1

Inheritance
[G.R. No. L-33006. December 8, 1982.]
NICANOR NACAR, petitioner, vs. CLAUDIO A. NISTAL as Municipal Judge of Esperanza, Agusan
del Sur; PROVINCIAL SHERIFF of Agusan del Sur, ILDEFONSO JAPITANA and ANTONIO
DOLORICON, respondents.
Tranquilino O. Calo, Jr. for petitioner.
Ildefonso Japitana and Antonio Doloricon for respondents.
SYNOPSIS
To recover a sum of money, respondent Japitana filed a complaint entitled, "Claim against the Estate of the
Late Isabelo Nacar with Preliminary Attachment" against the petitioner before the Municipal Court of
Esperanza, Agusan del Sur. On the basis of the said complaint, the provincial sheriff was ordered to attach
seven (7) heads of cattle in possession of the petitioner, although actually only four (4) carabaos were
attached. Claiming ownership of the attached carabaos, Antonio Doloricon filed a complaint in intervention.
Petitioner's motion to dismiss, to dissolve writ of attachment and to order the return of the seized carabaos,
was, upon opposition of the private respondent, denied by the respondent court. Hence, the instant
recourse. Upon posting a P1,000.00 bond, a preliminary mandatory injunction was issued by the Supreme
Court.
The Supreme Court held that since respondent Japitana has no cause of action against the petitioner
because the debts were actually incurred by the late Isabelo Nacar, the respondent Court's denial of the
motion to dismiss the complaint and its issuance of a writ of attachment based thereon, are improper.
Petition granted. Preliminary mandatory injunction made permanent.
SYLLABUS
1.REMEDIAL LAW; ACTIONS; MOTION TO DISMISS; LACK OF CAUSE OF ACTION; CASE AT BAR. It is
patent from the portions of the complaint earlier cited that the allegations are not only vague and
ambiguous but downright misleading. The second paragraph of the body of the complaint states that the
defendant (herein petitioner Nicanor Nacar) at various dates since the year 1968 incurred debts to the
plaintiff in the total sum of P2,791.00. And yet, in the subsequent paragraphs, one clearly gathers that the
debts were actually incurred by the late Isabelo Nacar, who died several months before the filing of the
complaint. The complaint which the respondent judge reads as one for the collection of a sum of money
and all the paragraphs of which are incidentally unnumbered, expressly states as a material averment: . . .
That plaintiff herein file (sic) a claim against the estate of the late Isabelo Nacar to recover the
aforementioned sum of 12,791.00; . . . Under the circumstances of this case, respondent Japitana has no
cause of action against petitioner Nacar. Although respondent Japitana may have a legal right to recover an
indebtedness due him, petitioner Nicanor Nacar has no correlative legal duty to pay the debt for the simple
reason that there is nothing in the complaint to show that he incurred the debt or had anything to do wish
the creation of the liability. As far as the debt is concerned, there is no allegation or showing that the
petitioner had acted in violation of Mr. Japitana's rights with consequential injury or damage to the latter as
would create a cause of action against the former. The respondent court's reason for not dismissing the
case is contrary to applicable precedents on the matter. We ruled in Mathay v. Consolidated Bank and Trust
Company (58 SCRA 559): "Section I, Rule 16 of the Rules of Court, explicitly requires that the sufficiency of
the complaint must be tested exclusively on the basis of the complaint itself and no other should be
considered when the ground for motion to dismiss that the complaint states no cause of action. Pursuant
thereto this Court has ruled that: 'As a rule the sufficiency of the complaint, when challenged in a motion to
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dismiss, must be determined exclusively on the basis of the facts alleged therein.' "(Cases cited) Hence, it
was error for the respondent court not to dismiss the case simply because respondent Doloricon filed the
complaint for intervention alleging that he owned the carabaos.
2.ID.; ID.; ID.; ID.; ENFORCEMENT OR DEFENSE OF RIGHTS PROVIDED FOR IN THE PROCEDURAL
RULES. Moreover, even assuming that respondent Japitana had a legal right to the carabaos which were
in the possession of petitioner Nacar, the proper procedure would not be to file an action for the recovery
of the outstanding debts of the late Isabelo Nacar against his stepfather, the petitioner Nacar as defendant.
As we said in Maspil v. Romero (61 SCRA 197): "Appropriate actions for the enforcement or defense of
rights must be taken in accordance with procedural rules and cannot be left to the whims or caprices of
litigants. It cannot even be left to the untrammeled discretion of the courts of justice without sacrificing
uniformity and equality in the application and effectivity thereof."
VASQUEZ, J., concurring:
1.REMEDIAL LAW; SPECIAL PROCEEDING; CLAIMS AGAINST ESTATE; ACTION FOR RECOVERY OF MONEY
SHOULD BE FILED IN ADMINISTRATION PROCEEDINGS. The filing of an ordinary action to recover
money claim is not allowed in any court. Even if settlement proceedings had been taken to settle the estate
of Isabelo Nacar, the suit to recover the claim of the private respondents may not be filed against the
administrator or executor of his estate. This is expressly provided for in Section 1 of Rule 87 of the Rules of
Court, as follows: "No action upon claim for the recovery of money or debt or interest thereon shall be
commenced against the executor or administrator; . . . ." The claim of private respondents, being one
arising from a contract, may be pursued only by filing the same in the administration proceedings that may
be taken to settle the estate of the deceased Isabelo Nacar. If such a proceeding is instituted and the
subject claim is not filed therein within the period prescribed, the same shall be deemed "barred forever."
(Sec. 5, Rule 86, Rules of Court). Even if this action were commenced during the lifetime of Isabelo Nacar,
the same shall have to be dismissed, and the claim prosecuted in the proper administration proceedings
(Sec. 21, Rule 3, Ibid.).
2.ID.; ID.; ID.; ID.; MUNICIPAL COURT NOT VESTED WITH PROBATE JURISDICTION. It would seem
that the main purpose of the private respondents in filing Civil Case No. 65 was to attach the seven
carabaos owned by Isabelo Nacar. A case had to be filed in order to justify the issuance of a writ of
attachment. Unfortunately, said remedy may not be allowed. The carabaos, if really owned by Isabelo
Nacar, pertained to his estate upon his death. The claim of the private respondents may only be satisfied
by a voluntary act on the part of the heirs of Isabelo Nacar, or pursued in the appropriate settlement
proceedings. A municipal court may not entertain such a proceeding, it not being vested, under the law
then in force, with probate jurisdiction.
D E C I S I O N
GUTIERREZ, JR., J p:
Nicanor Nacar filed this petition for certiorari, prohibition, and mandamus with preliminary injunction to
annul an order of the respondent judge of the municipal court of Esperanza, Agusan del Sur directing the
attachment of seven (7) carabaos, to effect the return of four (4) carabaos seized under the questioned
order, and to stop the respondent judge from further proceeding in Civil Case No. 65.
Respondent Ildefonso Japitana filed the complaint in Civil Case No. 65 and entitled it "Claim Against the
Estate of the Late Isabelo Nacar With Preliminary Attachment:" On the basis of this complaint, including an
allegation "that defendant are (sic) about to remove and dispose the above-named property (seven
carabaos) with intent to defraud plaintiff herein", and considering that Mr. Japitana had given security
according to the Rules of Court, Judge Nistal issued the order commanding the provincial sheriff to attach
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the seven (7) heads of cattle in the possession of petitioner Nicanor Nacar. Actually only four (4) carabaos
were attached because three (3) carabaos had earlier been slaughtered during the rites preceding the
burial of the late Isabelo Nacar.
Nicanor Nacar filed a motion to dismiss, to dissolve writ of preliminary attachment, and to order the return
of the carabaos. Private respondent Japitana filed an opposition to this motion while intervenor Antonio
Doloricon filed a complaint in intervention asserting that he was the owner of the attached carabaos and
that the certificates of ownership of large cattle were in his name.
The respondent Judge denied the motion to dismiss prompting Mr. Nacar to come to the Supreme Court.
In a resolution dated January 12, 1971, this Court, upon the posting of a bond in the amount of P1,000.00,
directed the issuance of a preliminary mandatory injunction. The respondents were enjoined from further
enforcing the writ of attachment and to return the seized carabaos. The judge was restrained from further
proceeding with Civil Case No. 65.
We find the petition meritorious.
The pertinent portions of the complaint filed by Mr. Japitana with the municipal court read as follows:
"ILDEFONSO JAPITANCivil Case No. 65
Plaintiff,FOR:
Versus CLAIM AGAINST THE ESTATE
NICANOR NACAROF THE LATE ISABELO NACAR
Defendant.WITH PRELIMINARY ATTACHMENT
x-----------------------x
C O M P L A I N T
COMES NOW the undersigned plaintiff and before this Honorable Court, respectfully avers:
xxx xxx xxx
"That at various dates since the year 1968, the defendant have (sic) incurred indebtedness to the plaintiff
in the total sum of TWO THOUSAND SEVEN HUNDRED NINETY ONE (P2,791.00) PESOS, which said
amount had long been overdue for payment, and which the defendant up to this date have (sic) not been
able to pay, despite repeated demands from the plaintiff;.
"That the defendant Isabelo Nacar died last April, 1970 leaving among other things personal property
consisting seven (7) heads of carabaos now in the possession of the defendant Nicanor Nacar;
"That plaintiff herein file a claim against the estate of the late Isabelo Nacar to recover the aforementioned
sum of P2,791.99;

"That defendant are (sic) about to remove and dispose the above mentioned property with intent to
defraud plaintiff herein;
"That plaintiff is willing to put up a bond for the issuance of a preliminary attachment in an amount to be
fixed by the Court, not exceeding the sum of P2,791.00 which is the plaintiff's claim herein;
"WHEREFORE, it is respectfully prayed that pending the hearing of this case, a writ of preliminary
attachment be issued against the properties of the defendant to serve as security for the payment or
satisfaction of any judgment that may be recovered herein; and that after due hearing on the principal
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against the defendant for the sum of P2,791.00 with legal interest from September 15, 1970 plus costs of
this suit." (Annex "A", p. 7 rollo).
In his motion to dismiss, the petitioner raised the issue of lack of jurisdiction and absence of a cause of
action. Mr. Nacar averred that the indebtedness mentioned in the complaint was alleged to have been
incurred by the late Isabelo Nacar and not by Nicanor Nacar. There was, therefore, no cause of action
against him. The petitioner also stated that a municipal court has no jurisdiction to entertain an action
involving a claim filed against the estate of a deceased person.
The same grounds have been raised in this petition. Mr. Nacar contends:
xxx xxx xxx
"9.That the respondent judge acted without jurisdiction. The municipal courts or inferior courts have NO
jurisdiction to settle the estate of deceased persons. The proper remedy is for the creditor to file the proper
proceedings in the court of first instance and file the corresponding claim. But assuming without admitting
that the respondent judge had jurisdiction, it is very patent that he committed a very grave abuse of
discretion and totally disregarded the provisions of the Rules of Court and decisions of this honorable Court
when he issued an ex-parte writ of preliminary attachment, when there is no showing that the plaintiff
therein has a sufficient cause of action, that there is no other security for the claim sought to be enforced
by the plaintiff; or that the amount claimed in the action is as much as the sum for which the order is
prayed for above all legal counterclaims; There was no bond to answer for whatever damages that herein
petitioner may suffer; (Rollo, pp. 3-4).
xxx xxx xxx
The respondent judge tried to avoid the consequences of the issues raised in the motion to dismiss by
stating that although the title of the complaint styled it a claim against the estate of the late Isabelo Nacar,
the allegations showed that the nature of the action was really for the recovery of an indebtedness in the
amount of P2,791.99.
The rule cited by the judge is correctly stated but it is hardly relevant to the contents of the complaint filed
by Mr. Japitana.
It is patent from the portions of the complaint earlier cited that the allegations are not only vague and
ambiguous but downright misleading. The second paragraph of the body of the complaint states that the
defendant (herein petitioner Nicanor Nacar) at various dates since the year 1968 incurred debts to the
plaintiff in the sum of P2,791.00. And yet, in the subsequent paragraphs, one clearly gathers that the debts
were actually incurred by the late Isabelo Nacar, who died several months before the filing of the
complaint. The complaint which the respondent judge reads as one for the collection of a sum of money
and all the paragraphs of which are incidentally unnumbered, expressly states as a material averment:
xxx xxx xxx
That plaintiff herein file (sic) a claim against the estate of the late Isabelo Nacar to recover the
aforementioned sum of P2,791.00;
xxx xxx xxx
Under the circumstances of this case, respondent Japitana has no cause of action against petitioner
Nacar. Mathay v. Consolidated Bank and Trust Company (58 SCRA 559) gives the elements of a valid cause
of action:
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"A cause of action is an act or omission of one party in violation of the legal right of the other. Its essential
elements are, namely: the existence of a legal right in the plaintiff, (2) a correlative legal duty in the
defendant, and (3) an act or omission of the defendant in violation of plaintiff's right with consequential
injury or damage to the plaintiff for which he may maintain an action for the recovery, damages or other
appropriate relief. (Ma-ao Sugar Central Co., Inc. vs. Barrios, et al., 79 Phil. 666, 667; Ramitere, et al. vs.
Montinola Vda. de Yulo, et al., L-19751, February 28, 1966, 16 SCRA 251, 255). On the other hand, Section
3 of Rule 6 of the Rules of Court provides that the complaint must state the ultimate facts constituting the
plaintiff's cause of action. Hence, where the complaint states ultimate facts that constitute the three
essential elements of a cause of action, the complaint states a cause of action; (Community Investment and
Finance Corp. vs. Garcia, 88 Phil. 215, 218) otherwise, the complaint must succumb to a motion to dismiss
on that ground."
Indeed, although respondent Japitana may have a legal right to recover an indebtedness due him,
petitioner Nicanor Nacar has no correlative legal duty to pay the debt for the simple reason that there is
nothing in the complaint to show that he incurred the debt or had anything to do with the creation of the
liability. As far as the debt is concerned, there is no allegation or showing that the petitioner had acted in
violation of Mr. Japitana's rights with consequential injury or damage to the latter as would create a cause
of action against the former.
It is also patent from the complaint that respondent Japitana filed the case against petitioner Nacar to
recover seven (7) heads of carabaos allegedly belonging to Isabelo Nacar which Japitana wanted to recover
from the possession of the petitioner to answer for the outstanding debt of the late Isabelo Nacar. This
matter, however, is only ancillary to the main action. The ancillary matter does not cure a fatal defect in the
complaint for the main action is for the recovery of an outstanding debt of the late Isabelo Nacar due
respondent Japitana, a cause of action about which petitioner Nacar has nothing to do.
In fact the fatal defect in the complaint was noticed by the respondent court when it advised respondent
Japitana to amend his complaint to conform with his evidence and from the court's admission that it was
inclined to dismiss the case were it not for the complaint in intervention of respondent Doloricon.
Respondent Doloricon filed his complaint for intervention on the ground that the four carabaos, subject of
the writ of attachment, were actually his carabaos. Thus, the respondent court in its Order denying the
petitioner's motion to dismiss, to dissolve writ of preliminary attachment and to order the return of the
carabaos said:
". . . Antonio Doloricon manifested before this Court that he is filing a third-party complaint alleging that he
is the true and lawful owner of the carabaos in questions.
"IN VIEW OF ALL THE FOREGOING, this Court for the interest of both parties will not for the meantime
dismiss this case. Antonio Doloricon is hereby given 10 days from receipt hereof within which to file his
third-party complaint. The plaintiff who in his opposition to defendant's motion to dismiss pray (sic) for the
custody of the carabaos. This Court further requires plaintiff to put up the additional bond of P1,000.00
after which the latter may be entitled of (sic) the custody of the carabaos subject of litigation pending final
termination of this case." (Rollo, pp. 18-19).
The respondent court's reason for not dismissing the case is contrary to applicable precedents on the
matter. We ruled in Mathay v. Consolidated Bank and Trust Company, supra:
"Section 1, Rule 16 of the Rules of Court, providing in part that:
"Within the time for pleading a motion to dismiss may be made on any of the following grounds; . . .'
"'(g)That the complaint states no cause of action. . . .'
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explicitly requires that the sufficiency of the complaint must be tested exclusively on the basis of the
complaint itself and no other should be considered when the ground for motion to dismiss is that the
complaint states no cause of action. Pursuant thereto this Court has ruled that:
"'As a rule the sufficiency of the complaint, when challenged in a motion to dismiss, must be determined
exclusively on the basis of the facts alleged therein.' (Uy Chao vs. De La Rama Steamship Co., Inc., L-
14495, September 29, 1962, 6 SCRA 69, 72. See also De Jesus, et al. vs. Belarmino, et al., Phil. 365, 371;
Dalandan, et al. vs. Julio, et al., L-19101, February 29, 1964, 10 SCRA 400; Remitere, et al. vs. Montinola
Vda. de Yulo, et al., L-19751, February 28, 1966, 16 SCRA 250, 254; Acuna vs. Batac Producers
Cooperative Marketing Association, Inc., et al., L-20338, June 30, 1967, 20 SCRA 526, 531.)
Hence, it was error for the respondent court not to dismiss the case simply because respondent Doloricon
filed the complaint for intervention alleging that he owned the carabaos.
Moreover, even assuming that respondent Japitana had a legal right to the carabaos which were in the
possession of petitioner Nacar, the proper procedure would not be to file an action for the recovery of the
outstanding debts of the late Isabelo Nacar against his stepfather, the petitioner Nacar as defendant. As we
said inMaspil v. Romero (61 SCRA 197):
"Appropriate actions for the enforcement or defense of rights must be taken in accordance with procedural
rules and cannot be left to the whims or caprices of litigants. It cannot even be left to the untrammeled
discretion of the courts of justice without sacrificing uniformity and equality in the application and effectivity
thereof."
Considering the foregoing, the respondent court's denial of the motion to dismiss the complaint and its
issuance of a writ of attachment based on the allegations of the complaint are improper. With this
conclusion, we find no need to discuss the other issue on whether or not the procedural rules on the
issuance of a writ of attachment were followed by the respondent court in issuing the subject writ of
attachment.

WHEREFORE, the petition is hereby granted. The preliminary mandatory injunction issued on January 13,
1971 is made permanent and the cash bond filed by the petitioner in connection therewith is ordered
returned to him.
SO ORDERED.

[G.R. No. L-15388. January 31, 1961.]
DORA PERKINS ANDERSON, petitioner-appellee, vs. IDONAH SLADE PERKINS, oppositor-appellant.
Ponce Enrile, S. Reyna, Montecillo & Belo for petitioner-appellee.
Lazaro A. Marquez for oppositor-appellant.
SYLLABUS
1.WILLS AND TESTAMENTS; EXECUTORS AND ADMINISTRATORS; SPECIAL ADMINISTRATORS; POWER
TO SELL NOT LIMITED TO PERISHABLE PROPERTY. Since Sec. 2, Rule 81, Rules of Court specifically
provides that "the special administrator may sell such perishable and other property as the court orders
sold," the power of the special administrator to sell is clearly not limited to "perishable" property.
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2.ID.; ID.; ID.; SALE MADE PRIOR TO LIQUIDATION OF CONJUGAL PARTNERSHIP PREMATURE. While
the law empowers the special administrator to sell certain personal property belonging to the estate, yet
until the issue of the ownership of the properties sought to be sold is heard and decided, and the conjugal
partnership liquidated, or at least, an agreement be reached with appellant as to which properties of the
conjugal partnership she would not mind being sold to preserve their value the sale would be premature.
D E C I S I O N
REYES, J.B.L., J p:
Appeal against an order of the Court of First Instance of Manila in Special Proceedings No. 29636
authorizing the special administrator of the testate estate of the late Eugene Arthur Perkins to sell at public
auction certain personal properties left by the deceased.
It appears that said special proceedings were commenced on May 10, 1956, by a petition presented by
Dora Perkins Anderson for the probate of the supposed last will and testament of the late Eugene Arthur
Perkins, who died in Manila on April 28, 1956 allegedly possessed of personal and real properties with a
probable value of P5,000,000. On the same date of the filing of the aforesaid petition, petitioner Dora
Perkins Anderson also filed an urgent petition for the appointment of Alfonso Ponce Enrile as special
administrator of the estate, and on the same day, the court issued an order appointing Alfonso Ponce Enrile
as such special administrator upon his posting of a bond in the amount of P50,600. On July 9, 1956, Idonah
Slade Perkins, surviving spouse of the deceased, entered an opposition to the probate of the will presented
by petitioner Dora Perkins Anderson. On September 28, 1956, the special administrator submitted an
inventory of all the assets, which have come to his knowledge as belonging to the deceased Eugene Arthur
Perkins at the time of his death.
About two years later, or on September 4, 1958, the special administrator submitted to the court a petition
seeking authority to sell, or give away to some charitable or educational institution or institutions, certain
personal effects left by the deceased, such as clothes, books, gadgets, electrical appliances, etc., which
were allegedly deteriorating both physically and in value, in order to avoid their further deterioration and to
save whatever value might be obtained in their disposition. When the motion was heard on September 25,
1958, the court required the administration to submit a specification of the properties sought to be sold,
and in compliance therewith, the special administrator, on October 21, 1958, submitted to the court, in
place of a specification, a copy of the inventory of the personal properties belonging to the estate with the
items sought to be sold marked with a check in red pencil, with the statement that said items were too
voluminous to enumerate.
On July 9, 1956, Idonah Slade Perkins filed an opposition to the proposed sale. Reasons for the opposition
were that (1) most of the properties sought to be sold were conjugal properties of herself and her
deceased husband; and (2) that unauthorized removals of fine pieces of furniture belonging to the estate
had been made.
The opposition notwithstanding, the lower court, on December 2, 1958, approved the proposed sale,
authorizing the Sheriff of Manila to conduct the same. Oppositor Idonah Slade Perkins moved to reconsider
this order on the grounds (1) that said order in effect authorized the special administrator to sell the entire
personal estate of the deceased, contrary to Rule 81, sec. 2, Rules of Court; (2) that said order was issued
without a showing that the goods and chattels sought to be sold were perishable, pursuant to Rule 81,
section 2, Rules of Court; (3) that the personality sought to be sold represented the lifetime savings and
collections of oppositor; (4) that there is evidence on record showing unauthorized withdrawals from the
properties of the estate, and the sale of the inventoried lot would prevent identification and recovery of the
articles removed; and (5) that there is also evidence showing oppositor's separate rights to a substantial
part of the personal estate.
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On February 23, 1959, the lower court denied the above motion for reconsideration. Whereupon oppositor
Idonah Slade Perkins appealed to this court.
Appellant first claims that the personal properties sought to be sold not being perishable, the special
administrator has no legal authority to sell them. This argument is untenable, because section 2, Rule 81,
of the Rules of Court, specifically provides that the special administrator "may sell such perishable and
other property as the court orders sold" which shows that the special administrator's power to sell is not
limited to "perishable" property only.
It is true that the function of a special administrator is only to collect and preserve the property of the
deceased until a regular administrator is appointed (sec. 2, Rule 81; De Gala vs. Gonzales, 53 Phil., 104;
Collins vs. Henry, 118 S. E. 729, 155 Ga. 886; Sqydelko vs. Smith's Estate, 244 M. W. 149, 259 Mich. 519).
But it is not alone the specific property of the estate which is to be preserved, but its value as well, as
shown by the legal provision for the sale by a special administrator of perishable property (Gao vs.Cascade
Silver Mines & Mills, et al., 213 P. 1092, 66 Mont. 488). It is in line with this general power of the special
administrator to preserve not only the property of the estate but also its value, that section 2, Rule 81, also
empowers such administrator to sell "other property as the court ordered sold."
There is, however, a serious obstacle to the proposed sale, namely, the vigorous opposition presented
thereto by the appellant, the surviving spouse of the deceased, on the ground that she is allegedly entitled
to a large portion of the personal properties in question, either because they were conjugal property of
herself and the deceased, or because they are her own exclusive, personal property. Indeed the records
show that up to the time the proposed sale was asked for and judicially approved, no proceedings had as
yet been taken, or even started, to segregate the alleged exclusive property of the oppositor-appellant from
the mass of the estate supposedly left by the deceased, or to liquidate the conjugal partnership property of
the oppositor-appellant and the deceased. Until, therefore, the issue of the ownership of the properties
sought to be sold is heard and decided, and the conjugal partnership liquidated; or, at least, an agreement
be reached with appellant as to which properties of the conjugal partnership she would not mind being sold
to preserve their value, the proposed sale is clearly premature. After all, most of the items sought to be
sold pieces of furniture, kitchen and dinner ware, electrical appliances, various gadgets, and Books
can easily be protected and preserved with proper care and storage measures in either or both of the two
residential houses (in Manila and in Baguio City) left by the deceased, so that no reasons of extreme
urgency justify the proposed sale at this time over the strong opposition and objection of oppositor-
appellant who may later be adjudged owner of a substantial portion of the personal estate in question.
The special administrator claims in his brief that the oppositor- appellant should have indicated the alleged
"fine furniture" which she did not want sold and that her refusal to do so is an indication of her
unmeritorious claim. But it does not appear that appellant was given a reasonable opportunity to point out
which items in the inventory she did not want sold. In fact, her opposition to the proposed sale and later
her motion for reconsideration to the order approving the same were overruled by the court without so
much as stating reasons why the grounds for her opposition were not well- founded; the records do not
even show that an inquiry was made as to the validity of the grounds of her opposition.
WHEREFORE, the lower court's order of December 2, 1958 authorizing the special administrator to sell
certain personal properties of the estate is set aside, with costs against the special administrator Alfonso
Ponce Enrile and petitioner-appellee Dora Perkins Anderson.
Paras, C.J., Bengzon, Bautista Angelo, Labrador; Concepcion, Barrera, Paredes and Dizon, JJ., concur.
Gutierrez David, J., took no part.

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Rights to the succession are transmitted from the moment of death
[G.R. No. 92436. July 26, 1991.]
MARIA VDA. DE REYES, EFREN REYES, ELVIRA REYES-TIMBOL, ERLINDA REYES-VALERIO,
ERNESTO REYES, ELIZABETH REYES, ALEX, RAFAEL II, EMELINA and EVELYN, all surnamed
REYES, represented by their mother, MARIA VDA. DE REYES, petitioners, vs. THE COURT OF
APPEALS AND SPOUSES DALMACIO GARDIOLA and ROSARIO MARTILLANO, respondents.
De Lara, De Lunas & Rosales for petitioners.
Santos, Pilapil & Associates for private respondents.
SYLLABUS
1.CIVIL LAW; SUCCESSION; ORAL PARTITION AMONG HEIRS, VALID AND BINDING; NO LAW REQUIRING
WRITTEN PARTITION AMONG HEIRS. The Court of Appeals correctly held that the partition made by the
children of Gavino Reyes in 1936, although oral, was valid and binding. There is no law that requires
partition among heirs to be in writing to be valid.
2.ID.; ID.; PARTITION; OBJECT OF REQUIREMENT THAT A PARTITION BE PUT IN PUBLIC DOCUMENT
AND REGISTERED. In Hernandez vs. Andal, this Court, interpreting Section 1 of Rule 74 of the Rules of
Court, held that the requirement that a partition be put in a public document and registered has for its
purpose the protection of creditors and at the same time the protection of the heirs themselves against
tardy claims. The object of registration is to serve as constructive notice to others.
3.ID.; ID.; ID.; HEIRS OF AN ESTATE MAY ENTER INTO AN AGREEMENT IN ANY MANNER AND UPON A
PLAN DIFFERENT FROM THOSE PROVIDED BY LAW WHERE NO RIGHTS OF CREDITORS ARE AFFECTED.
The intrinsic validity of partition not executed with the prescribed formalities does not come into play when
there are no creditors or the rights of creditors are not affected. Where no such rights are involved, it is
competent for the heirs of an estate to enter into an agreement for distribution in a manner and upon a
plan different from those provided by law. There is nothing in Section I, Rule 74 of the Rules of Court from
which it can be inferred that a writing or other formality is an essential requisite to the validity of the
partition.
4.ID.; ID.; REASON FOR THE VALIDITY OF ORAL PARTITION. Barcelona, et al. vs. Barcelona, et al., 100
Phil. 251 provides the reason why oral partition is valid and why it is not covered by the Statute of Frauds:
partition among heirs or renunciation of an inheritance by some of them is not exactly a conveyance of real
property for the reason that it does not involve transfer of property from one to the other, but rather a
confirmation or ratification of title or right of property by the heir renouncing in favor of another heir
accepting and receiving the inheritance.
5.ID.; ID.; RIGHTS TO SUCCESSION TRANSMITTED FROM THE MOMENT OF DEATH OF DECEDENT. The
rights to the succession are transmitted from the moment of death of the decedent. The estate of the
decedent would then be held in co-ownership by the heirs. In Ramirez vs. Bautista, this Court held that
every co-heir has the absolute ownership of his share in the community property and may alienate, assign,
or mortgage the same, except as to purely personal rights, but the effect of any such transfer is limited to
the portion which may be awarded to him upon the partition of the property.
6.ID.; ID.; ID.; ONLY SUCCESSIONAL RIGHTS RECEIVED MAY BE TRANSMITTED; SUCCESSIONAL RIGHTS
NOT RECEIVED CANNOT BE TRANSFERRED BY EXTRA-JUDICIAL SETTLEMENT NOR BY ERRONEOUS
ISSUANCE OF TRANSFER CERTIFICATE OF TITLE. Petitioners, as mere successors-in-interest of Rafael
Reyes, Jr., son of Rafael Reyes, Sr., can only acquire that which Rafael, Jr. could transmit to them upon his
10

death. The latter never became the owner of Lot No. 1-A-14 because it was sold by his father in 1943. The
issuance of TCT No. T-27257 in the name of Rafael Reyes, Jr., in so far as Lot No. 1-14-A is concerned, was
clearly erroneous because he never became its owner. An extrajudicial settlement does not create a right in
favor of an heir. As this Court stated in the Barcelona case, it is but a confirmation or ratification of title or
right to property. Thus, since he never had any title or right to Lot No. 1-14-A, the mere execution of the
settlement did not improve his condition, and the subsequent registration of the deed did not create any
right or vest any title over the property in favor of the petitioners as heirs of Rafael Reyes, Jr. The latter
cannot give them what he never had before. Nemo dare potest quod non habet.
7.ID.; PROPERTY; RECOVERY OF POSSESSION; ACTION BARRED BY LACHES. Petitioners' immediate
predecessor-in-interest, Rafael Reyes, Jr., never took any action against private respondents from the time
his father sold the lot to the latter. Neither did petitioners bring any action to recover from private
respondents the ownership and possession of the lot from the time Rafael Reyes, Jr. died. As categorically
admitted by petitioners in their complaint and amended complaint, it was only in or about September 1969
when, after the delivery of TCT No. 27257 by Candido Hebron to them, that they definitely discovered that
they were the owners of the property in question. And yet, despite full knowledge that private respondents
were in actual physical possession of the property, it was only about thirteen and one-half (131/2) years
later that they decided to file an action for recovery of possession. The original complaint was filed in the
trial court on 14 March 1983. There was then absolutely no basis for the trial court to place the burden on
private respondents to bring an action for reconveyance within four (4) years from their discovery of the
issuance of the transfer certificate of title in the name of Rafael Reyes, Jr.
D E C I S I O N
DAVIDE, JR., J p:
Assailed before us in this appeal by certiorari under Rule 45 of the Rules of Court is the decision of the
respondent Court of Appeals in C.A.-G.R. CV No. 11934, promulgated on 20 October 1989, 1 reversing the
decision of 1 October 1986 of Branch 21 (Imus, Cavite) of the Regional Trial Court of the Fourth Judicial
Region in Civil Case No. RTC-BCV-83-17 entitled Maria vda. de Reyes, et al. vs. Spouses Dalmacio Gardiola
and Rosario Martillano and Spouses Ricardo M. Gardiola and Emelita Gardiola, 2 and the resolution of 1
March 1990 denying the petitioner's motion for reconsideration.
As culled from both decisions and the pleadings of the parties, the following facts have been
preponderantly established:
During his lifetime, one Gavino Reyes owned a parcel of land of approximately 70 hectares, more or less,
located at Sangayad, Ulong-Tubig, Carmona, Cavite. He sought to bring said land under the operation of
the Torrens System of registration of property. Unfortunately, he died in 1921 without the title having been
issued to him. The application was prosecuted by his son, Marcelo Reyes, who was the administrator of his
property.
In 1936 the above property was surveyed and subdivided by Gavino's heirs (Exh. "6"). In the subdivision
plan, each resultant lot was earmarked, indicated for and assigned to a specific heir. It appears therein that
two lots, one of which is Lot No. 1-A-14 (Exh. "6-A"), were allotted to Rafael Reyes, Sr., one of Gavino's
children. Per testimony of Juan Poblete, the children thereafter secured tax declarations for their respective
shares.
In 1941, or about twenty (20) years after the death of Gavino, the original certificate of title for the whole
property OCT No. 255 was issued. It was, however, kept by Juan Poblete, son-inlaw of Marcelo Reyes,
who was by then already deceased. The heirs of Gavino were not aware of this fact.
11

On 3 December 1943, Rafael Reyes, Sr. sold a parcel of land with an area of 23,431 square meters, more
or less, to private respondent Dalmacio Gardiola (Exh. "5"). According to the vendee, this parcel
corresponds to Lot No. 1-A-14 of the subdivision plan aforestated. The deed of sale, however, did not
specifically mention Lot No. 1-A-14. The vendee immediately took possession of the property and started
paying the land taxes therein. Cdpr
In 1945 or thereabouts, Juan Poblete "revalidated" the original Certificate of Title. As reconstituted, the
new title is OCT (O-4358) RO-255 (Exhs. "4" to "4-A").
On 21 October 1967, when the heirs of Gavino Reyes executed a Deed of Extrajudicial Settlement of Estate
(Exh. "D") based on the aforestated subdivision plan (Exh. "6"), the lot that was intended for Rafael Reyes,
Sr., who was already deceased, was instead adjudicated to his only son and heir, Rafael Reyes, Jr. (the
predecessor-in-interest of the petitioners herein). Private respondent Rosario Martillano signed the deed in
representation of her mother, Marta Reyes, one of the children of Gavino Reyes.
As a result of the Extrajudicial Settlement, OCT RO-255 was cancelled and in lieu thereof, several transfer
certificates of title covering the subdivided lots were issued in the names of the respective adjudicatees.
One of them is TCT No. 27257 in the name of Rafael Reyes, Jr. covering Lot No. 1-A-14. The Transfer
Certificates of Title were, however, kept by one Candido Hebron. On 10 January 1969, some of the heirs of
Gavino Reyes filed a case of Annulment of Partition and Recovery of Possession before the Court of First
Instance of Cavite City, which was docketed therein as Civil Case No. 1267. One of the defendants in said
case is herein private respondent Rosario Martillano. The case was dismissed on 18 September 1969, but
Candido Hebron was ordered by the trial court to deliver to the heirs concerned all the transfer certificates
of title in his possession.3
After obtaining the Transfer Certificate of Title for Lot No. 1-A-14 from Hebron, pursuant to the aforesaid
order in Civil Case No. 1267, petitioners herein, as successors-in-interest of Rafael Reyes, Jr., filed on 14
March 1983 with the Regional Trial Court the above-mentioned Civil Case No. RTC-BCV-83-17 against
private respondents (defendants therein) for recovery of possession or, in the alternative, for
indemnification, accounting and damages. They allege therein that after "having definitely discovered that
they are the lawful owners of the property," (Lot No. 1-A-14), they, "including Rafael Reyes, Jr., during his
lifetime, made repeated demands to (sic) defendants to surrender the possession of and vacate the parcel
of land belonging to the former, but defendants refused to vacate and surrender the possession of the said
land to herein plaintiffs;" the last of the demands was allegedly made on 8 October 1982. They further
allege that they have been deprived by said defendants of the rightful possession and enjoyment of the
property since September 1969 which coincides with the date of the order in Civil Case No. 1267. 4 In
their answer, private respondents deny the material averments in the complaint and assert that they are
the owners of the lot in question, having bought the same from Rafael Reyes, Sr.; that the issuance of TCT
No. 27257 is null and void, for such sale was known to Rafael Reyes, Jr.; that they have been in possession
of the property and have been paying the land taxes thereon; and that petitioners are barred by
prescription and/or laches. 5

Petitioners amended their complaint on 21 March 1985 to implead as additional defendants the spouses
Ricardo M. Gardiola and Emelita Gardiola, on the basis of the following claims:
xxx xxx xxx
"9.Meanwhile, during the presentation of the defendants spouses Dalmacio Gardiola and Rosario
Martillano's evidence the former testified that they mortgaged the subject land to the Rural Bank of
Carmona Inc. For their failure to redeem the mortgage the same was foreclosed by the bank.
12

10.However, within the period of one (1 ) year from such foreclosure the questioned land was redeemed by
the original defendants' son in the person of Ricardo M. Gardiola, who was knowledgeable/aware of the
pendency of the above captioned case. The corresponding redemption was effected through a deed of
conveyance, . . ." 6
The prayer of the amended complaint now contains the alternative relief for indemnification for the
reasonable value of the property "in the event restitution of the property is no longer possible." 7
In its decision of 1 October 1986, 8 the trial court concluded that petitioners' "title over the subject
property is valid and regular and thus they are entitled to its possession and enjoyment," and accordingly
decided thus:
"WHEREFORE, the defendants or anyone acting for and in their behalf are hereby ordered to relinquish
possession or vacate the property in question which is covered by Transfer Certificate of Title No. T-27257
in favor of the plaintiffs.
All other claims and/or counterclaims of the parties relative to this case are dismissed for lack of proper
substantiation."
The conclusion of the trial court is based on its finding that (a) there is no evidence that the heirs of Gavino
Reyes entered into any written agreement of partition in 1936 based on the subdivision plan; (b) there is
no identity between Lot No. 1-14-A and the land sold to private respondents by Rafael Reyes, Sr., or
otherwise stated, the description of the latter as indicated in the deed of sale (Exh. "5") does not tally with
the description of the former; and (c) moreover:
"Granting, arguendo, that the sale made by Rafael Reyes, Sr. to the defendants covered the land in
question Lot No. 1-A-14 and that Transfer Certificate of Title No. T-27257 was obtained by means of
fraud, the claim of the defendants over the said property is already barred. Action for reconveyance
prescribes in four (4) years from the discovery thereof. If there was fraud, the defendant could have
discovered the same in 1967 when the partition was made in as much as defendant Rosario Martillano was
a party to that partition. Let us grant further that the issuance of Transfer Certificate of Title No. T-27257
to Rafael Reyes, Jr. created a constructive or implied trust in favor of the defendants, again, the claim of
the defendants is also barred. From 1967 to the filing of their answer (let us consider this as an action for
reconveyance) to this case sometime in July, 1983, a period of about sixteen (16) years had already
elapsed. Prescriptibility of an action for reconveyance based on implied or constructive trust is ten (10)
years.
The trial court further held that the continued possession by private respondents, which it found to have
started in 1943, did not ripen into ownership because at that time, the property was already registered,
hence it cannot be acquired by prescription or adverse possession. 9 Private respondents appealed the said
decision to the Court of Appeals which docketed the appeal as C.A.-G.R. CV No. 11934. In its decision of 20
October 1989, the respondent Court of Appeals formulated the issues before it as follows:
"I
Whether or not the lower court erred in declaring that the property of the late Gavino Reyes consisting of
70 hectares was partitioned only in 1967 by his grandchildren after discovery of the existence of OCT No.
255 and that no actual partition was made in 1936 by the decedent's children.
II
13

Whether or not the lower court erred in concluding that the parcel of land sold by the appellees'
predecessor-in-interest, the late Rafael Reyes, Sr. to appellant Dalmacio Gardiola was not the same parcel
of land under litigation." 10
and resolved such issues, thus:
"On the first issue, We believe that the lower court committed a reversible error when it declared that the
landed estate of the late Gavino Reyes was partitioned only in 1967 by the latter's grandchildren; and that
no actual partition was made in 1936 by the decedents' (sic) children. The evidence on record bears out the
existence of a subdivision plan (Exh. 6) which was not controverted nor denied by the appellees. In like
manner, the lower court itself recognized the fact that the property of the late Gavino Reyes consisting of
70 hectares was surveyed and subdivided in 1936 as evidenced by the said subdivision plan (Exh. 6). With
the existence of a subdivision plan, and from the uncontroverted testimony of appellants' witness, We can
only infer that at least an oral partition, which under the law is valid and binding, was entered into by the
heirs of Gavino Reyes regarding his properties in 1936. As held in a long line of decisions, extrajudicial
partition can be done orally, and the same would be valid if freely entered into (Belen v. Belen, 49 O.G.
997, March 1953). The reason for this is because a partition is not exactly a conveyance for the reason that
it does not involve transfer of property from one to the other but rather a confirmation by them of their
ownership of the property. It must also be remembered that when Gavino Reyes died on March 7, 1921, his
property was admittedly not yet covered by a torrens title, as it was only in 1941 when said properties were
brought into the application of the torrens system. With this factual milieu, it can also be concluded that his
heirs have indeed settled, subdivided and partitioned Gavino Reyes' landed estate without formal
requirements of Rule 74 of the Rules of Court when a parcel of land is covered by a torrens title. As told
earlier, the Subdivision Plan (Exh. 6) undisputedly showed on its face that the 70 hectares of land
belonging to the late Gavino Reyes was subdivided and partitioned by his children in 1936. On this score,
the partition of the said property even without the formal requirements under the rule is valid as held in the
case of Hernandez vs. Andal, 78 Phil. 176, which states:
xxx xxx xxx
Moreover, in the Deed of Sale dated December 3, 1943 (Exh. 5) executed by Rafael Reyes, Sr. in favor of
appellant Dalmacio Gardiola, the land sold therein was described as 'na aking minana sa aking ama.' This
alone would confirm the contention of the appellants that there was already an actual partition (at least an
oral partition) of the property of Gavino Reyes in 1936. As aforestated, the presence of the Subdivision Plan
(Exh. 6) is an (sic) evidence of such partition which appellees failed to controvert not to mention the fact
that the lower court itself recognized the existence of said plan, in the same manner that it concluded that
the property was already surveyed and actually subdivided in 1936 (page 3, pars. 3 and 4, Decision).
From the foregoing considerations it is evident that the Deed of Extrajudicial Settlement of Estate (Exh. D)
executed by the grandchildren of the late Gavino Reyes in 1967 is of no moment considering that the
property subject of the partition in the deed was already partitioned in 1936 by the children of Gavino
Reyes. It is for this reason that the lots supposedly inherited by the grandchildren named in the deed of
1967 were the same lots inherited and given to their respective fathers or mothers in 1936 while the land
was not yet covered by the torrens system. Hence, in the case of Rafael Reyes, Sr., the land inherited by
him was two (2) parcels of land known as Lots Nos. 1-A-3 and 1-A-14 described in the Subdivision plan of
1936 (Exh. 6), which were the same parcels of land allegedly inherited by Rafael Reyes, Jr. from Gavino
Reyes in representation of his father, pursuant to the Deed of Extrajudicial Settlement of Estate for which
TCT No. 27257 was issued.
Coming to the second issue, the lower court likewise erred when it concluded that the parcel of land sold by
appellee's predecessor-in-interest to appellant Dalmacio Gardiola was not the same parcel of land under
14

litigation. It must be pointed out that the identity of the parcel of land which the appellees sought to
recover from the appellants was never an issue in the lower court, because the litigants had already
conceded that the parcel identified as Lot No. 1-A-14 in TCT No. 27257 was the same parcel of land
identified as Cadastral Lot No. 1228 and 1235 described in Tax Declaration No. 4766. Despite this
admission, however, the lower court declared that 'as described in the deed of sale (Exh. 5), the land's
description does not tally with the description of Lot No. 1-A-14, the land in litigation.' As correctly pointed
out by the appellants however, the discrepancy in the description was due to the fact that the description
of the land sold in the Deed of Sale was expressed in layman's language whereas the description of Lot No.
1-A-14 in TCT No. 27257 was done in technical terms. This was so because, when Rafael Reyes, Sr. sold
the property in dispute to appellant Dalmaco Gardiola on December 3, 1943, the only evidence of title to
the land then available in so far as Rafael Reyes, Sr. was concerned was Tax Declaration No. 4766, because
at that time, neither he nor appellant Dalmacio Gardiola was aware of the existence of OCT No. 255 as in
fact TCT No. 27257 was issued only in 1967. Consequently, the land subject of the Deed of Sale was
described by the vendor in the manner as described in Tax Declaration No. 4766. However, the description
of the land appearing in the Deed of Sale (Exh. 5) was exactly the same land identified as Lot No. 1-A-14 in
the Subdivision Plan (Exh. 6) of 1936. Accordingly, the assumption of the lower court that 'if the land sold
by Rafael Reyes, Sr. was the one now in litigation, he could have easily indicated Lot No. 1-A-14' is bereft
of merit under the foregoing circumstances. Interestingly enough, the appellees never denied the identity
of the subject lot during the hearing at the lower court. What they were denying only was the sale made by
Rafael Reyes, Sr. to appellant Dalmacio Gardiola which does not hold true because of the document
denominated as Deed of Sale (Exh. 5)." 11

It concluded that the trial court erred when it ordered the private respondents or anyone acting in their
behalf to relinquish the possession or vacate the property in question. It thus decreed:
"WHEREFORE, the appealed Judgment is ordered REVERSED and SET ASIDE and a new one is rendered
declaring appellants to be the lawful owners of the lot identified as Lot No. 1-A-14 in TCT No. 27257. No
costs." 12
Their motion to reconsider the above decision having been denied by the Court of Appeals in its resolution
of 1 March 1990, 13 petitioners filed the instant petition on 6 April 1990 after having obtained an extension
of time within which to file it.
The petition does not implead original new defendants Ricardo Gardiola and Emelita Gardiola.
As ground for their plea for the review of the decision of the Court of Appeals, petitioners allege that said
court has decided questions of substance in a way not in accord with law or applicable jurisprudence when
it held that "the deed of extrajudicial settlement of estate (Exh. "D") executed by the grandchildren of the
late Gavino Reyes in 1967 is of no moment considering that the property subject of the partition was
already partitioned in 1938 by the children of Gavino Reyes." In support thereof, they claim that (a) TCT
No. 27257 covers two parcels of land; the lot described in paragraph 1 thereof is owned by petitioners and
that ownership was confirmed by this Court in G.R. No. 79882, hence, the Court of Appeals should have
affirmed the decision of the trial court; (b) private respondent Rosario Martillano was a party to the
extrajudicial settlement of estate which was duly registered in the Registry of Deeds in 1967; said
registration is the operative act that gives validity to the transfer or creates a lien upon the land and also
constituted constructive notice to the whole world. The court cannot disregard the binding effect thereof.
Finally, the pronouncement of the Court of Appeals that private respondents are the lawful owners of the
lot in question "militates against the indefeasible and incontrovertible character of the torrens title," 14 and
15

allows reconveyance which is not tenable since the action therefor had already prescribed, as stated in the
decision of the trial court.
In the resolution of 7 May 1990, We required respondents to comment on the petition. But even before it
could do so, petitioner, without obtaining prior leave of the Court, filed on 29 May 1990 a so-called
Supplemental Arguments in Support of The Petition For Review On Certiorari 15 wherein they assert,
among others, that: (a) the findings of facts of respondent Court are contrary to those of the trial court and
appear to be contradicted by the evidence on record thus calling for the review by this Court; 16 (b) it also
committed misapprehension of the facts in this case and its findings are based on speculation, conjecture
and surmises; (c) private respondents' attack on petitioners' title is a collateral attack which is not allowed;
even if it is allowed, the same had already prescribed and is now barred. prcd
It was only on 15 June 1990 that private respondents filed their Comment. 17 We required petitioners to
reply thereto, which they complied with on 8 August 1990. 18 A rejoinder was filed by private respondents
on 29 August 1990.
We gave due course to the petition on 19 September 1990 and required the parties to submit
simultaneously their respective memoranda which they complied with.
Attached as Annex "A" to private respondent's Memorandum, which was filed on 10 December 1990, is the
Resolution of this Court (Third Division) of 20 August 1990 in G.R. No. 92811 entitled Spouses Artemio
Durumpili and Angustia Reyes vs. The Court of Appeals and Spouses Dalmacio Gardiola and Rosario
Martillano, which also involves the property of Gavino Reyes, the partition thereof among his children in
1936, and the extrajudicial settlement in 1967.
In said resolution, this Court held:
". . . The partition made in 1936, although oral, was valid. The requirement in Article 1358 of the Civil Code
that acts which have for their object the creation, transmission, modification or extinguishment of real
rights over immovable property must appear in a public instrument is only for convenience and not for
validity or enforceability as between the parties themselves. [Thunga Hui vs. Que Bentec, 2 Phil. 561
(1903)] The subsequent execution by the heirs of the Extrajudicial Partition in 1967 did not alter the oral
partition as in fact the share pertaining to Augustia Reyes corresponded to that previously assigned to her
father. Considering that Angel Reyes sold this property to Basilio de Ocampo who, in turn, sold the same to
respondents, we agree with the Court of Appeals that the latter lawfully acquired the property and are
entitled to ownership and possession thereof."
In answer to the charge of private respondents that petitioners deliberately failed to cite this resolution, the
latter, in their reply-memorandum dated 15 March 1991 and filed three days thereafter, allege:
"Our failure to mention the aforementioned resolution before this Honorable Court is not deliberate nor with
malice aforethought. The reason is that to date, we have not yet received any resolution to our Motion For
Leave of Court To Refer Case To The Honorable Supreme Court En Banc. Moreover, we honestly feel that
the resolution that will be issued therein will not be applicable to the case before this Honorable Court's
Second Division. It should be mentioned that in the Durumpili case before the Third Division, the Court of
Appeals relied on the alleged confirmation of the sale executed by Angustia Reyes, while in the Reyes case
before this Second Division, there was no sale that was executed by the petitioners Reyes' predecessor-in-
interest, Rafael Reyes, Jr."
The foregoing claim is not supported by the rollo of G.R. No. 92811, which reveals the following: (a) On 18
September 1990, petitioners therein, represented by De Lara, De Lunas and Rosales, who are the lawyers
of petitioners in the instant case, filed a motion for the reconsideration of the resolution of 20 August
1990. 19 b) This motion was denied in the resolution of 1 October 1990. 20 c) On 17 November 1990,
16

petitioners therein, through the same lawyers, filed a Motion For Leave Of Court To Refer Case To The
Honorable Supreme Court En Banc and/or Motion For Reconsideration 21 wherein they specifically admit
that said case and the instant petition have "identity and/or similarity of the parties, the facts, the issues
raised," even going to the extent of "graphically" illustrating where such similarities lie. 22 d) This motion
was denied in the resolution of 28 November 1990. Copy thereof was furnished the attorneys for
petitioners. 23 e) Entry of judgment had already been made therein and a copy thereof was sent to
petitioner's counsel per Letter of Transmittal of the Deputy Clerk of Court and Chief of the Judicial Records
Office dated 20 December 1990.
What comes out prominently from the disquisitions of the parties is this simple issue: whether or not
respondent Court of Appeals committed any reversible error in setting aside the decision of the trial
court. LexLib
We find none. The reversal of the trial court's decision is inevitable and unavoidable because the legal and
factual conclusions made by the trial court are unfounded and clearly erroneous. The Court of Appeals was
not bound to agree to such conclusions. The trial court erred in holding that: (a) there was no partition
among the children of Gavino Reyes in 1936 since there is no written evidence in support thereof; yet, it
admits that there was a survey and subdivision of the property and the adjudication of specific subdivision
lots to each of the children of Gavino; (b) the land sold by Rafael Reyes, Sr. to private respondents is not
identical to Lot No. 1-A-14, the lot specified for and adjudicated to Rafael Reyes, Jr. in the partition
agreement; and (c) if the land sold by Rafael Reyes, Sr. to private respondent Dalmacio Gardiola is indeed
Lot No. 1-A-14 and that TCT No. T-27257 was obtained through fraud, the remedy open to the vendee was
an action for reconveyance, which should have been brought within four (4) years from the discovery
thereof in 1967 when the Extrajudicial Settlement was executed since private respondent Rosario
Martillano, wife of Dalmacio, was a party thereto.
The Court of Appeals correctly held that the partition made by the children of Gavino Reyes in 1936,
although oral, was valid and binding. There is no law that requires partition among heirs to be in writing to
be valid. 24 In Hernandez vs. Andal, supra, this Court, interpreting Section 1 of Rule 74 of the Rules of
Court, held that the requirement that a partition be put in a public document and registered has for its
purpose the protection of creditors and at the same time the protection of the heirs themselves against
tardy claims. The object of registration is to serve as constructive notice to others. It follows then that the
intrinsic validity of partition not executed with the prescribed formalities does not come into play when
there are no creditors or the rights of creditors are not affected. Where no such rights are involved, it is
competent for the heirs of an estate to enter into an agreement for distribution in a manner and upon a
plan different from those provided by law. There is nothing in said section from which it can be inferred
that a writing or other formality is an essential requisite to the validity of the partition. Accordingly, an oral
partition is valid.
Barcelona, et al. vs. Barcelona, et al., supra, provides the reason why oral partition is valid and why it is not
covered by the Statute of Frauds: partition among heirs or renunciation of an inheritance by some of them
is not exactly a conveyance of real property for the reason that it does not involve transfer of property from
one to the other, but rather a confirmation or ratification of title or right of property by the heir renouncing
in favor of another heir accepting and receiving the inheritance.

Additionally, the validity of such oral partition in 1936 has been expressly sustained by this Court in the
Resolution of 20 August 1990 in G.R. No. 92811. 25
But even if We are to assume arguendo that the oral partition executed in 1936 was not valid for some
reason or another, We would still arrive at the same conclusion for upon the death of Gavino Reyes in
17

1921, his heirs automatically became co-owners of his 70-hectare parcel of land. The rights to the
succession are transmitted from the moment of death of the decedent. 26 The estate of the decedent
would then be held in co-ownership by the heirs. The co-heir or co-owner may validly dispose of his share
or interest in the property subject to the condition that the portion disposed of is eventually allotted to him
in the division upon termination of the co-ownership. Article 493 of the Civil Code provides:
"Each co-owner shall have the full ownership of his part and the fruits and benefits pertaining thereto, and
he may even substitute another person in its enjoyment, except when personal rights are involved. But the
effect of the alienation or the mortgage, with respect to the co-owners, shall be limited to the portion which
may be allotted to him in the division upon the termination of the co-ownership."
In Ramirez vs. Bautista, 27 this Court held that every co-heir has the absolute ownership of his share in the
community property and may alienate, assign, or mortgage the same, except as to purely personal rights,
but the effect of any such transfer is limited to the portion which may be awarded to him upon the partition
of the property. Cdpr
In the case at bar, the lot sold by Rafael Reyes, Sr. to private respondent Dalmacio Gardiola is his share in
the estate of his deceased father, Gavino Reyes. It is the same property which was eventually adjudicated
to his son and heir, Rafael Reyes, Jr., represented in turn by his heirs petitioners herein in the
extrajudicial settlement of 1967.
In respect to the issue as to whether the property sold by Rafael Reyes, Sr. is identical to Lot No. 1-14-A,
the trial court based its conclusion that it is not, on his observation that the description of the former does
not tally with that of the latter, moreover, if Rafael did intend to sell Lot No. 1-14-A, he should have
specifically stated it in the deed since at that time, the property had already been partitioned and said lot
was adjudicated to him. In addition to the contrary findings and conclusion of the respondent Court on this
issue to which We fully agree, it is to be stressed that Rafael had this property declared for taxation
purposes and the tax declaration issued was made the basis for the description of the property in the deed
of sale. Upon the execution of the deed of sale, vendee herein private respondent Dalmacio Gardiola
immediately took possession of the property. This is the very same property which is the subject matter of
this case and which petitioners seek to recover from the private respondents. The main evidence adduced
for their claim of ownership and possession over it is TCT No. T-27257, the certificate of title covering Lot
No. 1-14-A. They therefore admit and concede that the property claimed by private respondent, which was
acquired by sale from Rafael Reyes, Sr., is none other than Lot No. 1-14-A.
The participation of private respondent Rosario Gardiola in the Extrajudicial Settlement did not place private
respondents in estoppel to question the issuance of TCT No. T-27257. As correctly maintained by private
respondents, she signed it in representation of her deceased mother, Marta Reyes, a daughter and an heir
of Gavino Reyes. She did not sign for and in behalf of her husband, Dalmacio Gardiola, vendee of the share
of Rafael Reyes, Sr.
The same did not operate to divest the vendee of the share of Rafael Reyes, Sr. in the estate of Gavino.
Petitioners, as mere successors-in-interest of Rafael Reyes, Jr., son of Rafael Reyes, Sr., can only acquire
that which Rafael, Jr. could transmit to them upon his death. The latter never became the owner of Lot No.
1-A-14 because it was sold by his father in 1943. The issuance of TCT No. T-27257 in the name of Rafael
Reyes, Jr., in so far as Lot No. 1-14-A is concerned, was clearly erroneous because he never became its
owner. An extrajudicial settlement does not create a right in favor of an heir. As this Court stated in
the Barcelona case, 28 it is but a confirmation or ratification of title or right to property. Thus, since he
never had any title or right to Lot No. 1-14-A, the mere execution of the settlement did not improve his
condition, and the subsequent registration of the deed did not create any right or vest any title over the
18

property in favor of the petitioners as heirs of Rafael Reyes, Jr. The latter cannot give them what he never
had before. Nemo dare potest quod non habet.
There is one more point that should be stressed here. Petitioners' immediate predecessor-in-interest, Rafael
Reyes, Jr., never took any action against private respondents from the time his father sold the lot to the
latter. Neither did petitioners bring any action to recover from private respondents the ownership and
possession of the lot from the time Rafael Reyes, Jr. died. As categorically admitted by petitioners in their
complaint and amended complaint, it was only in or about September 1969 when, after the delivery of TCT
No. 27257 by Candido Hebron to them, that they definitely discovered that they were the owners of the
property in question. And yet, despite full knowledge that private respondents were in actual physical
possession of the property, it was only about thirteen and one-half (13 1/2) years later that they decided to
file an action for recovery of possession. As stated earlier, the original complaint was filed in the trial court
on 14 March 1983. There was then absolutely no basis for the trial court to place the burden on private
respondents to bring an action for reconveyance within four (4) years from their discovery of the issuance
of the transfer certificate of title in the name of Rafael Reyes, Jr.
The instant petition then is without merit.
WHEREFORE, judgment is hereby rendered DENYING the petition with costs against petitioners.
SO ORDERED.
Fernan, C . J ., Gutierrez, Jr., Feliciano and Bidin, JJ ., concur.

[G.R. No. 94918. September 2, 1992.]
DANILO I. SUAREZ, EUFROCINA SUAREZ-ANDRES, MARCELO I. SUAREZ, JR., EVELYN SUAREZ-
DE LEON and REGINIO I. SUAREZ, petitioners, vs. THE COURT OF APPEALS, VALENTE
RAYMUNDO, VIOLETA RAYMUNDO, MA. CONCEPCION VITO and VIRGINIA BANTA, respondents.
Villareal Law Offices for petitioners.
Nelson Loyola for private respondent.
SYLLABUS
1.CIVIL LAW; WILLS AND SUCCESSION; LEGITIME; PROPRIETARY INTEREST OF THE CHILDREN,
DIFFERENT AND ADVERSE FROM THEIR MOTHER. The legitime of the surviving spouse is equal to the
legitime of each child. The proprietary interest of petitioners in the levied and auctioned property is
different from and adverse to that of their mother. Petitioners became co-owners of the property not
because of their mother but through their own right as children of their deceased father. Therefore,
petitioners are not barred in any way from instituting the action to annul the auction sale to protect their
own interest.
D E C I S I O N
NOCON, J p:
The ultimate issue before Us is whether or not private respondents can validly acquire all the five (5)
parcels of land co-owned by petitioners and registered in the name of petitioners' deceased father, Marcelo
Suarez, whose estate has not been partitioned or liquidated, after the said properties were levied and
publicly sold en masse to private respondents to satisfy the personal judgment debt of Teofista Suarez, the
surviving spouse of Marcelo Suarez, mother of herein petitioners. LLphil
19

The undisputed facts of the case are as follows:
Herein petitioners are brothers and sisters. Their father died in 1955 and since then his estate consisting of
several valuable parcels of land in Pasig, Metro Manila has lot been liquidated or partitioned. In 1977,
petitioners' widowed mother and Rizal Realty Corporation lost in the consolidated cases for rescission of
contract and for damages, and were ordered by Branch 1 of the then Court of First Instance of Rizal (now
Branch 151, RTC of Pasig) to pay, jointly and severally, herein respondents the aggregate principal amount
of about P70,000 as damages. 1
The judgment against petitioners' mother and Rizal Realty Corporation having become final and executory,
five (5) valuable parcel of land in Pasig, Metro Manila, (worth to be millions then) were levied and sold on
execution on June 24, 1983 in favor of the private respondents as the highest bidder for the amount of
P94,170.000. Private respondents were then issued a certificate of sale which was subsequently registered
or August 1, 1983.
On June 21, 1984 before the expiration of the redemption period, petitioners filed a reivindicatory
action 2 against private respondents and the Provincial Sheriff of Rizal, thereafter docketed as Civil Case
No. 51203, for the annulment of the auction sale and the recovery of the ownership of the levied pieces of
property. Therein, they alleged, among others, that being strangers to the case decided against their
mother, they cannot be held liable therefor and that the five (5) parcels of land, of which they are co-
owners, can neither be levied nor sold on execution.
On July 31, 1984, the Provincial Sheriff of Rizal issued to private respondents a final deed of sale 3 over the
properties.
On October 22, 1984, Teofista Suarez joined by herein petitioners filed with Branch 151 a Motion for
Reconsideration 4 of the Order dated October 10, 1984, claiming that the parcels of land are co-owned by
them and further informing the Court the filing and pendency of an action to annul the auction sale (Civil
Case No. 51203), which motion however, was denied. LibLex
On February 25, 1985, a writ of preliminary injunction was issued enjoining private respondents from
transferring to third parties the levied parcels of land based on the finding that the auctioned lands are co-
owned by petitioners.
On March 1, 1985, private respondent Valente Raymundo filed in Civil Case No. 51203 a Motion to Dismiss
for failure on the part of the petitioners to prosecute, however, such motion was later denied by Branch
155, Regional Trial Court, Pasig.
On December 1985, Raymundo filed in Civil Case No. 51203 an Ex-Parte Motion to Dismiss complaint for
failure to prosecute. This was granted by Branch 155 through an Order dated May 29, 1986,
notwithstanding petitioner's pending motion for the issuance of alias summons to be served upon the other
defendants in the said case. A motion for reconsideration was filed but was later denied.
On October 10, 1984, RTC Branch 151 issued in Civil Case Nos. 21736-21739 an Order directing Teofista
Suarez and all persons claiming right under her to vacate the lots subject of the judicial sale; to desist from
removing or alienating improvements thereon; and to surrender to private respondents the owner's
duplicate copy of the torrens title and other pertinent documents.
Teofista Suarez then filed with the then Court of Appeals a petition for certiorari to annul the Orders of
Branch 151 dated October 10, 1984 and October 14, 1986 issued in Civil Case Nos. 21736-21739.
20

On December 4, 1986 petitioners filed with Branch 155 a Motion for reconsideration of the Order 5 dated
September 24, 1986. In an Order dated June 10, 1987, 6 Branch 155 lifted its previous order of dismissal
and directed the issuance of alias summons. LLpr
Respondents then appealed to the Court of Appeals seeking to annul the orders dated February 25,
1985, 7 May 19, 1989 8 and February 26, 1990 9 issued in Civil Case No. 51203 and further ordering
respondent Judge to dismiss Civil Case No. 51203. The appellate court rendered its decision on July 27,
1990, 10 the dispositive portion of which reads:
"WHEREFORE, the petition for certiorari is hereby granted and the questioned orders dated February 25,
1985, May 19, 1989 and February 26, 1990 issued in Civil Case No. 51203 are hereby annulled, further
respondent Judge is ordered to dismiss Civil Case No. 51203." 11
Hence, this appeal.
Even without touching on the incidents and issues raised by both petitioner and private respondents and
the developments subsequent to the filing of the complaint, We cannot but notice the glaring error
committed by the trial court.
It would be useless to discuss the procedural issue on the validity of the execution and the manner of
publicly selling en masse the subject properties for auction. To start with, only one-half of the 5 parcels of
land should have been the subject of the auction sale.
The law in point is Article 777 of the Civil Code, the law applicable at the time of the institution of the case.
"The rights to the succession are transmitted from the moment of the death of the decedent."
Article 888 further provides: prLL
"The legitime of the legitimate children and descendants consists of one-half of the hereditary estate of the
father and of the mother.
The latter may freely dispose of the remaining half, subject to the rights of illegitimate children and of the
surviving spouse as hereinafter provided."
Article 892, par. 2 likewise provides:
"If there are two or more legitimate children or descendants, the surviving spouse shall be entitled to a
portion equal to the legitime of each of the legitimate children or descendants."
Thus, from the foregoing, the legitime of the surviving spouse is equal to the legitime of each child.
The proprietary interest of petitioners in the levied and auctioned property is different from and adverse to
that of their mother. Petitioners became co-owners of the property not because of their mother but through
their own right as children of their deceased father. Therefore, petitioners are not barred in any way from
instituting the action to annul the auction sale to protect their own interest.
WHEREFORE, the decision of the Court of Appeals dated July 27, 1990 as well as its Resolution of August
28, 1990 are hereby REVERSED and set aside; and Civil Case No. 51203 is reinstated only to determine that
portion which belongs to petitioners and to annul the sale with regard to said portion. LLphil
SO ORDERED.
||| (Suarez v. Court of Appeals, G.R. No. 94918, September 02, 1992)

21

Intestate
[G.R. No. 116018. November 13, 1996.]
NELIA A. CONSTANTINO, petitioner, vs. COURT OF APPEALS, AURORA S. ROQUE, PRISCILLA S.
LUNA and JOSEFINA S. AUSTRIA, respondents.
Agcaoili Law Offices for petitioner.
Geronimo O. Veneracion, Jr. for private respondents.
SYLLABUS
1.REMEDIAL LAW; CIVIL PROCEDURE; FORMAL OFFER OF EVIDENCE; RIGHT THERETO DEEMED WAIVED
IN CASE AT BENCH. The trial court was correct in holding that petitioner waived the right to formally
offer his evidence. A considerable lapse of time, about three (3) months, had already passed before
petitioner's counsel made effort to formally offer his evidence. For the trial court to grant petitioner's
motion to admit her exhibits would be to condone an inexcusable laxity if not non-compliance with a court
order which, in effect, would encourage needless delays and derail the speedy administration of
justice. cdasia
2.CIVIL LAW; CONTRACTS; VALIDITY; NO MEETING OF THE MINDS BETWEEN PARTIES ON LAND AREA
TO BE SOLD; CASE AT BENCH. Petitioner also insists that the real intent of the parties was to make the
entire Lot 4-B the subject matter of the sale. She claims that during cross-examination respondent Aurora
S. Roque admitted that she signed in behalf of her co-heirs a receipt for P30,000.00 as partial payment for
the lot occupied by Ka Baring and Lina (relatives of petitioner) and Iling (Consuelo Lim). . . . The admission
of respondent Roque cannot prevail in the face of the clear evidence that there was as yet no meeting of
the minds on the land area to be sold since private respondents were still awaiting the survey to be
conducted on the premises. . . . Likewise, we find the allegation of respondents that they signed the deed
prior to the survey, or before determination of the area to be sold, worthy of credit as against the
contention of petitioner that they signed after the survey or on 10 October 1984. As found by the trial
court, such contention was contradicted by petitioner's own witness who positively asserted in court that
the survey was conducted only on 16 October 1984 or six (6) days after the signing. Quite obviously, when
respondents affixed their signatures on the deed, it was still incomplete since petitioner who caused it to be
prepared left several spaces blank, more particularly as regards the dimensions of the property to be sold.
The heirs were persuaded to sign the document only upon the assurance of petitioner that respondent
Roque, pursuant to their understanding, would be present when the property would be surveyed after
obtaining permission from the Bureau of Lands. As it surfaced, the supposed understanding was merely a
ruse of petitioner to induce respondents to sign the deed without which the latter would not have given
their conformity thereto. EaCSHI
3.ID.; ID.; ID.; FACT THAT DEED OF SALE WAS NOTARIZED IN A PLACE OTHER THAN WHERE SUBJECT
LOT WAS SITUATED CASTS DOUBT ON DUE EXECUTION OF SAID DEED; CASE AT BENCH. The trial
court correctly appreciated the fact that the deed was notarized in Manila when it could have been
notarized in Bulacan. This additional detail casts doubt on the procedural regularity in the preparation,
execution and signing of the deed. It is not easy to believe that petitioner and the ten (10) Torres heirs
traveled all the way to Manila to have their questioned document notarized considering that they, with the
exception of respondent Roque, are residents of Balagtas, Bulacan, where notaries public are easy to find.
Consequently, the claim of private respondents that they did not sign the document before a notary public
is more plausible than petitioner's feeble claim to the contrary.
4.ID.; ID.; FRAUD; ELEMENTS THEREOF; ANNULMENT OF CONTRACT PROPER IN CASE AT BENCH.
Apparently, petitioner deceived respondents by filling the blank spaces in the deed, having the lots
22

surveyed and subdivided, and then causing the issuance of transfer certificates of title without their
knowledge, much less consent. Thus all the elements of fraud vitiating consent for purposes of annulling a
contract concur: (a) It was employed by a contracting party upon the other; (b) It induced the other party
to enter into the contract; (c) It was serious; and, (d) It resulted in damages and injury to the party
seeking annulment. Perhaps, another compelling reason for the annulment of the document of settlement
and conveyance is that the second page thereof clearly manifests that the number of the subdivision plan
and the respective areas of Lots 4-A and 4-B were merely handwritten while all the rest of the statements
therein were typewritten, which leads us to the conclusion that handwritten figures thereon were not
available at the time the document was formalized. IaHDcT
D E C I S I O N
BELLOSILLO, J p:
JOSEFA TORRES died intestate leaving a parcel of land located at Balagtas, Bulacan. Among her heirs are
respondents Aurora S. Roque, Priscilla S. Luna and Josefina S. Austria. Sometime in 1984, the heirs of
Josefa Torres, as vendors, and petitioner Nelia A. Constantino, as vendee, entered into a contract to sell a
parcel of land with a total land area of two hundred and fifty (250) square meters. The lot, owned in
common by the Torres heirs, is being occupied by petitioners' mother and sister. An adjoining lot, also co-
owned by the heirs, is being occupied by spouses Severino and Consuelo Lim. Pursuant to their agreement,
the heirs authorized petitioner to prepare the necessary Deed of Extrajudicial Settlement of Estate with
Sale.
After having the document drafted with several spaces left blank including the specification as to the
metes and bounds of the land petitioner asked the heirs to affix their signatures on the document. The
heirs signed the document with the understanding that respondent Aurora S. Roque, one of the heirs,
would be present when the latter would seek permission from the Bureau of Lands and have the land
surveyed.
However, without the participation of any of the Torres heirs, the property was subsequently surveyed,
subdivided and then covered by TCT Nos. T-292265 and T-292266. Petitioner did not furnish the heirs with
copies of the Deed of Extrajudicial Settlement of Estate with Salenor of the subdivision plan and the
certificates of title. Upon securing a copy of the deed from the Registry of Deeds, the respondents learned
that the area of the property purportedly sold to petitioner was much bigger than that agreed upon by the
parties. It already included the portion being occupied by the spouses Severino and Consuelo Lim.
On 2 June 1986, private respondents sent a letter to petitioner demanding the surrender to them of the
deed of settlement and conveyance, the subdivision plan and the certificates of title; but to no avail. On 25
June 1986 respondents filed with the Regional Trial Court of Bulacan an action for annulment of the deed
and cancellation of the certificates of title, with prayer for recovery of damages, attorney's fees and costs of
suit. 1
Petitioner controverted the allegations of respondents by presenting the Deed of Extrajudicial Settlement of
Estate with Sale dated 10 October 1984 wherein respondents agreed to divide and adjudicate among
themselves the inherited property with an area of one thousand five hundred and three (1,503) square
meters. In the same document, they caused the subdivision of the property into two (2) lots according to
Plan No. PSD-03-009105 identified as Lot 4-A with an area of one thousand ninety-six (1,096) square
meters, and Lot 4-B with an area of four hundred and seven (407) square meters, and acknowledged the
sale to petitioner of said Lot 4-B. As a consequence, on 18 March 1985, the Register of Deeds issued TCT
No. T-292265 in the name of the heirs of Josefa Torres and TCT No. T-292266 in the name of petitioner.
23

In reply, private respondents reiterated that all the heirs signed the document before the land was
surveyed and subdivided, hence, there was as yet no definite area to be sold that could be indicated in the
deed at the time of the signing. They also claimed that they were not notified about the survey and the
subdivision of the lot and therefore they could not have agreed on the area supposedly sold to petitioner.
The respondent heirs insist that they could not have agreed to the extent of the area actually reflected in
the deed because it included the portion being occupied by the Lim spouses, which was already the subject
of a previous agreement to sell between them and their predecessor.
The trial court entertained serious doubts with respect to the preparation and due execution of the Deed of
Extrajudicial Settlement of Estate with Sale taking into account that (a) while petitioner claimed that all the
heirs signed before the notary public and in her presence, she was not able to enumerate all the signatories
to the document; (b) while petitioner claimed that the document was signed only after the survey of the
land was completed, or on 10 October 1984, such fact was negated by her own witness who testified that
the survey was conducted only on 16 October 1984; and, (c) while petitioner alleged that the document
was signed and notarized in Manila no explanation was offered why the same could not have been signed
and notarized in Bulacan where notaries public abound which could have been less inconvenient to the
parties concerned. Additionally, the trial court relied heavily on the assertions of respondents as reflected in
their demand letter that they did not give their consent to the sale of Lot 4-B.
Thus, on the basis of the evidence on record, the trial court on 27 September 1990 ordered the annulment
and cancellation of the Deed of Extrajudicial Settlement of Estate with Sale, TCT Nos. T-292265 and T-
292266 and Subdivision Plan No. PSD-03-009105. It also ordered petitioner to pay private respondents
P50,000.00 for moral damages, P15,000.00 for attorney's fees, and to pay the costs of suit. 2

On 16 March 1994 respondent Court of Appeals sustained the decision of the trial court, 3 and on 20 June
1994 denied the motion to reconsider its decision. 4
Petitioner faults respondent Court of Appeals: (a) for disregarding documentary evidence already
presented, marked and identified on a purely technical ground, and (b) for concluding that the Deed of
Extrajudicial Settlement of Estate with Sale did not reflect the true intent of the parties.
Petitioner argues that the trial court should not have denied her motion to admit formal offer of evidence
merely on the basis of technicality such as late filing, citing Siguenza v. Court of Appeals. 5 We are not
persuaded. Indeed, we held in Siguenza that rules of procedure are not to be applied in a very rigid and
technical sense as they are used only to help secure, not override, substantial justice. Yet the holding is
inapplicable to the present case as the trial court had a reasonable basis for denying petitioner's motion
On February 6, 1990, Atty. Ponciano Mercado, defendant's counsel, manifested in Court that he has (sic) no
more witness to present. He asked that he be given 15 days to make a formal offer of evidence and which
the Court granted. At the scheduled hearing of April 03, 1990, Atty. Ponciano Mercado . . . was not in
Court. Atty. Veneracion, plaintiffs' counsel, called the attention of the Court that Atty. Mercado has (sic) not
yet filed and/or complied with the Court Order dated February 06, 1990, which is to file his formal offer of
evidence. On motion of Atty. Veneracion, defendant's right to file a formal offer of evidence was deemed
waived. Atty. Veneracion waived the presentation of rebuttal offer of evidence.
On May 11, 1990, the Court was in receipt of a motion to admit formal offer of exhibits filed by the
defendant thru counsel, Atty. Ponciano Mercado, on May 02, 1990. Considering that the same was filed out
of time and the plaintiffs having filed their memorandum already, the motion to admit formal offer of
exhibits was denied (emphasis supplied).
24

The trial court was correct in holding that petitioner waived the right to formally offer his evidence. A
considerable lapse of time, about three (3) months, had already passed before petitioner's counsel made
effort to formally offer his evidence. For the trial court to grant petitioner's motion to admit her exhibits:
would be to condone an inexcusable laxity if not non-compliance with a court order which, in effect, would
encourage needless delays and derail the speedy administration of justice.
Petitioner also insists that the real intent of the parties was to make the entire Lot 4-B the subject matter of
the sale. She claims that during cross-examination respondent Aurora S. Roque admitted that she signed in
behalf of her co-heirs a receipt for P30,000.00 as partial payment for the lot occupied by Ka
Baring and Lina (relatives of petitioner) and Iling (Consuelo Lim). Moreover, according to petitioner, the
assertions of private respondents to petitioner contained in the demand letter should not necessarily be
true and that the validity of the Deed of Extrajudicial Settlement of Estate with Sale was not affected by the
fact that it was notarized in a place other than where the subject matter thereof was situated, citing Sales
v. Court of Appeals. 6
These other arguments of petitioner are barren and futile. The admission of respondent Roque cannot
prevail in the face of the clear evidence that there was as yet no meeting of the minds on the land area to
be sold since private respondents were still awaiting the survey to be conducted on the premises.
Obviously, the trial court only lent credence to the assertions in the demand letter after having weighed the
respective evidence of the parties. But even without the letter, the evidence of respondents had already
amply substantiated their claims.
We ruled in the Sales case that the extrinsic validity of a document was not affected by the fact that it was
notarized in a place other than where the subject matter thereof was located. What is more important
under the Notarial Law is that the notary public has authority to acknowledge the document executed
within his territorial jurisdiction. The ruling in Sales is not applicable to the present case. Our concern here
is not whether the notary public had the authority to acknowledge the document executed within his
territorial jurisdiction but whether respondents indeed appeared before him and signed the deed. However,
the quantum of evidence shows that they did not.
The trial court correctly appreciated the fact that the deed was notarized in Manila when it could have been
notarized in Bulacan. This additional detail casts doubt on the procedural regularity in the preparation,
execution and signing of the deed. It is not easy to believe that petitioner and the ten (10) Torres heirs
traveled all the way to Manila to have their questioned document notarized considering that they, with the
exception of respondent Roque, are residents of Balagtas, Bulacan, where notaries public are easy to find.
Consequently, the claim of private respondents that they did not sign the document before a notary public
is more plausible than petitioner's feeble claim to the contrary.
Likewise, we find the allegation of respondents that they signed the deed prior to the survey, or before
determination of the area to be sold, worthy of credit as against the contention of petitioner that they
signed after the survey or on 10 October 1984. As found by the trial court, such contention was
contradicted by petitioners' own witness who positively asserted in court that the survey was conducted
only on 16 October 1984 or six (6) days after the signing. Quite obviously, when respondents affixed their
signatures on the deed, it was still incomplete since petitioner who caused it to be prepared left several
spaces blank, more particularly as regards the dimensions of the property to be sold. The heirs were
persuaded to sign the document only upon the assurance of petitioner that respondent Roque, pursuant to
their understanding, would be present when the property would be surveyed after obtaining permission
from the Bureau of Lands. As it surfaced, the supposed understanding was merely a ruse of petitioner to
induce respondents to sign the deed without which the latter would not have given their conformity
thereto. 7 Apparently, petitioner deceived respondents by filling the blank spaces in the deed, having the
lots surveyed and subdivided, and then causing the issuance of transfer certificates of title without their
25

knowledge, much less consent. Thus all the elements of fraud vitiating consent for purposes of annulling a
contract concur: (a) It was employed by a contracting party upon the other; (b) It induced the other party
to enter into the contract; (c) It was serious; and, (d) It resulted in damages and injury to the party
seeking annulment. 8
Perhaps, another compelling reason for the annulment of the document of settlement and conveyance is
that the second page thereof clearly manifests that the number of the subdivision plan and the respective
areas of Lots 4-A and 4-B were merely handwritten while all the rest of the statements therein were
typewritten, which leads us to the conclusion that handwritten figures thereon were not available at the
time the document was formalized.
WHEREFORE, there being no error to warrant a reversal of the decision and resolution in question of
respondent Court of Appeals, which affirmed the decision of the Regional Trial Court of Malolos, Bulacan,
Br. 22, the instant petition is DENIED.
SO ORDERED.

Heirs
*** not sure if tama tong case na to [G.R. No. 124320. March 2, 1999.]
HEIRS OF GUIDO YAPTINCHAY AND ISABEL YAPTINCHAY, NAMELY: LETICIA ENCISO-
GADINGAN, EMILIO ENCISO, AURORA ENCISO, AND NORBERTO ENCISO, REPRESENTED BY
LETICIA ENCISO-GADINGAN, ATTORNEY-IN-FACT, petitioners, vs. HON. ROY S. DEL ROSARIO,
PRESIDING JUDGE, RTC, BRANCH 21, IMUS, CAVITE; THE REGISTER OF DEEDS FOR TRECE
MARTIRES CITY, GEORGE T. CHUA, SPS. ALFONSO NG AND ANNABELLE CHUA, SPS. ROSENDO
L. DY AND DIANA DY, SPS. ALEXANDER NG AND CRISTINA NG, SPS. SAMUEL MADRID AND
BELEN MADRID, SPS. JOSE MADRID AND BERNARDA MADRID, SPS. DAVID MADRID AND
VIOLETA MADRID, JONATHAN NG, SPS. VICTORIANO CHAN, JR. AND CARMELITA CHAN, SPS.
MARIE TES C. LEE AND GREGORIE W.C. LEE, JACINTO C. NG, JR., SPS. ADELAIDO S. DE
GUZMAN AND ROSITA C. DE GUZMAN, SPS. RICARDO G. ONG AND JULIE LIMIT, SPS. MISAEL
ADELAIDA P. SOLIMAN AND FERDINAND SOLIMAN, SPS. MYLENE T. LIM AND ARTHUR LIM,
EVELYN K. CHUA, GOLDEN BAY REALTY AND DEVELOPMENT CORPORATION, respondents.
Jose J. Estrella, Jr., & Associates for petitioners.
Azcuna Yorac Sarmiento Arroyo & Chua Law Offices for private respondents.
SYNOPSIS
Petitioners are the legal heirs of the late Guido and Isabel Yaptinchay, the owners-claimants of Lot No.
1131 situated in Bancal, Carmona, Cavite. Petitioners discovered that a portion, if not all, of the aforesaid
properties were titled in the name of respondent Golden Bay Realty and Development Corporation (Golden
Bay) under Transfer Certificateof Title Nos. 225254 and 225255. They filed a complaint for annulment
and/or declaration of nullity of TCT Nos. 493363-67 and its derivatives and as alternative
reconveyanceof realty with prayer for writ of preliminary injunction and/or restraining order with damages
with the Regional Trial Court in Imus, Cavite. Private respondents presented a motion to dismiss on the
grounds that the complaint failed to state a cause of action and that petitioners did not have a
right of action, that they have not established their status as heirs and that the land being claimed is
different from that of the private respondents. The said motion to dismiss was granted by the respondent
court holding that petitioners have not shown any proof or even a semblance of it except the allegations
26

that they are the legal heirs of the deceased couple. Petitioners interposed a motion for reconsideration but
it was denied. Hence, the present petition. Petitioners contended that the respondent court acted with
grave abuse of discretion in ruling that the issue ofheirship should first be determined before the trial of the
case could proceed. It is petitioners' submission that the respondent court should have proceeded with the
trial and simultaneously resolved the issue of heirship in the same case.
The Supreme Court dismissed the petition. The Court ruled that the trial court cannot make a
declaration of heirship in the civil action for the reason that such a declaration can only be made in a
special proceeding. Under Section 3, Rule 1 of the 1997 Revised Rules of Court, a civil action is defined as
"one by which a party sues another for the enforcement or protection of a right, or the prevention or
redress of a wrong" while a special proceeding is "a remedy by which a party seeks to establish a status, a
right, or particular fact." The Court held that the declaration of heirship can be made only in a special
proceeding inasmuch as the petitioners in the case at bar are seeking the establishment of a status or
right. SEDICa
SYLLABUS
REMEDIAL LAW; CIVIL ACTIONS; TRIAL COURTS CANNOT MAKE A DECLARATION OF HEIRSHIP IN A
CIVIL ACTION; SUCH DECLARATION CAN ONLY BE MADE IN A SPECIAL PROCEEDING. In Litam, etc., et
al. vs. Rivera, this court opined that the declaration of heirship must be made in an administration
proceeding, and not in an independent civil action. This doctrine was reiterated in Solivio vs.
Court of Appeals, where the court held: "In Litam, et al. vs. Rivera, 100 Phil. 364, where despite the
pendency of the special proceedings for the settlement of the intestate estate of the deceased Rafael Litam,
the plaintiffs-appellants filed a civil action in which they claimed that they were the children by a previous
marriage of the deceased to a Chinese woman, hence, entitled to inherit his one-half share of the conjugal
properties acquired during his marriage to Marcosa Rivera, the trial court in the civil case declared that the
plaintiffs-appellants were not children of the deceased, that the properties in question were paraphernal
properties of his wife, Marcosa Rivera, and that the latter was his only heir. On appeal to this Court, we
ruled that 'such declarations (that Marcosa Rivera was the only heir ofthe decedent) is improper, in Civil
Case No. 2071, it being within the exclusive competence of the court in Special Proceedings No. 1537, in
which it is not as yet, in issue, and, will not be, ordinarily, in issue until the presentation of the
project of partition.' (p. 378)." The trial court cannot make a declaration of heirship in the civil action for
the reason that such a declaration can only be made in a special proceeding. Under Section 3, Rule 1 of the
1997 Revised Rules of Court, a civil action is defined as "one by which a party sues another for the
enforcement or protection of a right, or the prevention or redress of a wrong" while a special proceeding is
"a remedy by which a party seeks to establish a status, a right, or a particular fact." It is then decisively
clear that the declaration of heirship can be made only in a special proceeding inasmuch as the petitioners
here are seeking the establishment of a status or right. CacHES
D E C I S I O N
PURISIMA, J p:
At bar is a Petition for Certiorari under Rule 65 of the Revised Rules of Court assailing the Orders dated
October 25, 1995 and February 23, 1996, respectively, of Branch 21 ofthe Regional Trial Court in Imus,
Cavite ("RTC").
The facts that matter are, as follows:
Petitioners claim that they are the legal heirs of the late Guido and Isabel Yaptinchay, the owners-
claimants of Lot No. 1131 with an area of 520,638 and Lot No. 1132 with an area of 96,235 square meters,
more or less situated in Bancal, Carmona, Cavite.
27

On March 17, 1994, petitioners executed an Extra-Judicial Settlement of the estate of the deceased Guido
and Isabel Yaptinchay.
On August 26, 1994, petitioners discovered that a portion, if not all, of the aforesaid properties were titled
in the name of respondent Golden Bay Realty and Development Corporation ("Golden Bay") under Transfer
Certificate of Title Nos. ("TCT") 225254 and 225255. With the discovery of what happened to subject
parcels of land, petitioners filed a complaint for ANNULMENT and/or DECLARATION OF NULLITY OF TCT
NO. 493363, 493364, 493665, 493366, 493367; and its Derivatives; As Alternative Reconveyanceof Realty
WITH A PRAYER FOR A WRIT OF PRELIMINARY INJUNCTION and/or RESTRAINING ORDER WITH
DAMAGES, docketed as RTC BCV-94-127 before Branch 21 of the Regional Trial Court in Imus, Cavite.
Upon learning that "Golden Bay" sold portions of the parcels of land in question, petitioners filed with the
"RTC" an Amended Complaint to implead new and additional defendants and to mention the TCTs to be
annulled. But the respondent court dismissed the Amended Complaint. cdlex
Petitioners moved for reconsideration of the Order dismissing the Amended Complaint. The motion was
granted by the RTC in an Order 1 dated July 7, 1995, which further allowed the herein petitioners to file a
Second Amended Complaint, 2 which they promptly did.
On August 12, 1995, the private respondents presented a Motion to Dismiss 3 on the grounds that the
complaint failed to state a cause of action, that plaintiffs did not have a right of action, that they have not
established their status as heirs, that the land being claimed is different from that of the defendants, and
that plaintiffs' claim was barred by laches. The said Motion to Dismiss was granted by the respondent court
in its Order 4 dated October 25, 1995, holding that petitioners "have not shown any proof or even a
semblance of it except the allegations that they are the legal heirs of the above-named Yaptinchays
that they have been declared the legal heirs of the deceased couple."
Petitioners interposed a Motion for Reconsideration 5 but to no avail. The same was denied by the RTC in
its Order 6 of February 23, 1996.
Undaunted, petitioners have come before this Court to seek relief from respondent court's Orders under
attack.
Petitioners contend that the respondent court acted with grave abuse of discretion in ruling that the
issue of heirship should first be determined before trial of the case could proceed. It is petitioners'
submission that the respondent court should have proceeded with the trial and simultaneously resolved the
issue of heirship in the same case. cdll
The petition is not impressed with merit.
To begin with, petitioners' Petition for Certiorari before this Court is an improper recourse. Their proper
remedy should have been an appeal. An order of dismissal, be it right or wrong, is a final order, which is
subject to appeal and not a proper subject of certiorari. 7 Where appeal is available as a
remedy certiorari will not lie. 8
Neither did the respondent court commit grave abuse of discretion in issuing the questioned Order
dismissing the Second Amended Complaint of petitioners, as it aptly ratiocinated and ruled:
"But the plaintiffs who claimed to be the legal heirs of the said Guido and Isabel Yaptinchay have not
shown any proof or even a semblance of it except the allegations that they are the legal heirs of the
aforementioned Yaptinchays that they have been declared the legal heirs of the deceased couple. Now,
the determination of who are the legal heirs of the deceased couple must be made in the proper special
proceedings in court, and not in an ordinary suit for reconveyance of property. This must take precedence
28

over the action for reconveyance (Elena C. Monzon, et. al., v. Angelita Taligato, CA-G-R No. 33355, August
12, 1992)."

In Litam, etc., et. al. v. Rivera, 9 this court opined that the declaration of heirship must be made in an
administration proceeding, and not in an independent civil action. This doctrine was reiterated in Solivio
v. Court of Appeals 10 where the court held: cda
"In Litam, et al. v. Rivera, 100 Phil. 364, where despite the pendency of the special proceedings for the
settlement of the intestate estate of the deceased Rafael Litam, the plaintiffs-appellants filed a civil action
in which they claimed that they were the children by a previous marriage of the deceased to a Chinese
woman, hence, entitled to inherit his one-half share of the conjugal properties acquired during his marriage
to Marcosa Rivera, the trial court in the civil case declared that the plaintiffs-appellants were not
children of the deceased, that the properties in question were paraphernal properties of his wife, Marcosa
Rivera, and that the latter was his only heir. On appeal to this Court, we ruled that 'such declarations (that
Marcosa Rivera was the only heir of the decedent) is improper, in Civil Case No. 2071,it being within the
exclusive competence of the court in Special Proceedings No. 1537, in which it is not as yet, in issue, and,
will not be, ordinarily, in issue until the presentation of the project of partition.' (p. 378)."
The trial court cannot make a declaration of heirship in the civil action for the reason that such a
declaration can only be made in a special proceeding. Under Section 3, Rule 1of the 1997 Revised
Rules of Court, a civil action is defined as "one by which a party sues another for the enforcement or
protection of a right, or the prevention or redress of a wrong" while a special proceeding is "a remedy by
which a party seeks to establish a status, a right, or a particular fact." It is then decisively clear that the
declaration of heirship can be made only in a special proceeding inasmuch as the petitioners here are
seeking the establishment of a status or right. cdasia
We therefore hold that the respondent court did the right thing in dismissing the Second Amended
Complaint, which stated no cause of action. In Travel Wide Associated Sales (Phils.),
Inc. v. Court of Appeals, 11 it was ruled that:
". . . if the suit is not brought in the name of or against the real party in interest, a motion to dismiss may
be filed on the ground that the complaint states no cause ofaction."
WHEREFORE, for lack of merit, the Petition under consideration is hereby DISMISSED. No pronouncement
as to costs. cdtai
SO ORDERED.

[G.R. No. 149017. November 28, 2008.]
VALENTE RAYMUNDO, petitioner, vs. TEOFISTA ISAGON VDA. DE SUAREZ, DANILO I. SUAREZ,
EUFROCINA SUAREZ, MARCELO I. SUAREZ, JR, EVELYN SUAREZ, ET AL., respondents.
D E C I S I O N
NACHURA, J p:
This petition, filed under Rule 65 of the Rules of Court, assails the Court of Appeals (CA) Decision 1 and
Resolution 2 in CA-G.R. SP No. 58090 which reversed, set aside and recalled the Regional Trial Court (RTC)
Orders 3 in Civil Case No. 51203.
29

First, the long settled facts.
Marcelo and Teofista Isagon Suarez' 4 marriage was blessed with both material wealth and progeny in
herein respondents, namely, Danilo, 5 Eufrocina, Marcelo Jr., Evelyn, and Reggineo, 6 all surnamed Suarez.
During their marriage, governed by the conjugal partnership of gains regime, they acquired numerous
properties, which included the following: (1) a parcel of land situated in Barrio Caniogan, Pasig with an area
of 348 square meters covered by Transfer Certificate of Title (TCT) No. 30680; (2) property located in
Pinagbuhatan, Pasig, with an area of 1,020 square meters under Tax Declaration No. A-016-01003; and (3)
Lot Nos. 5, 6 & 7, Block 2 covered by Tax Declaration No. A-01700723 (subject properties).
After the death of Marcelo Sr. in 1955, Teofista and herein respondents, as well as Elpidio
Suarez, 7 executed an Extrajudicial Settlement of Estate, 8 partitioning Marcelo Sr.'s estate, thus: DHTCaI
WHEREAS, the said deceased is survived by the parties hereto who are his only legal heirs: TEOFISTA
ISAGON, being the surviving spouse, and EUFROCINA S. ANDRES, ELPIDIO SUAREZ, DANILO SUAREZ,
EVELYN SUAREZ, MARCELO SUAREZ, JR. and REGGINEO SUAREZ, being the legitimate children of the
deceased with the said TEOFISTA ISAGON;
WHEREAS, the minors ELPIDIO, SUAREZ, DANILO SUAREZ, EVELYN SUAREZ, MARCELO SUAREZ, JR. and
REGGINEO SUAREZ are represented herein by EUFROCINA S. ANDRES, in her capacity as the guardian and
legal administrator of the property of the said minors;
WHEREAS, there are no known debts or financial obligations of whatever nature and amount against the
estate of the deceased;
NOW, THEREFORE, in consideration of the foregoing premises, the Parties have agreed to settle and
liquidate the assets of the conjugal partnership between the deceased and TEOFISTA ISAGON, and to
settle and adjudicate the estate of the said deceased, by and pursuance to these presents, in the following
manner, to wit:
1.That TEOFISTA ISAGON, as the surviving spouse and partner of the deceased, shall receive in absolute
and exclusive ownership the following properties as her lawful share in the assets of the conjugal
partnership of gains between her and the deceased, to wit:
(a)Half (1/2) interest and participation in the parcel of land covered by Tax Declaration No. 6938, situated
at Sitio Pantayan, Municipality of Taytay, Province of Rizal;
(b)Half (1/2) interest and participation in the parcel of land covered by Tax Declaration No. 6939, situated
at Sitio Pantayan, Municipality of Taytay, Province of Rizal;
(c)Half (1/2) interest and participation in the parcel of land covered by TCT No. 38291, situated at Barrio
Rosario, Municipality of Pasig, Province of Rizal;
(d)Half (1/2) interest and participation in the parcel of land covered by TCT No. 38290, situated at Barrio
Rosario, Municipality of Pasig, Province of Rizal; aSTAIH
(e)TWELVE THOUSAND FIVE HUNDRED THIRTY PESOS AND NINETY (P12,530.90) deposited with the
Commercial Bank and Trust Company of the Philippines, and THIRTY-NINE PESOS (P39.00) deposited with
Prudential Bank.
2.That the Parties TEOFISTA ISAGON, EUFROCINA S. ANDRES, ELPIDIO SUAREZ, DANILO SUAREZ,
EVELYN SUAREZ, MARCELO SUAREZ, JR. and REGGINEO SUAREZ, shall each and all receive and be entitled
to a share equivalent to one-seventh (1/7) of the estate of the deceased MARCELO SUAREZ, which estate is
comprised of the following properties, to wit:
30

(a)A parcel of land covered by TCT No. 30680, situated at Barrio Kaniogan, Municipality of Pasig, Province
of Rizal, with an assessed value of P4,150.00.
(b)Three (3) parcels of land covered by TCT Nos. 33982, 33983 and 33984, situated at Barrio Pineda,
Municipality of Pasig, Province of Rizal, with an assessed value of P560.00.
(c)A parcel of land covered by TCT 33986, situated at Barrio Pineda, Municipality of Pasig, Province of Rizal,
with an assessed value of P440.00.
(d)Two (2) parcels of land, being Lots Nos. 42 and 44 of the amendment-subdivision plan TY-4653-Amd.,
being a portion of Lot 2 described on the original plan II-4653, G.L.R.O. Record No. _____, situated at
Barrio Santolan, Municipality of Pasig, Province of Rizal, with a total assessed value of P590.00.
(e)Two parcels of land, being Lots Nos. 43 and 45 of the amendment-subdivision plan TY-4653-Amd., being
a portion of Lot 2 described on the original plan II-4653, G.L.R.O. Record No. _______, situated at Barrio
Santolan, Municipality of Pasig, Province of Rizal, with a total assessed value of P1,190.00.
(f)A parcel of land, being Lot No. 6, Block 269 of the subdivision plan pos-112, being a portion of Lot 2,
Block 348, Psd-3188, G.L.R.O. Record Nos. 375,699 and 917, situated at San Felipe Neri, Province of Rizal,
with an assessed value of P6,340.00. EICSTa
(g)A parcel of land covered by OCT No. 391, situated in the Municipality of Taytay, Province of Rizal, with
an assessed value of P1,840.00.
(h)TWELVE THOUSAND (12,000) shares of stock of the Consolidated Mines, Inc. represented by Certificate
No. 71-5-B (for 1,000 shares) and Certificate No. 12736 (for 11,000 shares).
PROVIDED, that their title to the properties hereinabove mentioned shall be in common and the share of
each heir being pro indiviso.
Curiously, despite the partition, title to the foregoing properties, explicitly identified in the Extrajudicial
Settlement of Estate as forming part of Marcelo's and Isagon's property regime, remained in the couple's
name. Not surprisingly, Teofista continued to administer and manage these properties. On the whole, apart
from those now owned exclusively by Teofista, all the properties were held pro indiviso by Teofista and her
children; and respective titles thereto were not changed, with Teofista as de factoadministrator thereof.
In 1975, Rizal Realty Corporation (Rizal Realty) and Teofista, the latter owning ninety percent (90%) of the
former's shares of stock, were sued by petitioner Valente Raymundo, his wife Violeta, Virginia Banta and
Maria Concepcion Vito (plaintiffs) in consolidated cases for Rescission of Contract and Damages, docketed
as Civil Case Nos. 21736 to 21739. Thereafter, in 1975, the then Court of First Instance (CFI) of Rizal,
Branch 1, rendered judgment: (1) rescinding the respective contracts of plaintiffs with Rizal Realty and
Teofista, and (2) holding the two defendants solidarily liable to plaintiffs for damages in the aggregate
principal amount of about P70,000.00. 9
When the judgment of the CFI became final and executory, herein subject properties were levied and sold
on execution on June 24, 1983 to satisfy the judgment against Teofista and Rizal Realty. The
aforementioned plaintiffs were the highest bidder, and bought the levied properties for the amount of
P94,170.00. As a result, a certificate of sale was issued to them and registered in their favor on August 1,
1983. On July 31, 1984, the Provincial Sheriff of Rizal issued a final deed of sale over the subject
properties.SacTAC
Parenthetically, before expiration of the redemption period, or on June 21, 1984, herein respondents filed a
revindicatory action against petitioner Valente, Violeta, Virginia and Maria Concepcion, docketed as Civil
Case No. 51203, for the annulment of the auction sale and recovery of ownership of the levied properties.
31

Essentially, respondents alleged in their complaint that they cannot be held liable for the judgment
rendered against their mother, Teofista, not having been impleaded therein; and consequently, the subject
properties, which they own pro indiviso with their mother, can neither be levied nor be sold on execution.
Meanwhile, the RTC, Branch 151, formerly the CFI, Branch 1, in Civil Case Nos. 21376 to 21379, issued an
Order 10 directing Teofista: (1) to vacate the subject properties, (2) to desist from despoiling, dismantling,
removing or alienating the improvements thereon, (3) to place petitioner Valente, Violeta, Virginia and
Maria Concepcion in peaceful possession thereof, and (4) to surrender to them the owner's duplicate copy
of the torrens title and other pertinent documents. Herein respondents, joined by their mother, Teofista,
filed a Motion for Reconsideration arguing that the subject properties are co-owned by them and further
informing the RTC of the filing and pendency of Civil Case No. 51203. Nonetheless, the trial court denied
Teofista's and herein respondents' motion, reiterated its previous order, which included, among others, the
order for Teofista and all persons claiming right under her, to vacate the lots subject of the judicial sale.
Undaunted, Teofista and herein respondents filed a petition for certiorari before the CA to annul the
foregoing orders. The appellate court, on July 6, 1987, dismissed Teofista's and herein respondents'
petition, thus:
We believe this petition cannot prosper for two reasons. First, as purported case for certiorari it fails to
show how the respondent judge had acted without or in excess of jurisdiction or with grave abuse of
discretion. The two orders being assailed were preceded by a final judgment, a corresponding writ of
execution, a levy on execution and a judicial sale, all of which enjoy a strong sense presumption of
regularity. cDIHES
Secondly, as far as [petitioner] Teofista Suarez is concerned, she cannot complain about the levy because
she was a party in the consolidated cases where judgment was rendered against her in her personal
capacity. Since she did not appeal from the decision, she cannot say that the judgment is erroneous for an
obligation that belong to the corporation. And with respect to the children of Teofista Suarez, who are co-
petitioners in this proceedings [herein respondents], suffice it to point out that not being parties in the
consolidated cases, what they should have done was to immediately file a third party claim. The moment
levy was made on the parcels of land, which they claim are theirs by virtue of hereditary succession, they
should have seasonably filed such claim to protect their rights. As the record discloses, however, the
children chose to remain silent, and even allowed the auction sale to be held, filing almost a year later a
half-hearted complaint to annul the proceedings which they allowed to be dismissed by not diligently
prosecuting it.

In Santos v. Mojica (10 SCRA 318), a partition case with third-party claimants, the Supreme Court came out
with the following ruling: "The procedure (a petition forcertiorari) followed by him (a petitioner not party to
the original partition case) in vindicating his right is not the one sanctioned by law, for he should have filed
a separate and independent action making parties therein the sheriff and the plaintiffs responsible for the
execution . . . . It can, therefore, be said that (he) acted improperly in filing the present petition because
his remedy was to file a separate and independent action to vindicate his ownership over the land.
WHEREFORE, the petition is denied and the restraining order previously issued is DISSOLVED, with costs
against petitioners. 11
On the other litigation front concerning Civil Case No. 51203, a writ of preliminary injunction was issued by
the RTC Pasig, Branch 155, on February 25, 1985, enjoining petitioner Valente, Violeta, Virginia and Maria
Concepcion from transferring to third parties the levied properties based on its preliminary finding that the
auctioned properties are co-owned by Teofista and herein respondents. Subsequently, however, Civil Case
32

No. 51203 was dismissed by the RTC, Branch 155, at the instance of petitioner Valente for failure of herein
respondents to prosecute. But in yet another turn of events, the RTC, Branch 155, lifted its previous order
of dismissal and directed the issuance of alias summons.
Thus, it was now petitioner Valente's, Violeta's, Virginia's and Maria Concepcion's turn to file a petition
for certiorari with the CA, assailing the various orders of the RTC, Branch 155, which all rejected their bid to
dismiss Civil Case No. 51203. The CA granted their petition, thus: aIAEcD
And the fact that herein private respondents, as the legal heirs of Teofista Vda. de Suarez and supposedly
not parties in Civil Case Nos. 21376 21379 does not preclude the application of the doctrine of res
judicata since, apart from the requisites constitutive of this procedural tenet, they were admittedly the
children of Teofista Suarez, who is the real party-in-interest in the previous final judgment. As successors-
in-interest of Teofista Suarez, private respondents merely stepped into the shoes of their mother in regard
to the levied pieces of property. Verily, there is identity of parties, not only where the parties in both
actions are the same, but where there is privity with them as in the cases of successors-in-interest by title
subsequent to the commencement of the action or where there is substantial identity.
Finally, the action to annul the judicial sale filed by herein private respondents is not the reinvindicatory
suit, much less the third party claim contemplated by Section 17 of Rule 39.
WHEREFORE, the petition for certiorari is hereby granted and the questioned orders dated February 25,
1985, May 19, 1989 and February 26, 1990 issued in Civil Case No. 51203 are hereby annulled; further
respondent judge is ordered to dismiss Civil Case No. 51203. 12
From this ruling, herein respondents appealed to the Supreme Court. In Suarez v. Court of Appeals, 13 we
reversed the appellate court, thus:
Even without touching on the incidents and issues raised by both petitioner [herein respondents] and
private respondents [petitioner Valente, Violeta, Virginia and Maria Concepcion] and the developments
subsequent to the filing of the complaint, [w]e cannot but notice the glaring error committed by the trial
court.
It would be useless to discuss the procedural issue on the validity of the execution and the manner of
publicly selling en masse the subject properties for auction. To start with, only one-half of the 5 parcels of
land [subject properties] should have been the subject of the auction sale.
The law in point is Article 777 of the Civil Code, the law applicable at the time of the institution of the case:
The rights to the succession are transmitted from the moment of the death of the decedent."
Article 888 further provides: DaHISE
"The legitime of the legitimate children and descendants consists of one-half of the hereditary estate of the
father and of the mother.
The latter may freely dispose of the remaining half, subject to the rights of illegitimate children and of the
surviving spouse as hereinafter provided."
Article 892, par. 2 likewise provides:
"If there are two or more legitimate children or descendants, the surviving spouse shall be entitled to a
portion equal to the legitime of each of the legitimate children or descendants."
Thus, from the foregoing, the legitime of the surviving spouse is equal to the legitime of each child.
33

The proprietary interest of petitioners [herein respondents] in the levied and auctioned property is different
from and adverse to that of their mother [Teofista]. Petitioners [herein respondents] became co-owners of
the property not because of their mother [Teofista] but through their own right as children of their
deceased father [Marcelo Sr.]. Therefore, petitioners [herein respondents] are not barred in any way from
instituting the action to annul the auction sale to protect their own interest.
WHEREFORE, the decision of the Court of Appeals dated July 27, 1990 as well as its Resolution of August
28, 1990 are hereby REVERSED and set aside; and Civil Case No. 51203 is reinstated only to determine that
portion which belongs to petitioners and to annul the sale with regard to said portion.
It was at this point when another series of events transpired, culminating in the present petition. 2005jurcd
Upon our reinstatement of Civil Case No. 51203, each and every pleading filed by herein respondents, as
plaintiffs therein, was hotly contested and opposed by therein defendants, including petitioner Valente.
Moreover, even at that stage, when the case had been remanded with a directive to "determine that
portion which belongs to [herein respondents] and to annul the sale with regard to said portion," Civil Case
No. 51203 had to be re-raffled and transferred, for varied reasons, to the different court branches in Pasig
City. In between all these, petitioner Valente, along with the other defendants, repeatedly filed a Motion to
Dismiss Civil Case No. 51203 for the purported failure of herein respondents to prosecute the case. Most of
these Motions to Dismiss were denied.
With each transfer of Civil Case No. 51203, the judge to which the case was raffled had to study the
records anew. Expectedly, part of the records went missing and were lost. On April 12, 1993, the Clerk of
Court of RTC, Branch 71, to which Civil Case No. 51203 was remanded, filed a report on the records of the
case, to wit:
1.The first volume of the record in the above-entitled case was recorded as received on June 20, 1990, by
Sheriff Alejandro O. Loquinario;
2.That the staff of Branch 71 at this time was sharing a small room with Branch 161 at the First Floor of the
Justice Hall, and as the Branch was newly formed, it had no equipment or furniture of its own, and was still
undermanned;
3.That sometime in August 1990, Branch 71 moved to the staffroom of Branch 159 at the Second Floor of
the Justice Hall;
4.That on October 25, 1990, this Court received a Notice of Judgment dated October 22, 1990 from the
Court of Appeals that ruled the dismissal of the above-entitled case, and as per standing instructions of
Judge Graduacion A. Reyes-Claravall, the same was bound as volume 2 of the case;
5.That just before the Christmas vacation in 1991, the branch was forced to hastily move all of its records
and equipment to branch 69, because of the unexpected notice we received that the room we were
occupying was to be demolished in order to meet the schedule for the renovation of the building; TcAECH
6.That unfortunately, the room was demolished before the undersigned could make a last check to see if
everything was transferred;
7.That it was only later on that this office discovered that important documents were indeed lost, including
transcripts of stenographic notes in a case that was submitted for decision;
8.That sometime in May 1992, the branch moved its Office to its present location;
9.That on March 8, 1993, this Court received a copy of a Decision of the Supreme Court reversing the
earlier ruling of the Court of Appeals;
34

10.That it was at this time that the first volume of this case, which was bundled along with other cases
which were decided and/or archived, was reported as missing;
11.That from the time the same was found to be missing, Judge Claravall ordered that a search for the
same be made in all of the offices wherein this branch was forced to share a room with, as well as the
Court of Appeals, in the event that the same was transmitted to said Court;
12.That all the efforts were in vain, as said record could not be located anywhere;
13.That the undersigned now concludes that the first volume of the above-entitled case was probably lost
during the renovation of the Justice Hall Building, and will have to be reconstituted with the use of
documents in the possession of the parties, or documents entered as exhibits in other Courts. 14
In this regard, herein respondents filed a Motion for Reconstitution of Records 15 of the case. Initially,
petitioner Valente, and the other defendants Violeta, Virginia and Maria Concepcion opposed the
motion. 16 However, the trial court eventually granted the motion for reconstitution, and ordered petitioner
Valente and the other defendants to submit a copy of their Answer filed thereat and copies of other
pleadings pertinent to the case. 17 STADIH
Thereafter, three (3) incidents, among numerous others, set off by the parties' pleadings, are worth
mentioning, to wit:
1.A Motion for Leave to File and Admit Supplemental Complaint 18 filed by herein respondents. The
Supplemental Complaint additionally prayed that the levy and sale at public auction of the subject
properties be annulled and set aside, as the bid price was unconscionable and grossly inadequate to the
current value of the subject properties. The Supplemental Complaint further sought a re-bidding with
respect to Teofista's share in the subject properties. Finally, it prayed that TCT No. 6509 in the name of
petitioner Valente, Violeta, Virginia and Maria Concepcion be cancelled and TCT No. 30680 in the name of
Marcelo Suarez, married to Teofista Isagon, be reinstated.

2.A Manifestation and Motion (to Execute/Enforce Decision dated September 4, 1992 of the Supreme
Court) 19 filed by herein respondents pointing out that the Supreme Court itself had noted the current
increased value of the subject properties and that petitioner Valente, Violeta, Virginia and Maria Concepcion
unjustly enriched themselves in appropriating the subject properties worth millions then, for a measly bid
price of P94,170.00, for a judgment obligation worth only P70,000.00.
3.An Urgent Motion [to direct compliance by plaintiffs (herein respondents) with Supreme Court Decision or
to consider the matter submitted without evidence on the part of plaintiffs] 20 filed by therein defendants,
including herein petitioner Valente, pointing out that plaintiffs (herein respondents) have yet to comply with
the RTC, Branch 67 Order commanding them to submit (to the RTC) any evidence showing settlement of
the estate of the deceased Marcelo Suarez, in order for the court to determine the portion in the estate
which belongs to Teofista. The Urgent Motion stated in paragraph 2, thus:
2.The defendants [including herein petitioner Valente] did everything possible to expedite the disposition of
this case while the plaintiffs [herein respondents] did everything possible to DELAY the disposition of the
same obviously because the plaintiffs [herein respondents] are in full possession and enjoyment of the
property in dispute. In its decision of September 4, 1992, the SUPREME COURT nullified TWO final and
executory DECISIONS of the Court of Appeals in an unprecedented action. In said decision, the Supreme
Court ordered the plaintiffs [herein respondents] to establish with evidence their personality as heirs of
Marcelo Suarez, and after being able to do so, to adduce evidence that would determine what portion
35

belongs to plaintiffs hence the above matters need be litigated upon before the RTC can "annul the sale
with regard to said portion" (belonging to the plaintiffs alleged heirs). acAIES
On these incidents, the records reveal the following Orders issued by the different branches of the RTC:
1.Order dated March 17, 1995, issued by Presiding Judge Rodrigo B. Lorenzo of Branch 266, Pasig City,
admitting herein respondents' Supplemental Complaint. 21
2.Order dated January 22, 1996, issued by Judge Apolinario B. Santos resolving: (a) herein respondents'
Manifestation and Motion (to execute/enforce Decision dated September 4, 1992 of the Supreme Court),
and (b) therein defendants' (including herein petitioner Valente's) Request for Answer to Written
Interrogatories. 22 The RTC, Branch 67, resolved the incidents, thus:
From the foregoing uncontroverted facts, this Court is convinced beyond a shadow of doubt that the
Decision of the Supreme Court of September 4, 1992, being the final arbiter in any judicial dispute, should
be implemented for the following reasons:
xxx xxx xxx
On the request for Answers to Written Interrogatories filed by the defendants, it is obvious that at this
stage of the proceedings where the Supreme Court had already pronounced the undisputed facts, which
binds this court, the answer sought to be elicited through written interrogatories, therefore, are entirely
irrelevant, aside from having been filed way out of time.
WHEREFORE, premises considered, this court, implements the decision of the Supreme Court dated
September 4, 1992 which mandates that:
". . . and Civil Case No. 51203 is reinstated only to determine that portion which belongs to petitioner and
to annul the sale with regard to said portion."
In order to enforce such mandate of the Supreme Court, this court orders that: DTcHaA
a.The auction sale of the five (5) parcels of land and all prior and subsequent proceedings in relation
thereto are declared null and void.
b.Transfer Certificate of Title No. 6509 in the name of defendant Valente Raymundo is also declared null
and void, and the Register of Deeds of Rizal, Pasig City, is ordered to issue a new one in the name of the
deceased Marcelo Suarez or to reinstate Transfer Certificate of Title No. 30680 in the name of Marcelo
Suarez.
c.Teofista Suarez is ordered to reimburse the amount of P94,170.00, plus legal interest from the date of
issuance of this order, and failing which, the portion of the estate of Marcelo Suarez belonging to the
surviving spouse, Teofista Suarez, may be levied on execution.
d.[Herein respondents], including Teofista Suarez, are hereby ordered to submit to this court any evidence
showing settlement of the estate of the deceased, Marcelo Suarez, in order for this court to determine the
portion in the estate which belongs to Teofista Suarez.
Therein defendants, including petitioner Valente, filed a Motion for Reconsideration which the trial court
denied on May 29, 1996.
3.Order dated September 10, 1996, issued by Judge Santos denying the appeal interposed by petitioner
Valente from the January 22, 1996 and May 29, 1996 Orders, ruling that these are interlocutory orders,
and, therefore, not appealable. 23
4.Order dated April 8, 1999, issued by Pairing Judge Santiago Estrella which declared, thus:
36

Considering that counsel for the plaintiffs does not have the birth certificates of the heirs of the plaintiff to
prove their affiliation with the deceased which is one of the matters written in the decision of the higher
court which must be complied with, and in order for counsel for the plaintiffs [herein respondents] to have
the opportunity to complete all documentary evidence and in view of abbreviating the proceedings and as
prayed for, today's scheduled pre-trial is re-set for the last time to May 19, 1999 at 8:30 a.m. AaECSH
In this connection, counsel for plaintiffs [herein respondents] is advised to secure all the documentary
evidence she needs material to this case which will expedite the disposition of this case. 24
This last Order and therein defendants' Urgent Motion spawned another contentious issue between the
parties. In this connection, Judge Estrella issued an Order 25 requiring the parties to file their respective
position papers due to the "divergent views on the nature of the hearing that should be conducted in
compliance with" our decision inSuarez. Both parties duly filed their position papers, with herein
respondents attaching thereto a copy of the Extrajudicial Settlement of Estate executed by the heirs of
Marcelo Suarez in 1957.
In resolving this latest crossfire between the parties, the RTC, Branch 67, issued an Order dated January
11, 2000, which reads, in part:
This Court is of the view that the Honorable Supreme Court is not a trier of facts, precisely it directed that
the records of this case be remanded to the Regional Trial Court for further proceedings.
xxx xxx xxx
It is a matter of record that there was no trial on the merits completed in the Regional Trial Court. . . . The
Supreme Court reversed the judgment of the Court of Appeals and ordered the reinstatement of Civil Case
No. 51203. Naturally, there was no trial on the merits before this Court that allowed the parties to adduce
evidence to establish their respective claims in the plaintiffs' [herein respondents] complaint and in the
defendants' [including petitioner Valente] counter-claim, respectively. It is in this context that the
Honorable Supreme Court reinstated the "action [of herein respondents] to annul the auction sale to
protect their [herein respondents] own interest.
While this Court is of the view that trial on the merits is necessary for the purpose of giving the plaintiffs
[herein respondents] a chance to adduce evidence to sustain their complaint and the defendants [including
petitioner Valente] to prove their defense, consistent with the directive of the Honorable Supreme Court (in
its Decision promulgated on September 4, 1992), the Court is, however, confronted with the very recent
decision of the Honorable Supreme Court in "Heirs of Guido Yaptinchay, et al. vs. Del Rosario, et al., G.R.
No. 124320, March 2, 1999" where it held that AIDTSE
The declaration of heirship must be made in an administration proceeding, and not in an independent civil
action. This doctrine was reiterated in Solve vs. Court of Appeals (182 SCRA 119, 128). The trial court
cannot make a declaration of heirship in the civil action for the reason that such a declaration can only be
made in a special proceeding. Under Section 3, Rule 1 of the 1997 Revised Rules of Court, a civil action is
defined as "one by which a party sues another for the enforcement or protection of a right, or the
prevention or redress of a wrong" while a special proceeding is "a remedy by which a party seeks to
establish a status, a right, or a particular fact." It is then decisively clear that the declaration of heirship can
be made only in a special proceeding inasmuch as the petitioners here are seeking the establishment of a
status or right.
In as much as the leading case on the matter is that of "Heirs of Yaptinchay v. Del Rosario, G.R. No.
124320, March 2, 1999" it is left with no choice but to obey said latter doctrine.
37

WHEREFORE, the foregoing premises considered, this Court holds that in the light of the doctrine laid down
in the case of "Heirs of Yaptinchay vs. Del Rosario, G.R. No. 124320, March 2, 1999" this case is dismissed
without prejudice to the plaintiffs' [herein respondents'] filing a special proceeding consistent with said
latest ruling.26
Herein respondents moved for reconsideration thereof which, however, was denied by the RTC, Branch 67
on March 14, 2000. 27
Consequently, herein respondents filed a petition for certiorari before the CA alleging grave abuse of
discretion in the trial court's order dismissing Civil Case No. 51203 without prejudice. All the defendants in
the trial court were impleaded as private respondents in the petition. Yet, curiously, only petitioner Valente
filed a Comment thereto. The appellate court granted the petition, recalled and set aside RTC, Branch 67's
Orders dated January 11, 2000 and March 14, 2000, and reinstated Judge Santos' Orders dated May 29,
1996 and September 6, 1996. It disposed of the petition, thus:

We agree with [herein respondents]. EIAScH
On September 4, 1992, the Supreme Court (G.R. No. 94918) reversed the decision of the Court of Appeals
and mandates that Civil Case No. 51203 be reinstated in order to determine the portion in the estate which
belongs to Teofista Suarez. The sale of the parcels of land was declared null and void. Necessarily, the title
(TCT No. 5809) in the name of respondents was also declared null and void. . . .
xxx xxx xxx
Hon. Apolinario Santos of Br. 67, Regional Trial Court, Pasig City, on January 22, 1996 and on motion of
[herein respondents], issued an order to execute/enforce the decision of the Supreme Court . . . .
xxx xxx xxx
[Petitioner Valente, Violeta, Virginia and Maria Concepcion] filed a notice of appeal on the order of Judge
Santos. The appeal, on motion of [herein respondents] was denied on September 10, 1996. Obviously, the
decision of the Supreme Court had become final and executory. Likewise, both orders of Judge Santos
dated May 29, 1996 denying the motion for reconsideration and the denial of the notice of appeal dated
September 6, 1996 had also become final and executory.
The denial of petitioner Valente's Motion for Reconsideration prompted the filing of this present petition
for certiorari.
Petitioner Valente posits that the appellate court committed grave abuse of discretion in recalling and
setting aside the Orders of Judge Estrella and reinstating those of Judge Santos because:
1.The CA ruled that the Orders dated May 29, 1996 and September 6, 1996 issued by Judge Santos were
final and executory, and yet the latter did not allow an appeal to be taken therefrom ratiocinating that the
questioned orders were interlocutory, and therefore, not appealable; and
2.The CA ignored and violated the Supreme Court's ruling in Heirs of Yaptinchay v. Del Rosario 28 which
held that a declaration of heirship must be made in a special proceeding and not in a civil action.
We find the petition bereft of merit. DEcITS
At the outset, we note that petitioner Valente incorrectly filed a petition for certiorari to appeal the CA
decision. Petitioner should have filed a petition for review on certiorariunder Rule 45 of the Rules of Court.
Simply imputing in a petition that the decision sought to be reviewed is tainted with grave abuse of
38

discretion does not magically transform a petition into a special civil action for certiorari. The CA decision
disposed of the merits of a special civil action, an original petition, filed thereat by herein respondents. That
disposition is a final and executory order, appealable to, and may be questioned before, this Court by
persons aggrieved thereby, such as petitioner Valente, via Rule 45.
On this score alone, the petition should have been dismissed outright. However, we have disregarded this
procedural flaw and now resolve this case based on the merits or lack thereof.
Petitioner asseverates that the assailed CA ruling "is unfair and it amounts to a trickery to prevent an
appeal against a final order by claiming that the appealed order is merely interlocutory and later maintain
that the same order has become final after declaring it to be interlocutory."
We reject petitioner's paltry contention. Petitioner apparently does not comprehend the distinction between
an interlocutory order which is final and executory, and a final order which disposes of the controversy or
case; much less, understand the available remedies therefrom.
We have defined an interlocutory order as referring to something between the commencement and the end
of the suit which decides some point or matter but it is not the final decision on the whole
controversy. 29 It does not terminate or finally dismiss or finally dispose of the case, but leaves something
to be done by the court before the case is finally decided on the merits. 30 Upon the other hand, a final
order is one which leaves to the court nothing more to do to resolve the case. 31
On more than one occasion, we laid down the test to ascertain whether an order is interlocutory or
final i.e., "Does it leave something to be done in the trial court with respect to the merits of the case?" If it
does, it is interlocutory; if it does not, it is final. The key test to what is interlocutory is when there is
something more to be done on the merits of the case. 32 The Orders dated May 29, 1996 and September
6, 1996 issued by Judge Santos are interlocutory, and therefore, not appealable, as they leave something
more to be done on the merits of the case. In fact, in paragraph (d) of Judge Santos' Order dated May 29,
1996, herein respondents were directed to submit evidence showing settlement of the estate of the
deceased Marcelo Sr. IDTcHa
Contrary to petitioner Valente's stance, there is no trickery or chicanery in the CA's distinction between an
interlocutory and a final order. Indeed, as ruled by the CA, the RTC Order denying petitioner Valente's
Notice of Appeal attained finality when he failed to file a petition for certiorari under Rule 65 of the Rules of
Court.
We cannot overemphasize the rule that the correct identification of the nature of an assailed order
determines the remedies available to an aggrieved party. The old Rules of Court in Section 2, Rule 41
reads, thus:
SEC. 2.Judgments or orders subject to appeal. Only final judgments or orders shall be subject to appeal.
No interlocutory or incidental judgment or order shall stay the progress of an action, nor shall it be the
subject of appeal until final judgment or order is rendered for one party or the other.
xxx xxx xxx
With the advent of the 1997 Rules of Civil Procedure, Section 1, Rule 41 now provides for the appropriate
remedy to be taken from an interlocutory order, thus:
SEC. 1.Subject of appeal. An appeal may be taken from a judgment or final order that completely
disposes of the case, or of a particular matter therein when declared by these Rules to be appealable.
No appeal may be taken from:
39

xxx xxx xxx
(c)An interlocutory order;
xxx xxx xxx
In all the above instances where the judgment or final order is not appealable, the aggrieved party may file
an appropriate special civil action under Rule 65.
Clearly, the denial of therein defendants' (including petitioner Valente's) appeal from the Orders dated May
29, 1996 and September 6, 1996 was in order. Thus, the CA decision affirming the RTC's denial was
correct. ECaScD
Further, on this crucial distinction as applied to this case, petitioner Valente filed a petition
for certiorari from the CA decision in CA-G.R. SP No. 58090, which is not an interlocutory order. It is a final
order which completely disposed of the merits of the case with nothing more left to be done therein. The
correct and available remedy available to petitioner Valente was, as previously discussed, a petition for
review on certiorari under Rule 45 of the Rules of Court.
In fine, petitioner Valente erroneously sought relief through reversed remedies. He tried to appeal the
interlocutory orders of the RTC which are unappealable. Thus, the RTC properly denied his Notice of
Appeal, and the CA correctly upheld the RTC. He should have filed a petition for certiorari; under Rule 65.
On the other hand, from the final order of the CA, he comes before this Court on a petition
for certiorari under Rule 65, when the proper remedy is an appeal by certiorari under Rule 45.
In the recent case of Jan-Dec Construction Corporation v. Court of Appeals 33 we ruled in this wise:
As a rule, the remedy from a judgment or final order of the CA is appeal via petition for review under Rule
45 of the Rules.
Under Rule 45, decisions, final orders or resolutions of the CA in any case,i.e., regardless of the nature of
the action or proceedings involved, may be appealed to the Court by filing a petition for review, which
would be but a continuation of the appellate process over the original case. It seeks to correct errors of
judgment committed by the court, tribunal, or officer. In contrast, a special civil action for certiorari under
Rule 65 is an independent action based on the specific grounds therein provided and proper only if there is
no appeal or any plain, speedy and adequate remedy in the ordinary course of law. It is an extraordinary
process for the correction of errors of jurisdiction and cannot be availed of as a substitute for the lost
remedy of an ordinary appeal.
Independently of this procedural infirmity, even on the merits of the case, the petition does not fare
otherwise. It must be dismissed for lack of merit. AHEDaI
Petitioner Valente insists that, following our ruling in Heirs of Yaptinchay v. Del Rosario, 34 herein
respondents must first be declared heirs of Marcelo Sr. before they can file an action to annul the judicial
sale of what is, undisputedly, conjugal property of Teofista and Marcelo Sr.
We disagree. Our ruling in Heirs of Yaptinchay is not applicable.
Herein respondents' status as legitimate children of Marcelo Sr. and Teofista and thus, Marcelo Sr.'s heirs
has been firmly established, and confirmed by this Court inSuarez v. Court of Appeals. 35 True, this
Court is not a trier of facts, 36 but as the final arbiter of disputes, 37 we found and so ruled that herein
respondents are children, and heirs of their deceased father, Marcelo Sr. This having been settled, it should
no longer have been a litigated issue when we ordered a remand to the lower court. In short, petitioner
Valente's, Violeta's, Virginia's, and Maria Concepcion's representation in the RTC that our ruling
40

in Suarez required herein respondents to present evidence of their affiliation with the deceased, Marcelo
Sr., is wrong.
As was set forth in the dispositive portion of Suarez, "Civil Case No. 51203 is reinstated only to determine
that portion which belongs to [herein respondents] and to annul the sale with regard to said portion."
There is clearly no intimation in our decision for the RTC to have to determine an already settled issue i.e.,
herein respondents' status as heirs of Marcelo Sr.

Moreover, petitioner Valente cannot assail, directly or indirectly, the status of herein respondents as
legitimate children of Marcelo Sr. and Teofista, and likewise demand that herein respondents first prove
their filiation to Marcelo Sr. The following records bear out Marcelo, Sr.'s and Teofista's paternity of herein
respondents, and the latter's status as legitimate children:
1.The CA decision in CA-G.R. SP Nos. 10646 to 10649 where Teofista, along with herein respondents,
questioned the RTC, Branch 151's Orders dated October 10, 1984 and October 14, 1986. Although the CA
ruled against Teofista and herein respondents, it explicitly recognized the latter's status as legitimate
children of Teofista and Marcelo Sr.; and 38 acHITE
2.The CA decision in CA-G.R. SP No. 20320 which incorrectly ruled that herein respondents were, as
children of Teofista, merely successors-in-interest of the latter to the property and by virtue thereof, bound
by the judgment in Civil Case Nos. 21376 to 21379 consistent with the doctrine of res judicata. 39 We
subsequently reversed this ruling on the wrong application of res judicata in the conclusive case
of Suarez. We retained and affirmed, however, the CA's factual finding of herein respondents' status as
heirs of Marcelo Sr. We categorically held therein that "the proprietary interest of [herein respondents] in
the levied and auctioned [properties] is different from and adverse to that of [Teofista]. [Herein
respondents] became co-owners of the property not because of [Teofista] but through their own right as
children of their deceased father [, Marcelo Sr.]." Clearly, herein respondents' long possessed status of
legitimate children of Marcelo Sr. and Teofista cannot be indirectly or directly attacked by petitioner Valente
in an action to annul a judicial sale.
Articles 262, 40 263, 41 265 and 266 42 of the Civil Code, the applicable law at the time of Marcelo's
death, support the foregoing conclusion, to wit:
Art. 262.The heirs of the husband may impugn the legitimacy of the child only in the following cases:
(1)If the husband should die before the expiration of the period fixed for bringing his action;
(2)If the husband should die after the filing of the complaint, without having desisted from the same;
(3)If the child was born after the death of the husband.
Art. 263.The action to impugn the legitimacy of the child shall be brought within one year from the
recording of birth in the Civil Register, if the husband should be in the same place, or in a proper case, any
of his heirs.
If he or his heirs are absent, the period shall be eighteen months if they should reside in the Philippines;
and two years if abroad. If the birth of the child has been concealed, the term shall be counted from the
discovery of the fraud. AEIDTc
Art. 265.The filiation of legitimate children is proved by the record of birth appearing in the Civil Register, or
by an authentic document or a final judgment.
41

Art. 266.In the absence of the titles indicated in the preceding article, the filiation shall be proved by the
continuous possession of status of a legitimate child.
In Heirs of Yaptinchay, the complaint for annulment and/or declaration of nullity of certain TCT's was
dismissed for failure of the petitioners to demonstrate "any proof or even a semblance of it" that they had
been declared the legal heirs of the deceased couple, the spouses Yaptinchay. In stark contrast, the
records of this case reveal a document, an Extrajudicial Settlement of Marcelo Sr.'s estate, which explicitly
recognizes herein respondents as Marcelo Sr.'s legitimate children and heirs. The same document settles
and partitions the estate of Marcelo Sr. specifying Teofista's paraphernal properties, and separates the
properties she owns in common with her children, herein respondents. Plainly, there is no need to re-
declare herein respondents as heirs of Marcelo Sr., and prolong this case interminably.
Petitioner Valente, along with Violeta, Virginia and Maria Concepcion, became owners of the subject
properties only by virtue of an execution sale to recover Teofista's judgment obligation. This judgment
obligation is solely Teofista's, and payment therefor cannot be made through an execution sale of
properties not absolutely owned by her. These properties were evidently conjugal properties and were, in
fact, even titled in the name of Marcelo, Sr. married to Teofista. Thus, upon Marcelo Sr.'s death, by virtue
of compulsory succession, Marcelo Sr.'s share in the conjugal partnership was transmitted by operation of
law to his compulsory heirs.
Compulsory succession is a distinct kind of succession, albeit not categorized as such in Article 778 43 of
the Civil Code. It reserves a portion of the net estate of the decedent in favor of certain heirs, or group of
heirs, or combination of heirs, prevailing over all kinds of succession. 44 The portion that is so reserved is
the legitime. Article 886 of the Civil Code defines legitime as "that part of the testator's property which he
cannot dispose of because the law has reserved it for certain heirs who are, therefore, called compulsory
heirs." Herein respondents are primary compulsory heirs, 45 excluding secondary compulsory heirs, 46 and
preferred over concurring compulsory heirs in the distribution of the decedent's estate. 47 EaCSTc
Even without delving into the Extrajudicial Settlement of Marcelo Sr.'s estate in 1957, it must be stressed
that herein respondents' rights to the succession vested from the moment of their father's death. 48 Herein
respondents' ownership of the subject properties is no longer inchoate; it became absolute upon Marcelo's
death, although their respective shares therein remained pro indiviso. Ineluctably, at the time the subject
properties were sold on execution sale to answer for Teofista's judgment obligation, the inclusion of herein
respondents' share therein was null and void.
In fine, Teofista's ownership over the subject properties is not absolute. Significantly, petitioner Valente
does not even attempt to dispute the conjugal nature of the subject properties. Since Teofista owns only a
portion of the subject properties, only that portion could have been, and was actually, levied upon and sold
on auction by the provincial sheriff of Rizal. Thus, a separate declaration of heirship by herein respondents
is not necessary to annul the judicial sale of their share in the subject properties.
We note the recent case of Portugal v. Portugal-Beltran, 49 where we scrutinized our rulings in Heirs of
Yaptinchay and the cited cases of Litam v. Rivera 50 and Solivio v. Court of Appeals, 51 and Guilas v. CFI
Judge of Pampanga 52 cited in Solivio. We ruled thus:
The common doctrine in Litam, Solivio and Guilas in which the adverse parties are putative heirs to the
estate of a decedent or parties to the special proceedings for its settlement is that if the special
proceedings are pending, or if there are no special proceedings filed but there is, under the circumstances
of the case, a need to file one, then the determination of, among other issues, heirship should be raised
and settled in said special proceedings. Where special proceedings had been instituted but had been finally
closed and terminated, however, or if a putative heirs has lost the right to have himself declared in the
special proceedings as co-heir and he can no longer ask for its re-opening, then an ordinary civil action can
42

be filed for his declaration as heir in order to bring about the annulment of the partition or distribution or
adjudication of a property or properties belonging to the estate of the deceased. aCIHAD
In the case at bar, respondent, believing rightly or wrongly that she was the sole heir to Portugal's estate,
executed on February 15, 1988 the questioned Affidavit of Adjudication under the second sentence of Rule
74, Section of the Revised Rules of Court. Said rule is an exception to the general rule that when a person
dies leaving property, it should be judicially administered and the competent court should appoint a
qualified administrator, in the order established in Sec. 6, Rule 78 in case the deceased left no will, or in
case he did, he failed to name an executor therein.
xxx xxx xxx
It appearing, however, that in the present case the only property of the intestate estate of Portugal is the
Caloocan parcel of land, to still subject it, under the circumstances of the case, to a special proceeding
which could be long, hence, not expeditious, just to establish the status of petitioners as heirs is not only
impractical; it is burdensome to the estate with the costs and expenses of an administration proceedings.
And it is superfluous in light of the fact that the parties to the civil case subject of the present case,
could and had already in fact presented evidence before the trial court which assumed jurisdiction over the
case upon the issues it defined during pre-trial.
In fine, under the circumstances of the present case, there being no compelling reason to still
subject Portugal's estate to administration proceedings since a determination of petitioners'
status as heirs could be achieved in the civil case filed by petitioners . . . . 53
All told, under the circumstances, in addition to the already settled status of herein respondents as heirs of
Marcelo Sr., there is no need to dismiss Civil Case No. 51203 and require herein respondents to institute a
separate special proceeding for a declaration of their heirship.
WHEREFORE, premises considered, the petition is DENIED. The Decision of the Court of Appeals in CA-G.R.
SP No. 58090 is AFFIRMED. The Orders dated May 29, 1996 and September 6, 1996 issued by Judge
Santos are REINSTATED. Costs against the petitioner.
SO ORDERED.

[G.R. No. 172248. September 17, 2008.]
DEVELOPMENT BANK OF THE PHILIPPINES, petitioner, vs. ELLA GAGARANI, ISAGANI, ADRIAN,
NATHANIEL, NIEVA, JONATHAN, DIONESIO, FLORENCE and JEREMIAS, all surnamed
ASOK, respondents.
R E S O L U T I O N
CORONA, J p:
This is a petition for review on certiorari 1 of the December 14, 2005 decision 2 and March 28, 2006
resolution 3 of the Court of Appeals (CA) in CA-G.R. CV No. 64259. aAHDIc
The spouses Dionesio and Matea S. Asok owned several parcels of land. Upon their death on September
14, 1973 and February 22, 1982, respectively, their eleven children inherited the properties. One of the
lands inherited was a lot covered by Original Certificate of Title (OCT) No. P-4272, a free patent issued on
July 19, 1967, located at Pagawan, Manticao, Misamis Oriental with an area of 39,552 sq. m. 4
43

Pursuant to the extrajudicial settlement of the estate with quitclaim executed by the spouses' children, the
subject property was inherited by Denison Asok (Asok). As a result, OCT No. P-4272 was cancelled and
Transfer Certificate of Title (TCT) No. T-9626 was issued and registered in his name on November 17,
1987. 5
On August 31, 1989, Asok and his wife, respondent Ella Gagarani Asok, borrowed P100,000 from petitioner
Development Bank of the Philippines, a government financial institution created and operating under EO
81, 6 as amended by RA 8523. They mortgaged the subject lot as collateral to guarantee payment of the
loan. On due date, however, they failed to pay the loan and the mortgage was extrajudicially foreclosed
pursuant to Act 3135. 7 Petitioner emerged as the highest bidder with a bid of P163,297. 8
On November 28, 1991, a certificate of sale was issued in favor of petitioner. This was registered on
December 24, 1992. 9 On March 25, 1998, petitioner's ownership over the property was consolidated and
TCT No. T-27172 was issued in its name. 10
Meanwhile, Asok died on October 24, 1993 and was succeeded by his surviving spouse and children
(respondents). 11
On May 15, 1998, respondents filed a complaint for repurchase against petitioner in the Regional Trial
Court (RTC) of Initao, Misamis Oriental, Branch 44, docketed as Civil Case No. 98-68. On July 3, 1998, they
filed an amended complaint on learning that TCT No. T-9626 had been cancelled by TCT No. T-27172
issued in the name of petitioner. They invoked their right to repurchase the property under Sec. 119 of CA
141, as amended: 12
Sec. 119.Every conveyance of land acquired under the free patent or homestead provisions, when proper,
shall be subject to repurchase by the applicant, his widow, or legal heirs, within a period of five years from
date of the conveyance.
In a decision dated January 7, 1999, the RTC dismissed the complaint. Reconsideration was denied on
February 3, 1999. 13 It ruled that the one-year period for redemption should be reckoned from the date of
sale, i.e., November 28, 1991. Then the five-year period provided under Sec. 119 of CA 141 should be
counted from the expiration of the redemption period, i.e., November 28, 1992. Therefore, respondents
had until November 28, 1997 to exercise their right to repurchase. However, the complaint was filed on
May 15, 1998 which was beyond the prescribed period. 14
Aggrieved, respondents appealed to the CA. In a decision dated December 14, 2005, the CA reversed and
set aside the RTC decision. Reconsideration was denied in a resolution dated March 28, 2006. It held that
the period of redemption started from the date of registration of the certificate of sale, i.e., December 24,
1992, and not from the date of sale. Thus, respondents had until December 24, 1998 to repurchase the
property and the complaint was seasonably filed. 15 ESaITA
Hence this petition.
Petitioner raises the following issues: (1) whether Sec. 119 of CA 141 is applicable in this case; (2) whether
respondents are the legal heirs of the patentees and (3) whether the right to repurchase has already
prescribed.
The petition lacks merit.
Petitioner contends that respondents cannot claim the right under Sec. 119 which covers homesteads and
free patents because the free patent issued to Asok's parents had already been cancelled and a new TCT
had in fact been issued to him. Thus, the property mortgaged to it was no longer covered by a free patent
but by a TCT. 16
44

This contention deserves scant consideration.
The plain intent of Sec. 119 is to give the homesteader or patentee every chance to preserve and keep in
the family the land that the State has gratuitously given him as a reward for his labor in cleaning,
developing and cultivating it. 17 Hence, the fact that the land had been inherited by the patentees' son
(and a new title in his name issued) does not bring it outside the purview of Sec. 119. In fact, the policy
behind the law is fulfilled because the land remains in the family of the patentee. As we explained in Ferrer
v. Mangente: 18
The applicant for a homestead is to be given all the inducement that the law offers and is entitled to its full
protection. Its blessings, however, do not stop with him. This is particularly so in this case as the appellee
is the son of the deceased. There is no question then as to his status of being a legal heir. The policy of the
law is not difficult to understand. The incentive for a pioneer to venture into developing virgin land
becomes more attractive if he is assured that his effort will not go for naught should perchance his life be
cut short. This is merely a recognition of how closely bound parents and children are in a Filipino family.
Logic, the sense of fitness and of right, as well as pragmatic considerations thus call for continued
adherence to the policy that not the individual applicant alone but those so closely related to him as are
entitled to legal succession may take full advantage of the benefits the law confers. 19
Having ruled that Sec. 119 is applicable to this case, we now go to the next issue: are respondents the
"legal heirs" contemplated in the provision?
Petitioner argues that respondents are not the legal heirs of the patentees because respondents are merely
their daughter-in-law and grandchildren.
We disagree. In line with the rationale behind Sec. 119, we reject a restricted definition of legal heirs. It is
used in a broad sense and the law makes no distinctions. 20 InMadarcos v. de la Merced, 21 we held that:
The term "legal heirs" is used in Section 119 in a generic sense. It is broad enough to cover any person
who is called to the succession either by provision of a will or by operation of law. Thus, legal heirs include
both testate and intestate heirs depending upon whether succession is by the will of the testator or by law.
Legal heirs are not necessarily compulsory heirs but they may be so if the law reserves a legitime for
them. EHCcIT
xxx xxx xxx
Verily, petitioners are legal heirs. Having been decreed under the rules on intestacy as entitled to succeed
to the estate of the Catain spouses due to the absence of compulsory heirs, they now step into the shoes of
the decedents. They should be considered as among the legal heirs contemplated by Section 119 as
entitled to redeem the homestead.
The above interpretation of "legal heirs" as contra-distinguished from the restrictive construction given it by
the lower court is more in keeping with the salutary purpose behind the enactment of Section 119 and the
jurisprudence laid down on the matter. Indeed, it is not far-fetched to arrive at a more liberal conclusion if
the section is analyzed in accordance with its purpose . . . 22
Respondents inherited the property from Asok, their husband and father, who in turn inherited it from his
parents. Respondent Ella Gagarani Asok, as daughter-in-law of the patentees, can be considered as among
the legal heirs who can repurchase the land in accordance with Salenillas v. CA. 23 In that case, we
allowed the daughter and son-in-law of the patentees to repurchase the property because this would be
"more in keeping with the spirit of the law. We have time and again said that between two statutory
interpretations, that which better serves the purpose of the law should prevail". 24 Furthermore, the law
must be liberally construed in order to carry out its purpose. 25
45

Finally, petitioner asserts that even if respondents could be considered as being entitled to the right under
Sec. 119, this had already prescribed because the period should be counted from the date of conveyance
which means the date of sale and not the date of registration of the certificate of sale.
This argument lacks merit.
This is far from a novel issue. It was already resolved in Rural Bank of Davao City, Inc. v. CA: 26
Thus, the rules on redemption in the case of an extrajudicial foreclosure of land acquired under free patent
or homestead statutes may be summarized as follows: . . . If the land is mortgaged to parties other than
rural banks, the mortgagor may redeem the property within one (1) year from the registration of the
certificate of sale pursuant to Act No. 3135. If he fails to do so, he or his heirs may repurchase the
property within five (5) years from the expiration of the redemption period also pursuant to Section 119 of
the Public Land Act. 27 HTcADC
There is no dispute that in extrajudicial foreclosures under Act 3135, the debtor or his or her successors-in-
interest may redeem the property within one year. This redemption period should be reckoned from the
date of registration of the certificate of sale. 28 The five-year period fixed in Sec. 119 begins to run from
the expiration of the one-year redemption period. 29 Here, the certificate of sale was registered on
December 24, 1992 and the one-year redemption period expired on December 24, 1993. Reckoned from
that day, respondents had a five-year period, or until December 24, 1998, to exercise their right to
repurchase under Sec. 119 of CA 141. Consequently, the CA was correct in holding that the complaint filed
on May 15, 1998 was on time.

WHEREFORE, the petition is hereby DENIED. Petitioner Development Bank of the Philippines is ordered to
execute a deed of reconveyance in favor of respondents upon payment by the latter of the redemption
price. aETADI
No costs.
SO ORDERED.

Requisites of a formal will
[G.R. No. 145545. June 30, 2008.]
PAZ SAMANIEGO-CELADA, petitioner, vs. LUCIA D. ABENA, respondent.
D E C I S I O N
QUISUMBING, J p:
This is a petition for review under Rule 45 of the 1997 Rules of Civil Procedure seeking to reverse the
Decision 1 dated October 13, 2000 of the Court of Appeals in CA-G.R. CV No. 41756, which affirmed the
Decision 2 dated March 2, 1993 of the Regional Trial Court (RTC), Branch 66, Makati City. The RTC had
declared the last will and testament of Margarita S. Mayores probated and designated respondent Lucia D.
Abena as the executor of her will. It also ordered the issuance of letters testamentary in favor of
respondent.
The facts are as follows:
46

Petitioner Paz Samaniego-Celada was the first cousin of decedent Margarita S. Mayores (Margarita) while
respondent was the decedent's lifelong companion since 1929. CTAIDE
On April 27, 1987, Margarita died single and without any ascending nor descending heirs as her parents,
grandparents and siblings predeceased her. She was survived by her first cousins Catalina Samaniego-
Bombay, Manuelita Samaniego Sajonia, Feliza Samaniego, and petitioner.
Before her death, Margarita executed a Last Will and Testament 3 on February 2, 1987 where she
bequeathed one-half of her undivided share of a real property located at Singalong Manila, consisting of
209.8 square meters, and covered by Transfer Certificate of Title (TCT) No. 1343 to respondent, Norma A.
Pahingalo, and Florentino M. Abena in equal shares or one-third portion each. She likewise bequeathed
one-half of her undivided share of a real property located at San Antonio Village, Makati, consisting of 225
square meters, and covered by TCT No. 68920 to respondent, Isabelo M. Abena, and Amanda M. Abena in
equal shares or one-third portion each. Margarita also left all her personal properties to respondent whom
she likewise designated as sole executor of her will. HacADE
On August 11, 1987, petitioner filed a petition for letters of administration of the estate of Margarita before
the RTC of Makati. The case was docketed as SP Proc. No. M-1531.
On October 27, 1987, respondent filed a petition for probate of the will of Margarita before the RTC of
Makati. The case was docketed as SP Proc. No. M-1607 and consolidated with SP Proc. No. M-1531.
On March 2, 1993, the RTC rendered a decision declaring the last will and testament of Margarita probated
and respondent as the executor of the will. The dispositive portion of the decision states:
In view of the foregoing, judgment is hereby rendered:
1)declaring the will as probated;
2)declaring Lucia Abena as the executor of the will who will serve as such without a bond as stated in
paragraph VI of the probated will;
3)ordering the issuance of letters testamentary in favor of Lucia Abena. IAETSC
So ordered. 4
Petitioner appealed the RTC decision to the Court of Appeals. But the Court of Appeals, in a decision dated
October 13, 2000, affirmed in toto the RTC ruling. The dispositive portion of the Court of Appeals' decision
states:
WHEREFORE, foregoing premises considered, the appeal having no merit in fact and in law, is
hereby ORDERED DISMISSED and the appealed Decision of the trial court AFFIRMED IN TOTO, with
cost to oppositors-appellants.
SO ORDERED. 5
Hence, the instant petition citing the following issues:
I.
WHETHER OR NOT THE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR IN NOT INVALIDATING
THE WILL SINCE IT DID NOT CONFORM TO THE FORMALITIES REQUIRED BY LAW;
II.
WHETHER OR NOT THE COURT OF APPEALS COMMITTED ERROR IN NOT INVALIDATING THE WILL
BECAUSE IT WAS PROCURED THROUGH UNDUE INFLUENCE AND PRESSURE[;] AND HSaIDc
47

III.
WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED IN NOT DECLARING PETITIONER, HER
SIBLINGS AND COUSIN AS THE LEGAL HEIRS OF MARGARITA S. MAYORES AND IN NOT ISSUING LETTERS
OF ADMINISTRATION TO HER. 6
Briefly stated, the issues are (1) whether the Court of Appeals erred in not declaring the will invalid for
failure to comply with the formalities required by law, (2) whether said court erred in not declaring the will
invalid because it was procured through undue influence and pressure, and (3) whether it erred in not
declaring petitioner and her siblings as the legal heirs of Margarita, and in not issuing letters of
administration to petitioner. cCaSHA
Petitioner, in her Memorandum, 7 argues that Margarita's will failed to comply with the formalities required
under Article 805 8 of the Civil Code because the will was not signed by the testator in the presence of the
instrumental witnesses and in the presence of one another. She also argues that the signatures of the
testator on pages A, B, and C of the will are not the same or similar, indicating that they were not signed
on the same day. She further argues that the will was procured through undue influence and pressure
because at the time of execution of the will, Margarita was weak, sickly, jobless and entirely dependent
upon respondent and her nephews for support, and these alleged handicaps allegedly affected her freedom
and willpower to decide on her own. Petitioner thus concludes that Margarita's total dependence on
respondent and her nephews compelled her to sign the will. Petitioner likewise argues that the Court of
Appeals should have declared her and her siblings as the legal heirs of Margarita since they are her only
living collateral relatives in accordance with Articles 1009 9 and 1010 10 of the Civil Code. HaTAEc
Respondent, for her part, argues in her Memorandum 11 that the petition for review raises questions of
fact, not of law and as a rule, findings of fact of the Court of Appeals are final and conclusive and cannot be
reviewed on appeal to the Supreme Court. She also points out that although the Court of Appeals at the
outset opined there was no compelling reason to review the petition, the Court of Appeals proceeded to
tackle the assigned errors and rule that the will was validly executed, sustaining the findings of the trial
court that the formalities required by law were duly complied with. The Court of Appeals also concurred
with the findings of the trial court that the testator, Margarita, was of sound mind when she executed the
will.
After careful consideration of the parties' contentions, we rule in favor of respondent.
We find that the issues raised by petitioner concern pure questions of fact, which may not be the subject of
a petition for review on certiorari under Rule 45 of the Rules of Civil Procedure.
The issues that petitioner is raising now i.e., whether or not the will was signed by the testator in the
presence of the witnesses and of one another, whether or not the signatures of the witnesses on the pages
of the will were signed on the same day, and whether or not undue influence was exerted upon the
testator which compelled her to sign the will, are all questions of fact.
This Court does not resolve questions of fact in a petition for review under Rule 45 of the 1997 Rules of
Civil Procedure. Section 1 12 of Rule 45 limits this Court's review to questions of law only. THaDEA
Well-settled is the rule that the Supreme Court is not a trier of facts. When supported by substantial
evidence, the findings of fact of the Court of Appeals are conclusive and binding on the parties and are not
reviewable by this Court, unless the case falls under any of the following recognized exceptions:
(1)When the conclusion is a finding grounded entirely on speculation, surmises and conjectures;
(2)When the inference made is manifestly mistaken, absurd or impossible;
48

(3)Where there is a grave abuse of discretion;
(4)When the judgment is based on a misapprehension of facts;
(5)When the findings of fact are conflicting;
(6)When the Court of Appeals, in making its findings, went beyond the issues of the case and the same is
contrary to the admissions of both appellant and appellee; CcTHaD
(7)When the findings are contrary to those of the trial court;
(8)When the findings of fact are conclusions without citation of specific evidence on which they are based;
(9)When the facts set forth in the petition as well as in the petitioners' main and reply briefs are not
disputed by the respondents; and
(10)When the findings of fact of the Court of Appeals are premised on the supposed absence of evidence
and contradicted by the evidence on record. 13 STcHEI
We find that this case does not involve any of the abovementioned exceptions.
Nonetheless, a review of the findings of the RTC as upheld by the Court of Appeals, reveal that petitioner's
arguments lack basis. The RTC correctly held:
With [regard] to the contention of the oppositors [Paz Samaniego-Celada, et al.] that the testator
[Margarita Mayores] was not mentally capable of making a will at the time of the execution thereof, the
same is without merit. The oppositors failed to establish, by preponderance of evidence, said allegation and
contradict the presumption that the testator was of sound mind (See Article 800 of the Civil Code). In fact,
witness for the oppositors, Dr. Ramon Lamberte, who, in some occasions, attended to the testator months
before her death, testified that Margarita Mayores could engage in a normal conversation and he even
stated that the illness of the testator does not warrant hospitalization. . . . Not one of the oppositor's
witnesses has mentioned any instance that they observed act/s of the testator during her lifetime that
could be construed as a manifestation of mental incapacity. The testator may be admitted to be physically
weak but it does not necessarily follow that she was not of sound mind. [The] testimonies of contestant
witnesses are pure aforethought. aHECST
Anent the contestants' submission that the will is fatally defective for the reason that its attestation clause
states that the will is composed of three (3) pages while in truth and in fact, the will consists of two (2)
pages only because the attestation is not a part of the notarial will, the same is not accurate. While it is
true that the attestation clause is not a part of the will, the court, after examining the totality of the will, is
of the considered opinion that error in the number of pages of the will as stated in the attestation clause is
not material to invalidate the subject will. It must be noted that the subject instrument is consecutively
lettered with pages A, B, and C which is a sufficient safeguard from the possibility of an omission of some
of the pages. The error must have been brought about by the honest belief that the will is the whole
instrument consisting of three (3) pages inclusive of the attestation clause and the acknowledgement. The
position of the court is in consonance with the "doctrine of liberal interpretation" enunciated in Article 809
of the Civil Code which reads:

"In the absence of bad faith, forgery or fraud, or undue [and] improper pressure and influence,
defects and imperfections in the form of attestation or in the language used therein shall not
render the will invalid if it is proved that the will was in fact executed and attested in
substantial compliance with all the requirements of Article 805."
49

The court also rejects the contention of the oppositors that the signatures of the testator were affixed on
different occasions based on their observation that the signature on the first page is allegedly different in
size, texture and appearance as compared with the signatures in the succeeding pages. After examination
of the signatures, the court does not share the same observation as the oppositors. The picture (Exhibit "H-
3") shows that the testator was affixing her signature in the presence of the instrumental witnesses and the
notary. There is no evidence to show that the first signature was procured earlier than February 2,
1987. cTEICD
Finally, the court finds that no pressure nor undue influence was exerted on the testator to execute the
subject will. In fact, the picture reveals that the testator was in a good mood and smiling with the other
witnesses while executing the subject will (See Exhibit "H").
In fine, the court finds that the testator was mentally capable of making the will at the time of its
execution, that the notarial will presented to the court is the same notarial will that was executed and that
all the formal requirements (See Article 805 of the Civil Code) in the execution of a will have been
substantially complied with in the subject notarial will. 14 (Emphasis supplied). IcDCaT
Thus, we find no reason to disturb the abovementioned findings of the RTC. Since, petitioner and her
siblings are not compulsory heirs of the decedent under Article 887 15 of the Civil Code and as the
decedent validly disposed of her properties in a will duly executed and probated, petitioner has no legal
right to claim any part of the decedent's estate.
WHEREFORE, the petition is DENIED. The assailed Decision dated October 13, 2000 of the Court of Appeals
in CA-G.R. CV No. 41756 is AFFIRMED. HASDcC
Costs against petitioner.
SO ORDERED.

[A.C. No. 5281. February 12, 2008.]
MANUEL L. LEE, complainant, vs. ATTY. REGINO B. TAMBAGO, respondent.
R E S O L U T I O N
CORONA, J p:
In a letter-complaint dated April 10, 2000, complainant Manuel L. Lee charged respondent Atty. Regino B.
Tambago with violation of the Notarial Law and the ethics of the legal profession for notarizing a spurious
last will and testament.
In his complaint, complainant averred that his father, the decedent Vicente Lee, Sr., never executed the
contested will. Furthermore, the spurious will contained the forged signatures of Cayetano Noynay and
Loreto Grajo, the purported witnesses to its execution.
In the said will, the decedent supposedly bequeathed his entire estate to his wife Lim Hock Lee, save for a
parcel of land which he devised to Vicente Lee, Jr. and Elena Lee, half-siblings of complainant. IETCAS
The will was purportedly executed and acknowledged before respondent on June 30, 1965. 1 Complainant,
however, pointed out that the residence certificate 2 of the testator noted in the acknowledgment of the
will was dated January 5, 1962. 3 Furthermore, the signature of the testator was not the same as his
signature as donor in a deed of donation 4 (containing his purported genuine signature). Complainant
50

averred that the signatures of his deceased father in the will and in the deed of donation were "in any
way (sic) entirely and diametrically opposed from (sic) one another in all angle[s]." 5
Complainant also questioned the absence of notation of the residence certificates of the purported
witnesses Noynay and Grajo. He alleged that their signatures had likewise been forged and merely copied
from their respective voters' affidavits.
Complainant further asserted that no copy of such purported will was on file in the archives division of the
Records Management and Archives Office of the National Commission for Culture and the Arts (NCCA). In
this connection, the certification of the chief of the archives division dated September 19, 1999 stated:
Doc. 14, Page No. 4, Book No. 1, Series of 1965 refers to an AFFIDAVIT executed by BARTOLOME
RAMIREZ on June 30, 1965 and is available in this Office['s] files. 6 ICDcEA
Respondent in his comment dated July 6, 2001 claimed that the complaint against him contained false
allegations: (1) that complainant was a son of the decedent Vicente Lee, Sr. and (2) that the will in
question was fake and spurious. He alleged that complainant was "not a legitimate son of Vicente Lee, Sr.
and the last will and testament was validly executed and actually notarized by respondent per affidavit 7 of
Gloria Nebato, common-law wife of Vicente Lee, Sr. and corroborated by the joint affidavit 8 of the children
of Vicente Lee, Sr., namely Elena N. Lee and Vicente N. Lee, Jr. . . . ." 9 ATCEIc
Respondent further stated that the complaint was filed simply to harass him because the criminal case filed
by complainant against him in the Office of the Ombudsman "did not prosper".
Respondent did not dispute complainant's contention that no copy of the will was on file in the archives
division of the NCCA. He claimed that no copy of the contested will could be found there because none was
filed.
Lastly, respondent pointed out that complainant had no valid cause of action against him as he
(complainant) did not first file an action for the declaration of nullity of the will and demand his share in the
inheritance.
In a resolution dated October 17, 2001, the Court referred the case to the Integrated Bar of the Philippines
(IBP) for investigation, report and recommendation. 10
In his report, the investigating commissioner found respondent guilty of violation of pertinent provisions of
the old Notarial Law as found in the Revised Administrative Code. The violation constituted an infringement
of legal ethics, particularly Canon 1 11 and Rule 1.01 12 of the Code of Professional Responsibility
(CPR). 13 Thus, the investigating commissioner of the IBP Commission on Bar Discipline recommended the
suspension of respondent for a period of three months. HDTISa
The IBP Board of Governors, in its Resolution No. XVII-2006-285 dated May 26, 2006, resolved:
[T]o ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, with modification, the Report and
Recommendation of the Investigating Commissioner of the above-entitled case, herein made part of this
Resolution as Annex "A"; and, finding the recommendation fully supported by the evidence on record and
the applicable laws and rules, and considering Respondent's failure to comply with the laws in the discharge
of his function as a notary public, Atty. Regino B. Tambago is hereby suspended from the practice of law
for one year and Respondent's notarial commission is Revoked and Disqualified from reappointment as
Notary Public for two (2) years. 14
We affirm with modification.
51

A will is an act whereby a person is permitted, with the formalities prescribed by law, to control to a certain
degree the disposition of his estate, to take effect after his death. 15A will may either be notarial or
holographic.
The law provides for certain formalities that must be followed in the execution of wills. The object of
solemnities surrounding the execution of wills is to close the door on bad faith and fraud, to avoid
substitution of wills and testaments and to guarantee their truth and authenticity. 16 aSIETH
A notarial will, as the contested will in this case, is required by law to be subscribed at the end thereof by
the testator himself. In addition, it should be attested and subscribed by three or more credible witnesses
in the presence of the testator and of one another. 17
The will in question was attested by only two witnesses, Noynay and Grajo. On this circumstance alone, the
will must be considered void. 18 This is in consonance with the rule that acts executed against the
provisions of mandatory or prohibitory laws shall be void, except when the law itself authorizes their
validity.
The Civil Code likewise requires that a will must be acknowledged before a notary public by the testator
and the witnesses. 19 The importance of this requirement is highlighted by the fact that it was segregated
from the other requirements under Article 805 and embodied in a distinct and separate provision. 20
An acknowledgment is the act of one who has executed a deed in going before some competent officer or
court and declaring it to be his act or deed. It involves an extra step undertaken whereby the signatory
actually declares to the notary public that the same is his or her own free act and deed. 21 The
acknowledgment in a notarial will has a two-fold purpose: (1) to safeguard the testator's wishes long after
his demise and (2) to assure that his estate is administered in the manner that he intends it to be
done. STIcaE
A cursory examination of the acknowledgment of the will in question shows that this particular requirement
was neither strictly nor substantially complied with. For one, there was the conspicuous absence of a
notation of the residence certificates of the notarial witnesses Noynay and Grajo in the acknowledgment.
Similarly, the notation of the testator's old residence certificate in the same acknowledgment was a clear
breach of the law. These omissions by respondent invalidated the will.
As the acknowledging officer of the contested will, respondent was required to faithfully observe the
formalities of a will and those of notarization. As we held in Santiago v. Rafanan: 22
The Notarial Law is explicit on the obligations and duties of notaries public. They are required to certify that
the party to every document acknowledged before him had presented the proper residence certificate (or
exemption from the residence tax); and to enter its number, place of issue and date as part of such
certification.HDTISa
These formalities are mandatory and cannot be disregarded, considering the degree of importance and
evidentiary weight attached to notarized documents. 23 A notary public, especially a lawyer, 24 is bound
to strictly observe these elementary requirements.
The Notarial Law then in force required the exhibition of the residence certificate upon notarization of a
document or instrument:
Section 251.Requirement as to notation of payment of [cedula] residence tax. Every contract, deed, or
other document acknowledged before a notary public shall have certified thereon that the parties thereto
have presented their proper [cedula] residence certificate or are exempt from the [cedula] residence tax,
52

and there shall be entered by the notary public as a part of such certificate the number, place of issue, and
date of each [cedula] residence certificate as aforesaid. 25 AEITDH
The importance of such act was further reiterated by Section 6 of the Residence Tax Act 26 which stated:
When a person liable to the taxes prescribed in this Act acknowledges any document before a notary public
. . . it shall be the duty of such person . . . with whom such transaction is had or business done, to require
the exhibition of the residence certificate showing payment of the residence taxes by such person . . . .
In the issuance of a residence certificate, the law seeks to establish the true and correct identity of the
person to whom it is issued, as well as the payment of residence taxes for the current year. By having
allowed decedent to exhibit an expired residence certificate, respondent failed to comply with the
requirements of both the old Notarial Law and the Residence Tax Act. As much could be said of his failure
to demand the exhibition of the residence certificates of Noynay and Grajo.
On the issue of whether respondent was under the legal obligation to furnish a copy of the notarized will to
the archives division, Article 806 provides:

Art. 806.Every will must be acknowledged before a notary public by the testator and the witness. The
notary public shall not be required to retain a copy of the will, or file another with the office of
the Clerk of Court. (emphasis supplied) IDcTEA
Respondent's failure, inadvertent or not, to file in the archives division a copy of the notarized will was
therefore not a cause for disciplinary action.
Nevertheless, respondent should be faulted for having failed to make the necessary entries pertaining to
the will in his notarial register. The old Notarial Law required the entry of the following matters in the
notarial register, in chronological order: ACETID
1.nature of each instrument executed, sworn to, or acknowledged before him;
2.person executing, swearing to, or acknowledging the instrument;
3.witnesses, if any, to the signature;
4.date of execution, oath, or acknowledgment of the instrument;
5.fees collected by him for his services as notary;
6.give each entry a consecutive number; and
7.if the instrument is a contract, a brief description of the substance of the instrument. 27
In an effort to prove that he had complied with the abovementioned rule, respondent contended that he
had crossed out a prior entry and entered instead the will of the decedent. As proof, he presented a
photocopy of his notarial register. To reinforce his claim, he presented a photocopy of a
certification 28 stating that the archives division had no copy of the affidavit of Bartolome
Ramirez. AHcaDC
A photocopy is a mere secondary evidence. It is not admissible unless it is shown that the original is
unavailable. The proponent must first prove the existence and cause of the unavailability of the
original, 29 otherwise, the evidence presented will not be admitted. Thus, the photocopy of respondent's
notarial register was not admissible as evidence of the entry of the execution of the will because it failed to
comply with the requirements for the admissibility of secondary evidence.
53

In the same vein, respondent's attempt to controvert the certification dated September 21, 1999 30 must
fail. Not only did he present a mere photocopy of the certification dated March 15, 2000; 31 its contents
did not squarely prove the fact of entry of the contested will in his notarial register.
Notaries public must observe with utmost care 32 and utmost fidelity the basic requirements in the
performance of their duties, otherwise, the confidence of the public in the integrity of notarized deeds will
be undermined. 33
Defects in the observance of the solemnities prescribed by law render the entire will invalid. This
carelessness cannot be taken lightly in view of the importance and delicate nature of a will, considering that
the testator and the witnesses, as in this case, are no longer alive to identify the instrument and to confirm
its contents. 34 Accordingly, respondent must be held accountable for his acts. The validity of the will was
seriously compromised as a consequence of his breach of duty. 35 IEAacT
In this connection, Section 249 of the old Notarial Law provided:
Grounds for revocation of commission. The following derelictions of duty on the part of a notary public
shall, in the discretion of the proper judge of first instance, be sufficient ground for the revocation of his
commission:
xxx xxx xxx
(b)The failure of the notary to make the proper entry or entries in his notarial register touching his notarial
acts in the manner required by law.
xxx xxx xxx
(f)The failure of the notary to make the proper notation regarding cedula certificates. 36
These gross violations of the law also made respondent liable for violation of his oath as a lawyer and
constituted transgressions of Section 20 (a), Rule 138 of the Rules of Court 37 and Canon 1 38 and Rule
1.01 39 of the CPR. cHSIAC
The first and foremost duty of a lawyer is to maintain allegiance to the Republic of the Philippines, uphold
the Constitution and obey the laws of the land. 40 For a lawyer is the servant of the law and belongs to a
profession to which society has entrusted the administration of law and the dispensation of justice. 41
While the duty to uphold the Constitution and obey the law is an obligation imposed on every citizen, a
lawyer assumes responsibilities well beyond the basic requirements of good citizenship. As a servant of the
law, a lawyer should moreover make himself an example for others to emulate. 42 Being a lawyer, he is
supposed to be a model in the community in so far as respect for the law is concerned. 43
The practice of law is a privilege burdened with conditions. 44 A breach of these conditions justifies
disciplinary action against the erring lawyer. A disciplinary sanction is imposed on a lawyer upon a finding
or acknowledgment that he has engaged in professional misconduct. 45 These sanctions meted out to
errant lawyers include disbarment, suspension and reprimand. HaAIES
Disbarment is the most severe form of disciplinary sanction. 46 We have held in a number of cases that the
power to disbar must be exercised with great caution 47 and should not be decreed if any punishment less
severe such as reprimand, suspension, or fine will accomplish the end desired. 48 The rule then is
that disbarment is meted out only in clear cases of misconduct that seriously affect the standing and
character of the lawyer as an officer of the court. 49
Respondent, as notary public, evidently failed in the performance of the elementary duties of his office.
Contrary to his claims that he "exercised his duties as Notary Public with due care and with due regard to
54

the provision of existing law and had complied with the elementary formalities in the performance of his
duties . . .," we find that he acted very irresponsibly in notarizing the will in question. Such recklessness
warrants the less severe punishment of suspension from the practice of law. It is, as well, a sufficient basis
for the revocation of his commission 50 and his perpetual disqualification to be commissioned as a notary
public. 51
WHEREFORE, respondent Atty. Regino B. Tambago is hereby found guilty of professional misconduct. He
violated (1) the Lawyer's Oath; (2) Rule 138 of the Rules of Court; (3) Canon 1 and Rule 1.01 of the Code
of Professional Responsibility; (4) Art. 806 of the Civil Code and (5) the provisions of the old Notarial Law.
Atty. Regino B. Tambago is hereby SUSPENDED from the practice of law for one year and his notarial
commission REVOKED. Because he has not lived up to the trustworthiness expected of him as a notary
public and as an officer of the court, he is PERPETUALLY DISQUALIFIED from reappointment as a notary
public. prcd
Let copies of this Resolution be furnished to all the courts of the land, the Integrated Bar of the Philippines
and the Office of the Bar Confidant, as well as made part of the personal records of respondent.
SO ORDERED.

[G.R. No. 176943. October 17, 2008.]
DANILO ALUAD, LEONORA ALUAD, DIVINA ALUAD, PROSPERO ALUAD, and
CONNIE ALUAD, petitioners, vs. ZENAIDO ALUAD, respondent.
D E C I S I O N
CARPIO-MORALES, J p:
Petitioners' mother, Maria Aluad (Maria), and respondent Zenaido Aluad were raised by the childless
spouses Matilde Aluad (Matilde) and Crispin Aluad (Crispin). ISADET
Crispin was the owner of six lots identified as Lot Nos. 674, 675, 676, 677, 680, and 682 of the Pilar
Cadastre, Capiz. After Crispin died, his wife Matilde adjudicated the lots to herself. 1
On November 14, 1981, Matilde executed a document entitled "Deed of Donation of Real Property Inter
Vivos" 2 (Deed of Donation) in favor of petitioners' mother Maria 3covering all the six lots which Matilde
inherited from her husband Crispin. The Deed of Donation provided:
That, for and in consideration of the love and affection of the DONOR [Matilde] for the DONEE [Maria], the
latter being adopted and hav[ing] been brought up by the former the DONOR, by these presents, transfer
and convey, BY WAY OF DONATION, unto the DONEE the property above-described, to become effective
upon the death of the DONOR, but in the event that the DONEE should die before the DONOR,
the present donation shall be deemed rescinded and [of] no further force and effect; Provided,
however, that anytime during the lifetime of the DONOR or anyone of them who should survive, they could
use[,] encumber or even dispose of any or even all of the parcels of land herein donated. 4 (Emphasis and
underscoring supplied)
On September 30, 1986, Original Certificates of Title over Lot Nos. 674 and 676 were issued in Matilde's
name.
On August 26, 1991, Matilde sold Lot No. 676 to respondent by a Deed of Absolute Sale of Real
Property. 5
55

Subsequently or on January 14, 1992, Matilde executed a last will and testament, 6 devising Lot Nos. 675,
677, 682, and 680 to Maria, and her "remaining properties" including Lot No. 674 to respondent.
Matilde died on January 25, 1994, while Maria died on September 24 of the same year. 7
On August 21, 1995, Maria's heirs-herein petitioners filed before the Regional Trial Court (RTC) of Roxas
City a Complaint, 8 for declaration and recovery of ownership and possession of Lot Nos. 674 and 676, and
damages against respondent, alleging:
That in 1978, plaintiff[s] possessed the two (2) parcels of land above-described until January 1991 when
defendant entered and possessed the two (2) parcels of land claiming as the adopted son of
Crispin Aluad who refused to give back possession until Matilde Aluad died in [1994] and then retained the
possession thereof up to and until the present time, thus, depriving the plaintiffs of the enjoyment of said
parcels of land . . .; AcISTE
That after the death of Matilde R. Aluad, the plaintiffs succeeded by inheritance by right of representation
from their deceased mother, Maria Aluad who is the sole and only daughter of Matilde Aluad[.] 9
To the complaint respondent alleged in his Answer. 10
That Lot 674 is owned by the defendant as this lot was adjudicated to him in the Last Will and Testament
of Matilde Aluad . . . while Lot 676 was purchased by him from Matilde Aluad. These two lots are in his
possession as true owners thereof. 11 (Underscoring supplied)
Petitioners later filed a Motion for Leave to Amend Complaint Already Filed to Conform to Evidence 12 to
which it annexed an Amended Complaint 13 which cited the donation of the six lots via Deed of Donation
in favor of their mother Maria. Branch 15 of the RTC granted the motion and admitted the Amended
Complaint. 14
Respondent filed an Amended Answer 15 contending, inter alia, that the Deed of Donation is forged and
falsified and petitioners' change of theory showed that "said document was not existing at the time they
filed their complaint and was concocted by them after realizing that their false claim that their mother was
the only daughter of Matild[e]Aluad cannot in anyway be established by them"; 16 and that if ever said
document does exist, the same was already revoked by Matilde "when [she] exercised all acts of dominion
over said properties until she sold Lot 676 to defendant and until her death with respect to the other lots
without any opposition from Maria Aluad." 17
The trial court, by Decision 18 of September 20, 1996, held that Matilde could not have transmitted any
right over Lot Nos. 674 and 676 to respondent, she having previously alienated them to Maria via the Deed
of Donation. Thus it disposed:
WHEREFORE, in view of the foregoing, judgment is hereby rendered:
1.Declaring the plaintiffs as the rightful owners of the subject Lots Nos. 674 and 676, Pilar Cadastre;
2.Ordering the defendant to deliver the possession of the subject lots to the plaintiffs;
3.Ordering the defendant to pay the plaintiffs:
a.Thirty thousand pesos (P30,000.00) as attorney's fees;
b.Twenty thousand pesos (P20,000.00), representing the income from subject Lot 676, a year from 1991
up to the time said lot is delivered to the plaintiffs, together with the interest thereof at the legal rate until
fully paid; cSaCDT
56

c.Ten thousand pesos (P10,000.00), representing the income from the subject Lot No. 674, a year from
1991 up to the time said lot is delivered to the plaintiffs, plus legal interest thereof at the legal rate until
fully paid; and
d.The costs of the suit.
Defendant's counterclaim is ordered dismissed for lack of merit.
SO ORDERED. 19
On petitioners' motion, the trial court directed the issuance of a writ of execution pending
appeal. 20 Possession of the subject lots appears to have in fact been taken by petitioners.
By Decision 21 of August 10, 2006, the Court of Appeals reversed the trial court's decision, it holding that
the Deed of Donation was actually a donation mortis causa, not inter vivos, and as such it had to, but did
not, comply with the formalities of a will. Thus, it found that the Deed of Donation was witnessed by only
two witnesses and had no attestation clause which is not in accordance with Article 805 of the Civil Code,
reading:
Art. 805.Every will, other than a holographic will, must be subscribed at the end thereof by the testator
himself or by the testator's name written by some other person in his presence, and by his express
direction, and attested and subscribed by three or more credible witnesses in the presence of the testator
and of one another.
The testator or the person requested by him to write his name and the instrumental witnesses of the will
shall, also sign, as aforesaid, each and every page thereof, except the last on the left margin and all the
pages shall be numbered correlatively in letters placed on the upper part of each page.
The attestation shall state the number of pages used upon which the will is written, and the fact that that
testator signed the will and every page thereof, or caused some other person to write his name, under his
express direction, in the presence of the instrumental witnesses, and that the latter witnessed and signed
the will and all the pages thereof in the presence of the testator, and of one another.
If the attestation clause is in a language not known to the witnesses, it shall be interpreted to
them. ITaESD
While the appellate court declared respondent as the rightful owner of Lot No. 676 , it did not so declare
with respect to Lot No. 674, as Matilde's last will and testament had not yet been probated. Thus the Court
of Appeals disposed:
WHEREFORE, finding the instant petition worthy of merit, the same is hereby GRANTED and the Decision
of the Regional Trial Court of Roxas City, Branch 15, dated 20 September 1996, in Civil Case No. V-6686 for
declaration of ownership, recovery of ownership and possession, and damages is REVERSED and SET
ASIDE.
A new one is entered in its stead declaring defendant-appellant as the lawful owner of Lot [No.] 676 of the
Pilar Cadastre. Accordingly, plaintiffs-appellees are directed to return the possession of the said lot to the
defendant-appellant.
Moreover, plaintiffs-appellees are ordered to pay P40,000.00 to defendant-appellant as attorney's fees and
litigation expenses.
Costs against plaintiffs-appellees.
SO ORDERED. 22 (Emphasis in the original; underscoring supplied)
57

Their Motion for Reconsideration 23 having been denied, 24 petitioners filed the present Petition for
Review, 25 contending that the Court of Appeals erred:
I
. . . WHEN IT REVERSED THE DECISION OF THE COURT BELOW (RTC, Branch 15, Roxas City) HOLDING
THAT THE DEED OF DONATION INTER VIVOS IN FAVOR OF PETITIONERS' MOTHER IS IN FACT A
DONATION MORTIS CAUSA.
II
. . . WHEN IT RULED THAT RESPONDENT IS THE RIGHTFUL OWNER OF LOT NO. 676 AS LOT BUYER ON
THE BASIS OF A DEED OF SALE EXECUTED BY THE DONOR WHO HAD NO MORE RIGHT TO SELL THE
SAME. AISHcD
III
. . . WHEN IT FAILED TO DECLARE PETITIONERS THE RIGHTFUL OWNER OF LOT NO. 674 AFTER HAVING
RULED WHEN IT HELD THAT RESPONDENT CANNOT BE DECLARED OWNER THEREOF.
IV
. . . WHEN IT HELD THAT THE ISSUANCE OF A WRIT OF EXECUTION PENDING APPEAL IS IN VIOLATION
OF PARAGRAPH (a) SECTION 2, RULE 39, OF THE RULES OF COURT (AND ORDERING PETITIONERS TO
RETURN POSSESSION OF LOT 676 TO RESPONDENT) AND ORDERING PETITIONERS TO PAY ATTORNEY'S
FEES AND COST[S] OF SUIT. 26
As did the appellate court, the Court finds the donation to petitioners' mother one of mortis causa, it having
the following characteristics:
(1)It conveys no title or ownership to the transferee before the death of the transferor; or what amounts
to the same thing, that the transferor should retain the ownership (full or naked) and control of the
property while alive;
(2)That before the death of the transferor, the transfer should be revocable by the transferor at will, ad
nutum; but revocability may be provided for indirectly by means of a reserved power in the donor to
dispose of the properties conveyed; and

(3)That the transfer should be void if the transferor should survive the transferee. 27 (Emphasis and
underscoring supplied)
The phrase in the earlier-quoted Deed of Donation "to become effective upon the death of the DONOR"
admits of no other interpretation than to mean that Matilde did not intend to transfer the ownership of the
six lots to petitioners' mother during her (Matilde's) lifetime. 28
The statement in the Deed of Donation reading "anytime during the lifetime of the DONOR or anyone
of them who should survive, they could use, encumber or even dispose of any or even all the
parcels of land herein donated" 29 means that Matilde retained ownership of the lots and reserved in
her the right to dispose them. For the right to dispose of a thing without other limitations than those
established by law is an attribute of ownership. 30 The phrase in the Deed of Donation "or anyone of
them who should survive" is of course out of sync. For the Deed of Donation clearly stated that it would
take effect upon the death of the donor, hence, said phrase could only have referred to the donor Matilde.
Petitioners themselves concede that such phrase does not refer to the donee, thus: cSATEH
58

. . . [I]t is well to point out that the last provision (sentence) in the disputed paragraph should only refer to
Matilde Aluad, the donor, because she was the only surviving spouse at the time the donation was
executed on 14 November 1981, as her husband Crispin Aluad [] had long been dead as early as
1975. 31
The trial court, in holding that the donation was inter vivos, reasoned:
. . . The donation in question is subject to a resolutory term or period when the donor provides in the
aforequoted provisions, "but in the event that the DONEE should die before the DONOR, the present
donation shall be deemed rescinded and [of] no further force and effect". When the donor provides that
should the "DONEE" . . . die before the DONOR, the present donation shall be deemed rescinded and [of]
no further force and effect" the logical construction thereof is that after the execution of the subject
donation, the same became effective immediately and shall be "deemed rescinded and [of] no further force
and effect" upon the arrival of a resolutory term or period, i.e., the death of the donee which shall occur
before that of the donor. Understandably, the arrival of this resolutory term or period cannot rescind and
render of no further force and effect a donation which has never become effective, because, certainly what
donation is there to be rescinded and rendered of no further force and effect upon the arrival of said
resolutory term or period if there was no donation which was already effective at the time when the donee
died? 32 (Underscoring supplied)
A similar ratio in a case had been brushed aside by this Court, however, thus:
. . . [P]etitioners contend that the stipulation on rescission in case petitioners [donee] die ahead of [donor]
Cabatingan is a resolutory condition that confirms the nature of the donation as inter vivos.
Petitioners' arguments are bereft of merit. 33
xxx xxx xxx
. . . The herein subject deeds expressly provide that the donation shall be rescinded in case [donees] the
petitioners predecease [the donor] Conchita Cabatingan. As stated in Reyes v. Mosqueda, one of the
decisive characteristics of a donation mortis causa is that the transfer should be considered void if the
donor should survive the donee. This is exactly what Cabatingan provided for in her donations. If she really
intended that the donation should take effect during her lifetime and that the ownership of the properties
donated to the donee or independently of, and not by reason of her death, she would not have expressed
such proviso in the subject deeds. 34 (Underscoring supplied) EaCSHI
As the Court of Appeals observed, ". . . [t]hat the donation is mortis causa is fortified by Matilde's acts of
possession as she continued to pay the taxes for the said properties which remained under her name;
appropriated the produce; and applied for free patents for which OCTs were issued under her name". 35
The donation being then mortis causa, the formalities of a will should have been observed 36 but they
were not, as it was witnessed by only two, not three or more witnesses following Article 805 of the Civil
Code. 37
Further, the witnesses did not even sign the attestation clause 38 the execution of which clause is a
requirement separate from the subscription of the will and the affixing of signatures on the left-hand
margins of the pages of the will. So the Court has emphasized:
. . . Article 805 particularly segregates the requirement that the instrumental witnesses sign each page of
the will from the requisite that the will be "attested and subscribed by [the instrumental witnesses]. The
respective intents behind these two classes of signature[s] are distinct from each other. The signatures on
the left-hand corner of every page signify, among others, that the witnesses are aware that the page they
59

are signing forms part of the will. On the other hand, the signatures to the attestation clause establish that
the witnesses are referring to the statements contained in the attestation clause itself. Indeed, the
attestation clause is separate and apart from the disposition of the will. An unsigned attestation clause
results in an unattested will. Even if the instrumental witnesses signed the left-hand margin of the page
containing the unsigned attestation clause, such signatures cannot demonstrate these witnesses'
undertakings in the clause, since the signatures that do appear on the page were directed towards a wholly
different avowal.
. . . It is the witnesses, and not the testator, who are required under Article 805 to state the number of
pages used upon which the will is written; the fact that the testator had signed the will and every page
thereof; and that they witnessed and signed the will and all the pages thereof in the presence of the
testator and of one another. The only proof in the will that the witnesses have stated these elemental facts
would be their signatures on the attestation clause. 39 (Emphasis and underscoring supplied)
Furthermore, the witnesses did not acknowledge the will before the notary public, 40 which is not in
accordance with the requirement of Article 806 of the Civil Code that every will must be acknowledged
before a notary public by the testator and the witnesses.
More. The requirement that all the pages of the will must be numbered correlatively in letters placed on the
upper part of each page was not also followed. 41
The Deed of Donation which is, as already discussed, one of mortis causa, not having followed
the formalities of a will, it is void and transmitted no right to petitioners' mother. But even
assuming arguendo that the formalities were observed, since it was not probated, no right to Lot Nos. 674
and 676 was transmitted to Maria. 42 Matilde thus validly disposed of Lot No. 674 to respondent by her
last will and testament, subject of course to the qualification that her (Matilde's) will must be probated.
With respect to Lot No. 676, the same had, as mentioned earlier, been sold by Matilde to respondent on
August 26, 1991. CASIEa
Petitioners nevertheless argue that assuming that the donation of Lot No. 674 in favor of their mother is
indeed mortis causa, hence, Matilde could devise it to respondent, the lot should nevertheless have been
awarded to them because they had acquired it by acquisitive prescription, they having been in continuous,
uninterrupted, adverse, open, and public possession of it in good faith and in the concept of an owner since
1978. 43
Petitioners failed to raise the issue of acquisitive prescription before the lower courts, however, they having
laid their claim on the basis of inheritance from their mother. As a general rule, points of law, theories, and
issues not brought to the attention of the trial court cannot be raised for the first time on appeal. 44 For a
contrary rule would be unfair to the adverse party who would have no opportunity to present further
evidence material to the new theory, which it could have done had it been aware of it at the time of the
hearing before the trial court. 45
WHEREFORE, the petition is DENIED.
SO ORDERED.

Testamentary Capacity
[G.R. No. 33592. March 31, 1931.]
Estate of the deceased Victorina Villaranda. EUSEBIA LIM, petitioner-appellant, vs. JULIANA
CHINCO, oppositor-appellee.
60

Perfecto Gabriel and Eusebio Orense for appellant.
Camus & Delgado for appellee.
SYLLABUS
1.WILLS; LACK OF TESTAMENTARY CAPACITY; COMA RESULTING FROM CEREBRAL HEMORRHAGE. The
alleged testatrix, a woman of about 80 years of age, was stricken with apoplexy, incident to cerebral
hemorrhage, and was kept prostrate in bed, in a state of coma, for three days, at the end of which she was
removed to a hospital where she died four days later. Just before her removal to the hospital a will was
made for her by an attorney, who also signed her name thereto, purportedly at her request. At the time the
will was made the proof showed that the testatrix was in a comatose condition and devoid of the power of
articulate speech. Held, that testamentary capacity was lacking and that the purported will was not valid.
D E C I S I O N
STREET, J p:
This is a contest over the probable of a paper writing purporting to be the will of Victorina Villaranda y Diaz,
a former resident of the municipality of Meycauayan, Province of Bulacan, who died in the Hospital of San
Juan de Dios, in the City of Manila, on June 9, 1929. The deceased left no descendants or ascendants, and
the document produced as her will purports to leave her estate, consisting of properties valued at P50,000,
more or less, chiefly to three collateral relatives, Eusebia, Crispina, and Maria, of the surname of Lim. This
instrument was offered for probate by Eusebia Lim, named in the instrument as executrix. Opposition was
made by Juliana Chinco, a full sister of the deceased. Upon hearing the cause the trial court sustained the
opposition and disallowed the will on the ground that the testatrix did not have testamentary capacity at
the time the instrument purports to have been executed by her. From this judgment the proponent of the
will appealed.
The deceased was a resident of Meycauayan, Province of Bulacan, and was about 80 years of age at the
time of her death. On the morning of June 2, 1929, she was stricken with apoplexy, incident to cerebral
hemorrhage, and was taken in an unconscious condition, seated in a chair, to her room. Doctor Geronimo
Z. Gaanan, a local physician of Meycauayan, visited the old lady, with whom he was well acquainted, three
or four times, the first visit having occurred between 6 and 7 p.m. of June 3d. Upon examining the patient,
he found her insensible and incapable of talking or controlling her movements. On the same day the parish
priest called for the purpose of administering the last rites of the church, and being unable to take her
confession, he limited himself to performing the office of extreme unction. Doctor Isidoro Lim, of Manila,
was also called upon to visit the patient and he came to see her two or three times. With his approval, it
was decided to take the woman to the hospital of San Juan de Dios in Manila, and on the morning of June
5, 1929, the ambulance from this hospital arrived, in charge of Doctor Guillermo Lopez del Castillo, a
resident physician of the hospital. At about 11 o'clock a.m. on that day she was embarked on the
ambulance and taken to the hospital, where she died four days later.
The purported will, which is the subject of this proceeding, was prepared by Perfecto Gabriel, a practicing
attorney of Manila, whose wife appears to be related to the chief beneficiaries named in the will. This
gentleman arrived upon the scene at 9 or 10 o'clock on the forenoon of June 5, 1929. After informing
himself of the condition of the testatrix, he went into a room adjacent to that occupied by the patient and,
taking a sheet from an exercise book, wrote the instrument in question. He then took it into the sick room
for execution. With this end in view Gabriel suggested to Doctor Lopez del Castillo that he would be pleased
to have Doctor Castillo sign as a witness, but the latter excused himself for the reason that he considered
the old lady to be lacking in testamentary capacity. Another person present was Marcos Ira, a first cousin of
the deceased and attorney Gabriel asked him also whether or not he was willing to sign as one of the
61

witnesses. Ira replied in a discouraging tone, and the attorney turned away without pressing the matter. In
the end three persons served as witnesses, and two relatives of his wife. The intended testatrix was not
able to affix her signature to the document, and it was signed for her by the attorney.
The vital question in the case is whether the supposed testatrix had testamentary capacity at the time the
paper referred to was signed. Upon this point we are of the opinion, as was the trial judge, that she had
not. The proof shows by a marked preponderance that the deceased, on the morning of June 5, 1929, was
in a comatose condition and incapable of performing any conscious and valid act. The testimony of Doctor
Gaanan and Doctor Lopez del Castillo is sufficient upon this point, and this testimony is well corroborated
by Paciana Diaz and Irene Ahorro. The first of these witnesses was the one who chiefly cared for the
deceased during her last illness in Meycauayan until she was carried away to the hospital in Manila; and the
second was a neighbor, who was called in when the stroke of apoplexy first occurred and who visited the
patient daily until she was removed from Meycauayan.
The testimony of these witnesses is convincing to the effect that the patient was in a continuous state of
coma during the entire period of her stay in Meycauayan, subsequent to the attack, and that on the
forenoon of June 5, 1929, she did not have sufficient command of her faculties to enable her to do any
valid act. Doctor Lim, the physician from Manila, testified for the proponent of the will. His testimony tends
to show that the patient was not suffering from cerebral hemorrhage but from uraemic trouble, and that,
after the first attack, the patient was much relieved and her mind so far cleared up that she might have
made a will on the morning of June 5th. The attorney testified that he was able to communicate with the
deceased when the will was made, and that he read the instrument over to her clause by clause and asked
her whether it expressed her wishes. He says that she made signs that enabled him to understand that she
concurred in what was written. But it is clear, even upon the statement of this witness, that the patient was
unable to utter intelligent speech. Upon the authority of Perry vs. Elio (29 Phil., 134), the paper offered for
probate was properly disallowed.
The judgment appealed from will therefore be affirmed, and it is so ordered, with costs against the
appellant.
Avancea, C. J., Johnson, Villamor and Villa-Real, JJ., concur.
Malcolm and Johns, JJ., concurred, but being absent at the date of the promulgation of the opinion, their
names do not appear signed thereto. AVANCEA, C. J.

[G.R. No. L-5263. February 17, 1954.]
1. WILLS; PROBATE; SIGNING IN THE PRESENCE OF TESTATOR AND AGUSTIN BARRERA, ET
AL., proponents-appellants, vs. JOSE TAMPOCO, ET AL.,oppositors-appellees.
Jesus G. Barrera for appellants.
Filemon Cajator for appellees.
SYLLABUS
1.WILLS; PROBATE; SIGNING IN THE PRESENCE OF TESTATOR AND ATTESTING WITNESSES; CONFLICT
IN TESTIMONY OF ATTESTING WITNESSES. Two attesting witnesses testified that the will was signed by
the testatrix and by the three attesting witnesses in the presence of each other, while the other attesting
witness testified to the contrary. The court gave weight to the testimony of the first two one of whom is an
attorney and justice of the peace who drafted the will, the court also considering the fact that the witness
62

who testified against the due execution of the will, signed the attestation clause stating that the will was
signed by the testatrix and the witnesses in the presence of each other.
2.ID.; ID.; ID.; RELATIVES OF BENEFICIARIES AS ATTESTING WITNESSES. The fact that the witnesses
to the execution of the will are related to some of the beneficiaries thereunder, is not sufficient to make
them biased witnesses.
3.ID.; ID.; ID.; READING OF WILL NOT NECESSARY. It is not necessary that the will be read upon its
signing and in the presence of the witnesses.
4.ID.; ID.; ID.; OMISSION OF SOME RELATIVES AS BENEFICIARIES DOES NOT AFFECT DUE EXECUTION
OF WILL. The court did not attempt to discover the motives of the testatrix in leaving her properties to
the person named in the will and admitting therefrom the oppositors. As the will was found to have been
executed free from falsification, fraud, trickery or undue influence, with the testatrix having testamentary
capacity, the court was compelled to give expression thereto.
D E C I S I O N
PARAS, J p:
Oliva Villapaa died in Tarlac, Tarlac, on December 13, 1948. On December 31, 1948, a petition was filed
by Agustin Parrera in the Court of First Instance of Tarlac for the probate of the will executed by Oliva
Villapaa on July 17, 1948, and for the appointment of the petitioner as executor. According to the petition
the properties left by the testatrix are worth P94,852.96, and the heirs instituted are nephews and nieces
and grandchildren in the collateral line. Jose Tampoco and Victoriano Tampoco, alleged grandchildren of
the testatrix in the direct line, filed an opposition, claiming that the will was not executed and attested in
accordance with law, that the testratrix lacked testamentary capacity, that there was undue influence and
pressure in its execution, that the signature of Oliva Villapaa was obtained by fraud and trickery, and that
the testamentary provisions are illegal. Consorcia Lintang, Nemesio Villapaa, Marcos Villapaa, Jesus
Villapaa, Vicente Villapaa, Ursulo Villapaa, Avelina Villapaa and Rosario Villapaa, alleged nephews and
nieces, also filed an opposition on substantially the same grounds on which the opposition of Jose and
Victoriano Tampoco was based. After protracted trial, and more than a year after the submission of the
case, a decision was rendered by the Court of First Instance of Tarlac on August 11, 1951, disallowing the
will. The court found that Oliva Villapaa had testamentary capacity, that there was no forgery, fraud,
trickery or undue influence in the execution of the will, and that preterition of forced heirs is not a ground
for denying probate; but the will was disallowed because it was not the personal last will and testament of
the deceased and it was not based on the finding that Oliva Villapaa did not furnish the names of the
persons instituted as heirs and that the will was not read to her before she signed it. The second ground is
premised on the conclusion that attesting witness Laureano Antonio was not present when Oliva Villapaa
and attesting witness Honorio Lacson signed the will; that Antonio only partially saw the signing by
attesting witness Modesto Puno; and that Oliva Villapaa saw Antonio sign only two or three times. From
this decision the petitioner has appealed.
According to appellant's evidence, two or three days before July 10, 1948, Pilar Taedo called on Modesto
Puno, a lawyer and justice of the peace of Concepcion, Tarlac, and requested the latter to come to Manila
for a conference with Oliva Villapaa, aunt of Pilar. On July 10, 1948, Atty. Puno, complying with this
request, went to the house of Pilar Taedo in Singalong Street where Oliva was staying. The latter, after
preliminary greetings and courtesies, informed Atty. Puno that she wanted him to prepare her will, giving
the names of the heirs and the properties to be left. Oliva Villapaa asked Atty. Puno to get the description
of the properties from the herein appellant, Agustin Barrera, husband of Pilar Taedo. Atty. Puno noted the
wishes of Oliva, and, as there was then no available typewriter, he informed the old woman that he would
prepare the will in his office in Concepcion and come back with it on the following Saturday. As promised,
63

on or July 17, 1948, Atty. Puno returned to the house of Oliva Villapaa in Singalong, carrying with him one
original and three copies, in typewritten form, of the will he drafted in accordance with the instructions of
Oliva Villapaa. Atty. Puno arrived at about noon. He read the will to Oliva to find out whether it conformed
to her wishes, and she indicated that it was all right. After lunch Atty. Puno manifested that two other
witnesses were necessary, whereupon Pilar Taedo requested Honorio Lacson and Laureano Antonio, who
were then living in the first floor of the house, to come up. Lacson and Antonio did as requested. Asked by
Oliva Villapaa if they could act as attesting witnesses to her will, both agreed. Oliva Villapaa, Atty. Puno,
Lacson and Antonio were then seated around a small rectangular table in the sala, and at this juncture Atty.
Puno gave a copy of the will to Oliva, Lacson and Antonio, while he retained one. The attorney again read
the will aloud, advising the rest to check their respective copies. As Oliva Villapaa agreed to the will, she
proceeded to sign all the four copies, on the lines previously placed by Atty. Puno, followed successively by
Lacson, Atty. Puno and Antonio, all in the presence of each other. After the signing, Atty. Puno gave the
original and a copv to Oliva, and retained the other two copies. Atty. Puno, Lacson and Antonio stayed for a
while and even ate merienda prepared by the sisters Pilar and Beatriz Taedo. Oliva Villapaa delivered her
will to Agustin Barrera for safekeeping on October 17, 1948 when she was taken to the U. S. T. Hospital
where she remained until November 7, 1948. On this date her doctors lost all hope for her recovery and
Oliva Villapaa was brought to Tarlac, Tarlac, her home town, where, as already stated, she died on
December 13, 1948.
According to the evidence for the oppositors-appellees, the will presented in court by the petitioner was not
executed in accordance with law, in that attesting witness Laureano Antonio did not see the testatrix and
attesting witness Lacson sign the will or any of its copies, that he saw Atty. Puno when the latter was
already half thru signing the document, and that the testatrix did not see Antonio sign all the copies.
After a thorough study of the record and mature reflection on the conflicting evidence, we are constrained
to conclude that the trial court erred in denying probate of the will.
Of the three attesting witnesses, namely, Atty. Modesto Puno, Honorio Lacson and Laureano Antonio, the
first two testified positively that the will was signed by the testatrix and the three witnesses in the presence
of each other, and that it was read to the testratrix before being signed. In view of the opposition filed by
the two sets of oppositors, the third attesting witness, Laureano Antonio, had to be presented by the
petitioner but, contrary to expectations, Antonio testified that he arrived at the scene of the execution of
the will after the testatrix and Honorio Lacson had already signed and after Atty. Puno was half through
affixing his signatures, and that the testatrix left before Antonio finished signing all the copies. By numerical
superiority alone, the weight of the testimony of Atty. Puno and Honorio Lacson out-balances the probative
value of the testimony of Laureano Antonio. Intrinsically, we cannot state that Laureano Antonio spoke the
truth on the witness stand, since, in the first place, the attestation clause signed by him contradicts his
pretense and, in the second place, there is enough evidence on the record to show that in his conferences
with Atty. Barrera before taking the witness stand, Antonio never gave the slightest indication that he was
not present when the testatrix and the other witnesses signed the will or that the testatrix left before
Antonio finished signing. Modesto Puno is a lawyer and at the time a justice of the peace, and it is
improbable that he would unnecessarily risk his honor and reputation. Indeed, the trial court gave the
impression that Atty. Puno was anxious to strictly meet the requirements of the law and in the absence, as
in the case at bar, of any reason for a hasty completion, we do not believe that Atty. Puno would have
allowed the signing of the will to be proceeded with unless three attesting witnesses were already present.
On the other hand, we can fairly state that there was in fact no hurry on the part of any of the participants
in the will, because the testatrix Oliva Villapaa was not dying (she died some five months after the
execution of the will) and the parties could therefore take all the time that they wanted. Indeed, none of
the three witnesses, left the house of Oliva Villapaa and they even stayed therein until
after merienda time.
64

The fact that Atty. Puno is the brother of Jose Puno who is the husband of Carmen Taedo, one of the
beneficiaries of the will, and that Honorio Lacson is the husband of Bibiana Lacson who is a first cousin of
Agustin Barrera, herein petitioner and husband of Pilar Taedo, is not sufficient to make them biased
witnesses. If Atty. Puno had any material interest, this fact should have caused him to be more careful in
seeing to it that the formalities of the law were strictly complied with, and this should be true with respect
to Honorio Lacson.

In deciding against the probate of the will, the trial court believed the testimony of Laureano Antonio to the
effect that he arrived at the place of the signing at about 2:30 in the afternoon, and thereby found that a
greater part of the proceeding was finished, because Atty. Puno declared in one place that "the signing of
the testament commenced around between one o'clock and two o'clock" and in another place that the
signing took place "around between two and three o'clock;" and Honorio Lacson declared that he was
called by Pilar Taedo to act as witness at around two o'clock or two thirty. From the testimony of Atty.
Puno and Honorio Lacson the court concluded that the signing actually commenced between one and two
o'clock. We are of the opinion that the specification of the time of the signing refers to an immaterial or
unimportant detail which, in view of the lapse of time, might have been a mistake by one or the other
participant in the execution of Oliva's will. What is important and decisive and this should be impressed
in the mind of an attorney preparing and taking charge of the signing of will, is that the testatrix and
each of the three attesting witnesses must affix their signatures in the presence of one another. In the case
before us, Atty. Puno and Honorio Lacson both attesting witnesses, categorically affirmed that this
procedure was followed. At any rate, even under the testimony of Atty. Puno and Honorio Lacson, the
signing could have taken place at about or after two thirty, since the former declared that it took place
between two and three o'clock and Honorio Lacson stated that the time was two or two thirty.
Another point invoked by the trial court against the probate of the will is the circumstance that, while Atty.
Puno testified that he placed the lines on which the testatrix and the witnesses were to sign before he read
the document to the testatrix to whom he gave the original, witness Lacson testified that Atty. Puno read
the original after giving a copy to the testatrix, and after reading Atty. Puno placed the lines for signatures.
This discrepancy again refers to a minor detail which is not sufficient to negative the truthfulness of Atty.
Puno and Honorio Lacson on the main and important fact that the will was signed by the testatrix and the
three attesting witnesses in the presence of each other.
Oppositors-appellees presented in corroboration of the testimony of Laureano Antonio, Joaquin Villapaa
and Consolacion del Mundo. Joaquin Villapaa, a painter, allegedly painted the house of Agustin Barrera in
July, 1948 and saw the execution of the will. Consolacion del Mundo allegedly was then the maid of Oliva
Villapaa. Apart from the fact that there is evidence to show that both Joaquin Villapaa and Consolacion
del Mundo were not yet employed in the house of Oliva when the latter's will was executed, there is little or
no reason for their version to prevail over the positive testimony of Atty. Puno and Honorio Lacson,
considering that the latter's testimony is even corroborated by two other witnesses, Bibiana Lacson and
Beatriz Taedo. Certainly the story of Joaquin Villapaa and Consolacion del Mundo can have no greater
weight than that of Laureano Antonio.
In holding that the will was not that of Oliva Villapaa, the trial court found that it was not read to her; and
this finding was premised on the alleged contradiction of Atty. Puno and Honorio Lacson regarding the
sequence of the reading of the will and the placing of lines for signatures, and regarding the question
whether a copy or the original was handed to the testatrix. As we have already observed, the discrepancy
relates to an insignificant matter which cannot vitally detract from the credibility of Atty. Puno to the effect
that upon arrival at the house of Oliva Villapaa at about noon, he read the will to her with a view to
65

finding whether she was agreeable thereto. It is not necessary that said will be read upon its signing and in
the presence of the witnesses.
The trial court also concluded that the testatrix could not have furnished the names of the heirs instituted
under the will, because (1) Salvador Taedo, one of such heirs, was long dead and (2) Marcelo Villapaa,
another instituted heir, was non-existent, since Oliva Villapaa did not have a grandson by such name. It is
true that Salvador Taedo was already dead and the testatrix knew about it, but it is not uncommon for a
woman of old age, confused by the big number of her relatives, to commit the mistake of unwittingly
mentioning a dead one. With respect to the instituted heir, Marcelo Villapaa, while it appears that Oliva
did not have a grandson answering to that name, there is evidence tending to show that Pioquinto
Villapaa, a child of Ruperta Pineda, must have been referred to, because Oliva, who was the child's god-
mother, originally wanted said child to be baptized as Marcelo, after his father. Moreover, if Atty. Puno had
supplied the names instituted as heirs, he would have consulted all the interested parties and would be
sure that no mistake of the kind was made.
As a closing observation, it is not for us to discover the motives of Oliva Villapaa in leaving her properties
to the person named in the will, and omitting therefrom the oppositors-appellees. Suffice it to state that the
trial court itself found the will to have been executed free from falsification, fraud, trickery or undue
influence, with Oliva having testamentary capacity; and in such a situation it becomes our duty to give
expression to her will.
Wherefore, the appealed order is reversed and the will executed by Oliva Villapaa on July 17, 1948, is
hereby allowed. So ordered without costs.
Pablo, Bengzon, Padilla, Montemayor, Reyes, Jugo, Bautista Angelo and Labrador, JJ., concur.

[G.R. No. 76648. February 26, 1988.]
THE HEIRS OF THE LATE MATILDE MONTINOLA-SANSON, petitioners, vs. COURT OF APPEALS
and EDUARDO F. HERNANDEZ, respondents.
SYLLABUS
1.REMEDIAL LAW; CIVIL ACTIONS; NEW TRIAL; NEWLY DISCOVERED EVIDENCE AND AFFIDAVITS OF
MERIT; REQUIREMENTS UNDER RULE 53 NOT COMPLIED WITH. Said motion for new trial is not in
substantial compliance with the requirements of Rule 53. The lone affidavit of a witness who was already
presented during the hearing is hardly sufficient to justify the holding of new trial. The alleged new
witnesses were unnamed without any certainty as to their appearance before the court to testify. Affiant
attests only on his belief that they would testify if and when they are subpoenaed by the court.
Furthermore, the allegations in the affidavit as to the undue influence exerted on the testatrix are mere
conclusions and not statement of facts. The requisite affidavits must state facts and not mere conclusions
or opinions, otherwise they are not valid. The affidavits are required to avoid waste of the court's time if
the newly discovered evidence turns out to be immaterial or of any evidentiary weight. Moreover, it could
not be said that the evidence sought to be presented is new having been discovered only after the trial. It
is apparent from the allegations of affiant that efforts to locate the witnesses were exerted only after the
decision of the appellate court was handed down. The trial lasted for about four years so that petitioner
had ample time to find said alleged witnesses who were admittedly known to her. The evidence which the
petitioner now proposes to present could have been discovered and presented during the hearing of the
case, and there is no sufficient reason for concluding that had the petitioner exercised proper diligence she
would not have been able to discover said evidence.
66

2.ID.; ID.; ID.; MOTION FOR PURPOSE OF DELAYING PROCEEDINGS, PRO-FORMA. It is very patent that
the motion for new trial was filed by petitioner only for the purpose of delaying the proceedings. In fact,
petitioner's son in his manifestation admitted that he had to request a new law firm to do everything legally
possible to meet the deadline for the filing of a motion for reconsideration and/or for new trial. This would
explain the haphazard preparation of the motion, thus failing to comply with the requirements of Rule 53,
which was filed on the last day of the reglementary period of appeal so that the veracity of the ground
relied upon is questionable. The appellate court correctly denied the motion for new trial.
3.ID.; ID.; ID.; ID.; RUNNING OF PERIOD OF APPEAL, NOT INTERRUPTED. The motion for new trial
being pro-forma, it does not interrupt the running of the period for appeal. Since petitioner's motion was
filed on September 24, 1986, the fifteenth or last day of the period to appeal, the decision of the
respondent court became final on the following day, September 25. And when the motion for
reconsideration of petitioner was filed on October 30, 1986, it was obviously filed out of time.
4.ID.; CIVIL PROCEDURE; JUDGMENT; FINALITY THEREOF RENDERED FINDINGS OF PROBATE COURT
CONCLUSIVE AND NO LONGER SUBJECT TO REVIEW. Since the questioned decision has already become
final and executory, it is no longer within the province of this Court to review it. This being so, the findings
of the probate court as to the due execution of the will and the testamentary capacity of testatrix are now
conclusive.
5.ID.; EVIDENCE; FINDINGS OF FACT OF THE PROBATE COURT AND COURT OF APPEALS, CONCLUSIVE.
The factual findings of the probate court and the Court of Appeals that the will in question was executed
according to the formalities required by law are conclusive on the Supreme Court when supported by
evidence. We have examined the records of this case and find no error in the conclusion arrived at by the
respondent court that the contested will was duly executed in accordance with law.
6.CIVIL LAW; SUCCESSION; PRETERITION, JUSTIFIED. Petitioner alleges that her exclusion from the
alleged holographic will was without rhyme or reason, being the only surviving sister of the testatrix with
whom she shares an intimate relationship, thus demonstrating the lack of testamentary capacity of
testatrix. In the case of Pecon v. Coronel, it was held "The appellants emphasize the fact that family ties
in this country are very strongly knit and that the exclusion of a relative from one's estate is an exceptional
case. It is true that the ties of relationship in the Philippines are very strong, but we understand that cases
of preterition of relatives from the inheritance are not rare. The liberty to dispose of one's estate by will
when there are no forced heirs is rendered sacred by the Civil Code in force in the Philippines since 1889 . .
. " Article 842 of the Civil Code provides that 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. It is within the right of the
testatrix not to include her only sister who is not a compulsory heir in her will. Nevertheless, per testimony
of Asuncion Gemperle, the latter had reserved two boxes of jewelry worth P850,000.00 for petitioner.
Furthermore, petitioner's son Francis was instituted as an heir in the contested will.
7.ID.; ID.; FAILURE TO DISPOSE ALL PROPERTIES, NOT AN INDICATION OF UNSOUNDNESS OF MIND.
Petitioner still insists that the fact that in her holographic will the testatrix failed to dispose of all of her
estate is an indication of the unsoundness of her mind. We cannot subscribe to this contention. Art. 841 of
the Civil Code provides "A will shall be valid even though it should not contain an institution of an heir, or
such institution should not comprise the entire estate, and even though the person so instituted should not
accept the inheritance or should be incapacitated to succeed. In such cases, the testamentary dispositions
made in accordance with law shall be complied with and the remainder of the estate shall pass to the legal
heirs." Thus, the fact that in her holographic will, testatrix disposed of only eleven (11) of her real
properties does not invalidate the will, or is it an indication that the testatrix was of unsound mind. The
portion of the estate undisposed of shall pass on to the heirs of the deceased in intestate succession.
67

8.ID.; ID.; INSTITUTION OF BLOOD RELATIVES AS HEIRS, NOT AN INDICATION OF UNDUE INFLUENCE.
Neither is undue influence present just because blood relatives, other than compulsory heirs have been
omitted, for while blood ties are strong in the Philippines, it is the testator's right to disregard non-
compulsory heirs. The fact that some heirs are more favored than others is proof of neither fraud or undue
influence. Diversity of apportionment is the usual reason for making a testament, otherwise, the decedent
might as well die intestate.
9.REMEDIAL LAW; SPECIAL PROCEEDINGS; ALLEGATION OF UNDUE INFLUENCE MUST BE SUPPORTED BY
SUBSTANTIAL EVIDENCE. The contention of the petitioner that the will was obtained by undue influence
or improper pressure exerted by the beneficiaries of the will cannot be sustained on mere conjecture or
suspicion; as it is not enough that there was opportunity to exercise undue influence or a possibility that it
may have been exercised. The exercise of improper pressure and undue influence must be supported by
substantial evidence that it was actually exercised.
10.CIVIL LAW; SUCCESSION; WILL ITSELF, MOST AUTHENTIC PROOF OF TESTATOR'S TESTAMENTARY
CAPACITY. Finally, We quote with approval the observation of the respondent court "There is likewise
no question as to the due execution of the subject Will. To Our minds, the most authentic proof that
deceased had testamentary capacity at the time of the execution of the Will, is the Will itself.
D E C I S I O N
GANCAYCO, J p:
This is a petition for review on certiorari of the decision of the Court of Appeals 1 promulgated August 29,
1986 affirming in toto the decision of the Regional Trial Court of Manila, Branch XXII 2 dated March 21,
1985, the dispositive part of which reads:
"WHEREFORE, the Court renders judgment declaring the holographic will marked in evidence as Exhibit "H"
as one wholly written, dated, and signed freely by the late Herminia Montinola in accordance with law while
in possession of full testamentary capacity, and allowing and admitting the same to probate.
"Upon the finality of the decision, let letters testamentary issue to the executor, Eduardo F. Hernandez, as
well as the certificate of probate prescribed under Section 13 of Rule 76 of the Rules of Court.
SO ORDERED." 3
This case arose from a petition filed by private respondent Atty. Eduardo F. Hernandez on April 22, 1981
with the Court of First Instance of Manila (now Regional Trial Court) seeking the probate of the holographic
will of the late Herminia Montinola executed on January 28, 1980. 4 The testatrix, who died single,
parentless and childless on March 29, 1981 at the age of 70 years, devised in this will several of her real
properties to specified persons.
On April 29, 1981, private respondent who was named executor in the will filed an urgent motion for
appointment of special administrator. 5 With the conformity of all the relatives and heirs of the testatrix
except oppositor, the court in its order of May 5, 1981 6 appointed private respondent as Special
Administrator of the testate estate of deceased.
On June 29, 1981, Matilde Montinola Sanson (petitioner), the only surviving sister of the deceased but who
was not named in the said will, filed her Opposition to Probate of Will, 7 alleging inter alia: that the subject
will was not entirely written, dated and signed by the testatrix herself and the same was falsely dated or
antedated; that the testatrix was not in full possession of her mental faculties to make testamentary
dispositions; that undue influence was exerted upon the person and mind of the testatrix by the
68

beneficiaries named in the will; and that the will failed to institute a residual heir to the remainder of the
estate.

After a hearing on the merits, the probate court, finding the evidence presented in support of the petition
to be conclusive and overwhelming, rendered its decision allowing the probate of the disputed will.
Petitioner thus appealed the decision of the probate court to the Court of Appeals which affirmed in
toto the decision. 8
On September 24, 1986, petitioner filed with the respondent court a motion for new trial. 9 Attached to her
motion was the Affidavit of Merit of Gregorio Montinola Sanson, petitioner's son, alleging that witnesses
have been located whose testimonies could shed light as to the ill health of the testatrix as well as undue
influence exerted on the latter.
The appellate court in its resolution of October 13, 1986, 10 denied the motion for new trial of petitioner
on the following grounds: (1) the Affidavit of Merit attached to the motion alleged that efforts were exerted
to locate unnamed witnesses only after the court's decision was handed down, and (2) the unnamed
witnesses would allegedly shed light on the fact of grave illness of the testatrix as well as the undue
influence exerted on her which are merely corroborative or cumulative since these facts were brought to
light during the trial.
The motion for reconsideration of petitioner dated October 27, 1986 11 was likewise denied by the
appellate court in its resolution of November 20, 1986 12 on the ground that the affidavit of one Patricia
Delgado submitted with the motion constitutes cumulative evidence and the motion being in reality a
second motion for reconsideration which is prescribed by law.
In the petition now before Us, petitioner assigned the following errors:
"I
THE RESPONDENT COURT OF APPEALS ERRED IN DENYING PETITIONERS' MOTION FOR NEW TRIAL ON
THE GROUND THAT THE EVIDENCE SOUGHT TO BE PRESENTED IS MERELY CUMULATIVE.
II
THE SAID COURT ERRED IN DENYING PETITIONERS' MOTION FOR RECONSIDERATION OF THE
RESOLUTION DENYING THE AFORESAID MOTION FOR NEW TRIAL.
III
AT ANY RATE, THE SAID COURT ERRED IN HOLDING THAT THE HOLOGRAPHIC WILL IN QUESTION WAS
WHOLLY WRITTEN, DATED AND SIGNED BY THE LATE HERMINIA MONTINOLA.
IV
THE SAID COURT ERRED IN NOT FINDING THAT THE ALLEGED WILL WAS FRAUDULENTLY ANTEDATED
TO CONCEAL ITS ACTUAL DATE OF EXECUTION AND TO SHIELD IT FROM PROBABLE DISPUTES AS TO
THE TESTAMENTARY CAPACITY ON THE PART OF THE ALLEGED TESTATRIX AT THE TIME OF ITS ACTUAL
EXECUTION.
V
69

THE SAID COURT ERRED IN HOLDING THAT THE LATE HERMINIA MONTINOLA WAS NOT SUBJECTED TO
UNDUE PRESSURE AND IMPROPER IMPORTUNINGS ON THE PART OF THOSE STANDING TO BENEFIT
FROM THE ALLEGED WILL.
VI
THE SAID COURT ERRED IN ALLOWING THE HOLOGRAPHIC WILL IN QUESTION TO PROBATE."
In the meantime, petitioner who passed away on November 3, 1986, was substituted by her heirs.
In the first and second assigned errors, petitioners maintain that the appellate court erred in denying the
motion for new trial insisting that the new evidence sought to be presented is not merely corroborative or
cumulative.
On the other hand, the contention of private respondent is that the motion for new trial was a pro-forma
motion because it was not in accordance with Sec. 1, Rule 53 of the Rules of Court. We find merit in this
contention.
Section 1, Rule 53 provides
"Before a final order or judgment rendered by the Court of Appeals becomes executory, a motion for new
trial may be filed on the ground of newly discovered evidence which could not have been discovered prior
to the trial in the Court below by the exercise of the diligence and which is of such a character as would
probably change the result. The motion shall be accompanied by affidavits showing the facts constituting
the grounds therefor and the newly discovered evidence."
The affidavit of merit executed by Gregorio Montinola Sanson alleged the following:
xxx xxx xxx
"3.That in her plea for new trial in the said case, I have exerted efforts to locate witnesses whose
whereabouts were not known to us during the trial in the lower court, but I have finally succeeded in
tracking them down;
"4.That despite their initial reluctance to testify in this case, law convinced that they would testify under
proper subpoena for purposes of shedding light on the fact that the testatrix was gravely ill at or about the
time that the questioned will was allegedly executed;
"5.That they had the clear opportunity to know the circumstances under which the purported will was
executed; and that they know for a fact that there was `undue influence' exerted by petitioner and other
relatives to procure improper favors from the testatrix;
xxx xxx xxx" 13
Said motion for new trial is not in substantial compliance with the requirements of Rule 53. The lone
affidavit of a witness who was already presented during the hearing is hardly sufficient to justify the
holding of new trial. The alleged new witnesses were unnamed without any certainty as to their appearance
before the court to testify. Affiant attests only on his belief that they would testify if and when they are
subpoenaed by the court. Furthermore, the allegations in the affidavit as to the undue influence exerted on
the testatrix are mere conclusions and not statement of facts. The requisite affidavits must state facts and
not mere conclusions or opinions, otherwise they are not valid. 14The affidavits are required to avoid waste
of the court's time if the newly discovered evidence turns out to be immaterial or of any evidentiary weight.
Moreover, it could not be said that the evidence sought to be presented is new having been discovered only
after the trial. It is apparent from the allegations of affiant that efforts to locate the witnesses were exerted
70

only after the decision of the appellate court was handed down. The trial lasted for about four years so that
petitioner had ample time to find said alleged witnesses who were admittedly known to her. The evidence
which the petitioner now propose to present could have been discovered and presented during the hearing
of the case, and there is no sufficient reason for concluding that had the petitioner exercised proper
diligence she would not have been able to discover said evidenced. 15
In addition, We agree with the appellate court that since the alleged illness of the testatrix as well as the
charges of undue influence exerted upon her had been brought to light during the trial, and new evidence
on this point is merely corroborative and cumulative which is generally not a ground for new
trial. 16 Accordingly, such evidence even if presented will not carry much probative weight which can alter
the judgment. 17
It is very patent that the motion for new trial was filed by petitioner only for the purpose of delaying the
proceedings. In fact, petitioner's son in his manifestation admitted that he had to request a new law firm to
do everything legally possible to meet the deadline for the filing of a motion for reconsideration and/or for
new trial. 18 This would explain the haphazard preparation of the motion, thus failing to comply with the
requirements of Rule 53, which was filed on the last day of the reglementary period of appeal so that the
veracity of the ground relied upon is questionable. The appellate court correctly denied the motion for new
trial.
The motion for new trial being pro-forma, it does not interrupt the running of the period for
appeal. 19 Since petitioner's motion was filed on September 24, 1986, the fifteenth or last day of the
period to appeal, the decision of the respondent court became final on the following day, September 25.
And when the motion for reconsideration of petitioner was filed on October 30, 1986, it was obviously filed
out of time.
Since the questioned decision has already become final and executory, it is no longer within the province of
this Court to review it. This being so, the findings of the probate court as to the due execution of the will
and the testamentary capacity of testatrix are now conclusive. 20
At any rate, even assuming that We can still review this case on its merits, the petition will also have to fail.
During the hearing before the probate court, not only were three (3) close relatives of the testatrix
presented but also two (2) expert witnesses who declared that the contested will and signature are in the
handwriting of the testatrix. These testimonies more than satisfy the requirements of Art. 811 of the Civil
Code 21 in conjunction withSection 11 of Rule 76, Revised Rules of Court, 22 for the probate of
holographic wills.
As regards the alleged antedating of the will, petitioner failed to present competent proof that the will was
actually executed sometime in June 1980 when the testatrix was already seriously ill and dying of terminal
lung cancer. She relied only on the supposed inconsistencies in the testimony of Asuncion Gemperle, niece
and constant companion of testatrix, which upon careful examination did not prove such claim of
antedating.
The factual findings of the probate court and the Court of Appeals that the will in question was executed
according to the formalities required by law are conclusive on the Supreme Court when supported by
evidence. 23 We have examined the records of this case and find no error in the conclusion arrived at by
the respondent court that the contested will was duly executed in accordance with law.
Petitioner alleges that her exclusion from the alleged holographic will was without rhyme or reason, being
the only surviving sister of the testatrix with whom she shares an intimate relationship, thus demonstrating
the lack of testamentary capacity of testatrix.
71

In the case of Pecon v. Coronel, 24 it was held
"The appellants emphasize the fact that family ties in this country are very strongly knit and that the
exclusion of a relative from one's estate is an exceptional case. It is true that the ties of relationship in the
Philippines are very strong, but we understand that cases of preterition of relatives from the inheritance are
not rare. The liberty to dispose of one's estate by will when there are no forced heirs is rendered sacred by
the Civil Code in force in the Philippines since 1889 . . . "

Article 842 of the Civil Code provides that 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.
It is within the right of the testatrix not to include her only sister who is not a compulsory heir in her will.
Nevertheless, per testimony of Asuncion Gemperle, the latter had reserved two boxes of jewelry worth
P850,000.00 for petitioner. Furthermore, petitioner's son Francis was instituted as an heir in the contested
will.
Petitioner still insists that the fact that in her holographic will the testatrix failed to dispose of all of her
estate is an indication of the unsoundness of her mind.
We cannot subscribe to this contention. Art. 841 of the Civil Code provides
"A will shall be valid even though it should not contain an institution of an heir, or such institution should
not comprise the entire estate, and even though the person so instituted should not accept the inheritance
or should be incapacitated to succeed.
In such cases, the testamentary dispositions made in accordance with law shall be complied with and the
remainder of the estate shall pass to the legal heirs."
Thus, the fact that in her holographic will, testatrix disposed of only eleven (11) of her real properties does
not invalidate the will, or is it an indication that the testatrix was of unsound mind. The portion of the
estate undisposed of shall pass on to the heirs of the deceased in intestate successor.
Neither is undue influence present just because blood relatives, other than compulsory heirs have been
omitted, for while blood ties are strong in the Philippines, it is the testator's right to disregard non-
compulsory heirs. 25 The fact that some heirs are more favored than others is proof of neither fraud or
undue influence. 26 Diversity of apportionment is the usual reason for making a testament, otherwise, the
decedent might as well die intestate. 27
The contention of the petitioner that the will was obtained by undue influence or improper pressure exerted
by the beneficiaries of the will cannot be sustained on mere conjecture or suspicion; as it is not enough
that there was opportunity to exercise undue influence or a possibility that it may have been
exercised. 28 The exercise of improper pressure and undue influence must be supported by substantial
evidence that it was actually exercised. 29
Finally, We quote with approval the observation of the respondent court
"There is likewise no question as to the due execution of the subject Will. To Our minds, the most authentic
proof that deceased had testamentary capacity at the time of the execution of the Will, is the Will itself
which according to a report of one of the two expert witnesses (Exhibits X to X-3) reveals the existence of
significant handwriting characteristics such as:
'1.Spontaneity, freedom, and speed of writing.
72

xxx xxx xxx
'3.good line quality.
'4.presence of natural variation. . . .' (Exhibit X).
The characteristics of spontaneity, freedom and good line quality could not be achieved by the testatrix if it
was true that she was indeed of unsound mind/or under undue influence or improper pressure when she
executed the Will."
IN VIEW OF THE FOREGOING CONSIDERATIONS, the petition is DENIED for lack of merit with costs
against petitioner. The decision of respondent court dated August 29, 1986 affirming in toto the decision of
the Regional Trial Court of Manila dated March 21, 1985 is hereby declared to be immediately executory.
SO ORDERED.