — i.e., almost eight years after the probate
of the will in 1972 — the Probate Order did not resolve the two said issues. Therefore,
the Probate Order could not have resolved and actually did not decide QUEMADA's
entitlement to the legacy. This being so, the Orders for the payment of the legacy in
alleged implementation of the Probate Order of 1972 are unwarranted for lack of basis.
Closely related to the foregoing is the issue raised by QUEMADA The Probate Order of
1972 having become final and executory, how can its implementation (payment of
legacy) be restrained? Of course, the question assumes that QUEMADA's entitlement to
the legacy was finally adjudged in the Probate Order.
On the merits, therefore, the basic issue is whether the Probate Order of December 5,
1972 resolved with finality the questions of ownership and intrinsic validity. A negative
finding will necessarily render moot and academic the other issues raised by the parties,
such as the jurisdiction of the Probate Court to conclusively resolve title to property, and
the constitutionality and repercussions of a ruling that the mining properties in dispute,
although in the name of PASTOR, JR. and his wife, really belonged to the decedent
despite the latter's constitutional disqualification as an alien.
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
On the procedural aspect, placed in issue is the propriety of certiorari as a means to
assail the validity of the order of execution and the implementing writ.
III. DISCUSSION:
1. Issue of Ownership —
(a) In a special proceeding for the probate of a will, the issue by and large is restricted to
the extrinsic validity of the will, i.e., whether the testator, being of sound mind, freely
executed the will in accordance with the formalities prescribed by law. (Rules of Court,
Rule 75, Section 1; Rule 76, Section 9.) As a rule, the question of ownership is an
extraneous matter which the Probate Court cannot resolve with finality. Thus, for the
purpose of determining whether a certain property should or should not be included in
the inventory of estate properties, the Probate Court may pass upon the title thereto, but
such determination is provisional, not conclusive, and is subject to the final decision in a
separate action to resolve title. [3 Moran, Comments on the Rules of Court (1980 ed.), p.
458; Valero Vda. de Rodriguez vs. Court of Appeals, 91 SCRA 540.]
(b) The rule is that execution of a judgment must conform to that decreed in the
dispositive part of the decision. (Philippine-American Insurance Co. vs. Honorable
Flores, 97 SCRA 811.) However, in case of ambiguity or uncertainty, the body of the
decision may be scanned for guidance in construing the judgment. (Heirs of Presto vs.
Galang, 78 SCRA 534; Fabular vs. Court of Appeals, 119 SCRA 329; Robles vs.
Timario. 107 Phil. 809.)
The Order sought to be executed by the assailed Order of execution is the Probate Order
of December 5, 1972 which allegedly resolved the question of ownership of the disputed
mining properties. The said Probate Order enumerated the issues before the Probate
Court, thus:
Unmistakably, there are three aspects in these proceedings: (1) the
probate of the holographic will (2) the intestate estate aspect; and (3) the
administration proceedings for the purported estate of the decedent in the
Philippines.
In its broad and total perspective the whole proceedings are being
impugned by the oppositors on jurisdictional grounds, i.e., that the fact of
the decedent's residence and existence of properties in the Philippines
have not been established.
11
 Specifically placed in issue with respect to the probate proceedings are:
(a) whether or not the holographic will (Exhibit "J") has lost its efficacy as
the last will and testament upon the death of Alvaro Pastor, Sr. on June
5, 1966, in Cebu City, Philippines; (b) Whether or not the said will has
been executed with all the formalities required by law; and (c) Did the late
presentation of the holographic will affect the validity of the same?
Issues In the Administration Proceedings are as follows: (1) Was the ex-
parte appointment of the petitioner as special administrator valid and
proper? (2) Is there any indispensable necessity for the estate of the
decedent to be placed under administration? (3) Whether or not petition
is qualified to be a special administrator of the estate; and (4) Whether or
not the properties listed in the inventory (submitted by the special
administrator but not approved by the Probate Court) are to be excluded.
Then came what purports to be the dispositive portion:
Upon the foregoing premises, this Court rules on and resolves some of
the problems and issues presented in these proceedings, as follows:
(a) The Court has acquired jurisdiction over the probate proceedings as
it hereby allows and approves the so-called holographic will of testator
Alvaro Pastor, Sr., executed on July 31, 1961 with respect to its extrinsic
validity, the same having been duly authenticated pursuant to the
requisites or solemnities prescribed by law. Let, therefore, a certificate of
its allowance be prepared by the Branch Clerk of this Court to be signed
by this Presiding Judge, and attested by the seal of the Court, and
thereafter attached to the will, and the will and certificate filed and
recorded by the clerk. Let attested copies of the will and of the certificate
of allowance thereof be sent to Atlas Consolidated Mining & Development
Corporation, Goodrich Bldg., Cebu City, and the Register of Deeds of
Cebu or of Toledo City, as the case may be, for recording.
(b) There was a delay in the granting of the letters testamentary or of
administration for as a matter of fact, no regular executor and/or
administrator has been appointed up to this time and - the appointment of
a special administrator was, and still is, justified under the circumstances
to take possession and charge of the estate of the deceased in the
Philippines (particularly in Cebu) until the problems causing the delay are
decided and the regular executor and/or administrator appointed.
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(c) There is a necessity and propriety of a special administrator and later
on an executor and/or administrator in these proceedings, in spite of this
Court's declaration that the oppositors are the forced heirs and the
petitioner is merely vested with the character of a voluntary heir to the
extent of the bounty given to him (under) the will insofar as the same will
not prejudice the legitimes of the oppositor for the following reasons:
1. To submit a complete inventory of the estate of the decedent-
testator Alvaro Pastor, Sr.
2. To administer and to continue to put to prolific utilization of the
properties of the decedent;
3. To keep and maintain the houses and other structures and
belonging to the estate, since the forced heirs are residing in
Spain, and prepare them for delivery to the heirs in good order
after partition and when directed by the Court, but only after the
payment of estate and inheritance taxes;
(d) Subject to the outcome of the suit for reconveyance of ownership and
possession of real and personal properties in Civil Case No. 274-T before
Branch IX of the Court of First Instance of Cebu, the intestate estate
administration aspect must proceed, unless, however, it is duly proven by
the oppositors that debts of the decedent have already been paid, that
there had been an extrajudicial partition or summary one between the
forced heirs, that the legacy to be given and delivered to the petitioner
does not exceed the free portion of the estate of the testator, that the
respective shares of the forced heirs have been fairly apportioned,
distributed and delivered to the two forced heirs of Alvaro Pastor, Sr.,
after deducting the property willed to the petitioner, and the estate and
inheritance taxes have already been paid to the Government thru the
Bureau of Internal Revenue.
The suitability and propriety of allowing petitioner to remain as special
administrator or administrator of the other properties of the estate of the
decedent, which properties are not directly or indirectly affected by the
provisions of the holographic will (such as bank deposits, land in Mactan
etc.), will be resolved in another order as separate incident, considering
that this order should have been properly issued solely as a resolution on
12
 the issue of whether or not to allow and approve the aforestated will.
(Emphasis supplied.)
Nowhere in the dispositive portion is there a declaration of ownership of specific
properties. On the contrary, it is manifest therein that ownership was not resolved. For it
confined itself to the question of extrinsic validity of the win, and the need for and
propriety of appointing a special administrator. Thus it allowed and approved the
holographic win "with respect to its extrinsic validity, the same having been duly
authenticated pursuant to the requisites or solemnities prescribed by law." It declared
that the intestate estate administration aspect must proceed " subject to the outcome of
the suit for reconveyance of ownership and possession of real and personal properties in
Civil Case 274-T before Branch IX of the CFI of Cebu." [Parenthetically, although the
statement refers only to the "intestate" aspect, it defies understanding how ownership by
the estate of some properties could be deemed finally resolved for purposes
of testate administration, but not so for intestate purposes. Can the estate be the owner
of a property for testate but not for intestate purposes?] Then again, the Probate Order
(while indeed it does not direct the implementation of the legacy) conditionally stated that
the intestate administration aspect must proceed "unless . . . it is proven . . . that the
legacy to be given and delivered to the petitioner does not exceed the free portion of the
estate of the testator," which clearly implies that the issue of impairment of legitime (an
aspect of intrinsic validity) was in fact not resolved. Finally, the Probate Order did not rule
on the propriety of allowing QUEMADA to remain as special administrator of estate
properties not covered by the holographic will, "considering that this (Probate) Order
should have been properly issued solely as a resolution on the issue of whether or not to
allow and approve the aforestated will. "
(c) That the Probate Order did not resolve the question of ownership of the properties
listed in the estate inventory was appropriate, considering that the issue of ownership
was the very subject of controversy in the reconveyance suit that was still pending in
Branch IX of the Court of First Instance of Cebu.
(d) What, therefore, the Court of Appeals and, in effect, the Supreme Court affirmed en
toto when they reviewed the Probable Order were only the matters properly adjudged in
the said Order.
(e) In an attempt to justify the issuance of the Order of execution dated August 20, 1980,
the Probate Court in its Order of November 11, 1980 explained that the basis for its
conclusion that the question of ownership had been formally resolved by the Probate
Order of 1972 are the findings in the latter Order that (1) during the lifetime of the
decedent, he was receiving royalties from ATLAS; (2) he had resided in the Philippines
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
since pre-war days and was engaged in the mine prospecting business since 1937
particularly in the City of Toledo; and (3) PASTOR, JR. was only acting as dummy for his
father because the latter was a Spaniard.
Based on the premises laid, the conclusion is obviously far-fetched.
(f) It was, therefore, error for the assailed implementing Orders to conclude that the
Probate Order adjudged with finality the question of ownership of the mining properties
and royalties, and that, premised on this conclusion, the dispositive portion of the said
Probate Order directed the special administrator to pay the legacy in dispute.
2. Issue of Intrinsic Validity of the Holographic Will -
(a) When PASTOR, SR. died in 1966, he was survived by his wife, aside from his two
legitimate children and one illegitimate son. There is therefore a need to liquidate the
conjugal partnership and set apart the share of PASTOR, SR.'s wife in the conjugal
partnership preparatory to the administration and liquidation of the estate of PASTOR,
SR. which will include, among others, the determination of the extent of the statutory
usufructuary right of his wife until her death. * When the disputed Probate order was issued on December
5, 1972, there had been no liquidation of the community properties of PASTOR, SR. and his wife.
(b) So, also, as of the same date, there had been no prior definitive determination of the
assets of the estate of PASTOR, SR. There was an inventory of his properties
presumably prepared by the special administrator, but it does not appear that it was ever
the subject of a hearing or that it was judicially approved. The reconveyance or recovery
of properties allegedly owned but not in the name of PASTOR, SR. was still being
litigated in another court.
(c) There was no appropriate determination, much less payment, of the debts of the
decedent and his estate. Indeed, it was only in the Probate Order of December 5, 1972
where the Probate Court ordered that-
... a notice be issued and published pursuant to the provisions of Rule 86
of the Rules of Court, requiring all persons having money claims against
the decedent to file them in the office of the Branch Clerk of this Court."
(d) Nor had the estate tax been determined and paid, or at least provided for, as of
December 5, 1972.
13
(e) The net assets of the estate not having been determined, the legitime of the forced
heirs in concrete figures could not be ascertained.
(f) All the foregoing deficiencies considered, it was not possible to determine whether the
legacy of QUEMADA - a fixed share in a specific property rather than an aliquot part of
the entire net estate of the deceased - would produce an impairment of the legitime of
the compulsory heirs.
(g) Finally, there actually was no determination of the intrinsic validity of the will in other
respects. It was obviously for this reason that as late as March 5, 1980 - more than 7
years after the Probate Order was issued the Probate Court scheduled on March 25,
1980 a hearing on the intrinsic validity of the will.
3. Propriety of certiorari —
Private respondent challenges the propriety of certiorari as a means to assail the validity
of the disputed Order of execution. He contends that the error, if any, is one of judgment,
not jurisdiction, and properly correctible only by appeal, not certiorari.
Under the circumstances of the case at bar, the challenge must be rejected. Grave
abuse of discretion amounting to lack of jurisdiction is much too evident in the actuations
of the probate court to be overlooked or condoned.
(a) Without a final, authoritative adjudication of the issue as to what properties compose
the estate of PASTOR, SR. in the face of conflicting claims made by heirs and a non-heir
(MA. ELENA ACHAVAL DE PASTOR) involving properties not in the name of the
decedent, and in the absence of a resolution on the intrinsic validity of the will here in
question, there was no basis for the Probate Court to hold in its Probate Order of 1972,
which it did not, that private respondent is entitled to the payment of the questioned
legacy. Therefore, the Order of Execution of August 20, 1980 and the subsequent
implementing orders for the payment of QUEMADA's legacy, in alleged implementation
of the dispositive part of the Probate Order of December 5, 1972, must fall for lack of
basis.
(b) The ordered payment of legacy would be violative of the rule requiring prior
liquidation of the estate of the deceased, i.e., the determination of the assets of the
estate and payment of all debts and expenses, before apportionment and distribution of
the residue among the heirs and legatees. (Bernardo vs. Court of Appeals, 7 SCRA 367.)
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
(c) Neither has the estate tax been paid on the estate of PASTOR, SR. Payment
therefore of the legacy to QUEMADA would collide with the provision of the National
Internal Revenue Code requiring payment of estate tax before delivery to any beneficiary
of his distributive share of the estate (Section 107 [c])
(d) The assailed order of execution was unauthorized, having been issued purportedly
under Rule 88, Section 6 of the Rules of Court which reads:
Sec. 6. Court to fix contributive shares where devisees, legatees, or heirs
have been in possession. — Where devisees, legatees, or heirs have
entered into possession of portions of the estate before the debts and
expenses have been settled and paid and have become liable to
contribute for the payment of such debts and expenses, the court having
jurisdiction of the estate may, by order for that purpose, after hearing,
settle the amount of their several liabilities, and order how much and in
what manner each person shall contribute, and may issue execution as
circumstances require.
The above provision clearly authorizes execution to enforce payment of debts of estate.
A legacy is not a debt of the estate; indeed, legatees are among those against whom
execution is authorized to be issued.
... there is merit in the petitioners' contention that the probate court
generally cannot issue a writ of execution. It is not supposed to issue a
writ of execution because its orders usually refer to the adjudication of
claims against the estate which the executor or administrator may satisfy
without the necessity of resorting to a writ of execution. The probate
court, as such, does not render any judgment enforceable by execution.
The circumstances that the Rules of Court expressly specifies that the
probate court may issue execution (a) to satisfy (debts of the estate out
of) the contributive shares of devisees, legatees and heirs in possession
of the decedent's assets (Sec. 6. Rule 88), (b) to enforce payment of the
expenses of partition (Sec. 3, Rule 90), and (c) to satisfy the costs when
a person is cited for examination in probate proceedings (Sec. 13, Rule
142) may mean, under the rule of inclusion unius est exclusion alterius,
that those are the only instances when it can issue a writ of execution.
(Vda. de Valera vs. Ofilada, 59 SCRA 96, 108.)
14
(d) It is within a court's competence to order the execution of a final judgment; but to
order the execution of a final order (which is not even meant to be executed) by reading
into it terms that are not there and in utter disregard of existing rules and law, is manifest
grave abuse of discretion tantamount to lack of jurisdiction. Consequently, the rule that
certiorari may not be invoked to defeat the right of a prevailing party to the execution of a
valid and final judgment, is inapplicable. For when an order of execution is issued with
grave abuse of discretion or is at variance with the judgment sought to be enforced
(PVTA vs. Honorable Gonzales, 92 SCRA 172), certiorari will lie to abate the order of
execution.
(e) Aside from the propriety of resorting to certiorari to assail an order of execution which
varies the terms of the judgment sought to be executed or does not find support in the
dispositive part of the latter, there are circumstances in the instant case which justify the
remedy applied for.
Petitioner MA. ELENA ACHAVAL DE PASTOR, wife of PASTOR, JR., is the holder in
her own right of three mining claims which are one of the objects of conflicting claims of
ownership. She is not an heir of PASTOR, SR. and was not a party to the probate
proceedings. Therefore, she could not appeal from the Order of execution issued by the
Probate Court. On the other hand, after the issuance of the execution order, the urgency
of the relief she and her co-petitioner husband seek in the petition for certiorari states
against requiring her to go through the cumbersome procedure of asking for leave to
intervene in the probate proceedings to enable her, if leave is granted, to appeal from the
challenged order of execution which has ordered the immediate transfer and/or
garnishment of the royalties derived from mineral properties of which she is the duly
registered owner and/or grantee together with her husband. She could not have
intervened before the issuance of the assailed orders because she had no valid ground
to intervene. The matter of ownership over the properties subject of the execution was
then still being litigated in another court in a reconveyance suit filed by the special
administrator of the estate of PASTOR, SR.
Likewise, at the time petitioner PASTOR, JR. Med the petition for certiorari with the Court
of Appeals, appeal was not available to him since his motion for reconsideration of the
execution order was still pending resolution by the Probate Court. But in the face of
actual garnishment of their major source of income, petitioners could no longer wait for
the resolution of their motion for reconsideration. They needed prompt relief from the
injurious effects of the execution order. Under the circumstances, recourse to certiorari
was the feasible remedy.
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
WHEREFORE, the decision of the Court of Appeals in CA G.R. No. SP-11373-R is
reversed. The Order of execution issued by the probate Court dated August 20, 1980, as
well as all the Orders issued subsequent thereto in alleged implementation of the
Probate Order dated December 5, 1972, particularly the Orders dated November 11,
1980 and December 17, 1980, are hereby set aside; and this case is remanded to the
appropriate Regional Trial Court for proper proceedings, subject to the judgment to be
rendered in Civil Case No. 274-R.
SO ORDERED.
DIGEST: PASTOR, JR. VS. CA
FACTS:
Spouses Alvaro Pastor, Sr. and Sofia Bossio were survived by their two legitimate
children Alvaro Pastor, Jr. (Pastor Jr.) and Sofia Pastor (Sofia), and an illegitimate child,
Lewellyn Quemada. Quemada filed a petition for the probate and allowance of an alleged
holographic will of Pastor Sr. with the CFI which contained only one testamentary
disposition: a legacy in favor of Quemada consisting of 30% of Pastor Sr.’s 42% share in
the operation by ATLAS. Thereafter, the probate court appointed Quemada as special
administrator of the entire estate of Pastor Sr. whether or not covered or affected by the
holographic will. Consequently, Quemada instituted against Pastor Jr., and his wife an
action for reconveyance of alleged properties of estate which included the properties
subject of the legacy which were in the names of spouses Pastor Sr. and Ma. Elena, who
claimed to be the owners in their own rights, and not by inheritance. The probate court
issued an order allowing the will to probate.
The order was affirmed by CA and on petition for review, the SC dismissed the
petition and remanded the same to the probate court after denying reconsideration. For
two years after remand of the case to the probate court, all pleadings of both parties
remained unacted upon. Not long after, the probate court set the hearing on the intrinsic
validity of the will but upon objection of Pastor Jr. and Sofia on the ground of pendency of
the reconveyance suit, no hearing was held. Instead, the probate court required the
parties to submit their respective position papers. While the reconveyance suit was still
pending in another court, the probate court issued Order of Execution and Garnishment,
resolving the question of ownership of the royalties payable by ATLAS and ruling in
effect that the legacy to Quemada was not inofficious.
Pursuant to said order, ATLAS was directed to remit directly to Quemada the 42%
royalties due to decedent’s estate, of which Quemada was authorized to retain 75% for
15
himself as legatee. Further, the 33% share of Pastor Jr. and/or his assignees was
ordered garnished to answer for the accumulated legacy of Quemada. Being
“immediately executory”, Quemada succeeded in obtaining a Writ of Execution and
Garnishment. The oppositors sought reconsideration thereof but in the meantime, the
probate court ordered suspension of payment of all royalties due Pastor Jr. and/or his
assignees until after resolution of oppositor’s motion for reconsideration. Pending motion,
Pastor Jr. and his wife filed with the CA a petition for certiorariand prohibition with a
prayer for writ of preliminary injunction assailing the writ of execution and garnishment
issued by the probate court. However, said petition was denied as well as their motion for
reconsideration. Hence, this petition for review by certiorari with prayer for a writ of
preliminary injunction.
ISSUE: Whether or not the Probate Order resolved with finality the questions of
ownership and intrinsic validity.
HELD:
NO.
In a special proceeding for the probate of a will, the issue by and large is restricted
to the extrinsic validity of the will. As a rule, the question of ownership is an extraneous
matter which the Probate Court cannot resolve with finality. Thus, for the purpose of
determining whether a certain property should or should not be included in the inventory
of estate properties, the Probate Court may pass upon the title thereto, but such
determination is provisional, not conclusive, and is subject to the final decision in a
separate action to resolve title.
The Order sought to be executed by the assailed Order of execution is the Probate
Order allegedly resolved the question of ownership of the disputed mining properties.
However, nowhere in the dispositive portion is there a declaration of ownership of
specific properties. On the contrary, it is manifested therein that ownership was not
resolved. For it confined itself to the question of extrinsic validity of the will, and the need
for and propriety of appointing a special administrator. Thus it allowed and approved the
holographic will “with respect to its extrinsic validity, the same having been duly
authenticated pursuant to the requisites or solemnities prescribed by law.” It declared
that the intestate estate administration aspect must proceed subject to the outcome of
the suit for reconveyance of ownership and possession of real and personal properties.
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
The Probate Court did not resolve the question of ownership of the properties
listed in the estate inventory, considering that the issue of ownership was the very
subject of controversy in the reconveyance suit that was still pending. It was, therefore,
error for the assailed implementing Orders to conclude that the Probate Order adjudged
with finality the question of ownership of the mining properties and royalties, and that,
premised on this conclusion, the dispositive portion of the said Probate Order directed
special administrator to pay the legacy in dispute.
PILAR S. VDA. DE MANALO, ANTONIO S. MANALO, ORLANDO S. MANALO, and
ISABELITA MANALO VS. CA, RTC MANILA (BRANCH 35), PURITA S. JAYME,
MILAGROS M. TERRE, BELEN M. ORILLANO, ROSALINA M. ACUIN, ROMEO S.
MANALO, ROBERTO S. MANALO, AMALIA MANALO and IMELDA MANALO
G.R. NO. 129242
January 16, 2001
DE LEON, JR., J.:
This is a petition for review on certiorari filed by petitioners Pilar S. Vda De Manalo, et.
Al., seeking to annul the Resolution 1 of the Court of Appeals 2 affirming the Orders 3 of
the Regional Trial Court and the Resolution 4 which denied petitioner' motion for
reconsideration.
The antecedent facts 5 are as follows:
Troadio Manalo, a resident of 1996 Maria Clara Street, Sampaloc, Manila died intestate
on February 14, 1992. He was survived by his wife, Pilar S. Manalo, and his eleven (11)
children, namely: Purita M. Jayme, Antonio Manalo, Milagros M. Terre, Belen M. Orillano,
Isabelita Manalo, Rosalina M. Acuin, Romeo Manalo, Roberto Manalo, Amalia Manalo,
Orlando Manalo and Imelda Manalo, who are all of legal age. 1âwphi1.nêt
At the time of his death on February 14, 1992, Troadio Manalo left several real properties
located in Manila and in the province of Tarlac including a business under the name and
style Manalo's Machine Shop with offices at No. 19 Calavite Street, La Loma, Quezon
City and at NO. 45 General Tinio Street, Arty Subdivision, Valenzuela, Metro Manila.
On November 26, 1992, herein respondents, who are eight (8) of the surviving children
of the late Troadio Manalo, namely; Purita, Milagros, Belen Rocalina, Romeo, Roberto,
Amalia, and Imelda filed a petition 6 with the respondent Regional Trial Court of
16
Manila 7 of the judicial settlement of the estate of their late father, Troadio Manalo, and for
the appointment of their brother, Romeo Manalo, as administrator thereof.
On December 15, 1992, the trial court issued an order setting the said petition for
hearing on February 11, 1993 and directing the publication of the order for three (3)
consecutive weeks in a newspaper of general circulation in Metro Manila, and further
directing service by registered mail of the said order upon the heirs named in the petition
at their respective addresses mentioned therein.
On February 11, 1993, the date set for hearing of the petition, the trial court issued an
order 'declaring the whole world in default, except the government," and set the reception
of evidence of the petitioners therein on March 16, 1993. However, the trial court upon
motion of set this order of general default aside herein petitioners (oppositors therein)
namely: Pilar S. Vda. De Manalo, Antonio, Isabelita and Orlando who were granted then
(10) days within which to file their opposition to the petition.
Several pleadings were subsequently filed by herein petitioners, through counsel,
culminating in the filling of an Omnibus Motion8 on July 23, 1993 seeking; (1) to seat
aside and reconsider the Order of the trial court dated July 9, 1993 which denied the
motion for additional extension of time file opposition; (2) to set for preliminary hearing
their affirmative defenses as grounds for dismissal of the case; (3) to declare that the trial
court did not acquire jurisdiction over the persons of the oppositors; and (4) for the
immediate inhibition of the presiding judge.
On July 30, 1993, the trial court issued an order9 which resolved, thus:
A. To admit the so-called Opposition filed by counsel for the oppositors on July
20, 1993, only for the purpose of considering the merits thereof;
B. To deny the prayer of the oppositors for a preliminary hearing of their
affirmative defenses as ground for the dismissal of this proceeding, said
affirmative defenses being irrelevant and immaterial to the purpose and issue of
the present proceeding;
C. To declare that this court has acquired jurisdiction over the persons of the
oppositors;
D. To deny the motion of the oppositors for the inhibition of this Presiding Judge;
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
E. To set the application of Romeo Manalo for appointment as regular
administrator in the intestate estate of the deceased Troadio Manalo for hearing
on September 9, 1993 at 2:00 o'clock in the afternoon.
Herein petitioners filed a petition for certiorari under Rule 65 of the Rules of Court with
the Court of Appeals, docketed as CA-G.R. SP. No. 39851, after the trial court in its
Order 10 dated September 15, 1993. In their petition for improperly laid in SP. PROC. No.
92-63626; (2) the trial court did not acquire jurisdiction over their persons; (3) the share
of the surviving spouse was included in the intestate proceedings; (4) there was absence
of earnest efforts toward compromise among members of the same family; and (5) no
certification of non-forum shopping was attached to the petition.
Finding the contentions untenable, the Court of Appeals dismissed the petition for
certiorari in its Resolution11 promulgated on September 30, 1996. On May 6, 1997 the
motion for reconsideration of the said resolution was likewise dismissed.12
The only issue raised by herein petitioners in the instant petition for review is whether or
not the respondent Court of Appeals erred in upholding the questioned orders of the
respondent trial court which denied their motion for the outright dismissal of the petition
for judicial settlement of estate despite the failure of the petitioners therein to aver that
earnest efforts toward a compromise involving members of the same family have been
made prior to the filling of the petition but that the same have failed.
Herein petitioners claim that the petition in SP. PROC. No. 92-63626 is actually an
ordinary civil action involving members of the same family. They point out that it contains
certain averments, which, according to them, are indicative of its adversarial nature, to
wit:
X X X
Par. 7. One of the surviving sons, ANTONIO MANALO, since the death of his
father, TROADIO MANALO, had not made any settlement, judicial or extra-
judicial of the properties of the deceased father TROADIO MANALO.
Par. 8. xxx the said surviving son continued to manage and control the properties
aforementioned, without proper accounting, to his own benefit and advantage
xxx.
X X X
17
 Par. 12. That said ANTONIO MANALO is managing and controlling the estate of
the deceased TROADIO MANALO to his own advantage and to the damage and
prejudice of the herein petitioners and their co-heirs xxx.
X X X MANALO upon the giving of a bond in such reasonable sum that this Honorable
Par. 14. For the protection of their rights and interests, petitioners were
compelled to bring this suit and were forced to litigate and incur expenses and
will continue to incur expenses of not less than, P250,000.00 and engaged the
services of herein counsel committing to pay P200,000.00 as and attorney's fees
plus honorarium of P2,500.00 per appearance in court xxx.13
Consequently, according to herein petitioners, the same should be dismissed under Rule
16, Section 1(j) of the Revised Rules of Court which provides that a motion to dismiss a
complaint may be filed on the ground that a condition precedent for filling the claim has
not been complied with, that is, that the petitioners therein failed to aver in the petition in
SP. PROC. No. 92-63626, that earnest efforts toward a compromise have been made
involving members of the same family prior to the filling of the petition pursuant to Article
222 14 of the Civil Code of the Philippines.
The instant petition is not impressed with merit.
It is a fundamental rule that in the determination of the nature of an action or proceeding,
the averments15 and the character of the relief sought 16 in the complaint, or petition, as in
the case at bar, shall be controlling. A careful srutiny of the Petition for Issuance of
Letters of Administration, Settlement and Distribution of Estatein SP. PROC. No. 92-
63626 belies herein petitioners' claim that the same is in the nature of an ordinary civil
action. The said petition contains sufficient jurisdictional facts required in a petition for the
settlement of estate of a deceased person such as the fat of death of the late Troadio
Manalo on February 14, 1992, as well as his residence in the City of Manila at the time of
his said death. The fact of death of the decedent and of his residence within he country
are foundation facts upon which all the subsequent proceedings in the administration of
the estate rest.17 The petition is SP.PROC No. 92-63626 also contains an enumeration of
the names of his legal heirs including a tentative list of the properties left by the
deceased which are sought to be settled in the probate proceedings. In addition, the
relief's prayed for in the said petition leave no room for doubt as regard the intention of
the petitioners therein (private respondents herein) to seek judicial settlement of the
estate of their deceased father, Troadio Manalo, to wit;
PRAYER
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
WHEREFORE, premises considered, it is respectfully prayed for of this Honorable Court:
a. That after due hearing, letters of administration be issued to petitioner ROMEO
MANALO for the administration of the estate of the deceased TROADIO
Court may fix.
b. That after all the properties of the deceased TROADIO MANALO have been
inventoried and expenses and just debts, if any, have been paid and the legal
heirs of the deceased fully determined, that the said estate of TROADIO
MANALO be settled and distributed among the legal heirs all in accordance with
law.
c. That the litigation expenses of these proceedings in the amount of
P250,000.00 and attorney's fees in the amount of P300,000.00 plus honorarium
of P2,500.00 per appearance in court in the hearing and trial of this case and
costs of suit be taxed solely against ANTONIO MANALO.18
Concededly, the petition in SP. PROC. No. 92-63626 contains certain averments which
may be typical of an ordinary civil action. Herein petitioners, as oppositors therein, took
advantage of the said defect in the petition and filed their so-called Opposition thereto
which, as observed by the trial court, is actually an Answer containing admissions and
denials, special and affirmative defenses and compulsory counterclaims for actual, moral
and exemplary damages, plus attorney's fees and costs 19 in an apparent effort to make
out a case of an ordinary civil action and ultimately seek its dismissal under Rule 16,
Section 1(j) of the Rules of Court vis-à-vis, Article 222 of civil of the Civil Code.
It is our view that herein petitioners may not be allowed to defeat the purpose of the
essentially valid petition for the settlement of the estate of the late Troadio Manalo by
raising matters that as irrelevant and immaterial to the said petition. It must be
emphasized that the trial court, siting as a probate court, has limited and special
jurisdiction 20 and cannot hear and dispose of collateral matters and issues which may be
properly threshed out only in an ordinary civil action. In addition, the rule has always
been to the effect that the jurisdiction of a court, as well as the concomitant nature of an
action, is determined by the averments in the complaint and not by the defenses
contained in the answer. If it were otherwise, it would not be too difficult to have a case
either thrown out of court or its proceedings unduly delayed by simple strategem.21 So it
should be in the instant petition for settlement of estate.
18
Herein petitioners argue that even if the petition in SP. PROC. No. 92-63626 were to be
considered as a special proceeding for the settlement of estate of a deceased person,
Rule 16, Section 1(j) of the Rules of Court vis-à-vis Article 222 of the Civil Code of the
Philippines would nevertheless apply as a ground for the dismissal of the same by virtue
of ule 1, Section 2 of the Rules of Court which provides that the 'rules shall be liberally
construed in order to promote their object and to assist the parties in obtaining just,
speedy and inexpensive determination of every action and proceedings.' Petitioners
contend that the term "proceeding" is so broad that it must necessarily include special
proceedings.
The argument is misplaced. Herein petitioners may not validly take refuge under the
provisions of Rule 1, Section 2, of the Rules of Court to justify the invocation of Article
222 of the Civil Code of the Philippines for the dismissal of the petition for settlement of
the estate of the deceased Troadio Manalo inasmuch as the latter provision is clear
enough. To wit:
Art. 222. No suit shall be filed or maintained between members of the same family unless
it should appear that earnest efforts toward a compromise have been made, but that the
same have failed, subject to the limitations in Article 2035(underscoring supplied).22
The above-quoted provision of the law is applicable only to ordinary civil actions. This is
clear from the term 'suit' that it refers to an action by one person or persons against
another or other in a court of justice in which the plaintiff pursues the remedy which the
law affords him for the redress of an injury or the enforcement of a right, whether at law
or in equity. 23 A civil action is thus an action filed in a court of justice, whereby a party
sues another for the enforcement of a right, or the prevention or redress of a
wrong.24 Besides, an excerpt form the Report of the Code Commission unmistakably
reveals the intention of the Code Commission to make that legal provision applicable
only to civil actions which are essentially adversarial and involve members of the same
family, thus:
It is difficult to imagine a sadder and more tragic spectacle than a litigation
between members of the same family. It is necessary that every effort should be
made toward a compromise before litigation is allowed to breed hate and passion
in the family. It is know that lawsuit between close relatives generates deeper
bitterness than stranger.25
It must be emphasized that the oppositors (herein petitioners) are not being sued in SP.
PROC. No. 92-63626 for any cause of action as in fact no defendant was imploded
therein. The Petition for issuance of letters of Administration, Settlement and Distribution
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
of Estate in SP. PROC. No. 92-63626 is a special proceeding and, as such, it is a
remedy whereby the petitioners therein seek to establish a status, a right, or a particular
fact. 26 the petitioners therein (private respondents herein) merely seek to establish the fat
of death of their father and subsequently to be duly recognized as among the heirs of the
said deceased so that they can validly exercise their right to participate in the settlement
and liquidation of the estate of the decedent consistent with the limited and special
jurisdiction of the probate court.
1âw phi 1.nêt
WHEREFORE, the petition in the above-entitled case, is DENIED for lack of merit, Costs
against petitioners.
SO ORDERED.
DIGEST: VDA. DE MANALO VS. CA
Doctrines:
 It is a fundamental rule that, in the determination of the nature of an action or
proceeding, the averments and the character of the relief sought in the complaint,
or petition, as in the case at bar, shall be controlling. The fact of death of the decedent
and of his residence within the country are foundation facts upon which all the
subsequent proceedings in the administration of the estate rest.
 It is our view that herein petitioners may not be allowed to defeat the purpose of the
essentially valid petition for the settlement of the estate of the late Troadio Manalo by
raising matters that are irrelevant and immaterial to the said petition.
FACTS:
Troadio Manalo, a resident of 1966 Maria Clara Street, Sampaloc, Maniladied
intestate on February 14, 1992. He was survived by his wife,Pilar S. Manalo, and his 11
children, namely: Purita M. Jayme, Antonio Manalo, Milagros M. Terre, Belen M. Orillano,
Isabelita Manalo, Rosalina M. Acuin, Romeo Manalo, Roberto Manalo, Amalia Manalo,
Orlando Manalo and Imelda Manalo, who are all of legal age.
At the time of his death, Troadio left several real properties located in Manila and in
the province of Tarlac including a business under the name and style Manalo’s Machine
Shop with offices in Quezon City and in Valenzuela, Metro Manila.
On November 26, 1992, herein respondents, who are 8 of the surviving children
of the late Troadiofiled a petition with the respondent RTC for the judicial settlement
19
of the estate of their late fatherand for the appointment of their brother, Romeo
Manalo, as administrator thereof.
The trial court the issued an order setting the said petition for hearing and directing
the publication of the order for 3 consecutive weeks in a newspaper of general circulation
in Metro Manila, and further directing service by registered mail of the said order upon
the heirs named in the petition at their respective addresses mentioned therein.
On the date of hearing, the trial court issued an order “declaring the whole world in
default, except the government,” and set the reception of evidence of the petitioners
therein on March 16, 1993.
However,this order of general default was set aside by the trial court upon motion
of herein petitioners(oppositors therein) who were granted 10 days within which to file
their opposition to the petition.
Several pleadings were subsequently filed by herein petitioners, through counsel,
culminating in the filing of an Omnibus Motionseeking: (1) to set aside and reconsider
the Order of the trial court dated which denied the motion for additional extension of time
to file opposition; (2) to set for preliminary hearing their affirmative defenses as grounds
for dismissal of the case; (3) to declare that the trial court did not acquire jurisdiction over
the persons of the oppositors; and (4) for the immediate inhibition of the presiding judge.
Ruling of Lower Courts:
RTC dismissed Petitioners’ Omnibus Motion
CA affirmed
Contentions of the PETITIONERS:
CA erred in upholding the RTC’s orders, which denied their motion for the outright
dismissal of the petition for judicial settlement of estate despite the failure of the
petitioners therein to aver that earnest efforts toward a compromise involving members
of the same family have been made prior to the filing of the petition but that the same
have failed. (pursuant to Article 222 of the Civil Code)
The proceeding in the settlement of estate is actually an ordinary civil action
involving members of same family. The case contains averments that are indicative of
its adversarial nature:
“Par. 7. One of the surviving sons, ANTONIO MANALO, since the death of his
father, TROADIO MANALO, had not made any settlement, judicial or extra-judicial
of the properties of the deceased father, TROADIO MANALO.
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
Par. 8. … the said surviving son continued to manage and control the properties
aforementioned, without proper accounting, to his own benefit and advantage…
Par. 12. That said ANTONIO MANALO is managing and controlling the estate of
the deceased TROADIO MANALO to his own advantage and to the damage and
prejudice of the herein petitioners and their coheirs…
Par. 14. For the protection of their rights and interests, petitioners were compelled
to bring this suit and were forced to litigate and incur expensesand will continue to
incur expenses of not less than, P250,000.00 and engaged the services of herein
counsel committing to pay P200,000.00 as and for attorney’s fees plus honorarium
of P2,500.00 per appearance in court …”
Even if the petition were to be considered as a special proceeding for the
settlement of estate of a deceased person, Rule 16, Section 1(j) of the Rules of Court
vis-à-vis Article 222 of the Civil Code of the Philippines would nevertheless apply as a
ground for the dismissalof the same by virtue of Rule 1, Section 2 of the Rules of Court
which provides that the “rules shall be liberally construed in order to promote their object
and to assist the parties in obtaining just, speedy and inexpensive determination of every
action and proceeding.” The term “proceeding” is so broad that it must necessarily
include special proceedings.
ISSUE: Whether the settlement of estate of late Troadio is an ordinary civil action, which
is adversarial in nature.
HELD: NO (Special proceeding = Non-adversarial)
THE SETTLEMENT OF ESTATE IS A SPECIAL
PROCEEDINGS (DETERMINATION/NATURE).
It is a fundamental rule that, in the determination of the nature of an action or
proceeding, the averments and the character of the relief sought in the complaint,
or petition, as in the case at bar, shall be controlling.
A careful scrutiny of the Petition for Issuance of Letters of Administration,
Settlement and Distribution of Estate in SP. PROC. No. 92- 63626 belies petitioners’
claim that the same is in the nature of an ordinary civil action. The said petition
contains sufficient jurisdictional facts required in a petition for the settlement of estate of
a deceased personsuch as the fact of death of the late Troadio Manalo on February 14,
1992, as well as his residence in the City of Manila at the time of his said death.
20
 The fact of death of the decedent and of his residence within the country are
foundation facts upon which all the subsequent proceedings in the administration
of the estate rest.
The petition in SP. PROC. No. 92-63626 also contains an enumeration of the
names of his legal heirs including a tentative list of the properties left by the
deceasedwhich are sought to be settled in the probate proceedings. In addition, the
reliefs prayed for in the said petition leave no room for doubt as regard the intention of
the petitioners therein (private respondents herein) to seek judicial settlement of the
estate of their deceased father, Troadio Manalo
ALTHOUGH THE CASE CONAINS AVERNMENTS TYPICAL OF AN ORDINARY
ACTION, PETITIONERS CANNOT DEFEAT THE PURPOSE OF A VALID PETITION
FOR SETTLEMENT BY RAISING IRRELEVANT AND IMMATERIAL
MATTERS (PROBATE COURT’S LIMITED AND SPECIAL JURISDICTION)
Concededly, the petition in SP. PROC. No. 92-63626 contains certain averments
which may be typical of an ordinary civil action. Herein petitioners, as oppositors therein,
took advantage of the said defect in the petition and filed their so-called Opposition
thereto which, as observed by the trial court, is actually an Answer containing admissions
and denials, special and affirmative defenses and compulsory counterclaims for actual,
moral and exemplary damages, plus attorney’s fees and costs in an apparent effort to
make out a case of an ordinary civil action and ultimately seek its dismissal under Rule
16, Section l(j) of the Rules of Court vis-á-vis, Article 222 of the Civil Code.
It is our view that herein petitioners may not be allowed to defeat the purpose
of the essentially valid petition for the settlement of the estate of the late Troadio by
raising matters that are irrelevant and immaterial to the said petition.
It must be emphasized that the trial court, sitting as a probate court, has
limited and special jurisdiction and cannot hear and dispose of collateral matters
and issues which may be properly threshed out only in an ordinary civil action.
In addition, the rule has always been to the effect that the jurisdiction of a court, as
well as the concomitant nature of an action, is determined by the averments in the
complaint and not by the defenses contained in the answer. If it were otherwise, it would
not be too difficult to have a case either thrown out of court or its proceedings unduly
delayed by simple stratagem. So it should be in the instant petition for settlement of
estate.
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
“SUIT” MENTIONED IN ART. 222 OF THE CIVIL CODE ONLY PERTAINS TO
ORDINARY ACTIONS
Herein petitioners may not validly take refuge under the provisions of Rule 1,
Section 2, of the Rules of Court to justify the invocation of Article 222 of the Civil Code of
the Philippines for the dismissal of the petition for settlement of the estate of the
deceased Troadio inasmuch as the latter provision is clear enough, to wit:
Art. 222. No suit shall be filed or maintained between members of the same family
unless it should appear that earnest efforts toward a compromise have been made,
but that the same have failed, subject to the limitations in Article 2035 (italics
supplied).
The above-quoted provision of the law is applicable only to ordinary civil
actions. This is clear from the term “suit” that it refers to an action by one person or
persons against another or others in a court of justice in which the plaintiff pursues the
remedy which the law affords him for the redress of an injury or the enforcement
of a right, whether at law or in equity. A civil action is thus an action filed in a court of
justice, whereby a party sues another for the enforcement of a right, or the prevention or
redress of a wrong. Besides, an excerpt from the Report of the Code Commission
unmistakably reveals the intention of the Code Commission to make that legal provision
applicable only to civil actions which are essentially adversarial and involve members of
the same family, thus:
“It is difficult to imagine a sadder and more tragic spectacle than a litigation
between members of the same family. It is necessary that every effort
should be made toward a compromise before a litigation is allowed to breed
hate and passion in the family. It is known that lawsuit between close
relatives generates deeper bitterness than strangers.
CASE AS SPECIAL PROCEEDING => ESTABLISHMENT OF THE FACT OF
DEATH, STATUS AS HEIRS OF SAID DECEASED, and RIGHT TO PARTICIPATE IN
THE SETTLEMENT OF ESTATE
It must be emphasized that the oppositors (herein petitioners) are not being
sued in SP. PROC. No. 92-63626for any cause of action as in fact no defendant was
impleaded The Petition for Issuance of Letters of Administration, Settlement and
Distribution of Estate in SP. PROC. No. 92-63626 is a special proceeding and, as such, it
21
is a remedy whereby the petitioners therein seek to establish a status, a right, or a
particular fact.
The petitioners therein (private respondents herein) merely seek to establish
the fact of death of their father and subsequently to be duly recognized as among
the heirs of the said deceased so that they can validly exercise their right to
participate in the settlement and liquidation of the estate of the decedent consistent
with the limited and special jurisdiction of the probate court.
In the matter of the intestate estate of the deceased Rosalia Saquitan. EULOGIO S.
EUSEBIO
vs.
DOMINGO VALMORES
JACINTA SISCAR, widow of deceased
G.R. No. L-7019
May 31, 1955
LABRADOR, J.:
On July 31, 1952, the above-entitled proceedings were instituted in the Court of First
Instance of Rizal, upon petition of Francisco Valmores, who claims to be the adopted son
of the spouses Domingo Valmores and Rosalia Saquitan. The petition alleges that
Rosalia Saquitan died in Pasig, Rizal on October 1, 1950, without leaving any decendant
or ascendant; that the nearest relatives of said decedent are the husband, Domingo
Valmores, and the petitioner Francisco Valmores; and that the surviving spouse
Domingo Valmores is more than 80 years of age and physically unfit to discharge the
duties of administrator, so the petitioner recommends the appointment of Eulogio
Eusebio as administrator. On the same day of the presentation of the petition, the Clerk
of court issued a notice setting a date (August 29, 1952) for the hearing of the petition
and ordering the publication of the notice in the newspaper "La Opinion." On the day set
for the hearing, no one appeared except counsel for the petitioner Francisco Valmores.
Francisco Valmores himself did not appear. Counsel for the petitioner proved the
publication of the notice of hearing and, afterwards, presented his witness, one by the
name of Raymundo Delmindo, who declared that he is the brother of Francisco Valmores
that his brother had been adopted by the spouses Domingo Valmores and Rosalia
Saquitan, that Rosalia Saquitan did not leave any will, that her nearest relative is her
surviving husband who is 80 years of age and incapable of administering the estate.
Counsel for petitioner also explained to the court that on June 23, 1952 the surviving
spouse Domingo Valmores had filed an affidavit adjudicating to himself all the estate left
by the deceased wife, evidently under the provisions of Section 1 of Rule 74 of the Rules
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
of Court. Upon the presentation of the said testimony and the above manifestation of
counsel for petitioner, the court entered an order that same date, August 29, 1952,
appointing Eulogio Eusebio administrator of the estate of the deceased. Thereafter the
following proceedings for the settlement of the estate took place in rapid succession: (1)
September 3, 1952, oath of administrator and filing of bond by him; (2) September 5,
1952, issuance of letters of administration; (3) September 6, 1952, notice issued by Clerk
of Court to creditors to file their claims; (4) November 29, 1952, inventory filed by
administrator; (5) March 6, 1953, supplemental inventory filed by the administrator; (6)
March 17, 1953, final accounts presented by administrator; (7) March 17, 1953, project of
partition filed by the administrator; (8) March 23, 1953, opposition of Domingo Valmores;
and (11) November 23, 1953, approval of accounting and project of partition.
On March 23, 1953 the surviving spouse Domingo Valmores presented an opposition
dated March 20, 1953, impugning the appointment of Eulogio Eusebio as administrator
on the ground that he is a stranger to the family and to himself, and praying that he be
appointed administrator of the properties of the deceased, and that the case be set for
hearing so that he can present his evidence. On April 4, 1953 he presented an amended
opposition, alleging that Rosalia Saquitan had died more than two years before, that he
had been administering the properties of her deceased wife, that he is now the owner
and possessor of the properties in question, which was valued at P45,914. The
opposition must have been denied because on April 29, 1953 counsel for Domingo
Valmores filed a motion for reconsideration. Opposition to this motion for reconsideration
was filed by counsel for the administrator, and this was sustained on May 14, 1953.
Thereupon, counsel for Domingo Valmores presented an "Excepcion" and filed a Record
of Appeal, and asked that the case be certified to this court.
The oppositor-appellant has filed a brief and the first assignment of error made therein is
that the trial court deprived him of the right to present evidence to support his allegations,
in violation of Sections 1, 3, 5 and 6 of Rule 80 of the Rules of Court. In the second
assignment, it is claimed that the trial court erred in appointing a stranger as
administrator of the properties for the reason that the person to be appointed should be
her surviving spouse. The administrator-appellee has also filed a brief.
Since the pendency of the case before this Court, the following events have happened:
Domingo Valmores died on May 13, 1954. (According to the certificate of death, he was
85 years old at the time of his death. It appears that the said oppositor was married for
the second time to Jacinta Siscar on January 6, 1952). Upon being notified of the death
of Domingo Valmores, this Court ordered the widow substituted for the deceased
appellant. This Court also granted the request of Atty. A. G. Gavieres to be separated as
counsel for the deceased Domingo Valmores. On July 23, 1954 Atty. Vicente Francisco
entered his appearance for the widow, Jacinta Siscar, who was substituted for the
22
deceased Domingo Valmores. On permission of the Court, counsel for said Jacinta
Siscar filed a memorandum with the following annexes; Annex A and A-1, an order of the
court finding Atty. A. G. Gavieres to be physically unfit to handle the defense in civil case
No. 2103, Lati vs. Gavieres, et al. because of age; Annex B, the affidavit of adjudication
of Domingo Valmores; Annex C, transcript of the stenographic notes during the trial and
hearing of the petition for the appointment of administrator; and Annex D, certification of
the Local Civil Registrar of Pasig, Rizal to the effect that there is no record of adoption of
one Francisco Valmores by Domingo Valmores.
On January 26, 1955 Maximo Saquitan filed a petition in this Court, alleging that he is a
nephew of the deceased Rosalia Saquitan and is her nearest heir; that the real name of
Francisco Valmores, who filed the petition, is Francisco Delmindo; that Francisco
Delmindo changed his name and surreptitiously filed the petition for administration; that
movant is the only nephew of Rosalia Saquitan and is the heir at law of the latter and
Delmindo knew these facts; that despite said knowledge, Francisco Delmindo failed to
give notice to him of the proceedings as required by the Rules; and that the newspaper
La Opinion is not a newspaper of general circulation in the province of Rizal (supporting
said allegation with an affidavit of two newspaper agents of Pasig, Rizal). He, therefore,
prayed that the proceedings in the Court of First Instance, be set aside and the petition
be reinstated for a trial de novo, and that the records be remanded to the court of origin
for said purpose.
A careful perusal of the records of the case discloses the following irregularities: The
person who filed the original petition, whose real name appears to be Francisco
Delmindo, never appeared in court to prove the supposed adoption of him by the
spouses Rosalia Saquitan and Domingo Valmores. The supposed adoption was also
only testified to by the brother and no competent evidence thereof was presented as
required by law (Sec. 41, Rule 123, Rules of Court). If adoption was legally made, the
records thereof should have existed in the Court of First Instance. No such record were
presented at the hearing, or subsequent thereto. Neither was evidence submitted to
prove that the records of the adoption proceedings were lost or destroyed. On the other
hand, there is the certification of the Local Civil Registrar to the effect that there is no
record of adoption of Francisco Valmores by Domingo Valmores. These circumstances
engender the belief in our minds that the person who instituted the petition, Francisco
Delmindo, was not at all adopted by the deceased Rosalia Saquitan, or had any interest
in her properties. Section 2 of Rule 80 of the Rules of Court provides as follows:
A petition for letters of administration must be filed by an interested person and
must show, so far as known to the petitioner:
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
(Emphasis Ours)
The evidence submitted in the hearing does not satisfactorily prove that the petitioner
was legally adopted; hence, he did not have any interest in the properties of the
deceased Rosalia Saquitan. Under ordinary circumstances, such defect would authorize
the dismissal of the proceedings especially in view of the fact that the surviving spouse of
Rosalia Saguitan had filed an affidavit of adjudication under the provisions of Section 1 of
Rule 74 of the Rules. Counsel for Domingo Valmores, however, had not objected to the
application for the appointment of an administrator; he only objected to the appointment
of the said stranger Eulogio Eusebio as administrator, claiming to have the right as
surviving spouse to be appointed as such administrator. By this act of Doming Valmores,
surviving spouse of the deceased, therefore, the fatal defect in the petition may be
considered, as cured. In other words, the filing of the petition for the appointment of an
administrator may be considered as having been ratified by the surviving husband,
Domingo Valmores, and for this reason the proceedings may not be dismissed.
A study of the records also discloses fatal irregularities in the notice required to be given.
Thus nowhere does it appear from the record that Domingo Valmores was ever
personally notified of the filing of the petition or of the time and place for hearing the
same. His first opposition shows that he was not aware of the hearing at all. He was
notified of the proceedings for the first time when the inventory was sent him on
November 29, 1952. Section 3 of Rule 80 of the Rules of Court provides:
When a petition for letters of administration is filed in the court having jurisdiction,
such court shall fix a time and place for hearing the petition, and shall
cause notice thereof to be given to the known heirs and creditors of the decedent
and to any other persons believed to have an interest in the estate, in the manner
provided in sections 3 and 4 of Rule 77. (Emphasis supplied.)
The known heir in this case was Domingo Valmores and notice should have been given
him in accordance with Section 3 and 4 of Rule 77. Section 4 of Rule 77 specially
provides:
The Court shall also cause copies of the notice of the time and place fixed for
proving the will to be addressed to the known heirs, legatees and devisees of the
testator resident in the Philippines at their place of residence, and deposited in
the post office with the postage prepaid at least twenty days before the hearing, if
such places of residence be known.
23
 . . ..Personal service of copied of the notice at least ten days before the day of
hearing shall be equivalent to mailing.
Section 5 of the same rule also requires:
At the hearing compliance with the provisions of the last two preceding sections
must be shown before the introduction of testimony in support of the will. All such
testimony shall be taken under oath and reduced to writing.
The records of the hearing do not show that the notices as above required had been
given to Domingo Valmores or Maximo Saquitan.
We, therefore, find that the error imputed to the trial court in oppositor-appellant's brief
that the court has failed to comply with the provisions of Section 3 and 5 of Rule 80 had
not been complied with, was actually committed. The requirement as to notice is
essential to the validity of the proceedings in order that no person may be deprived of his
right or property without due process of law. The absence of notice to heirs becomes the
more apparent in the case at bar, where evidently a stranger has been able to railroad
the proceedings in court without opportunity of the person most interested in the estate of
the deceased to appear and contest in due time the right of the petitioner or the
appointment of the person recommended as administrator. In a way, the failure of
Domingo Valmores to receive better treatment at the hands of the court a quo may be
attributed to the unfortunate condition of the lawyer to whom he had entrusted the
defense of his rights. (Atty. A. G. Gavieres, who represented Domingo Valmores, had
been found to be too old and thus unfit to handle a civil case [Annexes A and A-1
attached to the Memorandum of counsel for Jacinta Siscar]). On the other hand, the
failure on the part of the trial judge to exercise care in the consideration of the evidence
adduced at the hearing and in following the procedure outlined by the rules had
contributed to the irregularities. Perhaps, also counsel for the appellee had taken
advantage of the carelessness of the court and the incompetence of adverse counsel to
bring these proceedings to a stage where real heirs or persons in interest have been
deprived of their rights. Be it as it may, there is still time to correct the errors committed
and right the wrongs and injustices caused to the parties legally entitled to the estate.
After consideration of the circumstances as above set forth, the Court finds that all the
proceedings subsequent to the petition are void and should be, as they hereby are,
annulled, and it is ordered that the case be remanded to the court of origin for the
hearing of the original petition together with the opposition thereto of Domingo Valmores,
with previous notice to all parties interest, including the widow of Domingo Valmores and
Maximo Saquitan, as required by the Rules. Without cost.
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
DIGEST: EUSEBIO VS. VALMORES
FACTS:
On July 31, 1952, the above-entitled proceedings were instituted in the Court of
First Instance of Rizal, upon petition of Francisco Valmores, who claims to be the
adopted son of the spouses Domingo Valmores and RosaliaSaquitan. The petition
alleges that RosaliaSaquitan died in Pasig, Rizal on October 1, 1950, without leaving any
decendant or ascendant; that the nearest relatives of said decedent are the husband,
Domingo Valmores, and the petitioner Francisco Valmores; and that the surviving
spouse Domingo Valmores is more than 80 years of age and physically unfit to discharge
the duties of administrator, so the petitioner recommends the appointment of
EulogioEusebio as administrator. On the same day of the presentation of the petition,
the Clerk of court issued a notice setting a date (August 29, 1952) for the hearing of the
petition and ordering the publication of the notice in the newspaper "La Opinion." On the
day set for the hearing, no one appeared except counsel for the petitioner Francisco
Valmores. Francisco Valmores himself did not appear. Counsel for the petitioner proved
the publication of the notice of hearing and, afterwards, presented his witness, one by
the name of RaymundoDelmindo, who declared that he is the brother of Francisco
Valmores that his brother had been adopted by the spouses Domingo Valmores and
RosaliaSaquitan, that RosaliaSaquitan did not leave any will, that her nearest relative is
her surviving husband who is 80 years of age and incapable of administering the estate.
Thereafter the following proceedings for the settlement of the estate took place in rapid
succession.
On March 23, 1953 the surviving spouse Domingo Valmores presented an
opposition dated March 20, 1953, impugning the appointment of EulogioEusebio as
administrator on the ground that he is a stranger to the family and to himself, and praying
that he be appointed administrator of the properties of the deceased, and that the case
be set for hearing so that he can present his evidence. On April 4, 1953 he presented an
amended opposition, alleging that RosaliaSaquitan had died more than two years before,
that he had been administering the properties of her deceased wife, that he is now the
owner and possessor of the properties in question, which was valued at P45,914. Since
the pendency of the case before this Court, the following events have happened:
Domingo Valmores died on May 13, 1954. (According to the certificate of death, he was
85 years old at the time of his death. It appears that the said oppositor was married for
the second time to Jacinta Siscar on January 6, 1952). Upon being notified of the death
of Domingo Valmores, this Court ordered the widow substituted for the deceased
appellant.
ISSUES:
24
 1. Whether the petitioner can be designated as the administrator of the estate of the
deceased.
2. Whether the notice to the persons having an interest in the properties of the
deceased can be dispense with.
HELD:
The evidence submitted in the hearing does not satisfactorily prove that the
petitioner was legally adopted; hence, he did not have any interest in the properties of
the deceased Rosalia Saquitan.
A study of the records also discloses fatal irregularities in the notice required to be
given. Thus nowhere does it appear from the record that Domingo Valmores was ever
personally notified of the filing of the petition or of the time and place for hearing the
same. His first opposition shows that he was not aware of the hearing at all. He was
notified of the proceedings for the first time when the inventory was sent him on
November 29, 1952. Section 3 of Rule 80 of the Rules of Court provides:
When a petition for letters of administration is filed in the court having jurisdiction,
such court shall fix a time and place for hearing the petition, and shall causenotice
thereof to be given to the known heirs and creditors of the decedent and to any other
persons believed to have an interest in the estate, in the manner provided in sections 3
and 4 of Rule 77. (Emphasis supplied.)
The known heir in this case was Domingo Valmores and notice should have been
given him in accordance with Section 3 and 4 of Rule 77. Section 4 of Rule 77 specially
provides:
The Court shall also cause copies of the notice of the time and place fixed for
proving the will to be addressed to the known heirs, legatees and devisees of the testator
resident in the Philippines at their place of residence, and deposited in the post office
with the postage prepaid at least twenty days before the hearing, if such places of
residence be known.
. . ..Personal service of copied of the notice at least ten days before the day of
hearing shall be equivalent to mailing.
Section 5 of the same rule also requires:
At the hearing compliance with the provisions of the last two preceding
sections must be shown before the introduction of testimony in support of
the will. All such testimony shall be taken under oath and reduced to
writing.
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
The records of the hearing do not show that the notices as above required had
been given to Domingo Valmores or Maximo Saquitan.
We, therefore, find that the error imputed to the trial court in oppositor-appellant's
brief that the court has failed to comply with the provisions of Section 3 and 5 of Rule 80
had not been complied with, was actually committed. The requirement as to notice is
essential to the validity of the proceedings in order that no person may be deprived of his
right or property without due process of law. The absence of notice to heirs becomes the
more apparent in the case at bar, where evidently a stranger has been able to railroad
the proceedings in court without opportunity of the person most interested in the estate of
the deceased to appear and contest in due time the right of the petitioner or the
appointment of the person recommended as administrator.
CYNTHIA C. ALABAN, FRANCIS COLLADO, JOSE P. COLLADO, JUDITH PROVIDO,
CLARITA PROVIDO, ALFREDO PROVIDO, MANUEL PROVIDO, JR., LORNA DINA E.
PROVIDO, SEVERO ARENGA, JR., SERGIO ARENGA, EDUARDO ARENGA, CAROL
ARENGA, RUTH BABASA, NORMA HIJASTRO, DOLORES M. FLORES, ANTONIO
MARIN, JR., JOSE MARIN, SR., and MATHILDE MARIN
VS. CA and FRANCISCO H. PROVIDO
G.R. NO. 156021
SEPTEMBER 23, 2005
DECISION
Tinga, J.:
This is a petition for review of the Resolutions1 of the Court of Appeals (CA) in CA-G.R.
SP No. 69221,2 dismissing petitioners’ petition for annulment of judgment.
On 8 November 2000, respondent Francisco Provido (respondent) filed a petition,
docketed as SP Proc. No. 00-135, for the probate of the Last Will and Testament3 of the
late Soledad Provido Elevencionado ("decedent"), who died on 26 October 2000 in
Janiuay, Iloilo.4 Respondent alleged that he was the heir of the decedent and the
executor of her will. On 30 May 2001, the Regional Trial Court (RTC), Branch 68, in P.D.
Monfort North, Dumangas, Iloilo, rendered its Decision,5 allowing the probate of the will of
the decedent and directing the issuance of letters testamentary to respondent.6
More than four (4) months later, or on 4 October 2001, herein petitioners filed a motion
for the reopening of the probate proceedings.7 Likewise, they filed an opposition to the
allowance of the will of the decedent, as well as the issuance of letters testamentary to
25
respondent,8 claiming that they are the intestate heirs of the decedent. Petitioners
claimed that the RTC did not acquire jurisdiction over the petition due to non-payment of
the correct docket fees, defective publication, and lack of notice to the other heirs.
Moreover, they alleged that the will could not have been probated because: (1) the
signature of the decedent was forged; (2) the will was not executed in accordance with
law, that is, the witnesses failed to sign below the attestation clause; (3) the decedent
lacked testamentary capacity to execute and publish a will; (4) the will was executed by
force and under duress and improper pressure; (5) the decedent had no intention to
make a will at the time of affixing of her signature; and (6) she did not know the
properties to be disposed of, having included in the will properties which no longer
belonged to her. Petitioners prayed that the letters testamentary issued to respondent be
withdrawn and the estate of the decedent disposed of under intestate succession.9
On 11 January 2002, the RTC issued an Order10 denying petitioners’ motion for being
unmeritorious. Resolving the issue of jurisdiction, the RTC held that petitioners were
deemed notified of the hearing by publication and that the deficiency in the payment of
docket fees is not a ground for the outright dismissal of the petition. It merely required
respondent to pay the deficiency.11 Moreover, the RTC’s Decision was already final and
executory even before petitioners’ filing of the motion to reopen.12
Petitioners thereafter filed a petition13 with an application for preliminary injunction with
the CA, seeking the annulment of the RTC’s Decision dated 30 May 2001
and Order dated 11 January 2002. They claimed that after the death of the decedent,
petitioners, together with respondent, held several conferences to discuss the matter of
dividing the estate of the decedent, with respondent agreeing to a one-sixth (1/6) portion
as his share. Petitioners allegedly drafted a compromise agreement to implement the
division of the estate. Despite receipt of the agreement, respondent refused to sign and
return the same. Petitioners opined that respondent feigned interest in participating in the
compromise agreement so that they would not suspect his intention to secure the
probate of the will.14 They claimed that they learnt of the probate proceedings only in July
of 2001, as a result of which they filed their motion to reopen the proceedings and admit
their opposition to the probate of the will only on 4 October 2001. They argued that the
RTC Decision should be annulled and set aside on the ground of extrinsic fraud and lack
of jurisdiction on the part of the RTC.15
In its Resolution16 promulgated on 28 February 2002, the CA dismissed the petition. It
found that there was no showing that petitioners failed to avail of or resort to the ordinary
remedies of new trial, appeal, petition for relief from judgment, or other appropriate
remedies through no fault of their own.17 Moreover, the CA declared as baseless
petitioners’ claim that the proceedings in the RTC was attended by extrinsic fraud.
Neither was there any showing that they availed of this ground in a motion for new trial or
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
petition for relief from judgment in the RTC, the CA added.18 Petitioners sought
reconsideration of the Resolution, but the same was denied by the CA for lack of merit.19
Petitioners now come to this Court, asserting that the CA committed grave abuse of
discretion amounting to lack of jurisdiction when it dismissed their petition for the alleged
failure to show that they have not availed of or resorted to the remedies of new trial,
appeal, petition for relief from judgment or other remedies through no fault of their own,
and held that petitioners were not denied their day in court during the proceedings before
the RTC.20 In addition, they assert that this Court has yet to decide a case involving Rule
47 of the Rules of Court and, therefore, the instant petition should be given due course
for the guidance of the bench and bar.21
For his part, respondent claims that petitioners were in a position to avail of the remedies
provided in Rules 37 and 38, as they in fact did when they filed a motion for new
trial.22 Moreover, they could have resorted to a petition for relief from judgment since they
learned of the RTC’s judgment only three and a half months after its
promulgation.23 Respondent likewise maintains that no extrinsic fraud exists to warrant
the annulment of the RTC’s Decision, since there was no showing that they were denied
their day in court. Petitioners were not made parties to the probate proceedings because
the decedent did not institute them as her heirs.24 Besides, assuming arguendo that
petitioners are heirs of the decedent, lack of notice to them is not a fatal defect since
personal notice upon the heirs is a matter of procedural convenience and not a
jurisdictional requisite.25 Finally, respondent charges petitioners of forum–shopping, since
the latter have a pending suit involving the same issues as those in SP No. 00-135, that
is SP No. 118126 filed before Branch 23, RTC of General Santos City and subsequently
pending on appeal before the CA in CA-G.R. No.74924.27
It appears that one of the petitioners herein, Dolores M. Flores ("Flores"), who is a niece
of the decedent, filed a petition for letters of administration with the RTC of General
Santos City, claiming that the decedent died intestate without any issue, survived by five
groups of collateral heirs. Flores, armed with a Special Power of Attorney from most of
the other petitioners, prayed for her appointment as administratrix of the estate of the
decedent. The RTC dismissed the petition on the ground of lack of jurisdiction, stating
that the probate court in Janiuay, Iloilo has jurisdiction since the venue for a petition for
the settlement of the estate of a decedent is the place where the decedent died. This is
also in accordance with the rule that the first court acquiring jurisdiction shall continue
hearing the case to the exclusion of other courts, the RTC added.28 On 9 January 2002,
Flores filed a Notice of Appeal 29 and on 28 January 2002, the case was ordered
forwarded to the CA.30
26
Petitioners maintain that they were not made parties to the case in which the decision
sought to be annulled was rendered and, thus, they could not have availed of the
ordinary remedies of new trial, appeal, petition for relief from judgment and other
appropriate remedies, contrary to the ruling of the CA. They aver that respondent’s offer
of a false compromise and his failure to notify them of the probate of the will constitute
extrinsic fraud that necessitates the annulment of the RTC’s judgment.31
The petition is devoid of merit.
Section 37 of the Rules of Court allows an aggrieved party to file a motion for new trial on
the ground of fraud, accident, mistake, or excusable negligence. The same
Rule permits the filing of a motion for reconsideration on the grounds of excessive award
of damages, insufficiency of evidence to justify the decision or final order, or that the
decision or final order is contrary to law.32 Both motions should be filed within the period
for taking an appeal, or fifteen (15) days from notice of the judgment or final order.
Meanwhile, a petition for relief from judgment under Section 3 of Rule 38 is resorted to
when a judgment or final order is entered, or any other proceeding is thereafter taken,
against a party in any court through fraud, accident, mistake, or excusable negligence.
Said party may file a petition in the same court and in the same case to set aside the
judgment, order or proceeding. It must be filed within sixty (60) days after the petitioner
learns of the judgment and within six (6) months after entry thereof.33
A motion for new trial or reconsideration and a petition for relief from judgment are
remedies available only to parties in the proceedings where the assailed
judgment is rendered.34 In fact, it has been held that a person who was never a party to
the case, or even summoned to appear therein, cannot avail of a petition for relief from
judgment.35
However, petitioners in this case are mistaken in asserting that they are not or have not
become parties to the probate proceedings.
Under the Rules of Court, any executor, devisee, or legatee named in a will, or any other
person interested in the estate may, at any time after the death of the testator, petition
the court having jurisdiction to have the will allowed.36 Notice of the time and place for
proving the will must be published for three (3) consecutive weeks, in a newspaper of
general circulation in the province,37 as well as furnished to the designated or other
known heirs, legatees, and devisees of the testator.38 Thus, it has been held that a
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
proceeding for the probate of a will is one in rem, such that with the corresponding
publication of the petition the court's jurisdiction extends to all persons interested in said
will or in the settlement of the estate of the decedent.39
Publication is notice to the whole world that the proceeding has for its object to bar
indefinitely all who might be minded to make an objection of any sort against the right
sought to be established. It is the publication of such notice that brings in the whole world
as a party in the case and vests the court with jurisdiction to hear and decide it.40 Thus,
even though petitioners were not mentioned in the petition for probate, they eventually
became parties thereto as a consequence of the publication of the notice of hearing.
As parties to the probate proceedings, petitioners could have validly availed of the
remedies of motion for new trial or reconsideration and petition for relief from judgment.
In fact, petitioners filed a motion to reopen, which is essentially a motion for new trial,
with petitioners praying for the reopening of the case and the setting of further
proceedings. However, the motion was denied for having been filed out of time, long
after the Decision became final and executory.
Conceding that petitioners became aware of the Decision after it had become final, they
could have still filed a petition for relief from judgment after the denial of their motion to
reopen. Petitioners claim that they learned of the Decision only on 4 October 2001, or
almost four (4) months from the time the Decision had attained finality. But they failed to
avail of the remedy.
For failure to make use without sufficient justification of the said remedies available to
them, petitioners could no longer resort to a petition for annulment of judgment;
otherwise, they would benefit from their own inaction or negligence.41
Even casting aside the procedural requisite, the petition for annulment of judgment must
still fail for failure to comply with the substantive requisites, as the appellate court ruled.
An action for annulment of judgment is a remedy in law independent of the case where
the judgment sought to be annulled was rendered.42 The purpose of such action is to
have the final and executory judgment set aside so that there will be a renewal of
litigation. It is resorted to in cases where the ordinary remedies of new trial, appeal,
petition for relief from judgment, or other appropriate remedies are no longer available
through no fault of the petitioner,43 and is based on only two grounds: extrinsic fraud, and
lack of jurisdiction or denial of due process.44 A person need not be a party to the
judgment sought to be annulled, and it is only essential that he can prove his allegation
27
that the judgment was obtained by the use of fraud and collusion and he would be
adversely affected thereby.45
An action to annul a final judgment on the ground of fraud lies only if the fraud is extrinsic
or collateral in character.46 Fraud is regarded as extrinsic where it prevents a party from
having a trial or from presenting his entire case to the court, or where it operates upon
matters pertaining not to the judgment itself but to the manner in which it is procured.
The overriding consideration when extrinsic fraud is alleged is that the fraudulent scheme
of the prevailing litigant prevented a party from having his day in court.47
To sustain their allegation of extrinsic fraud, petitioners assert that as a result of
respondent’s deliberate omission or concealment of their names, ages and residences
as the other heirs of the decedent in his petition for allowance of the will, they were not
notified of the proceedings, and thus they were denied their day in court. In addition, they
claim that respondent’s offer of a false compromise even before the filing of the petition
prevented them from appearing and opposing the petition for probate.
The Court is not convinced.
According to the Rules, notice is required to be personally given to known heirs,
legatees, and devisees of the testator.48 A perusal of the will shows that respondent was
instituted as the sole heir of the decedent. Petitioners, as nephews and nieces of the
decedent, are neither compulsory nor testate heirs49 who are entitled to be notified of the
probate proceedings under the Rules. Respondent had no legal obligation to mention
petitioners in the petition for probate, or to personally notify them of the same.
Besides, assuming arguendo that petitioners are entitled to be so notified, the purported
infirmity is cured by the publication of the notice. After all, personal notice upon the heirs
is a matter of procedural convenience and not a jurisdictional requisite.50
The non-inclusion of petitioners’ names in the petition and the alleged failure to
personally notify them of the proceedings do not constitute extrinsic fraud. Petitioners
were not denied their day in court, as they were not prevented from participating in the
proceedings and presenting their case before the probate court.
One other vital point is the issue of forum-shopping against petitioners. Forum-shopping
consists of filing multiple suits in different courts, either simultaneously or successively,
involving the same parties, to ask the courts to rule on the same or related causes and/or
to grant the same or substantially same reliefs,51 on the supposition that one or the other
court would make a favorable disposition.52 Obviously, the parties in the instant case, as
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
well as in the appealed case before the CA, are the same. Both cases deal with the
existence and validity of the alleged will of the decedent, with petitioners anchoring their
cause on the state of intestacy. In the probate proceedings, petitioners’ position has
always been that the decedent left no will and if she did, the will does not comply with the
requisites of a valid will. Indeed, that position is the bedrock of their present petition. Of
course, respondent maintains the contrary stance. On the other hand, in the petition for
letters of administration, petitioner Flores prayed for her appointment as administratrix of
the
estate on the theory that the decedent died intestate. The petition was dismissed on the
ground of lack of jurisdiction, and it is this order of dismissal which is the subject of
review in CA-G.R. No. 74924. Clearly, therefore, there is forum-shopping.
Moreover, petitioners failed to inform the Court of the said pending case in their
certification against forum- shopping. Neither have they done so at any time thereafter.
The Court notes that even in the petition for annulment of judgment, petitioners failed to
inform the CA of the pendency of their appeal in CA-G.R. No. 74924, even though the
notice of appeal was filed way before the petition for annulment of judgment was
instituted.
WHEREFORE, the petition is DENIED. Costs against petitioners.
SO ORDERED.
DIGEST: ALABAN VS. CA
FACTS:
Respondent Francisco filed a petition, for the probate of the Last Will and
Testament of the late Soledad, alleging that he was the heir of the decedent and the
executor of her will. The RTC rendered its Decision, allowing the probate of the will of the
decedent and directing the issuance of letters testamentary to respondent. More than
four months later, herein petitioners filed a motion for the reopening of the probate
proceedings.
The RTC issued an Order denying petitioners’ motion for being unmeritorious.
Petitioners thereafter filed a petition with an application for preliminary injunction with the
CA, seeking the annulment of the RTC’s Decision and Order. They claimed that they
learnt of the probate proceedings only in July of 2001. They argued that the RTC
Decision should be annulled and set aside on the ground of extrinsic fraud and lack of
28
jurisdiction on the part of the RTC due to non-payment of the correct docket fees,
defective publication, and lack of notice to the other heirs.
The CA dismissed the petition.
Petitioner’s motion for reconsideration was denied by the CA for lack of merit.
Hence, this recourse.
ISSUE: Whether or not the CA committed grave abuse of discretion amounting to lack of
jurisdiction when it dismissed their petition for the alleged failure to show that they have
not availed of or resorted to the remedies of new trial, appeal, petition for relief from
judgment or other remedies through no fault of their own.
HELD:
NO. The petition is devoid of merit.
Section 37 of the Rules of Court allows an aggrieved party to file a motion for new
trial on the ground of fraud, accident, mistake, or excusable negligence. The same Rule
permits the filing of a motion for reconsideration on the grounds of excessive award of
damages, insufficiency of evidence to justify the decision or final order, or that the
decision or final order is contrary to law.
Meanwhile, a petition for relief from judgment under Rule 38 is resorted to when a
judgment or final order is entered, or any other proceeding is thereafter taken, against a
party in any court through fraud, accident, mistake, or excusable negligence.
However, petitioners in this case are mistaken in asserting that they are not or have not
become parties to the probate proceedings.
In a petition for allowance of a will, notice of the time and place for proving the will
must be published for three consecutive weeks, in a newspaper of general circulation in
the province, as well as furnished to the designated or other known heirs, legatees, and
devisees of the testator.
Thus, it has been held that a proceeding for the probate of a will is one in rem,
such that with the corresponding publication of the petition the court’s jurisdiction extends
to all persons interested in said will or in the settlement of the estate of the decedent.
Publication is notice to the whole world that the proceeding has for its object to bar
indefinitely all who might be minded to make an objection of any sort against the right
sought to be established. It is the publication of such notice that brings in the whole world
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
as a party in the case and vests the court with jurisdiction to hear and decide it. Thus,
even though petitioners were not mentioned in the petition for probate, they eventually
became parties thereto as a consequence of the publication of the notice of hearing.
As parties to the probate proceedings, petitioners could have validly availed of the
remedies of motion for new trial or reconsideration and petition for relief from judgment.
In fact, petitioners filed a motion to reopen, which is essentially a motion for new trial,
with petitioners praying for the reopening of the case and the setting of further
proceedings. However, the motion was denied for having been filed out of time, long
after the Decision became final and executory.
Conceding that petitioners became aware of the Decision after it had become final,
they could have still filed a petition for relief from judgment after the denial of their motion
to reopen.
For failure to make use without sufficient justification of the said remedies available
to them, petitioners could no longer resort to a petition for annulment of judgment;
otherwise, they would benefit from their own inaction or negligence.
In the Matter of the Petition to Approve the Will of Leodegaria Julian. FELIX
BALANAY, JR.
VS. HON. ANTONIO M. MARTINEZ, Judge of the Court of First Instance of Davao,
Branch VI; AVELINA B. ANTONIO and DELIA B. LANABAN
G.R. No. L-39247
June 27, 1975
AQUINO, J.:
Felix Balanay, Jr. appealed by certiorari from the order of the Court of First Instance of
Davao dated February 28, 1974, declaring illegal and void the will of his mother,
Leodegaria Julian, converting the testate proceeding into an intestate proceeding and
ordering the issuance of the corresponding notice to creditors (Special Case No. 1808).
The antecedents of the appeal are as follows:
Leodegaria Julian, a native of Sta. Maria, Ilocos Sur, died on February 12, 1973 in Davao
City at the age of sixty-seven. She was survived by her husband, Felix Balanay, Sr., and
by their six legitimate children named Felix Balanay, Jr., Avelina B. Antonio, Beatriz B.
Solamo, Carolina B. Manguiob, Delia B. Lanaban and Emilia B. Pabaonon.
Felix J. Balanay, Jr. filed in the lower court a petition dated February 27, 1973 for the
probate of his mother's notarial will dated September 5, 1970 which is written in English.
29
In that will Leodegaria Julian declared (a) that she was the owner of the "southern half of
nine conjugal lots (par. II); (b) that she was the absolute owner of two parcels of land
which she inherited from her father (par. III), and (c) that it was her desire that her
properties should not be divided among her heirs during her husband's lifetime and that
their legitimes should be satisfied out of the fruits of her properties (Par. IV).
Then, in paragraph V of the will she stated that after her husband's death (he was eighty-
two years old in 1973) her paraphernal lands and all the conjugal lands (which she
described as "my properties") should be divided and distributed in the manner set forth in
that part of her will. She devised and partitioned the conjugal lands as if they were all
owned by her. She disposed of in the will her husband's one half share of the conjugal
assets. *
Felix Balanay, Sr. and Avelina B. Antonio opposed the probate of the will on the grounds
of lack of testamentary capacity, undue influence, preterition of the husband and alleged
improper partition of the conjugal estate. The oppositors claimed that Felix Balanay, Jr.
should collate certain properties which he had received from the testatrix.
Felix Balanay, Jr., in his reply to the opposition, attached thereto an affidavit of Felix
Balanay, Sr. dated April 18, 1973 wherein he withdrew his opposition to the probate of
the will and affirmed that he was interested in its probate. On the same date Felix
Balanay, Sr. signed an instrument captioned "Conformation (sic) of Division and
Renunciation of Hereditary Rights" wherein he manifested that out of respect for his
wife's will he "waived and renounced' his hereditary rights in her estate in favor of their
six children. In that same instrument he confirmed the agreement, which he and his wife
had perfected before her death, that their conjugal properties would be partitioned in the
manner indicated in her will.
Avelina B. Antonio, an oppositor, in her rejoinder contended that the affidavit and
"conformation" of Felix Balanay, Sr. were void. The lower court in its order of June 18,
1973 "denied" the opposition and reset for hearing the probate of the will. It gave effect to
the affidavit and conformity of Felix Balanay, Sr. In an order dated August 28, 1973 it
appointed its branch clerk of court as special administrator of the decedent's estate.
Mrs. Antonio moved for the reconsideration of the lower court's order of June 18, 1973
on the grounds (a) that the testatrix illegally claimed that she was the owner of the
southern half of the conjugal lots and (b) that she could not partition the conjugal estate
by allocating portions of the nine lots to her children. Felix Balanay, Jr., through his
counsel, Hermenegildo Cabreros, opposed that motion. The lower court denied it in its
order of October 15, 1973.
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
In the meanwhile, another lawyer appeared in the case. David O. Montaña, Sr., claiming
to be the lawyer of petitioner Felix Balanay, Jr. (his counsel of record was Atty.
Cabreros), filed a motion dated September 25, 1973 for "leave of court to withdraw
probate of alleged will of Leodegaria Julian and requesting authority to proceed by
intestate estate proceeding." In that motion Montaña claimed to be the lawyer not only of
the petitioner but also of Felix Balanay, Sr., Beatriz B. Solamo, Carolina B. Manguiob
and Emilia B. Pabaonon.
Montaña in his motion assailed the provision of the will which partitioned the conjugal
assets or allegedly effected a compromise of future legitimes. He prayed that the probate
of the will be withdrawn and that the proceeding be converted into an intestate
proceeding. In another motion of the same date he asked that the corresponding notice
to creditors be issued.
Avelina B. Antonio and Delia B. Lanaban, through Atty. Jose B. Guyo, in their comments
dated October 15, 1973 manifested their conformity with the motion for the issuance of a
notice to creditors. They prayed that the will be declared void for being contrary to law
and that an intestacy be declared.
The lower court, acting on the motions of Atty. Montaña, assumed that the issuance of a
notice to creditors was in order since the parties had agreed on that point. It adopted the
view of Attys. Montaña and Guyo that the will was void. So, in its order of February 28,
1974 it dismissed the petition for the probate, converted the testate proceeding into an
intestate proceeding, ordered the issuance of a notice to creditors and set the intestate
proceeding for hearing on April 1 and 2, 1974. The lower court did not abrogate its prior
orders of June 18 and October 15, 1973. The notice to creditors was issued on April 1,
1974 and published on May 2, 9 and 16 in the Davao Star in spite of petitioner's motion
of April 17, 1974 that its publication be held in abeyance.
Felix Balanay, Jr., through a new counsel, Roberto M. Sarenas, in a verified motion
dated April 15, 1974, asked for the reconsideration of the lower court's order of February
28, 1974 on the ground that Atty. Montaña had no authority to withdraw the petition for
the allowance of the will. Attached to the motion was a copy of a letter dated March 27,
1974 addressed to Atty. Montaña and signed by Felix Balanay, Jr., Beatriz V. Solamo,
Carolina B. Manguiob and Emilia B. Pabaonon, wherein they terminated Montaña's
services and informed him that his withdrawal of the petition for the probate of the will
was without their consent and was contrary to their repeated reminder to him that their
mother's will was "very sacred" to them.
30
Avelina B. Antonio and Delia B. Lanaban opposed the motion for reconsideration. The
lower court denied the motion in its order of June 29, 1974. It clarified that it declared the
will void on the basis of its own independent assessment of its provisions and not
because of Atty. Montaña's arguments.
The basic issue is whether the probate court erred in passing upon the intrinsic validity of
the will, before ruling on its allowance or formal validity, and in declaring it void.
We are of the opinion that in view of certain unusual provisions of the will, which are of
dubious legality, and because of the motion to withdraw the petition for probate (which
the lower court assumed to have been filed with the petitioner's authorization), the trial
court acted correctly in passing upon the will's intrinsic validity even before its formal
validity had been established. The probate of a will might become an idle ceremony if on
its face it appears to be intrinsically void. Where practical considerations demand that the
intrinsic validity of the will be passed upon, even before it is probated, the court should
meet the issue (Nuguid vs. Nuguid, 64 O.G. 1527, 17 SCRA 449. Compare with
Sumilang vs. Ramagosa, L-23135, December 26, 1967, 21 SCRA 1369; Cacho vs.
Udan, L-19996, April 30, 1965, 13 SCRA 693). 1äwphï1.ñët
But the probate court erred in declaring, in its order of February 28, 1974 that the will
was void and in converting the testate proceeding into an intestate proceeding
notwithstanding the fact that in its order of June 18, 1973 , it gave effect to the surviving
husband's conformity to the will and to his renunciation of his hereditary rights which
presumably included his one-half share of the conjugal estate.
The rule is that "the invalidity of one of several dispositions contained in a will does not
result in the invalidity of the other dispositions, unless it is to be presumed that the
testator would not have made such other dispositions if the first invalid disposition had
not been made" (Art. 792, Civil Code). "Where some of the provisions of a will are valid
and others invalid, the valid parts will be upheld if they can be separated from the invalid
without defeating the intention of the testator or interfering with the general testamentary
scheme, or doing injustice to the beneficiaries" (95 C.J.S. 873).
The statement of the testatrix that she owned the "southern half of the conjugal lands is
contrary to law because, although she was a coowner thereof, her share was inchoate
and proindiviso (Art. 143, Civil Code; Madrigal and Paterno vs. Rafferty and Concepcion,
38 Phil. 414). But That illegal declaration does not nullify the entire will. It may be
disregarded.
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
The provision of the will that the properties of the testatrix should not be divided among
her heirs during her husband's lifetime but should be kept intact and that the legitimes
should be paid in cash is contrary to article 1080 of the Civil Code which reads:
ART. 1080. Should a person make a partition of his estate by an act inter
vivos, or by will, such partition shall be respected, insofar as it does not
prejudice the legitime of the compulsory heirs.
A parent who, in the interest of his or her family, to keep any agricultural,
industrial, or manufacturing enterprise intact, may avail himself of the
right granted him in this article, by ordering that the legitime of the other
children to whom the property is not assigned be paid in cash. (1056a)
The testatrix in her will made a partition of the entire conjugal estate among her six
children (her husband had renounced his hereditary rights and his one-half conjugal
share). She did not assign the whole estate to one or more children as envisaged in
article 1080. Hence, she had no right to require that the legitimes be paid in cash. On the
other hand, her estate may remain undivided only for a period of twenty years. So, the
provision that the estate should not be divided during her husband's lifetime would at
most be effective only for twenty years from the date of her death unless there are
compelling reasons for terminating the coownership (Art. 1083, Civil Code).
Felix Balanay, Sr. could validly renounce his hereditary rights and his one-half share of
the conjugal partnership (Arts. 179[1] and 1041, Civil Code) but insofar as said
renunciation partakes of a donation of his hereditary rights and his one-half share in the
conjugal estate (Art. 1060[1] Civil Code), it should be subject to the limitations prescribed
in articles 750 and 752 of the Civil Code. A portion of the estate should be adjudicated to
the widower for his support and maintenance. Or at least his legitime should be
respected.
Subject to the foregoing observations and the rules on collation, the will is intrinsically
valid and the partition therein may be given effect if it does not prejudice the creditors
and impair the legitimes. The distribution and partition would become effective upon the
death of Felix Balanay, Sr. In the meantime, the net income should be equitably divided
among the children and the surviving spouse.
It should be stressed that by reason of the surviving husband's conformity to his wife's
will and his renunciation of his hereditary rights, his one-half conjugal share became a
part of his deceased wife's estate. His conformity had the effect of validating the partition
31
made in paragraph V of the will without prejudice, of course, to the rights of the creditors
and the legitimes of the compulsory heirs.
Article 793 of the Civil Code provides that "property acquired after the making of a will
shall only pass thereby, as if the testator had it at the time of making the will, should it
expressly appear by the will that such was his intention". Under article 930 of the Civil
Code "the legacy or devise of a thing belonging to another person is void, if the testator
erroneously believed that the thing pertained to him. But if the thing bequeathed, though
not belonging to the testator when he made the will, afterwards becomes his, by
whatever title, the disposition shall take effect."
In the instant case there is no doubt that the testatrix and her husband intended to
partition the conjugal estate in the manner set forth in paragraph V of her will. It is true
that she could dispose of by will only her half of the conjugal estate (Art. 170, Civil Code)
but since the husband, after the dissolution of the conjugal partnership, had assented to
her testamentary partition of the conjugal estate, such partition has become valid,
assuming that the will may be probated.
The instant case is different from the Nuguid case, supra, where the testatrix instituted as
heir her sister and preterited her parents. Her will was intrinsically void because it
preterited her compulsory heirs in the direct line. Article 854 of the Civil Code provides
that "the preterition or omission of one, some, or all of the compulsory heirs in
the direct line, whether living at the time of the execution of the will or born after the
death of the testator, shall annul the institution of heir; but the devises and legacies, shall
be valid insofar as they are not inofficious." Since the preterition of the parents annulled
the institution of the sister of the testatrix and there were no legacies and devises, total
intestacy resulted (.Art. 960[2], Civil Code).1äw phï1.ñët
In the instant case, the preterited heir was the surviving spouse. His preterition did not
produce intestacy. Moreover, he signified his conformity to his wife's will and renounced
his hereditary rights. .
It results that the lower court erred in not proceeding with the probate of the will as
contemplated in its uncancelled order of June 18, 1973. Save in an extreme case where
the will on its face is intrinsically void, it is the probate court's duty to pass first upon the
formal validity of the will. Generally, the probate of the will is mandatory (Art. 838, Civil
Code; Guevara vs. Guevara, 74 Phil. 479 and 98 Phil. 249; Fernandez vs. Dimagiba, L-
23638, October 12, 1967, 21 SCRA 428).
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
As aptly stated by Mr. Justice Barredo, "the very existence of a purported testament is in
itself prima facie proof that the supposed testator has willed that his estate should be
distributed in the manner therein provided, and it is incumbent upon the state that, if
legally tenable, such desire be given effect independent of the attitude of the parties
affected thereby" (Resolution, Vda. de Precilla vs. Narciso, L-27200, August 18, 1972, 46
SCRA 538, 565).
To give effect to the intention and wishes of the testatrix is the first and principal law in
the matter of testaments (Dizon-Rivera vs. Dizon, L-24561, June 30, 1970, 33 SCRA
554, 561). Testacy is preferable to intestacy. An interpretation that will render a
testamentary disposition operative takes precedence over a construction that will nullify a
provision of the will (Arts. 788 and 791, Civil Code).
Testacy is favored. Doubts are resolved in favor of testacy especially where the will
evinces an intention on the part of the testator to dispose of practically his whole estate.
So compelling is the principle that intestacy should be avoided and that the wishes of the
testator should prevail that sometimes the language of the will can be varied for the
purpose of giving it effect (Austria vs. Reyes, L-23079, February 27, 1970, 31 SCRA 754,
762).
As far as is legally possible, the expressed desire of the testator must be followed and
the dispositions of the properties in his will should be upheld (Estorque vs. Estorque, L-
19573, June 30, 1970, 33 SCRA 540, 546).
The law has a tender regard for the wishes of the testator as expressed in his will
because any disposition therein is better than that which the law can make (Castro vs.
Bustos, L-25913, February 28, 1969, 27 SCRA 327, 341).
Two other errors of the lower court may be noticed. It erred in issuing a notice to
creditors although no executor or regular administrator has been appointed. The record
reveals that it appointed a special administrator. A notice to creditors is not in order if
only a special administrator has been appointed. Section 1, Rule 86 of the Rules of
Court, in providing that "immediately after granting letters of testamentary or of
administration, the court shall issue a notice requiring all persons having money claims
against the decedent to file them in the office of the clerk of said court" clearly
contemplates the appointment of an executor or regular administrator and not that of a
special administrator.
32
It is the executor or regular administrator who is supposed to oppose the claims against
the estate and to pay such claims when duly allowed (See. 10, Rule 86 and sec. 1, Rule
88, Rules of Court).
We also take this occasion to point out that the probate court's appointment of its branch
clerk of court as special administrator (p. 30, Rollo) is not a salutary practice because it
might engender the suspicion that the probate Judge and his clerk of court are in cahoots
in milking the decedent's estate. Should the branch clerk of court commit any abuse or
devastavit in the course of his administration, the probate Judge might find it difficult to
hold him to a strict accountability. A court employee should devote his official time to his
official duties and should not have as a sideline the administration of a decedent's estate.
WHEREFORE, the lower court's orders of February 28, and June 29, 1974 are set aside
and its order of June 18, 1973, setting for hearing the petition for probate, is affirmed.
The lower court is directed to conduct further proceedings in Special Case No. 1808 in
consonance with this opinion. Costs, against the private respondents.
SO ORDERED.
DIGEST: BALANAY VS. MARTINEZ
FACTS:
The case is about the probate of the will of Leodegaria Julian, who made
provisions in her will that after her husband's death all her paraphernal lands and all the
conjugal lands should be divided and distributed in the manner set forth in that part of her
will. She devised and partitioned the conjugal lands as if they were all owned by her. She
disposed of in the will her husband's one half share of the conjugal assets. The private
respondent Antonio opposed the probate of the will on the grounds of lack of
testamentary capacity, undue influence, preterition of the husband and alleged improper
partition of the conjugal estate. Meanwhile, another lawyer who claims to be the counsel
for the petitoner seek to withdraw the probate of the will and convert the proceeding into
intestate proceeding. He assailed the provision of the will which partitioned the conjugal
assets or allegedly effected a compromise of future legitimes.
The RTC agreed with the view of the lawyer that the will was void so it dismissed
the petition for probate and converted the testate proceeding into intestate.
ISSUE: Whether the probate court erred in passing upon the intrinsic validity of the will,
before ruling on its allowance or formal validity, and in declaring it void.
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
HELD:
NO.
The court agreed with the trial court and declared that the trial court acted correctly
in passing upon the will's intrinsic validity even before its formal validity had been
established. The probate of a will might become an idle ceremony if on its face it appears
to be intrinsically void. However, the court also ruled that the probate court erred in
declaring that the will is void and in converting the testate proceeding into an intestate
proceeding.
The Court cited the rules, "the invalidity of one of several dispositions contained in
a will does not result in the invalidity of the other dispositions, unless it is to be presumed
that the testator would not have made such other dispositions if the first invalid
disposition had not been made" (Art. 792, Civil Code). "Where some of the provisions of
a will are valid and others invalid, the valid parts will be upheld if they can be separated
from the invalid without defeating the intention of the testator or interfering with the
general testamentary scheme, or doing injustice to the beneficiaries" Testacy is favored.
Doubts are resolved in favor of testacy especially where the will evinces an intention on
the part of the testator to dispose of practically his whole estate. So compelling is the
principle that intestacy should be avoided and that the wishes of the testator should
prevail that sometimes the language of the will can be varied for the purpose of giving it
effect.
SOFIA J. NEPOMUCENO
VS. CA, RUFINA GOMEZ, OSCAR JUGO ANG, CARMELITA JUGO
G.R. No. L-62952
October 9, 1985
GUTIERREZ , JR., J.:
This is a petition for certiorari to set aside that portion of the decision of the respondent
Court of Appeals (now intermediate Appellate Court) dated June 3, 1982, as amended by
the resolution dated August 10, 1982, declaring as null and void the devise in favor of the
petitioner and the resolution dated December 28, 1982 denying petitioner's motion for
reconsideration.
Martin Jugo died on July 16, 1974 in Malabon, Rizal. He left a last Will and Testament
duly signed by him at the end of the Will on page three and on the left margin of pages 1,
2 and 4 thereof in the presence of Celestina Alejandro, Myrna C. Cortez, and Leandro
Leano, who in turn, affixed their signatures below the attestation clause and on the left
margin of pages 1, 2 and 4 of the Will in the presence of the testator and of each other
33
and the Notary Public. The Will was acknowledged before the Notary Public Romeo
Escareal by the testator and his three attesting witnesses.
In the said Will, the testator named and appointed herein petitioner Sofia J. Nepomuceno
as his sole and only executor of his estate. It is clearly stated in the Will that the testator
was legally married to a certain Rufina Gomez by whom he had two legitimate children,
Oscar and Carmelita, but since 1952, he had been estranged from his lawfully wedded
wife and had been living with petitioner as husband and wife. In fact, on December 5,
1952, the testator Martin Jugo and the petitioner herein, Sofia J. Nepomuceno were
married in Victoria, Tarlac before the Justice of the Peace. The testator devised to his
forced heirs, namely, his legal wife Rufina Gomez and his children Oscar and Carmelita
his entire estate and the free portion thereof to herein petitioner. The Will reads in part:
Art. III. That I have the following legal heirs, namely: my aforementioned legal wife,
Rufina Gomez, and our son, Oscar, and daughter Carmelita, both surnamed Jugo, whom
I declare and admit to be legally and properly entitled to inherit from me; that while I have
been estranged from my above-named wife for so many years, I cannot deny that I was
legally married to her or that we have been separated up to the present for reasons and
justifications known fully well by them:
Art. IV. That since 1952, 1 have been living, as man and wife with one Sofia J.
Nepomuceno, whom I declare and avow to be entitled to my love and affection, for all the
things which she has done for me, now and in the past; that while Sofia J. Nepomuceno
has with my full knowledge and consent, did comport and represent myself as her own
husband, in truth and in fact, as well as in the eyes of the law, I could not bind her to me
in the holy bonds of matrimony because of my aforementioned previous marriage;
On August 21, 1974, the petitioner filed a petition for the probate of the last Will and
Testament of the deceased Martin Jugo in the Court of First Instance of Rizal, Branch
XXXIV, Caloocan City and asked for the issuance to her of letters testamentary.
On May 13, 1975, the legal wife of the testator, Rufina Gomez and her children filed an
opposition alleging inter alia that the execution of the Will was procured by undue and
improper influence on the part of the petitioner; that at the time of the execution of the
Will, the testator was already very sick and that petitioner having admitted her living in
concubinage with the testator, she is wanting in integrity and thus, letters testamentary
should not be issued to her.
On January 6, 1976, the lower court denied the probate of the Will on the ground that as
the testator admitted in his Will to cohabiting with the petitioner from December 1952
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
until his death on July 16, 1974, the Will's admission to probate will be an Idle exercise
because on the face of the Will, the invalidity of its intrinsic provisions is evident.
The petitioner appealed to the respondent-appellate court.
On June 2, 1982, the respondent court set aside the decision of the Court of First
Instance of Rizal denying the probate of the will. The respondent court declared the Will
to be valid except that the devise in favor of the petitioner is null and void pursuant to
Article 739 in relation with Article 1028 of the Civil Code of the Philippines. The
dispositive portion of the decision reads:
WHEREFORE, the decision a quo is hereby set aside, the will in question declared valid
except the devise in favor of the appellant which is declared null and void. The properties
so devised are instead passed on in intestacy to the appellant in equal shares, without
pronouncement as to cost.
On June 15, 1982, oppositors Rufina Gomez and her children filed a "Motion for
Correction of Clerical Error" praying that the word "appellant" in the last sentence of the
dispositive portion of the decision be changed to "appellees" so as to read: "The
properties so devised are instead passed on intestacy to the appellees in equal shares,
without pronouncement as to costs." The motion was granted by the respondent court on
August 10, 1982.
On August 23, 1982, the petitioner filed a motion for reconsideration. This was denied by
the respondent court in a resolution dated December 28, 1982.
The main issue raised by the petitioner is whether or not the respondent court acted in
excess of its jurisdiction when after declaring the last Will and Testament of the
deceased Martin Jugo validly drawn, it went on to pass upon the intrinsic validity of the
testamentary provision in favor of herein petitioner.
The petitioner submits that the validity of the testamentary provision in her favor cannot
be passed upon and decided in the probate proceedings but in some other proceedings
because the only purpose of the probate of a Will is to establish conclusively as against
everyone that a Will was executed with the formalities required by law and that the
testator has the mental capacity to execute the same. The petitioner further contends
that even if the provisions of paragraph 1 of Article 739 of the Civil Code of the
Philippines were applicable, the declaration of its nullity could only be made by the
proper court in a separate action brought by the legal wife for the specific purpose of
34
obtaining a declaration of the nullity of the testamentary provision in the Will in favor of
the person with whom the testator was allegedly guilty of adultery or concubinage.
The respondents on the other hand contend that the fact that the last Will and Testament
itself expressly admits indubitably on its face the meretricious relationship between the
testator and the petitioner and the fact that petitioner herself initiated the presentation of
evidence on her alleged ignorance of the true civil status of the testator, which led private
respondents to present contrary evidence, merits the application of the doctrine
enunciated in Nuguid v. Felix Nuguid, et al. (17 SCRA 449) and Felix Balanay, Jr. v. Hon.
Antonio Martinez, et al. (G.R. No. L- 39247, June 27, 1975). Respondents also submit
that the admission of the testator of the illicit relationship between him and the petitioner
put in issue the legality of the devise. We agree with the respondents.
The respondent court acted within its jurisdiction when after declaring the Will to be
validly drawn, it went on to pass upon the intrinsic validity of the Will and declared the
devise in favor of the petitioner null and void.
The general rule is that in probate proceedings, the court's area of inquiry is limited to an
examination and resolution of the extrinsic validity of the Will. The rule is expressed thus:
xxx xxx xxx
... It is elementary that a probate decree finally and definitively settles all questions
concerning capacity of the testator and the proper execution and witnessing of his last
Will and testament, irrespective of whether its provisions are valid and enforceable or
otherwise. (Fernandez v. Dimagiba, 21 SCRA 428)
The petition below being for the probate of a Will, the court's area of inquiry is limited to
the extrinsic validity thereof. The testators testamentary capacity and the compliance
with the formal requisites or solemnities prescribed by law are the only questions
presented for the resolution of the court. Any inquiry into the intrinsic validity or efficacy
of the provisions of the will or the legality of any devise or legacy is premature.
xxx xxx xxx
True or not, the alleged sale is no ground for the dismissal of the petition for probate.
Probate is one thing; the validity of the testamentary provisions is another. The first
decides the execution of the document and the testamentary capacity of the testator; the
second relates to descent and distribution (Sumilang v. Ramagosa, 21 SCRA 1369)
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
xxx xxx xxx
To establish conclusively as against everyone, and once for all, the facts that a will was
executed with the formalities required by law and that the testator was in a condition to
make a will, is the only purpose of the proceedings under the new code for the probate of
a will. (Sec. 625). The judgment in such proceedings determines and can determine
nothing more. In them the court has no power to pass upon the validity of any provisions
made in the will. It can not decide, for example, that a certain legacy is void and another
one valid. ... (Castaneda v. Alemany, 3 Phil. 426)
The rule, however, is not inflexible and absolute. Given exceptional circumstances, the
probate court is not powerless to do what the situation constrains it to do and pass upon
certain provisions of the Will.
In Nuguid v. Nuguid (17 SCRA 449) cited by the trial court, the testator instituted the
petitioner as universal heir and completely preterited her surviving forced heirs. A will of
this nature, no matter how valid it may appear extrinsically, would be null and void.
Separate or latter proceedings to determine the intrinsic validity of the testamentary
provisions would be superfluous.
Even before establishing the formal validity of the will, the Court in Balanay .Jr. v.
Martinez (64 SCRA 452) passed upon the validity of its intrinsic provisions.
Invoking "practical considerations", we stated:
The basic issue is whether the probate court erred in passing upon the intrinsic validity of
the will, before ruling on its allowance or formal validity, and in declaring it void.
We are of the opinion that in view of certain unusual provisions of the will, which are of
dubious legality, and because of the motion to withdraw the petition for probate (which
the lower court assumed to have been filed with the petitioner's authorization) the trial
court acted correctly in passing upon the will's intrinsic validity even before its formal
validity had been established. The probate of a will might become an Idle ceremony if on
its face it appears to be intrinsically void. Where practical considerations demand that the
intrinsic validity of the will be passed upon, even before it is probated, the court should
meet the issue (Nuguid v. Nuguid, 64 O.G. 1527, 17 SCRA 449. Compare with Sumilang
vs. Ramagosa L-23135, December 26, 1967, 21 SCRA 1369; Cacho v. Udan L-19996,
April 30, 1965, 13 SCRA 693).
35
There appears to be no more dispute at this time over the extrinsic validity of the Will.
Both parties are agreed that the Will of Martin Jugo was executed with all the formalities
required by law and that the testator had the mental capacity to execute his Will. The
petitioner states that she completely agrees with the respondent court when in resolving
the question of whether or not the probate court correctly denied the probate of Martin
Jugo's last Will and Testament, it ruled:
This being so, the will is declared validly drawn. (Page 4, Decision, Annex A of Petition.)
On the other hand the respondents pray for the affirmance of the Court of Appeals'
decision in toto.
The only issue, therefore, is the jurisdiction of the respondent court to declare the
testamentary provision in favor of the petitioner as null and void.
We sustain the respondent court's jurisdiction. As stated in Nuguid v. Nuguid, (supra):
We pause to reflect. If the case were to be remanded for probate of the will, nothing will
be gained. On the contrary, this litigation will be protracted. And for aught that appears in
the record, in the record, in the event of probate or if the court rejects the will, probability
exists that the case will come up once again before us on the same issue of the intrinsic
validity or nullity of the will. Result, waste of time, effort, expense, plus added anxiety.
These are the practical considerations that induce us to a belief that we might as well
meet head-on the issue of the validity of the provisions of the will in question. (Section 2,
Rule 1, Rules of Court. Case, et al. v. Jugo, et al., 77 Phil. 517, 522). After all, there
exists a justiciable controversy crying for solution.
We see no useful purpose that would be served if we remand the nullified provision to
the proper court in a separate action for that purpose simply because, in the probate of a
will, the court does not ordinarily look into the intrinsic validity of its provisions.
Article 739 of the Civil Code provides: The following donations shall be void:
(1) Those made between persons who were guilty of adultery or concubinage at
the time of the donation;
(2) Those made between persons found guilty of the same criminal offense, in
consideration thereof;
(3) Those made to a public officer or his wife, descendants and ascendants, by
reason of his office.
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
In the case referred to in No. 1, the action for declaration of nullity may be brought by the
spouse of the donor or donee; and the guilt of the donor and donee may be proved by
preponderance of evidence in the same action.
Article 1028 of the Civil Code provides:
The prohibitions mentioned in Article 739, concerning donations inter vivos shall apply to
testamentary provisions.
In Article III of the disputed Will, executed on August 15, 1968, or almost six years before
the testator's death on July 16, 1974, Martin Jugo stated that respondent Rufina Gomez
was his legal wife from whom he had been estranged "for so many years." He also
declared that respondents Carmelita Jugo and Oscar Jugo were his legitimate children.
In Article IV, he stated that he had been living as man and wife with the petitioner since
1952. Testator Jugo declared that the petitioner was entitled to his love and affection. He
stated that Nepomuceno represented Jugo as her own husband but "in truth and in fact,
as well as in the eyes of the law, I could not bind her to me in the holy bonds of
matrimony because of my aforementioned previous marriage.
There is no question from the records about the fact of a prior existing marriage when
Martin Jugo executed his Will. There is also no dispute that the petitioner and Mr. Jugo
lived together in an ostensible marital relationship for 22 years until his death.
It is also a fact that on December 2, 1952, Martin Jugo and Sofia J. Nepomuceno
contracted a marriage before the Justice of the Peace of Victoria, Tarlac. The man was
then 51 years old while the woman was 48. Nepomuceno now contends that she acted in
good faith for 22 years in the belief that she was legally married to the testator.
The records do not sustain a finding of innocence or good faith. As argued by the private
respondents:
First. The last will and testament itself expressly admits indubitably on its face
the meretricious relationship between the testator and petitioner, the devisee.
Second. Petitioner herself initiated the presentation of evidence on her alleged
ignorance of the true civil status of the testator, which led private respondents to
present contrary evidence.
In short, the parties themselves dueled on the intrinsic validity of the legacy given in the
will to petitioner by the deceased testator at the start of the proceedings.
36
Whether or not petitioner knew that testator Martin Jugo, the man he had lived with as
man and wife, as already married, was an important and specific issue brought by the
parties before the trial court, and passed upon by the Court of Appeals.
Instead of limiting herself to proving the extrinsic validity of the will, it was petitioner who
opted to present evidence on her alleged good faith in marrying the testator. (Testimony
of Petitioner, TSN of August 1, 1982, pp. 56-57 and pp. 62-64).
Private respondents, naturally, presented evidence that would refute the testimony of
petitioner on the point.
Sebastian Jugo, younger brother of the deceased testator, testified at length on the
meretricious relationship of his brother and petitioner. (TSN of August 18,1975).
Clearly, the good faith of petitioner was by option of the parties made a decisive issue
right at the inception of the case.
Confronted by the situation, the trial court had to make a ruling on the question.
When the court a quo held that the testator Martin Jugo and petitioner 'were deemed
guilty of adultery or concubinage', it was a finding that petitioner was not the innocent
woman she pretended to be.
xxx xxx xxx
3. If a review of the evidence must be made nonetheless, then private respondents
respectfully offer the following analysis:
FIRST: The secrecy of the marriage of petitioner with the deceased testator in a town in
Tarlac where neither she nor the testator ever resided. If there was nothing to hide from,
why the concealment' ? Of course, it maybe argued that the marriage of the deceased
with private respondent Rufina Gomez was likewise done in secrecy. But it should be
remembered that Rufina Gomez was already in the family way at that time and it would
seem that the parents of Martin Jugo were not in favor of the marriage so much so that
an action in court was brought concerning the marriage. (Testimony of Sebastian Jugo,
TSN of August 18, 1975, pp. 29-30)
SECOND: Petitioner was a sweetheart of the deceased testator when they were still both
single. That would be in 1922 as Martin Jugo married respondent Rufina Gomez on
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
November 29, 1923 (Exh. 3). Petitioner married the testator only on December 5, 1952.
There was a space of about 30 years in between. During those 30 years, could it be
believed that she did not even wonder why Martin Jugo did not marry her nor contact her
anymore after November, 1923 - facts that should impel her to ask her groom before she
married him in secrecy, especially so when she was already about 50 years old at the
time of marriage.
THIRD: The fact that petitioner broke off from Martin Jugo in 1923 is by itself conclusive
demonstration that she new that the man she had openly lived for 22 years as man and
wife was a married man with already two children.
FOURTH: Having admitted that she knew the children of respondent Rufina Gomez, is it
possible that she would not have asked Martin Jugo whether or not they were his
illegitimate or legitimate children and by whom? That is un-Filipino.
FIFTH: Having often gone to Pasig to the residence of the parents of the deceased
testator, is it possible that she would not have known that the mother of private
respondent Oscar Jugo and Carmelita Jugo was respondent Rufina Gomez, considering
that the houses of the parents of Martin Jugo (where he had lived for many years) and
that of respondent Rufina Gomez were just a few meters away?
Such pretentions of petitioner Sofia Nepomuceno are unbelievable. They are, to say the
least, inherently improbable, for they are against the experience in common life and the
ordinary instincts and promptings of human nature that a woman would not bother at all
to ask the man she was going to marry whether or not he was already married to
another, knowing that her groom had children. It would be a story that would strain
human credulity to the limit if petitioner did not know that Martin Jugo was already a
married man in view of the irrefutable fact that it was precisely his marriage to
respondent Rufina Gomez that led petitioner to break off with the deceased during their
younger years.
Moreover, the prohibition in Article 739 of the Civil Code is against the making of a
donation between persons who are living in adultery or concubinage. It is
the donation which becomes void. The giver cannot give even assuming that the
recipient may receive. The very wordings of the Will invalidate the legacy because the
testator admitted he was disposing the properties to a person with whom he had been
living in concubinage.
WHEREFORE, the petition is DISMISSED for lack of merit. The decision of the Court of
Appeals, now Intermediate Appellate Court, is AFFIRMED. No costs. SO ORDERED.
37
DIGEST: NEPUMOCENO VS. CA
FACTS:
Martin Jugo left a duly executed and notarized Last Will and Testament before he
died. Petitioner was named as sole executor. It is clearly stated in the Will that he was
legally married to a certain Rufina Gomez by whom he had two legitimate children, but
he had been estranged from his lawful wife. In fact, the testator Martin Jugo and the
petitioner were married despite the subsisting first marriage. The testator devised the
free portion of his estate to petitioner. On August 21, 1974, the petitioner filed a petition
for probate. On May 13, 1975, Rufina Gomez and her children filed an opposition
alleging undue and improper influence on the part of the petitioner; that at the time of the
execution of the Will, the testator was already very sick and that petitioner having
admitted her living in concubinage with the testator.
The lower court denied the probate of the Will on the ground that as the testator
admitted in his Will to cohabiting with the petitioner. Petitioner appealed to CA. On June
2, 1982, the respondent court set aside the decision of the Court of First Instance of
Rizal denying the probate of the will. The respondent court declared the Will to be valid
except that the devise in favor of the petitioner is null and void.
ISSUE: W/N the CA acted in excess of its jurisdiction when after declaring the last Will
and Testament of the deceased Martin Jugo validly drawn, it went on to pass upon
the intrinsic validity of the testamentary provision.
HELD:
NO. The respondent court acted within its jurisdiction when after declaring the
Will to be validly drawn, it went on to pass upon the intrinsic validity of the Will and
declared the devise in favor of the petitioner null and void. The general rule is that in
probate proceedings, the court’s area of inquiry is limited to an examination and
resolution of the extrinsic validity of the Will. The rule, however, is not inflexible and
absolute. Given exceptional circumstances, the probate court is not powerless to do what
the situation constrains it to do and pass upon certain provisions of the Will.
The probate of a will might become an idle ceremony if on its face it appears to
be intrinsically void. Where practical considerations demand that the intrinsic validity of
the will be passed upon, even before it is probated, the court should meet the issue
(Nuguid v. Nuguid) The Will is void under Article 739. The following donations shall be
void: (1) Those made between persons who were guilty of adultery or concubinage at the
time of the donation; and Article 1028. The prohibitions mentioned in Article 739,
concerning donations inter vivos shall apply to testamentary provisions.
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
There is no question from the records about the fact of a prior existing marriage
when Martin Jugo executed his Will. The very wordings of the Will invalidate the legacy
because the testator admitted he was disposing the properties to a person with whom he
had been living in concubinage.
IN RE: IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF
RUPERTA PALAGANAS WITH PRAYER FOR THE APPOINTMENT OF SPECIAL
ADMINISTRATOR, MANUEL MIGUEL PALAGANAS AND BENJAMIN GREGORIO
PALAGANAS, Petitioners, v. ERNESTO PALAGANAS, Respondent.
G.R. No. 169144
January 26, 2011
ABAD, J.:
This case is about the probate before Philippine court of a will executed abroad by a
foreigner although it has not been probated in its place of execution.
The Facts and the Case
On November 8, 2001 Ruperta C. Palaganas (Ruperta), a Filipino who became a
naturalized United States (U.S.) citizen, died single and childless. In the last will and
testament she executed in California, she designated her brother, Sergio C. Palaganas
(Sergio), as the executor of her will for she had left properties in the Philippines and in
the U.S.
On May 19, 2003 respondent Ernesto C. Palaganas (Ernesto), another brother of
Ruperta, filed with the Regional Trial Court (RTC) of Malolos, Bulacan, a petition for the
probate of Ruperta's will and for his appointment as special administrator of her
estate.[1] On October 15, 2003, however, petitioners Manuel Miguel Palaganas (Manuel)
and Benjamin Gregorio Palaganas (Benjamin), nephews of Ruperta, opposed the
petition on the ground that Ruperta's will should not be probated in the Philippines but in
the U.S. where she executed it. Manuel and Benjamin added that, assuming Ruperta's
will could be probated in the Philippines, it is invalid nonetheless for having been
executed under duress and without the testator's full understanding of the consequences
of such act. Ernesto, they claimed, is also not qualified to act as administrator of the
estate.
Meantime, since Ruperta's foreign-based siblings, Gloria Villaluz and Sergio, were on
separate occasions in the Philippines for a short visit, respondent Ernesto filed a motion
with the RTC for leave to take their deposition, which it granted. On April, 13, 2004 the
RTC directed the parties to submit their memorandum on the issue of whether or not
Ruperta's U.S. will may be probated in and allowed by a court in the Philippines.
38

On June 17, 2004 the RTC issued an order:[2] (a) admitting to probate Ruperta's last will;
(b) appointing respondent Ernesto as special administrator at the request of Sergio, the
U.S.-based executor designated in the will; and (c) issuing the Letters of Special
Administration to Ernesto.
Aggrieved by the RTC's order, petitioner nephews Manuel and Benjamin appealed to the
Court of Appeals (CA),[3] arguing that an unprobated will executed by an American citizen
in the U.S. cannot be probated for the first time in the Philippines.
On July 29, 2005 the CA rendered a decision,[4] affirming the assailed order of the
RTC,[5] holding that the RTC properly allowed the probate of the will, subject to
respondent Ernesto's submission of the authenticated copies of the documents specified
in the order and his posting of required bond. The CA pointed out that Section 2, Rule
76 of the Rules of Court does not require prior probate and allowance of the will in the
country of its execution, before it can be probated in the Philippines. The present case,
said the CA, is different from reprobate, which refers to a will already probated and
allowed abroad. Reprobate is governed by different rules or procedures. Unsatisfied
with the decision, Manuel and Benjamin came to this Court.
The Issue Presented
The key issue presented in this case is whether or not a will executed by a foreigner
abroad may be probated in the Philippines although it has not been previously probated
and allowed in the country where it was executed.
The Court's Ruling
Petitioners Manuel and Benjamin maintain that wills executed by foreigners abroad must
first be probated and allowed in the country of its execution before it can be probated
here. This, they claim, ensures prior compliance with the legal formalities of the country
of its execution. They insist that local courts can only allow probate of such wills if the
proponent proves that: (a) the testator has been admitted for probate in such foreign
country, (b) the will has been admitted to probate there under its laws, (c) the probate
court has jurisdiction over the proceedings, (d) the law on probate procedure in that
foreign country and proof of compliance with the same, and (e) the legal requirements for
the valid execution of a will.
But our laws do not prohibit the probate of wills executed by foreigners abroad although
the same have not as yet been probated and allowed in the countries of their execution.
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
A foreign will can be given legal effects in our jurisdiction. Article 816 of the Civil Code
states that the will of an alienwho is abroad produces effect in the Philippines if made in
accordance with the formalities prescribed by the law of the place where he resides, or
according to the formalities observed in his country.[6]
In this connection, Section 1, Rule 73 of the 1997 Rules of Civil Procedure provides that
if the decedent is an inhabitant of a foreign country, the RTC of the province where he
has an estate may take cognizance of the settlement of such estate. Sections 1 and 2 of
Rule 76 further state that the executor, devisee, or legatee named in the will, or any other
person interested in the estate, may, at any time after the death of the testator, petition
the court having jurisdiction to have the will allowed, whether the same be in his
possession or not, or is lost or destroyed.
Our rules require merely that the petition for the allowance of a will must show, so far as
known to the petitioner: (a)the jurisdictional facts; (b) the names, ages, and residences of
the heirs, legatees, and devisees of the testator or decedent; (c) the probable value and
character of the property of the estate; (d) the name of the person for whom letters are
prayed; and (e) if the will has not been delivered to the court, the name of the person
having custody of it. Jurisdictional facts refer to the fact of death of the decedent, his
residence at the time of his death in the province where the probate court is sitting, or if
he is an inhabitant of a foreign country, the estate he left in such province.[7] The rules
do not require proof that the foreign will has already been allowed and probated in the
country of its execution.
In insisting that Ruperta's will should have been first probated and allowed by the court of
California, petitioners Manuel and Benjamin obviously have in mind the procedure for
the reprobate of will before admitting it here. But, reprobate or re-authentication of a will
already probated and allowed in a foreign country is different from that probate where the
will is presented for the first time before a competent court. Reprobate is specifically
governed by Rule 77 of the Rules of Court. Contrary to petitioners' stance, since this
latter rule applies only to reprobate of a will, it cannot be made to apply to the present
case. In reprobate, the local court acknowledges as binding the findings of the foreign
probate court provided its jurisdiction over the matter can be established.
Besides, petitioners' stand is fraught with impractically. If the instituted heirs do not have
the means to go abroad for the probate of the will, it is as good as depriving them
outright of their inheritance, since our law requires that no will shall pass either real or
personal property unless the will has been proved and allowed by the proper court.[8]
Notably, the assailed RTC order of June 17, 2004 is nothing more than an initial ruling
that the court can take cognizance of the petition for probate of Ruperta's will and that, in
39
the meantime, it was designating Ernesto as special administrator of the estate. The
parties have yet to present evidence of the due execution of the will, i.e. the testator's
state of mind at the time of the execution and compliance with the formalities required of
wills by the laws of California. This explains the trial court's directive for Ernesto to submit
the duly authenticated copy of Ruperta's will and the certified copies of the Laws of
Succession and Probate of Will of California.
WHEREFORE, the Court DENIES the petition and AFFIRMS the Court of Appeals
decision in CA-G.R. CV 83564 dated July 29, 2005.
DIGEST: PALAGANAS VS. PALAGANAS
FACTS:
Ruperta Palaganas, a Filipino who became a naturalized U.S. citizen, died single
and childless. In the last will and testament she executed in California, she designated
her brother, Sergio, as the executor of her will for she had left properties in the
Philippines and in the U.S.
Ernesto, another brother of Ruperta, filed with the RTC of Malolos, Bulacan, a
petition for the probate of Ruperta’s will and for his appointment as special administrator
of her estate.
Manuel and Benjamin, nephews of Ruperta, opposed the petition on the ground
that Ruperta’s will should not be probated in the Philippines but in the U.S. where she
executed it. They added that, assuming Ruperta’s will could be probated in the
Philippines, it is invalid nonetheless for having been executed under duress and without
the testator’s full understanding of the consequences of such act. They also claimed that
Ernesto is not qualified to act as administrator of the estate.
The RTC admitted to probate Ruperta’s last will and appointed Ernesto as special
administrator at the request of Sergio. The Letters of Special Administration was issued
to Ernesto.
Manuel and Benjamin appealed to the CA.
The CA affirmed the RTC Decision.
ISSUE: Whether or not an unprobated will executed by an American citizen in the U.S.
can be probated for the first time in the Philippines.
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
HELD:
YES.
Our laws do not prohibit the probate of wills executed by foreigners abroad
although the same have not as yet been probated and allowed in the countries of their
execution. A foreign will can be given legal effects in our jurisdiction. Article 816 of the
Civil Code states that the will of an alien who is abroad produces effect in the Philippines
if made in accordance with the formalities prescribed by the law of the place where he
resides, or according to the formalities observed in his country.
Section 1, Rule 73 of the 1997 Rules of Civil Procedure provides that if the
decedent is an inhabitant of a foreign country, the RTC of the province where he has an
estate may take cognizance of the settlement of such estate.
Our rules require merely that the petition for the allowance of a will must show, so
far as known to the petitioner:
(a) the jurisdictional facts;
(b) the names, ages, and residences of the heirs, legatees, and devisees
of the testator or decedent;
(c) the probable value and character of the property of the estate;
(d) the name of the person for whom letters are prayed; and
(e) if the will has not been delivered to the court, the name of the person
having custody of it.
Jurisdictional facts refer to the fact of death of the decedent, his residence at the
time of his death in the province where the probate court is sitting, or if he is an
inhabitant of a foreign country, the estate he left in such province. The rules do not
require proof that the foreign will has already been allowed and probated in the country
of its execution.
DY YIENG SEANGIO, BARBARA D. SEANGIO and VIRGINIA D. SEANGIO VS. HON.
AMOR A. REYES, in her capacity as Presiding Judge, Regional Trial Court,
National Capital Judicial Region, Branch 21, Manila, ALFREDO D. SEANGIO,
ALBERTO D. SEANGIO, ELISA D. SEANGIO-SANTOS, VICTOR D. SEANGIO,
ALFONSO D. SEANGIO, SHIRLEY D. SEANGIO-LIM, BETTY D. SEANGIO-OBAS and
JAMES D. SEANGIO
G.R. NOS. 140371-72
November 27, 2006
AZCUNA, J.:
40
This is a Petition for Certiorari1 with application for the issuance of a writ of preliminary
injunction and/or temporary restraining order seeking the nullification of the orders, dated
August 10, 1999 and October 14, 1999, of the Regional Trial Court of Manila, Branch 21
(the RTC), dismissing the petition for probate on the ground of preterition, in the
consolidated cases, docketed as SP. Proc. No. 98-90870 and SP. Proc. No. 99-93396,
and entitled, "In the Matter of the Intestate Estate of Segundo C. Seangio v. Alfredo D.
Seangio, et al." and "In the Matter of the Probate of the Will of Segundo C. Seangio v. Dy
Yieng Seangio, Barbara D. Seangio and Virginia Seangio."
The facts of the cases are as follows:
On September 21, 1988, private respondents filed a petition for the settlement of the
intestate estate of the late Segundo Seangio, docketed as Sp. Proc. No. 98 90870 of the
RTC, and praying for the appointment of private respondent Elisa D. Seangio'Santos as
special administrator and guardian ad litem of petitioner Dy Yieng Seangio.
Petitioners Dy Yieng, Barbara and Virginia, all surnamed Seangio, opposed the petition.
They contended that: 1) Dy Yieng is still very healthy and in full command of her
faculties; 2) the deceased Segundo executed a general power of attorney in favor of
Virginia giving her the power to manage and exercise control and supervision over his
business in the Philippines; 3) Virginia is the most competent and qualified to serve as
the administrator of the estate of Segundo because she is a certified public accountant;
and, 4) Segundo left a holographic will, dated September 20, 1995, disinheriting one of
the private respondents, Alfredo Seangio, for cause. In view of the purported holographic
will, petitioners averred that in the event the decedent is found to have left a will, the
intestate proceedings are to be automatically suspended and replaced by the
proceedings for the probate of the will.
On April 7, 1999, a petition for the probate of the holographic will of Segundo, docketed
as SP. Proc. No. 99 93396, was filed by petitioners before the RTC. They likewise
reiterated that the probate proceedings should take precedence over SP. Proc. No. 98
90870 because testate proceedings take precedence and enjoy priority over intestate
proceedings.2
The document that petitioners refer to as Segundo's holographic will is quoted, as
follows:
Kasulatan sa pag-aalis ng mana
Tantunin ng sinuman
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
Ako si Segundo Seangio Filipino may asawa naninirahan sa 465-A Flores St., Ermita,
Manila at nagtatalay ng maiwanag na pag-iisip at disposisyon ay tahasan at hayagang
inaalisan ko ng lahat at anumang mana ang paganay kong anak na si Alfredo Seangio
dahil siya ay naging lapastangan sa akin at isan beses siya ng sasalita ng masama
harapan ko at mga kapatid niya na si Virginia Seangio labis kong kinasama ng loob ko at
sasabe rin ni Alfredo sa akin na ako nasa ibabaw gayon gunit daratin ang araw na ako
nasa ilalim siya at siya nasa ibabaw.
Labis kong ikinasama ng loob ko ang gamit ni Alfredo ng akin pagalan para
makapagutang na kuarta siya at kanya asawa na si Merna de los Reyes sa China
Bangking Corporation na millon pesos at hindi ng babayad at hindi ng babayad ito ay
nagdulot sa aking ng malaking kahihiya sa mga may-ari at stockholders ng China
Banking.
At ikinagalit ko pa rin ang pagkuha ni Alfredo at ng kanyang asawa na mga custome[r]
ng Travel Center of the Philippines na pinagasiwaan ko at ng anak ko si Virginia.
Dito ako nagalit din kaya gayon ayoko na bilanin si Alfredo ng anak ko at hayanan kong
inaalisan ng lahat at anoman mana na si Alfredo at si Alfredo Seangio ay hindi ko siya
anak at hindi siya makoha mana.
Nila[g]daan ko ngayon ika 20 ng Setyembre 1995 sa longsod ng Manila sa harap ng
tatlong saksi.3
(signed)
Segundo Seangio
Nilagdaan sa harap namin
Dy Yieng Seangio (signed)
Unang Saksi ikalawang saksi
ikatlong saksi
On May 29, 1999, upon petitioners' motion, SP. Proc. No. 98 90870 and SP. Proc. No.
99 93396 were consolidated.4
41
On July 1, 1999, private respondents moved for the dismissal of the probate WHEREFORE, premises considered, the Motion to Suspend Proceedings is hereby
proceedings5 primarily on the ground that the document purporting to be the holographic DENIED for lack of merit. Special Proceedings No. 99 93396 is hereby DISMISSED
will of Segundo does not contain any disposition of the estate of the deceased and thus without pronouncement as to costs.
does not meet the definition of a will under Article 783 of the Civil Code. According to
private respondents, the will only shows an alleged act of disinheritance by the decedent SO ORDERED.7
of his eldest son, Alfredo, and nothing else; that all other compulsory heirs were not
named nor instituted as heir, devisee or legatee, hence, there is preterition which would Petitioners' motion for reconsideration was denied by the RTC in its order dated October
result to intestacy. Such being the case, private respondents maintained that while 14, 1999.
procedurally the court is called upon to rule only on the extrinsic validity of the will, it is
not barred from delving into the intrinsic validity of the same, and ordering the dismissal
Petitioners contend that:
of the petition for probate when on the face of the will it is clear that it contains no
testamentary disposition of the property of the decedent.
THE RESPONDENT JUDGE ACTED IN EXCESS OF HER JURISDICTION OR WITH
GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
Petitioners filed their opposition to the motion to dismiss contending that: 1) generally,
JURISDICTION AND DECIDED A QUESTION OF LAW NOT IN ACCORD WITH LAW
the authority of the probate court is limited only to a determination of the extrinsic validity
AND JURISPRUDENCE IN ISSUING THE QUESTIONED ORDERS, DATED 10
of the will; 2) private respondents question the intrinsic and not the extrinsic validity of the
AUGUST 1999 AND 14 OCTOBER 1999 (ATTACHMENTS "A" AND "B" HEREOF)
will; 3) disinheritance constitutes a disposition of the estate of a decedent; and, 4) the
CONSIDERING THAT:
rule on preterition does not apply because Segundo's will does not constitute a universal
heir or heirs to the exclusion of one or more compulsory heirs.6
I
On August 10, 1999, the RTC issued its assailed order, dismissing the petition for
probate proceedings: THE RESPONDENT JUDGE, WITHOUT EVEN COMPLYING WITH SECTIONS 3 AND
4 OF RULE 76 OF THE RULES OF COURT ON THE PROPER PROCEDURE FOR
SETTING THE CASE FOR INITIAL HEARING FOR THE ESTABLISHMENT OF THE
A perusal of the document termed as "will" by oppositors/petitioners Dy Yieng Seangio,
JURISDICTIONAL FACTS, DISMISSED THE TESTATE CASE ON THE ALLEGED
et al., clearly shows that there is preterition, as the only heirs mentioned thereat are
GROUND THAT THE TESTATOR'S WILL IS VOID ALLEGEDLY BECAUSE OF THE
Alfredo and Virginia. [T]he other heirs being omitted, Article 854 of the New Civil Code
EXISTENCE OF PRETERITION, WHICH GOES INTO THE INTRINSIC VALIDITY OF
thus applies. However, insofar as the widow Dy Yieng Seangio is concerned, Article 854
THE WILL, DESPITE THE FACT THAT IT IS A SETTLED RULE THAT THE
does not apply, she not being a compulsory heir in the direct line.
AUTHORITY OF PROBATE COURTS IS LIMITED ONLY TO A DETERMINATION OF
THE EXTRINSIC VALIDITY OF THE WILL, I.E., THE DUE EXECUTION THEREOF,
As such, this Court is bound to dismiss this petition, for to do otherwise would amount to THE TESTATOR'S TESTAMENTARY CAPACITY AND THE COMPLIANCE WITH THE
an abuse of discretion. The Supreme Court in the case of Acain v. Intermediate REQUISITES OR SOLEMNITIES PRESCRIBED BY LAW;
Appellate Court [155 SCRA 100 (1987)] has made its position clear: "for - respondents to
have tolerated the probate of the will and allowed the case to progress when, on its face,
II
the will appears to be intrinsically void - would have been an exercise in futility. It would
have meant a waste of time, effort, expense, plus added futility. The trial court could
have denied its probate outright or could have passed upon the intrinsic validity of the EVEN ASSUMING ARGUENDO THAT THE RESPONDENT JUDGE HAS THE
testamentary provisions before the extrinsic validity of the will was AUTHORITY TO RULE UPON THE INTRINSIC VALIDITY OF THE WILL OF THE
resolved (underscoring supplied). TESTATOR, IT IS INDUBITABLE FROM THE FACE OF THE TESTATOR'S WILL THAT
NO PRETERITON EXISTS AND THAT THE WILL IS BOTH INTRINSICALLY AND
EXTRINSICALLY VALID; AND,

RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y. 42
III
RESPONDENT JUDGE WAS DUTY BOUND TO SUSPEND THE PROCEEDINGS IN
THE INTESTATE CASE CONSIDERING THAT IT IS A SETTLED RULE THAT
TESTATE PROCEEDINGS TAKE PRECEDENCE OVER INTESTATE PROCEEDINGS.
Petitioners argue, as follows:
First, respondent judge did not comply with Sections 3 and 4 of Rule 76 of the Rules of
Court which respectively mandate the court to: a) fix the time and place for proving the
will when all concerned may appear to contest the allowance thereof, and cause notice
of such time and place to be published three weeks successively previous to the
appointed time in a newspaper of general circulation; and, b) cause the mailing of said
notice to the heirs, legatees and devisees of the testator Segundo;
Second, the holographic will does not contain any institution of an heir, but rather, as its
title clearly states, Kasulatan ng Pag-Aalis ng Mana, simply contains a disinheritance of a
compulsory heir. Thus, there is no preterition in the decedent's will and the holographic
will on its face is not intrinsically void;
Third, the testator intended all his compulsory heirs, petitioners and private respondents
alike, with the sole exception of Alfredo, to inherit his estate. None of the compulsory
heirs in the direct line of Segundo were preterited in the holographic will since there was
no institution of an heir;
Fourth, inasmuch as it clearly appears from the face of the holographic will that it is both
intrinsically and extrinsically valid, respondent judge was mandated to proceed with the
hearing of the testate case; and,
Lastly, the continuation of the proceedings in the intestate case will work injustice to
petitioners, and will render nugatory the disinheritance of Alfredo.
The purported holographic will of Segundo that was presented by petitioners was dated,
signed and written by him in his own handwriting. Except on the ground of preterition,
private respondents did not raise any issue as regards the authenticity of the document.
The document, entitled Kasulatan ng Pag-Aalis ng Mana, unmistakably showed
Segundo's intention of excluding his eldest son, Alfredo, as an heir to his estate for the
reasons that he cited therein. In effect, Alfredo was disinherited by Segundo.
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
For disinheritance to be valid, Article 916 of the Civil Code requires that the same must
be effected through a will wherein the legal cause therefor shall be specified. With regard
to the reasons for the disinheritance that were stated by Segundo in his document, the
Court believes that the incidents, taken as a whole, can be considered a form of
maltreatment of Segundo by his son, Alfredo, and that the matter presents a sufficient
cause for the disinheritance of a child or descendant under Article 919 of the Civil Code:
Article 919. The following shall be sufficient causes for the disinheritance of children and
descendants, legitimate as well as illegitimate:
(1) When a child or descendant has been found guilty of an attempt against the life of the
testator, his or her spouse, descendants, or ascendants;
(2) When a child or descendant has accused the testator of a crime for which the law
prescribes imprisonment for six years or more, if the accusation has been found
groundless;
(3) When a child or descendant has been convicted of adultery or concubinage with the
spouse of the testator;
(4) When a child or descendant by fraud, violence, intimidation, or undue influence
causes the testator to make a will or to change one already made;
(5) A refusal without justifiable cause to support the parents or ascendant who disinherit
such child or descendant;
(6) Maltreatment of the testator by word or deed, by the child or descendant;8
(7) When a child or descendant leads a dishonorable or disgraceful life;
(8) Conviction of a crime which carries with it the penalty of civil interdiction.
Now, the critical issue to be determined is whether the document executed by Segundo
can be considered as a holographic will.
A holographic will, as provided under Article 810 of the Civil Code, must be entirely
written, dated, and signed by the hand of the testator himself. It is subject to no other
form, and may be made in or out of the Philippines, and need not be witnessed.
43
Segundo's document, although it may initially come across as a mere disinheritance
instrument, conforms to the formalities of a holographic will prescribed by law. It is
written, dated and signed by the hand of Segundo himself. An intent to dispose mortis
causa[9] can be clearly deduced from the terms of the instrument, and while it does not
make an affirmative disposition of the latter's property, the disinheritance of Alfredo,
nonetheless, is an act of disposition in itself. In other words, the disinheritance results in
the disposition of the property of the testator Segundo in favor of those who would
succeed in the absence of Alfredo.10
Moreover, it is a fundamental principle that the intent or the will of the testator, expressed
in the form and within the limits prescribed by law, must be recognized as the supreme
law in succession. All rules of construction are designed to ascertain and give effect to
that intention. It is only when the intention of the testator is contrary to law, morals, or
public policy that it cannot be given effect.11
Holographic wills, therefore, being usually prepared by one who is not learned in the law,
as illustrated in the present case, should be construed more liberally than the ones
drawn by an expert, taking into account the circumstances surrounding the execution of
the instrument and the intention of the testator.12 In this regard, the Court is convinced
that the document, even if captioned as Kasulatan ng Pag-Aalis ng Mana, was intended
by Segundo to be his last testamentary act and was executed by him in accordance with
law in the form of a holographic will. Unless the will is probated,13 the disinheritance
cannot be given effect.14
With regard to the issue on preterition,15 the Court believes that the compulsory heirs in
the direct line were not preterited in the will. It was, in the Court's opinion, Segundo's last
expression to bequeath his estate to all his compulsory heirs, with the sole exception of
Alfredo. Also, Segundo did not institute an heir16 to the exclusion of his other compulsory
heirs. The mere mention of the name of one of the petitioners, Virginia, in the document
did not operate to institute her as the universal heir. Her name was included plainly as a
witness to the altercation between Segundo and his son,
Alfredo.ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
Considering that the questioned document is Segundo's holographic will, and that the
law favors testacy over intestacy, the probate of the will cannot be dispensed with. Article
838 of the Civil Code provides that no will shall pass either real or personal property
unless it is proved and allowed in accordance with the Rules of Court. Thus, unless the
will is probated, the right of a person to dispose of his property may be rendered
nugatory.17
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
In view of the foregoing, the trial court, therefore, should have allowed the holographic
will to be probated. It is settled that testate proceedings for the settlement of the estate of
the decedent take precedence over intestate proceedings for the same purpose.18
WHEREFORE, the petition is GRANTED. The Orders of the Regional Trial Court of
Manila, Branch 21, dated August 10, 1999 and October 14, 1999, are set aside.
Respondent judge is directed to reinstate and hear SP Proc. No. 99-93396 for the
allowance of the holographic will of Segundo Seangio. The intestate case or SP. Proc.
No. 98-90870 is hereby suspended until the termination of the aforesaid testate
proceedings. No costs.
DIGEST: GALLANOSA VS. ARCANGEL
FACTS:
On September 21, 1988, private respondents filed a petition for the settlement of
the intestate estate of the late Segundo Seangio and praying for the appointment of
private respondent Elisa D. Seangio–Santos as special administrator and guardian ad
litem of petitioner Dy Yieng Seangio.
Petitioners Dy Yieng, Barbara and Virginia, all surnamed Seangio, opposed the
petition. They contended that Segundo left a holographic will, dated September 20, 1995,
disinheriting one of the private respondents, Alfredo Seangio, for cause. In view of the
purported holographic will, petitioners averred that in the event the decedent is found to
have left a will, the intestate proceedings are to be automatically suspended and
replaced by the proceedings for the probate of the will.
The petitioner instituted a petition for the probation of the will. Private respondents
moved for the dismissal of the probate proceedings5 primarily on the ground that the
document purporting to be the holographic will of Segundo does not contain any
disposition of the estate of the deceased and thus does not meet the definition of a will
under Article 783 of the Civil Code. According to private respondents, the will only shows
an alleged act of disinheritance by the decedent of his eldest son, Alfredo, and nothing
else; that all other compulsory heirs were not named nor instituted as heir, devisee or
legatee, hence, there is preterition which would result to intestacy.
RTC dismissed the petition for probate proceedings on the reason that there is
preterition in the will.
ISSUE: Whether the court erred in dismissing the probate proceeding.
44
HELD:
YES.
For disinheritance to be valid, Article 916 of the Civil Code requires that the same
must be effected through a will wherein the legal cause therefor shall be specified. With
regard to the reasons for the disinheritance that were stated by Segundo in his
document, the Court believes that the incidents, taken as a whole, can be considered a
form of maltreatment of Segundo by his son, Alfredo, and that the matter presents a
sufficient cause for the disinheritance of a child or descendant under Article 919 of the
Civil Code.
Segundo’s document, although it may initially come across as a mere disinheritance
instrument, conforms to the formalities of a holographic will prescribed by law. It is
written, dated and signed by the hand of Segundo himself. An intent to dispose mortis
causa can be clearly deduced from the terms of the instrument, and while it does not
make an affirmative disposition of the latter’s property, the disinheritance of Alfredo,
nonetheless, is an act of disposition in itself. In other words, the disinheritance results in
the disposition of the property of the testator Segundo in favor of those who would
succeed in the absence of Alfredo.
With regard to the issue on preterition, the Court believes that the compulsory heirs
in the direct line were not preterited in the will. It was, in the Court’s opinion, Segundo’s
last expression to bequeath his estate to all his compulsory heirs, with the sole exception
of Alfredo. Also, Segundo did not institute an heir16 to the exclusion of his other
compulsory heirs. Considering that the questioned document is Segundo’s holographic
will, and that the law favors testacy over intestacy, the probate of the will cannot be
dispensed with. Article 838 of the Civil Code provides that no will shall pass either real or
personal property unless it is proved and allowed in accordance with the Rules of Court.
Thus, unless the will is probated, the right of a person to dispose of his property may be
rendered nugatory.
PEDRO D. H. GALLANOSA, CORAZON GRECIA-GALLONOSA and ADOLFO
FORTAJADA, the deceased Pedro Gallanosa being substituted by his legal heirs,
namely his above-named widow and his children, ISIDRO GALLANOSA and LEDY
GALLANOSA, and grandchildren named IMELDA TECLA GALLANOSA and ROSARIO
BRIGIDA GALLANOSA, children of the late SIKATUNA GALLANOSA, son of Pedro
D.H. GALLONOSA
- VERSUS -
HON. UBALDO Y. ARCANGEL of CFI of Sorsogon and FLORENTINO G. HITOSIS,
CASIANO G. HITOSIS, TEOTIMO G. HITOSIS, VICTORIO G. HITOSIS, EMILIA G.
HITOSIS VDA. DE CRUZ, JOAQUIN R. HITOSIS VDA. DE CRUZ, JOAQUIN R.
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
HITOSIS, FLORENTINO R. HITOSIS, VIRGINIA R. MITOSIS, DEBORAH R. HITOSIS,
EDILBERTO R. HITOSIS, LEONOR R. HITOSIS, NORMA R. HITOSIS-VILLANUEVA,
LEONCIO R. HITOSIS, minors ANGEL R. HITOSIS and RODOLFO R. HITOSIS,
represented by their legal guardian and mother LOURDES RELUCIO VDA. DE
HITOSIS, PETRONA HITOSIS-BALBIDO, MODESTO HITOSIS-GACILO, CLETO
HITOSIS, AGUSTIN HITOSIS-FORTES, TOMASA HITOSIS-BANARES VDA. DE
BORRAS, CONRADA HITOSIS-BANARES FRANCHE, RESTITUTO HITOSIS-
BANARES, DAMIAN HITOSIS-BANARES, FIDEL HITOSIS-BANARES, SUSANA
HITOSIS-BANARES RODRIGUEZ, JOSE HITOSIS, LOLITA HITOSIS-BANEGA,
minors MILAGROS HITOSIS-BANEGA, ALICIA HITOSIS-BANEGA AND ELISA
HITOSIS-BANEGA, represented by their legal guardian and father ERNESTO
BANEGA, FELICITAS HITOSIS-PENAFLOR, GENOVEVA HITOSIS-ADRIATICO,
MANUEL HITOSIS, PEDRO HITOSIS, LIBRATA HITOSIS-BALMES, JUANITA
HITOSIS-GABITO VDA. DE GABAS, MAURA HITOSIS-GABITO VDA. DE GANOLA
and LEONA HITOSIS-GABITO GAMBA
G.R. No. L-29300
June 21, 1978
AQUINO, J.:
In this special civil action of certiorari, filed on July 29, 1968, the petitioners seek to annul
the orders of respondent Judge dated May 3 trial June 17, 1968, wherein he
reconsidered his order of January 10, 1968, dismissing, on the ground of prescription,
the complaint in Civil Case No. 2233 of the Court of First Instance of Sorsogon.
The case involves the sixty-one parcels of land in Sorsogon left by Florentino Hitosis,
with an estimated value of P50,000, trial claims for damages exceeding one million
pesos. The undisputed facts are as follows:
1. Florentino Hitosis executed a will in the Bicol dialect on June 19, 1938 when he was
eighty years old. He died on May 26, 1939 at Irosin, Sorsogon. A childless widower, he
as survived by his brother, Leon Hitosis. His other brothers, named Juan, Tito (Juancito),
Leoncio (Aloncio) trial Apolonio and only sister, Teodora, were all dead.
2. On June 24, 1939 a petition for the probate of his will was filed in the Court of First
Instance of Sorsogon (Special Proceeding No. 3171). The notice of hearing was duly
published. In that will, Florentino bequeathed his one-half share in the conjugal estate to
his second wife, Tecla Dollentas, and, should Tecla predecease him, as was the case,
his one-half share would be assigned to the spouses Pedro Gallanosa and Corazon
Grecia, the reason being that Pedro, Tecla's son by her first marriage, grew up under the
care of Florentino; he had treated Pedro as his foster child, and Pedro has rendered
45
services to Florentino and Tecla. Florentino likewise bequeathed his separate properties
consisting of three parcels of abaca land and parcel of riceland to his protege
(sasacuyang ataman), Adolfo Fortajada, a minor.
3. Opposition to the probate of the will was registered by the testator's legal heirs,
namely, his surviving brother, Leon, trial his nephews trial nieces. After a hearing,
wherein the oppositors did not present any evidence in support of their opposition, Judge
Pablo S. Rivera, in his decision of October 27, 1939, admitted the will to probate and
appointed Gallanosa as executor. Judge Rivera specifically found that the testator
executed his last will "gozando de buena salud y facultades mentales y no obrando en
virtud de amenaza, fraude o influencia indebida."
4. On October 24, 1941, the testamentary heirs, the Gallanosa spouses trial Adolfo
Fortajada, submitted a project of partition covering sixty-one parcels of land located in
various parts of Sorsogon, large cattle trial several pieces of personal property which
were distributed in accordance with Florentino's will. The heirs assumed the obligations
of the estate amounting to P7,129.27 in the portion of P2,376.42 for Adolfo Fortajada and
P4,752.85 for the Gallanosa spouses. The project of partition was approved by Judge
Doroteo Amador in his order of March 13, 1943, thus confirming the heirs' possession of
their respective shares. The testator's legal heirs did not appeal from the decree of
probate trial from the order of partition trial distribution.
5. On February 20, 1952, Leon Hitosis trial the heirs of Florentino's deceased brothers
trial sisters instituted an action in the Court of First Instance of Sorsogon against Pedro
Gallanosa for the recovery of the said sixty-one parcels of land. They alleged that they,
by themselves or through their predecessors-in-interest, had been in continuous
possession of those lands en concepto de dueño trial that Gallanosa entered those lands
in 1951 trial asserted ownership over the lands. They prayed that they be declared the
owners of the lands trial that they be restored to the possession thereof. They also
claimed damages (Civil Case No. 696).
6. Gallanosa moved to dismiss the above complaint for lack of cause of action trial on the
ground of bar by the prior judgment in the probate proceeding. Judge Anatolio C.
Mañalac dismiss the complaint on the ground of res judicata in his order of August 14,
1952 wherein he said:
It also appears that the plaintiffs and/or their predecessors-in-interest had
intervened in the testate proceedings in Civil Case No. 3171 of this Court for-
the purpose of contesting the probate of the will of (the) late Florentino
Hitosis; trial had their opposition prospered trial the will denied of probate,
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
the proceedings would have been converted into one of intestacy (Art. 960
Civil Code) and the settlement of the estate of the said deceased would have
been made in accordance with the provisions of law governing legal or
intestate succession ... , in which case the said plaintiffs, as the nearest of
kin or legal heirs of said Florentino Mitosis, would have succeeded to the
ownership and possession of the 61 parcels of land in question forming part
of his estate (art. 1003, Civil Code).
However, the derision of the Court was adverse to them, when it their
opposition trial ordered the probate of his will. From this decision (Annex K)
legalizing the said will, the oppositors did not file any appeal within the period
fixed by law, despite the fact that they were duly notified thereof, so that the
said decision had become final trial it now constitutes a bar to any action that
the plaintiffs may institute for the purpose of a redetermination of their rights
to inherit the properties of the late Florentino Hitosis.
In other words, the said decision of this Court in Civil Case special ) No.
3171, in which the herein plaintiffs or their predecessors-in-interest had
intervened as parties oppositors, constitutes a final judicial determination of
the issue that the said plaintiffs, as ordinary heirs, have no legal rights to
succeed to any of the properties of the late Florentino Hitosis; consequently,
their present claim to the ownership trial possession of the 61 parcels of land
in question is without any legal merit or basis.
7. The plaintiffs did not appeal from that order of dismissal which should have set the
matter at rest. But the same plaintiffs or oppositors to the probate of the will, trial their
heirs, with a persistence befitting a more meritorious case, filed on September 21, 1967,
or fifteen years after the dismissal of Civil Case No. 696 trial twenty-eight years after the
probate of the will another action in the same court against the Gallanosa spouses trial
Adolfo Fortajada for the "annulment" of the will of Florentino Hitosis trial and for the
recovery of the same sixty-one parcels of land. They prayed for the appointment of a
receiver.
8. As basis of their complaint, they alleged that the Gallanosa spouses, through fraud
trial deceit, caused the execution trial simulation of the document purporting to be the
last will trial testament of Florentino Hitosis. While in their 1952 complaint the game
plaintiffs alleged that they were in possession of the lands in question, in their 1967
complaint they admitted that since 1939, or from the death of Florentino Hitosis, the
defendants (now the petitioners) have been in possession of the disputed lands (Par. XIV
of the complaint, p. 70, Rollo in Civil Case No. 555, Gubat Branch, which was transferred
46
to Branch I in Sorsogon town where Special Proceeding No. 3171 trial Civil Case No.
696 were decided trial which was re-docketed as Civil Case No. 2233).
9. As already stated, that 1967 complaint, upon motion of the defendants, now the
petitioners, was dismissed by respondent Judge. The plaintiffs filed a motion for
reconsideration Respondent Judge. granted it trial set aside the order of dismissal. He
denied defendants' motion for the reconsideration of his order setting aside that dismissal
order.
The petitioners or the defendants below contend in this certiorari case that the lower
court has no jurisdiction to set aside the 1939 decree of probate trial the 1952 order of
dismissal in Civil Case No. 696 trial that it acted with grave abuse of discretion in not
dismissing private respondents' 1967 complaint.
The issue is whether, under the facts set forth above, the private respondents have a
cause of action the "annulment" of the will of Florentino Hitosis trial for the recovery of
the sixty-one parcels of land adjudicated under that will to the petitioners.
We hold that the lower court committed a grave abuse of discretion in reconsideration its
order of dismissal trial in ignoring the 1939 testamentary case trial the 1952 Civil Case
No. 696 which is the same as the instant 1967 case.
A rudimentary knowledge of substantive law trial procedure is sufficient for an ordinary
lawyer to conclude upon a causal perusal of the 1967 complaint that it is baseless trial
unwarranted.
What the plaintiffs seek is the "annulment" of a last will trial testament duly probated in
1939 by the lower court itself. The proceeding is coupled with an action to recover the
lands adjudicated to the defendants by the same court in 1943 by virtue of the probated
will, which action is a resuscitation of The complaint of the same parties that the same
court dismissed in 1952.
It is evident from the allegations of the complaint trial from defendants' motion to dismiss
that plaintiffs' 1967 action is barred by res judicata, a double-barrelled defense, trial by
prescription, acquisitive trial extinctive, or by what are known in the jus civile trial the jus
gentium as usucapio, longi temporis possesio and praescriptio (See Ramos vs. Ramos,
L-19872, December 3, 1974, 61 SCRA 284).
Our procedural law does not sanction an action for the "annulment" of a will. In order that
a will may take effect, it has to be probated, legalized or allowed in the proper
testamentary proceeding. The probate of the will is mandatory (Art. 838, Civil Code; sec.
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
1, Rule 75, formerly sec. 1, Rule 76, Rules of Court; Guevara vs. Guevara, 74 Phil. 479;
Guevara vs. Guevara, 98 Phil. 249).
The testamentary proceeding is a special proceeding for the settlement of the testator's
estate. A special proceeding is distinct trial different from an ordinary action (Secs. 1 trial
2, Rule 2 trial sec. 1, Rule 72, Rules of Court).
We say that the defense of res judicata, as a ground for the dismissal of plaintiffs' 1967
complaint, is a two-pronged defense because (1) the 1939 trial 1943 decrees of probate
trial distribution in Special Proceeding No. 3171 trial (2) the 1952 order of dismissal in
Civil Case No. 696 of the lower court constitute bars by former judgment, Rule 39 of the
Rules of Court provides:
SEC. 49. Effect of judgments. — The effect of a judgment or final order
rendered by a court or judge of the Philippines, having jurisdiction to
pronounce the judgment or order, may be as follows:
(a) In case of a judgment or order against a specific thing, or in respect to
the probate of a will or the administration of the estate of a deceased
person, or in respect to the personal, political, or legal condition or status
of a particular person or his relationship to another, the judgment or order
is conclusive upon the title to the thing the will or administration, or the
condition, status or relationship of the person; however, the probate of a
will or granting of letters of administration shall only be prima facie
evidence of the death of the testator or intestate;
(b) In other cases the judgment or order is, with respect to the matter
directly adjudged or as to any other matter that could have been raised in
relation thereto, conclusive between the parties trial their successors in
interest by title subsequent to the commencement of the action or special
proceeding, litigating of the same thing trial under the same title trial in the
same capacity;
(c) In any other litigation between the same parties or their successors in
interest, that only is deemed to have been adjudged in a former judgment
which appears upon its face to have been so adjudged, or which was
actually trial necessarily included therein or necessary thereto.
The 1939 decree of probate is conclusive as to the due execution or
formal validity of the will (Sec. 625, Act 190, sec. 1, Rule 76, now sec. 1,
Rule 75, Rules of Court; Last par. of art. 838, Civil Code).
47
That means that the testator was of sound trial disposing mind at the time when he
executed the will and was not acting under duress, menace, fraud, or undue influence;
that the will was signed by him in the presence of the required number of witnesses, and
that the will is genuine trial is not a forgery. Accordingly, these facts cannot again be
questioned in a subsequent proceeding, not even in a criminal action for the forgery of
the will. (3 Moran's Comments on the Rules of Court, 1970 Edition, p. 395; Manahan vs.
Manahan, 58 Phil. 448).
After the finality of the allowance of a will, the issue as to the voluntariness of its
execution cannot be raised anymore (Santos vs. De Buenaventura, L-22797, September
22, 1966, 18 SCRA 47).
In Austria vs. Ventenilla, 21 Phil. 180, a "petition for annulment of a will" was not
entertained after the decree of probate had become final. That case is summarized as
follows:
Wills; Probate; Alledged Fraudulent Will; Appeal.— V. died. His will was
admitted to probate without objection. No appeal was taken from said order. It
was admitted that due trial legal notice had been given to all parties. Fifteen
months after the date of said order, a motion was presented in the lower court
to have said will declared null and void, for the reason that fraud had been
practised upon the deceased in the making of his will.
Held: That under section 625 of Act No. 190, the only time given parties who
are displeased with the order admitting to probate a will, for an appeal is the
time given for appeals in ordinary actions; but without deciding whether or not
an order admitting a will to probate will be opened for fraud, after the time
allowed for an appeal has expired, when no appeal is taken from an order
probating a will, the heirs can not, in subsequent litigation in the same
proceedings, raise questions relating to its due execution. The probate of a will
is conclusive as to its due execution trial as to the testamentary capacity of The
testator. (See Austria vs. Heirs of Ventenilla. 99 Phil. 1069).
On the other hand, the 1943 decree of adjudication rendered by the trial court in the
testate proceeding for the settlement of the estate of Florentino Hitosis, having been
rendered in a proceeding in rem, is under the abovequoted section 49(a), binding upon
the whole world (Manalo vs. Paredes, 47 Phil. 938; In re Estate of Johnson, 39 Phil. 156;
De la Cerna vs. Potot, 120 Phil. 1361, 1364; McMaster vs. Hentry Reissmann & Co., 68
Phil. 142).
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
It is not only the 1939 probate proceeding that can be interposed as res judicata with
respect to private respondents' complaint, The 1952 order of dismissal rendered by
Judge Mañalac in Civil Case No. 696, a judgment in personam was an adjudication on
the merits (Sec. 4, Rule 30, old Rules of Court). It constitutes a bar by former judgment
under the aforequoted section 49(b) (Anticamara vs. Ong, L-29689. April 14, 1978).
The plaintiffs or private respondents did not even bother to ask for the annulment of the
testamentary proceeding trial the proceeding in Civil Case No. 696. Obviously, they
realized that the final adjudications in those cases have the binding force of res
judicata and that there is no ground, nor is it timely, to ask for the nullification of the final
orders trial judgments in those two cases.
It is a fundamental concept in the organization of every jural system, a principle of public
policy, that, at the risk of occasional errors, judgments of courts should become final at
some definite date fixed by law. Interest rei publicae ut finis sit litum. "The very object for
which the courts were constituted was to put an end to controversies." (Dy Cay vs.
Crossfield and O'Brien, 38 Phil. 521: Peñalosa vs. Tuason, 22 Phil, 303; De la Cerna vs.
Potot, supra).
After the period for seeking relief from a final order or judgment under Rule 38 of the
Rules of Court has expired, a final judgment or order can be set aside only on the
grounds of (a) lack of jurisdiction or lack of due process of law or (b) that the judgment
was obtained by means of extrinsic or collateral fraud. In the latter case, the period for
annulling the judgment is four years from the discovery of the fraud (2 Moran's
Comments on the Rules of Court, 1970 Edition, pp. 245-246; Mauricio vs. Villanueva,
106 Phil. 1159).
To hurdle over the obstacle of prescription, the trial court, naively adopting the theory of
plaintiffs' counsel, held that the action for the recovery of the lands had not prescribed
because the rule in article 1410 of the Civil Code, that "the action or defense for the
declaration of the inexistence of a contract does not prescribe", applies to wills.
That ruling is a glaring error. Article 1410 cannot possibly apply to last wills trial
testaments. The trial court trial plaintiffs' counsel relied upon the case of Dingle vs.
Guillermo, 48 0. G. 4410, allegedly decided by this Court, which cited the ruling in Tipton
vs. Velasco, 6 Phil. 67, that mere lapse of time cannot give efficacy to void contracts, a
ruling elevated to the category of a codal provision in article 1410. The Dingle case was
decided by the Court of Appeals. Even the trial court did not take pains to verify the
misrepresentation of plaintiffs' counsel that the Dingle case was decided by this Court.
An elementary knowledge of civil law could have alerted the trial court to the egregious
error of plaintiffs' counsel in arguing that article 1410 applies to wills.
48

WHEREFORE, the lower court's orders of May 3 trial June 17, 1968 are reversed trial set
aside trial its order of dismissal dated January 10, 1968 is affirmed. Costs against the
private respondents. SO ORDERED.
DIGEST: GALLANOSA VS. ARCANGEL
FACTS:
Florentino Hitosis was a childless widower and was survived by his brother Lito. In
his will, Florentino bequeathed his ½ share in the conjugal estate to his second wife,
Tecla, and, should Tecla predecease him, as was the case, his ½ share would be
assigned to spouses Gallanosa. Pedro Gallanosa was Tecla’s son by her first marriage
who grew up under the care of Florentino. His other properties were bequeathed to his
protégé Adolfo Fortajada.
Upon his death, a petition for the probate of his will was wile. Opposition was
registered by Florentino’s brother, nephews and nieces.
After a hearing, where the oppositors did not present any evidence, the Judge
admitted the will to probate.
The testator’s legal heirs did not appeal from the decree of probate and from the
order of partition and distribution.
Later, the legal heirs filed a case for recovery of 61 parcels of land against Pedro
alleging that they had been in continuous possession of those lands and praying that
they be declared owners thereof.
Pedro moved for a dismissal which was later granted by the Judge on the ground
of res judicata.
The legal heirs did not appeal from the order of dismissal.
15 years after the dismissal of the first civil case and 28 years after the probate of
the will, the legal heirs filed a case for “annulment of the will” alleging fraud and deceit.
The court dismissed said action. However, the court set aside the dismissal after
the heirs filed a motion for reconsideration. Hence, this appeal.
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
ISSUE: Whether the legal heirs have a cause of action for the “annulment” of the will of
Florentino and for the recovery of the 61 parcels of land adjudicated under that will to the
petitioners.
HELD:
NO.
The SC held that the lower court committed a grave abuse of discretion in setting
aside its order of dismissal and ignoring the testamentary case and the first civil case
which is the same as the instant case. It is evident that second civil case is barred by res
judicata and by prescription.
The decree of probate is conclusive as to the due execution or formal validity of the
will. That means that the testator was of sound and disposing mind at the time he
executed the will and was not acting under duress, menace, fraud, or undue influence;
that the will was signed by him in the presence of the required number of witnesses, and
that the will is genuine.
Accordingly, these facts cannot again be questioned in a subsequent proceeding,
not even in a criminal action for the forgery of the will.
After the finality of the allowance of a will, the issue as to the voluntariness of its
execution cannot be raised anymore.
The SC also held that the decree of adjudication, having rendered in a proceeding
in rem, is binding upon the whole world. Moreover, the dismissal of the first civil case,
which is a judgment in personam, was an adjudication on the merits. Thus. It constitutes
a bar by former judgment under the Rules of Court.
The SC also held that the lower court erred in saying that the action for the
recovery of the lands had not prescribed. The SC ruled that the Art. 1410 of NCC (the
action or defense for the declaration of the inexistence of a contract does not prescribe)
cannot apply to last wills and testaments.
The Rules of Court does not sanction an action for “annulment” of a will.
A final decree of probate is conclusive as to the due execution of the will.
A decree of adjudication in a testate proceeding is binding on the whole world.
After the period for seeking relief from a final order or judgment under Rule 38 of the
49
Rules of court has expired, a final judgment or order can be set aside only on the
grounds of: (a) lack of jurisdiction or lack of due process of law or (b) that the judgment
was obtained by means of extrinsic or collateral fraud. In the latter case, the period for
annulling the judgment is four (4) years from the discovery of fraud.
The Civil Law rule that an action for declaration of inexistence of a contract does not
prescribe cannot be applied to last wills and testaments.
SPOUSES BENIGNO QUE AND ERLINDA QUE, AND ADELA URIAN
VS. CA & ISABEL COSTALES
G.R. NO. 150739
AUGUST 18, 2005
DECISION
CARPIO, J.:
The Case
This is a petition for review1 of the Court of Appeals’ Decision2 dated 26 June 2001 and its
Resolution dated 8 November 2001. The 26 June 2001 Decision dismissed petitioners’
petition while the 8 November 2001 Resolution denied their motion for reconsideration.
The Facts
Since 1960, respondent Isabel Arrieta-Costales ("respondent") has been occupying as
owner a parcel of land in Sta. Monica, Magsingal, Ilocos Sur measuring 7,033 square
meters. Designated as Lot No. 6023, the property was originally owned by one Lorenzo
Cariño ("Lorenzo") who died in 1960. In 1997, respondent declared the property in her
name for taxation purposes.
Petitioner Adela Urian ("Urian") is Lorenzo’s grandniece, being the adopted daughter of
Lorenzo’s nephew Gonzalo Cariño ("Gonzalo"), son of Lorenzo’s brother Mariano Cariño.
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
In February 2000, respondent filed a complaint against Urian and petitioners Benigno
Que and Erlinda Que ("spouses Que")3 in the Regional Trial Court, Cabugao, Ilocos Sur,
Branch 24 ("trial court") for "Annulment of Quitclaim[,] Ownership, Possession and
Damages" ("Civil Case No. 503-KC"). Respondent claimed that she is Lorenzo’s
granddaughter and as such, she inherited Lot No. 6023 from him. Respondent sought
the annulment of a Deed of Quitclaim4 dated 17 June 1999 and a handwritten
Acknowledgment5 dated 2 July 1999, both signed by one Isabel Arrieta ("Arrieta"). Under
the Deed of Quitclaim, Arrieta "renounce[d] all [her] rights, interests, participation, title
and possession" over Lot No. 6023 to the spouses Que while in the Acknowledgment,
Arrieta confirmed receiving ₱30,000 from Urian. Respondent alleged that she did not
sign these documents. Respondent also prayed that the trial court declare her owner of
Lot No. 6023 and order petitioners to pay damages.
When respondent filed her Complaint, the spouses Que had taken possession of Lot No.
6023. The spouses Que also declared the land in their name for tax purposes.
After petitioners received the complaint with the summonses on 21 March 2000, they
hired the services of one Atty. Ronnie Ranot ("Atty. Ranot"). However, Atty. Ranot failed
to file petitioners’ Answer. On 4 May 2000, respondent moved to declare petitioners in
default. During the hearing of respondent’s motion on 18 May 2000, only Urian appeared
and manifested that Atty. Ranot was still preparing the Answer. The trial court found
Urian’s manifestation unmeritorious and issued an Order in open court declaring
petitioners in default. In its Order of 15 June 2000, the trial court granted respondent’s
motion to present her evidence ex parte and scheduled the presentation of evidence on
20 June 2000. Respondent presented her evidence accordingly, and the case was
submitted for judgment.
The Trial Court’s Ruling
On 6 September 2000, the trial court rendered judgment in respondent’s favor, the
dispositive portion of which provides:
WHEREFORE, decision is hereby rendered in favor of the plaintiff and against the
defendants, as follows:
1. Adjudging the plaintiff as the true and absolute owner of Lot 6023, located at Brgy.
Sta. Monica, Magsingal, Ilocos Sur and entitled to the exclusive possession thereof;
50
2. Declaring the Deed of Quitclaim and the Acknowledgment Letter/Receipt of no legal
force and effect whatsoever and ordering the de[f]endant [s]pouses Benigno and Erlinda
Que to vacate the land and restore the peaceful possession thereof to the plaintiff;
3. Ordering the Municipal Assessor of Magsingal, Ilocos Sur to recall/[cancel] the Tax
Declaration in the name of [s]pouses Benigno and Erlinda Que and to restore the tax
declaration in the name of plaintiff Isabel Costales; and
4. Ordering the defendants, jointly and severally to pay plaintiff, ₱10,000.00 as and for
[a]ttorney’s fees, ₱50,000.00 as moral damages, ₱5,000.00 as exemplary damages and
the costs of this suit.6
Urian received a copy of the trial court’s Decision on 15 September 2000. The records do
not show when the spouses Que received theirs. On 10 October 2000, petitioners,
through a new counsel, Atty. Benjamin Bateria ("Atty. Bateria"), sought reconsideration or
new trial. Petitioners blamed their previous counsel for the non-filing of their Answer.
Petitioners attached to their motion a Deed of Adjudication With Sale in which Urian, as
alleged sole heir of Gonzalo, adjudicated to herself Lot No. 6023 and sold it to the
spouses Que. Petitioners claimed that in his last will and testament, Lorenzo devised Lot
No. 6023 to Gonzalo.
The trial court denied petitioners’ motion in its Order of 17 November 2000. The trial
court held that as to Urian, its Decision had become final because although she received
a copy of its Decision on 15 September 2000, the motion for reconsideration or new trial
was filed only on 10 October 2000. As to the spouses Que, the trial court held that the
motion was pro forma since no affidavit of merit accompanied the motion. Nor did the
trial court find merit in the Deed of Adjudication With Sale. The trial court noted that
during the conciliation proceedings at the Office of the Municipal Mayor of Magsingal,
Ilocos Sur, the spouses Que relied solely on the Acknowledgment and Deed of Quitclaim
as basis for their claim of ownership of Lot No. 6023.7
On 18 December 2000, petitioners, represented this time by one Atty. Oliver Cachapero
("Atty. Cachapero"), filed with the trial court a petition for relief from judgment under Rule
38 of the 1997 Rules of Civil Procedure ("Rules"). Petitioners claimed that their failure to
file an Answer and to seek reconsideration or new trial on time was due to the excusable
negligence of their previous counsels. Petitioners also invoked "mistake and fraud" as
they were allegedly under the impression that Atty. Ranot had prepared and filed "the
necessary pleading or that the necessary pleading to vacate the judgment and secure
new trial was prepared xxx and filed xxx." This time, petitioners submitted a joint affidavit
of merit where they again invoked the Deed of Adjudication With Sale.
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
In its Order of 27 December 2000, the trial court denied the petition for relief from
judgment. The trial court held that the negligence of their counsels bound petitioners. On
the Deed of Adjudication With Sale, the trial court reiterated its finding in the Order of 17
November 2000 (denying petitioners’ motion for reconsideration or new trial) that it has
no merit.8
Petitioners filed a petition for certiorari in the Court of Appeals to set aside the trial court’s
27 December 2000 Order. Petitioners contended that: (1) the trial court should have
required respondent to file an Answer to their petition instead of dismissing it outright; (2)
their previous counsels’ negligence denied them due process hence they should not be
bound by it; and (3) the Deed of Quitclaim is not incompatible with the Deed of
Adjudication With Sale as the former merely "strengthens" the spouses Que’s ownership
of Lot No. 6023.9
The Court of Appeals’ Ruling
In its Decision of 26 June 2001, the Court of Appeals denied due course to and
dismissed petitioners’ petition. The Court of Appeals held that the trial court did not err in
outrightly dismissing the petition for relief from judgment for insufficiency in form and
substance under Section 4, Rule 38. The appellate court further held that petitioners filed
their petition for relief from judgment beyond the 60-day period under Section 3, Rule 38.
The Court of Appeals also noted that the Rules allow a petition for relief from judgment
only when there is no other available remedy and not when litigants, like petitioners, lose
a remedy by negligence.
On petitioners’ claim that their counsels’ negligence should not bind them, the Court of
Appeals held:
The Petitioners heaped vituperation on their counsel for the latter’s ineptitude and
betrayal of Petitioners[’] trust and confidence for not filing the appropriate pleading to
relieve the Petitioners of their having been declared in default. But then, the Petitioners
were not themselves blameless. They were duty-bound to make periodic inquiries from
their counsel o[n] the status of their case and as to whether the appropriate pleading had
already been filed and the resolution of the Respondent Court, if any, on their pleadings
xxx. If the Petitioners failed to do so and, as it turned out, their counsel failed to prepare
and file the appropriate pleading, then the Petitioners cannot complain. They are bound
by their ineptitude as well as their counsel’s. xxx
It bears stressing that the Respondent Court came out with its Decision only on
September 6, 2000 or after the lapse of more than three (3) months after it issued its
51
Order [of 18 May 2000] declaring the Petitioners in default. In fine, the Petitioners had
more than ample time to file the appropriate pleadings before the appropriate Court.10
Hence, this petition.11 Petitioners contend that —
(I) Respondent Court of Appeals committed grave abuse of discretion in the appreciation
of facts and failed to appreciate that [the] Petition for Relief from judgment arose from a
default order taken against petitioners due to [the] negligence of petitioners[’] counsel;
[and]
(II) Respondent Court of Appeals fail[ed] to notice certain relevant facts that will justify a
different conclusion that petitioners should not lose their case and [their] property through
technicality.12
In reversal of their earlier stance in the Court of Appeals, petitioners no longer question
the procedure the trial court followed in denying their petition for relief from judgment.
Instead, they now claim that since that petition was an "offshoot" of the trial court’s Order
declaring them in default for their counsel’s negligence, petitioners seek excuse from
such negligence to avoid being deprived of property without due process of law.
Petitioners also raise new matters regarding the merits of the trial court’s Decision of 6
September 2000.13
The Issue
The issue is whether the Court of Appeals erred in dismissing petitioners’ petition.
The Court’s Ruling
The petition has no merit.
Petitioners are not Entitled to Relief from Judgment
The Court of Appeals did not err in ruling that petitioners are not entitled to relief from
judgment because their petition was insufficient in form and substance, filed late, and
improperly availed of.
Petitioners Failed to Prove Fraud,
Mistake, or Excusable Negligence
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Under Section 1, Rule 3814 ("Section 1"), the court may grant relief from judgment only
"[w]hen a judgment or final order is entered, or any other proceeding is taken against a
party in any court through fraud, accident, mistake, or excusable negligence xxx." In
their petition for relief from judgment in the trial court, petitioners contended that
judgment was entered against them through "mistake or fraud" because they were
allegedly under the impression that Atty. Ranot had prepared and filed "the necessary
pleading." This is not the fraud or mistake contemplated under Section 1. As used in that
provision, "mistake" refers to mistake of fact, not of law, which relates to the
case.15 "Fraud," on the other hand, must be extrinsic or collateral, that is, the kind which
prevented the aggrieved party from having a trial or presenting his case to the
court.16 Clearly, petitioners’ mistaken assumption that Atty. Ranot had attended to his
professional duties is neither mistake nor fraud.
On the other hand, what petitioners appear to be claiming in this petition is that this Court
should reverse the Court of Appeals and remand the case to the trial court for new trial
on the ground that their previous counsels’ negligence constitutes "excusable
negligence" under Section 1.
This claim is similarly without merit.
Under Section 1, the "negligence" must be excusable and generally imputable to the
party because if it is imputable to the counsel, it is binding on the client.17 To follow a
contrary rule and allow a party to disown his counsel’s conduct would render
proceedings indefinite, tentative, and subject to reopening by the mere subterfuge of
replacing counsel.18 What the aggrieved litigant should do is seek administrative sanctions
against the erring counsel and not ask for the reversal of the court’s ruling.19
Petitioners nevertheless seek exemption from the above rule because their counsels’
negligence allegedly deprived them of their day in court and, if the ruling of the Court of
Appeals stands, they will suffer deprivation of property without due process of law.
Admittedly, this Court has relaxed the rule on the binding effect of counsel’s negligence
and allowed a litigant another chance to present his case "(1) where [the] reckless or
gross negligence of counsel deprives the client of due process of law; (2) when [the
rule’s] application will result in outright deprivation of the client’s liberty or property; or (3)
where the interests of justice so require."20
None of these exceptions obtains here.
52
For a claim of counsel’s gross negligence to prosper, nothing short of clear abandonment
of the client’s cause must be shown.21 Here, what petitioners’ first, second, and third
counsels did was fail to file the Answer, file a belated and defective motion for
reconsideration or new trial, and belatedly and erroneously file a petition for relief from
judgment, respectively. While these acts and omissions can plausibly qualify as simple
negligence, they do not amount to gross negligence to justify the annulment of the
proceedings below.
In Legarda v. Court of Appeals,22 where the Court initially held that the counsel’s failure
to file pleadings at the trial court and later on appeal amounted to gross negligence, the
Court, on respondent’s motion, granted reconsideration and applied the general rule
binding the litigant to her counsel’s negligence. The Court noted that the proceedings
which led to the filing of the petition in that case "were not attended by any irregularity."
The same observation squarely applies here. Neither can petitioners rely on Boyer-
Roxas v. Court of Appeals23 because there, as here, the Court held that the petitioners’
counsel was not grossly negligent.
Nor were petitioners denied procedural due process. In essence, procedural due process
is simply the opportunity to be heard.24 Petitioners were afforded such opportunity. Thus,
petitioners were served a copy of the complaint and the summonses and given 15 days
to file their Answer. While there is no showing from the records when petitioners received
their copy of the 18 May 2000 Order declaring them in default, there is no dispute that
Urian was present at the hearing when the trial court issued that Order in open court.
Petitioners were also served a copy of the trial court’s Decision of 6 September 2000
from which they had 15 days to appeal, seek reconsideration, or new trial. Indeed,
petitioners filed a motion for reconsideration or new trial albeit belatedly and without
complying with proper formalities. Plainly, there was no denial of due process to
petitioners.
But even assuming that the lapses of petitioners’ counsels amount to gross negligence
denying petitioners their day in court, petitioners’ contention that if we sustain the Court
of Appeals they will be deprived of property is baseless.
The spouses Que anchor their claim of ownership to Lot No. 6023 on the Deed of
Adjudication With Sale Urian executed in their favor and on the Deed of
Quitclaim.25 Urian’s claim of ownership over Lot No. 6023 is in turn based on Lorenzo’s
alleged testamentary disposition devising Lot No. 6023 to her adoptive parent, Gonzalo.
As proof of such testamentary disposition, petitioners submitted an affidavit,26 dated 20
October 1940, of Lorenzo’s sister Eusebia Cariño ("Eusebia").
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
The Court finds Eusebia’s affidavit insufficient to support petitioners’ claims.
Under the Spanish Civil Code, the law governing Lorenzo’s alleged will, all wills must be
executed in writing27 except when the testator takes part in any military operation or when
any warlike operation is imminent28 or when the testator29 is in danger of shipwreck.30 In
such cases, the testator can execute the will orally in the presence of at least two
witnesses.31 Failure to comply with these formalities renders the will void.32 Furthermore,
the Code of Civil Procedure requires that wills must be submitted to the proper court for
probate otherwise the same shall not pass either real or personal property.33
Here, petitioners neither presented a copy of Lorenzo’s will nor proved its oral execution
under the circumstances provided in the Spanish Civil Code. Petitioners similarly make
no claim that Lorenzo’s will was allowed in probate. Thus, not only is there no proof that
Lorenzo executed a will, there is also no basis to hold that such will, if indeed executed,
passed Lot No. 6023 to Gonzalo. Significantly, Eusebia did not state in her affidavit that
Lorenzo executed a will. What Eusebia stated was that Lorenzo "instructed" (inbilin) that
Lot No. 6023 should be inherited by Gonzalo. This, if any, merely indicates Lorenzo’s
intent to devise that piece of realty to Gonzalo but does not prove his execution of a will
instituting Gonzalo as heir to Lot No. 6023.
On the Deed of Quitclaim, the Court finds no reason to disturb the trial court’s finding that
respondent’s signature in that document was forged.
In contrast, respondent has been in continuous possession of Lot No. 6023 in the
concept of an owner after Lorenzo died in 1960 until the spouses Que removed her from
that property shortly before respondent filed her complaint in February 2000. While it
does not appear that respondent had registered the land in her name, her uninterrupted
possession of Lot No. 6023 for nearly 40 years (beyond the 30-year extraordinary
acquisitive prescription34 ), coupled with the performance of acts of ownership, such as
payment of real estate taxes, suffices to prove her ownership by prescription.35
The Petition for Relief from Judgment
was Filed Out of Time
Aside from petitioners’ failure to prove any of the grounds for granting relief from
judgment, they also sought relief belatedly. We quote with approval the Court of Appeals’
ruling:
[T]he "Petition for Relief" filed by the Petitioners with the Respondent Court was filed
beyond the reglementary period provided for in Section 3, Rule 38 of the Rules of Court,
quoted, infra:
53

"SEC. 3. Time for filing petition; contents and verification. – A petition provided for in
either of the preceding sections of this Rule must be verified, filed within sixty (60) days
after the petitioner learns of the judgment, final order, or other proceeding to be
set aside, and not more than six (6) months after such judgment or final order was
entered, or such proceeding was taken; and must be accompanied with affidavits
showing the fraud, accident, mistake, or excusable negligence relied upon, and the facts
constituting the petitioner’s good and substantial cause of action or defense, as the case
may be. xxx
As stated in the Order of the Respondent Court, xxx the Petitioner Adela Urian received
a copy of the Decision of the Respondent [Court], on September 15, 2000. Indeed, on
the face of the Petition, the Petitioners admitted that the Petitioner Adela Urian received
a copy of the Decision of the Respondent Court on said date. However, the said
Petitioner filed her "Petition for Relief" with the Respondent Court only on December 18,
2000. By then, the sixty (60)-day period provided for under the said Rule had already
elapsed. Case law has it that the periods provided for by the Rules are fixed, inextendible
and never interrupted and if the Petition is filed beyond the period provided for by the
Rules, the Petition cannot be entertained and must be dismissed.
xxx
While it may be true that the Petitioner Adela Urian filed, on October 12, 2000 a "Motion
for Reconsideration and New Trial", however, the same did not suspend the running of
the period under Rule 38 of the Rules of Court because it was filed beyond the period
therefor[.] xxx
Insofar as the Petitioners Benigno Que, et al., are concerned, they merely alleged, in
their Petition, that they received a copy of the Decision of the Respondent at a much
later date than September 15, 2000 without, however, specifying the date when they, in
fact, received the Decision of the Respondent Court.
xxx
We are not impervious [to] the claim of the Petitioners Benigno Que, in their "Joint
Affidavit of Merit" that they filed their "Petition for Relief from Judgment" seasonably. But
such an allegation is merely a conclusion and not a sufficient showing that their Petition
was filed within the period provided for in Rule 38 of the Rules.36 (Emphasis in the
original)
RELIEF FROM JUDGMENT NOT PROPER
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Lastly, as an equitable remedy, a petition for relief from judgment is available only as a
last recourse, when the petitioner has no other remedy.37 This is not true here because
petitioners had at their disposal other remedies which they in fact availed of, albeit
belatedly or defectively, such as when they filed their motion for reconsideration or new
trial in the trial court. As the Court of Appeals held:
[A] "Petition for Relief from Judgment" is not a general utility tool in the procedural
workshop. The relief granted under Rule 38 of the Rules of Court is of equitable
character and is allowed only when there is no other available or adequate remedy. It is
not regarded with favor. The judgment rendered will not be disturbed where the
complainant has or by exercising proper diligence would have had an adequate remedy
at law. If the complainant lost a remedy at law from an adverse judgment by his xxx
negligence, such inequitable conduct precludes him from relief under Rule 38 of the
Rules of Court.38 xxx
ON THE NEW MATTERS PETITIONERS RAISE
On petitioners’ allegations concerning the merits of the trial court’s Decision of 6
September 2000, petitioners are barred from doing in this appeal what they failed to do in
the trial court, that is, present their case. In any event, none of petitioners’ contentions
has merit.39
WHEREFORE, we DENY the petition. We AFFIRM the Decision dated 26 June 2001
and the Resolution dated 8 November 2001 of the Court of Appeals.
SO ORDERED.
DIGEST: QUE VS. CA
FACTS:
The property under controversy was originally owned by one Lorenzo Cariño who
died in 1960. Petitioner Adela Urian is Lorenzo’s grandniece, being the adopted
daughter of Lorenzo’s nephew Gonzalo Cariño, son of Lorenzo’s brother Mariano Cariño.
Respondent filed a complaint against Urian and petitioners Spouses Que for "Annulment
of Quitclaim, Ownership, Possession and Damages". Respondent claimed that she is
Lorenzo’s granddaughter and as such, she inherited the subject parcel of land from him.
Respondent sought the annulment of a Deed of Quitclaim.
The spouses Que anchor their claim of ownership to the subject parcel of land on
the ‘Deed of Adjudication with Sale’ Urian executed in their favor and on the Deed of
54
Quitclaim. Urian’s claim of ownership over the subject parcel of land is in turn based on
Lorenzo’s alleged testamentary disposition devising the subject parcel of land to her
adoptive parent, Gonzalo. As proof of such testamentary disposition, petitioners
submitted an affidavit, of Lorenzo’s sister Eusebia Cariño.
ISSUE: Whether the affidavit of Eusebia Cariño regarding Lorenzo’s will is sufficient to
prove petitioner’s claim.
HELD:
NO. The Court found Eusebia’s affidavit insufficient to support petitioners’ claims.
Under the Spanish Civil Code, the law governing Lorenzo’s alleged will, all wills
must be executed in writing except when the testator takes part in any military operation
or when any warlike operation is imminent or when the testator is in danger of shipwreck.
In such cases, the testator can execute the will orally in the presence of at least two
witnesses. Failure to comply with these formalities renders the will void.
Here, petitioners neither presented a copy of Lorenzo’s will nor proved its oral execution
under the circumstances provided in the Spanish Civil Code. Petitioners similarly make
no claim that Lorenzo’s will was allowed in probate. Thus, not only is there no proof that
Lorenzo executed a will, there is also no basis to hold that such will, if indeed executed,
passed the subject parcel of land to Gonzalo. Significantly, Eusebia did not state in her
affidavit that Lorenzo executed a will. What Eusebia stated was that Lorenzo instructed
that the subject parcel of land should be inherited by Gonzalo. This, if any, merely
indicates Lorenzo’s intent to devise that piece of realty to Gonzalo but does not prove his
execution of a will instituting Gonzalo as heir to subject parcel of land.
ANITA MANG-OY, assisted by her husband, WILLIAM MANG-OY; LEONORA
MIGUEL, ASSISTED BY HER HUSBAND, MIGUEL OLILA; HELENA TAYNAN, AND
JOSE TUMPAO VS. CA, BANDO TUMPAO, LAMBIA TUMPAO, married to SALMING
PIRAZO, AND ABITO TUMPAO
G.R. NO. L-27421
SEPTEMBER 12, 1986
CRUZ, J.:
We are back to the early 1900's in the cool regions of the Mountain Province, setting of
many legends of adventure and romance among the highlanders of the North. Our story
is not as fanciful, involving as it does not a rivalry for the hand of a beautiful Igorot
maiden but a prosaic dispute over a piece of land. Even so, as in those tales of old, the
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issue shall be decided in favor of the just and deserving albeit according to the dictates
not of the heart but of the law.
The hero of this story we shall call Old Man Tumpao although at the time it all began he
was still a young and vigorous man. He had a first wife by whom he begot three children,
who are the private respondents in this case. 1 Upon her death, he took to himself a
second wife, by whom he had no issue but who had two children she had "adopted"
according to the practice of the Igorots then. 2 It is their children who, with some others,
are the petitioners in this case.
The facts are as simple as the ancient hills.
On September 4, 1937, Old Man Tumpao executed what he called a "last will and
testament" the dispositive portion of which declared:
Lastly, I appoint my son BANDO TUMPAO, whom I named, that after
departing from this life, he shall be the one to carry or fulfill my
Testament, and that he shall have the power to see and dispose all what
I have stated, he shall not change what I have already stated in my
Testament so that there is truth in my will. I will affix my right thumbmark
at the end of my written name because I do not know how to read and
write, after it has been read to me and affirm all what is my Win this 2:00
o'clock in the afternoon this 4th day of September 1937, before those
who are present and have heard what I have stated, Pico La Trinidad,
Benguet, 4th September, 1937. 3
The contents of this document were read to the beneficiaries named therein who at the
time were already occupying the portions respectively allotted to them. In implementation
of this document, they then, on September 7, 1937, executed an agreement providing as
follows:
We who are named children and who will inherit from our father
TUMPAO: BANDO TUMPAO, LAMBIA ABITO, JOSE and LABET, and
we also whose lands are included, SUCDAD BUTIOG, TULINGAN PUL-
OT and ANTHONY MENECIO all of legal age and residing in the town of
La Trinidad, Sub-Province of Benguet we say in truth after swearing
under oath in accordance to law that the testament of our father
TUMPAO who is presently ill by virtue of our right to inherit and also
acknowledge or recognize the lands as included in the area of said land
as appearing in Title No. 416 in the name of our father TUMPAO here in
55
 La Trinidad, Barrio Pico, have heard and understood the Will as told by
him concerning our right to the land which we will inherit and also to
those whose lands which were included in the said Title No. 416 because
we were all called be present and hear his wilt We heard and agreed to
his will as appearing in his testament regarding the land which we will
inherit. We also recognized and agree to the appointment of our brother
BANDO to whom the parcels of land is to be delivered and he will also be
the one, to deliver to us our shares as soon as we will demand the
partition in accordance with the will of our father TUMPAO as soon in the
Testament which we saw and have heard by all.
It is also agreed upon among us in this confirmation that when our
brother BANDO who is appointed to distribute to us our shares we affirm
in this instrument that will answer for all the expenses when it shag be
surveyed so the share of each will be segregated so also with the
approval of the title, which shall appear the name of each of us and that
we do not dispute the land which we are actually working shall pertain to
us as embodied in the said win of our father TUMPAO.
We execute this deed of confirmation in the presence of the Notary Public
here in Baguio so that this Will, be used as our agreement so also with
the wig of our father so that they be one to be followed as regard upon by
all and we affix our right thumbmark at the end of our written name
because we do not know how to read and write this 7th day of
September, 1937 in the City of Baguio. 4
Two days later, Old Man Tumpao died.
The parties remained in possession of the lots assigned to them, apparently in
obedience to the wish of Old Man Tumpao as expressed in his last "will" and affirmed by
the other abovequoted instrument. But things changed unexpectedly in 1960, twenty
three years later, that brought this matter to the courts.
On November 4, 1960, the respondents executed an extrajudicial partition in which they
divided the property of Old Man Tumpao among the three of them only, to the exclusion
of the other persons mentioned in the above-quoted documents. 5 By virtue of this partition, Old
6
Man Tumpao's title was cancelled and another one was issued in favor of the three respondents.
It is this title that is now being questioned by the petitioners, who are suing for
reconveyance. They had been sustained by the trial court, 7 which, however, was reversed by the
Court of Appeals. They are before this Court to challenge that reversal.
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In deciding against them, the Court of Appeals held that the "will" executed by Old Man
Tumpao was null and void because it had not been probated The agreement of partition
among the supposed beneficiaries of the will was nullified because it was a partition inter
vivos and had not been approved by the Director of the Bureau of Non-Christian Tribes.
It was likewise held that the land in dispute was acquired during Old Man Tumpao's first
marriage although it was registered during his second marriage and so the petitioners
were liable in rentals for the lots occupied by them, as well as attorney's fees. 8
After examining the musty records, we sustain the ruling-made both by the trial court and
the Court of Appeals-that the will, not having been probated as required by law, was
inoperative as such. The settled principle, as announced in a long line of decisions in
accordance with the Rules of Court, is that no will shall pass either real or personal
property unless it is proved or allowed in court. 9
We find, however, that the document may be sustained on the basis of Article 1056 of
the Civil Code of 1899, which was in force at the time the said document was executed
by Old Man Tumpao in 1937. The said article reads as follows:
Art. 1056. If the testator should make a partition of his properties by an
act inter vivos, or by win, such partition shall stand in so far as it does not
prejudice the legitime of the forced heirs.
On this score, we agree with the trial court. The applicable decision is Albela vs.
Albela, 10 also decided by the Court of Appeals, with Justice J.B.L. Reyes as the ponente.
In this case, Agustin Albela executed on January 19, 1935, a deed of partition dividing
two parcels of land between hisdaughters, Eduarda and Restituta, who indicated their
conformity by signing the instrument. The took possession of their respective shares
upon his death, but fourteen years later, Restituta ejected Eduarda from her lot, alleging
title by purchase from a third party and denying the existence of the partition. Eduarda
sued for recovery and was upheld by the trial court on the basis of the deed of partition.
Let Justice J.B.L. Reyes, who later became a distinguished member of this Court, take
over at this point:
In their argument, appellants do not question the authenticity of the above
document, but argue against its validity, on the grounds summarized in
their brief (p. 7), as follows:
56
Therefore the allegations of the plaintiff-appellee, Eduarda Albela, rest on
a document which defies classification. If it is a deed of partition, it is null
and void because it is not embodied in a public document; if it is a simple
donation of realty, it is also null and void, because it is not in a public
document and there is no acceptance; if it is a donation Mortis Causa,
certainly it is null and void because it does not follow the rules governing
testamentary succession; and if ever it is to be classified as a will, more
so, it is still null and void because it does not conform to the requirements
of Section 618, Act 190 as amended by Act 2645.
None of these objections is valid in law. The appellants evidently fail to
realize that Article 1056 of the Civil Code of 1889 authorizes a testator to
partition inter vivos his property, and distribute them among his heirs, and
that this partition is not necessarily either a donation nor a testament, but
an instrument of a special character, sui generis, which is revocable at
any time by the causante during his lifetime, and does not operate as a
conveyance of title until his death. It derives its binding force on the heirs
from the respect due to the will of the owner of the property, limited only
by his creditors and the intangibility of the legitime of the forced heirs. 'El
testador es libre y sus herederos han de pasar por lo que haga en cuanto
no perjudique la legitime de los forsozos. Inutil es sonar en otras
limitaciones que no existen.' (7 Manresa Commentaries, 6th Ed., p. 639.
That such partition is not governed by the rules of wills or donations inter
vivos is a consequence of its special nature. Says the learned Manresa
on this point:
Con estas palabras (en acto entre vivos) la ley en el Articulo 1056, como
en el 1057, que despues examinaremos, alude a las formalidades con
que puede practicarse la particion, no a los efectos de esta, significando
que para ella no es preciso que intervengan las formas solemnes que
todo testamento o acto de ultima voluntad en general requiere. Ni aun
sera preciso guardar las formalidades especiales de las
donaciones, porque no se trata de disponer a titulo gratuito, sino de
divider aquellos bienes de que ya anteriormente sedispuso en forma
legal (Emphasis supplied. Op. Cit., p. 635)
It was sufficient, therefore, that the partition Exhibit A, should be in
writing. It does not have to be in a public document except to affect third
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persons (Art. 1280), being valid between the parties who signed it in its
present form.
If any invalidity could be alleged against the partition, it would lie in the
absence of a previous testament preceding it (Legasto v. Verzosa, 54
Phil. 766). And even this may not be indispensable in the present case,
for the testator's partition did not depart from the shares allotted to his
heirs by the law of intestacy. Nor is a prior win necessary under Article
1080 of the new Civil Code, which replaced the word 'testator' in Article
1056 of the Code of 1889 with the broader term 'person.'
Be that as it may, the nullity of the partition Exhibit A would not alter the
result. There being only two daughters surviving the deceased Agustin,
each one of them would necessarily be entitled to one-half of each of the
two parcels he owned at his death, and Agustin's former ownership is no
longer disputed by the appellants in this instance. In addition, since both
daughters signed the partition Exhibit A, its terms would bind both, and
estop them from asserting a different interest. Appellants' act; in
appropriating the whole inheritance and its fruits can find no support in
law or justice.
There is no difference in legal effect between Agustin Albela's deed of partition and Old
Man Tumpao's "last will and testament." Both are sustainable under Article 1056 of the
Civil Code, which was in force at the time they were executed Even as Agustin Albela's
partition was signed by the two daughters themselves, so was Old Man Tumpao's "will"
affirmed by the beneficiaries in their agreement of September 7, 1937, which reiterated
and recognized the terms of such "will." While not valid as a partition inter vivos under
Articles 816 and 1271 of the old Civil Code, it was nevertheless binding on the parties as
proof of their conformity to the dispositions made by Old Man Tumpao in his "last will and
testament."
As the trial court put it:
The will alone, 'Exh. B', would be inoperative for the simple reason that it
was not probated, However, when the persons who were named therein
as heirs and beneficiaries voluntarily agreed in writing to abide by its
terms probably to save the expenses of probate. and furthermore, carried
out its terms after the death of the testator until now, then it must be held
to be binding between them.
57
 Said agreement was not a disposal of inheritance by a prospective heir
before the death of the testator, but an agreement to carry out the will. It
was not contested by the defendants and after the lapse of 25 years their
right, if any, to assail it has prescribed under Art. 1144 of the Civil Code.
Art. 1144-The following actions must be brought ten years from the time
the right of action accrues:
1) upon a written contract;
2) Upon an obligation created by law;
3) Upon a judgment.
Any formal defect of the deed, 'Exh. 'C', was cured by the lapse of time.
What the plaintiffs received had an aggregate area of less than 1/3 of the
land of Old Tumpao. It covers about 11,000 square meters while the total
area was more than 35,000 square meters, Under the old Civil Code, it
was within the free disposable portion of ones' estate despite the
existence of any forced heirs. (See old Civil Code, Art. 808)
In view of the foregoing considerations, the defendants are ordered to
execute a deed of conveyance in favor of the plaintiffs of the areas
respectively owned and occupied by them and to pay the costs.
Sucdad Butiog is ordered to pay the defendants P160.00 more as a
reasonable amount of his additional share in the expenses of segregating
his lot but the (defendants) are ordered to execute a deed of conveyance
in his favor of the said lot owned by him.
The expenses of Survey and segregation must be borne by the plaintiffs.
We may add that the agreement entered into by the parties in implementation of Old Man
Tumpao's "will" did not have to be approved by the Director of the Bureau of Non-
Christian Tribes because the Administrative Code of Mindanao and Sulu was not
extended to the Mountain Province. 11 Moreover, the document was not a conveyance of properties or
property right. 12
It remains to state that the property in dispute having been registered in 1917, the
presumption is that it was acquired during the second marriage and so cannot be
claimed by the respondents as the conjugal property of their mother and Old Man
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
Tumpao. Hence, they are not entitled to retain the entire land as their exclusive
inheritance or to collect rentals for the lots occupied by the petitioners.
The trial judge, the Hon. Feliciano Belmonte, was correct in ordering the reconveyance to
the petitioners of their respective shares. We affirm his decision in toto.
How much simpler was life among the natives in the North during the early days, when
right and wrong were weighed according to the primal code of the ancient hills. Even so,
though that past is gone forever, justice now, as it was then, is still for the deserving.
WHEREFORE, the decision of the Court of Appeals is REVERSED and that of the trial
court reinstated, with costs against the respondents.
SO ORDERED.
DIGEST: MANG-OY VS. CA
FACTS:
In 1937, Old Man Tumpao (Tumpao) executed a last will and testament appointing
his son, Bando Tumpao with the power to “see and dispose” of what was stated in the
will exactly as it was stated. Tumpao’s beneficiaries then executed a deed of
confirmation that they have heard and understood the will concerning their rights to the
lands they would inherit. Two days later, Tumpao died.
The parties remained in possession of the lots assigned to them, apparently in
obedience to the wish of Old Man Tumpao as expressed in his last "will" and affirmed by
the other abovequoted instrument. But things changed unexpectedly in 1960, twenty-
three years later, that brought this matter to the courts.
On November 4, 1960, the respondents executed an extrajudicial partition in which
they divided the property of Old Man Tumpao among the three of them only, to the
exclusion of the petitioners. Petitioners are suing for reconveyance.
The RTC sustained their claim for reconveyance, but it was reversed by the CA.
The CA held that the will executed by Tumpao was null and void because it had not been
probated.
ISSUES:
58
 (1) Was the will of Tumpao valid?
(2) Can the will be sustained?
HELD:
(1) NO. The will, not having been probated as required by law, was inoperative as such.
The settled principle, as announced in a long line of decisions in accordance with the
Rules of Court, is that no will shall pass either real or personal property unless it is
proved or allowed in court.
(2) YES, on the basis of Article 1056 of the Civil Code of 1899, which was in force at the
time the said document was executed by Old Man Tumpao in 1937. It reads:
Art. 1056. If the testator should make a partition of his properties by an act inter vivos, or
by win, such partition shall stand in so far as it does not prejudice the legitime of the
forced heirs.
Article 1056 of the Civil Code of 1889 authorizes a testator to partition inter
vivos his property, and distribute them among his heirs, and that this partition is not
necessarily either a donation nor a testament, but an instrument of a special
character, sui generis, which is revocable at any time by the causante during his lifetime,
and does not operate as a conveyance of title until his death. It derives its binding force
on the heirs from the respect due to the will of the owner of the property, limited only by
his creditors and the intangibility of the legitime of the forced heirs.
While not valid as a partition inter vivos under Articles 816 and 1271 of the old Civil
Code, it was nevertheless binding on the parties as proof of their conformity to the
dispositions made by Old Man Tumpao in his "last will and testament."
The will alone would be inoperative for the simple reason that it was not probated,
However, when the persons who were named therein as heirs and beneficiaries
voluntarily agreed in writing to abide by its terms probably to save the expenses of
probate. and furthermore, carried out its terms after the death of the testator until now,
then it must be held to be binding between them.
Said agreement is not a disposal of inheritance by a prospective heir before the
death of the testator, but an agreement to carry out the will.
The agreement entered into by the parties in implementation of Old Man Tumpao's "will"
did not have to be approved by the Director of the Bureau of Non-Christian Tribes
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
because the Administrative Code of Mindanao and Sulu was not extended to the
Mountain Province.
It remains to state that the property in dispute having been registered in 1917, the
presumption is that it was acquired during the second marriage and so cannot be
claimed by the respondents as the conjugal property of their mother and Old Man
Tumpao. Hence, they are not entitled to retain the entire land as their exclusive
inheritance or to collect rentals for the lots occupied by the petitioners.
LEONIDA CORONADO, FELIX BUENO, MELANIA RETIZOS, BERNARDINO
BUENASEDA AND JOVITA MONTEFALCON VS. CA AND JUANA BUENO
ALBOVIAS
191 SCRA 814
G.R. NO. 78778
DECEMBER 3, 1990
DECISION
PARAS, J.:
This is a petition for review on certiorari seeking to reverse the decision* of the
respondent appellate court dated March 3, 1987 CA-G.R. CV No. 06911 entitled "Juana
(Bueno) Albovias et al., v. Leonida Coronado, et al.," affirming the decision of the lower
court, the decretal portion of which reads:: nad
"WHEREFORE, premises considered, judgment is hereby rendered:
1. Declaring Leonida Coronado to have no title or interest over the property in
question, hence, has no authority to dispose of the same in favor of her co-
defendants;
2. Declaring the sales executed by Coronado and subsequent transactions
involving the same property null and void ab initio;
3. Declaring the plaintiff to be the true and legal owner of the subject parcel of
land;
4. Ordering the defendants to vacate the subject premises and to surrender
possession thereof unto the plaintiff;
59
 5. Ordering the defendants to jointly and severally pay unto the plaintiff the sum
of P2,000.00 as attorney's fees and P10,000.00 as moral and exemplary
damages.
Costs against the defendants." (Rollo, p. 17)
As found by the respondent appellate court, the property subject of this case is a parcel
of land situated in Nagcarlan, Laguna, containing 277 square meters, more particularly
described as follows:: nad
"A parcel of land situated in the Poblacion, Municipality of Nagcarlan, province of
Laguna. Bounded on the North, by property of Epifania Irlandez (formerly
Bonifacio Formentera); on the East, by that of Julio Lopez; on the South, by that
of Dalmacio Monterola (formerly Domingo Bueno); and on the West, by C. Lirio
Street. Containing an area of two hundred seventy seven (277) square meters,
more or less. Assessed at P3,320.00 under tax declaration No. 241." (Ibid., p. 15)
Said parcel of land is being contested by Juana Albovias, herein private respondent, on
the one hand, and Leonida-Coronado, Felix Bueno, Melania Retizos, Bernardino
Buenseda and Jovita Montefalcon, herein petitioners, on the other hand.
Juana Albovias (JUANA, for brevity) claims that the property in question is a portion of a
bigger lot referred to as Parcel G in the last will and testament executed in 1918 by
Melecio Artiaga, grandfather of JUANA. This bigger lot was inherited under that will by
JUANA, her brother Domingo Bueno, and two other grandchildren, namely Bonifacio and
Herminigildo, both surnamed Formentera. Parcel G is described as follows:
"Isang lagay na lupa na ang bahagi ay walang tanim na halaman at ang bahagi naman
ay may tanim na saguing, tumatayo sa gawin Canloran ng Calle Avenida Rizal nitong
Nagcarlan, at humahangan sa Ibaba; sa ari cong Testador; sa Silangan, sa cay Enrique
Jovellano; sa Ilaya, sa namatay na Perfecto Nanagas, at sa Canloran, tubig na
pinamamagatang San Cido." (Ibid., p. 16)
JUANA further claims that sometime in 1925 or 1926, C. Lirio Street was created by the
Municipality of Nagcarla traversing said Parcel G and thus dividing it into two portions,
one on the west of C. Lirio St. and the other to the east of said street. Parcel G was
divided by the heirs in the following manner; the land was divided into two portions, the
northern portion of which was adjudicated in favor of the Formenteras and the southern
portion was given to JUANA and Doming Bueno. The southern portion in turn was
partitioned between JUANA and Domingo Bueno, the former getting the northern part
adjoining the lot of the Formenteras, and the latter the southern part which adjoins the lot
of Perfecto Nanagas (not owned by Dalmacio Monterola). The part allocated to Domingo
was later sold by him to Dalmacio Monterola, owner of the adjoining property (Ibid.).: nad
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
Moreover, JUANA claims that her property was included together with the two parcels of
land owned by Dalmacio Monterola, which were sold by Monterola's successor-in-
interest Leonida Coronado (now married to Felix Bueno) to Melania Retizos on April 18,
1970. Melania Retizos in turn sold the lots, including that one being claimed by JUANA,
to the spouse Bernardino Buenaseda and Jovita Montefalcon, now the present
possessors thereof, sometime in 1974 (Ibid., pp. 16-17).
On the other hand, Leonida Coronado and her co-petitioners (CORONADO, for brevity)
claim that the property in question was bequeathed to Leonida Coronado under a Will
executed by Dr. Dalmacio Monterola, who was allegedly in possession thereof even
before the outbreak of World War II (Ibid., p. 107).
Parenthetically, said will was probated under Sp. Proc. No. SC-283, entitled "Testate
Estate of the Deceased Monterola Leonida F. Coronado, petitioner (Ibid., p. 105).
JUANA, together with her husband, opposed the said probate. Despite their opposition,
however, the Will was allowed by the then Court of First Instance of Laguna, Sta. Cruz
Branch (Ibid., p. 106). On appeal, said decision was affirmed by the Court of Appeals in
CA-G.R. No. 40353, entitled "Leonida F. Coronado, petitioner-appellee v. Heirs of Dr.
Dalmacio Monterola, oppositors-appellants" (Ibid.). It is not apparent, however, from the
record whether or not said decision has already become final and executory.
As a result of the conflicting claims over the property in question, JUANA filed an action
for quieting of title, declaratory relief and damages against CORONADO in the Regional
Trial Court of the Fourth Judicial Region, Branch XXVI, Sta. Cruz, Laguna, docketed as
Civil Case No. 7345 (Ibid., p. 4).
As adverted to above (first par.), the lower court rendered judgment in favor of JUANA.
Not satisfied with the decision of the lower court, CORONADO elevated the case to the
Court of Appeals, which affirmed the decision appealed from (Ibid., p. 20). Hence, this
petition.:-cralaw
CORONADO raised the following assigned errors:
I
THE RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN ARRIVING AT A
CONCLUSION WHICH IS CONTRARY TO THE FACTS AND CIRCUMSTANCES OF
THE CASE AND IN NOT APPLYING THE APPLICABLE PROVISION OF LAW AND
JURISPRUDENCE LAID DOWN BY THIS HONORABLE COURT. (Ibid., p. 108)
II
THERE IS NO EVIDENCE PRESENTED TO SHOW THAT THE LAND IN QUESTION
CLAIMED BY PRIVATE RESPONDENT IS THE SAME PROPERTY ADJUDICATED TO
JUANA BUENO UNDER THE WILL OF THE DECEASED MELECIO ARTIAGA;
60
NEITHER IS THERE EVIDENCE TO SHOW THAT SAID WILL HAD BEEN PROBATED.
(Ibid., p. 114)
III
PRIVATE RESPONDENT IS IN ESTOPPEL FROM QUESTIONING THE OWNERSHIP
OF THE PETITIONER OVER THE LAND IN QUESTION HAVING FAILED TO RAISE
THE SAME IN THE ESTATE PROCEEDING IN THE TRIAL COURT AND EVEN ON
APPEAL. (Ibid., p. 119)
IV
THE RESPONDENT COURT OF APPEALS MISAPPRECIATED THE EVIDENCE
SUBMITTED AND FACTS ADMITTED ON RECORD. IT THEREFORE COMMITTED
GRAVE AND SERIOUS ERROR. (Ibid., p. 121)
As required by this Court, CORONADO filed their memorandum on May 8, 1989 (Ibid., p.
105); while that of JUANA was filed on October 13, 1989 (Ibid., p. 139).
The petition is devoid of merit.
Under the first assigned error, CORONADO assails the respondent appellate court's
finding that Dr. Dalmacio Monterola could not have acquired the subject land by
acquisitive prescription. Citing Art. 1116 of the New Civil Code in relation to Section 41 of
the Code of Civil Procedure, CORONADO claims that JUANA had already foreclosed
whatever right or legal title she had over the property in question, the reason being that
Monterola's continued possession of the said property for over ten years since 1934
ripened into full and absolute ownership (Ibid., p. 112).
The argument has no factual basis.
Time and again, it has been ruled that the jurisdiction of the Supreme Court in cases
brought to it from the Court of Appeals is limited to reviewing and revising the errors of
law imputed to it, its findings of fact being conclusive. It is not the function of the
Supreme Court to analyze or weigh such evidence all over again, its jurisdiction being
limited to reviewing errors of law that might have been committed. Absent, therefore, a
showing that the findings complained of are totally devoid of support in the record, so
that they are so glaringly erroneous as to constitute serious abuse of discretion, such
findings must stand, for the Supreme Court is not expected or required to examine or
contrast the oral and documentary evidence submitted by the parties (Andres v.
Manufacturers Hanover & Trust Corporation, G.R. 82670, September 15, 1989). There
are no convincing reasons in the instant case to depart from this rule.
As found by the respondent appellate court, Monterola never claimed ownership over the
property in question. As a matter of fact, one of the deeds of donation executed by
Monterola in favor of Leonida Coronado acknowledged that the boundary owner on the
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
property conveyed to her is JUANA. This is precisely the reason why during the lifetime
of the late Dalmacio Monterola, JUANA had always been allowed to enter and reap the
benefits or produce of the said property. It was only after the death of said Monterola in
1970 that Leonida Coronado prohibited JUANA from entering it (Ibid., p. 18).:- nad
Even assuming arguendo that Monterola was indeed in continued possession of the said
property for over ten years since 1934, said possession is insufficient to constitute the
fundamental basis of the prescription. Possession, under the Civil Code, to constitute the
foundation of a prescriptive right, must be possession under claim of title (en concepto
de dueno), or to use the common law equivalent of the term, it must be adverse. Acts of
possessory character performed by one who holds by mere tolerance of the owner are
clearly not en concepto de dueno, and such possessory acts, no matter how long so
continued, do not start the running of the period of prescription (Manila Electric Company
v. Intermediate Appellate Court, G.R. 71393, June 28, 1989).
In this case, Monterola, as found by the respondent appellate court and the lower court,
never categorically claimed ownership over the property in question, much less his
possession thereof en concepto de dueno. Accordingly, he could not have acquired said
property by acquisitive prescription.
Anent the contention of CORONADO that Leonida Coronado could tack her possession
to that of Monterola, so that claim of legal title or ownership over the subject property,
even against the petitioners, the Buenasesas, who are purchasers for value and in good
faith, is a foregone or settled issue, the respondent appellate court aptly answered the
same in this wise:
"It follows that Leonida Coronado could not have derived ownership of the land in
question from her predecessor-in-interest Dalmacio Monterola, whether by prescription
or by some other title. Neither can she claim acquisitive prescription in her own name. It
was only in 1970 after the death of Dalmacio Monterola that she asserted her claim of
ownership adverse to that of plaintiff-appellee. Having knowledge that she had no title
over the land in question, she must be deemed to have claimed it in bad faith. Under
Article 1137 of the Civil Code, ownership and other real rights over immovables prescribe
through uninterrupted adverse possession thereof for thirty years, without need of title or
good faith. And even granting that she had no notice or defect in her title and was,
therefore, in good faith, a period of ten years of possession is necessary for her to
acquire the land by ordinary prescription. (Article 1134, Civil Code). But she can claim to
have possessed the land only in 1968, the year the Monterola lots were donated to her.
The period, however, was interrupted in 1975, or 7 years after, when the complaint below
was filed." (Rollo, pp. 18-19)
Under the second assigned error, CORONADO claims that the will under which JUANA
inherited the property in question from her grandfather, Melecio Artiaga, was never
probated; hence, said transfer for ownership was ineffectual considering that under Rule
61
75, Sec. 1 of the Rules of Court (formerly Sec. 125 of Act No. 190, no will shall pass
either real or personal property unless it is proved and allowed in the proper court (Ibid.,
p. 115).
The contention is without merit.chanrobles virtual law library
While it is true that no will shall pass either real or personal property unless it is proved
and allowed in the proper court (Art. 838, Civil Code), the questioned will, however, may
be sustained on the basis of Article 1056 of the Civil Code of 1899, which was in force at
the time said document was executed by Melecio Artiaga in 1918. The said article read
as follows:
"Article 1056. If the testator should make a partition of his properties by an act inter vivos,
or by will, such partition shall stand in so far as it does not prejudice the legitime of the
forced heir." (Mang-Oy v. Court of Appeals, 144 SCRA 33 [1986])
In this case, nowhere was it alleged nor shown that Leonida Coronado is entitled to
legitime from Melecio Artiaga. The truth of the matter is that the record is bereft of any
showing that Leonida Coronado and the late Melecio Artiaga were related to each other.
Under the third assigned error, CORONADO claims that JUANA is estopped from
questioning the ownership of Leonida Coronado over the land in question having failed to
raise the same in the estate proceedings in the trial court and even on appeal (Rollo, p.
119).
The contention is likewise without merit.
Normally, the probate of a will does not look into its intrinsic validity. The authentication
of a will decides no other questions than such as touch upon the capacity of the testator
and the compliance with those requisites or solemnities which the law prescribes for the
validity of the wills. It does not determine nor even by implication prejudge the validity or
efficiency of the provisions of the will, thus may be impugned as being vicious or null,
notwithstanding its authentication. The question relating to these points remain entirely
unaffected, and may be raised even after the will has been authenticated (Maninang, et
al., v. Court of Appeals, 114 SCRA 473 [1982]). Consequently, JUANA is not estopped
from questioning the ownership of the property in question, notwithstanding her having
objected to the probate of the will executed by Monterola under which Leonida Coronado
is claiming title to the said property.:-cralaw
Under the fourth assigned error, it is alleged by CORONADO that JUANA's petition is
weak for want of factual and legal support; the weakness of JUANA's position lies in the
fact that she did not only fail to identify the subject land, but also failed to explain the
discrepancy in the boundary of the property she is claiming to be hers (Rollo, p. 125).
The contention is unavailing.
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
The fact that JUANA failed to identify the property in question and to explain the
discrepancy in the boundary of said property, assuming they are true, is immaterial, in
view of the findings of the lower court as to the identity of the property in question.
Moreover, the lower court found sufficient evidence to support the conclusion that the
property in question is the same property adjudicated to JUANA under the will of Melecio
Artiaga, and that CORONADO has no right whatsoever to said property (Ibid., p. 20).
Such findings are conclusive upon this Court (Reynolds Philippine Corporation v. Court
of Appeals, 169 SCRA 220 [1989]).
PREMISES CONSIDERED, the decision appealed from is hereby AFFIRMED.
SO ORDERED.
DIGEST: CORONADO VS. CA
As found by the respondent appellate court, Monterola never claimed ownership
over the property in question. As a matter of fact, one of the deeds of donation executed
by Monterola in favor of Leonida Coronado acknowledged that the boundary owner on
the property conveyed to her is JUANA. This is precisely the reason why during the
lifetime of the late Dalmacio Monterola, JUANA had always been allowed to enter and
reap the benefits or produce of the said property. It was only after the death of said
Monterola in 1970 that Leonida Coronado prohibited JUANA from entering it.
Even assuming arguendo that Monterola was indeed in continued possession of
the said property for over ten years since 1934, said possession is insufficient to
constitute the fundamental basis of the prescription. Possession, under the Civil Code, to
constitute the foundation of a prescriptive right, must be possession under claim of title
(en concepto de dueno), or to use the common law equivalent of the term, it must be
adverse. Acts of possessory character performed by one who holds by mere tolerance of
the owner are clearly not en concepto de dueno, and such possessory acts, no matter
how long so continued, do not start the running of the period of prescription.
While it is true that no will shall pass either real or personal property unless it is
proved and allowed in the proper court (Art. 838, Civil Code), the questioned will,
however, may be sustained on the basis of Article 1056 of the Civil Code of 1899, which
was in force at the time said document was executed by Melecio Artiaga in 1918. The
said article read as follows:
"Article 1056. If the testator should make a partition of his properties by
an act inter vivos, or by will, such partition shall stand in so far as it does
62
 not prejudice the legitime of the forced heir." (Mang-Oy v. Court of
Appeals, 144 SCRA 33 [1986])
It does not determine nor even by implication prejudge the validity or efficiency of
the provisions of the will, thus may be impugned as being vicious or null, notwithstanding
its authentication. The question relating to these points remain entirely unaffected, and
may be raised even after the will has been authenticated (Maninang, et al., v. Court of
Appeals, 114 SCRA 473 [1982]). Consequently, JUANA is not estopped from
questioning the ownership of the property in question, notwithstanding her having
objected to the probate of the will executed by Monterola under which Leonida Coronado
is claiming title to the said property.
Moreover, the lower court found sufficient evidence to support the conclusion that
the property in question is the same property adjudicated to JUANA under the will of
Melecio Artiaga, and that CORONADO has no right whatsoever to said property (Ibid., p.
20). Such findings are conclusive upon this Court (Reynolds Philippine Corporation v.
Court of Appeals, 169 SCRA 220 [1989]).
UY KIAO ENG
VS. NIXON LEE
G.R. NO. 176831
JANUARY 15, 2010
DECISION
NACHURA, J.:
Before the Court is a petition for review on certiorari under Rule 45 of the Rules of Court,
assailing the August 23, 2006 Amended Decision1 of the Court of Appeals (CA) in CA-
G.R. SP No. 91725 and the February 23, 2007 Resolution,2 denying the motion for
reconsideration thereof.
The relevant facts and proceedings follow.
Alleging that his father passed away on June 22, 1992 in Manila and left a holographic
will, which is now in the custody of petitioner Uy Kiao Eng, his mother, respondent Nixon
Lee filed, on May 28, 2001, a petition for mandamus with damages, docketed as Civil
Case No. 01100939, before the Regional Trial Court (RTC) of Manila, to compel
petitioner to produce the will so that probate proceedings for the allowance thereof could
be instituted. Allegedly, respondent had already requested his mother to settle and
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
liquidate the patriarch’s estate and to deliver to the legal heirs their respective
inheritance, but petitioner refused to do so without any justifiable reason.3
In her answer with counterclaim, petitioner traversed the allegations in the complaint and
posited that the same be dismissed for failure to state a cause of action, for lack of cause
of action, and for non-compliance with a condition precedent for the filing thereof.
Petitioner denied that she was in custody of the original holographic will and that she
knew of its whereabouts. She, moreover, asserted that photocopies of the will were given
to respondent and to his siblings. As a matter of fact, respondent was able to introduce,
as an exhibit, a copy of the will in Civil Case No. 224-V-00 before the RTC of Valenzuela
City. Petitioner further contended that respondent should have first exerted earnest
efforts to amicably settle the controversy with her before he filed the suit.4
The RTC heard the case. After the presentation and formal offer of respondent’s
evidence, petitioner demurred, contending that her son failed to prove that she had in her
custody the original holographic will. Importantly, she asserted that the pieces of
documentary evidence presented, aside from being hearsay, were all immaterial and
irrelevant to the issue involved in the petition—they did not prove or disprove that she
unlawfully neglected the performance of an act which the law specifically enjoined as a
duty resulting from an office, trust or station, for the court to issue the writ of mandamus.5
The RTC, at first, denied the demurrer to evidence.6 In its February 4, 2005
Order,7 however, it granted the same on petitioner’s motion for reconsideration.
Respondent’s motion for reconsideration of this latter order was denied on September
20, 2005.8 Hence, the petition was dismissed.
Aggrieved, respondent sought review from the appellate court. On April 26, 2006, the CA
initially denied the appeal for lack of merit. It ruled that the writ of mandamus would issue
only in instances when no other remedy would be available and sufficient to afford
redress. Under Rule 76, in an action for the settlement of the estate of his deceased
father, respondent could ask for the presentation or production and for the approval or
probate of the holographic will. The CA further ruled that respondent, in the proceedings
before the trial court, failed to present sufficient evidence to prove that his mother had in
her custody the original copy of the will.91avvphi1
Respondent moved for reconsideration. The appellate court, in the assailed August 23,
2006 Amended Decision,10 granted the motion, set aside its earlier ruling, issued the writ,
and ordered the production of the will and the payment of attorney’s fees. It ruled this
time that respondent was able to show by testimonial evidence that his mother had in her
possession the holographic will.
63
Dissatisfied with this turn of events, petitioner filed a motion for reconsideration. The
appellate court denied this motion in the further assailed February 23, 2007 Resolution.11
Left with no other recourse, petitioner brought the matter before this Court, contending in
the main that the petition for mandamus is not the proper remedy and that the testimonial
evidence used by the appellate court as basis for its ruling is inadmissible.12
The Court cannot sustain the CA’s issuance of the writ.
The first paragraph of Section 3 of Rule 65 of the Rules of Court pertinently provides
that—
SEC. 3. Petition for mandamus.—When any tribunal, corporation, board, officer or
person unlawfully neglects the performance of an act which the law specifically enjoins
as a duty resulting from an office, trust, or station, or unlawfully excludes another from
the use and enjoyment of a right or office to which such other is entitled, and there is no
other plain, speedy and adequate remedy in the ordinary course of law, the person
aggrieved thereby may file a verified petition in the proper court, alleging the facts with
certainty and praying that judgment be rendered commanding the respondent,
immediately or at some other time to be specified by the court, to do the act required to
be done to protect the rights of the petitioner, and to pay the damages sustained by the
petitioner by reason of the wrongful acts of the respondent.13
Mandamus is a command issuing from a court of law of competent jurisdiction, in the
name of the state or the sovereign, directed to some inferior court, tribunal, or board, or
to some corporation or person requiring the performance of a particular duty therein
specified, which duty results from the official station of the party to whom the writ is
directed or from operation of law.14 This definition recognizes the public character of the
remedy, and clearly excludes the idea that it may be resorted to for the purpose of
enforcing the performance of duties in which the public has no interest.15 The writ is a
proper recourse for citizens who seek to enforce a public right and to compel the
performance of a public duty, most especially when the public right involved is mandated
by the Constitution.16 As the quoted provision instructs, mandamus will lie if the tribunal,
corporation, board, officer, or person unlawfully neglects the performance of an act which
the law enjoins as a duty resulting from an office, trust or station.17
The writ of mandamus, however, will not issue to compel an official to do anything which
is not his duty to do or which it is his duty not to do, or to give to the applicant anything to
which he is not entitled by law.18 Nor will mandamus issue to enforce a right which is in
substantial dispute or as to which a substantial doubt exists, although objection raising a
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
mere technical question will be disregarded if the right is clear and the case is
meritorious.19 As a rule, mandamus will not lie in the absence of any of the following
grounds: [a] that the court, officer, board, or person against whom the action is taken
unlawfully neglected the performance of an act which the law specifically enjoins as a
duty resulting from office, trust, or station; or [b] that such court, officer, board, or person
has unlawfully excluded petitioner/relator from the use and enjoyment of a right or office
to which he is entitled.20 On the part of the relator, it is essential to the issuance of a writ
of mandamus that he should have a clear legal right to the thing demanded and it must
be the imperative duty of respondent to perform the act required.21
Recognized further in this jurisdiction is the principle that mandamus cannot be used to
enforce contractual obligations.22 Generally, mandamus will not lie to enforce purely
private contract rights, and will not lie against an individual unless some obligation in the
nature of a public or quasi-public duty is imposed.23 The writ is not appropriate to enforce
a private right against an individual.24 The writ of mandamus lies to enforce the execution
of an act, when, otherwise, justice would be obstructed; and, regularly, issues only in
cases relating to the public and to the government; hence, it is called a prerogative
writ.25 To preserve its prerogative character, mandamus is not used for the redress of
private wrongs, but only in matters relating to the public.26
Moreover, an important principle followed in the issuance of the writ is that there should
be no plain, speedy and adequate remedy in the ordinary course of law other than the
remedy of mandamus being invoked.27 In other words, mandamus can be issued only in
cases where the usual modes of procedure and forms of remedy are powerless to afford
relief.28 Although classified as a legal remedy, mandamus is equitable in its nature and
its issuance is generally controlled by equitable principles.29 Indeed, the grant of the writ
of mandamus lies in the sound discretion of the court.
In the instant case, the Court, without unnecessarily ascertaining whether the obligation
involved here—the production of the original holographic will—is in the nature of a public
or a private duty, rules that the remedy of mandamus cannot be availed of by respondent
Lee because there lies another plain, speedy and adequate remedy in the ordinary
course of law. Let it be noted that respondent has a photocopy of the will and that he
seeks the production of the original for purposes of probate. The Rules of Court,
however, does not prevent him from instituting probate proceedings for the allowance of
the will whether the same is in his possession or not. Rule 76, Section 1 relevantly
provides:
Section 1. Who may petition for the allowance of will.—Any executor, devisee, or legatee
named in a will, or any other person interested in the estate, may, at any time, after the
64
death of the testator, petition the court having jurisdiction to have the will allowed,
whether the same be in his possession or not, or is lost or destroyed.
An adequate remedy is further provided by Rule 75, Sections 2 to 5, for the production of
the original holographic will. Thus—
SEC. 2. Custodian of will to deliver.—The person who has custody of a will shall, within
twenty (20) days after he knows of the death of the testator, deliver the will to the court
having jurisdiction, or to the executor named in the will.
SEC. 3. Executor to present will and accept or refuse trust.—A person named as
executor in a will shall within twenty (20) days after he knows of the death of the testator,
or within twenty (20) days after he knows that he is named executor if he obtained such
knowledge after the death of the testator, present such will to the court having
jurisdiction, unless the will has reached the court in any other manner, and shall, within
such period, signify to the court in writing his acceptance of the trust or his refusal to
accept it.
SEC. 4. Custodian and executor subject to fine for neglect.—A person who neglects any
of the duties required in the two last preceding sections without excuse satisfactory to the
court shall be fined not exceeding two thousand pesos.
SEC. 5. Person retaining will may be committed.—A person having custody of a will after
the death of the testator who neglects without reasonable cause to deliver the same,
when ordered so to do, to the court having jurisdiction, may be committed to prison and
there kept until he delivers the will.30
There being a plain, speedy and adequate remedy in the ordinary course of law for the
production of the subject will, the remedy of mandamus cannot be availed of. Suffice it to
state that respondent Lee lacks a cause of action in his petition. Thus, the Court grants
the demurrer.
WHEREFORE, premises considered, the petition for review on certiorari is GRANTED.
The August 23, 2006 Amended Decision and the February 23, 2007 Resolution of the
Court of Appeals in CA-G.R. SP No. 91725 are REVERSED and SET ASIDE. Civil Case
No. 01100939 before the Regional Trial Court of Manila is DISMISSED.
SO ORDERED.
DIGEST: UY KIAO ENG VS. LEE
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
FACTS:
Respondent Nixon Lee filed a petition for mandamus with damages against his
mother Uy Kiao Eng, herein petitioner, before the RTC of Manila to compel petitioner to
produce the holographic will of his father so that probate proceedings for the allowance
thereof could be instituted. Respondent had already requested his mother to settle and
liquidate the patriarch’s estate and to deliver to the legal heirs their respective
inheritance, but petitioner refused to do so without any justifiable reason. Petitioner
denied that she was in custody of the original holographic will and that she knew of its
whereabouts. The RTC heard the case. After the presentation and formal offer of
respondent’s evidence, petitioner demurred, contending that her son failed to prove that
she had in her custody the original holographic will. The RTC, at first, denied the
demurrer to evidence. However, it granted the same on petitioner’s motion for
reconsideration. Respondent’s motion for reconsideration of this latter order was denied.
Hence, the petition was dismissed. Aggrieved, respondent sought review from the
appellate court. The CA initially denied the appeal for lack of merit. Respondent moved
for reconsideration. The appellate court granted the motion, set aside its earlier ruling,
issued the writ, and ordered the production of the will and the payment of attorney’s fees.
It ruled this time that respondent was able to show by testimonial evidence that his
mother had in her possession the holographic will. Dissatisfied with this turn of events,
petitioner filed a motion for reconsideration. The appellate court denied this motion. Left
with no other recourse, petitioner brought the matter before this Court, contending in the
main that the petition for mandamus is not the proper remedy and that the testimonial
evidence used by the appellate court as basis for its ruling is inadmissible.
ISSUE: Whether or not mandamus is the proper remedy of the respondent.
HELD:
The Court cannot sustain the CA’s issuance of the writ.
Mandamus is a command issuing from a court of law of competent jurisdiction, in
the name of the state or the sovereign, directed to some inferior court, tribunal, or board,
or to some corporation or person requiring the performance of a particular duty therein
specified, which duty results from the official station of the party to whom the writ is
directed or from operation of law. This definition recognizes the public character of the
remedy, and clearly excludes the idea that it may be resorted to for the purpose of
enforcing the performance of duties in which the public has no interest. The writ is a
proper recourse for citizens who seek to enforce a public right and to compel the
performance of a public duty, most especially when the public right involved is mandated
65
by the Constitution. As the quoted provision instructs, mandamus will lie if the tribunal,
corporation, board, officer, or person unlawfully neglects the performance of an act which
the law enjoins as a duty resulting from an office, trust or station.
The writ of mandamus, however, will not issue to compel an official to do anything
which is not his duty to do or which it is his duty not to do, or to give to the applicant
anything to which he is not entitled by law. Nor will mandamus issue to enforce a right
which is in substantial dispute or as to which a substantial doubt exists, although
objection raising a mere technical question will be disregarded if the right is clear and the
case is meritorious. As a rule, mandamus will not lie in the absence of any of the
following grounds: [a] that the court, officer, board, or person against whom the action is
taken unlawfully neglected the performance of an act which the law specifically enjoins
as a duty resulting from office, trust, or station; or [b] that such court, officer, board, or
person has unlawfully excluded petitioner/relator from the use and enjoyment of a right or
office to which he is entitled. On the part of the relator, it is essential to the issuance of a
writ of mandamus that he should have a clear legal right to the thing demanded and it
must be the imperative duty of respondent to perform the act required.
Recognized further in this jurisdiction is the principle that mandamus cannot be
used to enforce contractual obligations. Generally, mandamus will not lie to enforce
purely private contract rights, and will not lie against an individual unless some obligation
in the nature of a public or quasi-public duty is imposed. The writ is not appropriate to
enforce a private right against an individual.] The writ of mandamus lies to enforce the
execution of an act, when, otherwise, justice would be obstructed; and, regularly, issues
only in cases relating to the public and to the government; hence, it is called a
prerogative writ. To preserve its prerogative character, mandamus is not used for the
redress of private wrongs, but only in matters relating to the public.
Moreover, an important principle followed in the issuance of the writ is that there
should be no plain, speedy and adequate remedy in the ordinary course of law other
than the remedy of mandamus being invoked. In other words, mandamus can be issued
only in cases where the usual modes of procedure and forms of remedy are powerless to
afford relief. Although classified as a legal remedy, mandamus is equitable in its nature
and its issuance is generally controlled by equitable principles. Indeed, the grant of the
writ of mandamus lies in the sound discretion of the court.
In the instant case, the Court, without unnecessarily ascertaining whether the
obligation involved here—the production of the original holographic will—is in the nature
of a public or a private duty, rules that the remedy of mandamus cannot be availed of by
respondent Lee because there lies another plain, speedy and adequate remedy in the
ordinary course of law. Let it be noted that respondent has a photocopy of the will and
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
that he seeks the production of the original for purposes of probate. The Rules of Court,
however, does not prevent him from instituting probate proceedings for the allowance of
the will whether the same is in his possession or not.
There being a plain, speedy and adequate remedy in the ordinary course of law for
the production of the subject will, the remedy of mandamus cannot be availed of. Suffice
it to state that respondent Lee lacks a cause of action in his petition. Thus, the Court
grants the demurrer.
SALUD TEODORO VDA. DE PEREZ
VS. HON. ZOTICO A. TOLETE in his capacity as Presiding Judge, BRANCH 18, RTC,
BULACAN
G.R. NO. 76714
JUNE 2, 1994
QUIASON, J.:
This is a petition for certiorari under Rule 65 of the Revised Rules of Court to set aside
the Order dated November 19, 1986 of the Regional Trial Court, Branch 18, Bulacan
presided by respondent Judge Zotico A. Tolete, in Special Proceedings No. 1793-M.
We grant the petition.
II
Dr. Jose F. Cunanan and his wife, Dr. Evelyn Perez-Cunanan, who became American
citizens, established a successful medical practice in New York, U.S.A. The Cunanans
lived at No. 2896 Citation Drive, Pompey, Syracuse, New York, with their children,
Jocelyn, 18; Jacqueline, 16; and Josephine, 14.
On August 23, 1979, Dr. Cunanan executed a last will and testament, bequeathing to his
wife "all the remainder" of his real and personal property at the time of his death
"wheresoever situated" (Rollo, p. 35). In the event he would survive his wife, he
bequeathed all his property to his children and grandchildren with Dr. Rafael G.
Cunanan, Jr. as trustee. He appointed his wife as executrix of his last will and testament
and Dr. Rafael G. Cunanan, Jr. as substitute executor. Article VIII of his will states:
If my wife, EVELYN PEREZ-CUNANAN, and I shall die under such
circumstances that there is not sufficient evidence to determine the order
66
 of our deaths, then it shall be presumed that I predeceased her, and my
estate shall be administered and distributed, in all respects, in
accordance with such presumption (Rollo, p. 41).
Four days later, on August 27, Dr. Evelyn P. Cunanan executed her own last will and
testament containing the same provisions as that of the will of her husband. Article VIII of
her will states:
If my husband, JOSE F. CUNANAN, and I shall die under such
circumstances that there is not sufficient evidence to determine the order
of our deaths, then it shall be presumed that he predeceased me, and my
estate shall be administered and distributed in all respects, in accordance
with such presumption. (Rollo, p. 31).
On January 9, 1982, Dr. Cunanan and his entire family perished when they were trapped
by fire that gutted their home. Thereafter, Dr. Rafael G. Cunanan, Jr. as trustee and
substitute executor of the two wills, filed separate proceedings for the probate thereof
with the Surrogate Court of the County of Onondaga, New York. On April 7, these two
wills were admitted to probate and letters testamentary were issued in his favor.
On February 21, 1983, Salud Teodoro Perez, the mother of Dr. Evelyn P. Cunanan, and
petitioner herein, filed with the Regional P. Cunanan, and petitioner herein, filed with the
Regional Trial Court, Malolos, Bulacan a petition for the reprobate of the two bills
ancillary to the probate proceedings in New York. She also asked that she be appointed
the special administratrix of the estate of the deceased couple consisting primarily of a
farm land in San Miguel, Bulacan.
On March 9, the Regional Trial Court, Branch 16, Malolos, Bulacan, presided by Judge
Gualberto J. de la Llana, issued an order, directing the issuance of letters of special
administration in favor of petitioner upon her filing of a P10,000.00 bond. The following
day, petitioner posted the bond and took her oath as special administration.
As her first act of administration, petitioner filed a motion, praying that the Philippine Life
Insurance Company be directed to deliver the proceeds in the amount of P50,000.00 of
the life insurance policy taken by Dr. Jose F. Cunanan with Dr. Evelyn Perez-Cunanan
and their daughter Jocelyn as beneficiaries. The trial court granted the motion.
Counsel for the Philippine American Life Insurance Company then filed a manifestation,
stating that said company then filed a manifestation, stating that said company had
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
delivered to petitioner the amount of P49,765.85, representing the proceeds of the life
insurance policy of Dr. Jose F. Cunanan.
In a motion dated May 19, 1983, petitioner asked that Dr. Rafael Cunanan, Sr. be
ordered to deliver to her a Philippine Trust Company passbook with P25,594.00 in
savings deposit, and the Family Savings Bank time deposit certificates in the total
amount of P12,412.52.
On May 31, Atty. Federico Alday filed a notice of appearance as counsel for the heirs of
Dr. Jose F. Cunanan, namely, Dr. Rafael Cunanan, Sr., Priscilla Cunanan Bautista, Lydia
Cunanan Ignacio, Felipe F. Cunanan and Loreto Cunanan Concepcion (Cunanan heirs).
He also manifested that before receiving petitioner's motion of May 19, 1983, his clients
were unaware of the filing of the testate estate case and therefore, "in the interest of
simple fair play," they should be notified of the proceedings (Records, p. 110). He prayed
for deferment of the hearing on the motions of May 19, 1983.
Petitioner then filed a counter manifestation dated June 13, 1983, asserting: (1) that the
"Cunanan collaterals are neither heirs nor creditors of the late Dr. Jose F. Cunanan" and
therefore, they had "no legal or proprietary interests to protect" and "no right to
intervene"; (2) that the wills of Dr. Jose F. Cunanan and Dr. Evelyn Perez-Cunanan,
being American citizens, were executed in accordance with the solemnities and
formalities of New York laws, and produced "effects in this jurisdiction in accordance with
Art. 16 in relation to Art. 816 of the Civil Code"; (3) that under Article VIII of the two wills,
it was presumed that the husband predeceased the wife; and (4) that "the Cunanan
collaterals are neither distributees, legatees or beneficiaries, much less, heirs as heirship
is only by institution" under a will or by operation of the law of New York (Records, pp.
112-113).
On June 23, the probate court granted petitioner's motion of May 19, 1983. However, on
July 21, the Cunanan heirs filed a motion to nullify the proceedings and to set aside the
appointment of, or to disqualify, petitioner as special administratrix of the estates of Dr.
Jose F. Cunanan and Dr. Evelyn Perez-Cunanan. The motion stated: (1) that being the
"brothers and sisters and the legal and surviving heirs" of Dr. Jose F. Cunanan, they had
been "deliberately excluded" in the petition for the probate of the separate wills of the
Cunanan spouses thereby misleading the Bulacan court to believe that petitioner was the
sole heir of the spouses; that such "misrepresentation" deprived them of their right to
"due process in violation of Section 4, Rule 76 of the Revised Rules of Court; (2) that Dr.
Rafael G. Cunanan, Jr., the executor of the estate of the Cunanan spouses, was likewise
not notified of the hearings in the Bulacan court; (3) that the "misrepresentation and
concealment committed by" petitioner rendered her unfit to be a special administratrix;
67
(4) that Dr. Rafael G. Cunanan, Jr. had, by virtue of a verified power of attorney,
authorized his father,
Dr. Rafael Cunanan, Sr., to be his attorney-in-fact; and (5) that Dr. Rafael Cunanan, Sr.
is qualified to be a regular administrator "as practically all of the subject estate in the
Philippines belongs to their brother, Dr. Jose F. Cunanan" (Records, pp. 118-122).
Hence, they prayed: (1) that the proceedings in the case be declared null and void; (2)
that the appointment of petitioner as special administratrix be set aside; and (3) that Dr.
Rafael Cunanan, Sr. be appointed the regular administrator of the estate of the deceased
spouses.
Thereafter, the Cunanan heirs filed a motion requiring petitioner to submit an inventory or
accounting of all monies received by her in trust for the estate.
In her opposition, petitioner asserted: (1) that she was the "sole and only heir" of her
daughter, Dr. Evelyn Perez-Cunanan to the exclusion of the "Cunanan collaterals";
hence they were complete strangers to the proceedings and were not entitled to notice;
(2) that she could not have "concealed" the name and address of Dr. Rafael G. Cunanan,
Jr. because his name was prominently mentioned not only in the two wills but also in the
decrees of the American surrogate court; (3) that the rule applicable to the case is Rule
77, not Rule 76, because it involved the allowance of wills proved outside of the
Philippines and that nowhere in Section 2 of Rule 77 is there a mention of notice being
given to the executor who, by the same provision, should himself file the necessary
ancillary proceedings in this country; (4) that even if the Bulacan estate came from the
"capital" of Dr. Jose F. Cunanan, he had willed all his worldly goods to his wife and
nothing to his brothers and sisters; and (5) that Dr. Rafael G. Cunanan, Jr. had unlawfully
disbursed $215,000.00 to the Cunanan heirs, misappropriated $15,000.00 for himself
and irregularly assigned assets of the estates to his American lawyer (Records, pp. 151-
160).
In their reply, the Cunanan heirs stressed that on November 24, 1982, petitioner and the
Cunanan heirs had entered into an agreement in the United States "to settle and divide
equally the estates," and that under Section 2 of Rule 77 the "court shall fix a time and
place for the hearing and cause notice thereof to be given as in case of an original will
presented for allowance" (Records, pp. 184-185).
Petitioner asked that Dr. Rafael G. Cunanan, Jr. be cited for contempt of court for failure
to comply with the Order of June 23, 1983 and for appropriating money of the estate for
his own benefit. She also alleged that she had impugned the agreement of November
24, 1982 before the Surrogate Court of Onondaga, New York which rendered a decision
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
on April 13, 1983, finding that "all assets are payable to Dr. Evelyn P. Cunanan’s
executor to be then distributed pursuant to EPTL4-1.1 subd [a] par [4]" (Rollo, p. 52).
On their part, the Cunanan heirs replied that petitioner was estopped from claiming that
they were heirs by the agreement to divide equally the estates. They asserted that by
virtue of Section 2 of Rule 77 of the Rules of Court, the provisions of Sections 3, 4 and 5
of Rule 76 on the requirement of notice to all heirs, executors, devisees and legatees
must be complied with. They reiterated their prayer: (1) that the proceedings in the case
be nullified; (2) that petitioner be disqualified as special administratrix; (3) that she be
ordered to submit an inventory of all goods, chattels and monies which she had received
and to surrender the same to the court; and (4) that Dr. Rafael Cunanan, Sr. be
appointed the regular administrator.
Petitioner filed a rejoinder, stating that in violation of the April 13, 1983 decision of the
American court Dr. Rafael G. Cunanan, Jr. made "unauthorized disbursements from the
estates as early as July 7, 1982" (Records, p. 231). Thereafter, petitioner moved for the
suspension of the proceedings as she had "to attend to the settlement proceedings" of
the estate of the Cunanan spouses in New York (Records, p. 242). The Cunanans heirs
opposed this motion and filed a manifestation, stating that petitioner had received
$215,000.00 "from the Surrogate’s Court as part of legacy" based on the aforesaid
agreement of November 24, 1982 (Records, p. 248).
On February 21, 1984, Judge de la Llana issued an order, disallowing the reprobate of
the two wills, recalling the appointment of petitioner as special administratrix, requiring
the submission of petitioner of an inventory of the property received by her as special
administratrix and declaring all pending incidents moot and academic. Judge de la Llana
reasoned out that petitioner failed to prove the law of New York on procedure and
allowance of wills and the court had no way of telling whether the wills were executed in
accordance with the law of New York. In the absence of such evidence, the presumption
is that the law of succession of the foreign country is the same as the law of the
Philippines. However, he noted, that there were only two witnesses to the wills of the
Cunanan spouses and the Philippine law requires three witnesses and that the wills were
not signed on each and every page, a requirement of the Philippine law.
On August 27, 1985, petitioner filed a motion for reconsideration of the Order dated
February 21, 1984, where she had sufficiently proven the applicable laws of New York
governing the execution of last wills and testaments.
On the same day, Judge de la Llana issued another order, denying the motion of
petitioner for the suspension of the proceedings but gave her 15 days upon arrival in the
68
country within which to act on the other order issued that same day. Contending that the
second portion of the second order left its finality to the discretion of counsel for
petitioner, the Cunanans filed a motion for the reconsideration of the objectionable
portion of the said order so that it would conform with the pertinent provisions of the
Judiciary Reorganization Act of 1980 and the Interim Rules of Court.
On April 30, 1985, the respondent Judge of Branch 18 of the Regional Trial Court,
Malolos, to which the reprobate case was reassigned, issued an order stating that
"(W)hen the last will and testament . . . was denied probate," the case was terminated
and therefore all orders theretofore issued should be given finality. The same Order
amended the February 21, 1984 Order by requiring petitioner to turn over to the estate
the inventoried property. It considered the proceedings for all intents and purposes,
closed (Records,
p. 302).
On August 12, petitioner filed a motion to resume proceedings on account of the final
settlement and termination of the probate cases in New York. Three days later, petitioner
filed a motion praying for the reconsideration of the Order of April 30, 1985 on the
strength of the February 21, 1984 Order granting her a period of 15 days upon arrival in
the country within which to act on the denial of probate of the wills of the Cunanan
spouses. On August 19, respondent Judge granted the motion and reconsidered the
Order of April 30, 1985.
On August 29, counsel for petitioner, who happens to be her daughter, Natividad, filed a
motion praying that since petitioner was ailing in Fort Lee, New Jersey, U.S.A. and
therefore incapacitated to act as special administratrix, she (the counsel) should be
named substitute special administratrix. She also filed a motion for the reconsideration of
the Order of February 21, 1984, denying probate to the wills of the Cunanan spouses,
alleging that respondent Judge "failed to appreciate the significant probative value of the
exhibits . . . which all refer to the offer and admission to probate of the last wills of the
Cunanan spouses including all procedures undertaken and decrees issued in connection
with the said probate" (Records, pp. 313-323).
Thereafter, the Cunanans heirs filed a motion for reconsideration of the Order of August
19, 1985, alleging lack of notice to their counsel.
On March 31, 1986, respondent Judge to which the case was reassigned denied the
motion for reconsideration holding that the documents submitted by petitioner proved
"that the wills of the testator domiciled abroad were properly executed, genuine and
sufficient to possess real and personal property; that letters testamentary were issued;
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
and that proceedings were held on a foreign tribunal and proofs taken by a competent
judge who inquired into all the facts and circumstances and being satisfied with his
findings issued a decree admitting to probate the wills in question." However, respondent
Judge said that the documents did not establish the law of New York on the procedure
and allowance of wills (Records, p. 381).
On April 9, 1986, petitioner filed a motion to allow her to present further evidence on the
foreign law. After the hearing of the motion on April 25, 1986, respondent Judge issued
an order wherein he conceded that insufficiency of evidence to prove the foreign law was
not a fatal defect and was curable by adducing additional evidence. He granted petitioner
45 days to submit the evidence to that effect.
However, without waiting for petitioner to adduce the additional evidence, respondent
Judge ruled in his order dated June 20, 1986 that he found "no compelling reason to
disturb its ruling of March 31, 1986" but allowed petitioner to "file anew the appropriate
probate proceedings for each of the testator" (Records, p. 391).
The Order dated June 20, 1986 prompted petitioner to file a second motion for
reconsideration stating that she was "ready to submit further evidence on the law
obtaining in the State of New York" and praying that she be granted "the opportunity to
present evidence on what the law of the State of New York has on the probate and
allowance of wills" (Records, p. 393).
On July 18, respondent Judge denied the motion holding that to allow the probate of two
wills in a single proceeding "would be a departure from the typical and established mode
of probate where one petition takes care of one will." He pointed out that even in New
York "where the wills in question were first submitted for probate, they were dealt with in
separate proceedings" (Records, p. 395).
On August 13, 1986, petitioner filed a motion for the reconsideration of the Order of July
18, 1986, citing Section 3, Rule 2 of the Rules of Court, which provides that no party may
institute more than one suit for a single cause of action. She pointed out that separate
proceedings for the wills of the spouses which contain basically the same provisions as
they even named each other as a beneficiary in their respective wills, would go against
"the grain of inexpensive, just and speedy determination of the proceedings" (Records,
pp. 405-407).
On September 11, 1986, petitioner filed a supplement to the motion for reconsideration,
citing Benigno v. De La Peña, 57 Phil. 305 (1932) (Records,
p. 411), but respondent Judge found that this pleading had been filed out of time and that
69
the adverse party had not been furnished with a copy thereof. In her compliance,
petitioner stated that she had furnished a copy of the motion to the counsel of the
Cunanan heirs and reiterated her motion for a "final ruling on her supplemental motion"
(Records, p. 421).
On November 19, respondent Judge issued an order, denying the motion for
reconsideration filed by petitioner on the grounds that "the probate of separate wills of
two or more different persons even if they are husband and wife cannot be undertaken in
a single petition" (Records, pp. 376-378).
Hence, petitioner instituted the instant petition, arguing that the evidence offered at the
hearing of April 11, 1983 sufficiently proved the laws of the State of New York on the
allowance of wills, and that the separate wills of the Cunanan spouses need not be
probated in separate proceedings.
II
Petitioner contends that the following pieces of evidence she had submitted before
respondent Judge are sufficient to warrant the allowance of the wills:
(a) two certificates of authentication of the respective wills of Evelyn and
Jose by the Consulate General of the Philippines (Exhs. "F" and "G");
(b) two certifications from the Secretary of State of New York and
Custodian of the Great Seal on the facts that Judge Bernard L. Reagan is
the Surrogate of the Country of Onondaga which is a court of record, that
his signature and seal of office are genuine, and that the Surrogate is
duly authorized to grant copy of the respective wills of Evelyn and Jose
(Exhs. "F-1" and "G-1");
(c) two certificates of Judge Reagan and Chief Clerk Donald E. Moore
stating that they have in their records and files the said wills which were
recorded on April 7, 1982 (Exhs. "F-2" and "G-2");
(d) the respective wills of Evelyn and Jose (Exhs. "F-3", "F-6" and Exh.
"G-3" — "G-6");
(e) certificates of Judge Reagan and the Chief Clerk certifying to the
genuineness and authenticity of the exemplified copies of the two wills
(Exhs. "F-7" and "F-7");
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
(f) two certificates of authentication from the Consulate General of the
Philippines in New York (Exh. "H" and "F").
(g) certifications from the Secretary of State that Judge Reagan is duly
authorized to grant exemplified copies of the decree of probate, letters
testamentary and all proceedings had and proofs duly taken
(Exhs. "H-1" and "I-1");
(h) certificates of Judge Reagan and the Chief Clerk that letters
testamentary were issued to Rafael G. Cunanan (Exhs. "H-2" and "I-2");
(i) certification to the effect that it was during the term of Judge Reagan
that a decree admitting the wills to probate had been issued and
appointing Rafael G. Cunanan as alternate executor (Exhs. "H-3" and
"I-10");
(j) the decrees on probate of the two wills specifying that proceedings
were held and proofs duly taken (Exhs. "H-4" and "I-5");
(k) decrees on probate of the two wills stating that they were properly
executed, genuine and valid and that the said instruments were admitted
to probate and established as wills valid to pass real and personal
property (Exhs. "H-5" and "I-5"); and
(l) certificates of Judge Reagan and the Chief Clerk on the genuineness
and authenticity of each other’s signatures in the exemplified copies of
the decrees of probate, letters testamentary and proceedings held in their
court (Exhs. "H-6" and "I-6") (Rollo, pp. 13-16).
Petitioner adds that the wills had been admitted to probate in the Surrogate Court’s
Decision of April 13, 1983 and that the proceedings were terminated on November 29,
1984.
The respective wills of the Cunanan spouses, who were American citizens, will only be
effective in this country upon compliance with the following provision of the Civil Code of
the Philippines:
Art. 816. The will of an alien who is abroad produces effect in the
Philippines if made with the formalities prescribed by the law of the place
70
 in which he resides, or according to the formalities observed in his
country, or in conformity with those which this Code prescribes.
Thus, proof that both wills conform with the formalities prescribed by New York laws or
by Philippine laws is imperative.
The evidence necessary for the reprobate or allowance of wills which have been
probated outside of the Philippines are as follows: (1) the due execution of the will in
accordance with the foreign laws; (2) the testator has his domicile in the foreign country
and not in the Philippines; (3) the will has been admitted to probate in such country; (4)
the fact that the foreign tribunal is a probate court, and (5) the laws of a foreign country
on procedure and allowance of wills (III Moran Commentaries on the Rules of Court,
1970 ed., pp. 419-429; Suntay v. Suntay, 95 Phil. 500 [1954]; Fluemer v. Hix, 54 Phil.
610 [1930]). Except for the first and last requirements, the petitioner submitted all the
needed evidence.
The necessity of presenting evidence on the foreign laws upon which the probate in the
foreign country is based is impelled by the fact that our courts cannot take judicial notice
of them (Philippine Commercial and Industrial Bank v. Escolin, 56 SCRA 266 [1974]).
Petitioner must have perceived this omission as in fact she moved for more time to
submit the pertinent procedural and substantive New York laws but which request
respondent Judge just glossed over. While the probate of a will is a special proceeding
wherein courts should relax the rules on evidence, the goal is to receive the best
evidence of which the matter is susceptible before a purported will is probated or denied
probate (Vda. de Ramos v. Court of Appeals, 81 SCRA 393 [1978]).
There is merit in petitioner’s insistence that the separate wills of the Cunanan spouses
should be probated jointly. Respondent Judge’s view that the Rules on allowance of wills
is couched in singular terms and therefore should be interpreted to mean that there
should be separate probate proceedings for the wills of the Cunanan spouses is too
literal and simplistic an approach. Such view overlooks the provisions of Section 2, Rule
1 of the Revised Rules of Court, which advise that the rules shall be "liberally construed
in order to promote their object and to assist the parties in obtaining just, speedy, and
inexpensive determination of every action and proceeding."
A literal application of the Rules should be avoided if they would only result in the delay
in the administration of justice (Acain v. Intermediate Appellate Court, 155 SCRA 100
[1987]; Roberts v. Leonidas, 129 SCRA 33 [1984]).
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
What the law expressly prohibits is the making of joint wills either for the testator’s
reciprocal benefit or for the benefit of a third person (Civil Code of the Philippines, Article
818). In the case at bench, the Cunanan spouses executed separate wills. Since the two
wills contain essentially the same provisions and pertain to property which in all
probability are conjugal in nature, practical considerations dictate their joint probate. As
this Court has held a number of times, it will always strive to settle the entire controversy
in a single proceeding leaving no root or branch to bear the seeds of future litigation
(Motoomull v. Dela Paz, 187 SCRA 743 [1990]).
This petition cannot be completely resolved without touching on a very glaring fact —
petitioner has always considered herself the sole heir of
Dr. Evelyn Perez Cunanan and because she does not consider herself an heir of Dr.
Jose F. Cunanan, she noticeably failed to notify his heirs of the filing of the proceedings.
Thus, even in the instant petition, she only impleaded respondent Judge, forgetting that a
judge whose order is being assailed is merely a nominal or formal party (Calderon v.
Solicitor General, 215 SCRA 876 [1992]).
The rule that the court having jurisdiction over the reprobate of a will shall "cause notice
thereof to be given as in case of an original will presented for allowance" (Revised Rules
of Court, Rule 27, Section 2) means that with regard to notices, the will probated abroad
should be treated as if it were an "original will" or a will that is presented for probate for
the first time. Accordingly, compliance with Sections 3 and 4 of Rule 76, which require
publication and notice by mail or personally to the "known heirs, legatees, and devisees
of the testator resident in the Philippines" and to the executor, if he is not the petitioner,
are required.
The brothers and sisters of Dr. Jose F. Cunanan, contrary to petitioner's claim, are
entitled to notices of the time and place for proving the wills. Under Section 4 of Rule 76
of the Revised Rules of Court, the "court shall also cause copies of the notice of the time
and place fixed for proving the will to be addressed to the designated or other known
heirs, legatees, and devisees of the testator, . . . "
WHEREFORE, the questioned Order is SET ASIDE. Respondent Judge shall allow
petitioner reasonable time within which to submit evidence needed for the joint probate of
the wills of the Cunanan spouses and see to it that the brothers and sisters of Dr. Jose F.
Cunanan are given all notices and copies of all pleadings pertinent to the probate
proceedings.
SO ORDERED.
71

CASE DIGEST: VDA. DE PEREZ VS. TOLETE
FACTS:
Dr. Jose Cunanan and his wife, Dr. Evelyn Perez-Cunanan, who became
American citizens and residents of New York, each executed a will also in New York,
containing provisions on presumption of survivorship (in the event that it is not known
which one of the spouses died first, the husband shall be presumed to have
predeceased his wife). Later, the entire family perished in a fire that gutted their home.
Thus, Rafael, who was named trustee in Jose’s will, filed for separate probate
proceedings of the wills.
Later, Evelyn’s mother, Salud Perez, filed a petition for reprobate in Bulacan.
Rafael opposed, arguing that Salud was not an heir according to New York law. He
contended that since the wills were executed in New York, New York law should govern.
He further argued that, by New York law, he and his brothers and sisters were Jose’s
heirs and as such entitled to notice of the reprobate proceedings, which Salud failed to
give.
For her part, Salud said she was the sole heir of her daughter, Evelyn, and that the
two wills were in accordance with New York law. But before she could present evidence
to prove the law of New York, the reprobate court already issued an order, disallowing
the wills.
ISSUE: Whether or not the reprobate of the wills should be allowed.
HELD:
Extrinsic Validity of Wills of Non-Resident Aliens
The respective wills of the Cunanan spouses, who were American citizens, will only be
effective in this country upon compliance with the following provision of the Civil Code of
the Philippines:
ART. 816. The will of an alien who is abroad produces effect in the
Philippines if made with the formalities prescribed by the law of the
place in which he resides, or according to the formalities observed
in his country, or in conformity with those which this Code
prescribes.
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
Thus, proof that both wills conform with the formalities prescribed by New York laws or
by Philippine laws is imperative.
Evidence for Reprobate of Wills Probated outside the Philippines
The evidence necessary for the reprobate or allowance of wills which have been
probated outside of the Philippines are as follows: (1) the due execution of the will in
accordance with the foreign laws; (2) the testator has his domicile in the foreign country
and not in the Philippines; (3) the will has been admitted to probate in such country; (4)
the fact that the foreign tribunal is a probate court, and (5) the laws of a foreign country
on procedure and allowance of wills (III Moran Commentaries on the Rules of Court,
1970 ed., pp. 419-429; Suntay v. Suntay, 95 Phil. 500 [1954]; Fluemer v. Hix, 54 Phil.
610 [1930]). Except for the first and last requirements, the petitioner submitted all the
needed evidence.
The necessity of presenting evidence on the foreign laws upon which the probate in the
foreign country is based is impelled by the fact that our courts cannot take judicial notice
of them.
On Lack of Notice to Jose’s Heirs
This petition cannot be completely resolved without touching on a very glaring fact -
petitioner has always considered herself the sole heir of Dr. Evelyn Perez Cunanan and
because she does not consider herself an heir of Dr. Jose F. Cunanan, she noticeably
failed to notify his heirs of the filing of the proceedings. Thus, even in the instant petition,
she only impleaded respondent Judge, forgetting that a judge whose order is being
assailed is merely a nominal or formal party (Calderon v. Solicitor General, 215 SCRA
876 [1992]).
The rule that the court having jurisdiction over the reprobate of a will shall "cause notice
thereof to be given as in case of an original will presented for allowance" (Revised Rules
of Court, Rule 27, Section 2) means that with regard to notices, the will probated abroad
should be treated as if it were an "original will" or a will that is presented for probate for
the first time. Accordingly, compliance with Sections 3 and 4 of Rule 76, which require
publication and notice by mail or personally to the "known heirs, legatees, and devisees
of the testator resident in the Philippines" and to the executor, if he is not the petitioner,
are required.
The brothers and sisters of Dr. Jose F. Cunanan, contrary to petitioner's claim, are
entitled to notices of the time and place for proving the wills. Under Section 4 of Rule 76
of the Revised Rules of Court, the "court shall also cause copies of the notice of the time
and place fixed for proving the will to be addressed to the designated or other known
heirs, legatees, and devisees of the testator, . . . "
72

WHEREFORE, the questioned Order is SET ASIDE. Respondent Judge shall allow
petitioner reasonable time within which to submit evidence needed for the joint probate of
the wills of the Cunanan spouses and see to it that the brothers and sisters of Dr. Jose F.
Cunanan are given all notices and copies of all pleadings pertinent to the probate
proceedings.
SO ORDERED.
ANGELA RODRIGUEZ, MARIA RODRIGUEZ, ET AL.
VS. HON. DE BORJA OF CFI BULACAN, ANATOLIA PANGILINAN AND ADELAIDA
JACALAN
G.R. NO. L-21993
JUNE 21, 1966
REYES, J.B.L., J.:
Petitioners Angela, Maria, Abelardo and Antonio, surnamed Rodriguez, petition this
Court for a writ of certiorari and prohibition to the Court of First Instance of Bulacan, for
its refusal to grant their motion to dismiss its Special Proceeding No. 1331, which said
Court is alleged to have taken cognizance of without jurisdiction.
The facts and issues are succinctly narrated in the order of the respondent court, dated
June 13, 1963 (Petition, Annex 0), in this wise:
It is alleged in the motion to dismiss filed by Angela, Maria, Abelardo and Antonio
Rodriguez, through counsel, that this Court "has no jurisdiction to try the above-
entitled case in view of the pendency of another action for the settlement of the
estate of the deceased Rev. Fr. Celestino Rodriguez in the Court of First
Instance of Rizal, namely, Sp. Proceedings No. 3907 entitled 'In the matter of the
Intestate Estate of the deceased Rev. Fr. Celestino Rodriguez which was filed
ahead of the instant case".
The records show that Fr. Celestino Rodriguez died on February 12, 1963 in the
City of Manila; that on March 4, 1963, Apolonia Pangilinan and Adelaida Jacalan
delivered to the Clerk of Court of Bulacan a purported last will and testament of
Fr. Rodriguez; that on March 8, 1963, Maria Rodriguez and Angela Rodriguez,
through counsel filed a petition for leave of court to allow them to examine the
alleged will; that on March 11, 1963 before the Court could act on the petition, the
same was withdrawn; that on March 12, 1963, aforementioned petitioners filed
before the Court of First Instance of Rizal a petition for the settlement of the
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
intestate estate of Fr. Rodriguez alleging, among other things, that Fr. Rodriguez
was a resident of Parañaque, Rizal, and died without leaving a will and praying
that Maria Rodriguez be appointed as Special Administratrix of the estate; and
that on March 12, 1963 Apolonia Pangilinan and Adelaida Jacalan filed a petition
in this Court for the probation of the will delivered by them on March 4, 1963. It
was stipulated by the parties that Fr. Rodriguez was born in Parañaque, Rizal;
that he was Parish priest of the Catholic Church of Hagonoy, Bulacan, from the
year 1930 up to the time of his death in 1963; that he was buried in Parañaque,
and that he left real properties in Rizal, Cavite, Quezon City and Bulacan.
The movants contend that since the intestate proceedings in the Court of First
Instance of Rizal was filed at 8:00 A.M. on March 12, 1963 while the petition for
probate was filed in the Court of First Instance of Bulacan at 11:00 A.M. on the
same date, the latter Court has no jurisdiction to entertain the petition for probate,
citing as authority in support thereof the case of Ongsingco Vda. de Borja vs. Tan
and De Borja, G.R. No. 7792, July 27, 1955.
The petitioners Pangilinan and Jacalan, on the other hand, take the stand that
the Court of First Instance of Bulacan acquired jurisdiction over the case upon
delivery by them of the will to the Clerk of Court on March 4, 1963, and that the
case in this Court therefore has precedence over the case filed in Rizal on March
12, 1963.
The Court of First Instance, as previously stated denied the motion to dismiss on the
ground that a difference of a few hours did not entitle one proceeding to preference over
the other; that, as early as March 7, movants were aware of the existence of the
purported will of Father Rodriguez, deposited in the Court of Bulacan, since they filed a
petition to examine the same, and that movants clearly filed the intestate proceedings in
Rizal "for no other purpose than to prevent this Court (of Bulacan) from exercising
jurisdiction over the probate proceedings". Reconsideration having been denied,
movants, now petitioners, came to this Court, relying principally on Rule 73, section 1 of
the Rules of Court, and invoking our ruling in Ongsingco vs. Tan and De Borja, L-7792,
July 27, 1955.
SECTION 1. Where estate of deceased persons settled. — If the decedent is an
inhabitant of the Philippines at the time of his death, whether a citizen or an alien,
his will shall be proved, or letters of administration granted, and his estate settled,
in the Court of First Instance in the province in which he 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 which he had estate. The court first taking cognizance of the
73
 settlement of the estate of a decedent, shall exercise jurisdiction to the exclusion
of all other courts. The jurisdiction assumed by a court, as far as it depends on
the place of residence of the decedent, or of the location of his estate, shall not
be contested in a suit or proceeding, except in an appeal from that court, in the
original case, or when the want of jurisdiction appears on the record.
We find this recourse to be untenable. The jurisdiction of the Court of First Instance of
Bulacan became vested upon the delivery thereto of the will of the late Father Rodriguez
on March 4, 1963, even if no petition for its allowance was filed until later, because upon
the will being deposited the court could, motu proprio, have taken steps to fix the time
and place for proving the will, and issued the corresponding notices conformably to what
is prescribed by section 3, Rule 76, of the Revised Rules of Court (Section 3, Rule 77, of
the old Rules):
SEC. 3. Court to appoint time for proving will. Notice thereof to be published. —
When a will is delivered to, or a petition for the allowance of a will is filed in, the
Court having jurisdiction, such Court shall fix a time and place for proving the will
when all concerned may appear to contest the allowance thereof, and shall
cause notice of such time and place to be published three (3) weeks
successively, previous to the time appointed, in a newspaper of general
circulation in the province.
But no newspaper publication shall be made where the petition for probate has
been filed by the testator himself.
The use of the disjunctive in the words "when a will is delivered to OR a petition for the
allowance of a will is filed" plainly indicates that the court may act upon the mere deposit
therein of a decedent's testament, even if no petition for its allowance is as yet filed.
Where the petition for probate is made after the deposit of the will, the petition is deemed
to relate back to the time when the will was delivered. Since the testament of Fr.
Rodriguez was submitted and delivered to the Court of Bulacan on March 4, while
petitioners initiated intestate proceedings in the Court of First Instance of Rizal only on
March 12, eight days later, the precedence and exclusive jurisdiction of the Bulacan
court is incontestable.1äwphï1.ñët
But, petitioners object, section 3 of revised Rule 76 (old Rule 77) speaks of a will being
delivered to "the Court having jurisdiction," and in the case at bar the Bulacan court did
not have it because the decedent was domiciled in Rizal province. We can not disregard
Fr. Rodriguez's 33 years of residence as parish priest in Hagonoy, Bulacan (1930-1963);
but even if we do so, and consider that he retained throughout some animus
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
revertendi to the place of his birth in Parañaque, Rizal, that detail would not imply that
the Bulacan court lacked jurisdiction. As ruled in previous decisions, the power to settle
decedents' estates is conferred by law upon all courts of first instance, and the domicile
of the testator only affects the venue but not the jurisdiction of the Court (In re Kaw
Singco, 74 Phil. 239; Reyes vs. Diaz, 73 Phil. 484; Bernabe vs. Vergara, 73 Phil. 676).
Neither party denies that the late Fr. Rodriguez is deceased, or that he left personal
property in Hagonoy, province of Bulacan (t.s.n. p. 46, hearing of June 11, 1963, Annex
"H", Petition, Rec., p. 48). That is sufficient in the case before us.
In the Kaw Singco case (ante) this Court ruled that:
"... If we consider such question of residence as one affecting the jurisdiction of
the trial court over the subject-matter, the effect shall be that the whole
proceedings including all decisions on the different incidents which have arisen in
court will have to be annulled and the same case will have to be commenced
anew before another court of the same rank in another province. That this is of
mischievous effect in the prompt administration of justice is too obvious to require
comment. (Cf. Tanunchuan vs. Dy Buncio & Co., G.R. No. 48206, December 31,
1942). Furthermore, section 600 of Act No. 190, providing that the estate of a
deceased person shall be settled in the province where he had last resided,
could not have been intended as defining the jurisdiction of the probate court
over the subject matter, because such legal provision is contained in a law of
procedure dealing merely with procedural matters, and, as we have said time and
again, procedure is one thing and jurisdiction over the subject matter is another.
(Attorney General vs. Manila Railroad Company, 20 Phil. 523.) The law of
jurisdiction — Act No. 136, Section 56, No. 5 — confers upon Courts of First
Instance jurisdiction over all probate cases independently of the place of
residence of the deceased.1 Since, however, there are many Courts of First
Instance in the Philippines, the Law of Procedure, Act No. 190, section 600, fixes
the venue or the place where each case shall be brought. Thus, the place of
residence of the deceased is not an element of jurisdiction over the subject
matter but merely of venue. And it is upon this ground that in the new Rules of
Court the province where the estate of a deceased person shall be settled is
properly called "venue" (Rule 75, section 1.) Motion for reconsideration is denied.
The estate proceedings having been initiated in the Bulacan Court of First Instance
ahead of any other, that court is entitled to assume jurisdiction to the exclusion of all
other courts, even if it were a case of wrong venue by express provisions of Rule 73 (old
Rule 75) of the Rules of Court, since the same enjoins that:
74
 The Court first taking cognizance of the settlement of the estate of a decedent
shall exercise jurisdiction to the exclusion of all other courts. (Sec. 1)
This disposition presupposes that two or more courts have been asked to take
cognizance of the settlement of the estate. Of them only one could be of proper venue,
yet the rule grants precedence to that Court whose jurisdiction is first invoked, without
taking venue into account.
There are two other reasons that militate against the success of petitioners. One is that
their commencing intestate proceedings in Rizal, after they learned of the delivery of the
decedent's will to the Court of Bulacan, was in bad faith, patently done with a view to
divesting the latter court of the precedence awarded it by the Rules. Certainly the order
of priority established in Rule 73 (old Rule 75) was not designed to convert the
settlement of decedent's estates into a race between applicants, with the administration
of the properties as the price for the fleetest.
The other reason is that, in our system of civil law, intestate succession is only subsidiary
or subordinate to the testate, since intestacy only takes place in the absence of a valid
operative will. Says Article 960 of the Civil Code of the Philippines:
ART. 960. Legal or intestate succession takes place:
(1) If a person dies without a will, or with a void will, or one which has
subsequently lost its validity;
(2) When the will does not institute an heir to, or dispose of all the property
belonging to the testator. In such case, legal succession shall take place only
with respect to the property in which the testator has not disposed;
(3) If the suspensive condition attached to the institution of heir does not happen
or is not fulfilled, or if the heir dies before the testator, or repudiates the
inheritance, there being no substitution, and no right of accretion takes place;
(4) When the heir instituted is incapable of succeeding, except in cases provided
in this Code.
Therefore, as ruled in Castro, et al. vs. Martinez, 10 Phil. 307, "only after final decision as
to the nullity of testate succession could an intestate succession be instituted in the form
of pre-established action". The institution of intestacy proceedings in Rizal may not thus
proceed while the probate of the purported will of Father Rodriguez is pending.
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
We rule that the Bulacan Court of First Instance was entitled to priority in the settlement
of the estate in question, and that in refusing to dismiss the probate. proceedings, said
court did not commit any abuse of discretion. It is the proceedings in the Rizal Court that
should be discontinued.
DIGEST: VDA. DE PEREZ VS. TOLETE
FACTS:
Private respondents Apolonia Pangilinan and Adelaida Jacalan delivered to the
Clerk of Court of Bulacan a purported last will and testament of Fr. Rodriguez,
meanwhile the petitioners filed a petition before the court to examine the purported will
but which was later withdrawn, and a petition for the settlement of the intestate estate of
Fr. Rodriguez was subsequently field in a another court in Rizal. The petitioners now
sought the dismissal of the special proceeding on the settlement of the decedent's estate
based on the purported will, questioning therefore the jurisdiction of CFI Bulacan.
ISSUE: Does CFI Bulacan have jurisdiction to proceed with the testate proceedings?
HELD:
YES.
The jurisdiction of the Court of First Instance of Bulacan became vested upon the
delivery thereto of the will of the late Father Rodriguez, even if no petition for its
allowance was filed until later, because upon the will being deposited the court could,
motu proprio, have taken steps to fix the time and place for proving the will, and issued
the corresponding notices conformably to what is prescribed by section 3, Rule 76, of the
Revised Rules of Court. Moreover, aside from the rule that the Court first taking
cognizance of the settlement of the estate of a decedent shall exercise jurisdiction to the
exclusion of all other courts, intestate succession is only subsidiary or subordinate to the
testate, since intestacy only takes place in the absence of a valid operative will.
OCTAVIO S. MALOLES II VS. PACITA DE LOS REYES PHILLIPS
G.R. NO. 133359
JANUARY 31, 2000
OCTAVIO S. MALOLES II VS. CA, HON. FERNANDO V. GOROSPE, JR., in his Official
Capacity as Presiding Judge of RTC-Makati, Branch 61, and PACITA PHILLIPS as the
alleged executrix of the alleged will of the late Dr. Arturo de Santos
75
 G.R. NO. 129505
JANUARY 31, 2000
DECISION
MENDOZA, J.:
These are petitions for review on certiorari of the decisions of the Thirteenth and the
Special Eighth Divisions of the Court of Appeals which ruled that petitioner has no right
to intervene in the settlement of the estate of Dr. Arturo de Santos. The cases were
consolidated considering that they involve the same parties and some of the issues
raised are the same.
The facts which gave rise to these two petitions are as follows:
On July 20, 1995, Dr. Arturo de Santos, Filipino and a resident of Makati City, filed a
petition for probate of his will1 in the Regional Trial Court, Branch 61, Makati, docketed
as Sp. Proc. No. M-4223. In his petition, Dr. De Santos alleged that he had no
compulsory heirs; that he had named in his will as sole legatee and devisee the Arturo
de Santos Foundation, Inc.; that he disposed by his will his properties with an
approximate value of not less than P2,000,000.00; and that copies of said will were in the
custody of the named executrix, private respondent Pacita de los Reyes Phillips. A copy
of the will2 was annexed to the petition for probate.
On February 16, 1996, Judge Fernando V. Gorospe, Jr. of RTC-Makati, Branch 61
issued an order granting the petition and allowing the will. The order reads:
On 03 August 1995, the Court issued an Order setting the hearing of the petition on 12
September 1995, at 8:30 oclock in the morning, copies of which were served to Arturo de
Santos Foundation, Inc. and Ms. Pacita de los Reyes Phillips (Officers Return, dated 04
September 1995 attached to the records). When the case was called for hearing on the
date set, no oppositor appeared nor any written opposition was ever filed and on motion
of petitioner, he was allowed to adduce his evidence in support of the petition.
Petitioner personally appeared before this Court and was placed on the witness stand
and was directly examined by the Court through "free wheeling" questions and answers
to give this Court a basis to determine the state of mind of the petitioner when he
executed the subject will. After the examination, the Court is convinced that petitioner is
of sound and disposing mind and not acting on duress, menace and undue influence or
fraud, and that petitioner signed his Last Will and Testament on his own free and
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
voluntary will and that he was neither forced nor influenced by any other person in
signing it.
Furthermore, it appears from the petition and the evidence adduced that petitioner in his
lifetime, executed his Last Will and Testament (Exhs. "A", "A-1", "A-2", "A-4", "A-5") at his
residence situated at 9 Bauhinia corner Intsia Streets, Forbes Park, Makati City; said
Last Will and Testament was signed in the presence of his three (3) witnesses, namely,
to wit: Dr. Elpidio Valencia (Exhs. "A-6", "A-7", "A-8", "A-16", "A-16-A"), Atty. Edward J.
Berenguer (Exhs. "A-3", "A-3-A", "A-9", "A-10", & "A-11"), and Atty. Victoria C. delos
Reyes (Exhs. "A-12", "A-13", "A-14", "A-17", & "A-18"), who in turn, in the presence of the
testator and in the presence of each and all of the witnesses signed the said Last Will
and Testament and duly notarized before Notary Public Anna Melissa L. Rosario (Exh.
"A-15"); on the actual execution of the Last Will and Testament, pictures were taken
(Exhs. "B" to "B-3").
Petitioner has no compulsory heirs and Arturo de Santos Foundation, Inc., with address
at No. 9 Bauhinia corner Intsia Streets, Forbes Park, Makati City has been named as
sole legatee and devisee of petitioners properties, real and personal, approximately
valued at not less than P2 million, Ms. Pacita de los Reyes Phillips was designated as
executor and to serve as such without a bond.
From the foregoing facts, the Court finds that the petitioner has substantially established
the material allegations contained in his petition. The Last Will and Testament having
been executed and attested as required by law; that testator at the time of the execution
of the will was of sane mind and/or not mentally incapable to make a Will; nor was it
executed under duress or under the influence of fear or threats; that it was in writing and
executed in the language known and understood by the testator duly subscribed thereof
and attested and subscribed by three (3) credible witnesses in the presence of the
testator and of another; that the testator and all the attesting witnesses signed the Last
Will and Testament freely and voluntarily and that the testator has intended that the
instrument should be his Will at the time of affixing his signature thereto.
WHEREFORE, as prayed for by the petitioner (testator himself) the petition for the
allowance of the Last Will and Testament of Arturo de Santos is hereby APPROVED and
ALLOWED.
Shortly after the probate of his will, Dr. De Santos died on February 26, 1996.
On April 3, 1996, petitioner Octavio S. Maloles II filed a motion for intervention claiming
that, as the only child of Alicia de Santos (testators sister) and Octavio L. Maloles, Sr., he
76
was the sole full-blooded nephew and nearest of kin of Dr. De Santos. He likewise
alleged that he was a creditor of the testator. Petitioner thus prayed for the
reconsideration of the order allowing the will and the issuance of letters of administration
in his name.
On the other hand, private respondent Pacita de los Reyes Phillips, the designated
executrix of the will, filed a motion for the issuance of letters testamentary with Branch
61. Later, however, private respondent moved to withdraw her motion. This was granted,
while petitioner was required to file a memorandum of authorities in support of his claim
that said court (Branch 61) still had jurisdiction to allow his intervention.
Petitioner filed his memorandum of authorities on May 13, 1996. On the other hand,
private respondent, who earlier withdrew her motion for the issuance of letters
testamentary in Branch 61, refiled a petition for the same purpose with the Regional Trial
Court, Makati, which was docketed as Sp. Proc. No. M-4343 and assigned to Branch 65.
Upon private respondents motion, Judge Salvador Abad Santos of Branch 65 issued an
order, dated June 28, 1996, appointing her as special administrator of Dr. De Santoss
estate.
On July 29, 1996, petitioner sought to intervene in Sp. Proc. No. M-4343 and to set aside
the appointment of private respondent as special administrator. He reiterated that he was
the sole and full blooded nephew and nearest of kin of the testator; that he came to know
of the existence of Sp. Proc. No. M-4343 only by accident; that the probate proceedings
in Sp. Proc. No. M-4223 before Branch 61 of the same court was still pending; that
private respondent misdeclared the true worth of the testators estate; that private
respondent was not fit to be the special administrator of the estate; and that petitioner
should be given letters of administration for the estate of Dr. De Santos.
On August 28, 1996, Judge Abad Santos ordered the transfer of Sp. Proc. No. M-4343 to
Branch 61, on the ground that "[it] is related to the case before Judge Gorospe of RTC
Branch 61 . . ."
It appears, however, that in Sp. Proc. No. M-4223, Judge Gorospe had denied on August
26, 1996 petitioners motion for intervention. Petitioner brought this matter to the Court of
Appeals which, in a decision4 promulgated on February 13, 1998, upheld the denial of
petitioners motion for intervention.
Meanwhile, Judge Gorospe issued an order, dated September 4, 1996, returning the
records of Sp. Proc. No. M-4343 to Branch 65 on the ground that there was a pending
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
case involving the Estate of Decedent Arturo de Santos pending before said court. The
order reads:
Acting on the ORDER dated 28 August 1996 of Branch 65, this Court, transferring this
case to this Branch 61 on the ground that this case is related with a case before this
Court, let this case be returned to Branch 65 with the information that there is no related
case involving the ESTATE OF DECEDENT ARTURO DE SANTOS pending before this
Branch.
There is, however, a case filed by ARTURO DE SANTOS, as petitioner under Rule 76 of
the Rules of Court for the Allowance of his will during his lifetime docketed as SP. PROC.
NO. M-4223 which was already decided on 16 February 1996 and has become final.
It is noted on records of Case No. M-4223 that after it became final, herein Petitioner
Pacita de los Reyes Phillips filed a MOTION FOR THE ISSUANCE OF LETTERS
TESTAMENTARY, which was subsequently withdrawn after this Court, during the
hearing, already ruled that the motion could not be admitted as the subject matter
involves a separate case under Rule 78 of the Rules of Court, and movant withdrew her
motion and filed this case (No. 4343).
Octavio de Santos Maloles [II] filed a MOTION FOR INTERVENTION before Case No.
M-4223 and this motion was already DENIED in the order (Branch 61) of 26 August 1996
likewise for the same grounds that the matter is for a separate case to be filed under
Rule 78 of the Rules of Court and cannot be included in this case filed under Rule 76 of
the Rules of Court.
It is further noted that it is a matter of policy that consolidation of cases must be
approved by the Presiding Judges of the affected Branches.
Initially, in his decision dated September 23, 1996,5 Judge Abad Santos appeared firm in
his position that " . . . it would be improper for (Branch 65) to hear and resolve the
petition (Sp. Proc. No. M-4343)," considering that the probate proceedings were
commenced with Branch 61. He thus ordered the transfer of the records back to the
latter branch. However, he later recalled his decision and took cognizance of the case "to
expedite the proceedings." Thus, in his Order, dated October 21, 1996, he stated:
Considering the refusal of the Hon. Fernando V. Gorospe, Jr. of Branch 61 to continue
hearing this case notwithstanding the fact that said branch began the probate
proceedings of the estate of the deceased and must therefore continue to exercise its
jurisdiction to the exclusion of all others, until the entire estate of the testator had been
77
partitioned and distributed as per Order dated 23 September 1996, this branch (Regional
Trial Court Branch 65) shall take cognizance of the petition if only to expedite the
proceedings, and under the concept that the Regional Trial Court of Makati City is but
one court.
Furnish a copy of this order to the Office of the Chief justice and the Office of the Court
Administrator, of the Supreme Court; the Hon. Fernando V. Gorospe, Jr.; Pacita De Los
Reyes Phillips, Petitioner; and Octavio de Santos Maloles, Intervenor.
On November 4, 1996, Judge Abad Santos granted petitioners motion for intervention.
Private respondent moved for a reconsideration but her motion was denied by the trial
court. She then filed a petition for certiorari in the Court of Appeals which, on February
26, 1997, rendered a decision6 setting aside the trial courts order on the ground that
petitioner had not shown any right or interest to intervene in Sp. Proc. No. M-4343.
Hence, these petitions which raise the following issues:
1. Whether or not the Honorable Regional Trial Court - Makati, Branch 61 has lost
jurisdiction to proceed with the probate proceedings upon its issuance of an order
allowing the will of Dr. Arturo de Santos
2. Whether or not the Honorable (Regional Trial Court - Makati, Branch 65) acquired
jurisdiction over the petition for issuance of letters testamentary filed by (private)
respondent.
3. Whether or not the petitioner, being a creditor of the late Dr. Arturo de Santos, has a
right to intervene and oppose the petition for issuance of letters testamentary filed by the
respondent.
4. Whether or not (private) respondent is guilty of forum shopping in filing her petition for
issuance of letters testamentary with the Regional Trial Court - Makati, Branch 65
knowing fully well that the probate proceedings involving the same testate estate of the
decedent is still pending with the Regional Trial Court - Makati, Branch 61.
First. Petitioner contends that the probate proceedings in Branch 61 of RTC-Makati did
not terminate upon the issuance of the order allowing the will of Dr. De Santos. Citing the
cases of Santiesteban v. Santiesteban7 and Tagle v. Manalo,8 he argues that the
proceedings must continue until the estate is fully distributed to the lawful heirs,
devisees, and legatees of the testator, pursuant to Rule 73, 1 of the Rules of Court.
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
Consequently, petitioner contends that Branch 65 could not lawfully act upon private
respondents petition for issuance of letters testamentary.
The contention has no merit.
In cases for the probate of wills, it is well-settled that the authority of the court is limited to
ascertaining the extrinsic validity of the will, i.e., whether the testator, being of sound
mind, freely executed the will in accordance with the formalities prescribed by law.
Ordinarily, probate proceedings are instituted only after the death of the testator, so
much so that, after approving and allowing the will, the court proceeds to issue letters
testamentary and settle the estate of the testator. The cases cited by petitioner are of
such nature. In fact, in most jurisdictions, courts cannot entertain a petition for probate of
the will of a living testator under the principle of ambulatory nature of wills.
However, Art. 838 of the Civil Code authorizes the filing of a petition for probate of the
will filed by the testator himself. It provides:
Civil Code, Art. 838. No will shall pass either real or personal property unless it is proved
and allowed in accordance with the Rules of Court.
The testator himself may, during his lifetime, petition the court having jurisdiction for the
allowance of his will. In such case, the pertinent provisions of the Rules of Court for the
allowance of wills after the testators death shall govern.
The Supreme Court shall formulate such additional Rules of Court as may be necessary
for the allowance of wills on petition of the testator.
Subject to the right of appeal, the allowance of the will, either during the lifetime of the
testator or after his death, shall be conclusive as to its due execution.
Rule 76, 1 likewise provides:
Sec. 1 Who may petition for the allowance of will. - Any executor, devisee, or legatee
named in a will, or any other person interested in the estate, may, at any time after the
death of the testator, petition the court having jurisdiction to have the will allowed,
whether the same be in his possession or not, or is lost or destroyed.
78
The testator himself may, during his lifetime, petition in the court for the allowance of his
will.
The rationale for allowing the probate of wills during the lifetime of testator has been
explained by the Code Commission thus:
Most of the cases that reach the courts involve either the testamentary capacity of the
testator or the formalities adopted in the execution of wills. There are relatively few cases
concerning the intrinsic validity of testamentary dispositions. It is far easier for the courts
to determine the mental condition of a testator during his lifetime than after his death.
Fraud, intimidation and undue influence are minimized. Furthermore, if a will does not
comply with the requirements prescribed by law, the same may be corrected at once.
The probate during the testators life, therefore, will lessen the number of contest upon
wills. Once a will is probated during the lifetime of the testator, the only questions that
may remain for the courts to decide after the testators death will refer to the intrinsic
validity of the testamentary dispositions. It is possible, of course, that even when the
testator himself asks for the allowance of the will, he may be acting under duress or
undue influence, but these are rare cases.
After a will has been probated during the lifetime of the testator, it does not necessarily
mean that he cannot alter or revoke the same before his death. Should he make a new
will, it would also be allowable on his petition, and if he should die before he has had a
chance to present such petition, the ordinary probate proceeding after the testators death
would be in order.
Thus, after the allowance of the will of Dr. De Santos on February 16, 1996, there was
nothing else for Branch 61 to do except to issue a certificate of allowance of the will
pursuant to Rule 73, 12 of the Rules of Court. There is, therefore, no basis for the ruling
of Judge Abad Santos of Branch 65 of RTC-Makati that -Nex old
Branch 61 of the Regional Trial Court of Makati having begun the probate proceedings of
the estate of the deceased, it continues and shall continue to exercise said jurisdiction to
the exclusion of all others. It should be noted that probate proceedings do not cease
upon the allowance or disallowance of a will but continues up to such time that the entire
estate of the testator had been partitioned and distributed.
The fact that the will was allowed during the lifetime of the testator meant merely that the
partition and distribution of the estate was to be suspended until the latters death. In
other words, the petitioner, instead of filing a new petition for the issuance of letters
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
testamentary, should have simply filed a manifestation for the same purpose in the
probate court.12cräläwvirtualibräry
Petitioner, who defends the order of Branch 65 allowing him to intervene, cites Rule 73, 1
which states:
Where estate of deceased persons settled. - If the decedent is an inhabitant of the
Philippines at the time of his death, whether a citizen or an alien, his will shall be proved,
or letters of administration granted, and his estate settled, in the Court of First Instance in
the province in which he resides at the time of his death, and if he is an inhabitant of a
foreign country, the Court of First Instance of any province in which he had estate. The
court first taking cognizance of the settlement of the estate of a decedent, shall exercise
jurisdiction to the exclusion of all other courts. The jurisdiction assumed by a court, so far
as it depends on the place of residence of the decedent, or of the location of his estate,
shall not be contested in a suit or proceeding, except in an appeal from that court, in the
original case, or when the want of jurisdiction appears on the record.
The above rule, however, actually provides for the venue of actions for the settlement of
the estate of deceased persons. In Garcia Fule v. Court of Appeals, it was held:
The aforequoted Section 1, Rule 73 (formerly Rule 75, Section 1), specifically the clause
"so far as it depends on the place of residence of the decedent, or of the location of the
state," is in reality a matter of venue, as the caption of the Rule indicates: "Settlement of
Estate of Deceased Persons. Venue and Processes." It could not have been intended to
define the jurisdiction over the subject matter, because such legal provision is contained
in a law of procedure dealing merely with procedural matters. Procedure is one thing,
jurisdiction over the subject matter is another. The power or authority of the court over
the subject matter "existed was fixed before procedure in a given cause began." That
power or authority is not altered or changed by procedure, which simply directs the
manner in which the power or authority shall be fully and justly exercised. There are
cases though that if the power is not exercised conformably with the provisions of the
procedural law, purely, the court attempting to exercise it loses the power to exercise it
legally. However, this does not amount to a loss of jurisdiction over the subject matter.
Rather, it means that the court may thereby lose jurisdiction over the person or that the
judgment may thereby be rendered defective for lack of something essential to sustain it.
The appearance of this provision in the procedural law at once raises a strong
presumption that it has nothing to do with the jurisdiction of the court over the subject
matter. In plain words, it is just a matter of method, of convenience to the parties.
79
Indeed, the jurisdiction over probate proceedings and settlement of estates with
approximate value of over P100,000.00 (outside Metro Manila) or P200,000.00 (in Metro
Manila) belongs to the regional trial courts under B.P. Blg. 129, as amended. The
different branches comprising each court in one judicial region do not possess
jurisdictions independent of and incompatible with each other.
It is noteworthy that, although Rule 73, 1 applies insofar as the venue of the petition for
probate of the will of Dr. De Santos is concerned, it does not bar other branches of the
same court from taking cognizance of the settlement of the estate of the testator after his
death. As held in the leading case of Bacalso v. Ramolote:
The various branches of the Court of First Instance of Cebu under the Fourteenth
Judicial District, are a coordinate and co-equal courts, and the totality of which is only
one Court of First Instance. The jurisdiction is vested in the court, not in the judges. And
when a case is filed in one branch, jurisdiction over the case does not attach to the
branch or judge alone, to the exclusion of the other branches. Trial may be held or
proceedings continue by and before another branch or judge. It is for this reason that
Section 57 of the Judiciary Act expressly grants to the Secretary of Justice, the
administrative right or power to apportion the cases among the different branches, both
for the convenience of the parties and for the coordination of the work by the different
branches of the same court. The apportionment and distribution of cases does not
involve a grant or limitation of jurisdiction, the jurisdiction attaches and continues to be
vested in the Court of First Instance of the province, and the trials may be held by any
branch or judge of the court.
Necessarily, therefore, Branch 65 of the RTC of Makati City has jurisdiction over Sp.
Proc. No. M-4343.
Second. Petitioner claims the right to intervene in and oppose the petition for issuance of
letters testamentary filed by private respondent. He argues that, as the nearest next of
kin and creditor of the testator, his interest in the matter is material and direct. In ruling
that petitioner has no right to intervene in the proceedings before Branch 65 of RTC-
Makati City, the Court of Appeals held:
The private respondent herein is not an heir or legatee under the will of the decedent
Arturo de Santos. Neither is he a compulsory heir of the latter. As the only and nearest
collateral relative of the decedent, he can inherit from the latter only in case of intestacy.
Since the decedent has left a will which has already been probated and disposes of all
his properties the private respondent can inherit only if the said will is annulled. His
interest in the decedents estate is, therefore, not direct or immediate.
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
His claim to being a creditor of the estate is a belated one, having been raised for the
first time only in his reply to the opposition to his motion to intervene, and, as far as the
records show, not supported by evidence.
. . . . [T]he opposition must come from one with a direct interest in the estate or the will,
and the private respondent has none. Moreover, the ground cited in the private
respondents opposition, that the petitioner has deliberately misdeclared the truth worth
and value of the estate, is not relevant to the question of her competency to act as
executor. Section 2, Rule 76 of the Rules of Court requires only an allegation of the
probable value and character of the property of the estate. The true value can be
determined later on in the course of the settlement of the estate.
Rule 79, 1 provides:
Opposition to issuance of letters testamentary. Simultaneous petition for administration. -
Any person interested in a will may state in writing the grounds why letters testamentary
should not issue to the persons named therein as executors, or any of them, and the
court, after hearing upon notice, shall pass upon the sufficiency of such grounds. A
petition may, at the same time, be filed for letters of administration with the will annexed.
Under this provision, it has been held that an "interested person" is one who would be
benefited by the estate, such as an heir, or one who has a claim against the estate, such
as a creditor, and whose interest is material and direct, not merely incidental or
contingent.17cräläwvirtualibräry
Even if petitioner is the nearest next of kin of Dr. De Santos, he cannot be considered an
"heir" of the testator. It is a fundamental rule of testamentary succession that one who
has no compulsory or forced heirs may dispose of his entire estate by will. Thus, Art. 842
of the Civil Code provides:
One who has no compulsory heirs may dispose by will of all his estate or any part of it in
favor of any person having capacity to succeed.
One who has compulsory heirs may dispose of his estate provided he does not
contravene the provisions of this Code with regard to the legitimate of said heirs.
Compulsory heirs are limited to the testators -
(1) Legitimate children and descendants, with respect to their legitimate parents and
ascendants;
80
(2) In default of the foregoing, legitimate parents and ascendants, with respect to their
legitimate children and descendants;
(3) The widow or widower;
(4) Acknowledged natural children, and natural children by legal fiction;
(5) Other illegitimate children referred to in Article 287 of the Civil Code.
Petitioner, as nephew of the testator, is not a compulsory heir who may have been
preterited in the testators will.
Nor does he have any right to intervene in the settlement proceedings based on his
allegation that he is a creditor of the deceased. Since the testator instituted or named an
executor in his will, it is incumbent upon the Court to respect the desires of the testator.
As we stated in Ozaeta v. Pecson:
The choice of his executor is a precious prerogative of a testator, a necessary
concomitant of his right to dispose of his property in the manner he wishes. It is natural
that the testator should desire to appoint one of his confidence, one who can be trusted
to carry out his wishes in the disposal of his estate. The curtailment of this right may be
considered a curtailment of the right to dispose.
Only if the appointed executor is incompetent, refuses the trust, or fails to give bond may
the court appoint other persons to administer the estate.20 None of these circumstances
is present in this case.
Third. Petitioner contends that private respondent is guilty of forum shopping when she
filed the petition for issuance of letters testamentary (Sp. Proc. No. M-4343) while the
probate proceedings (Sp. Proc. No. M-4223) were still pending. According to petitioner,
there is identity of parties, rights asserted, and reliefs prayed for in the two actions which
are founded on the same facts, and a judgment in either will result in res judicata in the
other.
This contention has no merit. As stated earlier, the petition for probate was filed by Dr.
De Santos, the testator, solely for the purpose of authenticating his will. Upon the
allowance of his will, the proceedings were terminated.
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
On the other hand, the petition for issuance of letters testamentary was filed by private
respondent, as executor of the estate of Dr. De Santos, for the purpose of securing
authority from the Court to administer the estate and put into effect the will of the testator.
The estate settlement proceedings commenced by the filing of the petition terminates
upon the distribution and delivery of the legacies and devises to the persons named in
the will. Clearly, there is no identity between the two petitions, nor was the latter filed
during the pendency of the former. There was, consequently, no forum shopping.
WHEREFORE, the petition is DENIED and the decisions of the Court of Appeals are
hereby AFFIRMED. SO ORDERED.
DIGEST: MALOLES VS. PHILIPPS
FACTS:
On July 20, 1995, Dr. Arturo de Santos, Filipino and a resident of Makati City, filed
a petition for probate of his will 1 in the Regional Trial Court. He alleged that he had no
compulsory heirs; that he had named in his will as sole legatee and devisee
the Arturo de Santos Foundation, Inc.; that he disposed by his will his properties with
an approximate value of not less than P2,000,000.00; and that copies of said will were
in the custody of the named executrix, private respondent Pacita de los Reyes Phillips.
Petitioner Octavio S. Maloles II filed a motion for intervention claiming that, as
the only child of Alicia de Santos (testator’s sister) and Octavio L. Maloles, Sr., he was
the sole full-blooded nephew and nearest of kin of Dr. De Santos. He likewise alleged
that he was a creditor of the testator. Petitioner thus prayed for the reconsideration of
the order allowing the will and the issuance of letters of administration in his name.
ISSUE: Whether or not the petitioner, being a creditor of the late Dr. Arturo de
Santos, has a right to intervene and oppose the petition for issuance of letters
testamentary filed by the respondent
HELD:
NO.
The petitioner in this case avers that, as the nearest next of kin and creditor of the
testator, his interest in the matter is material and direct. Even if petitioner is the nearest
next of kin of Dr. De Santos, he cannot be considered an “heir” of the testator. It is a
fundamental rule of testamentary succession that one who has no compulsory or forced
heirs may dispose of his entire estate by will. Thus, Article 842 of the Civil
Code provides:
81

1. “One who has no compulsory heirs may dispose by will of all his estate or any
part of it in favor of any person having capacity to succeed.”
2. “One who has compulsory heirs may dispose of his estate provided he does
not contravene the provisions of this Code with regard to the legitimate of said
heirs.”
Compulsory heirs are limited to the testator’s —
Legitimate children and descendants, with respect to their legitimate
parents and ascendants;
In default of the foregoing, legitimate parents and ascendants, with respect to their
legitimate children and descendants;
The widow or widower;
Acknowledged natural children, and natural children by legal fiction;
Other illegitimate children referred to in Article 287 of the Civil Code.
Petitioner, as nephew of the testator, is not a compulsory heir who may have
been preterited in the testator’s will. Nor does he have any right to intervene in the
settlement proceedings based on his allegation that he is a creditor of the deceased.
Since the testator instituted or named an executor in his will, it is incumbent upon the
Court to respect the desires of the testator. Only if the appointed executor is
incompetent, refuses the trust, or fails to give bond may the court appoint other persons
to administer the estate. None of these circumstances is present in this case.
CYNTHIA V. NITTSCHER
VS. DR. WERNER KARL JOHANN NITTSCHER (DECEASED), ATTY. ROGELIO P.
NOGALES AND THE REGIONAL TRIAL COURT OF MAKATI (BRANCH 59)
G.R. NO. 160530
NOVEMBER 20, 2007
DECISION
QUISUMBING, J.:
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
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.
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 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 is AFFIRMED 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.
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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.)
83
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.
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No pronouncement as to costs.
SO ORDERED.
DIGEST: NITTSCHER VS. NITTSCHER
FACTS:
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. the probate court issued an order allowing the said
holographic will. 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 Cynthia V. Nittscher, she moved for the dismissal of the said
petition. However, the court petitioner’s motion to dismiss, and granted respondent’s
petition for the issuance of letters testamentary. Motion for reconsideration denied for
lack of merit. On appeal, the CA dismissed the case.
Cynthia contends that Nogales petition lacked a certification against forum
shopping. She adds, the RTC has no jurisdiction over the subject matter because Dr.
Werner was allegedly not a resident of the Philippines.
ISSUE: WON Cynthia’s contentions are correct .
HELD:
NO. Revised Circular No. 28-91 and Administrative Circular No. 04-94 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.
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
84
 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.
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.
Furthermore, 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.
PRIMITIVA PARAS VS. LUDOVICO NARCISO
G.R. NO. 10959
NOVEMBER 2, 1916
CARSON, J.:
This is an appeal from a judgment denying probate to a document purporting to be the
last will and testament of Mariano Magsino, deceased, on the ground that it had not been
executed by the deceased; that the signature thereto was forged; and that the instrument
had been prepared and signed by the witnesses after the death of the alleged testator.
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Except as to alleged error in the admission of certain testimony as to the handwriting of
the deceased, the appellant's assignment of errors deals exclusively with alleged errors
of the trial court in accepting as true or declining to believe the testimony of certain
witnesses. The trial judge saw and heard these witnesses testify, and there is nothing in
the record which would justify us in disturbing his findings as to the respective credibility
or lack of credibility of the various witnesses. Accepting these findings as we do there
can be no doubt as to the correctness of the conclusions of the court below touching the
time, form, and manner in which the instrument in question was executed.
It is not necessary to make an express ruling at this time as to whether or not certain
witnesses who testified as to the genuineness of certain signatures of the deceased were
properly qualified as handwriting experts. The genuineness of the signatures in question
was duly established in the manner and form prescribed in section 327 of the Code of
Civil Procedure; and, indeed, these signatures appear to have been admitted in evidence
as genuine signatures of the deceased without objection by the appellant. In like manner
the other matters testified to by the alleged handwriting experts appear to have been
established by other evidence in the record, and it is quite clear from the opinion filed by
the trial judge that he relied rather on his own opinion, after comparison of the
undoubtedly genuine signature of the deceased with the signature attached to the
alleged will as authorized in the section of the Code of Civil Procedure just mentioned,
rather than upon the statements of the alleged experts. We agree with his conclusions in
this regard and even if it were held that these handwriting experts had failed to qualify as
such, the admission of their evidence in the record would at most be error without
prejudice.
At the conclusion of appellant's brief some question is raised as to whether the appellee
had sufficient interest in the estate of the deceased to maintain his opposition to the
admission of the alleged will to probate. This question does not appear to have been
raised in the court below, and no error is assigned as to the action of the trial judge with
regard thereto. It is very clear that counsel for appellant cannot be heard to raise this
question for the first time in a passing comment in his brief filed on appeal.
We do not doubt that before any person may intervene in proceedings had in the Courts
of First Instance for the probate of a will, he should be required to show an interest in the
will or in the property affected thereby either as executor or otherwise; and that strangers
should not be permitted. over the objection of the real parties in interest, to embarras the
proceedings by meddling or intruding themselves in matters with which they have no
concern.
85
The admission to probate of a will may be opposed or contested by, and only by,
persons having some interest in the estate which will be affected and concluded by the
probate of the proposed will. (40 Cyc., 1230, and cases cited.).
But the mere fact that a stranger has been permitted to oppose or contest the probate of
a will is not reversible error and does not invalidate the proceedings where no objection
is interposed by any of the parties in interest .The judgment of the court in probate
proceedings is not based on the fact that there is or is not opposition to the probate of
the will but upon the production of evidence which discloses that there are or are not
sufficient grounds for the probate of the will as propounded; and the reason for the rule
excluding strangers from contesting the will, is not that thereby the court may be
prevented from learning facts which would justify or necessitate a denial of probate, but
rather that the courts and the litigants should not be molested by the intervention in the
proceedings of persons with no interest in the estate which would entitle them to be
heard with relation thereto.
In the case at bar no objection was made in the court below to the intervention of the
contestant, and no motion was made either in that court or in this to exclude the
contestant. We conclude therefore that, assuming that this contestant had no interest in
the estate, a fact which, is substantially conceded in the brief submitted by his counsel,
nevertheless, his intervention in the proceedings, in the absence of objection by any
interested party, did not constitute reversible error.
It is to be observed further that the judgment of the court below, denying probate to the
instrument propounded as the last will and testament of Mariano Magsino, deceased,
was based on the evidence introduced at the hearing on the probate proceedings. That
evidence, as we have said, fully sustains the findings of the probate judge that this
instrument is not the last will and testament of the deceased .No objection was made to
the introduction of this evidence on the ground that it was submitted by a stranger who
should not have been permitted to intervene in the proceedings .Having been admitted to
record without objection, and being competent, relevant and material, and conclusive in
support of the judgment of the trial court, it would be absurd for us to hold that the
judgment below erred in basing his judgment thereon, merely on the ground that on
appeal it is made to appear or is admitted that the contestant had no interest in the
estate. Whether the contestant had or had not any right to intervene, the evidence
submitted at the trial without objection, conclusively sustains the findings of the trial judge
on which he properly based his denial of probate.
The judgment entered in the court below should be affirmed, with costs of this instance
against the appellant .SO ORDERED.
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DIGEST: PARAS VS. NARCISO
Topic/Doctrine: In relation to Allowance and Disallowance of Wills
FACTS:
An appeal denying probate of a document purporting to be the last will and
testament of the deceased named Mariano Magsino, on the ground that the signature
thereto was forged; and that the instrument had been prepared and signed by the
witnesses after the death of the alleged testator. The alleged error in the admission of
certain testimony as to the handwriting of the deceased, the appellant’s assignment of
errors deals exclusively with alleged errors of the trial court in accepting as true or
declining to believe the testimony of certain witnesses. The trial judge saw and heard
these witnesses testify, and there is nothing in the record which would justify us in
disturbing his findings as to the respective credibility or lack of credibility of the various
witnesses.
ISSUE: Whether or not certain witnesses who testified as to the genuineness of certain
signatures of the deceased were properly qualified as handwriting experts.
HELD:
The genuineness of the signatures in question was duly established in the
manner and form prescribed in section 327 of the Code of Civil Procedure; and, indeed,
these signatures appear to have been admitted in evidence as genuine signatures of the
deceased without objection by the appellant. In like manner the other matters testified to
by the alleged handwriting experts appear to have been established by other evidence in
the record, and it is quite clear from the opinion filed by the trial judge that he relied
rather on his own opinion, after comparison of the undoubtedly genuine signature of the
deceased with the signature attached to the alleged will as authorized in the section of
the Code of Civil Procedure just mentioned, rather than upon the statements of the
alleged experts. It is to be observed further that the judgment of the court below, denying
probate to the instrument propounded as the last will and testament of Mariano Magsino,
deceased, was based on the evidence introduced at the hearing on the probate
proceedings. That evidence, as we have said, fully sustains the findings of the probate
judge that this instrument is not the last will and testament of the deceased.
CONSTANTINO C. ACAIN
VS. IAC, VIRGINIA A. FERNANDEZ AND ROSA DIONGSON
G.R. No. 72706
OCTOBER 27, 1987
86

PARAS, J.:
This is a petition for review on certiorari of the decision * of respondent. Court of Appeals
in AC-G.R. SP No. 05744 promulgated on August 30, 1985 (Rollo, p. 108) ordering the
dismissal of the petition in Special Proceedings No, 591 ACEB and its Resolution issued
on October 23, 1985 (Rollo, p. 72) denying respondents' (petitioners herein) motion for
reconsideration.
The dispositive portion of the questioned decision reads as follows:
WHEREFORE, the petition is hereby granted and respondent Regional
Trial Court of the Seventh Judicial Region, Branch XIII (Cebu City), is
hereby ordered to dismiss the petition in Special Proceedings No. 591
ACEB No special pronouncement is made as to costs.
The antecedents of the case, based on the summary of the Intermediate Appellate Court,
now Court of Appeals, (Rollo, pp. 108-109) are as follows:
On May 29, 1984 petitioner Constantino Acain filed on the Regional Trial Court of Cebu
City Branch XIII, a petition for the probate of the will of the late Nemesio Acain and for
the issuance to the same petitioner of letters testamentary, docketed as Special
Proceedings No. 591 ACEB (Rollo, p. 29), on the premise that Nemesio Acain died
leaving a will in which petitioner and his brothers Antonio, Flores and Jose and his sisters
Anita, Concepcion, Quirina and Laura were instituted as heirs. The will allegedly
executed by Nemesio Acain on February 17, 1960 was written in Bisaya (Rollo, p. 27)
with a translation in English (Rollo, p. 31) submi'tted by petitioner without objection raised
by private respondents. The will contained provisions on burial rites, payment of debts,
and the appointment of a certain Atty. Ignacio G. Villagonzalo as the executor of the
testament. On the disposition of the testator's property, the will provided:
THIRD: All my shares that I may receive from our properties.
house, lands and money which I earned jointly with my wife Rosa
Diongson shall all be given by me to my brother SEGUNDO
ACAIN Filipino, widower, of legal age and presently residing at
357-C Sanciangko Street, Cebu City. In case my brother Segundo
Acain pre-deceased me, all the money properties, lands, houses
there in Bantayan and here in Cebu City which constitute my share
shall be given to me to his children, namely: Anita, Constantino,
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Concepcion, Quirina, laura, Flores, Antonio and Jose, all
surnamed Acain.
Obviously, Segundo pre-deceased Nemesio. Thus it is the children of Segundo who are
claiming to be heirs, with Constantino as the petitioner in Special Proceedings No. 591
ACEB
After the petition was set for hearing in the lower court on June 25, 1984 the oppositors
(respondents herein Virginia A. Fernandez, a legally adopted daughter of tile deceased
and the latter's widow Rosa Diongson Vda. de Acain filed a motion to dismiss on the
following grounds for the petitioner has no legal capacity to institute these proceedings;
(2) he is merely a universal heir and (3) the widow and the adopted daughter have been
pretirited. (Rollo, p. 158). Said motion was denied by the trial judge.
After the denial of their subsequent motion for reconsideration in the lower court,
respondents filed with the Supreme Court a petition for certiorari and prohibition with
preliminary injunction which was subsequently referred to the Intermediate Appellate
Court by Resolution of the Court dated March 11, 1985 (Memorandum for Petitioner, p.
3; Rollo, p. 159).
Respondent Intermediate Appellate Court granted private respondents' petition and
ordered the trial court to dismiss the petition for the probate of the will of Nemesio Acain
in Special Proceedings No. 591 ACEB
His motion for reconsideration having been denied, petitioner filed this present petition
for the review of respondent Court's decision on December 18, 1985 (Rollo, p. 6).
Respondents' Comment was filed on June 6, 1986 (Rollo, p. 146).
On August 11, 1986 the Court resolved to give due course to the petition (Rollo, p. 153).
Respondents' Memorandum was filed on September 22, 1986 (Rollo, p. 157); the
Memorandum for petitioner was filed on September 29, 1986 (Rollo, p. 177).
Petitioner raises the following issues (Memorandum for petitioner, p. 4):
(A) The petition filed in AC-G.R. No. 05744 for certiorari and prohibition with
preliminary injunction is not the proper remedy under the premises;
(B) The authority of the probate courts is limited only to inquiring into the
extrinsic validity of the will sought to be probated and it cannot pass upon the
intrinsic validity thereof before it is admitted to probate;
87
 (C) The will of Nemesio Acain is valid and must therefore, be admitted to
probate. The preterition mentioned in Article 854 of the New Civil Code
refers to preterition of "compulsory heirs in the direct line," and does not
apply to private respondents who are not compulsory heirs in the direct line;
their omission shall not annul the institution of heirs;
(D) DICAT TESTATOR ET MERIT LEX. What the testator says will be the
law;
(E) There may be nothing in Article 854 of the New Civil Code, that suggests
that mere institution of a universal heir in the will would give the heir so
instituted a share in the inheritance but there is a definite distinct intention of
the testator in the case at bar, explicitly expressed in his will. This is what
matters and should be in violable.
(F) As an instituted heir, petitioner has the legal interest and standing to file
the petition in Sp. Proc. No. 591 ACEB for probate of the will of Nemesio
Acain and
(G) Article 854 of the New Civil Code is a bill of attainder. It is therefore
unconstitutional and ineffectual.
The pivotal issue in this case is whether or not private respondents have been pretirited.
Article 854 of the Civil Code provides:
Art. 854. The preterition or omission of one, some, or all of the compulsory
heirs in the direct line, whether living at the time of the execution of the will or
born after the death of the testator, shall annul the institution of heir; but the
devisees and legacies shall be valid insofar as they are not; inofficious.
If the omitted compulsory heirs should die before the testator, the institution
shall he effectual, without prejudice to the right of representation.
Preterition consists in the omission in the testator's will of the forced heirs or anyone of
them either because they are not mentioned therein, or, though mentioned, they are
neither instituted as heirs nor are expressly disinherited (Nuguid v. Nuguid, 17 SCRA 450
[1966]; Maninang v. Court of Appeals, 114 SCRA 478 [1982]). Insofar as the widow is
concerned, Article 854 of the Civil Code may not apply as she does not ascend or
descend from the testator, although she is a compulsory heir. Stated otherwise, even if
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the surviving spouse is a compulsory heir, there is no preterition even if she is omitted
from the inheritance, for she is not in the direct line. (Art. 854, Civil code) however, the
same thing cannot be said of the other respondent Virginia A. Fernandez, whose legal
adoption by the testator has not been questioned by petitioner (.Memorandum for the
Petitioner, pp. 8-9). Under Article 39 of P.D. No. 603, known as the Child and Youth
Welfare Code, adoption gives to the adopted person the same rights and duties as if he
were a legitimate child of the adopter and makes the adopted person a legal heir of the
adopter. It cannot be denied that she has totally omitted and preterited in the will of the
testator and that both adopted child and the widow were deprived of at least their
legitime. Neither can it be denied that they were not expressly disinherited. Hence, this is
a clear case of preterition of the legally adopted child.
Pretention annuls the institution of an heir and annulment throws open to intestate
succession the entire inheritance including "la porcion libre (que) no hubiese dispuesto
en virtual de legado mejora o donacion" Maniesa as cited in Nuguid v. Nuguid, supra;
Maninang v. Court of Appeals, 114 SCRA [1982]). The only provisions which do not
result in intestacy are the legacies and devises made in the will for they should stand
valid and respected, except insofar as the legitimes are concerned.
The universal institution of petitioner together with his brothers and sisters to the entire
inheritance of the testator results in totally abrogating the will because the nullification of
such institution of universal heirs-without any other testamentary disposition in the will-
amounts to a declaration that nothing at all was written. Carefully worded and in clear
terms, Article 854 of the Civil Code offers no leeway for inferential interpretation (Nuguid
v. Nuguid), supra. No legacies nor devises having been provided in the will the whole
property of the deceased has been left by universal title to petitioner and his brothers and
sisters. The effect of annulling the "Institution of heirs will be, necessarily, the opening of
a total intestacy (Neri v. Akutin, 74 Phil. 185 [1943]) except that proper legacies and
devises must, as already stated above, be respected.
We now deal with another matter. In order that a person may be allowed to intervene in a
probate proceeding he must have an interest iii the estate, or in the will, or in the property
to be affected by it either as executor or as a claimant of the estate and an interested
party is one who would be benefited by the estate such as an heir or one who has a
claim against the estate like a creditor (Sumilang v. Ramagosa, 21 SCRA 1369/1967).
Petitioner is not the appointed executor, neither a devisee or a legatee there being no
mention in the testamentary disposition of any gift of an individual item of personal or real
property he is called upon to receive (Article 782, Civil Code). At the outset, he appears
to have an interest in the will as an heir, defined under Article 782 of the Civil Code as a
person called to the succession either by the provision of a will or by operation of law.
However, intestacy having resulted from the preterition of respondent adopted child and
88
the universal institution of heirs, petitioner is in effect not an heir of the testator. He has
no legal standing to petition for the probate of the will left by the deceased and Special
Proceedings No. 591 A-CEB must be dismissed.
As a general rule certiorari cannot be a substitute for appeal, except when the
questioned order is an oppressive exercise of j judicial authority (People v. Villanueva,
110 SCRA 465 [1981]; Vda. de Caldito v. Segundo, 117 SCRA 573 [1982]; Co Chuan
Seng v. Court of Appeals, 128 SCRA 308 [1984]; and Bautista v. Sarmiento, 138 SCRA
587 [1985]). It is axiomatic that the remedies of certiorari and prohibition are not available
where the petitioner has the remedy of appeal or some other plain, speedy and adequate
remedy in the course of law (DD Comendador Construction Corporation v. Sayo (118
SCRA 590 [1982]). They are, however, proper remedies to correct a grave abuse of
discretion of the trial court in not dismissing a case where the dismissal is founded on
valid grounds (Vda. de Bacang v. Court of Appeals, 125 SCRA 137 [1983]).
Special Proceedings No. 591 ACEB is for the probate of a will. As stated by respondent
Court, the general rule is that the probate court's authority is limited only to the extrinsic
validity of the will, the due execution thereof, the testator's testamentary capacity and the
compliance with the requisites or solemnities prescribed by law. The intrinsic validity of
the will normally comes only after the Court has declared that the will has been duly
authenticated. Said court at this stage of the proceedings is not called upon to rule on the
intrinsic validity or efficacy of the provisions of the will (Nuguid v. Nuguid, 17 SCRA 449
[1966]; Sumilang v. Ramagosa, supra; Maninang v. Court of Appeals, 114 SCRA 478
[1982]; Cayetano v. Leonides, 129 SCRA 522 [1984]; and Nepomuceno v. Court of
Appeals, 139 SCRA 206 [1985]).
The rule, however, is not inflexible and absolute. Under exceptional circumstances, the
probate court is not powerless to do what the situation constrains it to do and pass upon
certain provisions of the will (Nepomuceno v. Court of Appeals, supra). In Nuguid v.
Nuguid the oppositors to the probate moved to dismiss on the ground of absolute
preteriton The probate court acting on the motion held that the will in question was a
complete nullity and dismissed the petition without costs. On appeal the Supreme Court
upheld the decision of the probate court, induced by practical considerations. The Court
said:
We pause to reflect. If the case were to be remanded for probate of the will,
nothing will be gained. On the contrary, this litigation will be protracted. And
for aught that appears in the record, in the event of probate or if the court
rejects the will, probability exists that the case will come up once again
before us on the same issue of the intrinsic validity or nullity of the will.
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
Result: waste of time, effort, expense, plus added anxiety. These are the
practical considerations that induce us to a belief that we might as well meet
head-on the issue of the validity of the provisions of the will in question. After
all there exists a justiciable controversy crying for solution.
In Saguimsim v. Lindayag (6 SCRA 874 [1962]) the motion to dismiss the petition by the
surviving spouse was grounded on petitioner's lack of legal capacity to institute the
proceedings which was fully substantiated by the evidence during the hearing held in
connection with said motion. The Court upheld the probate court's order of dismissal.
In Cayetano v. Leonides, supra one of the issues raised in the motion to dismiss the
petition deals with the validity of the provisions of the will. Respondent Judge allowed the
probate of the will. The Court held that as on its face the will appeared to have preterited
the petitioner the respondent judge should have denied its probate outright. Where
circumstances demand that intrinsic validity of testamentary provisions be passed upon
even before the extrinsic validity of the will is resolved, the probate court should meet the
issue. (Nepomuceno v. Court of Appeals, supra; Nuguid v. Nuguid, supra).
In the instant case private respondents filed a motion to dismiss the petition in Sp.
Proceedings No. 591 ACEB of the Regional Trial Court of Cebu on the following
grounds: (1) petitioner has no legal capacity to institute the proceedings; (2) he is merely
a universal heir; and (3) the widow and the adopted daughter have been preterited
(Rollo, p. 158). It was denied by the trial court in an order dated January 21, 1985 for the
reason that "the grounds for the motion to dismiss are matters properly to be resolved
after a hearing on the issues in the course of the trial on the merits of the case (Rollo, p.
32). A subsequent motion for reconsideration was denied by the trial court on February
15, 1985 (Rollo, p. 109).
For private respondents to have tolerated the probate of the will and allowed the case to
progress when on its face the will appears to be intrinsically void as petitioner and his
brothers and sisters were instituted as universal heirs coupled with the obvious fact that
one of the private respondents had been preterited would have been an exercise in
futility. It would have meant a waste of time, effort, expense, plus added futility. The trial
court could have denied its probate outright or could have passed upon the intrinsic
validity of the testamentary provisions before the extrinsic validity of the will was resolved
(Cayetano v. Leonides, supra; Nuquid v. Nuguid, supra. The remedies of certiorari and
prohibition were properly availed of by private respondents.
Thus, this Court ruled that where the grounds for dismissal are indubitable, the
defendants had the right to resort to the more speedy, and adequate remedies of
89
certiorari and prohibition to correct a grave abuse of discretion, amounting to lack of
jurisdiction, committed by the trial court in not dismissing the case, (Vda. de Bacang v.
Court of Appeals, supra) and even assuming the existence of the remedy of appeal, the
Court harkens to the rule that in the broader interests of justice, a petition for certiorari
may be entertained, particularly where appeal would not afford speedy and adequate
relief. (Maninang Court of Appeals, supra).
PREMISES CONSIDERED, the petition is hereby DENIED for lack of merit and the
questioned decision of respondent Court of Appeals promulgated on August 30, 1985
and its Resolution dated October 23, 1985 are hereby AFFIRMED.
SO ORDERED.
DIGEST: ACAIN VS. IAC
FACTS:
Constantino Acain filed on the Regional Trial Court a petition for the probate of the
will of his late Uncle, Nemesio Acain, on the premise that the latter died leaving a will in
which the former and his brothers and sisters were instituted as heirs. After the petition
was set for hearing in the lower court, Virginia Fernandez and Rosa Diongson, a legally
adopted daughter and the widow of the deceased respectively, filed a motion to dismiss
on the grounds that: (1) Constantino Acain has no legal capacity to institute the
proceedings; (2) he is merely a universal heir; and (3) the widow and the adopted
daughter have been pretirited. Said motion was denied as well as the subsequent motion
for reconsideration. Consequently, Fernandez and Diongson filed with the Supreme
Court a petition for certiorari and prohibition with preliminary injunction which was
subsequently referred to the Intermediate Appellate Court. IAC granted Fernandez and
Diongson’s petition and ordered the trial court to dismiss the petition for probate of the
will. Due to the denial of Acain’s motion for reconsideration, he then filed a petition for
review on certiorari before the Supreme Court.
ISSUE: Whether or not Virginia Fernandez and Rosa Diongson have been preterited.
HELD:
Article 854 of the Civil Code:
The preterition or omission of one, some, or all of the compulsory heirs in the direct
line, whether living at the time of the execution of the will or born after the death of the
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
testator, shall annul the institution of heir; but the devisees and legacies shall be valid
insofar as they are not inofficious.
If the omitted compulsory heirs should die before the testator, the institution shall
be effectual, without prejudice to the right of representation. Preterition consists in the
omission in the testator’s will of the forced heirs or anyone of them either because they
are not mentioned therein, or though mentioned, they are neither instituted as heirs nor
are expressly disinherited. Insofar as the widow is concerned, Article 854 may not apply
as she does not ascend or descend from the testator, although she is a compulsory heir.
However, the same thing cannot be said of the legally adopted daughter.
Under Article 39 of P.D. No. 603, known as the Child and Youth Welfare Code,
adoption gives to the adopted person the same rights and duties as if he were a
legitimate child of the adopter and makes the adopted person a legal heir of the adopter.
It cannot be denied that she was totally omitted and preterited in the will and that both
the adopted child and the widow were deprived of at least their legitime. Neither can it be
denied that they were not expressly disinherited. Hence, this is a clear case of preterition
of the legally adopted child.
The universal institution of Acain together with his brothers and sisters to the entire
inheritance of the testator results in totally abrogating the will because the nullification of
such institution of universal heirs without any other testamentary disposition in the will
amounts to a declaration that nothing at all was written.
BENEDICTO LEVISTE VS. CA, CFI,
ROSA DEL ROSARIO, RITA BANU, CARMEN DE GUZMAN-MARQUEZ, JESUS R.
DE GUZMAN, RAMON R. DE GUZMAN, JACINTO R. DE GUZMAN, & ANTONIO R.
DE GUZMAN
G.R. NO. 29184
JANUARY 30, 1989
SYLLABUS
1. CIVIL LAW; SUCCESSION; REPUDIATION; ARTICLE 1052 OF THE CIVIL CODE
DOES NOT APPLY TO COUNSEL OF A PROSPECTIVE HEIR. — Article 1052 of the
Civil Code protects the creditor of a repudiating heir. Petitioner is not a creditor of Rosa
del Rosario. The payment of his fees is contingent and dependent upon the successful
probate of the holographic will. Since the petition for probate was dismissed by the lower
court, the contingency did not occur.
90

2. ID.; ID.; ID.; ID.; AMOUNT OF SHARE, MERELY A BASIS FOR COMPUTATION OF
CONTINGENT ATTORNEY’S FEES. — Article 1052 presupposes that the obligor is an
heir. Rosa del Rosario is not a legal heir of the late Maxima C. Reselva. Upon the
dismissal of her petition for probate of the decedent’s will, she lost her right to inherit any
part of the latter’s estate. There is nothing for the petitioner to accept in her name. This
Court had ruled in the case of Recto v. Harden, 100 Phil. 1427, that "the contract (for
contingent attorney’s fees) neither gives, nor purports to give, to the appellee (lawyer)
any right whatsoever, personal or real, in and to her (Mrs. Harden’s) aforesaid share in
the conjugal partnership. The amount thereof is simply a basis for the computation of
said fees."cralaw
3. ID.; ID.; NOT EVERY WILL SHOULD BE FOLLOWED. — The Court of Appeals did
not err in dismissing the petition for mandamus, for while it is true that, as contended by
the petitioner, public policy favors the probate of a will, it does not necessarily follow that
every will that is presented for probate, should be allowed. The law lays down
procedures which should be observed and requisites that should be satisfied before a
will may be probated. Those procedures and requirements were not followed in this case
resulting in the disallowance of the will. There being no valid will, the motion to withdraw
the probate petition was inconsequential.
4. REMEDIAL LAW; SPECIAL PROCEEDINGS; PROBATE; PERSONS INDIRECTLY
EXCLUDED THEREIN. — In Paras v. Narciso, 35 Phil. 244, We had occasion to rule
that one who is only indirectly interested in a will may not interfere in its probate. Thus: ".
. . the reason for the rule excluding strangers from contesting the will, is not that thereby
the court maybe prevented from learning facts which would justify or necessitate a denial
of probate, but rather that the courts and the litigants should not be molested by the
intervention in the proceedings of persons with no interest in the estate which would
entitle them to be heard with relation thereto." (Paras v. Narciso, 35 Phil. 244, 246.)
DECISION
GRIÑO-AQUINO, J.:
The issue in this case is whether or not an attorney who was engaged on a contingent
fee basis may, in order to collect his fees, prosecute an appeal despite his client’s refusal
to appeal the decision of the trial court.
On September 7, 1963, the petitioner, a practicing attorney, entered into a written
agreement with the private respondent Rosa del Rosario to appear as her counsel in a
petition for probate of the holographic will of the late Maxima C. Reselva. Under the will,
a piece of real property at Sales Street, Quiapo, Manila, was bequeathed to Del Rosario.
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
It was agreed that petitioner’s contingent fee would be thirty-five per cent (35%) of the
property that Rosa may receive upon the probate of the will (Annex "A", p. 59, Rollo).
In accordance with their agreement, Leviste performed the following services as Del
Rosario’s counsel:chanrob1es virtual 1aw library
(1) Thoroughly researched and studied the law on probate and succession;
(2) Looked for and interviewed witnesses, and took their affidavits;
(3) Filed the petition for probate is Special Proceeding No. 58325;
(4) Made the proper publications;
(5) Presented at the trial the following witnesses:chanrob1es virtual 1aw library
a) Eleuterio de Jesus
b) Lucita de Jesu
c) Purita L. Llane
d) Rita Banu
e) Jesus Lulod.
On August 20, 1965, Leviste received a letter from Ms. Del Rosario, informing him that
she was terminating his services as her counsel due to "conflicting interest." This
consisted, according to the letter, in petitioner’s moral obligation to protect the interest of
his brother-in-law, Gaudencio M. Llanes, whom Del Rosario and the other parties in the
probate proceeding intended to eject as lessee of the property which was bequeathed to
Del Rosario under the will (Annex "B", p. 60, Rollo).
On September 20, 1965, petitioner filed a "Motion to Intervene to Protect His Rights to
Fees for Professional Services." (Annex "B", p. 60, Rollo.).
In an order dated November 12, 1965 the trial court denied his motion on the ground that
he had "not filed a claim for attorney’s fees nor recorded his attorney’s lien." (p. 3, Rollo.)
On November 23, 1965, petitioner filed a "Formal Statement of Claim or Attorney’s Fees
and Recording of Attorney’s Lien," which was noted in the court’s order of December 20,
1965 (Annexes "D" and "E", pp. 63 & 64, Rollo).
Although the order denying his motion to intervene had become final, petitioner
continued to receive copies of the court’s orders, as well as the pleadings of the other
parties in the case. He also continued to file pleadings. The case was submitted for
decision without the respondents’ evidence.
91
On November 23, 1966, Del Rosario and Rita Banu, the special administratrix-legatee,
filed a "Motion To Withdraw Petition for Probate" alleging that Del Rosario waived her
rights to the devise in her favor and agreed that the De Guzman brothers and sisters who
opposed her petition for probate, shall inherit all the properties left by the decedent.
(Annex "F", p. 65, Rollo.)
In an order of April 13, 1967 the trial court denied the motion to withdraw the petition for
being contrary to public policy (Annex "G", pp. 66-67, Rollo).
Nonetheless, on August 28, 1967, the court disallowed the will, holding that the legal
requirements for its validity were not satisfied as only two witnesses testified that the will
and the testatrix’s signature were in the handwriting of Maxima Reselva.
The petitioner filed an appeal bond, notice of appeal, and record on appeal. The private
respondents filed a motion to dismiss the appeal on the ground that petitioner was not a
party in interest.
The petitioner opposed the motion to dismiss his appeal, claiming that he has a direct
and material interest in the decision sought to be reviewed. He also asked that he be
substituted as party-petitioner, in lieu of his former client, Ms. Del Rosario.
On March 28, 1968, the trial judge dismissed the appeal and denied petitioner’s motion
for substitution:
The petitioner filed in the Court of Appeals a petition for mandamus (CA-G.R. No. 41248)
praying that the trial court be ordered to give due course to his appeal and to grant his
motion for substitution.
On May 22, 1968, the Court of Appeals dismissed the petition for being insufficient in
form and substance as the petitioner did not appear to be the proper party to appeal the
decision in Special Proceeding No. 58325 (Annex I, p. 77, Rollo).
Upon the denial of his motion for reconsideration, petitioner appealed by certiorari to this
Court, assigning the following errors against the Court of Appeals’ resolution:
1. The Court of Appeals erred in finding that the petitioner appears not
to be the proper party to appeal the decision in Sp. Proc. No. 58325 of
the Court of First Instance of Manila.
2. Assuming the petitioner’s right of appeal is doubtful, the Court of
Appeals erred in dismissing his petition for mandamus; and
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
3. The Court of Appeals erred in not reversing the decision in Sp. Proc.
No. 58325 denying the probate of the holographic will of the late
Maxima C. Reselva, said decision being patently erroneous.
Under his first assignment of error, petitioner argues that by virtue of his contract of
services with Del Rosario, he is a creditor of the latter, and that under Article 1052 of the
Civil Code which provides:
"ART. 1052. If the heir repudiates the inheritance to the prejudice of his own creditors,
the latter may petition the court to authorize them to accept it in the name of the heir.
"The acceptance shall benefit the creditors only to an extent sufficient to cover the
amount of their credits. The excess, should there be any, shall in no case pertain to the
renouncer, but shall be adjudicated to the persons to whom, in accordance with the rules
established in this Code, it may belong."
he has a right to accept for his client Del Rosario to the extent of 35% thereof the devise
in her favor (which she in effect repudiated) to protect his contingent attorney’s fees.
The argument is devoid of merit. Article 1052 of the Civil Code does not apply to this
case. That legal provision protects the creditor of a repudiating heir. Petitioner is not a
creditor of Rosa del Rosario. The payment of his fees is contingent and dependent upon
the successful probate of the holographic will. Since the petition for probate was
dismissed by the lower court, the contingency did not occur. Attorney Leviste is not
entitled to his fee.
Furthermore, Article 1052 presupposes that the obligor is an heir. Rosa del Rosario is
not a legal heir of the late Maxima C. Reselva. Upon the dismissal of her petition for
probate of the decedent’s will, she lost her right to inherit any part of the latter’s estate.
There is nothing for the petitioner to accept in her name.
This Court had ruled in the case of Recto v. Harden, 100 Phil. 1427, that "the contract
(for contingent attorney’s fees) neither gives, nor purports to give, to the appellee
(lawyer) any right whatsoever, personal or real, in and to her (Mrs. Harden’s) aforesaid
share in the conjugal partnership. The amount thereof is simply a basis for the
computation of said fees."cralaw virtua1aw library
The Court of Appeals did not err in dismissing the petition for mandamus, for while it is
true that, as contended by the petitioner, public policy favors the probate of a will, it does
not necessarily follow that every will that is presented for probate, should be allowed.
The law lays down procedures which should be observed and requisites that should be
92
satisfied before a will may be probated. Those procedures and requirements were not
followed in this case resulting in the disallowance of the will. There being no valid will, the
motion to withdraw the probate petition was inconsequential.chanrobles.com.ph : virtual
law library
Petitioner was not a party to the probate proceeding in the lower court. He had no direct
interest in the probate of the will. His only interest in the estate is an indirect interest as
former counsel for a prospective heir. In Paras v. Narciso, 35 Phil. 244, We had occasion
to rule that one who is only indirectly interested in a will may not interfere in its probate.
Thus:
". . . the reason for the rule excluding strangers from contesting the will, is
not that thereby the court maybe prevented from learning facts which would
justify or necessitate a denial of probate, but rather that the courts and the
litigants should not be molested by the intervention in the proceedings of
persons with no interest in the estate which would entitle them to be heard
with relation thereto." (Paras v. Narciso, 35 Phil. 244, 246.)
Similary, in Morente v. Firmalino, 40 O.G. 21st Supp. 1, We held:
"We are of the opinion that the lower court did not err in holding that
notice of an attorney’s lien did not entitle the attorney-appellant to
subrogate himself in lieu of his client. It only gives him the right to collect
a certain amount for his services in case his client is awarded a certain
sum by the court."
WHEREFORE, the petition for certiorari is denied for lack of merit. Costs against the
petitioner.
SO ORDERED.
DIGEST: LEVISTE VS. CA
FACTS:
Petitioner, a practicing attorney, entered into a written agreement with the private
respondent Rosa del Rosario to appear as her counsel in a petition for probate of the
holographic will of the late Maxima C. Reselva. Under the will, a piece of real property at
Sales Street, Quiapo, Manila, was bequeathed to Del Rosario. It was agreed that
petitioner's contigent fee would be thirty-five per cent (35%) of the property that Rosa
may receive upon the probate of the will.
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
Petitioner Leviste received a letter from Ms. Del Rosario, informing him that she
was terminating his services as her counsel due to "conflicting interest." (Llanes, the
lessee of the subject property whom respondent intends to eject is the brother-in-law of
Petitioner)
He filed a motion to intervene but was declined by the court. Despite the notice of
termination of his service, petitioner continued participating in the litigation. Even after
the will was disallowed by the probate court for failure to observe the formalities required
by law, petitioner appealed the case. He also asked that he be substituted as party-
petitioner, in lieu of his former client, Ms. Del Rosario. The trial judge dismissed the
appeal and denied petitioner's motion for substitution.
The petitioner filed in the Court of Appeals a petition for mandamus praying that
the trial court be ordered to give due course to his appeal and to grant his motion for
substitution.
ISSUE: May a person having indirect interest in a will interfere in its probate?
HELD:
NO.
The dismissal of the petition for mandamus was proper, for while it is true that, as
contended by the petitioner, public policy favors the probate of a will, it does not
necessarily follow that every will that is presented for probate, should be allowed. The
law lays down procedures which should be observed and requisites that should be
satisfied before a will may be probated. Those procedures and requirements were not
followed in this case resulting in the disallowance of the will. There being no valid will, the
motion to withdraw the probate petition was inconsequential.
Petitioner was not a party to the probate proceeding in the lower court. He had no
direct interest in the probate of the will. His only interest in the estate is an indirect
interest as former counsel for a prospective heir. In Paras vs. Narciso, 35 Phil. 244, We
had occassion to rule that one who is only indirectly interested in a will may not interfere
in its probate. Thus:
... the reason for the rule excluding strangers from contesting the will, is not
that thereby the court maybe prevented from learning facts which would
93
 justify or necessitate a denial of probate, but rather that the courts and the
litigants should not be molested by the intervention in the proceedings of
persons with no interest in the estate which would entitle them to be heard
with relation thereto. (Paras vs. Narciso, 35 Phil. 244, 246.)
Similary, in Morente vs. Firmalino, 40 O.G. 21st Supp. 1, We held:
We are of the opinion that the lower court did not err in holding that notice
of an attorney's lien did not entitle the attorney-appellant to subrogate
himself in lieu of his client. It only gives him the right to collect a certain
amount for his services in case his client is awarded a certain sum by the
court.
2. The Order of 2 June 1980 finding the signature of the testatrix in the
last will and testament to be a forgery and (a) declaring the testatrix as
having died intestate; (b) declaring the testamentary dispositions in said
last will and testament as null and void; (c) setting aside the order dated
10 September 1973 declaring the testate proceedings closed and
terminated; (d) revoking the appointment of Jesus Fran as executor while
appointing respondent Concepcion M. Espina as administratrix; and (e)
ordering the conversion of the proceedings to one of intestacy. 2 This
Order effectively annulled and set aside the probate judgment of 13
November 1972.
Petitioners would also have this Court nullify all other actions of respondent
Judge in said Sp. Proc. No. 3309-R; restore the status quo therein prior to the
issuance of the foregoing orders; and permanently enjoin respondent Judge from
reopening said proceedings.

The following facts are not controverted:

Remedios M. Vda. de Tiosejo, a widow, died on 10 July 1972 in Cebu City with neither
THE HEIRS OF THE LATE JESUS FRAN AND CARMEN MEJIA RODRIGUEZ
descendants nor ascendants; she left real and personal properties located in Cebu City,
VS. HON. BERNARDO LL. SALAS, CONCEPCION MEJIA ESPINA and MARIA
Ormoc City and Puerto Bello, Merida, Leyte. Earlier, on 23 April 1972, she executed a
MEJIA GANDIONGCO
last will and testament 3 wherein she bequeathed to her collateral relatives (brothers,
G.R. NO. L-53546
sisters, nephews and nieces) all her properties, and designated Rosario Tan or, upon the
JUNE 25, 1992
latter's death, Jesus Fran, as executor to serve without bond. Instrumental witnesses to
the will were Nazario Pacquiao, Alcio Demerre and Primo Miro.
DAVIDE, JR., J.:
On 15 July 1972, Jesus Fran filed a petition with the Court of First instance of Cebu for
This is a petition for certiorari and prohibition under Rule 65 of the Revised Rules of
the probate of Remedios' last will and testament. 4 The case was raffled to the original
Court, with prayer for a writ of preliminary injunction, to annul and set aside, for having
Branch VIII thereof which was then presided over by Judge Antonio D. Cinco. The
been issued without jurisdiction or with grave abuse of discretion amounting to lack of
petition alleged that Rosario Tan is not physically well and, therefore, will not be
jurisdiction, the following Orders of the respondent Judge in Special Proceedings No.
assuming the position of administratrix. Tan signed a waiver in favor of Jesus Fran on
3309-R of Branch VIII of the then Court of First Instance (now Regional Trial Court) of
the third page of the said petition. The probate court issued an order setting the petition
Cebu entitled "In The Matter of the Petition for Probate of the Last Will and Testament of
for hearing on 18 September 1972. Meanwhile, on 31 July 1972, the court appointed
Remedios Mejia Vda. de Tiosejo:"
petitioner Jesus Fran as special administrator.
1. The Order of 26 February 1980 setting for hearing private respondents'
On 10 August 1972, the private respondents, who are sisters of the deceased, filed a
Omnibus Motion for Reconsideration 1 which was filed six (6) years, ten
manifestation 5 alleging that they needed time to study the petition because some heirs
(10) months and eighteen (18) days after the probate judgment was
who are entitled to receive their respective shares have been intentionally omitted
rendered and six (6) years and twenty-one (21) days after the testate
therein, and praying that they be given ample time to file their opposition, after which the
proceedings was declared closed and terminated; and
hearing be reset to another date.

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Private respondents did not file any opposition. Instead, they filed on 18 September 1972
a "Withdrawal of Opposition to the Allowance of Probate (sic) of the Will" wherein they
expressly manifested, with their "full knowledge and consent that . . . they have no
objection of (sic) the allowance of the . . . will of the late Remedios Mejia Vda. de
Tiosejo," and that they have "no objection to the issuance of letters testamentary in favor
of petitioner, Dr. Jesus Fran." 6
No other party filed an opposition. The petition thus became uncontested.
During the initial hearing, petitioner Fran introduced the requisite evidence to establish
the jurisdictional facts.
Upon a determination that the court had duly acquired jurisdiction over the uncontested
petition for probate, Judge Cinco issued in open court an order directing counsel for
petitioner to present evidence proving the authenticity and due execution of the will
before the Clerk of Court who was, accordingly, so authorized to receive the same.
The reception of evidence by the Clerk of Court immediately followed. Petitioner Fran's
first witness was Atty. Nazario R. Pacquiao, one at the subscribing witnesses to the will.
The original of the will, marked as Exhibit "F", and its English translation, marked as
Exhibit "F-Translation", were submitted to the Clerk of Court. 7 Petitioner Fran was the
second and also the last witness. He enumerated the names of the surviving heirs of the
deceased.
On 13 November 1972, the probate court rendered a decision admitting to probate the
will of the testatrix, Remedios Mejia Vda. de Tiosejo, and appointing petitioner Fran as
executor thereof. 8 The dispositive portion of the decision reads:
WHEREFORE, in view of all the foregoing, judgment is hereby rendered
declaring the last will and testament of the deceased Remedios Mejia
Vda. de Tiosejo marked as Exhibit F as admitted to probate. Dr. Jesus
Fran is hereby appointed as executor of the will. Let letters testamentary
be issued in favor of Dr. Jesus Fran. The special administrator's bond put
up by Dr. Jesus Fran as special administrator duly approved by this Court
shall serve and be considered as the executor's bond considering that the
special administrator and executor are one and the same person.
The requisite notice to creditors was issued, but despite the expiration of the period
therein fixed, no claim was presented against the estate.
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On 4 January 1973, petitioner Fran filed an Inventory of the Estate; 9 copies thereof were
furnished each of the private respondents.
Subsequently, a Project of Partition based on the dispositions made in the will and
signed by all the devisees and legatees, with the exception of Luis Fran, Remedios C.
Mejia and respondent Concepcion M. Espina, was submitted by the executor for the
court's approval. 10 Said legatees and devisees submitted certifications wherein they
admit receipt of a copy of the Project of Partition together with the notice of hearing, and
state that they had no objection to its approval. 11
The notice of hearing referred to in these certifications is the 6 August 1973 notice issued
by the Clerk of Court setting the hearing on the Project of Partition for 29 August
1973. 12
After the hearing on the Project of Partition, the court issued its Order of 10 September
1973 13 approving the same, declaring the parties therein as the only heirs entitled to the
estate of Remedios Mejia Vda. de Tiosejo, directing the administrator to deliver to the
said parties their respective shares and decreeing the proceedings closed. The
dispositive portion thereof reads:
WHEREFORE, the signers (sic) to the project of partition are declared
the only, heirs entitled to the estate; the project of partition submitted is
ordered approved and the administrator is ordered to deliver to each one
of them their respective aliquot parts as distributed in the said project of
partition. It is understood that if there are expenses incurred or to be
incurred as expenses of partition, Section 3 of Rule 90 shall be followed.
Let this proceedings be now declared closed.
SO ORDERED.
Thereafter, the aforesaid Branch VIII of the Court of First Instance of Cebu was
converted to a Juvenile and Domestic Relations Court. On November 1978, by virtue of
Presidential Decree No. 1439, Branch XVII (Davao City) of the Court of First Instance of
Cebu, presided over by herein respondent Judge, was officially transferred to Cebu City
and renumbered as Branch VIII.
On 1 October 1979, private respondents filed with the new Branch VIII an Omnibus
Motion for Reconsideration of the probate judgment of 13 November 1972 and the Order
of partition of 10 September 1973, in said motion, they ask the court to declare the
95
proceedings still open and admit their opposition to the allowance of the will, 14 which
they filed on 1 October 1979. They allege that: (a) they were not furnished with a copy of
the will; (b) the will is a forgery; (c) they were not notified of any resolution or order on
their manifestation requesting time within which to file their opposition, or of the order
authorizing the clerk of court to receive the evidence for the petitioner, or of the order
closing the proceedings; (d) the reception of evidence by the clerk of court was void per
the ruling in Lim Tanhu vs. Ramolete; 15 (e) the project of partition contains no notice of
hearing and they were not notified thereof; (f) the petitioner signed the project of partition
as administrator and not as executor, thereby proving that the decedent died intestate;
(g) the petitioner did not submit any accounting as required by law; and (h) the petitioner
never distributed the estate to the devisees and legatees.
In a detailed opposition 16 to the above Omnibus Motion for Reconsideration, petitioner
Fran refuted all the protestations of private respondents. Among other reasons, he
stresses therein that: (a) private respondents are in estoppel to question the will because
they filed their Withdrawal Of Opposition To The Allowance of Will which states that after
thoroughly studying the petition, to which was attached a copy of the English translation
of the will, they have no objection to its allowance; the order directing the clerk of court to
receive the evidence was dictated in open court in the presence of private respondents;
private respondent Maria M. Gandiongco signed the Project of Partition and private
respondent Concepcion M. Espina submitted a certification stating therein that she
received the notice of hearing therefor and has no objection to its approval; (b) except for
some properties, either covered by a usufruct under the will or agreed upon by the
parties to be held in common by reason of its special circumstance, there was an actual
distribution of the estate in accordance with the Project of Partition; insofar as private
respondents are concerned, they not only received their respective shares, they even
purchased the shares of the other devisees. To top it all, private respondents' children,
namely Rodrigo M. Gandiongco, Jr. and Victor Espina, mortgaged their respective
shares in favor of a bank
Notwithstanding petitioners' objections, respondent Judge issued on 26 February 1980
an Order setting for hearing the said Omnibus Motion for Reconsideration on 8 April
1980 so that "the witnesses and the exhibits (may be) properly ventilated." 17
On 25 March 1980, petitioners filed a Motion to Dismiss the Omnibus and to Reconsider
the 26 February 1980 Order setting it for hearing on 17 April 1980, 18 but the respondent
Judge prematurely denied it for lack of merit in his Order of 31 March 1980. 19
Consequently, on 8 April 1980, the instant petition was filed challenging the jurisdiction of
the lower court in taking cognizance of the Omnibus Motion for Reconsideration
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
considering that the probate judgment and the order approving the Project of Partition
and terminating the proceedings had long become final and had in fact been executed.
Private respondents had long lost their right to appeal therefrom. The Omnibus Motion
for Reconsideration cannot likewise be treated as a petition for relief from judgment for
under Rule 38 of the Revised Rules of Court, the same must be filed within sixty (60)
days from receipt of notice of the judgment/order and within six (6) months from the date
of said judgment. Therefore, this remedy can no longer be availed of.
On 8 April 1980, the date the instant petition was filed, respondent Judge proceeded with
the hearing of the Omnibus Motion for Reconsideration. He received the testimonies of
private respondents and one Romeo O. Varena, an alleged handwriting expert from the
Philippine Constabulary, who averred that the signature of the testatrix on the will is a
forgery. The respondent Judge likewise issued an Order on the same date stating that
unless he received a restraining order from this Court within twenty (20) days therefrom,
he will reopen Sp. Proc. No. 3309-R.
On 14 April 1980, petitioners filed a Supplemental Petition asking this Court to restrain
respondent Judge from reopening the case. 20
In their voluminous Comments and Opposition to the petition and Supplemental
Petition, 21 private respondents not only amplify in great detail the grounds raised in their
Omnibus Motion for Reconsideration, they also squarely raise for the first time the
following issues.
(a) The probate court never acquired jurisdiction over the case since
petitioner Jesus Fran failed to submit to the court the original of the will.
(b) They were deprived of the opportunity to examine the will as petitioner
Jesus Fran did not attach it to the petition; what was attached was only the
English translation of the will.
(c) Even assuming that the probate judge could validly delegate the
reception of evidence to the Clerk of Court, the proceeding before the latter
would still be void as he failed to take an oath of office before entering upon
his duties as commissioner and failed to render a report on the matters
submitted to him.
(d) Respondent Maria M. Vda. de Gandiongco was defrauded into (sic)
signing the Project of Partition and respondent Concepcion M. Espina, her
certification, when they were misled by petitioner Fran into believing that the
96
 Agreement of Petition to be submitted to the court is the Extra Judicial
Partition they signed on 7 May 1973.
(e) Petitioner Fran is guilty of fraud in urdervaluing the estate of the late
Remedios M. Vda. de Tiosejo by reporting properties worth only
P400,000.00 when in truth and in fact the estate has an aggregate value of
P2,094,333.00.
In the Resolution dated 2 June 1980, We issued a restraining order enjoining respondent
Judge from reopening Sp. Proc. No. 3309-R. 22
However, on the same date, before the restraining order was served on him; respondent
Judge issued the impugned order declaring the testamentary dispositions of the will void,
finding the signature of the late Remedios M. Vda. de Tiosejo to be a forgery, decreeing
the reopening of Sp. Proc. No. 3309-R and converting the same into an intestate
proceeding. 23
Hence, on 6 June 1980, petitioners filed their Second Supplemental Petition 24 asking
this Court to declare as null and void the Order of 2 June 1980 and, pending such
declaration, to restrain respondent Judge from enforcing the same. Private respondents
filed their Comment and Opposition to the Second Supplemental Petition on 9 July 1980.
Thereafter, as mandated in the resolution of 30 June 1980, 25 this Court gave due
course to this case and required the parties to file their respective Memoranda, which
private respondents complied with on 16 August 1980; 26 petitioners filed theirs on 27
August 1980. 27 Consequently, the parties continued to file several pleadings reiterating
substantially the same allegations and arguments earlier submitted to this Court.
On 22 March 1984, counsel for petitioners filed a manifestation informing this Court of
the death of petitioner Fran on 29 February 1984 and enumerating therein his surviving
heirs. On 2 April 1984, this Court resolved to have said heirs substitute him in this case.
Over a year later, respondent Maria M. Vda. de Gandiongco filed an affidavit, 28 sworn
to before the acting Clerk of Court of the Regional Trial Court in Cebu City, disclosing the
following material facts: (a) she signed the Omnibus Motion for Reconsideration dated 1
October 1979 without knowing or reading the contents thereof; (b) she saw the will of the
late Remedios M. Vda. de Tiosejo written in the Cebuano dialect after the same was
executed by the latter; the said will bearing the authentic signature of Remedios was the
very one presented to the probate court by petitioner's counsel; (c) she received the
notice of hearing of the petition for probate and because she was convinced that the
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
signature of the testatrix was genuine, she, together with Concepcion M. Espina,
withdrew her opposition; (d) she received her share of the estate of the late Remedios M.
Vda. de Tiosejo which was distributed in accordance with the provisions of the latter's
will; and (e) she did not authorize Atty. Numeriano Estenzo or other lawyers to present a
motion to this Court after 25 February 1981 when Estenzo withdrew as counsel for
private respondents. She then asks this Court to consider as withdrawn her Opposition to
the Allowance of the Will, her participation in the Omnibus Motion for Reconsideration
and her Opposition to this petition.
Due to this development, We required private respondent Concepcion M. Espina to
comment on the affidavit of private respondent Maria M. Vda. de Gandiongco.
On 17 August 1985, private respondents filed a joint manifestation 29 wherein they claim
that Maria M. Vda. de Gandiongco does not remember, executing the affidavit. A few
weeks before the affidavit was filed, particularly on 17 June 1985, Maria M. Vda. de
Gandiongco was confined in the hospital; she could not recall having signed, during this
period, any affidavit or recognized her sisters and other relatives.
On 19 September 1985, respondent Maria M. Vda. de Gandiongco, through special
counsel, filed a Manifestation/Motion with a second Affidavit attached
thereto30 confessing that she signed the Joint Manifestation dated 16 August 1985
"without knowing or being informed of its contents, and only upon Mrs. Concepcion
Espina's request." She reiterated her desire to withdraw from the Omnibus Motion for
Reconsideration filed in Sp. Proc. No, 3309-R as well as from the instant petition.
Despite the valiant attempt of private respondent Concepcion M. Espina to influence and
control the action of Maria Gandiongco, there is nothing in the records that would cast
any doubt on the irrevocability of the latter's decision to withdraw her participation in the
Omnibus Motion for Reconsideration and Opposition to this case. That decision,
however, is not a ground for dropping her as a private respondent as the respondent
Judge had already issued the abovementioned Order of 2 June 1980.
The petition and the supplemental petitions are impressed with merit.
We do not hesitate to rule that the respondent Judge committed grave abuse of
discretion amounting to lack of jurisdiction when he granted the Omnibus Motion for
Reconsideration and thereafter set aside the probate judgment of 13 November 1972 in
Sp. Proc. No. 3309-R, declared the subject will of the testatrix a forgery, nullified the
testamentary dispositions therein and ordered the conversion of the testate proceedings
into one of intestacy.
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It is not disputed that private respondents filed on the day of the initial hearing of the
petition their "Withdrawal of Opposition To Allowance of Probate (sic) Will" wherein they
unequivocally state that they have no objection to the allowance of the will. For all legal
intents and purposes, they became proponents of the same.
After the probate court rendered its decision on 13 November 1972, and there having
been no claim presented despite publication of notice to creditors, petitioner Fran
submitted a Project of Partition which private respondent Maria M. Vda. de Gandiongco
voluntarily signed and to which private respondent Espina expressed her conformity
through a certification filed with the probate court. Assuming for the sake of argument
that private respondents did not receive a formal notice of the decision as they claim in
their Omnibus Motion for Reconsideration, these acts nevertheless constitute indubitable
proof of their prior actual knowledge of the same. A formal notice would have been an
idle ceremony. In testate proceedings, a decision logically precedes the project of
partition, which is normally an implementation of the will and is among the last operative
acts to terminate the proceedings. If private respondents did not have actual knowledge
of the decision, they should have desisted from performing the above acts and instead
demanded from petitioner Fran the fulfillment of his alleged promise to show them the
will. The same conclusion refutes and defeats the plea that they were not notified of the
order authorizing the Clerk of Court to receive the evidence and that the Clerk of Court
did not notify them of the date of the reception of evidence. Besides, such plea must fail
because private respondents were present when the court dictated the said order.
Neither do We give any weight to the contention that the reception of evidence by the
Clerk of Court is null and void per the doctrine laid, down in Lim Tanhu vs.
Ramolete. 31 In the first place, Lim Tanhu was decided on 29 August 1975, nearly four
(4) years after the probate court authorized the Clerk of Court to receive the evidence for
the petitioner in this case. A month prior to Lim Tanhu, or on 30 July 1975, this Court,
in Laluan vs. Malpaya, 32 recognized and upheld the practice of delegating the reception
of evidence to Clerks of Court. Thus:
No provision of law or principle of public policy prohibits a court from
authorizing its clerk of court to receive the evidence of a party litigant.
After all, the reception of evidence by the clerk of court constitutes but a
ministerial task — the taking down of the testimony of the witnesses and
the marking of the pieces of documentary evidence, if any, adduced by
the party present. This task of receiving evidence precludes, on the part
of the clerk of court the exercise of judicial discretion usually called for
when the other party who is present objects to questions propounded and
to the admission of the documentary evidence proffered. 33 More
importantly, the duty to render judgment on the merits of the case still
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
rests with the judge who is obliged to personally and directly prepare the
decision based upon the evidence reported. 34
But where the proceedings before the clerk of court and the concomitant
result thereof, i.e., the judgment rendered by the court based on the
evidence presented in such limited proceedings, prejudice the substantial
rights of the aggrieved party, then there exists, sufficient justification to
grant the latter complete opportunity to thresh out his case in court. 35
Monserrate vs. Court of Appeals, 36 decided on 29 September 1989, reiterated this
rule. Lim Tanhu then cannot be used as authority to nullify the order of the probate court
authorizing the Clerk of Court to receive the evidence for the rule is settled that "when a
doctrine of this Court is overruled and a different view is adopted, the new doctrine
should be applied prospectively, and should not apply to parties who had relied on the
old doctrine and acted on the faith thereof." 37 It may also be emphasized in this
connection that Lim Tanhu did not live long; it was subsequently overruled in Gochangco
vs. Court of First Instance of Negros Occidental, 38 wherein this Court, en banc, through
Justice, now Chief Justice, Andres R. Narvasa, in reference to what the trial court termed
as "the doctrinal rule laid down in the recent case of Lim Tan Hu (sic) vs. Ramolete,"
ruled:
Now, that declaration does not reflect long observed and established
judicial practice with respect to default cases. It is not quite consistent,
too, with the several explicitly authorized instances under the Rules
where the function of receiving evidence and even of making
recommendatory findings of facts on the basis thereof may be delegated
to commissioners, inclusive of the Clerk of Court. These instances are set
out in Rule 33, . . . ; Rule 67 and 69, . . . ; Rule 86, . . . ; Rule 136, . . . . In
all these instances, the competence of the clerk of court is assumed.
Indeed, there would seem, to be sure, nothing intrinsically wrong in
allowing presentation of evidence ex parte before a Clerk of Court. Such
a procedure certainly does not foreclose relief to the party adversely
affected who, for valid cause and upon appropriate and seasonable
application, may bring about the undoing thereof or the elimination of
prejudice thereby caused to him; and it is, after all, the Court itself which
is duty bound and has the ultimate responsibility to pass upon the
evidence received in this manner, discarding in the process such proofs
as are incompetent and then declare what facts have thereby been
established. In considering and analyzing the evidence preparatory to
rendition of judgment on the merits, it may not unreasonably be assumed
that any serious error in the ex-parte presentation of evidence, prejudicial
98
 to any absent party, will be detected and duly remedied by the Court,
and/or may always, in any event, be drawn to its attention by any
interested party.
xxx xxx xxx
It was therefore error for the Court a quo to have declared the judgment
by default to be fatally flawed by the fact that the plaintiff's evidence had
been received not by the Judge himself but by the clerk of court.
The alternative claim that the proceedings before the Clerk of Court were likewise void
because said official did not take an oath is likewise untenable. The Clerk of Court acted
as such when he performed the delegated task of receiving evidence. It was not
necessary for him to take an oath for that purpose; he was bound by his oath of office as
a Clerk of Court. Private respondents are obviously of the impression that by the
delegation of the reception of evidence to the Clerk of Court, the latter became
a commissioner as defined under Rule 33 of the Rules of Court entitled Trial by
Commissioner. This is not correct; as this Court said in Laluan:
The provisions of Rule 33 of the Rules of Court invoked by both parties
properly relate to the reference by a court of any or all of the issues in a
case to a person so commissioned to act or report thereon. These
provisions explicitly spell out the rules governing the conduct of the court,
the commissioner, and the parties before, during, and after the reference
proceedings. Compliance with these rules of conduct becomes
imperative only when the court formally orders a reference of the case to
a commissioner. Strictly speaking then, the provisions of Rule 33 find no
application to the case at bar where the court a quo merely directed the
clerk of court to take down the testimony of the witnesses presented and
to mark the documentary evidence proferred on a date previously set for
hearing.
Belatedly realizing the absence of substance of the above grounds, private respondents
now claim in their Comments to the Petition and the Supplemental Petition that the trial
court never acquired jurisdiction over the petition because only the English translation of
the will — and not a copy of the same — was attached to the petition; the will was not
even submitted to the court for their examination within twenty (20) days after the death
of the testatrix; and that there was fraud in the procurement of the probate judgment
principally because they were not given any chance to examine the signature of the
testatrix and were misled into signing the withdrawal of their opposition on the assurance
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
of petitioner Fran and their sister, Rosario M. Tan, that the will would be shown to them
during the trial. These two grounds easily serve as the bases for the postulation that the
decision is null and void and so, therefore, their omnibus motion became all the more
timely and proper.
The contentions do not impress this Court.
In Santos vs. Castillo 39 and Salazar vs. Court of First Instance of Laguna, 40 decided
six (6) months apart in 1937, this Court already ruled that it is not necessary that the
original of the will be attached to the petition. In the first, it ruled: "The original of said
document [the will] must be presented or sufficient reasons given to justify the
nonpresentation of said original and the acceptance of the copy or duplicate
thereof." 41 In the second case, this Court was more emphatic in holding that:
The law is silent as to the specific manner of bringing the jurisdictional
allegations before the court, but practice and jurisprudence have
established that they should be made in the form of an application and
filed with the original of the will attached thereto. It has been the practice
in some courts to permit attachment of a mere copy of the will to the
application, without prejudice to producing the original thereof at the
hearing or when the court so requires. This precaution has been adopted
by some attorneys to forestall its disappearance, which has taken place
in certain cases. 42
That the annexing of the original will to the petition is not a jurisdictional requirement is
clearly evident in Section 1, Rule 76 of the Rules of Court which allows the filing of a
petition for probate by the person named therein regardless of whether or not he is in
possession of the will, or the same is lost or destroyed. The section reads in full as
follows:
Sec. 1. Who may petition for the allowance of will. — Any executor,
devisee, or legatee named in a will, or any other person interested in the
estate, may, at any time after the death of the testator, petition the court
having jurisdiction to have the will allowed, whether the same be in his
possession or not, or is lost or destroyed.
In the instant case, a copy of the original will and its English translation were attached to
the petition as Annex "A" and Annex "A-1", respectively, and made integral parts of the
same. It is to be presumed that upon the filing of the petition the Clerk of Court, or his
duly authorized subordinate, examined the petition and found that the annexes
99
mentioned were in fact attached thereto. If they were not, the petition cannot be said to
have been properly presented and the Clerk of Court would not have accepted it for
docketing. Under Section 6, Rule 136 of the Rules of Court, the Clerk of Court shall
receive and file all pleadings and other papers properly presented, endorsing on each
such paper the time when it was filed. The presumption of regularity in the performance
of official duty militates against private respondents' claim that Annex "A" of the petition
was not in fact attached thereto.
The certification of the Assistant Clerk of Court issued on 8 April
1980, 43 or SIX (6) months after the filing of the motion for reconsideration, to the effect
that as per examination of the records of Sp. Proc. No. 3309-R, "the copy of the Will
mentioned in the petition as Annex "A" is not found to be attached as of this date in the
said petition; only the English Translation of said Will is attached thereof (sic) as Annex
"A-1" does not even save the day for private respondents. It is not conclusive because it
fails to state the fact that as hereafter shown, the pages of the records which correspond
to the four (4) pages of Annex "A" were missing or were detached therefrom. As
emphatically asserted by the petitioners in their Reply to the Comments of private
respondents, 44 duly supported by a certification of the former Clerk of Court of the
original Branch VIII of the court below, 45 and which private respondents merely
generally denied in their motion for reconsideration with comments and opposition to
consolidated reply, 46 the four-page xerox copy of will, marked as Annex "A" of the
petition, became, as properly marked by the personnel of the original Branch VIII of the
court below upon the filing of the petition, pages 5, 6, 7 and 8 while the translation
thereof, marked as Annex "A-1", became pages 9, 10, 11 and 12 of the records. The
markings were done in long hand. The records of the case were thereafter sent to the
Clerk of Court, 14th Judicial District, Cebu City on 9 February 1978. These records, now
in the possession of the respondent Judge, show that said pages 5, 6, 7 and 8 in long
are missing. As a consequence thereof, petitioners filed with the Executive Judge of the
court below an administrative complaint.
It is not likewise disputed that the original of the will was submitted in evidence and
marked as Exhibit "F". It forms part of the records of the special proceedings — a fact
which private respondents admit in their Omnibus Motion for Reconsideration, thus:
9. That an examination of the alleged will of our deceased sister has
revealed that the signatures at the left hand margin of Exhibit "F", are
written by (sic) different person than the signature appearing at the
bottom of said alleged will . . . 47
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
The availability of the will since 18 September 1972 for their examination renders
completely baseless the private respondents' claim of fraud on petitioner Fran's part in
securing the withdrawal of their opposition to the probate of the will. If indeed such
withdrawal was conditioned upon Fran's promise that the private respondents would be
shown the will during the trial, why weren't the appropriate steps taken by the latter to
confront Fran about this promise before certifications of conformity to the project of
partition were filed?
Granting for the sake of argument that the non-fulfillment of said promise constitutes
fraud, such fraud is not of the kind which provides sufficient justification for a motion for
reconsideration or a petition for relief from judgment under Rule 37 and Rule 38,
respectively, of the Rules of Court, or even a separate action for annulment of judgment.
It is settled that for fraud to be invested with, sufficiency, it must be extrinsic or collateral
to the matters involved in the issues raised during the trial which resulted in such
judgment.
In Our jurisdiction, the following courses of action are open to an aggrieved party to set
aside or attack the validity of a final judgment:
(1) Petition for relief under Rule 38 of the Rules of Court which must be
filed within sixty (60) days after learning of the decision, but not more
than six (6) months after such decision is entered;
(2) By direct action, via a special civil action for certiorari, or by collateral
attack, assuming that the decision is void for want of jurisdiction;
(3) By an independent civil action under Article 1114 of the Civil Code,
assuming that the decision was obtained through fraud and Rule 38 can
not be applied. 49
It is not difficult to see that private respondents had lost their right to file a petition for
relief from judgment, it appearing that their omnibus motion for reconsideration was filed
exactly six (6) years, ten (10) months and twenty-two (22) days after the rendition of the
decision, and six (6) years, one (1) month and thirteen (13) days after the court issued
the order approving the Project of Partition, to which they voluntarily expressed their
conformity through their respective certifications, and closing the testate proceedings.
Private respondents did not avail of the other two (2) modes of attack.
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The probate judgment of 13 November 1972, long final and undisturbed by any attempt
to unsettle it, had inevitably passed beyond the reach of the court below to annul or set
the same aside, by mere motion, on the ground that the will is a forgery. Settled is the
rule that the decree of probate is conclusive with respect to the due execution of the will
and it cannot be impugned on any of the grounds authorized by law, except that of fraud,
in any separate or independent action or proceeding. 50 We wish also to advert to the
related doctrine which holds that final judgments are entitled to respect and should not
be disturbed; otherwise, there would be a wavering of trust in the courts. 51 In Lee Bun
Ting vs. Aligaen, this Court had the occasion to state the rationale of this doctrine, thus:
Reasons of public policy, judicial orderliness, economy and judicial time
and the interests of litigants, as well as the peace and order of society, all
require that stability be accorded the solemn and final judgments of the
courts or tribunals of competent jurisdiction.
This is so even if the decision is incorrect 53 or, in criminal cases, the penalty imposed is
erroneous. Equally baseless and unmeritorious is private respondents' contention that
the order approving the Project of Partition and closing the proceedings is null and void
because the Project of Partition did not contain a notice of hearing and that they were not
notified of the hearing thereon. In truth, in her own certification 55 dated 5 September
1973, private respondent Concepcion M. Espina admitted that she "received a copy of
the Project of Partition and the Notice of Hearing in the above-entitled proceeding, and
that she has no objection to the approval of the said Project of Partition." The notice of
hearing she referred to is the Notice of Hearing For Approval of Project of Partition
issued on 6 August 1973 by the Clerk of Court. 56 Private respondent Espina was lying
through her teeth when she claimed otherwise.
The non-distribution of the estate, which is vigorously denied by the petitioners, is not a
ground for the re-opening of the testate proceedings. A seasonable motion for execution
should have been filed. In De Jesus vs. Daza, this Court ruled that if the executor or
administrator has possession of the share to be delivered, the probate court would have
jurisdiction within the same estate proceeding to order him to transfer that possession to
the person entitled thereto. This is authorized under Section 1, Rule 90 of the Rules of
Court. However, if no motion for execution is filed within the reglementary period, a
separate action for the recovery of the shares would be in order. As We see it, the attack
of 10 September 1973 on the Order was just a clever ploy to give as semblance of
strength and substance to the Omnibus Motion for Reconsideration by depicting therein
a probate court committing a series of fatal, substantive and procedural blunders, which
We find to be imaginary, if not deliberately fabricated.
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
WHEREFORE, the instant petition and supplemental petitions are GRANTED. The Order
of respondent Judge of 2 June 1980 and all other orders issued by him in Sp. Proc. No.
3309-R, as well as all other proceedings had therein in connection with or in relation to
the Omnibus Motion for Reconsideration, are hereby ANNULLED and SET ASIDE.
The restraining order issued on 2 June 1980 is hereby made PERMANENT.
DIGEST: FRAN VS. SALAS
FACTS:
Remedios Tiosejo died with neither descendants nor ascendants. She left real
and personal properties. In her last will and testament, she bequeathed to her collateral
relatives all her properties. When the will was presented before the probate court, private
respondents who are sisters of the deceased filed a manifestation, alleging that they
needed time to study the petition because some heirs have been intentionally omitted.
However, none file any opposition. The petition thus became uncontested. The probate
court rendered a decision admitting the will to probate. Then, a Project of Partition was
submitted by the executor to the court. The private respondents still did not make any
objections. Thereafter, the probate court issued its Order approving the partition. Later,
the aforesaid branch which issued the order was converted to a Juvenile and Domestic
Relations Court. The private respondents filed with the new branch a Motion for
Reconsideration of the probate judgment and the order of partition. The Petitions
challenged the jurisdiction of the court because only the English translation of the will
was attached o the petition and the will was not even submitted to the court for their
examination. Respondent Judge issued an order declaring the testamentary disposition
as void.
ISSUE: Is it necessary that the original of the will be presented in order for the court to
acquire jurisdiction?
HELD:
NO.
In several rulings of the Supreme Court, it ruled that it is not necessary that the
original of the will be attached to the petition That the annexing of the original will to the
petition is not a jurisdictional requirement is clearly evident in Section 1, Rule 76 of the
Rules of Court which allows the filing of a petition for probate by the person named
therein regardless of whether or not he is in possession of the will, or the same is lost or
destroyed. In the instant case, a copy of the original will and its English translation were
101
attached to the petition and made integral parts of the same. It is to be presumed that
upon the filing of the petition the Clerk of Court, or his duly authorized subordinate,
examined the petition and found that the annexes mentioned were in fact attached
thereto. Hence, the order of partition issued by the old probate court is final and
executor.
JOAQUINA R-INFANTE DE ARANZ, ANTONIO R-INFANTE, CARLOS R. INFANTE,
MERCEDES R-INFANTE DE LEDNICKY, ALFREDO R-INFANTE, TERESITA R-
INFANTE, RAMON R-INFANTE, FLORENCIA R-INFANTE DE DIAS, MARTIN R-
INFANTE, JOSE R-INFANTE LINK AND JOAQUIN R-INFANTE CAMPBELL
VS. THE HON. NICOLAS GALING, PRESIDING JUDGE, REGIONAL TRIAL COURT,
NATIONAL CAPITAL JUDICIAL REGION, BRANCH NO. 166, PASIG, METRO
MANILA AND JOAQUIN R-INFANTE
G.R. NO. 77047
MAY 28, 1988
PADILLA, J.:
This is a petition for review on certiorari of the decision 1 of the Court of Appeals, dated
13 January 1987, in CA-G.R. SP No. 09622, entitled "Joaquina R-Infante de Aranz, et
al., petitioners vs. Hon. Nicolas Galing, etc., et al., respondents," dismissing petitioners'
petition for certiorari and prohibition as-, sailing the orders 2 of the Regional Trial Court of
Pasig, Branch 166, dated 12 May 1986 and 30 May 1986, respectively, in Sp. Proc. No.
9995, entitled, "In the Matter of Petition for Approval of the Last Will and Testament of
Montserrat R-Infante y G-Pola Joaquin R. Infante, Petitioner."
On 3 March 1986, private respondent filed with the Regional Trial Court of Pasig, Branch
166, a petition for the probate and allowance of the last will and testament of the late
Montserrat R-Infante y G-Pola The petition specified the names and ad- dresses of
herein petitioners as legatees and devisees, as follows:
Joaquina R-Infante Roxas de Aranz residing at No. 86 10th St., New
Manila, Quezon City, Metro Manila;
Antonio R-Infante Roxas residing at #91 Cambridge, North Forbes,
Makati, Metro Manila;
Carlos R-Infante Roxas residing at #46 Washington St., Greenhills, San
Juan, Metro Manila;
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
Mercedes R-Infante Roxas de Lednicky residing at #386 P. Guevarra St.,
San Juan, Metro Manila;
Alfredo R-Infante Roxas residing at #27 A Scout Tobias St., Quezon City,
Metro Manila;
Teresita R-Infante Roxas residing at #121 9th Street, New Manila,
Quezon City, Metro Manila;
Ramon R-Infante Roxas residing at #27 B Scout Tobias St., Quezon City,
Metro Manila;
Florencia R-Infante Roxas de Diaz residing at Calle Sancho Davila, 13-
19-D, Madrid, 28028 Spain;
Martin R-Infante Roxas residing at #2 Bongavilla St., Cubao, Quezon
City, Metro Manila;
Jose R-Infante Link residing at 174R-Pascual St., San Juan, Metro
Manila;
Joaquin R-Infante Campbell C/O Pilar Campbell, 15 Briones, Makati,
Metro Marta. 3
On 12 March 1986, the probate court issued an order selling the petition for hearing on 5
May 1986 at 8:30 o'clock in the morning. Said order was published in the "Nueva Era" A
newspaper of general circulation in Metro Manila once a week for three (3) consecutive
weeks. On the date of the hearing, no oppositor appeared. The hearing was then reset to
12 May 1986, on which date, the probate court issued the following order:
There being no opposition to this instant case, as prayed for, the oner to-
receive Branch Clerk of Court is hereby designated Co evidence ex-parte
of the petitioner.
SO ORDERED. 4
On the same day (12 May 1986), private respondent presented his evidence ex-
parte and placed Arturo Arceo one of the testamentary witnesses, on the witness stand.
During the proceedings, private respondent was appointed executor.
102
On 14 May 1986, petitioners filed a motion for reconsideration of the order of 12 May
1986 alleging that, as named legatees, no notices were sent to them as required by Sec.
4, Rule 76 of the Rules of Court and they prayed that they be given a period of ten (10)
days within which to file their opposition to the probate of the will.
On 30 May 1986, the probate court, acting on the opposition of private respondent and
the reply thereto of petitioners, issued an order denying petitioners motion for
reconsideration.
Thereafter, petitioners filed with this Court a petition for certiorari and prohibition which
was, however, referred to the Court of Appeals. On 13 January 1987, the Court of
Appeals promulgated a decision dismissing the petition. 5 Hence, the instant petition.
It is the view of petitioners that the Court of Appeals erred in holding that personal notice
of probate proceedings to the known legatees and devisees is not a jurisdictional
requirement in the probate of a will. Contrary to the holding of the Court of Appeals that
the requirement of notice on individual heirs, legatees and devisees is merely a matter of
procedural convenience to better satisfy in some instances the requirements of due
process, petitioners allege that under Sec. 4 of Rule 76 of the Rules of Court, said
requirement of the law is mandatory and its omission constitutes a reversible error for
being constitutive of grave abuse of discretion. 6
We grant the petition:
Sec. 4, Rule 76 of the Rules of Cof reads:
SEC. 4. Heirs, devisees, legatees, and executors to be notified by mail or
personally. — The court shag also cause copies of the notice of the time
and place fixed for proving the will to be addressed to the designated or
other known heirs, legatees, and devisees of the testator resident in the
Philippines at their places of residence, and deposited in the post office
with the postage thereon prepaid at least twenty (20) days before the
hearing, if such places of residence be known. A copy of the notice must
in like manner be mailed to the person named as executor, if he be not,
the petitioner; also, to any person named as co-executor not petitioning, if
their places of residence be known. Personal service of copies of the
notice at least ten (10) days before the day of hearing shall be equivalent
to mailing.
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
It is clear from the aforecited rule that notice of the time and place of the hearing for the
allowance of a will shall be forwarded to the designated or other known heirs, legatees,
and devisees residing in the Philippines at their places of residence, if such places of
residence be known. There is no question that the residences of herein petitioners
legatees and devisees were known to the probate court. The petition for the allowance of
the wig itself indicated the names and addresses of the legatees and devisees of the
testator. 7 But despite such knowledge, the probate court did not cause copies of the
notice to be sent to petitioners. The requirement of the law for the allowance of the will
was not satisfied by mere publication of the notice of hearing for three (3) weeks in a
newspaper of general circulation in the province.
The case of Joson vs. Nable 8 cited by the Court of Appeals in its assailed decision to
support its theory is not applicable in the present case. In that case, petitioners
Purificacion Joson and Erotica Joson failed to contest the will of Tomas Joson because
they had not been notified of the hearing of the petition for probate. he the petition
included the residence of petitioners as Dagupan Street No. 83, Manila, petitioners
claimed that their residence was not Dagupan Street No. 83, Manila. There the Court
said:
Petitioners maintain that no notice was received by them partly because
their residence was not Dagupan Street No. 83 as alleged in the petition
for probate. If the allegation of the petition was wrong and the true
residence of petitioners was not known, then notice upon them
individually was not necessary. Under the provision abovequoted,
individual notice upon heirs, legatees and devisees is necessary only
when they are known or when their places of residence are known. In
other instances, such notice is not necessary and the court may acquire
and exercise jurisdiction simply upon the publication of the notice in a
newspaper of general circulation. ... 9
In Re: Testate Estate of Suntay, 10 the Court, speaking thru Mr. Justice Sabino Padilla,
said:
... It is a proceedings in rem and for the validity of such proceedings
personal notice or by publication or both to all interested parties must be
made. The interested parties in the case were known to reside in the
Philippines. The evidence shows that no such notice was received by the
interested parties residing in the Philippines (pp. 474, 476, 481, 503-4,
t.s.n., hearing of 24 February 1948). The proceedings had in the
municipal district court of Amoy, China, may be likened to a deposition or
103
 to a perpetuation of testimony, and even if it were so it does not measure
or come up to the standard of such proceedings in the Philippines for lack
of notice to all interested parties and the proceedings were held at the
back of such interested parties.
xxx xxx xxx
... In view thereof, the will and the alleged probate thereof cannot be said
to have been done in accordance with the accepted basic and
fundamental concepts and principles followed in the probate and
allowance of wills. Consequently, the authenticated transcript of
proceedings held in the municipal district court of Amoy, China, cannot be
deemed and accepted as proceedings leading to the probate or
allowance of a will and, therefore, the will referred to therein cannot be
allowed, filed and recorded by a competent court of court. 11
WHEREFORE, the decision of the Court of Appeals dated 13 January 1987 is hereby
ANNULLED and SET ASIDE. The case is hereby ordered remanded to the Regional
Trial Court of Pasig for further proceedings in accordance with this decision. No costs.
SO ORDERED.
DIGEST: ARANZ VS. GALING
FACTS:
Private respondent filed a petition for probate and allowance of the last will and
testament of the late Montserrat Infante y Pola with the RTC of Pasig containing the
names and addresses of herein petitioners as legatees and devisees. The probate court
set the petition for hearing on May 5, 1986 at 8:30 AM which was published in the
“Nueva Era” a newspaper of general circulation once a week for 3 consecutive weeks.
On the date of the hearing, no oppositor appeared so the hearing was reset to May 12,
1986 where respondent, Joaquin R. Infante presented his evidence ex-parte and was
then appointed executor.
On May 14, 1986, petitioners filed a motion for reconsideration alleging that as
legatees, no notices were sent to them and prayed that they be given 10 days to file their
opposition on the probate of the will but was denied. A petition for certiorari and
prohibition was also dismissed by the CA. Hence the instant petition.
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
Petitioners allege that under Sec. 4 of Rule 76 of the Rules of Court, the
requirement of notice on individual heirs, legatees and devisees is mandatory and its
omission constitutes a reversible error for being constitutive of grave abuse of discretion.
ISSUE: WON personal notice to petitioners, legatees and devisees, are required.
HELD:
YES, personal notice is required. It is clear from the afore-cited rule that notice of
the time and place of the hearing for the allowance of a will shall be forwarded to the
designated or other known heirs, legatees, and devisees residing in the Philippines at
their places of residence, if such places of residence be known. There is no question that
the residences of herein petitioners, legatees and devisees were known to the probate
court. The petition for the allowance of the will itself indicated the names and addresses
of the legatees and devisees of the testator. But despite such knowledge, the probate
court did not cause copies of the notice to be sent to petitioners. The requirement of the
law for the allowance of the will was not satisfied by mere publication of the notice of
hearing for three (3) weeks in a newspaper of general circulation in the province.
Probate proceeding is a proceeding in rem and for the validity of such proceedings
personal notice or by publication or both to all interested parties must be made. The
interested parties in the case were known to reside in the Philippines.
IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF RICARDO B.
BONILLA DECEASED, MARCELA RODELAS VS. AMPARO ARANZA, ET AL.
G.R. NO. L-58509
DECEMBER 7, 1982
RELOVA, J.:
This case was certified to this Tribunal by the Court of Appeals for final determination
pursuant to Section 3, Rule 50 of the Rules of Court.
As found by the Court of Appeals:
... On January 11, 1977, appellant filed a petition with the Court of First Instance of
Rizal for the probate of the holographic will of Ricardo B. Bonilla and the issuance
of letters testamentary in her favor. The petition, docketed as Sp. Proc. No. 8432,
was opposed by the appellees Amparo Aranza Bonilla, Wilferine Bonilla Treyes
Expedita Bonilla Frias and Ephraim Bonilla on the following grounds:
104
 (1) Appellant was estopped from claiming that the deceased left a will by failing
to produce the will within twenty days of the death of the testator as required by
Rule 75, section 2 of the Rules of Court;
(2) The alleged copy of the alleged holographic will did not contain a disposition
of property after death and was not intended to take effect after death, and
therefore it was not a will
(3) The alleged hollographic will itself,and not an alleged copy thereof, must be
produced, otherwise it would produce no effect, as held in Gam v. Yap, 104
Phil. 509; and
(4 ) The deceased did not leave any will, holographic or otherwise, executed
and attested as required by law.
The appellees likewise moved for the consolidation of the case with another case Sp.
Proc. No, 8275). Their motion was granted by the court in an order dated April 4, 1977.
On November 13, 1978, following the consolidation of the cases, the appellees moved
again to dismiss the petition for the probate of the will. They argued that:
(1) The alleged holographic was not a last will but merely an instruction as to
the management and improvement of the schools and colleges founded by
decedent Ricardo B. Bonilla; and
(2) Lost or destroyed holographic wills cannot be proved by secondary evidence
unlike ordinary wills.
Upon opposition of the appellant, the motion to dismiss was denied by the court in its
order of February 23, 1979.
The appellees then filed a motion for reconsideration on the ground that the order was
contrary to law and settled pronouncements and rulings of the Supreme Court, to which
the appellant in turn filed an opposition. On July 23, 1979, the court set aside its order of
February 23, 1979 and dismissed the petition for the probate of the will of Ricardo B.
Bonilla. The court said:
... It is our considered opinion that once the original copy of the holographic will
is lost, a copy thereof cannot stand in lieu of the original.
In the case of Gam vs. Yap, 104 Phil. 509, 522, the Supreme Court held that 'in
the matter of holographic wills the law, it is reasonable to suppose, regards the
document itself as the material proof of authenticity of said wills.
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
MOREOVER, this Court notes that the alleged holographic will was executed on
January 25, 1962 while Ricardo B. Bonilla died on May 13, 1976. In view of the
lapse of more than 14 years from the time of the execution of the will to the
death of the decedent, the fact that the original of the will could not be located
shows to our mind that the decedent had discarded before his death his
allegedly missing Holographic Will.
Appellant's motion for reconsideration was denied. Hence, an appeal to the Court of
Appeals in which it is contended that the dismissal of appellant's petition is contrary to
law and well-settled jurisprudence.
On July 7, 1980, appellees moved to forward the case to this Court on the ground that
the appeal does not involve question of fact and alleged that the trial court committed the
following assigned errors:
I. THE LOWER COURT ERRED IN HOLDING THAT A LOST
HOLOGRAPHIC WILL MAY NOT BE PROVED BY A COPY THEREOF;
II. THE LOWER COURT ERRED IN HOLDING THAT THE DECEDENT
HAS DISCARDED BEFORE HIS DEATH THE MISSING
HOLOGRAPHIC WILL;
III. THE LOWER COURT ERRED IN DISMISSING APPELLANT'S WILL.
The only question here is whether a holographic will which was lost or cannot be found
can be proved by means of a photostatic copy. Pursuant to Article 811 of the Civil Code,
probate of holographic wills is the allowance of the will by the court after its due
execution has been proved. The probate may be uncontested or not. If uncontested, at
least one Identifying witness is required and, if no witness is available, experts may be
resorted to. If contested, at least three Identifying witnesses are required. However, if the
holographic will has been lost or destroyed and no other copy is available, the will cannot
be probated because the best and only evidence is the handwriting of the testator in said
will. It is necessary that there be a comparison between sample handwritten statements
of the testator and the handwritten will. But, a photostatic copy or xerox copy of the
holographic will may be allowed because comparison can be made with the standard
writings of the testator. In the case of Gam vs. Yap, 104 PHIL. 509, the Court ruled that
"the execution and the contents of a lost or destroyed holographic will may not be proved
by the bare testimony of witnesses who have seen and/or read such will. The will itself
must be presented; otherwise, it shall produce no effect. The law regards the document
itself as material proof of authenticity." But, in Footnote 8 of said decision, it says that
"Perhaps it may be proved by a photographic or photostatic copy. Even a mimeographed
or carbon copy; or by other similar means, if any, whereby the authenticity of the
105
handwriting of the deceased may be exhibited and tested before the probate court,"
Evidently, the photostatic or xerox copy of the lost or destroyed holographic will may be
admitted because then the authenticity of the handwriting of the deceased can be
determined by the probate court.
WHEREFORE, the order of the lower court dated October 3, 1979, denying appellant's
motion for reconsideration dated August 9, 1979, of the Order dated July 23, 1979,
dismissing her petition to approve the will of the late Ricardo B. Bonilla, is hereby SET
ASIDE.
SO ORDERED.
DIGEST: RODELAS V. ARANZA
FACTS:
Rodelas filed a petition with the CFI of Rizal for the probate of the holographic will
of Ricardo B. Bonilla and the issuance of letters testamentary in her favor.
Aranza, et al. filed a MTD on the grounds of:
1.Rodelas was estopped from claiming that the deceased left a will by
failing to produce the will within twenty days of the death of the testator
as required by Rule 75, section 2 of the Rules of Court;
2.the copy of the alleged holographic will did not contain a disposition of
property after death and was not intended to take effect after death, and
therefore it was not a will, it was merely an instruction as to the
management and improvement of the schools and colleges founded by
the decedent;
3.the hollographic will itself, and not an alleged copy thereof, must be
produced, otherwise it would produce no effect because lost or
destroyed holographic wills cannot be proved by secondary evidence
unlike ordinary wills.
4.the deceased did not leave any will, holographic or otherwise, executed
and attested as required by law.
MTD was denied. Aranza et al. filed an MR, Rodelas filed an opposition.
The CFI set aside its order and dismissed the petition for the probate of the will
stating that “in the case of Gam vs. Yap, 104 Phil. 509, 522, the Supreme Court held that
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
‘in the matter of holographic wills the law, it is reasonable to suppose, regards the
document itself as the material proof of authenticity of said wills.”
And that the alleged holographic will was executed on January 25, 1962 while
Ricardo B. Bonilla died on May 13, 1976. The lapse of more than 14 years from the time
of the execution of the will to the death of the decedent and the fact that the original of
the will could not be located shows to that the decedent had discarded the
alleged holographic will before his death.
Rodelas filed an MR which was denied. Rodelas appealed to the CA. Aranza et al.
moved to forward the case to the SC as it involves a question of law not of fact.
ISSUE: W/N a holographic will which was lost or cannot be found can be proved by
means of a photostatic copy.
HELD:
If the holographic will has been lost or destroyed and no other copy is available,
the will cannot be probated because the best and only evidence is the handwriting of the
testator in said will. It is necessary that there be a comparison between
sample handwritten statements of the testator and the handwritten will.
But, a photostatic copy or xerox copy of the holographic will may be
allowed because comparison can be made by the probate court with the standard
writings of the testator. The probate court would be able to determine the authenticity of
the handwriting of the testator.
In the case of Gam vs. Yap, 104 PHIL. 509, the Court ruled that “the execution and
the contents of a lost or destroyed holographic will may not be proved by the bare
testimony of witnesses who have seen and/or read such will. The will itself must be
presented; otherwise, it shall produce no effect. The law regards the document itself as
material proof of authenticity.” But, in Footnote 8 of said decision, it says that “Perhaps it
may be proved by a photographic or photostatic copy. Even a mimeographed
or carbon copy; or by other similar means, if any, whereby the authenticity of the
handwriting of the deceased may be exhibited and tested before the probate court,”
IN THE MATTER OF THE PROBATE OF THE WILL OF CHRISTIAN HARRIS,
Deceased. PEDRO BUTIONG
VS. THE SURIGAO CONSOLIDATED MINING CO., INC.
G.R. NO. L-13938
JULY 31, 1968
106

CONCEPCION, C.J.:
Direct appeal from an order of the Court of First Instance of Surigao allowing a given
instrument to probate as the last will and testament of Christian Harris.
On September 7, 1954, Pedro Butiong commenced Special Proceedings No. 737 of said
Court for the probate of a document — attached to his petition, and later marked as
Exhibit G — purporting to have been executed by Christian Harris as his last will and
testament. Paragraph IV of said Exhibit G reads:
I hereby make, appoint and constitute Pedro Butiong, who is my adopted son and
whom I have reared and brought up since he was still about two (2) years old, as
my sole and universal heir of all my properties located in the Philippines,
consisting of shares of stock and interest in the Mindanao Mother Lode Mining
Co., Inc., located at Mabuhay, Surigao, Surigao, and of shares of stock, interest
and one (1%) per cent royalty in the Surigao Consolidated Mining Co., Inc.,
located at Siano, Surigao.
The Surigao Consolidated Mining Co., Inc. opposed the probate of said Exhibit G upon
the ground of forgery. After appropriate proceedings, the lower court issued an order,
dated June 15, 1957, admitting the disputed document to probate. Hence, this appeal by
said Company — hereinafter referred to as appellant — upon the ground that the lower
court erred:
1) In not holding that the "Semana," in which notice of the hearing of said petition
had been published, is not a newspaper of general circulation in the Province of
Surigao;
2) In finding that Pedro Butiong and Clementino Sykimte are the next of kin of
Harris;
3) In holding that appellant had not proven that Harris did not own the property
and interest disposed of in his last will;
1äw phï1.ñët
4) In giving credence to the testimony of the attesting witnesses;
5) In giving credence to Butiong's explanation regarding the temporary
disappearance of Exhibit G; and
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
6) In allowing Exhibit G to probate, instead of declaring that the alleged
signatures of Harris thereon are a "forgery."
Upon the other hand, Butiong maintains that the lower court erred in entertaining
appellant's opposition and in not dismissing its appeal.
It is obvious that Butiong's contention is well taken. Indeed, it is well-settled that one who
has or can have no interest in succeeding a decedent cannot oppose the probate of his
alleged will.1 Appellant herein does not claim to have such interest in the succession to
Christian Harris. Accordingly, the lower court should not have considered its opposition
to the probate of Exhibit G, much less given due course to the present appeal.
Independently of the foregoing, appellant's assignment of errors are devoid of merit.
Indeed, the notice of hearing issued by the Justice of the Peace of the provincial capital,
"for and in the absence of the District judge," states that the "Semana," in which said
notice was ordered and was in fact published, is of general circulation in the Province of
Surigao, and there is no evidence to the contrary.
Again, the question whether or not Butiong and Sykimte are related to the deceased, and
whether the latter really owns the property and interests sought to be disposed of in
Exhibit G, are immaterial to the probate thereof. At any rate, the testimony of Clemente
Sykimte, who used to act as the secretary of Harris, during his lifetime and that of
appellant's general superintendent of operations, J.B. Harrison, have established the fact
that Harris had in his name four (4) mining claims, two (2) of which were operated by the
appellant. In fact, appellant's Articles of Incorporation show, also, that Harris was one of
its incorporators, with a subscription of 900,000 shares of stock. In addition thereof, he
had 75,000 shares of stock in the Mindanao Mother Lode Mining Co., Inc.
It is true that, testifying as appellant's witness, Martin S. Ramos, as alleged handwriting
expert, expressed the opinion that the supposed signature of Harris on Exhibit G is
forged. This negative evidence was more than offset, however, by the testimony of
Vicente C. Fernandez, Bernardino O. Almeda and Mateo Penafiel to the effect that, after
reading Exhibit G aloud and announcing that it was the true expression of his will, Harris
— who was of sound mind and spoke, as well as understood, both English and Spanish
— signed thereon in their presence, and they, in turn, signed on said instrument, in the
presence of each other and that of Harris, in accordance with law. Besides, their
testimony on the genuineness of the signature of Harris on Exhibit G was corroborated
by the testimony of Butiong and Sykimte, as well as by handwriting expert, Dr. Paul R.
Verzosa, aside from having been confirmed by His Honor, the trial Judge, who compared
said signature with the admittedly genuine signatures of Harris, used as standards in the
107
lower court. It is thus apparent that Butiong's evidence is much weightier than that of
appellant herein.  The lower court issued an order admitting the disputed document to probate.
Hence, this appeal by said Company.
As regards the delay in the filing of Exhibit G for probate, Butiong explained it as follows:
Harris died in Surigao, Surigao, on December 7, 1941, or on the eve of the outbreak of  Butiong maintains that the lower court erred in entertaining appellant’s opposition
war in the Pacific. Inasmuch as, soon thereafter, the Japanese forces occupied the and in not dismissing its appeal.
province of Surigao, Butiong evacuated from Surigao, Surigao, and transferred Exhibit G,
from a wooden trunk he has in his house, to a valise belonging to his uncle, Bernardino ISSUE: W/N the appeal should have been dismissed.
Butiong, with whom he lived, in the barrio of Alegria, Municipality of Mainit. After
liberation, neither he (Pedro Butiong) nor Bernardino could, however, find Exhibit G until HELD:
August 20, 1954, when Bernardino located it accidentally while looking for other papers. YES. It is well-settled that one who has or can have no interest in succeeding a
There upon Exhibit G was filed in court for probate. decedent cannot oppose the probate of his alleged will. Appellant herein does not claim
to have such interest in the succession to Christian Harris.
The records before us do not furnish sufficient data to warrant denying credence to the
testimony of Pedro Butiong and Bernardino Butiong, to this effect. At any rate, since the Accordingly, the lower court should not have considered its opposition to the
authenticity of the signature of Harris on Exhibit G and the due execution thereof, as his probate of Exhibit G, much less given due course to the present appeal.
last will and testament, have been satisfactorily established, the explanation for the delay
in its presentation for probate has become of minimal importance.
EUGENIA RAMONAL CODOY, AND MANUEL RAMONAL
WHEREFORE, the order appealed from is hereby affirmed, with costs against appellant,
VS. EVANGELINE R. CALUGAY,
Surigao Consolidated Mining Co., Inc. It is so ordered.
JOSEPHINE SALCEDO, AND UEFEMIA PATIGAS
1äwphï1.ñët

G.R. NO. 123486

AUGUST 12, 1999
DIGEST: BUTIONG VS. SURIGAO CONSOLIDATED PARDO, J.:
FACTS:
Before us is a petition for review on certiorari of the decision of the Court of Appeals1 and
 Pedro Butiong commenced Special Proceedings No. 737 for the probate of a
its resolution denying reconsideration, ruling:
document purporting to have been executed by Harris as his last will and
testament.
Upon the unrebutted testimony of appellant Evangeline Calugay and witness
 Paragraph IV of said Exhibit G reads: Matilde Ramonal Binanay, the authenticity of testators holographic will has been
I hereby make, appoint and constitute Pedro Butiong, who is my adopted son and established and the handwriting and signature therein (exhibit S) are hers,
whom I have reared and brought up since he was still about 2 years old, as my enough to probate said will. Reversal of the judgment appealed from and the
sole and universal heir of all my properties located in the Philippines, consisting probate of the holographic will in question be called for. The rule is that after
of shares of stock and interest in the Mindanao Mother Lode Mining Co., Inc., plaintiff has completed presentation of his evidence and the defendant files a
located at Mabuhay, Surigao, Surigao, and of shares of stock, interest and 1% motion for judgment on demurrer to evidence on the ground that upon the facts
per cent royalty in the Surigao Consolidated Mining Co., Inc., located at Siano, and the law plaintiff has shown no right to relief, if the motion is granted and the
Surigao. order to dismissal is reversed on appeal, the movant loses his right to present
 The Surigao Consolidated Mining opposed the probate upon the ground of evidence in his behalf (Sec, 1 Rule 35 Revised Rules of Court). Judgment may,
forgery. therefore, be rendered for appellant in the instant case.

RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y. 108
 Wherefore, the order appealed from is REVERSED and judgment rendered
allowing the probate of the holographic will of the testator Matilde Seño Vda. de
Ramonal.2
The facts are as follows:
On April 6, 1990, Evangeline Calugay, Josephine Salcedo and Eufemia Patigas,
devisees and legatees of the holographic will of the deceased Matilde Seño Vda. de
Ramonal, filed with the Regional Trial Court, Misamis Oriental, Branch 18, a petition 3 for
probate of the holographic will of the deceased, who died on January 16, 1990.
In the petition, respondents claimed that the deceased Matilde Seño Vda. de Ramonal,
was of sound and disposing mind when she executed the will on August 30, 1978, that
there was no fraud, undue influence, and duress employed in the person of the testator,
and will was written voluntarily.
The assessed value of the decedent's property, including all real and personal property
was about P400,000.00, at the time of her death.4
On June 28, 1990, Eugenia Ramonal Codoy and Manuel Ramonal filed an opposition5 to
the petition for probate, alleging that the holographic will was a forgery and that the same
is even illegible. This gives an impression that a "third hand" of an interested party other
than the "true hand" of Matilde Seño Vda. de Ramonal executed the holographic will.
Petitioners argued that the repeated dates incorporated or appearing on will after every
disposition is out of the ordinary. If the deceased was the one who executed the will, and
was not forced, the dates and the signature should appear at the bottom after the
dispositions, as regularly done and not after every disposition. And assuming that the
holographic will is in the handwriting of the deceased, it was procured by undue and
improper pressure and influence on the part of the beneficiaries, or through fraud and
trickery.
1âwphi1.nêt
Respondents presented six (6) witnesses and various documentary evidence. Petitioners
instead of presenting their evidence, filed a demurrer6 to evidence, claiming that
respondents failed to establish sufficient factual and legal basis for the probate of the
holographic will of the deceased Matilde Seño Vda. de Ramonal.
On November 26, 1990, the lower Court issued an order, the dispositive portion of which
reads:
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
WHEREFORE, in view of the foregoing consideration, the Demurrer to Evidence
having being well taken, same is granted, and the petition for probate of the
document (Exhibit "S") on the purported Holographic Will of the late Matilde Seño
Vda. de Ramonal, is denied for insufficiency of evidence and lack of merits.7
On December 12, 1990, respondents filed a notice of appeal,8 and in support of their
appeal, the respondents once again reiterated the testimony of the following witnesses,
namely: (1) Augusto Neri; (2) Generosa Senon; (3) Matilde Ramonal Binanay; (4)
Teresita Vedad; (5) Fiscal Rodolfo Waga; and (6) Evangeline Calugay.
To have a clear understanding of the testimonies of the witnesses, we recite an account
of their testimonies.
Augusto Neri, Clerk of Court, Court of First Instance of Misamis Oriental, where the
special proceedings for the probate of the holographic will of the deceased was filed. He
produced and identified the records of the case. The documents presented bear the
signature of the deceased, Matilde Seño Vda. de Ramonal, for the purpose of laying the
basis for comparison of the handwriting of the testatrix, with the writing treated or
admitted as genuine by the party against whom the evidence is offered.
Generosa Senon, election registrar of Cagayan de Oro, was presented to produced and
identify the voter's affidavit of the decedent. However, the voters' affidavit was not
produced for the same was already destroyed and no longer available.
Matilde Ramonal Binanay, testified that the deceased Matilde Seño Vda. de Ramonal
was her aunt, and that after the death of Matilde's husband, the latter lived with her in her
parent's house for eleven (11) years from 1958 to 1969. During those eleven (11) years
of close association the deceased, she acquired familiarity with her signature and
handwriting as she used to accompany her (deceased Matilde Seño Vda. de Ramonal)
in collecting rentals from her various tenants of commercial buildings, and deceased
always issued receipts. In addition to this, she (witness Matilde Binanay) assisted the
deceased in posting the records of the accounts, and carried personal letters of the
deceased to her creditors.
Matilde Ramonal Binanay further testified that at the time of the death of Matilde Vda. de
Ramonal, she left a holographic will dated August 30, 1978, which was personally and
entirely written, dated and signed, by the deceased and that all the dispositions therein,
the dates, and the signatures in said will, were that of the deceased.
109
Fiscal Rodolfo Waga testified that before he was appointed City Fiscal of Cagayan de 1. Eufemia Patigas
Oro, he was a practicing lawyer, and handled all the pleadings and documents signed by
the deceased in connection with the proceedings of her late husband, as a result of 2. Josefina Salcedo
which he is familiar with the handwriting of the latter. He testified that the signature
appearing in the holographic will was similar to that of the deceased, Matilde Seño Vda. 3. Evangeline Calugay
de Ramonal, but he can not be sure.
(Sgd) Matilde Vda de Ramonal
The fifth witness presented was Mrs. Teresita Vedad, an employee of the Department of
Environment and Natural Resources, Region 10. She testified that she processed the
August 30, 1978
application of the deceased for pasture permit and was familiar with the signature of the
deceased, since the signed documents in her presence, when the latter was applying for
pasture permit. 4. I bequeath my one (1) hectare land at Mandumol, Indahag to Evangeline R.
Calugay
Finally, Evangeline Calugay, one of the respondents, testified that she had lived with the
deceased since birth, and was in fact adopted by the latter. That after a long period of (Sgd) Matilde Vda de Ramonal
time she became familiar with the signature of the deceased. She testified that the
signature appearing in the holographic will is the true and genuine signature of Matilde August 30, 1978
Seño Vda. de Ramonal.
5. Give the 2,500 Square Meters at Sta. Cruz Ramonal Village in favor of
The holographic will which was written in Visayan, is translated in English as follows: Evangeline R. Calugay, Helen must continue with the Sta. Cruz, once I am no
longer around.
Instruction
(Sgd) Matilde Vda de Ramonal
August 30, 1978
August 30, 1978
1. My share at Cogon, Raminal Street, for Evangeline Calugay.
6. Bury me where my husband Justo is ever buried.
(Sgd) Matilde Vda de Ramonal
(Sgd) Matilde Vda de Ramonal
August 30, 1978
August 30, 1978
2. Josefina Salcedo must be given 1,500 square meters at Pinikan Street.
Gene and Manuel:
(Sgd) Matilde Vda de Ramonal
Follow my instruction in order that I will rest peacefully.
August 30, 1978
Mama
3. My jewelry's shall be divided among:
Matilde Vda de Ramonal

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On October 9, 1995, the Court of Appeals, rendered decision9 ruling that the appeal was
meritorious. Citing the decision in the case of Azaola vs. Singson, 109 Phil. 102, penned
by Mr. Justice J. B. L. Reyes, a recognized authority in civil law, the Court of Appeals
held:
. . . even if the genuineness of the holographic will were contested, we are of the
opinion that Article 811 of our present civil code can not be interpreted as to
require the compulsory presentation of three witnesses to identify the handwriting
of the testator, under penalty of having the probate denied. Since no witness may
have been present at the execution of the holographic will, none being required
by law (art. 810, new civil code), it becomes obvious that the existence of
witnesses possessing the requisite qualifications is a matter beyond the control of
the proponent. For it is not merely a question of finding and producing any three
witnesses; they must be witnesses "who know the handwriting and signature of
the testator" and who can declare (truthfully, of course, even if the law does not
express) "that the will and the signature are in the handwriting of the testator."
There may be no available witness acquainted with the testator's hand; or even if
so familiarized, the witness maybe unwilling to give a positive opinion.
Compliance with the rule of paragraph 1 of article 811 may thus become an
impossibility. That is evidently the reason why the second paragraph of article
811 prescribes that —
in the absence of any competent witness referred to in the preceding paragraph,
and if the court deems it necessary, expert testimony may be resorted to.
As can be see, the law foresees, the possibility that no qualified witness ma be
found (or what amounts to the same thing, that no competent witness may be
willing to testify to the authenticity of the will), and provides for resort to expert
evidence to supply the deficiency.
It may be true that the rule of this article (requiring that three witnesses be
presented if the will is contested and only one if no contest is had) was derived
from the rule established for ordinary testaments (CF Cabang vs. Delfianado, 45
PHIL 291; Tolentino v. Francisco, 57 PHIL 742). But it can not be ignored that the
requirement can be considered mandatory only in case of ordinary testaments,
precisely because the presence of at least three witnesses at the execution of
ordinary wills is made by law essential to their validity (Art. 805). Where the will is
holographic, no witness need be present (art. 10), and the rule requiring
production of three witnesses must be deemed merely permissive if absurd
results are to be avoided.
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
Again, under Art. 811, the resort to expert evidence is conditioned by the words
"if the court deem it necessary", which reveal that what the law deems essential
is that the court should be convinced of the will's authenticity. Where the
prescribed number of witnesses is produced and the court is convinced by their
testimony that the will is genuine, it may consider it unnecessary to call for expert
evidence. On the other hand, if no competent witness is available, or none of
those produced is convincing, the court may still, and in fact it should resort to
handwriting experts. The duty of the court, in fine, is to exhaust all available lines
of inquiry, for the state is as much interested as the proponent that the true
intention of the testator be carried into effect.
Paraphrasing Azaola vs. Singson, even if the genuineness of the holographic will
were contested, Article 811 of the civil code cannot be interpreted as to require
the compulsory presentation of three witnesses to identify the handwriting of the
testator, under penalty of the having the probate denied. No witness need be
present in the execution of the holographic will. And the rule requiring the
production of three witnesses is merely permissive. What the law deems
essential is that the court is convinced of the authenticity of the will. Its duty is to
exhaust all available lines of inquiry, for the state is as much interested in the
proponent that the true intention of the testator be carried into effect. And
because the law leaves it to the trial court to decide if experts are still needed, no
unfavorable inference can be drawn from a party's failure to offer expert
evidence, until and unless the court expresses dissatisfaction with the testimony
of the lay witnesses.10
According to the Court of Appeals, Evangeline Calugay, Matilde Ramonal Binanay and
other witnesses definitely and in no uncertain terms testified that the handwriting and
signature in the holographic will were those of the testator herself.
Thus, upon the unrebutted testimony of appellant Evangeline Calugay and witness
Matilde Ramonal Binanay, the Court of Appeals sustained the authenticity of the
holographic will and the handwriting and signature therein, and allowed the will to
probate.
Hence, this petition.
The petitioners raise the following issues:
(1) Whether or not the ruling of the case of Azaola vs. Singson, 109 Phil. 102,
relied upon by the respondent Court of Appeals, was applicable to the case.
111
 (2) Whether or not the Court of Appeals erred in holding that private respondents
had been able to present credible evidence to that the date, text, and signature
on the holographic will written entirely in the hand of the testatrix.
(3) Whether or not the Court of Appeals erred in not analyzing the signatures in
the holographic will of Matilde Seño Vda. de Ramonal.
Q. And you said for eleven (11) years Matilde Vda de Ramonal resided with
your parents at Pinikitan, Cagayan de Oro City. Would you tell the court what
was your occupation or how did Matilde Vda de Ramonal keep herself busy that
time?
A. Collecting rentals.

In this petition, the petitioners ask whether the provisions of Article 811 of the Civil Code Q. From where?
are permissive or mandatory. The article provides, as a requirement for the probate of a
contested holographic will, that at least three witnesses explicitly declare that the A. From the land rentals and commercial buildings at Pabayo-Gomez streets.12
signature in the will is the genuine signature of the testator.
1âw phi 1.nêt

xxx xxx xxx

We are convinced, based on the language used, that Article 811 of the Civil Code is
mandatory. The word "shall" connotes a mandatory order. We have ruled that "shall" in a Q. Who sometime accompany her?
statute commonly denotes an imperative obligation and is inconsistent with the idea of
discretion and that the presumption is that the word "shall," when used in a statute is
A. I sometimes accompany her.
mandatory.11
Q. In collecting rentals does she issue receipts?
Laws are enacted to achieve a goal intended and to guide against an evil or mischief that
aims to prevent. In the case at bar, the goal to achieve is to give effect to the wishes of
the deceased and the evil to be prevented is the possibility that unscrupulous individuals A. Yes, sir.13
who for their benefit will employ means to defeat the wishes of the testator.
xxx xxx xxx
So, we believe that the paramount consideration in the present petition is to determine
the true intent of the deceased. An exhaustive and objective consideration of the Q. Showing to you the receipt dated 23 October 1979, is this the one you are
evidence is imperative to establish the true intent of the testator. referring to as one of the receipts which she issued to them?

It will be noted that not all the witnesses presented by the respondents testified explicitly A. Yes, sir.
that they were familiar with the handwriting of testator. In the case of Augusto Neri, clerk
of court, Court of First Instance, Misamis Oriental, he merely identified the record of Q. Now there is that signature of Matilde vda. De Ramonal, whose signature is
Special Proceedings No. 427 before said court. He was not presented to declare that Mrs. Binanay?
explicitly that the signature appearing in the holographic was that of the deceased.
A. Matilde vda. De Ramonal.
Generosa E. Senon, the election registrar of Cagayan de Oro City, was presented to
identify the signature of the deceased in the voter's affidavit, which was not even Q. Why do you say that is the signature of Matilde Vda. De Ramonal?
produced as it was no longer available.
A. I am familiar with her signature.
Matilde Ramonal Binanay, on the other hand, testified that:
Q. Now, you tell the court Mrs. Binanay, whether you know Matilde vda de
Ramonal kept records of the accounts of her tenants?

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A. Yes, sir. Q. Showing to you this exhibit "S", there is that handwritten "tugon", whose
handwriting is this?
Q. Why do you say so?
A. My Aunt.
A. Because we sometimes post a record of accounts in behalf of Matilde Vda.
De Ramonal. Q. Why do you say this is the handwriting of your aunt?

Q. How is this record of accounts made? How is this reflected? A. Because I am familiar with her signature.16

A. In handwritten.14 What Ms. Binanay saw were pre-prepared receipts and letters of the deceased, which
she either mailed or gave to her tenants. She did not declare that she saw the deceased
xxx xxx xxx sign a document or write a note.

Q. In addition to collection of rentals, posting records of accounts of tenants and Further, during the cross-examination, the counsel for petitioners elicited the fact that the
deed of sale which you said what else did you do to acquire familiarity of the will was not found in the personal belongings of the deceased but was in the possession
signature of Matilde Vda De Ramonal? of Ms. Binanay. She testified that:

A. Posting records. Q. Mrs. Binanay, when you were asked by counsel for the petitioners if the late
Matilde Seno vda de Ramonal left a will you said, yes?
Q. Aside from that?
A. Yes, sir.
A. Carrying letters.
Q. Who was in possession of that will?
Q. Letters of whom?
A. I.
A. Matilde.
Q. Since when did you have the possession of the will?
Q. To whom?
A. It was in my mother's possession.
15
A. To her creditors.
Q. So, it was not in your possession?
xxx xxx xxx
A. Sorry, yes.
Q. You testified that at time of her death she left a will. I am showing to you a
document with its title "tugon" is this the document you are referring to? Q. And when did you come into possession since as you said this was originally
in the possession of your mother?
A. Yes, sir.
A. 1985.17

RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y. 113
 xxx xxx xxx Q. Now, let us go to the third signature of Matilde Ramonal. Do you know that
there are retracings in the word Vda.?
Q. Now, Mrs. Binanay was there any particular reason why your mother left that
will to you and therefore you have that in your possession? A. Yes, a little. The letter L is continuous.

A. It was not given to me by my mother, I took that in the aparador when she Q. And also in Matilde the letter L is continued to letter D?
died.
A. Yes, sir.
Q. After taking that document you kept it with you?
Q. Again the third signature of Matilde Vda de Ramonal the letter L in Matilde is
A. I presented it to the fiscal. continued towards letter D.

Q. For what purpose? A. Yes, sir.

A. Just to seek advice. Q. And there is a retracing in the word Vda.?

Q. Advice of what? A. Yes, sir.20

A. About the will.18 xxx xxx xxx

In her testimony it was also evident that Ms. Binanay kept the fact about the will from Q. Now, that was 1979, remember one year after the alleged holographic will.
petitioners, the legally adopted children of the deceased. Such actions put in issue her Now, you identified a document marked as Exhibit R. This is dated January 8,
motive of keeping the will a secret to petitioners and revealing it only after the death of 1978 which is only about eight months from August 30, 1978. Do you notice that
Matilde Seño Vda. de Ramonal. the signature Matilde Vda de Ramonal is beautifully written and legible?

In the testimony of Ms. Binanay, the following were established: A. Yes, sir the handwriting shows that she was very exhausted.

Q. Now, in 1978 Matilde Seno Vda de Ramonal was not yet a sickly person is Q. You just say that she was very exhausted while that in 1978 she was healthy
that correct? was not sickly and she was agile. Now, you said she was exhausted?

A. Yes, sir. A. In writing.

Q. She was up and about and was still uprightly and she could walk agilely and Q. How did you know that she was exhausted when you were not present and
she could go to her building to collect rentals, is that correct? you just tried to explain yourself out because of the apparent inconsistencies?

A. Yes, sir.19 A. That was I think. (sic).

xxx xxx xxx Q. Now, you already observed this signature dated 1978, the same year as the
alleged holographic will. In exhibit I, you will notice that there is no retracing;

RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y. 114
 there is no hesitancy and the signature was written on a fluid movement. . . . And xxx xxx xxx
in fact, the name Eufemia R. Patigas here refers to one of the petitioners?
Q. Now, I am showing to you Exhibit S which is captioned "tugon" dated Agosto
A. Yes, sir. 30, 1978 there is a signature here below item No. 1, will you tell this court whose
signature is this?
Q. You will also notice Mrs. Binanay that it is not only with the questioned
signature appearing in the alleged holographic will marked as Exhibit X but in the A. Yes, sir, that is her signature.
handwriting themselves, here you will notice the hesitancy and tremors, do you
notice that? Q. Why do you say that is her signature?

A. Yes, sir.21 A. I am familiar with her signature.23

Evangeline Calugay declared that the holographic will was written, dated and signed in
the handwriting of the testator. She testified that:
Q. You testified that you stayed with the house of the spouses Matilde and
Justo Ramonal for the period of 22 years. Could you tell the court the services if
any which you rendered to Matilde Ramonal?
A. During my stay I used to go with her to the church, to market and then to her
transactions.
Q. What else? What services that you rendered?
A. After my college days I assisted her in going to the bank, paying taxes and to
her lawyer.
So, the only reason that Evangeline can give as to why she was familiar with the
handwriting of the deceased was because she lived with her since birth. She never
declared that she saw the deceased write a note or sign a document.
The former lawyer of the deceased, Fiscal Waga, testified that:
Q. Do you know Matilde Vda de Ramonal?
A. Yes, sir I know her because she is my godmother the husband is my
godfather. Actually I am related to the husband by consanguinity.
Q. Can you tell the name of the husband?
A. The late husband is Justo Ramonal.24

Q. What was your purpose of going to her lawyer? xxx xxx xxx

A. I used to be her personal driver. Q. Can you tell this court whether the spouses Justo Ramonal and Matilde
Ramonal have legitimate children?
Q. In the course of your stay for 22 years did you acquire familiarity of the
handwriting of Matilde Vda de Ramonal? A. As far as I know they have no legitimate children.25

A. Yes, sir. xxx xxx xxx

Q. How come that you acquired familiarity? Q. You said after becoming a lawyer you practice your profession? Where?

A. Because I lived with her since birth.22 A. Here in Cagayan de Oro City.

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Q. Do you have services rendered with the deceased Matilde vda de Ramonal?
A. I assisted her in terminating the partition, of properties.
Q. When you said assisted, you acted as her counsel? Any sort of counsel as in
what case is that, Fiscal?
A. It is about the project partition to terminate the property, which was under the
court before.26
xxx xxx xxx
Q. Appearing in special proceeding no. 427 is the amended inventory which is
marked as exhibit N of the estate of Justo Ramonal and there appears a
signature over the type written word Matilde vda de Ramonal, whose signature is
this?
A. That is the signature of Matilde Vda de Ramonal.
Q. Also in exhibit n-3, whose signature is this?
A. This one here that is the signature of Mrs. Matilde vda de Ramonal.27
xxx xxx xxx
Q. Aside from attending as counsel in that Special Proceeding Case No. 427
what were the other assistance wherein you were rendering professional service
to the deceased Matilde Vda de Ramonal?
A. I can not remember if I have assisted her in other matters but if there are
documents to show that I have assisted then I can recall.28
xxx xxx xxx
Q. Now, I am showing to you exhibit S which is titled "tugon", kindly go over this
document, Fiscal Waga and tell the court whether you are familiar with the
handwriting contained in that document marked as exhibit "S"?
A. I am not familiar with the handwriting.
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
Q. This one, Matilde Vda de Ramonal, whose signature is this?
A. I think this signature here it seems to be the signature of Mrs. Matilde vda de
Ramonal.
Q. Now, in item No. 2 there is that signature here of Matilde Vda de Ramonal,
can you tell the court whose signature is this?
A. Well, that is similar to that signature appearing in the project of partition.
Q. Also in item no. 3 there is that signature Matilde Vda de Ramonal, can you
tell the court whose signature is that?
A. As I said, this signature also seems to be the signature of Matilde vda de
Ramonal.
Q. Why do you say that?
A. Because there is a similarity in the way it is being written.
Q. How about this signature in item no. 4, can you tell the court whose signature
is this?
A. The same is true with the signature in item no. 4. It seems that they are
similar.29
xxx xxx xxx
Q. Mr. Prosecutor, I heard you when you said that the signature of Matilde Vda
de Ramonal Appearing in exhibit S seems to be the signature of Matilde vda de
Ramonal?
A. Yes, it is similar to the project of partition.
Q. So you are not definite that this is the signature of Matilde vda de Ramonal.
You are merely supposing that it seems to be her signature because it is similar
to the signature of the project of partition which you have made?
A. That is true.30
116
From the testimonies of these witnesses, the Court of Appeals allowed the will to probate
and disregard the requirement of three witnesses in case of contested holographic will,
citing the decision in Azaola vs. Singson,31 ruling that the requirement is merely directory
and not mandatory.
In the case of Ajero vs. Court of Appeals,32 we said that "the object of the solemnities
surrounding the execution of wills is to close the door against bad faith and fraud, to
avoid substitution of wills and testaments and to guaranty their truth and authenticity.
Therefore, the laws on this subject should be interpreted in such a way as to attain these
primordial ends. But on the other hand, also one must not lose sight of the fact that it is
not the object of the law to restrain and curtail the exercise of the right to make a will.
However, we cannot eliminate the possibility of a false document being adjudged as the
will of the testator, which is why if the holographic will is contested, that law requires
three witnesses to declare that the will was in the handwriting of the deceased.
The will was found not in the personal belongings of the deceased but with one of the
respondents, who kept it even before the death of the deceased. In the testimony of Ms.
Binanay, she revealed that the will was in her possession as early as 1985, or five years
before the death of the deceased.
There was no opportunity for an expert to compare the signature and the handwriting of
the deceased with other documents signed and executed by her during her lifetime. The
only chance at comparison was during the cross-examination of Ms. Binanay when the
lawyer of petitioners asked Ms. Binanay to compare the documents which contained the
signature of the deceased with that of the holographic will and she is not a handwriting
expert. Even the former lawyer of the deceased expressed doubts as to the authenticity
of the signature in the holographic will.
A visual examination of the holographic will convince us that the strokes are different
when compared with other documents written by the testator. The signature of the
testator in some of the disposition is not readable. There were uneven strokes, retracing
and erasures on the will.
Comparing the signature in the holographic will dated August 30, 1978,33 and the
signatures in several documents such as the application letter for pasture permit dated
December 30, 1980,34 and a letter dated June 16, 1978,35 the strokes are different. In the
letters, there are continuous flows of the strokes, evidencing that there is no hesitation in
writing unlike that of the holographic will. We, therefore, cannot be certain that ruling
holographic will was in the handwriting by the deceased.
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
IN VIEW WHEREOF, the decision appealed from is SET ASIDE. The records are
ordered remanded to the court of origin with instructions to allow petitioners to adduce
evidence in support of their opposition to the probate of the holographic will of the
deceased Matilde Seño vda. de Ramonal. 1âwphi1.nêt
No costs.
SO ORDERED.
DIGEST: CODOY VS. CALUGAY
FACTS:
On April 6, 1990, Evangeline Calugay, Josephine Salcedo and Eufemia Patigas,
devisees and legatees of the holographic will of the deceased Matilde Seño Vda. de
Ramonal, filed a petition for probate of the will of the deceased who died on January 16,
1990.
On June 28, 1990, Eugenia Ramonal Codoy and Manuel Ramonal filed an
opposition to the petition alleging that the holographic will was a forgery and that the
same is illegible.
Respondents presented six (6) witnesses and various documentary evidence.
Petitioners instead of presenting their evidence filed a demurrer to evidence.
The lower Court granted the Demurrer to Evidence and denied the petition for
probate of the document.
Respondents filed a notice of appeal and in support thereof, they reiterated the
testimony of their witnesses, namely: Augusto Neri, Generosa Senon, Matilde Binanay,
Fiscal Rodolfo Waga, Mrs. Teresita Vedad, and Evangeline Calugay.
The Court of Appeals citing the case of Azaola vs. Singson, 109 Phil. 102, held
that even if the genuineness of the holographic will were contested, Article 811 of the
civil code in requiring the production of three witnesses is merely permissive. Thus, the
Court of Appeals sustained the authenticity of the holographic will and allowed the will to
probate.
Hence, the instant petition.
ISSUE:
117
 1. Whether or not the provisions of Article 811 of the Civil Code are permissive.
2. Whether or not the holographic will of the deceased Matilde Seño Vda. de
Ramonal is authentic.
HELD:
1. Article 811 of the civil code is mandatory.
The article provides, as a requirement for the probate of a contested holographic will,
that at least three witnesses explicitly declare that the signature in the will is the genuine
signature of the testator. The Supreme Court is convinced, based on the language used,
that Article 811 of the Civil Code is mandatory. The word "shall" connotes a mandatory
order. The SC has ruled that "shall" in a statute commonly denotes an imperative
obligation and is inconsistent with the idea of discretion and that the presumption is that
the word "shall," when used in a statute is mandatory.
2. Respondents failed to establish the authenticity of the holographic will.
In the case at bar, the goal is to give effect to the wishes of the deceased and the evil to
be prevented is the possibility that unscrupulous individuals who for their benefit will
employ means to defeat the wishes of the testator. The paramount consideration in the
present petition is to determine the true intent of the deceased.
It will be noted that not all the witnesses were familiar with the handwriting of the testator.
In the case of Augusto Neri, he merely identified the record of the Special Proceedings
before the lower court. Generosa E. Senon was not even able produce the voter’s
affidavit to identify the signature of the deceased as it was no longer available.
Evangeline Calugay never declared that she saw the deceased write a note or sign a
document. Even the former lawyer of the deceased, Fiscal Rodolfo Waga, expressed
doubts as to the authenticity of the signature.
The will was found not in the personal belongings of the deceased but with one of the
respondents, who kept it even before the death of the deceased. In the testimony of Ms.
Binanay, she revealed that the will was in her possession as early as 1985, or five years
before the death of the deceased.
There was no opportunity for an expert to compare the signature and the handwriting of
the deceased with other documents signed and executed by her during her lifetime. A
visual examination of the holographic will convince us that the strokes are different.
There were uneven strokes, retracing and erasures on the will.
Comparing the signature in the holographic will and the signatures in several documents
such as the application letter for pasture permit, the strokes are different. In the letters,
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there are continuous flows of the strokes, evidencing that there is no hesitation in writing
unlike that of the holographic will. We, therefore, cannot be certain that the holographic
will was in the handwriting by the deceased.
IN VIEW WHEREOF, the decision appealed from is SET ASIDE. The records are
ordered remanded to the court of origin with instructions to allow petitioners to adduce
evidence in support of their opposition to the probate of the holographic will of the
deceased Matilde Seño vda. de Ramonal.
IN RE WILL OF JOSEFA ZALAMEA Y ABELLA, DECEASED.
PEDRO UNSON
VS. ANTONIO ABELLA, ET AL
G.R. NO. 17857
JUNE 12, 1922
VILLAMOR, J.:
On July 19, 1918, Doña Josefa Zalamea y Abella, single, 60 years old, who was residing
in the municipality of Pagsanjan, Province of Laguna, executed her last will and
testament with an attached inventory of her properties, Exhibits A and A-1, in the
presence of three witnesses, who signed with her all the pages of said documents. The
testatrix died on the 6th of January, 1921, and, as the record shows, the executor
appointed in the will, Pedro Unson, filed in the court of First Instance of Laguna on the
19th of January of the same year an application for the probate of the will and the
issuance of the proper letters of administration in his favor.
To said application an opposition was presently by Antonio Abella, Ignacia Abella,
Avicencia Abella, and Santiago Vito, alleging that the supposed will of the deceased
Zalamea was not executed in conformity with the provinces of the law, inasmuch as it
was not paged correlatively in letters, nor was there any attestation clause in it, nor was it
signed by the testatrix and the witnesses in the presence of each other.
Trial having been held, the judge a quo overruled the opposition of the contestants, and
ordered the probate of the will, Exhibit A, and the inventory, Exhibit A-1, holding that both
documents contained the true and last will of the deceased Josefa Zalamea.
From the judgment of the court below, the contestants have appealed, and in their brief
they assign three errors, which, in their opinion, justify the reversal of the judgment
appealed from.
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The first error assigned by the appellants as committed by the court below is its finding to
the effect that Exhibit A, said to be the will of the deceased Josefa Zalamea, was
executed with all the solemnities required by the law.
The arguments advanced by appellants' counsel in support of the first assignment of
error tend to impeach the credibility of the witnesses for the proponent, specially that of
Eugenio Zalamea. We have made a careful examination of the evidence, but have not
found anything that would justify us in disturbing the finding of the court a quo. The
attesting witnesses, Eugenio Zalamea and Gonzalo Abaya, clearly testify that together
with the other witness to the will, Pedro de Jesus, they did sign each and every page of
the will and of the inventory in the presence of each other and of the testatrix, as the
latter did likewise sign all the pages of the will and of the inventory in their presence.
In their brief the appellants intimate that one of the pages of the will was not signed by
the testatrix, nor by the witnesses on the day of the execution of the will, that is, on the
19th of July, 1918, basing their contention on the testimony of Aurelio Palileo, who says
that on one occasion Gonzalo Abaya told him that one of the pages of the will had not
been signed by the witnesses, nor by the testatrix on the day of its execution. Palileo's
testimony is entirely contradicted by Gonzalo Abaya not only in the direct, but in the
rebuttal, evidence as well. To our mind, Palileo's testimony cannot prevail over that of the
attesting witnesses, Gonzalo Avaya and Eugenio Zalamea. The appellants impeach the
credibility of Eugenio Zalamea, for having made a sworn declaration before the justice of
the peace of Santa Cruz, Laguna, before the trial of this case, to the effect that he was
really one of the witnesses to the will in question, which fact was corroborated by himself
at the trial. The appellants take Zalamea's testimony in connection with the dismissal of a
criminal case against a nephew of his, in whose success he was interested, and infer
from this fact the partiality of his testimony. We deem this allegation of little importance to
impeach the credibility of the witness Zalamea, especially because his testimony is
corroborated by the other attesting witness. Gonzalo Abaya, and by attorney Luis Abaya,
who had prepared the testament at the instance of the testatrix. The foregoing is
sufficient for us to conclude that the first assignment of error made by the appellants is
groundless.
The appellants contend that the court below erred in admitting the will to probate
notwithstanding the omission of the proponent to produce one of the attesting witnesses.
At the trial of this case the attorneys for the proponent stated to the court that they had
necessarily to omit the testimony of Pedro de Jesus, one of the persons who appear to
have witnessed the execution of the will, for there were reasonable grounds to believe
that said witness was openly hostile to the proponent, inasmuch as since the
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announcement of the trial of the petition for the probate of the will, said witness has been
in frequent communication with the contestants and their attorney, and has refused to
hold any conference with the attorneys for the proponent. In reply to this, the attorney for
the contestants, said to the court, "without discussing for the present whether or not in
view of those facts (the facts mentioned by the attorneys for the petitioner), in the
hypothesis that the same are proven, they are relieved from producing that witness, for
while it is a matter not decided, it is a recognized rule that the fact that a witness is
hostile does not justify a party to omit his testimony; without discussing this, I say, I move
that said statement be stricken out, and if the proponent wants these facts to stand to
stand in the record, let him prove them." The court a quo ruled, saying, "there is no
need."
To this ruling of the court, the attorney for the appellants did not take any exception.
In the case of Avera vs. Garcia and Rodriguez (42 Phil., 145), recently decided by this
court, in deciding the question whether a will can be admitted to probate, where
opposition is made, upon the proof of a single attesting witness, without producing or
accounting for the absence of the other two, it was said; "while it is undoubtedly true that
an uncontested will may be proved by the testimony of only one of the three attesting
witnesses, nevertheless in Cabang vs. Delfinado (34 Phil., 291), this court declared after
an elaborate examination of the American and English authorities that when a contest is
instituted, all of the attesting witnesses must be examined, if alive and within reach of the
process of the court.
In the present case no explanation was made at the trial as to why all three of the
attesting witnesses were not produced, but the probable reason is found in the
fact that, although the petition for the probate of this will had been pending from
December 21, 1917, until the date set for the hearing, which was April 5, 1919,
no formal contest was entered until the very day set for the hearing; and it is
probable that the attorney for the • proponent, believing in good faith that
probate would not be contested, repaired to the court with only one of the three
attesting witnesses at hand, and upon finding that the will was contested,
incautiously permitted the case to go to proof without asking for a postponement
of the trial in order that he might produce all the attesting witnesses.
Although this circumstance may explain why the three witnesses were not
produced, it does not in itself supply any basis for changing the rule expounded
in the case above referred to; and were it not for a fact now to be mentioned, this
court would probably be compelled to reverse this case on the ground that the
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execution of the will had not been proved by a sufficient number of attesting
witnesses.
It appears, however, that this point was not raised by the appellant in the lower
court either upon the submission of the cause for determination in that court or
upon the occasion of the filing of the motion for a new trial. Accordingly it is
insisted for the appellee that this question cannot now be raised for t he first time
in this court. We believe this point is well taken, and the first assignment of error
must be declared not to be well taken. This exact question has been decided by
the Supreme Court of California adversely to the contention of the appellant, and
we see no reason why the same rule of practice should not be observed by us.
(Estate of McCarty, 58 Cal., 335, 337.)
There are at least two reasons why the appellate tribunals are disinclined to
permit certain questions to be raised for the first time in the second instance. In
the first place it eliminates the judicial criterion of the Court of First Instance upon
the point there presented and makes the appellate court in effect a court of first
instance with reference to that point, unless the case is remanded for a new trial.
In the second place, it permits, if it does not encourage, attorneys to trifle with the
administration of justice by concealing from the trial court and from their
opponent the actual point upon which reliance is placed, while they are engaged
in other discussions more simulated than real. These considerations are, we
think, decisive.
In ruling upon the point above presented we do not wish to be understood as
laying down any hard and fast rule that would prove an embarrassment to this
court in the administration of justice in the future. In one way or another we are
constantly here considering aspects of cases and applying doctrines which have
escaped the attention of all persons concerned in the litigation below; and this is
necessary if this court is to contribute the part due from it in the correct decision
of the cases brought before it. What we mean to declare is that when we believe
that substantial justice has been done in the Court of First Instance, and the point
relied on for reversal in this court appears to be one which ought properly to have
been presented in that court, we will in the exercise of a sound discretion ignore
such question upon appeal; and this is the more proper when the question
relates to a defect which might have been cured in the Court of First Instance if
attention had been called to it there. In the present case, if the appellant had
raised this question in the lower court, either at the hearing or upon a motion for a
new trial, that court would have had the power, and it would have been its duty,
considering the tardy institution of the contest, to have granted a new trial in
order that all the witnesses to the will might be brought into court. But instead of
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thus calling the error to the attention of the court and his adversary, the point is
first raised by the appellant in this court. We hold that this is too late.
Properly understood, the case of Cabang vs. Delfinado, supra, contains nothing
inconsistent with the ruling we now make, for it appears from the opinion in that
case that the proponent of the will had obtained an order for a republication and
new trial for the avowed purpose of presenting the two additional attesting
witnesses who had not been previously examined, but nevertheless
subsequently failed without any apparent reason to take their testimony. Both
parties in that case were therefore fully apprised that the question of the number
of witnesses necessar to prove the will was in issue in the lower court.
In the case at bar, we do not think this question properly to have been raised at the trial,
but in the memorandum submitted by the attorney for the appellants to the trial court, he
contended that the will could not be admitted to probate because one of the witnesses to
the will was not produced, and that the voluntary non-production of this witness raises a
presumption against the pretension of the proponent. The trial court found that the
evidence introduced by the proponent, consisting of the testimony of the two attesting
witnesses and the other witness who was present at the execution, and had charge of
the preparation of the will and the inventory, Exhibits A and A-1, was sufficient. As
announced in Cabang vs. Delfinado, supra, the general rule is that, where opposition is
made to the probate of a will, the attesting witnesses must be produced. But there are
exceptions to this rule, for instance, when a witness is dead, or cannot be served with
process of the court, or his reputation for truth has been questioned or he appears hostile
to the cause of the proponent. In such cases, the will may be admitted to probate without
the testimony of said witness, if, upon the other proofs adduced in the case, the court is
satisfied that the will has been duly executed. Wherefore, we find that the non-production
of the attesting witness, Pedro de Jesus, as accounted for by the attorney for the
proponent at the trial, does not render void the decree of the court a quo, allowing the
probate.
But supposing that said witness, when cited, had testified adversely to the application,
this would not by itself have change the result reached by the court a quo, for section
632 of the Code of Civil Procedure provides that a will can be admitted to probate,
notwithstanding that one or more witnesses do not remember having attested it, provided
the court is satisfied upon the evidence adduced that the will has been executed and
signed in the manner prescribed by the law.
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The last error assigned by the appellants is made to consist in the probate of the
inventory, Exhibit A-1, despite the fact that this exhibit has no attestation clause in it, and
its paging is made in Arabic numerals and not in letters.
In the third paragraph of the will, reference is made to the inventory, Exhibit A-1, and at
the bottom of said will, the testatrix Josefa Zalamea says:
In witness whereof, I sign this will composed of ten folios including the page
containing the signatures and the attestation of the witnesses; I have likewise
signed the inventory attached to this will composed of ten folios in the presence
of Messrs. Gonzalo Abaya, Eugenio Zalamea, Pedro de Jesus, in this
municipality of Pagsanjan, Laguna, Philippine Islands, this 19th of July, 1918.
And the attestation clause is as follows:
The foregoing will composed of ten folios including this one whereunto we have
affixed our signatures, as well as the inventory of the properties of Doña Josefa
Zalamea y Abella, was read to Doña Josefa Zalamea y Abella, and the latter
affixed her name to the last, and each and every page of this will and inventory
composed of ten folios in our presence; and she declared this to be her last will
and testament and at her request we have affixed hereunto our respective
signatures in her presence and in the presence of each other as witnesses to the
will and the inventory this 19th of July, 1918, at Pagsanjan, Laguna, P.I.
(Sgd.) GONZALO ABAYA,
EUGENIO ZALAMEA,
PEDRO DE JESUS.
In view of the fact that the inventory is referred to in the will as an integral part of it, we
find that the foregoing attestation clause is in compliance with section 1 of Act No. 2645,
which requires this solemnity for the validity of a will, and makes unnecessary any other
attestation clause at the end of the inventory.
As to the paging of the will in Arabic numerals, instead of in letters, we adhere to the
doctrine announced in the case of Aldaba vs. Roque (p. 378, ante), recently decided by
this court. In that case the validity of the will was assailed on the ground that its folios
were paged with the letters A, B, C, etc., instead of with the letters "one," two," "three,"
etc. It was held that this way of numbering the pages of a will is in compliance with the
spirit of the law, inasmuch as either one of these methods indicates the correlation of the
pages and serves to prevent the abstraction of any of them. In the course of the decision,
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we said: "It might be said that the object of the law in requiring that the paging be made
in letters is to make falsification more difficult, but it should be noted that since all the
pages of the testament are signed at the margin by the testatrix and the witnesses, the
difficulty of forging the signatures in either case remains the same. In other words the
more or less degree of facility to imitate the writing of the letters A, B, C, etc., does not
make for the easiness to forge the signatures. And as in the present case there exists
the guaranty of the authenticity of the testament, consisting in the signatures on the left
margins of the testament and the paging thereof as declared in the attestation clause,
the holding of this court in Abangan vs. Abangan (40 Phil., 476), might as well be
repeated:
"The object of the solemnities surrounding the execution of wills is to close the
door against bad faith and fraud, to avoid substitution of wills and testaments and
to guaranty their truth and authenticity. Therefore the laws on this subject should
be interpreted in such a way as to attain these primordial ends. But, on the other
hand, also one must not lose sight of the fact that it is not the object of the law to
restrain and curtail the exercise of the right to make a will. So when an
interpretation whatsoever, that adds nothing but demands more requisites
entirely unnecessary, useless, and frustrative of the testator's last will, must be
disregarded."
In that case the testament was written on one page, and the attestation clause on
another. Neither one of these pages was numbered in any way, and it was held: "In a will
consisting of two sheets the first of which contains all the testamentary dispositions and
is signed at the bottom by the testator and three witnesses, and the second contains only
the attestation clause and is signed also at the bottom by the three witnesses it is not
necessary that both sheets be further signed on their margins by the testator and the
witnesses, or be paged."
This means that, according to the particular case, the emission of paging does not
necessarily render the testament invalid.
The law provides that the numbering of the pages should be in letters placed on the
upper part of the sheet, but if the paging should be placed in the lower part, would the
testament be void for this sole reason? We believe not. The law also provides that the
testator and the witnesses must sign the left margin of each of the sheets of the
testament; but if they should sign on the right margin, would this fact also annul the
testament? Evidently not. This court has already held in Avera vs. Garcia and
Rodriguez (42 Phi., 145):
121
 "It is true that the statute says that the testator and the instrumental witnesses
shall sign their names on the left margin of each and every page; and it is
undeniable that the general doctrine is to the effect that all statutory requirements
as to the execution of wills must be fully complied with. The same execution for
wills must be fully complied with. The same doctrine is also deducible from cases
heretofore decided by this court."
"Still some details at time creep into legislative enactments which are so trivial
that it would be absurd to suppose that the Legislature could have attached any
decisive importance to them. The provision to the effect that the signatures of the
testator and witnesses shall be written on the left margin of each page — rather
than on the margin — seems to be of this character. So far as concerns the
authentication of the will, and of every part thereof, it can make no possible
difference whether the names appear on the left or on the right margin, provided
they are on one or the other. In Craig vs. Tatlonghari (G. R. No. 12558, decided
March 23, 1918, not reported), this court declared a will void which was totally
lacking in the signatures required to be written on its several pages; and in the
case of Re Estate of Saguinsin (41 Phil., 875) a will was likewise declared void
which contained the necessary signatures on the margin of each leaf (folio), but
not in the margin of each page containing written matter."
We do not desire to intimate that the numbering in letters is a requisite of no importance.
But since its principal object is to give the correlation of the pages, we hold that his object
may be attained by writing one, two, three, etc., as well as by writing A, B, C, etc.
We see no reason why the same rule should not be applied where the paging is in Arabic
numerals, instead of in letters, as in the inventory in question. So that, adhering to the
view taken by this court in the case of Abangan vs. Abangan, and followed in Aldava vs.
Roque, with regard to the appreciation of the solemnities of a will, we find that the
judgement appealed from should be, as is hereby, affirmed with the costs against the
appellants. So ordered.
DIGEST: UNSON VS. ABELLA
FACTS:
Doña Josefa Zalamea y Abella, single, 60 years old, executed her last will and
testament with an attached inventory of her properties, in the presence of three
witnesses, who signed with her all the pages of said documents. The testatrix died on the
6 January 1921. The executor appointed in the will, Pedro Unson, filed in the CFI of
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Laguna on 19 January 1921 an application for the probate of the will and the issuance of
the proper letters of administration in his favor.
Opposition was presented by appellants Antonio Abella, Ignacia Abella, Avicencia
Abella, and Santiago Vito, alleging that the supposed will of the Zalamea was not
executed in conformity with the provinces of the law, for it was not paged correlatively in
letters, nor was there any attestation clause in it, nor was it signed by the testatrix and
the witnesses in the presence of each other.
Trial court overruled the opposition and ordered the probate of the will and the
inventory, holding that both documents contained the true and last will of the deceased
Josefa Zalamea. Oppositors appealed and assigned three errors:
1. The court below erred in the finding to the effect that the will of the Josefa Zalamea,
was executed with all the solemnities required by the law.
2. The court below erred in admitting the will to probate notwithstanding the omission
of the proponent to produce one of the attesting witnesses.
3. The court below erred in the probate of the inventory, that it has no attestation
clause, and its paging is made in Arabic numerals and not in letters (main issue,
Art.827).
ISSUE: WON the will is void.
HELD:
(NO
1. The appellants intimate that one of the pages of the will was not signed by the
testatrix, nor by the witnesses on the day of the execution of the will (19 July 1918).
However, the attesting witnesses, Eugenio Zalamea and Gonzalo Abaya, clearly testify
that together with the other witness to the will, Pedro de Jesus, they did sign each and
every page of the will and of the inventory in the presence of each other and of the
testatrix, as the latter did sign all the pages of the will and of the inventory in their
presence.
2. The non-production of the attesting witness, Pedro de Jesus, does not render void the
decree of the court a quo, allowing the probate.
In the case of Avera vs. Garcia and Rodriguez: "while it is undoubtedly true that
an uncontested will may be proved by the testimony of only one of the three attesting
122
witnesses, nevertheless in Cabang vs. Delfinado, this court declared after an elaborate
examination of the American and English authorities that when a contest is instituted, all
of the attesting witnesses must be examined, if alive and within reach of the process of
the court.” However, this point was not raised by appellant in the lower court thus this
question cannot now be raised for the first time in this court.
Moreover in Cabang vs. Delfinado the general rule is that, where opposition is
made to the probate of a will, the attesting witnesses must be produced. But there are
exceptions: when a witness is dead, or cannot be served with process of the court, or his
reputation for truth has been questioned or he appears hostile to the cause of the
proponent. In such cases, the will may be admitted to probate without the testimony of
said witness, if upon the other proofs, the court is satisfied that the will has been duly
executed.
3. In the third paragraph of the will and at the bottom of said will, the testatrix Josefa
Zalamea says:
In witness whereof, I sign this will composed of ten folios including the page
containing the signatures and the attestation of the witnesses; I have likewise
signed the inventory attached to this will composed of ten folios in the presence of
Messrs. Gonzalo Abaya, Eugenio Zalamea, Pedro de Jesus, in this municipality of
Pagsanjan, Laguna, Philippine Islands, this 19th of July, 1918.
And the attestation clause is as follows:
The foregoing will composed of ten folios including this one whereunto we have
affixed our signatures, as well as the inventory of the properties of Doña Josefa
Zalamea y Abella, was read to Doña Josefa Zalamea y Abella, and the latter
affixed her name to the last, and each and every page of this will and inventory
composed of ten folios in our presence; and she declared this to be her last will
and testament and at her request we have affixed hereunto our respective
signatures in her presence and in the presence of each other as witnesses to the
will and the inventory this 19th of July, 1918, at Pagsanjan, Laguna, P.I.
(Sgd.) GONZALO ABAYA, EUGENIO ZALAMEA, PEDRO DE JESUS.
In view of the fact that the inventory in the will as an integral part of it, we find that
the foregoing attestation clause is in compliance with section 1 of Act No. 2645, which
requires this solemnity for the validity of a will, and makes unnecessary any other
attestation clause at the end of the inventory.
As to the paging of the will in Arabic numerals, instead of in letters, we adhere to
the doctrine announced in the case of Aldaba vs. Roque: the validity of the will was
assailed on the ground that its folios were paged with the letters A, B, C, etc., instead of
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
with the letters "one," two," "three," etc. The numbering of pages of a will is in compliance
with the spirit of the law ... to make falsification more difficult, but it should be noted that
since all the pages of the testament are signed at the margin by the testatrix and the
witnesses, the difficulty of forging the signatures in either case remains the same.”
Abangan vs. Abangan: "The object of the solemnities surrounding the execution
of wills is to close the door against bad faith and fraud, to avoid substitution of wills and
testaments and to guaranty their truth and authenticity. On the other hand, one must not
lose sight of the fact that it is not the object of the law to restrain and curtail the exercise
of the right to make a will. So when an interpretation whatsoever, that adds nothing but
demands more requisites entirely unnecessary, useless, and frustrative of the testator's
last will, must be disregarded."
The court sees no reason why the same rule in the cases of Abangan vs. Abangan
and Aldava vs. Roque, should not be applied, with regard to the appreciation of the
solemnities of a will. The judgement appealed is hereby affirmed with the costs against
the appellants. So ordered.
TESTATE ESTATE OF FELICIDAD ESGUERRA ALTO-YAP DECEASED. FAUSTO E.
GANVS. ILDEFONSO YAP, OPPOSITOR-APPELLEE.
G.R. NO. L-12190
AUGUST 30, 1958
BENGZON, J.:
On November 20, 1951, Felicidad Esguerra Alto Yap died of heart failure in the
University of Santo Tomas Hospital, leaving properties in Pulilan, Bulacan, and in the
City of Manila.
On March 17, 1952, Fausto E. Gan initiated them proceedings in the Manila court of first
instance with a petition for the probate of a holographic will allegedly executed by the
deceased, substantially in these words:
Nobyembre 5, 1951.
Ako, si Felicidad E. Alto-Yap, may asawa, at ganap na pag-iisip, ay
nagsasalaysay na ang aking kayamanan sa bayan ng Pulilan, Bulacan ay aking
ipinamamana sa aking mga kamag-anakang sumusunod:
123
 Vicente Esguerra, Sr. 5 Bahagi
.............................................
Fausto E. Gan 2 Bahagi
.........................................................
Rosario E. Gan 2 Bahagi
.........................................................
Filomena Alto 1 Bahagi
..........................................................
Beatriz Alto 1 Bahagi
..............................................................
At ang aking lahat ng ibang kayamanan sa Maynila at iba panglugar ay aking
ipinamamana sa aking asawang si Idelfonso D. Yap sa kondisyong siya'y
magpapagawa ng isang Health Center na nagkakahalaga ng di kukulangin sa
halagang P60,000.00 sa bayan ng Pulilan, Bulacan, na nakaukit ang aking
pangalang Felicidad Esguerra-Alto. At kung ito ay may kakulangan man ay
bahala na ang aking asawa ang magpuno upang matupad ang aking
kagustuhan.
(Lagda) Felicidad E. Alto-Yap.
Opposing the petition, her surviving husband Ildefonso Yap asserted that the deceased
had not left any will, nor executed any testament during her lifetime.
After hearing the parties and considering their evidence, the Hon. Ramon R. San Jose,
Judge,1 refused to probate the alleged will. A seventy-page motion for reconsideration
failed. Hence this appeal.
The will itself was not presented. Petitioner tried to establish its contents and due
execution by the statements in open court of Felina Esguerra, Primitivo Reyes, Socorro
Olarte and Rosario Gan Jimenez, whose testimonies may be summarized as follows:
Sometime in 1950 after her last trip abroad, Felicidad Esguerra mentioned to her first
cousin, Vicente Esguerra, her desire to make a will. She confided however that it would
be useless if her husband discovered or knew about it. Vicente consulted with Fausto E.
Gan, nephew of Felicidad, who was then preparing for the bar examinations. The latter
replied it could be done without any witness, provided the document was entirely in her
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
handwriting, signed and dated by her. Vicente Esguerra lost no time in transmitting the
information, and on the strength of it, in the morning of November 5, 1951, in her
residence at Juan Luna Street, Manila, Felicidad wrote, signed and dated a holographic
will substantially of the tenor above transcribed, in the presence of her niece, Felina
Esguerra (daughter of Vicente), who was invited to read it. In the afternoon of that day,
Felicidad was visited by a distant relative, Primitivo Reyes, and she allowed him to read
the will in the presence of Felina Esguerra, who again read it.
Nine days later, he had other visitors: Socorro Olarte a cousin, and Rosario Gan
Jimenez, a niece. To these she showed the will, again in the presence of Felina
Esguerra, who read it for the third time.
When on November 19, 1951, Felicidad was confined at the U.S.T. Hospital for her last
illness, she entrusted the said will, which was contained in a purse, to Felina Esguerra.
But a few hours later, Ildefonso Yap, her husband, asked Felina for the purse: and being
afraid of him by reason of his well-known violent temper, she delivered it to him.
Thereafter, in the same day, Ildefonso Yap returned the purse to Felina, only to demand
it the next day shortly before the death of Felicidad. Again, Felina handed it to him but
not before she had taken the purse to the toilet, opened it and read the will for the last
time.2
From the oppositor's proof it appears that Felicidad Esguerra had been suffering from
heart disease for several years before her death; that she had been treated by prominent
physicians, Dr. Agerico Sison, Dr. Agustin Liboro and others; that in May 1950 husband
and wife journeyed to the United States wherein for several weeks she was treated for
the disease; that thereafter she felt well and after visiting interesting places, the couple
returned to this country in August 1950. However, her ailment recurred, she suffered
several attacks, the most serious of which happened in the early morning of the first
Monday of November 1951 (Nov. 5). The whole household was surprised and alarmed,
even the teachers of the Harvardian Colleges occupying the lower floors and of by the
Yap spouses. Physician's help was hurriedly called, and Dr. Tanjuaquio arrived at about
8:00 a.m., found the patient hardly breathing, lying in bed, her head held high by her
husband. Injections and oxygen were administered. Following the doctor's advice the
patient stayed in bed, and did nothing the whole day, her husband and her personal
attendant, Mrs. Bantique, constantly at her side. These two persons swore that Mrs.
Felicidad Esguerra Yap made no will, and could have made no will on that day.
The trial judge refused to credit the petitioner's evidence for several reasons, the most
important of which were these: (a) if according to his evidence, the decedent wanted to
keep her will a secret, so that her husband would not know it, it is strange she executed it
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in the presence of Felina Esguerra, knowing as she did that witnesses were
unnecessary; (b) in the absence of a showing that Felina was a confidant of the
decedent it is hard to believe that the latter would have allowed the former to see and
read the will several times; (c) it is improbable that the decedent would have permitted
Primitivo Reyes, Rosario Gan Jimenez and Socorro Olarte to read her will, when she
precisely wanted its contents to remain a secret during her lifetime; (d) it is also
improbable that her purpose being to conceal the will from her husband she would carry
it around, even to the hospital, in her purse which could for one reason or another be
opened by her husband; (e) if it is true that the husband demanded the purse from Felina
in the U.S.T. Hospital and that the will was there, it is hard to believe that he returned it
without destroying the will, the theory of the petitioner being precisely that the will was
executed behind his back for fear he will destroy it.
In the face of these improbabilities, the trial judge had to accept the oppositor's evidence
that Felicidad did not and could not have executed such holographic will.
In this appeal, the major portion of appellant's brief discussed the testimony of the
oppositor and of his witnesses in a vigorous effort to discredit them. It appears that the
same arguments, or most of them, were presented in the motion to reconsider; but they
failed to induce the court a quo to change its mind. The oppositor's brief, on the other
hand, aptly answers the criticisms. We deem it unnecessary to go over the same
matters, because in our opinion the case should be decided not on the weakness of the
opposition but on the strength of the evidence of the petitioner, who has the burden of
proof.
The Spanish Civil Code permitted the execution of holographic wills along with other
forms. The Code of Civil Procedure (Act 190) approved August 7, 1901, adopted only
one form, thereby repealing the other forms, including holographic wills.
The New Civil Code effective in 1950 revived holographic wills in its arts. 810-814. "A
person may execute a holographic will which must be entirely written, dated, and signed
by the hand of the testator himself. It is subject to no other form and may be made in or
out of the Philippines, and need not be witnessed."
This is indeed a radical departure from the form and solemnities provided for wills under
Act 190, which for fifty years (from 1901 to 1950) required wills to be subscribed by the
testator and three credible witnesses in each and every page; such witnesses to attest to
the number of sheets used and to the fact that the testator signed in their presence and
that they signed in the presence of the testator and of each other.
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
The object of such requirements it has been said, is to close the door against bad faith
and fraud, to prevent substitution of wills, to guarantee their truth and authencity
(Abangan vs. Abangan, 40 Phil., 476) and to avoid those who have no right to succeed
the testator would succeed him and be benefited with the probate of same.
(Mendoza vs. Pilapil, 40 Off. Gaz., 1855). However, formal imperfections may be
brushed aside when authenticity of the instrument is duly proved. (Rodriguez vs Yap, 40
Off. Gaz. 1st Supp. No. 3 p. 194.)
Authenticity and due execution is the dominant requirements to be fulfilled when such will
is submitted to the courts for allowance. For that purpose the testimony of one of the
subscribing witnesses would be sufficient if there is no opposition (Sec. 5, Rule 77). If
there is, the three must testify, if available. (Cabang vs. Delfinado, 34 Phil., 291;
Tolentino vs. Francisco, 57 Phil., 742). From the testimony of such witnesses (and of
other additional witnesses) the court may form its opinion as to the genuineness and
authenticity of the testament, and the circumstances its due execution.
Now, in the matter of holographic wills, no such guaranties of truth and veracity are
demanded, since as stated, they need no witnesses; provided however, that they are
"entirely written, dated, and signed by the hand of the testator himself." The law, it is
reasonable to suppose, regards the document itself as material proof of authenticity, and
as its own safeguard, since it could at any time, be demonstrated to be — or not to be —
in the hands of the testator himself. "In the probate of a holographic will" says the New
Civil Code, "it shall be necessary that at least one witness who knows the handwriting
and signature of the testator explicitly declare that the will and the signature are in the
handwriting of the testator. If the will is contested, at least three such witnesses shall be
required. In the absence of any such witnesses, (familiar with decedent's handwriting)
and if the court deem it necessary, expert testimony may be resorted to."
The witnesses so presented do not need to have seen the execution of the holographic
will. They may be mistaken in their opinion of the handwriting, or they may deliberately lie
in affirming it is in the testator's hand. However, the oppositor may present other
witnesses who also know the testator's handwriting, or some expert witnesses, who after
comparing the will with other writings or letters of the deceased, have come to the
conclusion that such will has not been written by the hand of the deceased. (Sec. 50,
Rule 123). And the court, in view of such contradictory testimony may use its own visual
sense, and decide in the face of the document, whether the will submitted to it has
indeed been written by the testator.
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Obviously, when the will itself is not submitted, these means of opposition, and of
assessing the evidence are not available. And then the only guaranty of authenticity3 —
the testator's handwriting — has disappeared.
Therefore, the question presents itself, may a holographic will be probated upon the
testimony of witnesses who have allegedly seen it and who declare that it was in the
handwriting of the testator? How can the oppositor prove that such document was not in
the testator's handwriting? His witnesses who know testator's handwriting have not
examined it. His experts can not testify, because there is no way to compare the alleged
testament with other documents admittedly, or proven to be, in the testator's hand. The
oppositor will, therefore, be caught between the upper millstone of his lack of knowledge
of the will or the form thereof, and the nether millstone of his inability to prove its falsity.
Again the proponent's witnesses may be honest and truthful; but they may have been
shown a faked document, and having no interest to check the authenticity thereof have
taken no pains to examine and compare. Or they may be perjurers boldly testifying, in
the knowledge that none could convict them of perjury, because no one could prove that
they have not "been shown" a document which they believed was in the handwriting of
the deceased. Of course, the competency of such perjured witnesses to testify as to the
handwriting could be tested by exhibiting to them other writings sufficiently similar to
those written by the deceased; but what witness or lawyer would not foresee such a
move and prepare for it? His knowledge of the handwriting established, the witness (or
witnesses) could simply stick to his statement: he has seen and read a document which
he believed was in the deceased's handwriting. And the court and the oppositor would
practically be at the mercy of such witness (or witnesses) not only as to the execution,
but also as to the contents of the will. Does the law permit such a situation?
The Rules of Court, (Rule 77) approved in 1940 allow proof (and probate) of a lost or
destroyed will by secondary — evidence the testimony of witnesses, in lieu of the original
document. Yet such Rules could not have contemplated holographic wills which could
not then be validly made here. (See also Sec. 46, Rule 123; Art. 830-New Civil Code.)
Could Rule 77 be extended, by analogy, to holographic wills?
Spanish commentators agree that one of the greatest objections to the holographic will is
that it may be lost or stolen4 — an implied admission that such loss or theft renders it
useless..
This must be so, because the Civil Code requires it to be protocoled and presented to
the judge, (Art. 689) who shall subscribe it and require its identity to be established by
the three witnesses who depose that they have no reasonable doubt that the will was
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written by the testator (Art. 691). And if the judge considers that the identity of the will
has been proven he shall order that it be filed (Art. 693). All these, imply presentation of
the will itself. Art. 692 bears the same implication, to a greater degree. It requires that the
surviving spouse and the legitimate ascendants and descendants be summoned so that
they may make "any statement they may desire to submit with respect to the authenticity
of the will." As it is universally admitted that the holographic will is usually done by the
testator and by himself alone, to prevent others from knowing either its execution or its
contents, the above article 692 could not have the idea of simply permitting such
relatives to state whether they know of the will, but whether in the face of the document
itself they think the testator wrote it. Obviously, this they can't do unless the will itself is
presented to the Court and to them.
Undoubtedly, the intention of the law is to give the near relatives the choice of either
complying with the will if they think it authentic, or to oppose it, if they think it
spurious.5 Such purpose is frustrated when the document is not presented for their
examination. If it be argued that such choice is not essential, because anyway the
relatives may oppose, the answer is that their opposition will be at a distinct
disadvantage, and they have the right and privilege to comply with the will, if genuine, a
right which they should not be denied by withholding inspection thereof from them.
We find confirmation of these ideas--about exhibition of the document itself--in the
decision of the Supreme Court of Spain of June 5, 1925, which denied protocolization or
probate to a document containing testamentary dispositions in the handwriting of the
deceased, but apparently mutilated, the signature and some words having been torn
from it. Even in the face of allegations and testimonial evidence (which was
controverted), ascribing the mutilation to the opponents of the will. The aforesaid tribunal
declared that, in accordance with the provision of the Civil Code (Spanish) the will itself,
whole and unmutilated, must be presented; otherwise, it shall produce no effect.
Considerando que sentado lo anterior, y estableciendose en el parrafo segundo
del articulo 688 del Codigo civil, que para que sea valido el testamento olografo
debera estar escrito todo el y firmado por testador, con expression del año, mes
y dia en que se otorque, resulta evidente que para la validez y eficacia de esos
testamentos, no basta la demostracion mas o menos cumplida de que cuando
se otorgaron se Ilenaron todos esos requisitos, sino que de la expresada
redaccion el precepto legal, y por el tiempo en que el verbo se emplea,
se desprende la necesidad de que el documento se encuentre en dichas
condiciones en el momento de ser presentado a la Autoridad competente, para
au adveracion y protocolizacion; y como consecuencia ineludible de ello, forzoso
es affirmar que el de autos carece de validez y aficacia, por no estarfirmado por
el testador, cualquiera que sea la causa de la falta de firma, y sin perjuicio de las
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 acciones que puedan ejercitar los perjudicados, bien para pedir indemnizacion
por el perjuicio a la persona culpable, si la hubiere, o su castigo en via criminal si
procediere, por constituir dicha omision un defecto insubsanable . . . .
This holding aligns with the ideas on holographic wills in the Fuero Juzgo, admittedly the
basis of the Spanish Civil Code provisions on the matter.6
PRECEDENTES LEGALES--Fuero Juzgo, libro segundo, titulo V, ley 15--E
depues que los herederos e sus fijos ovieren esta manda, fasta ... annos
muestrenla al obispo de la tierra, o al juez fasta VI meses y el obispo o el juez
tomen otros tales tres escritos, que fuesen fechos por su mano daquel que fizo la
manda; e por aquellos escriptos, si semjara la letra de la manda, sea confirmada
la manda. E depues que todo esto fuere connoscido, el obispo o el juez, o otras
testimonios confirmen el escripto de la manda otra vez, y en esta manera vala la
manda. (Art. 689, Scaevola--Codigo Civil.)
(According to the Fuero above, the will itself must be compared with specimens of the
testators handwriting.)
All of which can only mean: the courts will not distribute the property of the deceased in
accordance with his holographic will, unless they are shown his handwriting and
signature.7
Parenthetically, it may be added that even the French Civil Law considers the loss of the
holographic will to be fatal. (Planiol y Ripert, Derecho Civil Frances, traduccion por Diaz
Cruz, 1946, Tomo V, page 555).
Taking all the above circumstances together, we reach the conclusion that the execution
and the contents of a lost or destroyed holographic will may not be proved by the bare
testimony of witnesses who have seen and/or read such will.8
Under the provisions of Art. 838 of the New Civil Code, we are empowered to adopt this
opinion as a Rule of Court for the allowance of such holographic wills. We hesitate,
however, to make this Rule decisive of this controversy, simultaneously with its
promulgation. Anyway, decision of the appeal may rest on the sufficiency, rather the
insufficiency, of the evidence presented by petitioner Fausto E. Gan.
At this point, before proceeding further, it might be convenient to explain why, unlike
holographic wills, ordinary wills may be proved by testimonial evidence when lost or
destroyed. The difference lies in the nature of the wills. In the first, the only guarantee of
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
authenticity is the handwriting itself; in the second, the testimony of the subscribing or
instrumental witnesses (and of the notary, now). The loss of the holographic will entails
the loss of the only medium of proof; if the ordinary will is lost, the subscribing witnesses
are available to authenticate.
In the case of ordinary wills, it is quite hard to convince three witnesses (four with the
notary) deliberately to lie. And then their lies could be checked and exposed, their
whereabouts and acts on the particular day, the likelihood that they would be called by
the testator, their intimacy with the testator, etc. And if they were intimates or trusted
friends of the testator they are not likely to end themselves to any fraudulent scheme to
distort his wishes. Last but not least, they can not receive anything on account of the will.
Whereas in the case of holographic wills, if oral testimony were admissible9 only one man
could engineer the fraud this way: after making a clever or passable imitation of the
handwriting and signature of the deceased, he may contrive to let three honest and
credible witnesses see and read the forgery; and the latter, having no interest, could
easily fall for it, and in court they would in all good faith affirm its genuineness and
authenticity. The will having been lost — the forger may have purposely destroyed it in
an "accident" — the oppositors have no way to expose the trick and the error, because
the document itself is not at hand. And considering that the holographic will may consist
of two or three pages, and only one of them need be signed, the substitution of the
unsigned pages, which may be the most important ones, may go undetected.
If testimonial evidence of holographic wills be permitted, one more objectionable feature
— feasibility of forgery — would be added to the several objections to this kind of wills
listed by Castan, Sanchez Roman and Valverde and other well-known Spanish
Commentators and teachers of Civil Law.10
One more fundamental difference: in the case of a lost will, the three subscribing
witnesses would be testifying to a fact which they saw, namely the act of the testator of
subscribing the will; whereas in the case of a lost holographic will, the witnesses would
testify as to their opinion of the handwriting which they allegedly saw, an opinion which
can not be tested in court, nor directly contradicted by the oppositors, because the
handwriting itself is not at hand.
Turning now to the evidence presented by the petitioner, we find ourselves sharing the
trial judge's disbelief. In addition to the dubious circumstances described in the appealed
decision, we find it hard to believe that the deceased should show her will precisely to
relatives who had received nothing from it: Socorro Olarte and Primitivo Reyes. These
could pester her into amending her will to give them a share, or threaten to reveal its
127
execution to her husband Ildefonso Yap. And this leads to another point: if she wanted
so much to conceal the will from her husband, why did she not entrust it to her
beneficiaries? Opportunity to do so was not lacking: for instance, her husband's trip to
Davao, a few days after the alleged execution of the will.
In fine, even if oral testimony were admissible to establish and probate a lost holographic
will, we think the evidence submitted by herein petitioner is so tainted with improbabilities
and inconsistencies that it fails to measure up to that "clear and distinct" proof required
by Rule 77, sec. 6.11
Wherefore, the rejection of the alleged will must be sustained.
Judgment affirmed, with costs against petitioner.
DIGEST: GAN VS. YAP
FACTS:
Felicidad Yap died of a heart failure, leaving properties in Pulilan, Bulacan, and in
Manila. Fausto E. Gan, her nephew, initiated the proceedings in the Manila CFI with a
petition for the probate of a holographic will allegedly executed by the deceased. Her
surviving husband Ildefonso Yap opposed the petition and asserted that the deceased
had not left any will, nor executed any testament during her lifetime.
During the probate, the alleged will itself was not presented. Petitioner tried to
establish its contents and due execution by the statements in open court of Felina
Esguerra, Primitivo Reyes, Socorro Olarte and Rosario Gan Jimenez who testified
Felicidad’s intention to make a will and allegedly saw it as well. According to the
witnesses, Felicidad did not want her husband to know about it, but she had made
known to her other relatives that she made a will.
After hearing the parties and considering their evidence, the Hon. Ramon R. San
Jose, Judge, refused to probate the alleged will on account of the discrepancies arising
from the facts. For one thing, it is strange that Felicidad made her will known to so many
of her relatives when she wanted to keep it a secret and she would not have carried it in
her purse in the hospital, knowing that her husband may have access to it.
In the face of these improbabilities, the trial judge had to accept the oppositor’s
evidence that Felicidad did not and could not have executed such holographic will.
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
ISSUE: May a holographic will be probated upon the testimony of witnesses who have
allegedly seen it and who declare that it was in the handwriting of the testator?
HELD:
The SC ruled that the execution and the contents of a lost or destroyed
holographic will may not be proved by the bare testimony of witnesses who have seen
and/or read such will.
The New Civil Code effective in 1950 revived holographic wills in its arts. 810-814.
“A person may execute a holographic will which must be entirely written, dated, and
signed by the hand of the testator himself. It is subject to no other form and may be
made in or out of the Philippines, and need not be witnessed.”
Holographic will is a radical departure from the form and solemnities provided for
wills. With regard to holographic wills, no such guaranties of truth and veracity are
demanded, since as stated, they need no witnesses; provided however, that they are
“entirely written, dated, and signed by the hand of the testator himself.”
“In the probate of a holographic will” says the New Civil Code, “it shall be
necessary that at least one witness who knows the handwriting and signature of the
testator explicitly declare that the will and the signature are in the handwriting of the
testator. If the will is contested, at least three such witnesses shall be required. In the
absence of any such witnesses, (familiar with decedent’s handwriting) and if the court
deem it necessary, expert testimony may be resorted to.”
The witnesses need not have seen the execution of the holographic will, but they
must be familiar with the decedent’s handwriting. Obviously, when the will itself is not
submitted, these means of opposition, and of assessing the evidence are not available.
And then the only guaranty of authenticity — the testator’s handwriting — has
disappeared.
LETICIA VALMONTE ORTEGA
VS. JOSEFINA C. VALMONTE
G.R. NO. 157451
DECEMBER 16, 2005
DECISION
PANGANIBAN, J.:
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The law favors the probate of a will. Upon those who oppose it rests the burden of
showing why it should not be allowed. In the present case, petitioner has failed to
discharge this burden satisfactorily. For this reason, the Court cannot attribute any
reversible error on the part of the appellate tribunal that allowed the probate of the will.
The Case
Before the Court is a Petition for Review1 under Rule 45 of the Rules of Court, seeking to
reverse and set aside the December 12, 2002 Decision2 and the March 7, 2003
Resolution3 of the Court of Appeals (CA) in CA-GR CV No. 44296. The assailed Decision
disposed as follows:
"WHEREFORE, the appeal is GRANTED, and the Decision appealed from
is REVERSED and SET ASIDE. In its place judgment is rendered approving and
allowing probate to the said last will and testament of Placido Valmonte and ordering the
issuance of letters testamentary to the petitioner Josefina Valmonte. Let this case be
remanded to the court a quo for further and concomitant proceedings."4
The assailed Resolution denied petitioner’s Motion for Reconsideration.
The Facts
The facts were summarized in the assailed Decision of the CA, as follows:
"x x x: Like so many others before him, Placido toiled and lived for a long time in the
United States until he finally reached retirement. In 1980, Placido finally came home to
stay in the Philippines, and he lived in the house and lot located at #9200 Catmon St.,
San Antonio Village, Makati, which he owned in common with his sister Ciriaca Valmonte
and titled in their names in TCT 123468. Two years after his arrival from the United
States and at the age of 80 he wed Josefina who was then 28 years old, in a ceremony
solemnized by Judge Perfecto Laguio, Jr. on February 5, 1982. But in a little more than
two years of wedded bliss, Placido died on October 8, 1984 of a cause written down
as COR PULMONALE.
"Placido executed a notarial last will and testament written in English and consisting of
two (2) pages, and dated June 15, 1983 but acknowledged only on August 9, 1983. The
first page contains the entire testamentary dispositions and a part of the attestation
clause, and was signed at the end or bottom of that page by the testator and on the left
hand margin by the three instrumental witnesses. The second page contains the
continuation of the attestation clause and the acknowledgment, and was signed by the
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witnesses at the end of the attestation clause and again on the left hand margin. It
provides in the body that:
‘LAST WILL AND TESTAMENT OF PLACIDO VALMONTE IN THE NAME OF THE
LORD AMEN:
‘I, PLACIDO VALMONTE, of legal age, married to Josefina Cabansag Valmonte, and a
resident of 9200 Catmon Street, Makati, Metro Manila, 83 years of age and being of
sound and disposing mind and memory, do hereby declare this to be my last will and
testament:
1. It is my will that I be buried in the Catholic Cemetery, under the auspices of the
Catholic Church in accordance with the rites and said Church and that a suitable
monument to be erected and provided my by executrix (wife) to perpetuate my memory
in the minds of my family and friends;
2. I give, devise and bequeath unto my loving wife, JOSEFINA C. VALMONTE, one half
(1/2) portion of the follow-described properties, which belongs to me as [co-owner]:
a. Lot 4-A, Block 13 described on plan Psd-28575, LRC, (GLRO), situated in Makati,
Metro Manila, described and covered by TCT No. 123468 of the Register of Deeds of
Pasig, Metro-Manila registered jointly as co-owners with my deceased sister (Ciriaca
Valmonte), having share and share alike;
b. 2-storey building standing on the above-described property, made of strong and mixed
materials used as my residence and my wife and located at No. 9200 Catmon Street,
Makati, Metro Manila also covered by Tax Declaration No. A-025-00482, Makati, Metro-
Manila, jointly in the name of my deceased sister, Ciriaca Valmonte and myself as co-
owners, share and share alike or equal co-owners thereof;
3. All the rest, residue and remainder of my real and personal properties, including my
savings account bank book in USA which is in the possession of my nephew, and all
others whatsoever and wherever found, I give, devise and bequeath to my said wife,
Josefina C. Valmonte;
4. I hereby appoint my wife, Josefina C. Valmonte as sole executrix of my last will and
testament, and it is my will that said executrix be exempt from filing a bond;
IN WITNESS WHEREOF, I have hereunto set my hand this 15th day of June 1983 in
Quezon City, Philippines.’
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"The allowance to probate of this will was opposed by Leticia on the grounds that:
1. Petitioner failed to allege all assets of the testator, especially those found in the USA;
2. Petitioner failed to state the names, ages, and residences of the heirs of the testator;
or to give them proper notice pursuant to law;
3. Will was not executed and attested as required by law and legal solemnities and
formalities were not complied with;
4. Testator was mentally incapable to make a will at the time of the alleged execution he
being in an advance sate of senility;
5. Will was executed under duress, or the influence of fear or threats;
6. Will was procured by undue and improper influence and pressure on the part of the
petitioner and/or her agents and/or assistants; and/or
7. Signature of testator was procured by fraud, or trick, and he did not intend that the
instrument should be his will at the time of affixing his signature thereto;’
and she also opposed the appointment as Executrix of Josefina alleging her want of
understanding and integrity.
"At the hearing, the petitioner Josefina testified and called as witnesses the notary public
Atty. Floro Sarmiento who prepared and notarized the will, and the instrumental
witnesses spouses Eugenio Gomez, Jr. and Feliza Gomez and Josie Collado. For the
opposition, the oppositor Leticia and her daughter Mary Jane Ortega testified.
"According to Josefina after her marriage with the testator they lived in her parents house
at Salingcob, Bacnotan, La Union but they came to Manila every month to get his
$366.00 monthly pension and stayed at the said Makati residence. There were times
though when to shave off on expenses, the testator would travel alone. And it was in one
of his travels by his lonesome self when the notarial will was made. The will was
witnessed by the spouses Eugenio and Feliza Gomez, who were their wedding
sponsors, and by Josie Collado. Josefina said she had no knowledge of the existence of
the last will and testament of her husband, but just serendipitously found it in his attache
case after his death. It was only then that she learned that the testator bequeathed to her
his properties and she was named the executrix in the said will. To her estimate, the
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
value of property both real and personal left by the testator is worth more or less
P100,000.00. Josefina declared too that the testator never suffered mental infirmity
because despite his old age he went alone to the market which is two to three kilometers
from their home cooked and cleaned the kitchen and sometimes if she could not
accompany him, even traveled to Manila alone to claim his monthly pension. Josefina
also asserts that her husband was in good health and that he was hospitalized only
because of a cold but which eventually resulted in his death.
"Notary Public Floro Sarmiento, the notary public who notarized the testator’s will,
testified that it was in the first week of June 1983 when the testator together with the
three witnesses of the will went to his house cum law office and requested him to
prepare his last will and testament. After the testator instructed him on the terms and
dispositions he wanted on the will, the notary public told them to come back on June 15,
1983 to give him time to prepare it. After he had prepared the will the notary public kept it
safely hidden and locked in his drawer. The testator and his witnesses returned on the
appointed date but the notary public was out of town so they were instructed by his wife
to come back on August 9, 1983, and which they did. Before the testator and his
witnesses signed the prepared will, the notary public explained to them each and every
term thereof in Ilocano, a dialect which the testator spoke and understood. He likewise
explained that though it appears that the will was signed by the testator and his
witnesses on June 15, 1983, the day when it should have been executed had he not
gone out of town, the formal execution was actually on August 9, 1983. He reasoned that
he no longer changed the typewritten date of June 15, 1983 because he did not like the
document to appear dirty. The notary public also testified that to his observation the
testator was physically and mentally capable at the time he affixed his signature on the
will.
"The attesting witnesses to the will corroborated the testimony of the notary public, and
testified that the testator went alone to the house of spouses Eugenio and Feliza Gomez
at GSIS Village, Quezon City and requested them to accompany him to the house of
Atty. Floro Sarmiento purposely for his intended will; that after giving his instructions to
Atty. Floro Sarmiento, they were told to return on June 15, 1983; that they returned on
June 15, 1983 for the execution of the will but were asked to come back instead on
August 9, 1983 because of the absence of the notary public; that the testator executed
the will in question in their presence while he was of sound and disposing mind and that
he was strong and in good health; that the contents of the will was explained by the
notary public in the Ilocano and Tagalog dialect and that all of them as witnesses
attested and signed the will in the presence of the testator and of each other. And that
during the execution, the testator’s wife, Josefina was not with them.
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"The oppositor Leticia declared that Josefina should not inherit alone because aside from "II.
her there are other children from the siblings of Placido who are just as entitled to inherit
from him. She attacked the mental capacity of the testator, declaring that at the time of Whether or not the signature of Placido Valmonte in the subject will was procured by
the execution of the notarial will the testator was already 83 years old and was no longer fraud or trickery, and that Placido Valmonte never intended that the instrument should be
of sound mind. She knew whereof she spoke because in 1983 Placido lived in the Makati his last will and testament.
residence and asked Leticia’s family to live with him and they took care of him. During
that time, the testator’s physical and mental condition showed deterioration, aberrations "III.
and senility. This was corroborated by her daughter Mary Jane Ortega for whom Placido
took a fancy and wanted to marry.
Whether or not Placido Valmonte has testamentary capacity at the time he allegedly
executed the subject will."8
"Sifting through the evidence, the court a quo held that [t]he evidence adduced, reduces
the opposition to two grounds, namely:
In short, petitioner assails the CA’s allowance of the probate of the will of Placido
Valmonte.
1. Non-compliance with the legal solemnities and formalities in the execution and
attestation of the will; and
This Court’s Ruling
2. Mental incapacity of the testator at the time of the execution of the will as he was then
The Petition has no merit.
in an advanced state of senility
Main Issue:
"It then found these grounds extant and proven, and accordingly disallowed probate."5
Probate of a Will
Ruling of the Court of Appeals
At the outset, we stress that only questions of law may be raised in a Petition for Review
Reversing the trial court, the appellate court admitted the will of Placido Valmonte to
under Section 1 of Rule 45 of the Rules of Court. As an exception, however, the
probate. The CA upheld the credibility of the notary public and the subscribing witnesses
evidence presented during the trial may be examined and the factual matters resolved by
who had acknowledged the due execution of the will. Moreover, it held that the testator
this Court when, as in the instant case, the findings of fact of the appellate court differ
had testamentary capacity at the time of the execution of the will. It added that his
from those of the trial court.9
"sexual exhibitionism and unhygienic, crude and impolite ways"6 did not make him a
person of unsound mind.
The fact that public policy favors the probate of a will does not necessarily mean that
every will presented for probate should be allowed. The law lays down the procedures
Hence, this Petition.7
and requisites that must be satisfied for the probate of a will.10 Verily, Article 839 of the
Civil Code states the instances when a will may be disallowed, as follows:
Issues
"Article 839. The will shall be disallowed in any of the following cases:
Petitioner raises the following issues for our consideration:
(1) If the formalities required by law have not been complied with;
"I.
(2) If the testator was insane, or otherwise mentally incapable of making a will, at the
Whether or not the findings of the probate court are entitled to great respect. time of its execution;

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(3) If it was executed through force or under duress, or the influence of fear, or threats;
(4) If it was procured by undue and improper pressure and influence, on the part of the
beneficiary or of some other person;
(5) If the signature of the testator was procured by fraud;
(6) If the testator acted by mistake or did not intend that the instrument he signed should
be his will at the time of affixing his signature thereto."
In the present case, petitioner assails the validity of Placido Valmonte’s will by imputing
fraud in its execution and challenging the testator’s state of mind at the time.
Existence of Fraud in the
Execution of a Will
Petitioner does not dispute the due observance of the formalities in the execution of the
will, but maintains that the circumstances surrounding it are indicative of the existence of
fraud. Particularly, she alleges that respondent, who is the testator’s wife and sole
beneficiary, conspired with the notary public and the three attesting witnesses in
deceiving Placido to sign it. Deception is allegedly reflected in the varying dates of the
execution and the attestation of the will.
Petitioner contends that it was "highly dubious for a woman at the prime of her young life
[to] almost immediately plunge into marriage with a man who [was] thrice her age x x x
and who happened to be [a] Fil-American pensionado,"11 thus casting doubt on the
intention of respondent in seeking the probate of the will. Moreover, it supposedly "defies
human reason, logic and common experience"12 for an old man with a severe
psychological condition to have willingly signed a last will and testament.
We are not convinced. Fraud "is a trick, secret device, false statement, or pretense, by
which the subject of it is cheated. It may be of such character that the testator is misled
or deceived as to the nature or contents of the document which he executes, or it may
relate to some extrinsic fact, in consequence of the deception regarding which the
testator is led to make a certain will which, but for the fraud, he would not have made."13
We stress that the party challenging the will bears the burden of proving the existence of
fraud at the time of its execution.14 The burden to show otherwise shifts to the proponent
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of the will only upon a showing of credible evidence of fraud.15 Unfortunately in this case,
other than the self-serving allegations of petitioner, no evidence of fraud was ever
presented.
It is a settled doctrine that the omission of some relatives does not affect the due
execution of a will.16 That the testator was tricked into signing it was not sufficiently
established by the fact that he had instituted his wife, who was more than fifty years his
junior, as the sole beneficiary; and disregarded petitioner and her family, who were the
ones who had taken "the cudgels of taking care of [the testator] in his twilight years."17
Moreover, as correctly ruled by the appellate court, the conflict between the dates
appearing on the will does not invalidate the document, "because the law does not even
require that a [notarial] will x x x be executed and acknowledged on the same
occasion."18 More important, the will must be subscribed by the testator, as well as by
three or more credible witnesses who must also attest to it in the presence of the testator
and of one another.19 Furthermore, the testator and the witnesses must acknowledge the
will before a notary public.20 In any event, we agree with the CA that "the variance in the
dates of the will as to its supposed execution and attestation was satisfactorily and
persuasively explained by the notary public and the instrumental witnesses."21
The pertinent transcript of stenographic notes taken on June 11, 1985, November 25,
1985, October 13, 1986, and October 21, 1987 -- as quoted by the CA -- are reproduced
respectively as follows:
"Atty. Floro Sarmiento:
Q You typed this document exhibit C, specifying the date June 15 when the testator and
his witnesses were supposed to be in your office?
A Yes sir.
Q On June 15, 1983, did the testator and his witnesses come to your house?
A They did as of agreement but unfortunately, I was out of town.
xxxxxxxxx
Q The document has been acknowledged on August 9, 1983 as per acknowledgement
appearing therein. Was this the actual date when the document was acknowledged?
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A Yes sir.
Q What about the date when the testator and the three witnesses affixed their respective
signature on the first and second pages of exhibit C?
A On that particular date when it was acknowledged, August 9, 1983.
Q Why did you not make the necessary correction on the date appearing on the body of
the document as well as the attestation clause?
A Because I do not like anymore to make some alterations so I put it in my own
handwriting August 9, 1983 on the acknowledgement. (tsn, June 11, 1985, pp. 8-10)
Eugenio Gomez:
Q It appears on the first page Mr. Witness that it is dated June 15, 1983, whereas in the
acknowledgement it is dated August 9, 1983, will you look at this document and tell us
this discrepancy in the date?
A We went to Atty. Sarmiento together with Placido Valmonte and the two witnesses;
that was first week of June and Atty. Sarmiento told us to return on the 15th of June but
when we returned, Atty. Sarmiento was not there.
Q When you did not find Atty. Sarmiento on June 15, 1983, did you again go back?
A We returned on the 9th of August and there we signed.
Q This August 9, 1983 where you said it is there where you signed, who were your
companions?
A The two witnesses, me and Placido Valmonte. (tsn, November 25, 1985, pp. 7-8)
Felisa Gomez on cross-examination:
Q Why did you have to go to the office of Atty. Floro Sarmiento, three times?
xxxxxxxxx
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
A The reason why we went there three times is that, the first week of June was out first
time. We went there to talk to Atty. Sarmiento and Placido Valmonte about the last will
and testament. After that what they have talked what will be placed in the testament,
what Atty. Sarmiento said was that he will go back on the 15th of June. When we
returned on June 15, Atty. Sarmiento was not there so we were not able to sign it, the
will. That is why, for the third time we went there on August 9 and that was the time we
affixed our signature. (tsn, October 13, 1986, pp. 4-6)
Josie Collado:
Q When you did not find Atty. Sarmiento in his house on June 15, 1983, what transpired?
A The wife of Atty. Sarmiento told us that we will be back on August 9, 1983.
Q And on August 9, 1983 did you go back to the house of Atty. Sarmiento?
A Yes, Sir.
Q For what purpose?
A Our purpose is just to sign the will.
Q Were you able to sign the will you mentioned?
A Yes sir. (tsn, October 21, 1987, pp. 4-5)"22
Notably, petitioner failed to substantiate her claim of a "grand conspiracy" in the
commission of a fraud. There was no showing that the witnesses of the proponent stood
to receive any benefit from the allowance of the will. The testimonies of the three
subscribing witnesses and the notary are credible evidence of its due execution.23 Their
testimony favoring it and the finding that it was executed in accordance with the
formalities required by law should be affirmed, absent any showing of ill motives.24
Capacity to Make a Will
In determining the capacity of the testator to make a will, the Civil Code gives the
following guidelines:
133
"Article 798. In order to make a will it is essential that the testator be of sound mind at the
time of its execution.
"Article 799. To be of sound mind, it is not necessary that the testator be in full
possession of all his reasoning faculties, or that his mind be wholly unbroken,
unimpaired, or shattered by disease, injury or other cause.
"It shall be sufficient if the testator was able at the time of making the will to know the
nature of the estate to be disposed of, the proper objects of his bounty, and the character
of the testamentary act.
"Article 800. The law presumes that every person is of sound mind, in the absence of
proof to the contrary.
"The burden of proof that the testator was not of sound mind at the time of making his
dispositions is on the person who opposes the probate of the will; but if the testator, one
month, or less, before making his will was publicly known to be insane, the person who
maintains the validity of the will must prove that the testator made it during a lucid
interval."
According to Article 799, the three things that the testator must have the ability to know
to be considered of sound mind are as follows: (1) the nature of the estate to be
disposed of, (2) the proper objects of the testator’s bounty, and (3) the character of the
testamentary act. Applying this test to the present case, we find that the appellate court
was correct in holding that Placido had testamentary capacity at the time of the execution
of his will.
It must be noted that despite his advanced age, he was still able to identify accurately the
kinds of property he owned, the extent of his shares in them and even their locations. As
regards the proper objects of his bounty, it was sufficient that he identified his wife as
sole beneficiary. As we have stated earlier, the omission of some relatives from the will
did not affect its formal validity. There being no showing of fraud in its execution, intent in
its disposition becomes irrelevant.
Worth reiterating in determining soundness of mind is Alsua-Betts v. CA,25 which held
thus:
"Between the highest degree of soundness of mind and memory which unquestionably
carries with it full testamentary capacity, and that degrees of mental aberration generally
known as insanity or idiocy, there are numberless degrees of mental capacity or
RULE 75 & 76- SPECIAL PROCEEDINGS CASES- ATTY. VALDEZ- RMC COLLEGE OF LAW- COMPILED BY: M.A.G.Y.
incapacity and while on one hand it has been held that mere weakness of mind, or partial
imbecility from disease of body, or from age, will not render a person incapable of
making a will; a weak or feebleminded person may make a valid will, provided he has
understanding and memory sufficient to enable him to know what he is about to do and
how or to whom he is disposing of his property. To constitute a sound and disposing
mind, it is not necessary that the mind be unbroken or unimpaired or unshattered by
disease or otherwise. It has been held that testamentary incapacity does not necessarily
require that a person shall actually be insane or of unsound mind."26
WHEREFORE, the Petition is DENIED, and the assailed Decision and Resolution of the
Court of Appeals are AFFIRMED. Costs against petitioner.
SO ORDERED.
DIGEST: ORTEGA VS. VALMONTE
FACTS:
Two years after the arrival of Placido from the United States and at the age of 80
he wed Josefina who was then 28 years old. But in a little more than two years of
wedded bliss, Placido died. Placido executed a notarial last will and testament written
in English and consisting of 2 pages, and dated 15 June 1983¸but acknowledged only on
9 August 1983. The allowance to probate of this will was opposed by Leticia, Placido’s
sister. According to the notary public who notarized the testator’s will, after the testator
instructed him on the terms and dispositions he wanted on the will, the notary public told
them to come back on 15 August 1983 to give him time to prepare. The testator and his
witnesses returned on the appointed date but the notary public was out of town so they
were instructed by his wife to come back on 9 August 1983. The formal execution was
actually on 9 August 1983. He reasoned he no longer changed the typewritten date of 15
June 1983 because he did not like the document to appear dirty.
Petitioner’s argument:
1. At the time of the execution of the notarial will Placido was already 83 years old
and was no longer of sound mind.
2. Josefina conspired with the notary public and the 3 attesting witnesses in
deceiving Placido to sign it. Deception is allegedly reflected in the varying dates of
the execution and the attestation of the will.
ISSUES:
134
 1. W/N Placido has testamentary capacity at the time he allegedly executed the
will.
2. W/N the signature of Placido in the will was procured by fraud or trickery.

HELD:
1. YES. Despite his advanced age, he was still able to identify accurately the kinds of
property he owned, the extent of his shares in them and even their location. As regards
the proper objects of his bounty, it was sufficient that he identified his wife as
sole beneficiary. The omission of some relatives from the will did not affect
its formal validity. There being no showing of fraud in its execution, intent in its
disposition becomes irrelevant.

2. NO. Fraud is a trick, secret devise, false statement, or pretense, by which the subject
of it is cheated. It may be of such character that the testator is misled or deceived as to
the nature or contents of the document which he executes, or it may relate to some
extrinsic fact, in consequence of the deception regarding which the testator is led to
make a certain will which, but for fraud, he would not have made.

The party challenging the will bears the burden of proving the existence of fraud at the
time of its execution. The burden to show otherwise shifts to the proponent of the will
only upon a showing of credible evidence of fraud.

Omission of some relatives does not affect the due execution of a will. Moreover, the
conflict between the dates appearing on the will does not invalidate the document,
“because the law does not even require that a notarial will be executed and
acknowledged on the same occasion. The variance in the dates of the will as to its
supposed execution and attestation was satisfactorily and persuasively explained by the
notary public and instrumental witnesses.

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