RULE 77

CASE 1 - FLUEMER VS. HIX 54 Phil 610 (1980)

FACTS:
The special administrator of the estate of Edward Randolph Hix appeals from the denial of probate of the
document alleged to be last will and testament of the deceased. According to the Petitioner, the will was
alleged to be executed in and under the laws of West Virginia, on November 3, 1925, by Hix who had his
residence in that jurisdiction.
ISSUE:
Whether or not the will should be allowed probate in the Philippines despite the absence of proof showing
compliance with the laws of West Virginia for the execution of wills?

HELD: NO.
1.

No proof as to the law of foreign jurisdiction was presented in the CFI

a. no printed or published authority of the State of West Virginia

b. No extract from the law attested by the certificate of the officer having charge of the original, under the
sale of the State of West Virginia
c. No evidence was introduced to show that the extract from the laws of West Virginia was in force at the
time the alleged will was executed

2. The due execution of the will was not established.

a. There was nothing to indicate that the will was acknowledged by the testator in the presence of two
competent witnesses, or that these witnesses subscribed the will in the presence of the testator and of
each other as the law of West Virginia seems to require
3. Petitioner failed to prove that the testator had his domicile in West Virginia and not establish this fact
consisted of the recitals in the CATHY will and the testimony of the petitioner.
4. The application for the probate of the will in the Philippines was filed on February 20, 1929, while the
proceedings in West Virginia appear to have been initiated on June 8, 1929.
a. These facts are strongly indicative of an intention to make the Philippines the principal administration
and West Virginia the ancillary administration.
b. However this may be, no attempt has been made to comply with Civil Procedure, for no hearing on the
question of the allowance of a will said to have been proved and allowed in West Virginia has been
requested. There is no showing that the deceased left any property at any place other than the Philippine
Islands and no contention that he left any in West Virginia.
CASE 5 - In re: Testate Estate of the deceased JOSE B. SUNTAY. SILVINO SUNTAY, petitioner
and appellant.
In re: Intestate Estate of the deceased JOSE B. SUNTAY, FEDERICO C. SUNTAY, administrator
and appellee
FACTS:

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1.

2.

3.

4.
5.

In May 1934, JOSE B. SUNTAY, a Filipino citizen and resident of the Philippines, died in Amoy,
Fookien province, China, leaving real and personal properties in the Philippines and a house in
Fookien, China. By the first marriage with the late Manuela T. Cruz, he had nine children,
namely, Apolonio, Concepcion, Angel, Manuel, Federico, Ana, Aurora, Emiliano and Jose, Jr. By
the second marriage with Maria Natividad Lim Billian, he had a child named Silvino.
Intestate proceedings were instituted in the CFI of Bulacan (special proceedings No. 4892) and
after hearing letters of administration were issued to Apolonio. When Apolonio died, Federico
was appointed as administrator of the estate.
In Oct. 1934, the surviving widow filed in the CFI of Bulacan a petition for the probate of a last
will and testament claimed to have been executed and signed in the Philippines in Nov. 1929
by her late husband. This was denied by the CFI because of the loss of said will before hearing
and such loss was not sufficiently established. But on appeal, the SC held the evidence before
the probate court sufficient to establish the loss of the will and remanded the case of the CFI
for further proceedings. However, the probate court dismissed the petition.
The Pacific war supervened.
After liberation, Silvino filed a petition in the intestate proceedings a petition for the probate of
the will executed in the Philippines in Nov. 1929, or of another will which he claims was
executed and signed by his late father in Jan. 1931 in Fookien, China.

ISSUE: W/N the two wills alleged to have been executed and signed by the late JOSE B. SUNTAY should
be allowed
HELD: *As to the lost will: NO.
Sec 6 Rule 77 provides:
No will shall be proved as a lost or destroyed will unless the execution and validity of
the same be established, and the will be proved to have been in existence at the time of the
death of the testator, or is shown to have been fraudulently or accidentally destroyed in the
lifetime of the testator without his knowledge, nor unless its provisions are clearly and
distinctly proved by at least two credible witnesses. When a lost will is proved, the provisions
thereof must be distinctly stated and certified by the judge, under the seal of the court, and
the certificate must be filed and recorded as other wills are filed and recorded.
The witnesses who testified to the provisions of the lost will were Go Toh, an attesting witness,
Anastacio Teodoro, and Ana Suntay. However, their testimonies were contradictory and in fact negated
one another.
*As to the will claimed to have been executed in Fookien, China: NO.
The law on the point is Rule 78.
Sec 1 provides:
Wills proved and allowed in a foreign country, according to the laws of such country,
may be allowed, flied, and recorded by the proper CFI in the Philippines.
Sec 2 provides:
When a copy of such will and the allowance thereof, duly authenticated, is filed with a
petition for allowance in the Philippines, by the executor or other person interested, in the
court having jurisdiction, such court shall fix a time and place for the hearing, and cause notice
thereof to be given as in case of an original will presented for allowance.

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Sec 3 provides:
If it appears at the hearing that the will should be allowed in the Philippines, the court
shall so allow it, and a certificate of its allowance, signed b the Judge, and attested by the seal
of the court, to which shall be attached a copy of the will, shall be filed and recorded by the
clerk, and the will shall have the same effect as if originally proved and allowed in such court.

The fact that the municipal district court of Amoy, Fookien, China, is a probate court must be
proved. The law of China on procedure in the probate or allowance of wills must also be proved. The
legal requirements for the execution of a valid will in China in 1931 should also be established by
competent evidence. There is no proof on these points.
In the absence of proof that the municipal district court of Amoy is a probate court and on the
Chinese law of procedure in probate matters, it may be presumed that the proceedings in the matter of
probating or allowing a will in the Chinese courts are the same as those provided for in our laws on the
subject. Probate being a proceedings in rem, notice or publication to all interested parties must be
made. No such notice or publication was received by the interested parties. In view thereof, the will
and alleged probate thereof cannot be said to have been done in accordance with the accepted basic
principles followed in the allowance of wills under our laws.
CASE 7 - naa pud ni sa RULE 73
ROBERTS VS LEONIDAS
Facts:
Edward M. Grimman American resident of Manila, died at 78 in the Makati Medical Centeron November 27, 1977.
Survived by his second wife, Maxine Tate Grimm and two children, Edward(Pete) and Linda, and by Juanita and Ethel
(McFadden), his two children by a first marriage whichended in divorce.He executed on January 23, 1959,
two willsi n San Francisco, California. One will disposed of hisPhilippine estate which he described as conjugal property of
himself and his second wife. Thesecond will disposed of his estate outside the Philippines.The two children of the
first marriage
were given their legitimes in the will disposing of the estatesituated in this country. In the will dealing with his property
outside this country, the testator said:
I purposely have made no provision in this will for my daughter, Juanita Grimm Morris, or mydaughter, Elsa Grimm
McFadden (Ethel Grimm Roberts), because I have provided for eachof them in a separate will disposing of my Philippine
property.
The two wills and a codicil were presented for probate by Maxine in Court of Tooele County, Utah.Two weeks later, Maxine,
Linda and Pete, as the first parties, and Ethel, Juanita and their motherJuanita Kegley Grimm as the second parties, with
knowledge of the intestate proceeding in Manila,entered into a compromise agreement in Utah regarding the estate. It was
signed the lawyers of theparties. It was stipulated that Maxine, Pete and Ethel would be designated
as personalrepresentatives (administrators) of Grimm's Philippine estate.On January 9, 1978, Ethel, filed with CFI Instance
intestate proceeding for the settlement of hisestate. She was named special administratrix. On March 11, the second wife,
Maxine, filedan opposition and motion to dismiss the intestate proceeding on the ground of the pendency of Utahof a
proceeding for the probate of Grimm's will. She also moved that she be appointed specialadministratrix, She submitted to
the court a copy of Grimm's will disposing of his Philippine estate.The intestate court in its orders of May 23 and June 2
noted that Maxine, withdrew that oppositionand motion to dismiss and, at the behest of Maxine, Ethel and Pete, appointed
them jointadministrators. Apparently, this was done pursuant to the aforementioned Utah compromiseagreement. The
court ignored the will already found in the record.The three administrators submitted an inventory. With the authority and
approval of the court, theysold
some of the testators properties.
Acting on the declaration of heirs and project of partitionsigned and filed by lawyers Limqueco and Macaraeg
(not signed by Maxine and her two children),Judge Conrado M. Molina adjudicated to Maxine one-half (4/8) of the
decedent's Philippine estateand one-eighth (1/8) each to his four children or 12.5%. Later, Maxine and her two children
replacedLimqueco with Octavio del Callar as their lawyer.On April 18, 1980 Juanita Grimm Morris, through Ethel's lawyers,
filed a motion for accounting "sothat the Estate properties can be partitioned among the heirs and the present intestate
estate beclosed." Del Callar, Maxine's lawyer was notified of that motion

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On September 8, 1980, Maxine, Pete and Linda, filed in Branch 38 of the lower court a petitionpraying for the
probate of Grimm's two wills (already probated in Utah), that the 1979 partitionapproved by the intestate court be set
aside and the letters of administration revoked, that Maxinebe appointed executrix and that Ethel and Juanita Morris be
ordered to account for the propertiesreceived by them and to return the same to Maxine. Grimm's second wife and two
children allegedthat they were defraud due to the machinations of the Roberts spouses, that the 1978 Utahcompromise
agreement was illegal, that the intestate proceeding is void because Grimm died testateand that the partition was contrary
to the decedent's wills.Ethel filed a motion to dismiss the petition. Judge Leonidas denied it for lack of
merit in his order ofOctober 27, 1980. Ethel then filed a petition for certiorari and prohibition in this Court, praying
thatthe testate proceeding be dismissed, or alternatively that the two proceedings be consolidated andheard in Branch 20
and that the matter of the annulment of the Utah compromise agreement beheard prior to the petition for probate.
Issue:
Whether or not a petition for allowance of wills and to annul a partition, approved in anintestate proceeding byCourt of First
Instance, can be entertained by its Branch 38 (after a probatein the Utah district court)
Ruling:
Respondent judge did not commit any grave abuse of discretion, amounting to lack of jurisdiction, in denying Ethel's
motion to dismiss. A testate proceeding is proper in this case because Grimm died with two wills and
"no will shall pass either real or personal property unless it is proved and allowed" (Art. 838, Civil Code; sec. 1,
Rule 75, Rules of Court).The probate of the will is mandatory. It is anomalous that the estate of a person whodied testate
should be settled in an intestate proceeding. Therefore, the intestate case should beconsolidated with the testate
proceeding and the judge assigned to the testate proceeding shouldcontinue hearing the two cases.Ethel may file within
twenty days from notice of the finality of this judgment an opposition and answerto the petition unless she considers her
motion to dismiss and other pleadings sufficient for thepurpose. Juanita G. Morris, who appeared in the intestate case,
should be served with copies oforders, notices and other papers in the testate case.WHEREFORE the petition is dismissed.
The temporary restraining order is dissolved.

Case No. 8 Alonzo vs. Ancheta (G.R. 139868)

Facts:
Spouses Audrey ONeil and Richard Guersay were American citizens who have resided in the
Philippines for 30 years, with an adopted daughter Kyle Guersay Hill. Audrey died leaving a will which
bequeathed her entire estate to Richard. The will was admitted to probate before the Orphans Court of
Baltimore, Maryland, USA, which named James Phillips as executor and Atty. Alonzo Ancheta as the
ancillary administrator.
In 1981, Richard married Candelaria Guersay-Dalaygon with whom he has two children, namely
Kimberly and Kevin. After a year, Audreys will was also admitted to probate by the CFI Rizal.
On 1984, Richard died, leaving a will, wherein he bequeathed his entire estate to Candelaria,
save for his rights and interest over the A/G Interiors, Inc. shares, which he left to Kyle. The said will
was admitted to probate before the Orphans Court of Baltimore, Maryland, USA. In the same way, it
was submitted to probate before RTC Makati. Atty. William Quasha was appointed as ancillary
administrator.
Atty. Ancheta filed in special proceeding a motion to declare Richard and Kyle as heirs of
Audrey wherein Richard is being apportioned with of the Makati property while Kyle receives of
which.
Candelaria opposed to the said motion citing that Audrey, in her will, devised her entire estate
to Richard and that under the law of the State of Maryland, a legacy passes to the legatee the entire
interest of the testator in the property subject of the legacy.
Issue:
Whether or not the property in question should be governed by the national laws of the decedent.
Held:
It is the national law of the decedent that is applicable. The national law of the person who
made the will shall regulate whose succession is in consideration whatever the nature of the property
and regardless of the country where the property maybe found, as provided for under Art. 16 of the
Civil Code.

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CASE 9 - Vda. De Perez vs. Tolete

FACTS:
Dr. Jose Cunanan and his wife, Dr. Evelyn Perez-Cunanan, who became American citizens and residents
of New York, each executed a will also in New York, containing provisions on presumption of
survivorship (in the event that it is not known which one of the spouses died first, the husband shall be
presumed to have predeceased his wife).
Later, the entire family perished in a fire that gutted their home. Thus, Rafael, who was named trustee
in Joses will, filed for separate probate proceedings of the wills.
Later, Evelyns mother, Salud Perez, filed a petition for reprobate in Bulacan. Rafael opposed, arguing
that Salud was not an heir according to New York law. He contended that since the wills were executed
in New York, New York law should govern. He further argued that, by New York law, he and his brothers
and sisters were Joses heirs and as such entitled to notice of the reprobate proceedings, which Salud
failed to give.
For her part, Salud said she was the sole heir of her daughter, Evelyn, and that the two wills were in
accordance with New York law. But before she could present evidence to prove the law of New York, the
reprobate court already issued an order, disallowing the wills.
ISSUE:
Whether or not the reprobate of the wills should be allowed
HELD:
Extrinsic Validity of Wills of Non-Resident Aliens
The respective wills of the Cunanan spouses, who were American citizens, will only be effective in this
country upon compliance with the following provision of the Civil Code of the Philippines:
Art. 816. The will of an alien who is abroad produces effect in the Philippines if made with the
formalities prescribed by the law of the place in which he resides, or according to the formalities
observed in his country, or in conformity with those which this Code prescribes.
Thus, proof that both wills conform with the formalities prescribed by New York laws or by Philippine
laws is imperative.
Evidence for Reprobate of Wills Probated outside the Philippines
The evidence necessary for the reprobate or allowance of wills which have been probated outside of
the Philippines are as follows: (1) the due execution of the will in accordance with the foreign laws; (2)
the testator has his domicile in the foreign country and not in the Philippines; (3) the will has been
admitted to probate in such country; (4) the fact that the foreign tribunal is a probate court, and (5)
the laws of a foreign country on procedure and allowance of wills
Except for the first and last requirements, the petitioner submitted all the needed evidence.
The necessity of presenting evidence on the foreign laws upon which the probate in the foreign country
is based is impelled by the fact that our courts cannot take judicial notice of them.
On Lack of Notice to Joses Heirs
This petition cannot be completely resolved without touching on a very glaring fact - petitioner has
always considered herself the sole heir of Dr. Evelyn Perez Cunanan and because she does not
consider herself an heir of Dr. Jose F. Cunanan, she noticeably failed to notify his heirs of the filing of
the proceedings. Thus, even in the instant petition, she only impleaded respondent Judge, forgetting
that a judge whose order is being assailed is merely a nominal or formal party (Calderon v. Solicitor
General, 215 SCRA 876 [1992]).
The rule that the court having jurisdiction over the reprobate of a will shall "cause notice thereof to be
given as in case of an original will presented for allowance" (Revised Rules of Court, Rule 27, Section 2)
means that with regard to notices, the will probated abroad should be treated as if it were an "original
will" or a will that is presented for probate for the first time. Accordingly, compliance with Sections 3
and 4 of Rule 76, which require publication and notice by mail or personally to the "known heirs,

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legatees, and devisees of the testator resident in the Philippines" and to the executor, if he is not the
petitioner, are required.
The brothers and sisters of Dr. Jose F. Cunanan, contrary to petitioner's claim, are entitled to notices of
the time and place for proving the wills. Under Section 4 of Rule 76 of the Revised Rules of Court, the
"court shall also cause copies of the notice of the time and place fixed for proving the will to be
addressed to the designated or other known heirs, legatees, and devisees of the testator, . . . "
WHEREFORE, the questioned Order is SET ASIDE. Respondent Judge shall allow petitioner reasonable
time within which to submit evidence needed for the joint probate of the wills of the Cunanan spouses
and see to it that the brothers and sisters of Dr. Jose F. Cunanan are given all notices and copies of all
pleadings pertinent to the probate proceedings.

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