FULL TEXT (SPEC PRO)

RULE 76
ALLOWANCE OR DISALLOWANCE OF WILL

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-23135

December 26, 1967

TESTATE ESTATE OF HILARION RAMAGOSA. MARIANO SUMILANG, petitioner-appellee,

vs.
SATURNINA RAMAGOSA, SANTIAGO RAMAGOSA, ENRIQUE PABELLA, LICERIA PABELLA
and ANDREA RAVALO, oppositors-appellants.
Gatchalian and Sison and J. A. Bardelosa, Jr. for petitioner-appellee.
Jose L. Desvarro Jr. for oppositors-appellants
MAKALINTAL, J.:
On July 5, 1960 Mariano Sumilang filed in the Court of First Instance of Quezon a petition for the
probate of a document alleged to be the last will and testament of Hilarion Ramagosa, who died on
December 1, 1959. Said document, written in Tagalog and dated February 26, 1949, institutes
petitioner as sole heir of the testator.
The petition for probate was opposed by two (2) of oppositors appellants herein who
questioned the due execution of the document, claiming that it was made under duress and was not
really intended by the deceased to be his last will and testament. Aside from merely opposing the
petition for probate, the first set of oppositors Saturnino and Santiago Ramagosa also claimed
that they, instead of petitioner, were entitled to inherit the estate of the deceased. The other
oppositors representing themselves simply as next of kin, appropriately prayed only for the
disallowance of the will.
At the hearings of the petition petitioner adduced his evidence, and then rested his case on February
16, 1961. Reception of oppositors' evidence was set for July 14, 1961. However, on July 3, 1961
oppositors moved for the dismissal of the petition for probate mainly on the ground that "the court
lacks jurisdiction over the subject-matter because the last will and testament of the decedent, if ever
it was really executed by him, was revoked by implication of law six years before his death."
Oppositors alleged that after making the will Hilarion Ramagosa sold to petitioner Mariano Sumilang
and his brother Mario the parcels of land described therein, so that at the time of the testator's death
the titles to said lands were no longer in his name.
Petitioner filed his opposition to the motion for dismissal on July 17, 1961 supplemented it by
another opposition on August 14, 1961, and by a rejoinder on August 21, 1961. Finally, on October
22, 1962 petitioner moved to strike out the oppositors' pleadings on two grounds, namely:

1. That oppositors have no legal standing in court and they are bereft of personality to
oppose the probate of the last will and testament of the testators; and
2. That oppositors have no valid claim and interest in the distribution of (the) estate of the
aforesaid testator and no existing valid right whatsoever.
On October 18, 1963 the court a quo issued the order now subject of this appeal, which read as
follows:
Acting on the motion to dismiss filed by the oppositors dated July 31, 1961, the same is
hereby denied for the allegations contained therein goes (sic) to the very intrinsic value of the
will and other grounds stated on said motion to dismiss are without merit.itc-alf With respect
to the motion to strike out opposition and all other pleadings of oppositors filed by the
petitioner, it appears that oppositors have no relationship whatsoever within the fifth degree
as provided by law and therefore the oppositors are totally strangers to the deceased whose
will is under probate. This being so, the motion to strike out opposition and all other
pleadings pertinent thereto is hereby ordered stricken out of the record.
The petition below being for the probate of a will, the court's area of inquiry is limited to the extrinsic
validity thereof. The testator's testamentary capacity and the compliance with the formal requisites or
solemnities prescribed by law are the only questions presented for the resolution of the court. Any
inquiry into the intrinsic validity or efficacy of the provisions of the will or the legality of any devise or
legacy is premature. (Nuguid vs. Nuguid, G.R. No. L-23445, June 23, 1966).
To establish conclusively as against everyone and once for all, the facts that a will was
executed with the formalities required by law and that the testator was in a condition to make
a will, is the only purpose of the proceedings . . . for the probate of a will. The judgment in
such proceedings determines and can determine nothing more. (Alemany, et al. vs. CFI of
Manila, 3 Phil. 424).
Oppositors would want the court a quo to dismiss petition for probate on the ground that the testator
had impliedly revoked his will by selling, prior to his death, the lands disposed of therein.
True or not, the alleged sale is no ground for the dismissal of the petition for probate. Probate is one
thing the validity of the testamentary provisions is another.itc-alf The first decides the execution of
the document and the testamentary capacity of the testator; the second relates to descent and
distribution.
The alleged revocation implied from the execution of the deeds of conveyance in favor of the
testamentary heir is plainly irrelevant to and separate from the question of whether the
testament was duly executed. For one, if the will is not entitled to probate, or its probate is
denied, all questions of revocation become superfluous: in law, there is no such will and
hence there would be nothing to revoke. Then, again, the revocation invoked by the
oppositors-appellants is not an express one, but merely implied from subsequent acts of the
testatrix allegedly evidencing an abandonment of the original intention to bequeath or devise
the properties concerned. As such, the revocation would not affect the will itself, but merely
the particular devise or legacy.itc-alf (Fernandez, et al. vs. Dimagiba, L-23638 and Reyes, et
al. vs. Dimagiba, L-23662, October 12, 1967.)
In their brief, oppositors do not take issue with the court a quo's finding that they "have no
relationship whatsoever within the fifth degree as provided by law and therefore . . . are totally (sic)
strangers to the deceased whose will is under probate." They do not attempt to show that they have

some interest in the estate which must be protected. The uncontradicted evidence, consisting of
certified true copies of the parties' baptism and marriage certificates, support the said court's finding
in this respect.
It is a well-settled rule that in order that a person may be allowed to intervene in a probate
proceeding he must have an interest in the estate, or in the will, or in the property to be
affected by it either as executor or as a claimant of the estate (Ngo The Hua vs. Chung Kiat
Hua, et al., L-17091, September 30, 1963); and an interested party has been defined as one
who would be benefited by the estate such as an heir or one who has a claim against the
estate like a creditor. (Teotico vs. Del Val, etc., G.R. No. L- 18753, March 26, 1965.)
The reason for the rule excluding strangers from contesting the will, is not that thereby the
court may be prevented from learning facts which would justify or necessitate a denial of
probate, but rather that the courts and the litigants should not be molested by the
intervention in the proceedings of persons with no interest in the estate which would entitle
them to be heard with relation thereto. (Paras vs. Narciso, 35 Phil. 244.)
Sometime after this case was elevated to this Court appellee moved to dismiss the appeal on the
ground that the order appealed from is interlocutory. We deferred action on the motion until after the
brief of both parties had been filed. The motion, although now practically academic in view of our
resolution of the main issue involved, must be denied, since the order of the lower court striking out
appellants' opposition to the probate of the will on the ground that they have no personality to
intervene in the case, was final and therefore appealable order insofar as they were concerned.
The order appealed from is hereby affirmed, with costs against oppositors- appellants.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar, Sanchez, Castro,
Angeles and Fernando, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-29184 January 30, 1989
BENEDICTO LEVISTE, petitioner,
vs.
THE COURT OF APPEALS, HON. JUDGE LUIS B. REYES, COURT OF FIRST INSTANCE OF
MANILA, ROSA DEL ROSARIO, RITA BANU, CARMEN DE GUZMAN-MARQUEZ, JESUS R. DE
GUZMAN, RAMON R. DE GUZMAN, JACINTO R. DE GUZMAN and ANTONIO R. DE GUZMAN,
respondents.
Benedicto Leviste for and in his own behalf.
Gatchalian, Ignacio & Associates for respondents de Guzman.

GRIO-AQUINO, J.:
The issue in this case is whether or not an attorney who was engaged on a contingent fee basis
may, in order to collect his fees, prosecute an appeal despite his client's refusal to appeal the
decision of the trial court.
On September 7, 1963, the petitioner, a practicing attorney, entered into a written agreement with
the private respondent Rosa del Rosario to appear as her counsel in a petition for probate of the
holographic will of the late Maxima C. Reselva. Under the will, a piece of real property at Sales
Street, Quiapo, Manila, was bequeathed to Del Rosario. It was agreed that petitioner's contigent fee
would be thirty-five per cent (35%) of the property that Rosa may receive upon the probate of the will
(Annex "A", p. 59, Rollo).
In accordance with their agreement, Leviste performed the following services as Del Rosario's
counsel:
(1) Thoroughly researched and studied the law on probate and succession;
(2) Looked for and interviewed witnesses, and took their affidavits;
(3) Filed the petition for. probate is Special Proceeding No. 58325;
(4) Made the proper publications;
(5) Presented at the trial the following witnesses:
a) Eleuterio de Jesus
b) Lucita de Jesus

c) Purita L. Llanes
d) Rita Banu
e) Jesus Lulod.
On August 20, 1965, Leviste received a letter from Ms. Del Rosario, informing him that she was
terminating his services as her counsel due to "conflicting interest." This consisted, according to the
letter, in petitioner's moral obligation to protect the interest of his brother-in-law, Gaudencio M.
Llanes, whom Del Rosario and the other parties in the probate proceeding intended to eject as
lessee of the property which was bequeathed to Del Rosario under the will (Annex "B", p. 60, Rollo).
On September 20, 1965, petitioner filed a "Motion to Intervene to Protect His Rights to Fees for
Professional Services." (Annex "B", p. 60, Rollo.)
In an order dated November 12, 1965 the trial court denied his motion on the ground that he had
"not filed a claim for attorney's fees nor recorded his attorney's lien." (p. 3, Rollo.)
On November 23, 1965, petitioner filed a "Formal Statement of Claim for Attorney's Fees and
Recording of Attorney's Lien,' which was noted in the court's order of December 20, 1965 (Annexes
"D" and "E", pp. 63 & 64, Rollo).
Although the order denying his motion to intervene had become final, petitioner continued to receive
copies of the court's orders, as well the pleadings of the other parties in the case. He also continued
to file pleadings. The case was submitted for decision without the respondents' evidence.
On November 23, 1966, Del Rosario and Rita Banu, the special administratrix-legatee, filed a
"Motion To Withdraw Petition for Probate" alleging that Del Rosario waived her rights to the devise in
her favor and agreed that the De Guzman brothers and sisters who opposed her petition for probate,
shall inherit all the properties left by the decedent. (Annex "F", p. 65, Rollo.)
In an order of April 13, 1967 the trial court denied the motion to withdraw the petition for being
contrary to public policy (Annex "G", pp. 66-67, Rollo).
Nonetheless, on August 28, 1967, the court disallowed the will, holding that the legal requirements
for its validity were not satisfied as only two witnesses testified that the will and the testatrix's
signature were in the handwriting of Maxima Reselva.
The petitioner filed an appeal bond, notice of appeal, and record on appeal. The private respondents
filed a motion to dismiss the appeal on the ground that petitioner was not a party in interest.
The petitioner opposed the motion to dismiss his appeal, claiming that he has a direct and material
interest in the decision sought to be reviewed. He also asked that he be substituted as partypetitioner, in lieu of his former client, Ms. Del Rosario.
On March 28, 1968, the trial judge dismissed the appeal and denied petitioner's motion for
substitution.
The petitioner filed in the Court of Appeals a petition for mandamus (CA-G.R. No. 41248) praying
that the trial court be ordered to give due course to his appeal and to grant his motion for
substitution.

On May 22, 1968, the Court of Appeals dismissed the petition for being insufficient in form and
substance as the petitioner did not appear to be the proper party to appeal the decision in Special
Proceeding No. 58325 (Annex 1, p. 77, Rollo).
Upon the denial of his motion for reconsideration, petitioner appealed by certiorari to this Court,
assigning the following errors against the Court of Appeals' resolution:
1. The Court of Appeals erred in finding that the petitioner appears not to be the
proper party to appeal the decision in Sp. Proc. No. 58325 of the Court of First
Instance of Manila.
2. Assuming the petitioner's right of appeal is doubtful, the Court of Appeals erred in
dismissing his petition for mandamus; and
3. The Court of Appeals erred in not reversing the decision in Sp. Proc. No. 58325
denying the probate of the holographic will of the late Maxima C. Reselva, said
decision being patently erroneous.
Under his first assignment of error, petitioner argues that by virtue of his contract of services with Del
Rosario, he is a creditor of the latter, and that under Article 1052 of the Civil Code which provides:
ART. 1052. If the heir repudiates the inheritance to the prejudice of his own creditors,
the latter may petition the court to authorize them to accept it in the name of the heir.
The acceptance shall benefit the creditors only to an extent sufficient to cover the
amount of their credits. The excess, should there be any, shall in no case pertain to
the renouncer, but shall be adjudicated to the persons to whom, in accordance with
the rules established in this Code, it may belong.
he has a right to accept for his client Del Rosario to the extent of 35% thereof the devise in her favor
(which she in effect repudiated) to protect his contigent attorney's fees.
The argument is devoid of merit. Article 1052 of the Civil Code does not apply to this case. That
legal provision protects the creditor of a repudiating heir. Petitioner is not a creditor of Rosa del
Rosario. The payment of his fees is contingent and dependent upon the successful probate of the
holographic will. Since the petition for probate was dismissed by the lower court, the contingency did
not occur. Attorney Leviste is not entitled to his fee.
Furthermore, Article 1052 presupposes that the obligor is an heir. Rosa del Rosario is not a legal
heir of the late Maxima C. Reselva. Upon the dismissal of her petition for probate of the decedent's
will, she lost her right to inherit any part of the latter's estate. There is nothing for the petitioner to
accept in her name.
This Court had ruled in the case of Recto vs. Harden, 100 Phil. 1427, that "the contract (for
contingent attorney's fees) neither gives, nor purports to give, to the appellee (lawyer) any right
whatsoever, personal or real, in and to her (Mrs. Harden's) aforesaid share in the conjugal
partnership. The amount thereof is simply a basis for the computation of said fees."
The Court of Appeals did not err in dismissing the petition for mandamus, for while it is true that, as
contended by the petitioner, public policy favors the probate of a will, it does not necessarily follow
that every will that is presented for probate, should be allowed. The law lays down procedures which

should be observed and requisites that should be satisfied before a will may be probated. Those
procedures and requirements were not followed in this case resulting in the disallowance of the will.
There being no valid will, the motion to withdraw the probate petition was inconsequential.
Petitioner was not a party to the probate proceeding in the lower court. He had no direct interest in
the probate of the will. His only interest in the estate is an indirect interest as former counsel for a
prospective heir. In Paras vs. Narciso, 35 Phil. 244, We had occassion to rule that one who is only
indirectly interested in a will may not interfere in its probate. Thus:
... the reason for the rule excluding strangers from contesting the will, is not that
thereby the court maybe prevented from learning facts which would justify or
necessitate a denial of probate, but rather that the courts and the litigants should not
be molested by the intervention in the proceedings of persons with no interest in the
estate which would entitle them to be heard with relation thereto. (Paras vs. Narciso,
35 Phil. 244, 246.)
Similary, in Morente vs. Firmalino, 40 O.G. 21st Supp. 1, We held:
We are of the opinion that the lower court did not err in holding that notice of an
attorney's lien did not entitle the attorney-appellant to subrogate himself in lieu of his
client. It only gives him the right to collect a certain amount for his services in case
his client is awarded a certain sum by the court.
WHEREFORE, the petition for certiorari is denied for lack of merit. Costs against the petitioner.
SO ORDERED.
Narvasa, Cruz, Gancayco and Medialdea, JJ, concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC

G.R. No. L-24742 October 26, 1973

ROSA CAYETANO CUENCO, petitioners,
vs.
THE HONORABLE COURT OF APPEALS, THIRD DIVISION, MANUEL CUENCO, LOURDES
CUENCO, CONCEPCION CUENCO MANGUERRA, CARMEN CUENCO, CONSUELO CUENCO
REYES, and TERESITA CUENCO GONZALEZ, respondents.
Ambrosio Padilla Law Office for petitioner.
Jalandoni and Jamir for respondents.

TEEHANKEE, J.:
Petition for certiorari to review the decision of respondent Court of Appeals in CA-G.R. No. 34104-R,
promulgated 21 November 1964, and its subsequent Resolution promulgated 8 July 1964 denying
petitioner's Motion for Reconsideration.
The pertinent facts which gave rise to the herein petition follow:
On 25 February 1964 Senator Mariano Jesus Cuenco died at the Manila Doctors' Hospital, Manila.
He was survived by his widow, the herein petitioner, and their two (2) minor sons, Mariano Jesus, Jr.
and Jesus Salvador, both surnamed Cuenco, all residing at 69 Pi y Margal St., Sta. Mesa Heights,
Quezon City, and by his children of the first marriage, respondents herein, namely, Manuel Cuenco,
Lourdes Cuenco, Concepcion Cuenco Manguera, Carmen Cuenco, Consuelo Cuenco Reyes and
Teresita Cuenco Gonzales, all of legal age and residing in Cebu.
On 5 March 1964, (the 9th day after the death of the late Senator) 1 respondent Lourdes Cuenco
filed a Petition for Letters of Administration with the court of first instance of Cebu (Sp. Proc. No.
2433-R), alleging among other things, that the late senator died intestate in Manila on 25 February
1964; that he was a resident of Cebu at the time of his death; and that he left real and personal
properties in Cebu and Quezon City. On the same date, the Cebu court issued an order setting the
petition for hearing on 10 April 1964, directing that due notice be given to all the heirs and interested
persons, and ordering the requisite publication thereof at LA PRENSA, a newspaper of general
circulation in the City and Province of Cebu.
The aforesaid order, however, was later suspended and cancelled and a new and modified one
released on 13 March 1964, in view of the fact that the petition was to be heard at Branch II instead
of Branch I of the said Cebu court. On the same date, a third order was further issued stating that
respondent Lourdes Cuenco's petition for the appointment of a special administrator dated 4 March
1964 was not yet ready for the consideration of the said court, giving as reasons the following:

It will be premature for this Court to act thereon, it not having yet regularly acquired
jurisdiction to try this proceeding, the requisite publication of the notice of hearing not
yet having been complied with. Moreover, copies of the petition have not been
served on all of the heirs specified in the basic petition for the issuance of letters of
administration. 2
In the meantime, or specifically on 12 March 1964, (a week after the filing of the Cebu petition)
herein petitioner Rosa Cayetano Cuenco filed a petition with the court of first instance of Rizal
(Quezon City) for the probate of the deceased's last will and testament and for the issuance of letters
testamentary in her favor, as the surviving widow and executrix in the said last will and testament.
The said proceeding was docketed as Special Proceeding No. Q-7898.
Having learned of the intestate proceeding in the Cebu court, petitioner Rosa Cayetano Cuenco filed
in said Cebu court an Opposition and Motion to Dismiss, dated 30 March 1964, as well as an
Opposition to Petition for Appointment of Special Administrator, dated 8 April 1964. On 10 April
1964, the Cebu court issued an order holding in abeyance its resolution on petitioner's motion to
dismiss "until after the Court of First Instance of Quezon City shall have acted on the petition for
probate of that document purporting to be the last will and testament of the deceased Don Mariano
Jesus Cuenco." 3 Such order of the Cebu court deferring to the probate proceedings in the Quezon
City court was neither excepted to nor sought by respondents to be reconsidered or set aside by the
Cebu court nor did they challenge the same by certiorari or prohibition proceedings in the appellate
courts.
Instead, respondents filed in the Quezon City court an Opposition and Motion to Dismiss, dated 10
April 1964, opposing probate of the will and assailing the jurisdiction of the said Quezon City court to
entertain petitioner's petition for probate and for appointment as executrix in Sp. Proc. No. Q-7898 in
view of the alleged exclusive jurisdiction vested by her petition in the Cebu court in Sp. Proc. No.
2433-R. Said respondent prayed that Sp. Proc. No. Q-7898 be dismissed for lack of jurisdiction
and/or improper venue.
In its order of 11 April 1964, the Quezon City court denied the motion to dismiss, giving as a principal
reason the "precedence of probate proceeding over an intestate proceeding." 4 The said court further
found in said order that the residence of the late senator at the time of his death was at No. 69 Pi y
Margal, Sta. Mesa Heights, Quezon City. The pertinent portion of said order follows:
On the question of residence of the decedent, paragraph 5 of the opposition and
motion to dismiss reads as follows: "that since the decedent Don Mariano Jesus
Cuenco was a resident of the City of Cebu at the time of his death, the aforesaid
petition filed by Rosa Cayetano Cuenco on 12 March 1964 was not filed with the
proper Court (wrong venue) in view of the provisions of Section 1 of Rule 73 of the
New Rules of Court ...". From the aforequoted allegation, the Court is made to
understand that the oppositors do not mean to say that the decedent being a resident
of Cebu City when he died, the intestate proceedings in Cebu City should prevail
over the probate proceedings in Quezon City, because as stated above the probate
of the will should take precedence, but that the probate proceedings should be filed
in the Cebu City Court of First Instance. If the last proposition is the desire of the
oppositors as understood by this Court, that could not also be entertained as proper
because paragraph 1 of the petition for the probate of the will indicates that Don
Mariano Jesus Cuenco at the time of his death was a resident of Quezon City at 69
Pi y Margal. Annex A (Last Will and Testament of Mariano Jesus Cuenco) of the
petition for probate of the will shows that the decedent at the time when he executed
his Last Will clearly stated that he is a resident of 69 Pi y Margal, Sta. Mesa Heights,

Quezon City, and also of the City of Cebu. He made the former as his first choice
and the latter as his second choice of residence." If a party has two residences, the
one will be deemed or presumed to his domicile which he himself selects or
considers to be his home or which appears to be the center of his affairs. The
petitioner, in thus filing the instant petition before this Court, follows the first choice of
residence of the decedent and once this court acquires jurisdiction of the probate
proceeding it is to the exclusion of all others. 5
Respondent Lourdes Cuenco's motion for reconsideration of the Quezon City court's said order of 11
April 1964 asserting its exclusive jurisdiction over the probate proceeding as deferred to by the Cebu
court was denied on 27 April 1964 and a second motion for reconsideration dated 20 May 1964 was
likewise denied.
On 11 May 1964, pursuant to its earlier order of 11 April 1964, the hearing for probate of the last will
of the decedent was called three times at half-hour intervals, but notwithstanding due notification
none of the oppositors appeared and the Quezon City court proceeded at 9:00 a.m. with the hearing
in their absence.
As per the order issued by it subsequently on 15 May 1964, the Quezon City court noted that
respondents-oppositors had opposed probate under their opposition and motion to dismiss on the
following grounds:
(a) That the will was not executed and attested as required by law;
(b) That the will was procured by undue and improper pressure and influence on the
part of the beneficiary or some other persons for his benefit;
(c) That the testator's signature was procured by fraud and/or that the testator acted
by mistake and did not intend that the instrument he signed should be his will at the
time he affixed his signature thereto. 6
The Quezon City court further noted that the requisite publication of the notice of the hearing had
been duly complied with and that all the heirs had been duly notified of the hearing, and after
receiving the testimony of the three instrumental witnesses to the decedent's last will, namely Atty.
Florencio Albino, Dr. Guillermo A. Picache and Dr. Jose P. Ojeda, and of the notary public, Atty.
Braulio A. Arriola, Jr., who ratified the said last will, and the documentary evidence (such as the
decedent's residence certificates, income tax return, diplomatic passport, deed of donation) all
indicating that the decedent was a resident of 69 Pi y Margal St., Quezon City, as also affirmed by
him in his last will, the Quezon City court in its said order of 15 May 1964 admitted to probate the
late senator's last will and testament as having been "freely and voluntarily executed by the testator"
and "with all formalities of the law" and appointed petitioner-widow as executrix of his estate without
bond "following the desire of the testator" in his will as probated.
Instead of appealing from the Quezon City court's said order admitting the will to probate and
naming petitioner-widow as executrix thereof, respondents filed a special civil action of certiorari and
prohibition with preliminary injunction with respondent Court of Appeals (docketed as case CA-G.R.
No. 34104-R) to bar the Rizal court from proceeding with case No. Q-7898.
On 21 November 1964, the Court of Appeals rendered a decision in favor of respondents (petitioners
therein) and against the herein petitioner, holding that:

Section 1, Rule 73, which fixes the venue in proceedings for the settlement of the
estate of a deceased person, covers both testate and intestate proceedings. Sp.
Proc. 2433-R of the Cebu CFI having been filed ahead, it is that court whose
jurisdiction was first invoked and which first attached. It is that court which can
properly and exclusively pass upon the factual issues of (1) whether the decedent left
or did not leave a valid will, and (2) whether or not the decedent was a resident of
Cebu at the time of his death.
Considering therefore that the first proceeding was instituted in the Cebu CFI
(Special Proceeding 2433-R), it follows that the said court must exercise jurisdiction
to the exclusion of the Rizal CFI, in which the petition for probate was filed by the
respondent Rosa Cayetano Cuenco (Special Proceeding Q-7898). The said
respondent should assert her rights within the framework of the proceeding in the
Cebu CFI, instead of invoking the jurisdiction of another court.
The respondents try to make capital of the fact that on March 13, 1964, Judge
Amador Gomez of the Cebu CFI, acting in Sp. Proc. 2433-R, stated that the petition
for appointment of special administrator was "not yet ready for the consideration of
the Court today. It would be premature for this Court to act thereon, it not having yet
regularly acquired jurisdiction to try this proceeding ... . " It is sufficient to state in this
connection that the said judge was certainly not referring to the court's jurisdiction
over the res, not to jurisdiction itself which is acquired from the moment a petition is
filed, but only to the exercise of jurisdiction in relation to the stage of the proceedings.
At all events, jurisdiction is conferred and determined by law and does not depend on
the pronouncements of a trial judge.
The dispositive part of respondent appellate court's judgment provided as follows:
ACCORDINGLY, the writ of prohibition will issue, commanding and directing the
respondent Court of First Instance of Rizal, Branch IX, Quezon City, and the
respondent Judge Damaso B. Tengco to refrain perpetually from proceeding and
taking any action in Special Proceeding Q-7898 pending before the said respondent
court. All orders heretofore issued and actions heretofore taken by said respondent
court and respondent Judge, therein and connected therewith, are hereby annulled.
The writ of injunction heretofore issued is hereby made permanent. No
pronouncement as to costs.
Petitioner's motion for reconsideration was denied in a resolution of respondent Court of Appeals,
dated 8 July 1965; hence the herein petition for review on certiorari.
The principal and decisive issue at bar is, theretofore, whether the appellate court erred in law in
issuing the writ of prohibition against the Quezon City court ordering it to refrain perpetually from
proceeding with the testate proceedings and annulling and setting aside all its orders and actions,
particularly its admission to probate of the decedent's last will and testament and appointing
petitioner-widow as executrix thereof without bond in compliance with the testator's express wish in
his testament. This issue is tied up with the issue submitted to the appellate court, to wit, whether the
Quezon City court acted without jurisdiction or with grave abuse of discretion in taking cognizance
and assuming exclusive jurisdiction over the probate proceedings filed with it, in pursuance of the
Cebu court's order of 10 April 1964 expressly consenting in deference to the precedence of probate
over intestate proceedings that it (the Quezon City court) should first act "on the petition for probate
of the document purporting to be the last will and testament of the deceased Don Mariano Jesus
Cuenco" - which order of the Cebu court respondents never questioned nor challenged by

prohibition or certiorari proceedings and thus enabled the Quezon City court to proceed without any
impediment or obstruction, once it denied respondent Lourdes Cuenco's motion to dismiss the
probate proceeding for alleged lack of jurisdiction or improper venue, to proceed with the hearing of
the petition and to admit the will to probate upon having been satisfied as to its due execution and
authenticity.
The Court finds under the above-cited facts that the appellate court erred in law in issuing the writ of
prohibition against the Quezon City court from proceeding with the testate proceedings and annulling
and setting aside all its orders and actions, particularly its admission to probate of the deceased's
last will and testament and appointing petitioner-widow as executrix thereof without bond pursuant to
the deceased testator's express wish, for the following considerations:
1. The Judiciary Act 7 concededly confers original jurisdiction upon all Courts of First Instance over
"all matter of probate, both of testate and intestate estates." On the other hand, Rule 73, section of
the Rules of Court lays down the rule of venue, as the very caption of the Rule indicates, and in
order to prevent conflict among the different courts which otherwise may properly assume
jurisdiction from doing so, the Rule specifies that "the court first taking cognizance of the settlement
of the estate of a decedent, shall exercise jurisdiction to the exclusion of all other courts." The cited
Rule provides:
Section 1. Where estate of deceased persons settled. If the decedent is an inhabitant
of the Philippines at the time of his death, whether a citizen or an alien, his will shall
be proved, or letters of administration granted, and his estate settled, in the Court of
First Instance in the Province in which he resides at the time of his death, and if he is
an inhabitant of a foreign country, the Court of First Instance of the province in which
he had estate. The court first taking cognizance of the settlement of the estate of a
decedent, shall exercise jurisdiction to the exclusion of all other courts. The
jurisdiction assumed by a court, so far as it depends on the place of residence, of the
decedent, or of the location of his estate, shall not be contested in a suit or
proceeding, except in an appeal from that court, in the original case, or when the
want of jurisdiction appears on the record. (Rule 73) 8
It is equally conceded that the residence of the deceased or the location of his estate is not an
element of jurisdiction over the subject matter but merely of venue. This was lucidly stated by the
late Chief Justice Moran in Sy Oa vs. Co Ho 9 as follows:
We are not unaware of existing decisions to the effect that in probate cases the place
of residence of the deceased is regarded as a question of jurisdiction over the
subject-matter. But we decline to follow this view because of its mischievous
consequences. For instance, a probate case has been submitted in good faith to the
Court of First Instance of a province where the deceased had not resided. All the
parties, however, including all the creditors, have submitted themselves to the
jurisdiction of the court and the case is therein completely finished except for a claim
of a creditor who also voluntarily filed it with said court but on appeal from an adverse
decision raises for the first time in this Court the question of jurisdiction of the trial
court for lack of residence of the deceased in the province. If we consider such
question of residence as one affecting the jurisdiction of the trial court over the
subject-matter, the effect shall be that the whole proceedings including all decisions
on the different incidents which have arisen in court will have to be annulled and the
same case will have to be commenced anew before another court of the same rank
in another province. That this is of mischievous effect in the prompt administration of
justice is too obvious to require comment. (Cf. Tanunchuan vs. Dy Buncio & Co.,

G.R. No. 48206, December 31, 1942) Furthermore, section 600 of Act No. 190, 10
providing that the estate of a deceased person shall be settled in the province where
he had last resided, could not have been intended as defining the jurisdiction of the
probate court over the subject-matter, because such legal provision is contained in a
law of procedure dealing merely with procedural matters, and, as we have said time
and again, procedure is one thing and jurisdiction over the subject matter is another.
(Attorney-General vs. Manila Railroad Company, 20 Phil. 523.) The law of jurisdiction
Act No. 136, 11 Section 56, No. 5 confers upon Courts of First Instance
jurisdiction over all probate cases independently of the place of residence of the
deceased. Since, however, there are many courts of First Instance in the Philippines,
the Law of Procedure, Act No. 190, section 600, fixes the venue or the place where
each case shall be brought. Thus, the place of residence of the deceased is not an
element of jurisdiction over the subject-matter but merely of venue. And it is upon this
ground that in the new Rules of Court the province where the estate of a deceased
person shall be settled is properly called "venue".
It should be noted that the Rule on venue does not state that the court with whom the estate or
intestate petition is first filed acquires exclusive jurisdiction.
The Rule precisely and deliberately provides that "the court first taking cognizance of the settlement
of the estate of a decedent, shall exercise jurisdiction to the exclusion of all other courts."
A fair reading of the Rule since it deals with venue and comity between courts of equal and coordinate jurisdiction indicates that the court with whom the petition is first filed, must also first take
cognizance of the settlement of the estate in order to exercise jurisdiction over it to the exclusion of
all other courts.
Conversely, such court, may upon learning that a petition for probate of the decedent's last will has
been presented in another court where the decedent obviously had his conjugal domicile and
resided with his surviving widow and their minor children, and that the allegation of the intestate
petition before it stating that the decedent died intestate may be actually false, may decline to take
cognizance of the petition and hold the petition before it in abeyance, and instead defer to the
second court which has before it the petition for probate of the decedent's alleged last will.
2. This exactly what the Cebu court did. Upon petitioner-widow's filing with it a motion to dismiss
Lourdes' intestate petition, it issued its order holding in abeyance its action on the dismissal motion
and deferred to the Quezon City court, awaiting its action on the petition for probate before that
court. Implicit in the Cebu court's order was that if the will was duly admitted to probate, by the
Quezon City court, then it would definitely decline to take cognizance of Lourdes' intestate petition
which would thereby be shown to be false and improper, and leave the exercise of jurisdiction to the
Quezon City court, to the exclusion of all other courts. Likewise by its act of deference, the Cebu
court left it to the Quezon City court to resolve the question between the parties whether the
decedent's residence at the time of his death was in Quezon City where he had his conjugal domicile
rather than in Cebu City as claimed by respondents. The Cebu court thus indicated that it would
decline to take cognizance of the intestate petition before it and instead defer to the Quezon City
court, unless the latter would make a negative finding as to the probate petition and the residence of
the decedent within its territory and venue.
3. Under these facts, the Cebu court could not be held to have acted without jurisdiction or with
grave abuse of jurisdiction in declining to take cognizance of the intestate petition and deferring to
the Quezon City court.

Necessarily, neither could the Quezon City court be deemed to have acted without jurisdiction in
taking cognizance of and acting on the probate petition since under Rule 73, section 1, the Cebu
court must first take cognizance over the estate of the decedent and must exercise jurisdiction to
exclude all other courts, which the Cebu court declined to do. Furthermore, as is undisputed, said
rule only lays down a rule of venue and the Quezon City court indisputably had at least equal and
coordinate jurisdiction over the estate.
Since the Quezon City court took cognizance over the probate petition before it and assumed
jurisdiction over the estate, with the consent and deference of the Cebu court, the Quezon City court
should be left now, by the same rule of venue of said Rule 73, to exercise jurisdiction to the
exclusion of all other courts.
Under the facts of the case and where respondents submitted to the Quezon City court their
opposition to probate of the will, but failed to appear at the scheduled hearing despite due notice, the
Quezon City court cannot be declared, as the appellate court did, to have acted without jurisdiction
in admitting to probate the decedent's will and appointing petitioner-widow as executrix thereof in
accordance with the testator's testamentary disposition.
4. The relatively recent case of Uriarte vs. Court of First Instance of Negros Occidental 12 with facts
analogous to the present case 13 is authority against respondent appellate court's questioned
decision.
In said case, the Court upheld the doctrine of precedence of probate proceedings over intestate
proceedings in this wise:
It can not be denied that a special proceeding intended to effect the distribution of the
estate of a deceased person, whether in accordance with the law on intestate
succession or in accordance with his will, is a "probate matter" or a proceeding for
the settlement of his estate. It is equally true, however, that in accordance with
settled jurisprudence in this jurisdiction, testate proceedings for the settlement of the
estate of a deceased person take precedence over intestate proceedings for the
same purpose. Thus it has been held repeatedly that, if in the course of intestate
proceedings pending before a court of first instance it is found that the decedent had
left a last will, proceedings for the probate of the latter should replace the intestate
proceedings even if at that state an administrator had already been appointed, the
latter being required to render final account and turn over the estate in his
possession to the executor subsequently appointed. This however, is understood to
be without prejudice that should the alleged last will be rejected or is disapproved,
the proceeding shall continue as an intestacy. As already adverted to, this is a clear
indication that proceedings for the probate of a will enjoy priority over intestate
proceedings. 14
The Court likewise therein upheld the jurisdiction of the second court, (in this case, the Quezon City
court) although opining that certain considerations therein "would seem to support the view that
[therein respondent] should have submitted said will for probate to the Negros Court, [in this case,
the Cebu court] either in a separate special proceeding or in an appropriate motion for said purpose
filed in the already pending Special Proceeding No. 6344," 15 thus:
But the fact is that instead of the aforesaid will being presented for probate to the Negros Court,
Juan Uriarte Zamacona filed the petition for the purpose with the Manila Court. We can not accept
petitioner's contention in this regard that the latter court had no jurisdiction to consider said petition,
albeit we say that it was not the proper venue therefor.

It is well settled in this jurisdiction that wrong venue is merely a waivable procedural
defect, and, in the light of the circumstances obtaining in the instant case, we are of
the opinion, and so hold, that petitioner has waived the right to raise such objection
or is precluded from doing so by laches. It is enough to consider in this connection
that petitioner knew of the existence of a will executed by Juan Uriarte y Goite since
December 19, 1961 when Higinio Uriarte filed his opposition to the initial petition filed
in Special Proceeding No. 6344; that petitioner likewise was served with notice of the
existence (presence) of the alleged last will in the Philippines and of the filing of the
petition for its probate with the Manila Court since August 28, 1962 when Juan
Uriarte Zamacona filed a motion for the dismissal of Special Proceeding No. 6344.
All these notwithstanding, it was only on April 15, 1963 that he filed with the Manila
Court in Special Proceeding No. 51396 an Omnibus motion asking for leave to
intervene and for the dismissal and annulment of all the proceedings had therein up
to that date; thus enabling the Manila Court not only to appoint an administrator with
the will annexed but also to admit said will to probate more than five months earlier,
or more specifically, on October 31, 1962. To allow him now to assail the exercise of
jurisdiction over the probate of the will by the Manila Court and the validity of all the
proceedings had in Special Proceeding No. 51396 would put a premium on his
negligence. Moreover, it must be remembered that this Court is not inclined to annul
proceedings regularly had in a lower court even if the latter was not the proper venue
therefor, if the net result would be to have the same proceedings repeated in some
other court of similar jurisdiction; more so in a case like the present where the
objection against said proceedings is raised too late. 16
5. Under Rule 73, section 1 itself, the Quezon City court's assumption of jurisdiction over the
decedent's estate on the basis of the will duly presented for probate by petitioner-widow and finding
that Quezon City was the first choice of residence of the decedent, who had his conjugal home and
domicile therein with the deference in comity duly given by the Cebu court could not be
contested except by appeal from said court in the original case. The last paragraph of said Rule
expressly provides:
... The jurisdiction assumed by a court, so far as it depends on the place of residence
of the decedent, or of the location of his estate, shall not be contested in a suit or
proceeding, except in an appeal from that court, in the original case, or when the
want of jurisdiction appears on the record. (Rule 73)
The exception therein given, viz, "when the want of jurisdiction appears on the record" could
probably be properly invoked, had such deference in comity of the Cebu court to the Quezon City
court not appeared in the record, or had the record otherwise shown that the Cebu court had taken
cognizance of the petition before it and assumed jurisdiction.
6. On the question that Quezon City established to be the residence of the late senator, the
appellate court while recognizing that "the issue is a legitimate one" held in reliance on Borja vs. Tan
17
that.
... The issue of residence comes within the competence of whichever court is
considered to prevail in the exercise jurisdiction - in this case, the Court of First
Instance of Cebu as held by this Court. Parenthetically, we note that the question of
the residence of the deceased is a serious one, requiring both factual and legal
resolution on the basis of ample evidence to be submitted in the ordinary course of
procedure in the first instance, particularly in view of the fact that the deceased was
better known as the Senator from Cebu and the will purporting to be his also gives

Cebu, besides Quezon City, as his residence. We reiterate that this matter requires
airing in the proper court, as so indicated in the leading and controlling case of Borja
vs. Hon. Bienvenido Tan, et al., G.R. L-7792, July 27, 1955.
In the case at bar, however, the Cebu court declined to take cognizance of the intestate petition first
filed with it and deferred to the testate proceedings filed with the Quezon City court and in effect
asked the Quezon City court to determine the residence of the decedent and whether he did leave a
last will and testament upon which would depend the proper venue of the estate proceedings, Cebu
or Quezon City. The Quezon City court having thus determined in effect for both courts at the
behest and with the deference and consent of the Cebu court that Quezon City was the actual
residence of the decedent who died testate and therefore the proper venue, the Borja ruling would
seem to have no applicability. It would not serve the practical ends of justice to still require the Cebu
court, if the Borja ruling is to be held applicable and as indicated in the decision under review, to
determine for itself the actual residence of the decedent (when the Quezon City court had already so
determined Quezon City as the actual residence at the Cebu court's behest and respondents have
not seriously questioned this factual finding based on documentary evidence) and if the Cebu court
should likewise determine Quezon City as the actual residence, or its contrary finding reversed on
appeal, only then to allow petitioner-widow after years of waiting and inaction to institute the
corresponding proceedings in Quezon City.
7. With more reason should the Quezon City proceedings be upheld when it is taken into
consideration that Rule 76, section 2 requires that the petition for allowance of a will must show: "(a)
the jurisdictional facts." Such "jurisdictional facts" in probate proceedings, as held by the Court in
Fernando vs. Crisostomo 18 " are the death of the decedent, his residence at the time of his death in
the province where the probate court is sitting, or if he is an inhabitant of a foreign country, his
having left his estate in such province."
This tallies with the established legal concept as restated by Moran that "(T)he probate of a will is a
proceeding in rem. The notice by publication as a pre-requisite to the allowance of a will, is a
constructive notice to the whole world, and when probate is granted, the judgment of the court is
binding upon everybody, even against the State. The probate of a will by a court having jurisdiction
thereof is conclusive as to its due execution and validity." 19 The Quezon City court acted regularly
within its jurisdiction (even if it were to be conceded that Quezon City was not the proper venue
notwithstanding the Cebu court's giving way and deferring to it,) in admitting the decedent's last will
to probate and naming petitioner-widow as executrix thereof. Hence, the Quezon city court's action
should not be set aside by a writ of prohibition for supposed lack of jurisdiction as per the appellate
court's appealed decision, and should instead be sustained in line with Uriarte, supra, where the
Court, in dismissing the certiorari petition challenging the Manila court's action admitting the
decedent's will to probate and distributing the estate in accordance therewith in the second
proceeding, held that "it must be remembered that this Court is not inclined to annul proceedings
regularly had in a lower court even if the latter was not the proper venue therefor, if the net result
would be to have the same proceedings repeated in some other court of similar jurisdiction." As
stressed by Chief Justice Moran in Sy Oa, supra, "the mischievous effect in the administration of
justice" of considering the question of residence as affecting the jurisdiction of the trial court and
annulling the whole proceedings only to start all over again the same proceedings before another
court of the same rank in another province "is too obvious to require comment."
8. If the question of jurisdiction were to be made to depend only on who of the decedent's relatives
gets first to file a petition for settlement of the decedent's estate, then the established jurisprudence
of the Court that Rule 73, section 1 provides only a rule of venue in order to preclude different courts
which may properly assume jurisdiction from doing so and creating conflicts between them to the
detriment of the administration of justice, and that venue is waivable, would be set at naught. As
between relatives who unfortunately do not see eye to eye, it would be converted into a race as to

who can file the petition faster in the court of his/her choice regardless of whether the decedent is
still in cuerpo presente and in disregard of the decedent's actual last domicile, the fact that he left a
last will and testament and the right of his surviving widow named as executrix thereof. Such dire
consequences were certainly not intended by the Rule nor would they be in consonance with public
policy and the orderly administration of justice.
9. It would finally be unjust and inequitable that petitioner-widow, who under all the applicable rules
of venue, and despite the fact that the Cebu court (where respondent Lourdes Cuenco had filed an
intestate petition in the Cebu court earlier by a week's time on 5 March 1964) deferred to the Quezon
City court where petitioner had within fifteen days (on March 12, 1964) after the decedent's death
(on February 25, 1964) timely filed the decedent's last will and petitioned for letters testamentary and
is admittedly entitled to preference in the administration of her husband's estate, 20 would be
compelled under the appealed decision to have to go all the way to Cebu and submit anew the
decedent's will there for probate either in a new proceeding or by asking that the intestate
proceedings be converted into a testate proceeding when under the Rules, the proper venue for
the testate proceedings, as per the facts of record and as already affirmed by the Quezon City court
is Quezon City, where the decedent and petitioner-widow had their conjugal domicile.
It would be an unfair imposition upon petitioner as the one named and entitled to be executrix of the
decedent's last will and settle his estate in accordance therewith, and a disregard of her rights under
the rule on venue and the law on jurisdiction to require her to spend much more time, money and
effort to have to go from Quezon City to the Cebu court everytime she has an important matter of the
estate to take up with the probate court.
It would doubly be an unfair imposition when it is considered that under Rule 73, section 2, 21 since
petitioner's marriage has been dissolved with the death of her husband, their community property
and conjugal estate have to be administered and liquidated in the estate proceedings of the
deceased spouse. Under the appealed decision, notwithstanding that petitioner resides in Quezon
City, and the proper venue of the testate proceeding was in Quezon City and the Quezon City court
properly took cognizance and exercised exclusive jurisdiction with the deference in comity and
consent of the Cebu court, such proper exercise of jurisdiction would be nullified and petitioner
would have to continually leave her residence in Quezon City and go to Cebu to settle and liquidate
even her own community property and conjugal estate with the decedent.
10. The Court therefore holds under the facts of record that the Cebu court did not act without
jurisdiction nor with grave abuse of discretion in declining to take cognizance of the intestate petition
and instead deferring to the testate proceedings filed just a week later by petitioner as surviving
widow and designated executrix of the decedent's last will, since the record before it (the petitioner's
opposition and motion to dismiss) showed the falsity of the allegation in the intestate petition that the
decedent had died without a will. It is noteworthy that respondents never challenged by certiorari or
prohibition proceedings the Cebu court's order of 10 April 1964 deferring to the probate proceedings
before the Quezon City court, thus leaving the latter free (pursuant to the Cebu court's order of
deference) to exercise jurisdiction and admit the decedent's will to probate.
For the same reasons, neither could the Quezon City court be held to have acted without jurisdiction
nor with grave abuse of discretion in admitting the decedent's will to probate and appointing
petitioner as executrix in accordance with its testamentary disposition, in the light of the settled
doctrine that the provisions of Rule 73, section 1 lay down only a rule of venue, not of jurisdiction.
Since respondents undisputedly failed to appeal from the Quezon City court's order of May 15, 1964
admitting the will to probate and appointing petitioner as executrix thereof, and said court

concededly has jurisdiction to issue said order, the said order of probate has long since become final
and can not be overturned in a special civic action of prohibition.
11. Finally, it should be noted that in the Supreme Court's exercise of its supervisory authority over
all inferior courts, 22 it may properly determine, as it has done in the case at bar, that venue was
properly assumed by and transferred to the Quezon City court and that it is the interest of justice and
in avoidance of needless delay that the Quezon City court's exercise of jurisdiction over the testate
estate of the decedent (with the due deference and consent of the Cebu court) and its admission to
probate of his last will and testament and appointment of petitioner-widow as administratrix without
bond in pursuance of the decedent's express will and all its orders and actions taken in the testate
proceedings before it be approved and authorized rather than to annul all such proceedings regularly
had and to repeat and duplicate the same proceedings before the Cebu court only to revert once
more to the Quezon City court should the Cebu court find that indeed and in fact, as already
determined by the Quezon City court on the strength of incontrovertible documentary evidence of
record, Quezon City was the conjugal residence of the decedent.
ACCORDINGLY, judgment is hereby rendered reversing the appealed decision and resolution of the
Court of Appeals and the petition for certiorari and prohibition with preliminary injunction originally
filed by respondents with the Court of Appeals (CA-G.R. No. 34104-R) is ordered dismissed. No
costs.
Makalintal, C.J., Zaldivar, Makasiar, Antonio and Esguerra, JJ., concur.
Fernando and Castro, JJ., took no part.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC

G.R. No. L-26743 May 31, 1972

IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF CIPRIANO ABUT, deceased.
GENEROSO ABUT, petitioner, GAVINA ABUT, petitioner-appellant,
vs.
FELIPE ABUT, PRESENTACION DE RODRIGUEZ and ABSOLUTO ABUT, oppositors-appellees.
Felipe N. Montesa for petitioner-appellant.
Homobono A. Adaza for oppositors-appellees.

MAKALINTAL, J.:p
This is an appeal from an order dated July 2, 1966 of the Court of First Instance of Misamis Oriental
(Br. IV) in its Sp. Proc. No. 911. The said order states:
Gavina Abut, through counsel, seeks the admission of the amended petition in which
she substitutes for the original petitioner, Generoso Abut, who died after his original
petition was filed, published and the Court had taken jurisdiction thereof. In the
original petition the deceased Generoso Abut appears to have been named executor
of the will of the deceased Cipriano Abut; that he was in possession and custody of
the latter's will; and that he sought to be named executor of the will of the deceased
Cipriano Abut. In the amended petition Gavina Abut alleges that the will was
delivered to her by Generoso Abut before his death and that it is now in her custody
and possession, and she prays that she be appointed administratrix of the estate of
the deceased Cipriano Abut.
Considering the foregoing amendments embodied in the amended petition, and the
fact that publication of the petition is a jurisdictional matter intended to inform
whomsoever may be interested in said petition and to afford him or her an
opportunity to assert his or her rights, the Court believes that the original petition
should be, as it is hereby dismissed, without prejudice to the filing of another petition
pursuant to the requirements of the Rules of Court.
The decisive facts are largely matters of record. On August 4, 1965 Generoso Abut, one of the
children of the deceased Cipriano Abut by his second marriage and the person named as executor
in a will allegedly executed by the said deceased, filed a petition before the court a quo praying that
after due notice and hearing the said will be approved and allowed and that letters testamentary
issue in his favor. In an amended order dated September 1, 1965 the court a quo motu proprio set
the petition for hearing and further directed compliance with Sections 3 and 4 of Rule 76 of the Rules
of Court. 1 These procedural steps admittedly took place.

Opposition to the petition was filed by the children of Cipriano Abut by his first marriage, namely,
Felipe Abut, Presentacion de Rodriguez and Absoluto Abut, now appellees here.
During the pendency of the case below but before the court a quo could even start the formal
hearing of the petition, which had been delayed by several postponements, Generoso Abut, the
original petitioner who initiated the probate proceeding, died on January 10, 1966. This eventuality
prompted Gavina Abut, a sister of Generoso Abut and an heir and devisee under the will of the
testator Cipriano Abut, to ask the court a quo to substitute her in lieu of Generoso Abut and to admit
an amended petition wherein she prayed that the probate of the will be allowed and that letters of
administration with the will annexed be issued in her favor. For reasons stated in its order of July 2,
1966, hereinabove quoted, the court a quo dismissed the petition originally brought by the deceased
Generoso Abut, "without prejudice to the filing of another petition pursuant to the requirements of the
Rules of Court."
The issue is whether or not the probate court correctly dismissed the petition simply because the
original petitioner who was the executor named in the will sought to be probated died before
the petition could be heard and/or terminated. Stated otherwise, after the court had acquired
jurisdiction over the case involving probate of the will, did the demise of the original petitioner during
the pendency of the proceeding divest the court of such jurisdiction and preclude the continuation of
the case on the theory that the amended petition filed by herein petitioner, who admittedly was a
person having an interest in the estate, seeking to substitute her in place of the original petitioner,
but with a similar prayer for the allowance of the same will, required a new publication in order to
invest the court with jurisdiction.
We find the dismissal of the original petition for probate and the refusal of the probate court to admit
the amended petition without a new publication thereof to be untenable. The jurisdiction of the court
became vested upon the filing of the original petition and upon compliance with Sections 3 and 4 of
Rule 76. 2
A proceeding for the probate of a will is one in rem, such that with the corresponding publication of
the petition the court's jurisdiction extends to all persons interested in said will or in the settlement of
the estate of the deceased. The fact that the amended petition named additional heirs not included
in the original petition 3 did not require that notice of the amended petition be published anew. All that
Section 4 of Rule 76 provides is that those heirs be notified of the hearing for the probate of the will,
either by mail or personally. In the case of Perez vs. Perez 4 this Court explained:
Thus it appears that such "no notice" argument has no legal foundation. At any rate
the omission, if any, did not affect the jurisdiction of the court; it constituted a mere
procedural error that may or may not be the basis of reversal (Jocson vs. Nable, 48
O.G. 90). Indeed, this Tribunal has ruled that the court acquires jurisdiction over all
persons interested in the estate through the publication of the petition in the
newspapers (In re Estate of Johnson, 39 Phil. 159; Jocson vs. Nable, supra)
which in this case admittedly took place.
Service of notice on individual heirs or legatees or devisees is a matter of procedural
convenience, not jurisdictional requisite. So much so that even if the names of some
legatees or heirs had been omitted from the petition for allowance of the will and
therefore were not advised the decree allowing the will does not ipso facto
become void for want of jurisdiction ...
Jurisdiction of the court once acquired continues until the termination of the case, 5 and remains
unaffected by subsequent events. The court below erred in holding that it was divested of jurisdiction

just because the original petitioner died before the petition could be formally heard. Parties who
could have come in and opposed the original petition, as herein appellees did, could still come in
and oppose the amended petition, having already been notified of the pendency of the proceeding
by the publication of the notice thereof.
The admission of the amended petition, of course, does not mean that Gavina Abut's prayer that she
be appointed administratrix with the will annexed is necessarily meritorious. It simply recognizes that
since the lower court has acquired jurisdiction over the res, such jurisdiction continues until the
termination of the case. The first question that the lower court should hear and decide is the probate
of the will; and the question of whether or not Gavina Abut should be appointed administratrix must
be decided on the basis of the facts to be presented and after the will is proved and allowed, as
provided in Section 6 of Rule 78.
WHEREFORE, the order dated July 2, 1966 is set aside and the case is remanded below, with
direction for the lower court to admit the amended petition and thereafter proceed accordingly. Costs
against oppositors-appellees.
Reyes, J.B.L., Zaldivar, Fernando, Teehankee, Barredo, Makasiar and Antonio, JJ., concur.
Castro, J., did not take part.
Concepcion, C.J., is on leave.

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 78590 June 20, 1988
PEDRO DE GUZMAN, petitioner,
vs.
THE HONORABLE JUDGE ZOSIMO Z. ANGELES, RTC BRANCH 58, MAKATI, METRO,
MANILA; DEPUTY SHERIFFS JOSE B. FLORA and HONORIO SANTOS and ELAINE G. DE
GUZMAN, respondents.
Bautista, Picazo, Cruz, Buyco and Tan for private respondent.
Ponce Enrile, Cayetano, Bautista, Picaso and Reyes, collaborating counsel for private respondent.

GUTIERREZ, JR., J.:

May a probate court act on and/or grant motions for the appointment of a special administrator, for
the issuance of a writ of possession of alleged properties of the deceased person, and for assistance
to preserve the estate in a petition for the settlement of the intestate estate even before the court has
caused notice to be served upon all interested parties pursuant to section 3, Rule 79 of the Revised
Rules of Court?
On May 5, 1987, private respondent Elaine G. de Guzman filed a petition for the settlement of the
intestate estate of Manolito de Guzman, before the Regional Trial Court of Makati, Metro Manila.
The case was docketed as Special Proceedings .No. M-1436.
The petition alleges that: (1) on March 22,1987, Manolito de Guzman died in Makati, Metro Manila;
(2) at the time of his death, the decedent was a resident of Makati, Metro Manila; (3) decedent left
personal and real properties as part of his estate, listed in Annexes "A," "B," "C" and "D;" (4) the
properties were acquired after the marriage of the petitioner to the decedent and therefore are
included in their conjugal partnership; (5) the estate of -the decedent has a probable net value which
may be provisionally assessed at P4,000,000.00 more or less; (6) the possible creditors of the
estate, who have accounts payable. and existing claims against the firm C. SANTOS
Construction are listed in Annex "E;" (7) the compulsory heirs of the decedent are the as the
surviving spouse and their two (2) minor children namely: Charmane Rose de Guzman 11 years and
Peter Brian de Guzman, 9 years old; (8) after diligent search and inquiry to ascertain whether the
decedent left a last will and testament, none has been found and according to the best knowledge
information and belief of the petitioner, Manolito de Guzman died intestate; and (9) the petitioner as
the survey surviving spouse of the decedent, is most qualified and entitled to the grant of letters of
administration.
On May 22, 1987, the private respondent filed a motion for writ of possession over five (5)
vehicles registered under the name of Manolito de Guzman, alleged to be conjugal properties of the
de Guzman's but which are at present in the possession of the private respondent's father-in- law,
herein petitioner Pedro de Guzman. The motion stated that as co-owner and heir, the private

respondent must have the possession of said vehicles in order to preserve the assets of her late
husband. On the same day, the lower court issued an order setting for hearing the motion on May
27, 1987 directing the deputy sheriff to notify petitioner Pedro de Guzman at the expense of the
private respondent.
The scheduled May 27, 1987 hearing was postponed on motion of petitioner's counsel, Atty. Ricardo
Fojas. The petitioner was also given three (3) days from May 27, 1987 to give his comment on the
motion for a writ of possession. The hearing was reset to June 5, 1987 at 3:00 p.m.
On May 29, 1987, the petitioner's counsel filed a notice of appearance and an "Urgent Motion For
Extension of Time to File an Opposition and for Resetting of the Hearing."
The motion was granted and the petitioner was given five (5) days from receipt of the order within
which to file his opposition to the motion for a writ of possession. The hearing was reset to June 15,
1987 at 2:00 in the afternoon.
In the meantime, on May 28, 1987, the private respondent filed her "Ex-Parte Motion to Appoint
Petitioner as Special Administratrix of the Estate of Manolito de Guzman."
In an order dated May 28,1987, the aforesaid motion was set for hearing on June 5, 1987. In this
same order, the lower court directed that all parties in the case be notified. However, no notice of the
order was given to the petitioner.
In an order dated June 5, 1987, the lower court granted the private respondent's motion to be
appointed as special administratrix, to wit:
Finding the motion for appointment of special administratrix, on the ground alleged
therein to be well-founded, and finding further that it is to be the best interest of the
Estate of Manolito de Guzman that petitioner-movant Elaine G. de Guzman, be
appointed as Special Administratrix in this case, said motion is granted.
WHEREFORE, Elaine G. de Guzman, petitioner-movant, is hereby appointed as
Special Administratrix of the Estate of the deceased Manolito de Guzman, pending
appointment of a regular administrator. The bond for the said special administratrix is
hereby fixed in the amount of P200,000.00. (Rollo, p. 40)
On June 8, 1987, the lower court issued another order, to wit:
Acting on the Urgent Ex-Parte Motion for Assistance" filed by Petitioner-Special
Administratrix Elaine de Guzman for appointment of Deputy Sheriffs Honorio Santos
and Jose B. Flora together with some military men and/or policemen to assist her in
preserving the estate of Manolito de Guzman, the motion is granted and the Deputy
Sheriffs Honorio Santos and Jose B. Flora are hereby appointed for that purpose,
provided that the subject matter of the motion for writ of possession pending before
this Court shall not be affected. (Rollo, p. 41)
Trouble ensued when the respondents tried to enforce the above order. The petitioner resisted when
Deputy Sheriffs Jose B. Flora and Honorio Santos tried to take the subject vehicles on the ground
that they were his personal properties. According to the petitioner, this resulted in a "near shoot-out
between members of the Makati Police, who were to maintain peace and order, and the CAPCOM
soldiers who were ostensibly aiding respondent sheriffs and Elaine G. de Guzman" and that "the

timely arrival of Mayor Jejomar Binay of Makati defused the very volatile situation which resulted in
an agreement between the parties that the bulldozer, sought to be taken, be temporarily placed in
the custody of Mayor Binay, while the parties seek clarification of the order from respondent Judge
Zosimo Angeles the next day, June 9, 1981 at 10:30 a.m."
In the conference held before the respondent court attended by the counsels for both parties, the
June 8, 1987 order was clarified to the effect that the order "must be merely to take and preserve
assets admittedly belonging to the estate, but not properties, the ownership of which is claimed by
third persons."
The petitioner then filed a manifestation listing properties which he claimed to be his own.
Thereafter, the instant petition was filed to annul the lower court's orders dated June 5, 1987 and
June 8, 1987.
In a resolution dated June 10, 1987, we issued a temporary restraining order enjoining the
respondent court from enforcing the two questioned orders. In another resolution dated October 28,
1987, we gave due course to the petition.
The petitioner contends that the June 5, 1987 order is a patent nullity, the respondent court not
having acquired jurisdiction to appoint a special administratrix because the petition for the settlement
of the estate of Manolito de Guzman was not yet set for hearing and published for three consecutive
weeks, as mandated by the Rules of Court. The petitioner also stresses that the appointment of a
special administratrix constitutes an abuse of discretion for having been made without giving
petitioner and other parties an opportunity to oppose said appointment.
Anent the June 8, 1987 order, the petitioner alleges that the immediate grant of the motion praying
for the court's assistance in the preservation of the estate of the deceased, "without notice to the
petitioner Pedro de Guzman, and its immediate implementation on the very same day by respondent
Elaine G. de Guzman with the assistance of respondents deputy sheriffs, at no other place but at the
home of the petitioner Pedro de Guzman, are eloquent proofs that all the antecedent events were
intended solely to deprive petitioner de Guzman of his property without due process of law." He also
prays that the respondent Judge be disqualified from further continuing the case.
As stated earlier, the pivotal issue in the instant petition hinges on whether or not a probate court
may appoint a special administratrix and issue a writ of possession of alleged properties of a
decedent for the preservation of the estate in a petition for the settlement of the intestate estate of
the said deceased person even before the probate court causes notice to be served upon all
interested parties pursuant to section 3, Rule 79 of the Revised Rules of Court.
As early as March 18, 1937, in the case of Santos v. Castillo (64 Phil. 211) we ruled that before a
court may acquire jurisdiction over the case for the probate of a will and the administration of the
properties left by a deceased person, the application must allege the residence of the deceased and
other indispensable facts or circumstances and that the applicant is the executor named in the will or
is the person who had custody of the will to be probated.
In the instant case, there is no doubt that the respondent court acquired jurisdiction over the
proceedings upon the filing of a petition for the settlement of an intestate estate by the private
respondent since the petition had alleged all the jurisdictional facts, the residence of the deceased
person, the possible heirs and creditors and the probable value of the estate of the deceased
Manolito de Guzman pursuant to Section 2, Rule 79 of the Revised Rules of Court.

We must, however, differentiate between the jurisdiction of the probate court over the proceedings
for the administration of an estate and its jurisdiction over the persons who are interested in the
settlement of the estate of the deceased person. The court may also have jurisdiction over the
"estate" of the deceased person but the determination of the properties comprising that estate must
follow established rules.
Section 3, Rule 79 of the Revised Rules of Court provides:
Court to set time for hearing. Notice thereof. When a petition for letters of
administration is filed in the court having jurisdiction, such court shall fix a time and
place for hearing the petition, and shall cause notice thereof to be given to the known
heirs and creditors of the decedent, and to any other persons believed to have an
interest in the estate, in the manner provided in sections 3 and 4 of Rule 76.
It is very clear from this provision that the probate court must cause notice through publication of the
petition after it receives the same. The purpose of this notice is to bring all the interested persons
within the court's jurisdiction so that the judgment therein becomes binding on all the world. (Manalo
v. Paredes, 47 Phil. 938; Moran, Comment on the Rules of Court Volume 3,1980 Edition) Where no
notice as required by Section 3, Rule 79 of the Rules of Court has been given to persons believed to
have an interest in the estate of the deceased person; the proceeding for the settlement of the estate
is void and should be annulled. The requirement as to notice is essential to the validity of the
proceeding in that no person may be deprived of his right to property without due process of law.
(Eusebio v. Valmores, 96 Phil. 163).
Verily, notice through publication of the petition for the settlement of the estate of a deceased person
is jurisdictional, the absence of which makes court orders affecting other persons, subsequent to the
petition void and subject to annulment. (See Eusebio v. Valmores, supra)
In the instant case, no notice as mandated by section 3, Rule 79 of the Revised Rules of Court was
caused to be given by the probate court before it acted on the motions of the private respondent to
be appointed as special administratrix, to issue a writ of possession of alleged properties of the
deceased person in the widow's favor, and to grant her motion for assistance to preserve the estate
of Manolito de Guzman.
The "explanation" which we required of the respondent Judge for his apparent haste in issuing the
questioned orders, states:
xxx xxx xxx
10. In issuing the subject Orders, undersigned acted in the honest conviction that it
would be to the best interest of the estate without unduly prejudicing any interested
party or third person. Any delay in issuing the said Orders might have prejudiced the
estate for the properties may be lost, wasted or dissipated in the meantime. (Rollo, p.
86)
xxx xxx xxx
This explanation while seemingly plausible does not sufficiently explain the disregard of the Rule. If
indeed, the respondent court had the welfare of both the estate and the person who have interest in
the estate, then it could have caused notice to be given immediately as mandated by the Revised
Rules of Court. All interested persons including herein petitioner who is the biggest creditor of the
estate listed in the Petition (P850,240.80) could have participated in the proceedings especially so,

because the respondent immediately filed a motion to have herself appointed as administratrix. A
special administrator has been defined as the "representative of decedent appointed by the probate
court to care for and preserve his estate until an executor or general administrator is appointed."
(Jones v. Minnesota Transfer R. Co. 1965 ed., at 106 cited in Fule v. Court of Appeals, 74 SCRA
189). The petitioner as creditor of the estate has a similar interest in the preservation of the estate as
the private respondent who happens to be the widow of deceased Manolito de Guzman. Hence, the
necessity of notice as mandated by the Rules of Court. It is not clear from the records exactly what
emergency would have ensued if the appointment of an administrator was deferred at least until the
most interested parties were given notice of the proposed action. No unavoidable delay in the
appointment of a regular administrator is apparent from the records.
As argued by the petitioner:
The position of special administrator, by the very nature of the powers granted
thereby, is one of trust and confidence. It is a fiduciary position and, therefore,
requires a comprehensive determination of the suitability of the applicant to such
position. Hence, under Philippine jurisprudence, it has been settled that the same
fundamental and legal principles governing the choice of a regular administrator
should be taken in choosing the special administrator (Francisco, Vol. VB, page 46
citing the cases of Ozaeta v. Pecson, Ibid. and Roxas v. Pecson, Ibid.)
In order to fully and correctly ascertain the suitability of the applicant to the trust, a
hearing is obviously necessary wherein the applicant can prove his qualifications and
at the same time affording oppositors, given notice of such hearing and application,
the opportunity to oppose or contest such application.
The requirement of a hearing and the notification to all the known
heirs and other interested parties as to the date thereof is essential to
the validity of the proceeding for the appointment of an administrator
"in order that no person may be deprived of his right or property
without due process of law" (Eusebio v. Valmores, 97 Phil. 163).
Moreover, a hearing is necessary in order to fully determine the
suitability of the applicant to the trust, by giving him the opportunity to
prove his qualifications and affording oppositors, if any, to contest the
said application. (Matute v. Court of Appeals, 26 SCRA 770;
emphasis supplied).
Since the position of special administrator is a very sensitive one which requires trust
and confidence, it is essential that the suitability of the applicant be ascertained in a
hearing with due notice to all oppositors who may object precisely to the applicant's
suitability to the trust. (Rollo, pp. 103-104)
If emergency situations threatening the dissipation of the assets of an estate justify a court's
immediately taking some kind of temporary action even without the required notice, no such
emergency is shown in this case. The need for the proper notice even for the appointment of a
special administrator is apparent from the circumstances of this case.
The respondent Judge himself explains that the order for the preservation of the estate was limited
to properties not claimed by third parties. If certain properties are already in the possession of the
applicant for special administratrix and are not claimed by other persons, we see no need to hurry up
and take special action to preserve those properties. As it is, the sheriffs took advantage of the

questioned order to seize by force, properties found in the residence of the petitioner which he
vehemently claims are owned by him and not by the estate of the deceased person.
The petitioner also asks that the respondent Judge be disqualified from continuing with the
proceedings of the case on the ground that he is partial to the private respondent.
In view of the fact that the respondent Judge in his "Explanation" requests that he be inhibited from
further active on the case, this issue has now become academic. We accept Judge Angeles"
voluntary inhibition in line with our ruling in Pimentel v. Salanga (21 SCRA 160). As we stated in
Query of Executive Judge Estrella T. Estrada, Regional Trial Court of Malolos, Bulacan on the
conflicting views of Regional Trial CourtJudges Manalo and Elisaga Re: Criminal Case No. 4954
M Administrative Matter No. 87-9-3918-RTC, October 26, 1987:
xxx xxx xxx
... A judge may not be legally prohibited from sitting in a litigation. But when
suggestion is made of record that he might be induced to act in favor of one party or
with bias or prejudice against a litigant arising out of circumstances reasonably
capable of inciting such a state of mind, he should conduct a careful selfexamination. He should exercise his discretion in a way that the people's faith in the
courts of justice is not impaired. A salutary norm is that he reflect on the probability
that a losing party might nurture at the back of his mind the thought that the judge
had unmeritoriously tilted the scales of justice against him. That passion on the part
of a judge may be generated because of serious charges of misconduct against him
by a suitor or his counsel, is not altogether remote. He is a man, subject to the
frailties of other men. He should, therefore, exercise great care and caution before
making up his mind to act or withdraw from a suit Where that party or counsel is
involved. He could in good grace inhibit himself where that case could be heard by
another judge and where no appreciable prejudice would be occasioned to others
involved thereon. On the result of his decisions to sit or not sit may depend to a great
extent that all-important confidence in the impartiality of the judiciary. If after
reflection he should resolve to voluntarily desist from sitting in a case where his
motives or fairness might be seriously impugned, his action is to be interpreted as
giving meaning and substance to the second paragraph of Section 1, Rule 137. He
serves the cause of the law who forestalls miscarriage of justice.
Considering the foregoing, we find no need to discuss the other issues raised in the petition.
WHEREFORE, the instant petition is GRANTED. The questioned orders of the Regional Trial Court,
Branch 58 of Makati are hereby set aside. The case is ordered remanded to the lower court for the
hearing of the petition with previous notice to all interested parties as required by law. In view of the
voluntary inhibition of the respondent Judge, the Executive Judge of the Regional Trial Court, Makati
is directed to re-raffle the case to another branch of the court. The Temporary Restraining Order
dated June 10, 1987 is made permanent. No costs.
SO ORDERED.
Fernan (Chairman), Feliciano, Bidin and Cortes, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION

G.R. No. 76714 June 2, 1994

SALUD TEODORO VDA. DE PEREZ, petitioner,
vs.
HON. ZOTICO A. TOLETE in his capacity as Presiding Judge, Branch 18, RTC, Bulacan,
respondent.
Natividad T. Perez for petitioner.
Benedicto T. Librojo for private respondents.

QUIASON, J.:
This is a petition for certiorari under Rule 65 of the Revised Rules of Court to set aside the Order
dated November 19, 1986 of the Regional Trial Court, Branch 18, Bulacan presided by respondent
Judge Zotico A. Tolete, in Special Proceedings No. 1793-M.
We grant the petition.
II
Dr. Jose F. Cunanan and his wife, Dr. Evelyn Perez-Cunanan, who became American citizens,
established a successful medical practice in New York, U.S.A. The Cunanans lived at No. 2896
Citation Drive, Pompey, Syracuse, New York, with their children, Jocelyn, 18; Jacqueline, 16; and
Josephine, 14.
On August 23, 1979, Dr. Cunanan executed a last will and testament, bequeathing to his wife "all the
remainder" of his real and personal property at the time of his death "wheresoever situated" (Rollo,
p. 35). In the event he would survive his wife, he bequeathed all his property to his children and
grandchildren with Dr. Rafael G. Cunanan, Jr. as trustee. He appointed his wife as executrix of his
last will and testament and Dr. Rafael G. Cunanan, Jr. as substitute executor. Article VIII of his will
states:
If my wife, EVELYN PEREZ-CUNANAN, and I shall die under such circumstances
that there is not sufficient evidence to determine the order of our deaths, then it shall
be presumed that I predeceased her, and my estate shall be administered and
distributed, in all respects, in accordance with such presumption (Rollo, p. 41).
Four days later, on August 27, Dr. Evelyn P. Cunanan executed her own last will and testament
containing the same provisions as that of the will of her husband. Article VIII of her will states:

If my husband, JOSE F. CUNANAN, and I shall die under such circumstances that
there is not sufficient evidence to determine the order of our deaths, then it shall be
presumed that he predeceased me, and my estate shall be administered and
distributed in all respects, in accordance with such presumption. (Rollo, p. 31).
On January 9, 1982, Dr. Cunanan and his entire family perished when they were trapped by fire that
gutted their home. Thereafter, Dr. Rafael G. Cunanan, Jr. as trustee and substitute executor of the
two wills, filed separate proceedings for the probate thereof with the Surrogate Court of the County
of Onondaga, New York. On April 7, these two wills were admitted to probate and letters
testamentary were issued in his favor.
On February 21, 1983, Salud Teodoro Perez, the mother of Dr. Evelyn P. Cunanan, and petitioner
herein, filed with the Regional P. Cunanan, and petitioner herein, filed with the Regional Trial Court,
Malolos, Bulacan a petition for the reprobate of the two bills ancillary to the probate proceedings in
New York. She also asked that she be appointed the special administratrix of the estate of the
deceased couple consisting primarily of a farm land in San Miguel, Bulacan.
On March 9, the Regional Trial Court, Branch 16, Malolos, Bulacan, presided by Judge Gualberto J.
de la Llana, issued an order, directing the issuance of letters of special administration in favor of
petitioner upon her filing of a P10,000.00 bond. The following day, petitioner posted the bond and
took her oath as special administration.
As her first act of administration, petitioner filed a motion, praying that the Philippine Life Insurance
Company be directed to deliver the proceeds in the amount of P50,000.00 of the life insurance policy
taken by Dr. Jose F. Cunanan with Dr. Evelyn Perez-Cunanan and their daughter Jocelyn as
beneficiaries. The trial court granted the motion.
Counsel for the Philippine American Life Insurance Company then filed a manifestation, stating that
said company then filed a manifestation, stating that said company had delivered to petitioner the
amount of P49,765.85, representing the proceeds of the life insurance policy of Dr. Jose F.
Cunanan.
In a motion dated May 19, 1983, petitioner asked that Dr. Rafael Cunanan, Sr. be ordered to deliver
to her a Philippine Trust Company passbook with P25,594.00 in savings deposit, and the Family
Savings Bank time deposit certificates in the total amount of P12,412.52.
On May 31, Atty. Federico Alday filed a notice of appearance as counsel for the heirs of Dr. Jose F.
Cunanan, namely, Dr. Rafael Cunanan, Sr., Priscilla Cunanan Bautista, Lydia Cunanan Ignacio,
Felipe F. Cunanan and Loreto Cunanan Concepcion (Cunanan heirs). He also manifested that
before receiving petitioner's motion of May 19, 1983, his clients were unaware of the filing of the
testate estate case and therefore, "in the interest of simple fair play," they should be notified of the
proceedings (Records, p. 110). He prayed for deferment of the hearing on the motions of May 19,
1983.
Petitioner then filed a counter manifestation dated June 13, 1983, asserting: (1) that the "Cunanan
collaterals are neither heirs nor creditors of the late Dr. Jose F. Cunanan" and therefore, they had
"no legal or proprietary interests to protect" and "no right to intervene"; (2) that the wills of Dr. Jose F.
Cunanan and Dr. Evelyn Perez-Cunanan, being American citizens, were executed in accordance
with the solemnities and formalities of New York laws, and produced "effects in this jurisdiction in
accordance with Art. 16 in relation to Art. 816 of the Civil Code"; (3) that under Article VIII of the two
wills, it was presumed that the husband predeceased the wife; and (4) that "the Cunanan collaterals

are neither distributees, legatees or beneficiaries, much less, heirs as heirship is only by institution"
under a will or by operation of the law of New York (Records, pp. 112-113).
On June 23, the probate court granted petitioner's motion of May 19, 1983. However, on July 21, the
Cunanan heirs filed a motion to nullify the proceedings and to set aside the appointment of, or to
disqualify, petitioner as special administratrix of the estates of Dr. Jose F. Cunanan and Dr. Evelyn
Perez-Cunanan. The motion stated: (1) that being the "brothers and sisters and the legal and
surviving heirs" of Dr. Jose F. Cunanan, they had been "deliberately excluded" in the petition for the
probate of the separate wills of the Cunanan spouses thereby misleading the Bulacan court to
believe that petitioner was the sole heir of the spouses; that such "misrepresentation" deprived them
of their right to "due process in violation of Section 4, Rule 76 of the Revised Rules of Court; (2) that
Dr. Rafael G. Cunanan, Jr., the executor of the estate of the Cunanan spouses, was likewise not
notified of the hearings in the Bulacan court; (3) that the "misrepresentation and concealment
committed by" petitioner rendered her unfit to be a special administratrix; (4) that Dr. Rafael G.
Cunanan, Jr. had, by virtue of a verified power of attorney, authorized his father,
Dr. Rafael Cunanan, Sr., to be his attorney-in-fact; and (5) that Dr. Rafael Cunanan, Sr. is qualified
to be a regular administrator "as practically all of the subject estate in the Philippines belongs to their
brother, Dr. Jose F. Cunanan" (Records, pp. 118-122). Hence, they prayed: (1) that the proceedings
in the case be declared null and void; (2) that the appointment of petitioner as special administratrix
be set aside; and (3) that Dr. Rafael Cunanan, Sr. be appointed the regular administrator of the
estate of the deceased spouses.
Thereafter, the Cunanan heirs filed a motion requiring petitioner to submit an inventory or accounting
of all monies received by her in trust for the estate.
In her opposition, petitioner asserted: (1) that she was the "sole and only heir" of her daughter, Dr.
Evelyn Perez-Cunanan to the exclusion of the "Cunanan collaterals"; hence they were complete
strangers to the proceedings and were not entitled to notice; (2) that she could not have "concealed"
the name and address of Dr. Rafael G. Cunanan, Jr. because his name was prominently mentioned
not only in the two wills but also in the decrees of the American surrogate court; (3) that the rule
applicable to the case is Rule 77, not Rule 76, because it involved the allowance of wills proved
outside of the Philippines and that nowhere in Section 2 of Rule 77 is there a mention of notice being
given to the executor who, by the same provision, should himself file the necessary ancillary
proceedings in this country; (4) that even if the Bulacan estate came from the "capital" of Dr. Jose F.
Cunanan, he had willed all his worldly goods to his wife and nothing to his brothers and sisters; and
(5) that Dr. Rafael G. Cunanan, Jr. had unlawfully disbursed $215,000.00 to the Cunanan heirs,
misappropriated $15,000.00 for himself and irregularly assigned assets of the estates to his
American lawyer (Records, pp. 151-160).
In their reply, the Cunanan heirs stressed that on November 24, 1982, petitioner and the Cunanan
heirs had entered into an agreement in the United States "to settle and divide equally the estates,"
and that under Section 2 of Rule 77 the "court shall fix a time and place for the hearing and cause
notice thereof to be given as in case of an original will presented for allowance" (Records, pp. 184185).
Petitioner asked that Dr. Rafael G. Cunanan, Jr. be cited for contempt of court for failure to comply
with the Order of June 23, 1983 and for appropriating money of the estate for his own benefit. She
also alleged that she had impugned the agreement of November 24, 1982 before the Surrogate
Court of Onondaga, New York which rendered a decision on April 13, 1983, finding that "all assets
are payable to Dr. Evelyn P. Cunanans executor to be then distributed pursuant to EPTL4-1.1 subd
[a] par [4]" (Rollo, p. 52).

On their part, the Cunanan heirs replied that petitioner was estopped from claiming that they were
heirs by the agreement to divide equally the estates. They asserted that by virtue of Section 2 of
Rule 77 of the Rules of Court, the provisions of Sections 3, 4 and 5 of Rule 76 on the requirement of
notice to all heirs, executors, devisees and legatees must be complied with. They reiterated their
prayer: (1) that the proceedings in the case be nullified; (2) that petitioner be disqualified as special
administratrix; (3) that she be ordered to submit an inventory of all goods, chattels and monies which
she had received and to surrender the same to the court; and (4) that Dr. Rafael Cunanan, Sr. be
appointed the regular administrator.
Petitioner filed a rejoinder, stating that in violation of the April 13, 1983 decision of the American
court Dr. Rafael G. Cunanan, Jr. made "unauthorized disbursements from the estates as early as
July 7, 1982" (Records, p. 231). Thereafter, petitioner moved for the suspension of the proceedings
as she had "to attend to the settlement proceedings" of the estate of the Cunanan spouses in New
York (Records, p. 242). The Cunanans heirs opposed this motion and filed a manifestation, stating
that petitioner had received $215,000.00 "from the Surrogates Court as part of legacy" based on the
aforesaid agreement of November 24, 1982 (Records, p. 248).
On February 21, 1984, Judge de la Llana issued an order, disallowing the reprobate of the two wills,
recalling the appointment of petitioner as special administratrix, requiring the submission of petitioner
of an inventory of the property received by her as special administratrix and declaring all pending
incidents moot and academic. Judge de la Llana reasoned out that petitioner failed to prove the law
of New York on procedure and allowance of wills and the court had no way of telling whether the
wills were executed in accordance with the law of New York. In the absence of such evidence, the
presumption is that the law of succession of the foreign country is the same as the law of the
Philippines. However, he noted, that there were only two witnesses to the wills of the Cunanan
spouses and the Philippine law requires three witnesses and that the wills were not signed on each
and every page, a requirement of the Philippine law.
On August 27, 1985, petitioner filed a motion for reconsideration of the Order dated February 21,
1984, where she had sufficiently proven the applicable laws of New York governing the execution of
last wills and testaments.
On the same day, Judge de la Llana issued another order, denying the motion of petitioner for the
suspension of the proceedings but gave her 15 days upon arrival in the country within which to act
on the other order issued that same day. Contending that the second portion of the second order left
its finality to the discretion of counsel for petitioner, the Cunanans filed a motion for the
reconsideration of the objectionable portion of the said order so that it would conform with the
pertinent provisions of the Judiciary Reorganization Act of 1980 and the Interim Rules of Court.
On April 30, 1985, the respondent Judge of Branch 18 of the Regional Trial Court, Malolos, to which
the reprobate case was reassigned, issued an order stating that "(W)hen the last will and testament .
. . was denied probate," the case was terminated and therefore all orders theretofore issued should
be given finality. The same Order amended the February 21, 1984 Order by requiring petitioner to
turn over to the estate the inventoried property. It considered the proceedings for all intents and
purposes, closed (Records,
p. 302).
On August 12, petitioner filed a motion to resume proceedings on account of the final settlement and
termination of the probate cases in New York. Three days later, petitioner filed a motion praying for
the reconsideration of the Order of April 30, 1985 on the strength of the February 21, 1984 Order
granting her a period of 15 days upon arrival in the country within which to act on the denial of

probate of the wills of the Cunanan spouses. On August 19, respondent Judge granted the motion
and reconsidered the Order of April 30, 1985.
On August 29, counsel for petitioner, who happens to be her daughter, Natividad, filed a motion
praying that since petitioner was ailing in Fort Lee, New Jersey, U.S.A. and therefore incapacitated
to act as special administratrix, she (the counsel) should be named substitute special administratrix.
She also filed a motion for the reconsideration of the Order of February 21, 1984, denying probate to
the wills of the Cunanan spouses, alleging that respondent Judge "failed to appreciate the significant
probative value of the exhibits . . . which all refer to the offer and admission to probate of the last
wills of the Cunanan spouses including all procedures undertaken and decrees issued in connection
with the said probate" (Records, pp. 313-323).
Thereafter, the Cunanans heirs filed a motion for reconsideration of the Order of August 19, 1985,
alleging lack of notice to their counsel.
On March 31, 1986, respondent Judge to which the case was reassigned denied the motion for
reconsideration holding that the documents submitted by petitioner proved "that the wills of the
testator domiciled abroad were properly executed, genuine and sufficient to possess real and
personal property; that letters testamentary were issued; and that proceedings were held on a
foreign tribunal and proofs taken by a competent judge who inquired into all the facts and
circumstances and being satisfied with his findings issued a decree admitting to probate the wills in
question." However, respondent Judge said that the documents did not establish the law of New
York on the procedure and allowance of wills (Records, p. 381).
On April 9, 1986, petitioner filed a motion to allow her to present further evidence on the foreign law.
After the hearing of the motion on April 25, 1986, respondent Judge issued an order wherein he
conceded that insufficiency of evidence to prove the foreign law was not a fatal defect and was
curable by adducing additional evidence. He granted petitioner 45 days to submit the evidence to
that effect.
However, without waiting for petitioner to adduce the additional evidence, respondent Judge ruled in
his order dated June 20, 1986 that he found "no compelling reason to disturb its ruling of March 31,
1986" but allowed petitioner to "file anew the appropriate probate proceedings for each of the
testator" (Records, p. 391).
The Order dated June 20, 1986 prompted petitioner to file a second motion for reconsideration
stating that she was "ready to submit further evidence on the law obtaining in the State of New York"
and praying that she be granted "the opportunity to present evidence on what the law of the State of
New York has on the probate and allowance of wills" (Records, p. 393).
On July 18, respondent Judge denied the motion holding that to allow the probate of two wills in a
single proceeding "would be a departure from the typical and established mode of probate where
one petition takes care of one will." He pointed out that even in New York "where the wills in question
were first submitted for probate, they were dealt with in separate proceedings" (Records, p. 395).
On August 13, 1986, petitioner filed a motion for the reconsideration of the Order of July 18, 1986,
citing Section 3, Rule 2 of the Rules of Court, which provides that no party may institute more than
one suit for a single cause of action. She pointed out that separate proceedings for the wills of the
spouses which contain basically the same provisions as they even named each other as a
beneficiary in their respective wills, would go against "the grain of inexpensive, just and speedy
determination of the proceedings" (Records, pp. 405-407).

On September 11, 1986, petitioner filed a supplement to the motion for reconsideration, citing
Benigno v. De La Pea, 57 Phil. 305 (1932) (Records,
p. 411), but respondent Judge found that this pleading had been filed out of time and that the
adverse party had not been furnished with a copy thereof. In her compliance, petitioner stated that
she had furnished a copy of the motion to the counsel of the Cunanan heirs and reiterated her
motion for a "final ruling on her supplemental motion" (Records, p. 421).
On November 19, respondent Judge issued an order, denying the motion for reconsideration filed by
petitioner on the grounds that "the probate of separate wills of two or more different persons even if
they are husband and wife cannot be undertaken in a single petition" (Records, pp. 376-378).
Hence, petitioner instituted the instant petition, arguing that the evidence offered at the hearing of
April 11, 1983 sufficiently proved the laws of the State of New York on the allowance of wills, and
that the separate wills of the Cunanan spouses need not be probated in separate proceedings.
II
Petitioner contends that the following pieces of evidence she had submitted before respondent
Judge are sufficient to warrant the allowance of the wills:
(a) two certificates of authentication of the respective wills of Evelyn and Jose by the
Consulate General of the Philippines (Exhs. "F" and "G");
(b) two certifications from the Secretary of State of New York and Custodian of the
Great Seal on the facts that Judge Bernard L. Reagan is the Surrogate of the
Country of Onondaga which is a court of record, that his signature and seal of office
are genuine, and that the Surrogate is duly authorized to grant copy of the respective
wills of Evelyn and Jose
(Exhs. "F-1" and "G-1");
(c) two certificates of Judge Reagan and Chief Clerk Donald E. Moore stating that
they have in their records and files the said wills which were recorded on April 7,
1982 (Exhs. "F-2" and "G-2");
(d) the respective wills of Evelyn and Jose (Exhs. "F-3", "F-6" and Exh. "G-3" "G6");
(e) certificates of Judge Reagan and the Chief Clerk certifying to the genuineness
and authenticity of the exemplified copies of the two wills (Exhs. "F-7" and "F-7");
(f) two certificates of authentication from the Consulate General of the Philippines in
New York (Exh. "H" and "F").
(g) certifications from the Secretary of State that Judge Reagan is duly authorized to
grant exemplified copies of the decree of probate, letters testamentary and all
proceedings had and proofs duly taken
(Exhs. "H-1" and "I-1");
(h) certificates of Judge Reagan and the Chief Clerk that letters testamentary were
issued to Rafael G. Cunanan (Exhs. "H-2" and "I-2");

(i) certification to the effect that it was during the term of Judge Reagan that a decree
admitting the wills to probate had been issued and appointing Rafael G. Cunanan as
alternate executor (Exhs. "H-3" and
"I-10");
(j) the decrees on probate of the two wills specifying that proceedings were held and
proofs duly taken (Exhs. "H-4" and "I-5");
(k) decrees on probate of the two wills stating that they were properly executed,
genuine and valid and that the said instruments were admitted to probate and
established as wills valid to pass real and personal property (Exhs. "H-5" and "I-5");
and
(l) certificates of Judge Reagan and the Chief Clerk on the genuineness and
authenticity of each others signatures in the exemplified copies of the decrees of
probate, letters testamentary and proceedings held in their court (Exhs. "H-6" and "I6") (Rollo, pp. 13-16).
Petitioner adds that the wills had been admitted to probate in the Surrogate Courts Decision of April
13, 1983 and that the proceedings were terminated on November 29, 1984.
The respective wills of the Cunanan spouses, who were American citizens, will only be effective in
this country upon compliance with the following provision of the Civil Code of the Philippines:
Art. 816. The will of an alien who is abroad produces effect in the Philippines if made
with the formalities prescribed by the law of the place in which he resides, or
according to the formalities observed in his country, or in conformity with those which
this Code prescribes.
Thus, proof that both wills conform with the formalities prescribed by New York laws or by Philippine
laws is imperative.
The evidence necessary for the reprobate or allowance of wills which have been probated outside of
the Philippines are as follows: (1) the due execution of the will in accordance with the foreign laws;
(2) the testator has his domicile in the foreign country and not in the Philippines; (3) the will has been
admitted to probate in such country; (4) the fact that the foreign tribunal is a probate court, and (5)
the laws of a foreign country on procedure and allowance of wills (III Moran Commentaries on the
Rules of Court, 1970 ed., pp. 419-429; Suntay v. Suntay, 95 Phil. 500 [1954]; Fluemer v. Hix, 54
Phil. 610 [1930]). Except for the first and last requirements, the petitioner submitted all the needed
evidence.
The necessity of presenting evidence on the foreign laws upon which the probate in the foreign
country is based is impelled by the fact that our courts cannot take judicial notice of them (Philippine
Commercial and Industrial Bank v. Escolin, 56 SCRA 266 [1974]).
Petitioner must have perceived this omission as in fact she moved for more time to submit the
pertinent procedural and substantive New York laws but which request respondent Judge just
glossed over. While the probate of a will is a special proceeding wherein courts should relax the
rules on evidence, the goal is to receive the best evidence of which the matter is susceptible before
a purported will is probated or denied probate (Vda. de Ramos v. Court of Appeals, 81 SCRA 393
[1978]).

There is merit in petitioners insistence that the separate wills of the Cunanan spouses should be
probated jointly. Respondent Judges view that the Rules on allowance of wills is couched in singular
terms and therefore should be interpreted to mean that there should be separate probate
proceedings for the wills of the Cunanan spouses is too literal and simplistic an approach. Such view
overlooks the provisions of Section 2, Rule 1 of the Revised Rules of Court, which advise that the
rules shall be "liberally construed in order to promote their object and to assist the parties in
obtaining just, speedy, and inexpensive determination of every action and proceeding."
A literal application of the Rules should be avoided if they would only result in the delay in the
administration of justice (Acain v. Intermediate Appellate Court, 155 SCRA 100 [1987]; Roberts v.
Leonidas, 129 SCRA 33 [1984]).
What the law expressly prohibits is the making of joint wills either for the testators reciprocal benefit
or for the benefit of a third person (Civil Code of the Philippines, Article 818). In the case at bench,
the Cunanan spouses executed separate wills. Since the two wills contain essentially the same
provisions and pertain to property which in all probability are conjugal in nature, practical
considerations dictate their joint probate. As this Court has held a number of times, it will always
strive to settle the entire controversy in a single proceeding leaving no root or branch to bear the
seeds of future litigation (Motoomull v. Dela Paz, 187 SCRA 743 [1990]).
This petition cannot be completely resolved without touching on a very glaring fact petitioner has
always considered herself the sole heir of
Dr. Evelyn Perez Cunanan and because she does not consider herself an heir of Dr. Jose F.
Cunanan, she noticeably failed to notify his heirs of the filing of the proceedings. Thus, even in the
instant petition, she only impleaded respondent Judge, forgetting that a judge whose order is being
assailed is merely a nominal or formal party (Calderon v. Solicitor General, 215 SCRA 876 [1992]).
The rule that the court having jurisdiction over the reprobate of a will shall "cause notice thereof to be
given as in case of an original will presented for allowance" (Revised Rules of Court, Rule 27,
Section 2) means that with regard to notices, the will probated abroad should be treated as if it were
an "original will" or a will that is presented for probate for the first time. Accordingly, compliance with
Sections 3 and 4 of Rule 76, which require publication and notice by mail or personally to the "known
heirs, legatees, and devisees of the testator resident in the Philippines" and to the executor, if he is
not the petitioner, are required.
The brothers and sisters of Dr. Jose F. Cunanan, contrary to petitioner's claim, are entitled to notices
of the time and place for proving the wills. Under Section 4 of Rule 76 of the Revised Rules of Court,
the "court shall also cause copies of the notice of the time and place fixed for proving the will to be
addressed to the designated or other known heirs, legatees, and devisees of the testator, . . . "
WHEREFORE, the questioned Order is SET ASIDE. Respondent Judge shall allow petitioner
reasonable time within which to submit evidence needed for the joint probate of the wills of the
Cunanan spouses and see to it that the brothers and sisters of Dr. Jose F. Cunanan are given all
notices and copies of all pleadings pertinent to the probate proceedings.
SO ORDERED.
Davide, Jr., Bellosillo and Kapunan, JJ., concur.
Cruz, J., is on leave.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 77047 May 28, 1988
JOAQUINA R-INFANTE DE ARANZ, ANTONIO R-INFANTE, CARLOS R. INFANTE, MERCEDES
R-INFANTE DE LEDNICKY, ALFREDO R-INFANTE, TERESITA R-INFANTE, RAMON RINFANTE, FLORENCIA R-INFANTE DE DIAS, MARTIN R-INFANTE, JOSE R-INFANTE LINK and
JOAQUIN R-INFANTE CAMPBELL, petitioners,
vs.
THE HON. NICOLAS GALING, PRESIDING JUDGE, REGIONAL TRIAL COURT, NATIONAL
CAPITAL JUDICIAL REGION, BRANCH NO. 166, PASIG, METRO MANILA AND JOAQUIN RINFANTE, respondents.
Belo, Abiera and Associates for petitioners.
Miguel J. Lagman for respondents.

PADILLA, J.:
This is a petition for review on certiorari of the decision 1 of the Court of Appeals, dated 13 January
1987, in CA-G.R. SP No. 09622, entitled "Joaquina R-Infante de Aranz, et al., petitioners vs. Hon.
Nicolas Galing, etc., et al., respondents," dismissing petitioners' petition for certiorari and prohibition
as-, sailing the orders 2 of the Regional Trial Court of Pasig, Branch 166, dated 12 May 1986 and 30
May 1986, respectively, in Sp. Proc. No. 9995, entitled, "In the Matter of Petition for Approval of the
Last Will and Testament of Montserrat R-Infante y G-Pola Joaquin R. Infante, Petitioner."
On 3 March 1986, private respondent filed with the Regional Trial Court of Pasig, Branch 166, a
petition for the probate and allowance of the last will and testament of the late Montserrat R-Infante y
G-Pola The petition specified the names and ad- dresses of herein petitioners as legatees and
devisees, as follows:
Joaquina R-Infante Roxas de Aranz residing at No. 86 10th St., New Manila, Quezon
City, Metro Manila;
Antonio R-Infante Roxas residing at #91 Cambridge, North Forbes, Makati, Metro
Manila;
Carlos R-Infante Roxas residing at #46 Washington St., Greenhills, San Juan, Metro
Manila;
Mercedes R-Infante Roxas de Lednicky residing at #386 P. Guevarra St., San Juan,
Metro Manila;
Alfredo R-Infante Roxas residing at #27 A Scout Tobias St., Quezon City, Metro
Manila;

Teresita R-Infante Roxas residing at #121 9th Street, New Manila, Quezon City,
Metro Manila;
Ramon R-Infante Roxas residing at #27 B Scout Tobias St., Quezon City, Metro
Manila;
Florencia R-Infante Roxas de Diaz residing at Calle Sancho Davila, 13-19-D, Madrid,
28028 Spain;
Martin R-Infante Roxas residing at #2 Bongavilla St., Cubao, Quezon City, Metro
Manila;
Jose R-Infante Link residing at 174R-Pascual St., San Juan, Metro Manila;
Joaquin R-Infante Campbell C/O Pilar Campbell, 15 Briones, Makati, Metro Marta. 3
On 12 March 1986, the probate court issued an order selling the petition for hearing on 5 May 1986
at 8:30 o'clock in the morning. Said order was published in the "Nueva Era" A newspaper of general
circulation in Metro Manila once a week for three (3) consecutive weeks. On the date of the hearing,
no oppositor appeared. The hearing was then reset to 12 May 1986, on which date, the probate
court issued the following order:
There being no opposition to this instant case, as prayed for, the oner to-receive
Branch Clerk of Court is hereby designated Co evidence ex-parte of the petitioner.
SO ORDERED. 4
On the same day (12 May 1986), private respondent presented his evidence ex-parte and placed
Arturo Arceo one of the testamentary witnesses, on the witness stand. During the proceedings,
private respondent was appointed executor.
On 14 May 1986, petitioners filed a motion for reconsideration of the order of 12 May 1986 alleging
that, as named legatees, no notices were sent to them as required by Sec. 4, Rule 76 of the Rules of
Court and they prayed that they be given a period of ten (10) days within which to file their
opposition to the probate of the will.
On 30 May 1986, the probate court, acting on the opposition of private respondent and the reply
thereto of petitioners, issued an order denying petitioners motion for reconsideration.
Thereafter, petitioners filed with this Court a petition for certiorari and prohibition which was,
however, referred to the Court of Appeals. On 13 January 1987, the Court of Appeals promulgated a
decision dismissing the petition. 5 Hence, the instant petition.
It is the view of petitioners that the Court of Appeals erred in holding that personal notice of probate
proceedings to the known legatees and devisees is not a jurisdictional requirement in the probate of
a will. Contrary to the holding of the Court of Appeals that the requirement of notice on individual
heirs, legatees and devisees is merely a matter of procedural convenience to better satisfy in some
instances the requirements of due process, petitioners allege that under Sec. 4 of Rule 76 of the
Rules of Court, said requirement of the law is mandatory and its omission constitutes a reversible
error for being constitutive of grave abuse of discretion. 6

We grant the petition:

Sec. 4, Rule 76 of the Rules of Cof reads:
SEC. 4. Heirs, devisees, legatees, and executors to be notified by mail or personally.
The court shag also cause copies of the notice of the time and place fixed for
proving the will to be addressed to the designated or other known heirs, legatees,
and devisees of the testator resident in the Philippines at their places of residence,
and deposited in the post office with the postage thereon prepaid at least twenty (20)
days before the hearing, if such places of residence be known. A copy of the notice
must in like manner be mailed to the person named as executor, if he be not, the
petitioner; also, to any person named as co-executor not petitioning, if their places of
residence be known. Personal service of copies of the notice at least ten (10) days
before the day of hearing shall be equivalent to mailing.
It is clear from the aforecited rule that notice of the time and place of the hearing for the allowance of
a will shall be forwarded to the designated or other known heirs, legatees, and devisees residing in
the Philippines at their places of residence, if such places of residence be known. There is no
question that the residences of herein petitioners legatees and devisees were known to the probate
court. The petition for the allowance of the wig itself indicated the names and addresses of the
legatees and devisees of the testator. 7 But despite such knowledge, the probate court did not cause
copies of the notice to be sent to petitioners. The requirement of the law for the allowance of the will
was not satisfied by mere publication of the notice of hearing for three (3) weeks in a newspaper of
general circulation in the province.
The case of Joson vs. Nable 8 cited by the Court of Appeals in its assailed decision to support its
theory is not applicable in the present case. In that case, petitioners Purificacion Joson and Erotica
Joson failed to contest the will of Tomas Joson because they had not been notified of the hearing of
the petition for probate. he the petition included the residence of petitioners as Dagupan Street No.
83, Manila, petitioners claimed that their residence was not Dagupan Street No. 83, Manila. There
the Court said:
Petitioners maintain that no notice was received by them partly because their
residence was not Dagupan Street No. 83 as alleged in the petition for probate. If the
allegation of the petition was wrong and the true residence of petitioners was not
known, then notice upon them individually was not necessary. Under the provision
abovequoted, individual notice upon heirs, legatees and devisees is necessary only
when they are known or when their places of residence are known. In other
instances, such notice is not necessary and the court may acquire and exercise
jurisdiction simply upon the publication of the notice in a newspaper of general
circulation. ... 9
In Re: Testate Estate of Suntay, 10 the Court, speaking thru Mr. Justice Sabino Padilla, said:
... It is a proceedings in rem and for the validity of such proceedings personal notice
or by publication or both to all interested parties must be made. The interested
parties in the case were known to reside in the Philippines. The evidence shows that
no such notice was received by the interested parties residing in the Philippines (pp.
474, 476, 481, 503-4, t.s.n., hearing of 24 February 1948). The proceedings had in
the municipal district court of Amoy, China, may be likened to a deposition or to a
perpetuation of testimony, and even if it were so it does not measure or come up to

the standard of such proceedings in the Philippines for lack of notice to all interested
parties and the proceedings were held at the back of such interested parties.
xxx xxx xxx
... In view thereof, the will and the alleged probate thereof cannot be said to have
been done in accordance with the accepted basic and fundamental concepts and
principles followed in the probate and allowance of wills. Consequently, the
authenticated transcript of proceedings held in the municipal district court of Amoy,
China, cannot be deemed and accepted as proceedings leading to the probate or
allowance of a will and, therefore, the will referred to therein cannot be allowed, filed
and recorded by a competent court of court. 11
WHEREFORE, the decision of the Court of Appeals dated 13 January 1987 is hereby ANNULLED
and SET ASIDE. The case is hereby ordered remanded to the Regional Trial Court of Pasig for
further proceedings in accordance with this decision. No costs.
SO ORDERED.
Yap (Chairman), Melencio-Herrera, Paras and Sarmiento, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-58509 December 7, 1982
IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF RICARDO B. BONILLA
deceased, MARCELA RODELAS, petitioner-appellant,
vs.
AMPARO ARANZA, ET AL., oppositors-appellees, ATTY. LORENZO SUMULONG, intervenor.
Luciano A. Joson for petitioner-appellant.
Cesar Paralejo for oppositor-appellee.

RELOVA, J.:
This case was certified to this Tribunal by the Court of Appeals for final determination pursuant to
Section 3, Rule 50 of the Rules of Court.
As found by the Court of Appeals:
... On January 11, 1977, appellant filed a petition with the Court of First Instance of
Rizal for the probate of the holographic will of Ricardo B. Bonilla and the issuance of
letters testamentary in her favor. The petition, docketed as Sp. Proc. No. 8432, was
opposed by the appellees Amparo Aranza Bonilla, Wilferine Bonilla Treyes Expedita
Bonilla Frias and Ephraim Bonilla on the following grounds:
(1) Appellant was estopped from claiming that the deceased left a will by failing to
produce the will within twenty days of the death of the testator as required by Rule
75, section 2 of the Rules of Court;
(2) The alleged copy of the alleged holographic will did not contain a disposition of
property after death and was not intended to take effect after death, and therefore it
was not a will
(3) The alleged hollographic will itself,and not an alleged copy thereof, must be
produced, otherwise it would produce no effect, as held in Gam v. Yap, 104 Phil.
509; and
(4 ) The deceased did not leave any will, holographic or otherwise, executed and
attested as required by law.
The appellees likewise moved for the consolidation of the case with another case Sp.
Proc. No, 8275). Their motion was granted by the court in an order dated April 4,
1977.

On November 13, 1978, following the consolidation of the cases, the appellees
moved again to dismiss the petition for the probate of the will. They argued that:
(1) The alleged holographic was not a last will but merely an instruction as to the
management and improvement of the schools and colleges founded by decedent
Ricardo B. Bonilla; and
(2) Lost or destroyed holographic wills cannot be proved by secondary evidence
unlike ordinary wills.
Upon opposition of the appellant, the motion to dismiss was denied by the court in its
order of February 23, 1979.
The appellees then filed a motion for reconsideration on the ground that the order
was contrary to law and settled pronouncements and rulings of the Supreme Court,
to which the appellant in turn filed an opposition. On July 23, 1979, the court set
aside its order of February 23, 1979 and dismissed the petition for the probate of the
will of Ricardo B. Bonilla. The court said:
... It is our considered opinion that once the original copy of the holographic will is
lost, a copy thereof cannot stand in lieu of the original.
In the case of Gam vs. Yap, 104 Phil. 509, 522, the Supreme Court held that 'in the
matter of holographic wills the law, it is reasonable to suppose, regards the
document itself as the material proof of authenticity of said wills.
MOREOVER, this Court notes that the alleged holographic will was executed on
January 25, 1962 while Ricardo B. Bonilla died on May 13, 1976. In view of the lapse
of more than 14 years from the time of the execution of the will to the death of the
decedent, the fact that the original of the will could not be located shows to our mind
that the decedent had discarded before his death his allegedly missing Holographic
Will.
Appellant's motion for reconsideration was denied. Hence, an appeal to the Court of Appeals in
which it is contended that the dismissal of appellant's petition is contrary to law and well-settled
jurisprudence.
On July 7, 1980, appellees moved to forward the case to this Court on the ground that the appeal
does not involve question of fact and alleged that the trial court committed the following assigned
errors:
I. THE LOWER COURT ERRED IN HOLDING THAT A LOST HOLOGRAPHIC WILL
MAY NOT BE PROVED BY A COPY THEREOF;
II. THE LOWER COURT ERRED IN HOLDING THAT THE DECEDENT HAS
DISCARDED BEFORE HIS DEATH THE MISSING HOLOGRAPHIC WILL;
III. THE LOWER COURT ERRED IN DISMISSING APPELLANT'S WILL.
The only question here is whether a holographic will which was lost or cannot be found can be
proved by means of a photostatic copy. Pursuant to Article 811 of the Civil Code, probate of

holographic wills is the allowance of the will by the court after its due execution has been proved.
The probate may be uncontested or not. If uncontested, at least one Identifying witness is required
and, if no witness is available, experts may be resorted to. If contested, at least three Identifying
witnesses are required. However, if the holographic will has been lost or destroyed and no other
copy is available, the will can not be probated because the best and only evidence is the handwriting
of the testator in said will. It is necessary that there be a comparison between sample handwritten
statements of the testator and the handwritten will. But, a photostatic copy or xerox copy of the
holographic will may be allowed because comparison can be made with the standard writings of the
testator. In the case of Gam vs. Yap, 104 PHIL. 509, the Court ruled that "the execution and the
contents of a lost or destroyed holographic will may not be proved by the bare testimony of
witnesses who have seen and/or read such will. The will itself must be presented; otherwise, it shall
produce no effect. The law regards the document itself as material proof of authenticity." But, in
Footnote 8 of said decision, it says that "Perhaps it may be proved by a photographic or photostatic
copy. Even a mimeographed or carbon copy; or by other similar means, if any, whereby the
authenticity of the handwriting of the deceased may be exhibited and tested before the probate
court," Evidently, the photostatic or xerox copy of the lost or destroyed holographic will may be
admitted because then the authenticity of the handwriting of the deceased can be determined by the
probate court.
WHEREFORE, the order of the lower court dated October 3, 1979, denying appellant's motion for
reconsideration dated August 9, 1979, of the Order dated July 23, 1979, dismissing her petition to
approve the will of the late Ricardo B. Bonilla, is hereby SET ASIDE.
SO ORDERED.
Teehankee, Actg. C.J., Melencio-Herrera, Plana, Vasquez and Gutierrez, Jr., JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION

G.R. No. L-39247 June 27, 1975

In the Matter of the Petition to Approve the Will of Leodegaria Julian. FELIX BALANAY, JR.,
petitioner,
vs.
HON. ANTONIO M. MARTINEZ, Judge of the Court of First Instance of Davao, Branch VI;
AVELINA B. ANTONIO and DELIA B. LANABAN, respondents.
Roberto M. Sarenas for petitioner.
Jose B. Guyo for private respondents.

AQUINO, J.:
Felix Balanay, Jr. appealed by certiorari from the order of the Court of First Instance of Davao dated
February 28, 1974, declaring illegal and void the will of his mother, Leodegaria Julian, converting the
testate proceeding into an intestate proceeding and ordering the issuance of the corresponding
notice to creditors (Special Case No. 1808). The antecedents of the appeal are as follows:
Leodegaria Julian, a native of Sta. Maria, Ilocos Sur, died on February 12, 1973 in Davao City at the
age of sixty-seven. She was survived by her husband, Felix Balanay, Sr., and by their six legitimate
children named Felix Balanay, Jr., Avelina B. Antonio, Beatriz B. Solamo, Carolina B. Manguiob,
Delia B. Lanaban and Emilia B. Pabaonon.
Felix J. Balanay, Jr. filed in the lower court a petition dated February 27, 1973 for the probate of his
mother's notarial will dated September 5, 1970 which is written in English. In that will Leodegaria
Julian declared (a) that she was the owner of the "southern half of nine conjugal lots (par. II); (b) that
she was the absolute owner of two parcels of land which she inherited from her father (par. III), and
(c) that it was her desire that her properties should not be divided among her heirs during her
husband's lifetime and that their legitimes should be satisfied out of the fruits of her properties (Par.
IV).
Then, in paragraph V of the will she stated that after her husband's death (he was eighty-two years
old in 1973) her paraphernal lands and all the conjugal lands (which she described as "my
properties") should be divided and distributed in the manner set forth in that part of her will. She
devised and partitioned the conjugal lands as if they were all owned by her. She disposed of in the
will her husband's one half share of the conjugal assets. *
Felix Balanay, Sr. and Avelina B. Antonio opposed the probate of the will on the grounds of lack of
testamentary capacity, undue influence, preterition of the husband and alleged improper partition of

the conjugal estate. The oppositors claimed that Felix Balanay, Jr. should collate certain properties
which he had received from the testatrix.
Felix Balanay, Jr., in his reply to the opposition, attached thereto an affidavit of Felix Balanay, Sr.
dated April 18, 1973 wherein he withdrew his opposition to the probate of the will and affirmed that
he was interested in its probate. On the same date Felix Balanay, Sr. signed an instrument
captioned "Conformation (sic) of Division and Renunciation of Hereditary Rights" wherein he
manifested that out of respect for his wife's will he "waived and renounced' his hereditary rights in
her estate in favor of their six children. In that same instrument he confirmed the agreement, which
he and his wife had perfected before her death, that their conjugal properties would be partitioned in
the manner indicated in her will.
Avelina B. Antonio, an oppositor, in her rejoinder contended that the affidavit and "conformation" of
Felix Balanay, Sr. were void. The lower court in its order of June 18, 1973 "denied" the opposition
and reset for hearing the probate of the will. It gave effect to the affidavit and conformity of Felix
Balanay, Sr. In an order dated August 28, 1973 it appointed its branch clerk of court as special
administrator of the decedent's estate.
Mrs. Antonio moved for the reconsideration of the lower court's order of June 18, 1973 on the
grounds (a) that the testatrix illegally claimed that she was the owner of the southern half of the
conjugal lots and (b) that she could not partition the conjugal estate by allocating portions of the nine
lots to her children. Felix Balanay, Jr., through his counsel, Hermenegildo Cabreros, opposed that
motion. The lower court denied it in its order of October 15, 1973.
In the meanwhile, another lawyer appeared in the case. David O. Montaa, Sr., claiming to be the
lawyer of petitioner Felix Balanay, Jr. (his counsel of record was Atty. Cabreros), filed a motion dated
September 25, 1973 for "leave of court to withdraw probate of alleged will of Leodegaria Julian and
requesting authority to proceed by intestate estate proceeding." In that motion Montaa claimed to
be the lawyer not only of the petitioner but also of Felix Balanay, Sr., Beatriz B. Solamo, Carolina B.
Manguiob and Emilia B. Pabaonon.
Montaa in his motion assailed the provision of the will which partitioned the conjugal assets or
allegedly effected a compromise of future legitimes. He prayed that the probate of the will be
withdrawn and that the proceeding be converted into an intestate proceeding. In another motion of
the same date he asked that the corresponding notice to creditors be issued.
Avelina B. Antonio and Delia B. Lanaban, through Atty. Jose B. Guyo, in their comments dated
October 15, 1973 manifested their conformity with the motion for the issuance of a notice to
creditors. They prayed that the will be declared void for being contrary to law and that an intestacy
be declared.
The lower court, acting on the motions of Atty. Montaa, assumed that the issuance of a notice to
creditors was in order since the parties had agreed on that point. It adopted the view of Attys.
Montaa and Guyo that the will was void. So, in its order of February 28, 1974 it dismissed the
petition for the probate, converted the testate proceeding into an intestate proceeding, ordered the
issuance of a notice to creditors and set the intestate proceeding for hearing on April 1 and 2, 1974.
The lower court did not abrogate its prior orders of June 18 and October 15, 1973. The notice to
creditors was issued on April 1, 1974 and published on May 2, 9 and 16 in the Davao Star in spite of
petitioner's motion of April 17, 1974 that its publication be held in abeyance.
Felix Balanay, Jr., through a new counsel, Roberto M. Sarenas, in a verified motion dated April 15,
1974, asked for the reconsideration of the lower court's order of February 28, 1974 on the ground

that Atty. Montaa had no authority to withdraw the petition for the allowance of the will. Attached to
the motion was a copy of a letter dated March 27, 1974 addressed to Atty. Montaa and signed by
Felix Balanay, Jr., Beatriz V. Solamo, Carolina B. Manguiob and Emilia B. Pabaonon, wherein they
terminated Montaa's services and informed him that his withdrawal of the petition for the probate of
the will was without their consent and was contrary to their repeated reminder to him that their
mother's will was "very sacred" to them.
Avelina B. Antonio and Delia B. Lanaban opposed the motion for reconsideration. The lower court
denied the motion in its order of June 29, 1974. It clarified that it declared the will void on the basis of
its own independent assessment of its provisions and not because of Atty. Montaa's arguments.
The basic issue is whether the probate court erred in passing upon the intrinsic validity of the will,
before ruling on its allowance or formal validity, and in declaring it void.
We are of the opinion that in view of certain unusual provisions of the will, which are of dubious
legality, and because of the motion to withdraw the petition for probate (which the lower court
assumed to have been filed with the petitioner's authorization), the trial court acted correctly in
passing upon the will's intrinsic validity even before its formal validity had been established. The
probate of a will might become an idle ceremony if on its face it appears to be intrinsically void.
Where practical considerations demand that the intrinsic validity of the will be passed upon, even
before it is probated, the court should meet the issue (Nuguid vs. Nuguid, 64 O.G. 1527, 17 SCRA
449. Compare with Sumilang vs. Ramagosa, L-23135, December 26, 1967, 21 SCRA 1369; Cacho
vs. Udan, L-19996, April 30, 1965, 13 SCRA 693).1wph1.t
But the probate court erred in declaring, in its order of February 28, 1974 that the will was void and
in converting the testate proceeding into an intestate proceeding notwithstanding the fact that in its
order of June 18, 1973 , it gave effect to the surviving husband's conformity to the will and to his
renunciation of his hereditary rights which presumably included his one-half share of the conjugal
estate.
The rule is that "the invalidity of one of several dispositions contained in a will does not result in the
invalidity of the other dispositions, unless it is to be presumed that the testator would not have made
such other dispositions if the first invalid disposition had not been made" (Art. 792, Civil Code).
"Where some of the provisions of a will are valid and others invalid, the valid parts will be upheld if
they can be separated from the invalid without defeating the intention of the testator or interfering
with the general testamentary scheme, or doing injustice to the beneficiaries" (95 C.J.S. 873).
The statement of the testatrix that she owned the "southern half of the conjugal lands is contrary to
law because, although she was a coowner thereof, her share was inchoate and proindiviso (Art. 143,
Civil Code; Madrigal and Paterno vs. Rafferty and Concepcion, 38 Phil. 414). But That illegal
declaration does not nullify the entire will. It may be disregarded.
The provision of the will that the properties of the testatrix should not be divided among her heirs
during her husband's lifetime but should be kept intact and that the legitimes should be paid in cash
is contrary to article 1080 of the Civil Code which reads:
ART. 1080. Should a person make a partition of his estate by an act inter vivos, or by
will, such partition shall be respected, insofar as it does not prejudice the legitime of
the compulsory heirs.
A parent who, in the interest of his or her family, to keep any agricultural, industrial,
or manufacturing enterprise intact, may avail himself of the right granted him in this

article, by ordering that the legitime of the other children to whom the property is not
assigned be paid in cash. (1056a)
The testatrix in her will made a partition of the entire conjugal estate among her six children (her
husband had renounced his hereditary rights and his one-half conjugal share). She did not assign
the whole estate to one or more children as envisaged in article 1080. Hence, she had no right to
require that the legitimes be paid in cash. On the other hand, her estate may remain undivided only
for a period of twenty years. So, the provision that the estate should not be divided during her
husband's lifetime would at most be effective only for twenty years from the date of her death unless
there are compelling reasons for terminating the coownership (Art. 1083, Civil Code).
Felix Balanay, Sr. could validly renounce his hereditary rights and his one-half share of the conjugal
partnership (Arts. 179[1] and 1041, Civil Code) but insofar as said renunciation partakes of a
donation of his hereditary rights and his one-half share in the conjugal estate (Art. 1060[1] Civil
Code), it should be subject to the limitations prescribed in articles 750 and 752 of the Civil Code. A
portion of the estate should be adjudicated to the widower for his support and maintenance. Or at
least his legitime should be respected.
Subject to the foregoing observations and the rules on collation, the will is intrinsically valid and the
partition therein may be given effect if it does not prejudice the creditors and impair the legitimes.
The distribution and partition would become effective upon the death of Felix Balanay, Sr. In the
meantime, the net income should be equitably divided among the children and the surviving spouse.
It should be stressed that by reason of the surviving husband's conformity to his wife's will and his
renunciation of his hereditary rights, his one-half conjugal share became a part of his deceased
wife's estate. His conformity had the effect of validating the partition made in paragraph V of the will
without prejudice, of course, to the rights of the creditors and the legitimes of the compulsory heirs.
Article 793 of the Civil Code provides that "property acquired after the making of a will shall only
pass thereby, as if the testator had it at the time of making the will, should it expressly appear by the
will that such was his intention". Under article 930 of the Civil Code "the legacy or devise of a thing
belonging to another person is void, if the testator erroneously believed that the thing pertained to
him. But if the thing bequeathed, though not belonging to the testator when he made the will,
afterwards becomes his, by whatever title, the disposition shall take effect."
In the instant case there is no doubt that the testatrix and her husband intended to partition the
conjugal estate in the manner set forth in paragraph V of her will. It is true that she could dispose of
by will only her half of the conjugal estate (Art. 170, Civil Code) but since the husband, after the
dissolution of the conjugal partnership, had assented to her testamentary partition of the conjugal
estate, such partition has become valid, assuming that the will may be probated.
The instant case is different from the Nuguid case, supra, where the testatrix instituted as heir her
sister and preterited her parents. Her will was intrinsically void because it preterited her compulsory
heirs in the direct line. Article 854 of the Civil Code provides that "the preterition or omission of one,
some, or all of the compulsory heirs in the direct line, whether living at the time of the execution of
the will or born after the death of the testator, shall annul the institution of heir; but the devises and
legacies, shall be valid insofar as they are not inofficious." Since the preterition of the parents
annulled the institution of the sister of the testatrix and there were no legacies and devises, total
intestacy resulted (.Art. 960[2], Civil Code).1wph1.t

In the instant case, the preterited heir was the surviving spouse. His preterition did not produce
intestacy. Moreover, he signified his conformity to his wife's will and renounced his hereditary rights.
.
It results that the lower court erred in not proceeding with the probate of the will as contemplated in
its uncancelled order of June 18, 1973. Save in an extreme case where the will on its face is
intrinsically void, it is the probate court's duty to pass first upon the formal validity of the will.
Generally, the probate of the will is mandatory (Art. 838, Civil Code; Guevara vs. Guevara, 74 Phil.
479 and 98 Phil. 249; Fernandez vs. Dimagiba, L-23638, October 12, 1967, 21 SCRA 428).
As aptly stated by Mr. Justice Barredo, "the very existence of a purported testament is in itself prima
facie proof that the supposed testator has willed that his estate should be distributed in the manner
therein provided, and it is incumbent upon the state that, if legally tenable, such desire be given
effect independent of the attitude of the parties affected thereby" (Resolution, Vda. de Precilla vs.
Narciso, L-27200, August 18, 1972, 46 SCRA 538, 565).
To give effect to the intention and wishes of the testatrix is the first and principal law in the matter of
testaments (Dizon-Rivera vs. Dizon, L-24561, June 30, 1970, 33 SCRA 554, 561). Testacy is
preferable to intestacy. An interpretation that will render a testamentary disposition operative takes
precedence over a construction that will nullify a provision of the will (Arts. 788 and 791, Civil Code).
Testacy is favored. Doubts are resolved in favor of testacy especially where the will evinces an
intention on the part of the testator to dispose of practically his whole estate. So compelling is the
principle that intestacy should be avoided and that the wishes of the testator should prevail that
sometimes the language of the will can be varied for the purpose of giving it effect (Austria vs.
Reyes, L-23079, February 27, 1970, 31 SCRA 754, 762).
As far as is legally possible, the expressed desire of the testator must be followed and the
dispositions of the properties in his will should be upheld (Estorque vs. Estorque, L-19573, June 30,
1970, 33 SCRA 540, 546).
The law has a tender regard for the wishes of the testator as expressed in his will because any
disposition therein is better than that which the law can make (Castro vs. Bustos, L-25913, February
28, 1969, 27 SCRA 327, 341).
Two other errors of the lower court may be noticed. It erred in issuing a notice to creditors although
no executor or regular administrator has been appointed. The record reveals that it appointed a
special administrator. A notice to creditors is not in order if only a special administrator has been
appointed. Section 1, Rule 86 of the Rules of Court, in providing that "immediately after granting
letters of testamentary or of administration, the court shall issue a notice requiring all persons having
money claims against the decedent to file them in the office of the clerk of said court" clearly
contemplates the appointment of an executor or regular administrator and not that of a special
administrator.
It is the executor or regular administrator who is supposed to oppose the claims against the estate
and to pay such claims when duly allowed (See. 10, Rule 86 and sec. 1, Rule 88, Rules of Court).
We also take this occasion to point out that the probate court's appointment of its branch clerk of
court as special administrator (p. 30, Rollo) is not a salutary practice because it might engender the
suspicion that the probate Judge and his clerk of court are in cahoots in milking the decedent's
estate. Should the branch clerk of court commit any abuse or devastavit in the course of his
administration, the probate Judge might find it difficult to hold him to a strict accountability. A court

employee should devote his official time to his official duties and should not have as a sideline the
administration of a decedent's estate.
WHEREFORE, the lower court's orders of February 28, and June 29, 1974 are set aside and its
order of June 18, 1973, setting for hearing the petition for probate, is affirmed. The lower court is
directed to conduct further proceedings in Special Case No. 1808 in consonance with this opinion.
Costs, against the private respondents.
SO ORDERED.
Fernando (Chairman), Barredo, Antonio and Concepcion, Jr., JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-62952 October 9, 1985
SOFIA J. NEPOMUCENO, petitioner,
vs.
THE HONORABLE COURT OF APPEALS, RUFINA GOMEZ, OSCAR JUGO ANG, CARMELITA
JUGO, respondents.

GUTIERREZ, JR., J.:

This is a petition for certiorari to set aside that portion of the decision of the respondent Court of
Appeals (now intermediate Appellate Court) dated June 3, 1982, as amended by the resolution
dated August 10, 1982, declaring as null and void the devise in favor of the petitioner and the
resolution dated December 28, 1982 denying petitioner's motion for reconsideration.
Martin Jugo died on July 16, 1974 in Malabon, Rizal. He left a last Will and Testament duly signed
by him at the end of the Will on page three and on the left margin of pages 1, 2 and 4 thereof in the
presence of Celestina Alejandro, Myrna C. Cortez, and Leandro Leano, who in turn, affixed their
signatures below the attestation clause and on the left margin of pages 1, 2 and 4 of the Will in the
presence of the testator and of each other and the Notary Public. The Will was acknowledged before
the Notary Public Romeo Escareal by the testator and his three attesting witnesses.
In the said Will, the testator named and appointed herein petitioner Sofia J. Nepomuceno as his sole
and only executor of his estate. It is clearly stated in the Will that the testator was legally married to a
certain Rufina Gomez by whom he had two legitimate children, Oscar and Carmelita, but since 1952,
he had been estranged from his lawfully wedded wife and had been living with petitioner as husband
and wife. In fact, on December 5, 1952, the testator Martin Jugo and the petitioner herein, Sofia J.
Nepomuceno were married in Victoria, Tarlac before the Justice of the Peace. The testator devised
to his forced heirs, namely, his legal wife Rufina Gomez and his children Oscar and Carmelita his
entire estate and the free portion thereof to herein petitioner. The Will reads in part:
Art. III. That I have the following legal heirs, namely: my aforementioned legal wife,
Rufina Gomez, and our son, Oscar, and daughter Carmelita, both surnamed Jugo,
whom I declare and admit to be legally and properly entitled to inherit from me; that
while I have been estranged from my above-named wife for so many years, I cannot
deny that I was legally married to her or that we have been separated up to the
present for reasons and justifications known fully well by them:
Art. IV. That since 1952, 1 have been living, as man and wife with one Sofia J.
Nepomuceno, whom I declare and avow to be entitled to my love and affection, for all
the things which she has done for me, now and in the past; that while Sofia J.
Nepomuceno has with my full knowledge and consent, did comport and represent
myself as her own husband, in truth and in fact, as well as in the eyes of the law, I
could not bind her to me in the holy bonds of matrimony because of my
aforementioned previous marriage;

On August 21, 1974, the petitioner filed a petition for the probate of the last Will and Testament of
the deceased Martin Jugo in the Court of First Instance of Rizal, Branch XXXIV, Caloocan City and
asked for the issuance to her of letters testamentary.
On May 13, 1975, the legal wife of the testator, Rufina Gomez and her children filed an opposition
alleging inter alia that the execution of the Will was procured by undue and improper influence on the
part of the petitioner; that at the time of the execution of the Will, the testator was already very sick
and that petitioner having admitted her living in concubinage with the testator, she is wanting in
integrity and thus, letters testamentary should not be issued to her.
On January 6, 1976, the lower court denied the probate of the Will on the ground that as the testator
admitted in his Will to cohabiting with the petitioner from December 1952 until his death on July 16,
1974, the Will's admission to probate will be an Idle exercise because on the face of the Will, the
invalidity of its intrinsic provisions is evident.
The petitioner appealed to the respondent-appellate court.
On June 2, 1982, the respondent court set aside the decision of the Court of First Instance of Rizal
denying the probate of the will. The respondent court declared the Will to be valid except that the
devise in favor of the petitioner is null and void pursuant to Article 739 in relation with Article 1028 of
the Civil Code of the Philippines. The dispositive portion of the decision reads:
WHEREFORE, the decision a quo is hereby set aside, the will in question declared
valid except the devise in favor of the appellant which is declared null and void. The
properties so devised are instead passed on in intestacy to the appellant in equal
shares, without pronouncement as to cost.
On June 15, 1982, oppositors Rufina Gomez and her children filed a "Motion for Correction of
Clerical Error" praying that the word "appellant" in the last sentence of the dispositive portion of the
decision be changed to "appellees" so as to read: "The properties so devised are instead passed on
intestacy to the appellees in equal shares, without pronouncement as to costs." The motion was
granted by the respondent court on August 10, 1982.
On August 23, 1982, the petitioner filed a motion for reconsideration. This was denied by the
respondent court in a resolution dated December 28, 1982.
The main issue raised by the petitioner is whether or not the respondent court acted in excess of its
jurisdiction when after declaring the last Will and Testament of the deceased Martin Jugo validly
drawn, it went on to pass upon the intrinsic validity of the testamentary provision in favor of herein
petitioner.
The petitioner submits that the validity of the testamentary provision in her favor cannot be passed
upon and decided in the probate proceedings but in some other proceedings because the only
purpose of the probate of a Will is to establish conclusively as against everyone that a Will was
executed with the formalities required by law and that the testator has the mental capacity to execute
the same. The petitioner further contends that even if the provisions of paragraph 1 of Article 739 of
the Civil Code of the Philippines were applicable, the declaration of its nullity could only be made by
the proper court in a separate action brought by the legal wife for the specific purpose of obtaining a
declaration of the nullity of the testamentary provision in the Will in favor of the person with whom
the testator was allegedly guilty of adultery or concubinage.

The respondents on the other hand contend that the fact that the last Will and Testament itself
expressly admits indubitably on its face the meretricious relationship between the testator and the
petitioner and the fact that petitioner herself initiated the presentation of evidence on her alleged
ignorance of the true civil status of the testator, which led private respondents to present contrary
evidence, merits the application of the doctrine enunciated in Nuguid v. Felix Nuguid, et al. (17
SCRA 449) and Felix Balanay, Jr. v. Hon. Antonio Martinez, et al. (G.R. No. L- 39247, June 27,
1975). Respondents also submit that the admission of the testator of the illicit relationship between
him and the petitioner put in issue the legality of the devise. We agree with the respondents.
The respondent court acted within its jurisdiction when after declaring the Will to be validly drawn, it
went on to pass upon the intrinsic validity of the Will and declared the devise in favor of the petitioner
null and void.
The general rule is that in probate proceedings, the court's area of inquiry is limited to an
examination and resolution of the extrinsic validity of the Will. The rule is expressed thus:
xxx xxx xxx
... It is elementary that a probate decree finally and definitively settles all questions
concerning capacity of the testator and the proper execution and witnessing of his
last Will and testament, irrespective of whether its provisions are valid and
enforceable or otherwise. (Fernandez v. Dimagiba, 21 SCRA 428)
The petition below being for the probate of a Will, the court's area of inquiry is limited
to the extrinsic validity thereof. The testators testamentary capacity and the
compliance with the formal requisites or solemnities prescribed by law are the only
questions presented for the resolution of the court. Any inquiry into the intrinsic
validity or efficacy of the provisions of the will or the legality of any devise or legacy is
premature.
xxx xxx xxx
True or not, the alleged sale is no ground for the dismissal of the petition for probate.
Probate is one thing; the validity of the testamentary provisions is another. The first
decides the execution of the document and the testamentary capacity of the testator;
the second relates to descent and distribution (Sumilang v. Ramagosa, 21 SCRA
1369)
xxx xxx xxx
To establish conclusively as against everyone, and once for all, the facts that a will
was executed with the formalities required by law and that the testator was in a
condition to make a will, is the only purpose of the proceedings under the new code
for the probate of a will. (Sec. 625). The judgment in such proceedings determines
and can determine nothing more. In them the court has no power to pass upon the
validity of any provisions made in the will. It can not decide, for example, that a
certain legacy is void and another one valid. ... (Castaneda v. Alemany, 3 Phil. 426)
The rule, however, is not inflexible and absolute. Given exceptional circumstances, the probate court
is not powerless to do what the situation constrains it to do and pass upon certain provisions of the
Will.

In Nuguid v. Nuguid (17 SCRA 449) cited by the trial court, the testator instituted the petitioner as
universal heir and completely preterited her surviving forced heirs. A will of this nature, no matter
how valid it may appear extrinsically, would be null and void. Separate or latter proceedings to
determine the intrinsic validity of the testamentary provisions would be superfluous.
Even before establishing the formal validity of the will, the Court in Balanay .Jr. v. Martinez (64
SCRA 452) passed upon the validity of its intrinsic provisions.
Invoking "practical considerations", we stated:
The basic issue is whether the probate court erred in passing upon the intrinsic
validity of the will, before ruling on its allowance or formal validity, and in declaring it
void.
We are of the opinion that in view of certain unusual provisions of the will, which are
of dubious legality, and because of the motion to withdraw the petition for probate
(which the lower court assumed to have been filed with the petitioner's authorization)
the trial court acted correctly in passing upon the will's intrinsic validity even before its
formal validity had been established. The probate of a will might become an Idle
ceremony if on its face it appears to be intrinsically void. Where practical
considerations demand that the intrinsic validity of the will be passed upon, even
before it is probated, the court should meet the issue (Nuguid v. Nuguid, 64 O.G.
1527, 17 SCRA 449. Compare with Sumilang vs. Ramagosa L-23135, December 26,
1967, 21 SCRA 1369; Cacho v. Udan L-19996, April 30, 1965, 13 SCRA 693).
There appears to be no more dispute at this time over the extrinsic validity of the Will. Both parties
are agreed that the Will of Martin Jugo was executed with all the formalities required by law and that
the testator had the mental capacity to execute his Will. The petitioner states that she completely
agrees with the respondent court when in resolving the question of whether or not the probate court
correctly denied the probate of Martin Jugo's last Will and Testament, it ruled:
This being so, the will is declared validly drawn. (Page 4, Decision, Annex A of
Petition.)
On the other hand the respondents pray for the affirmance of the Court of Appeals' decision in toto.
The only issue, therefore, is the jurisdiction of the respondent court to declare the testamentary
provision in favor of the petitioner as null and void.
We sustain the respondent court's jurisdiction. As stated in Nuguid v. Nuguid, (supra):
We pause to reflect. If the case were to be remanded for probate of the will, nothing
will be gained. On the contrary, this litigation will be protracted. And for aught that
appears in the record, in the record, in the event of probate or if the court rejects the
will, probability exists that the case will come up once again before us on the same
issue of the intrinsic validity or nullity of the will. Result, waste of time, effort,
expense, plus added anxiety. These are the practical considerations that induce us
to a belief that we might as well meet head-on the issue of the validity of the
provisions of the will in question. (Section 2, Rule 1, Rules of Court. Case, et al. v.
Jugo, et al., 77 Phil. 517, 522). After all, there exists a justiciable controversy crying
for solution.

We see no useful purpose that would be served if we remand the nullified provision to the proper
court in a separate action for that purpose simply because, in the probate of a will, the court does not
ordinarily look into the intrinsic validity of its provisions.
Article 739 of the Civil Code provides:
The following donations shall be void:
(1) Those made between persons who were guilty of adultery or concubinage at the
time of the donation;
(2) Those made between persons found guilty of the same criminal offense, in
consideration thereof;
(3) Those made to a public officer or his wife, descendants and ascendants, by
reason of his office.
In the case referred to in No. 1, the action for declaration of nullity may be brought by
the spouse of the donor or donee; and the guilt of the donor and donee may be
proved by preponderance of evidence in the same action.
Article 1028 of the Civil Code provides:
The prohibitions mentioned in Article 739, concerning donations inter vivos shall
apply to testamentary provisions.
In Article III of the disputed Will, executed on August 15, 1968, or almost six years before the
testator's death on July 16, 1974, Martin Jugo stated that respondent Rufina Gomez was his legal
wife from whom he had been estranged "for so many years." He also declared that respondents
Carmelita Jugo and Oscar Jugo were his legitimate children. In Article IV, he stated that he had been
living as man and wife with the petitioner since 1952. Testator Jugo declared that the petitioner was
entitled to his love and affection. He stated that Nepomuceno represented Jugo as her own husband
but "in truth and in fact, as well as in the eyes of the law, I could not bind her to me in the holy bonds
of matrimony because of my aforementioned previous marriage.
There is no question from the records about the fact of a prior existing marriage when Martin Jugo
executed his Will. There is also no dispute that the petitioner and Mr. Jugo lived together in an
ostensible marital relationship for 22 years until his death.
It is also a fact that on December 2, 1952, Martin Jugo and Sofia J. Nepomuceno contracted a
marriage before the Justice of the Peace of Victoria, Tarlac. The man was then 51 years old while
the woman was 48. Nepomuceno now contends that she acted in good faith for 22 years in the belief
that she was legally married to the testator.
The records do not sustain a finding of innocence or good faith. As argued by the private
respondents:
First. The last will and testament itself expressly admits indubitably on its face the
meretricious relationship between the testator and petitioner, the devisee.

Second. Petitioner herself initiated the presentation of evidence on her alleged

ignorance of the true civil status of the testator, which led private respondents to
present contrary evidence.
In short, the parties themselves dueled on the intrinsic validity of the legacy given in
the will to petitioner by the deceased testator at the start of the proceedings.
Whether or not petitioner knew that testator Martin Jugo, the man he had lived with
as man and wife, as already married, was an important and specific issue brought by
the parties before the trial court, and passed upon by the Court of Appeals.
Instead of limiting herself to proving the extrinsic validity of the will, it was petitioner
who opted to present evidence on her alleged good faith in marrying the testator.
(Testimony of Petitioner, TSN of August 1, 1982, pp. 56-57 and pp. 62-64).
Private respondents, naturally, presented evidence that would refute the testimony of
petitioner on the point.
Sebastian Jugo, younger brother of the deceased testator, testified at length on the
meretricious relationship of his brother and petitioner. (TSN of August 18,1975).
Clearly, the good faith of petitioner was by option of the parties made a decisive
issue right at the inception of the case.
Confronted by the situation, the trial court had to make a ruling on the question.
When the court a quo held that the testator Martin Jugo and petitioner 'were deemed
guilty of adultery or concubinage', it was a finding that petitioner was not the innocent
woman she pretended to be.
xxx xxx xxx
3. If a review of the evidence must be made nonetheless, then private respondents
respectfully offer the following analysis:
FIRST: The secrecy of the marriage of petitioner with the deceased testator in a town
in Tarlac where neither she nor the testator ever resided. If there was nothing to hide
from, why the concealment' ? Of course, it maybe argued that the marriage of the
deceased with private respondent Rufina Gomez was likewise done in secrecy. But it
should be remembered that Rufina Gomez was already in the family way at that time
and it would seem that the parents of Martin Jugo were not in favor of the marriage
so much so that an action in court was brought concerning the marriage. (Testimony
of Sebastian Jugo, TSN of August 18, 1975, pp. 29-30)
SECOND: Petitioner was a sweetheart of the deceased testator when they were still
both single. That would be in 1922 as Martin Jugo married respondent Rufina Gomez
on November 29, 1923 (Exh. 3). Petitioner married the testator only on December 5,
1952. There was a space of about 30 years in between. During those 30 years, could
it be believed that she did not even wonder why Martin Jugo did not marry her nor
contact her anymore after November, 1923 - facts that should impel her to ask her

groom before she married him in secrecy, especially so when she was already about
50 years old at the time of marriage.
THIRD: The fact that petitioner broke off from Martin Jugo in 1923 is by itself
conclusive demonstration that she new that the man she had openly lived for 22
years as man and wife was a married man with already two children.
FOURTH: Having admitted that she knew the children of respondent Rufina Gomez,
is it possible that she would not have asked Martin Jugo whether or not they were his
illegitimate or legitimate children and by whom? That is un-Filipino.
FIFTH: Having often gone to Pasig to the residence of the parents of the deceased
testator, is it possible that she would not have known that the mother of private
respondent Oscar Jugo and Carmelita Jugo was respondent Rufina Gomez,
considering that the houses of the parents of Martin Jugo (where he had lived for
many years) and that of respondent Rufina Gomez were just a few meters away?
Such pretentions of petitioner Sofia Nepomuceno are unbelievable. They are, to say
the least, inherently improbable, for they are against the experience in common life
and the ordinary instincts and promptings of human nature that a woman would not
bother at all to ask the man she was going to marry whether or not he was already
married to another, knowing that her groom had children. It would be a story that
would strain human credulity to the limit if petitioner did not know that Martin Jugo
was already a married man in view of the irrefutable fact that it was precisely his
marriage to respondent Rufina Gomez that led petitioner to break off with the
deceased during their younger years.
Moreover, the prohibition in Article 739 of the Civil Code is against the making of a donation between
persons who are living in adultery or concubinage. It is the donation which becomes void. The giver
cannot give even assuming that the recipient may receive. The very wordings of the Will invalidate
the legacy because the testator admitted he was disposing the properties to a person with whom he
had been living in concubinage.
WHEREFORE, the petition is DISMISSED for lack of merit. The decision of the Court of Appeals,
now Intermediate Appellate Court, is AFFIRMED. No costs.
SO ORDERED.
Teehankee (Chairman), Melencio-Herrera, Plana, Relova, De la Fuente and Patajo, JJ., concur.

[G.R. No. L-23225. February 27, 1971.]

IN THE MATTER OF THE PETITION TO PROBATE OF THE WILL OF DIGNA MARAVILLA,
HERMINIO MARAVILLA, petitioner-appellant, and ADELINA SAJO, legatee-appellant, v.
PEDRO MARAVILLA, ASUNCION MARAVILLA and REGINA MARAVILLA, oppositorsappellees, CONCEPCION KOHLHAAS and ROSE MARY KOHLHAAS, intervenors.
Felino A. Garcia for legatee-appellant.
Salonga, Ordoez, Yap, Sicat & Associates and Paredes, Poblador, Cruz & Nazareno for
Petitioner-Appellant.
Jose Gutierrez David, Placido C. Ramos, Augurio Abeto, Alex Mirasol and Alex Umadhay, for
oppositors-appellees.
Jose M. Luison for intervenors.
DECISION
REYES, J.B.L., J.:

These are appeals (before Republic Act 5440) from the decision of the Court of First Instance of
Negros Occidental, in its Special Proceeding No. 4977, denying the probate of the will of the
deceased, Digna Maravilla. These appeals were brought to the Court of Appeals, but said court
certified the same to this Supreme Court on 26 May 1964, in accord with the latters prior decision in
Fernandez, etc., Et. Al. v. Maravilla, L-18799, 31 March 1964, 1 which settled the question of
appellate jurisdiction in favor of the Supreme Court over that of the Court of Appeals, on the appeal
from the appointment of a special co-administrator in the same Special Proceeding No. 4977 in view
of the value of the estate.
Appellant Herminio Maravilla, probate petitioner and husband of the decedent, died on 16 July 1966,
after the case was submitted for decision. Upon motion for intervention filed by Concepcion Maravilla
Kohlhaas and Rose Mary Kohlhaas, this Supreme Court allowed their intervention on 24 July 1967,
upon showing that their interest as substitute heirs was vested definitely upon the death of Herminio
Maravilla, and that said movants for intervention merely adopt the pleadings and briefs filed in behalf
of the deceased Herminio Maravilla so that the intervention will not delay the disposition of the case.
2
Appellees Pedro, 3 Asuncion and Regina, all surnamed "Maravilla," who are allegedly the brother
and sisters of the deceased Digna Maravilla and oppositors to the probate, had moved to require the
P. C. Laboratory to submit explanations of the photographs of the will and the signatures thereon
previously filed, 4 but this Court, considering that such explanation would amount to new evidence
not heard at the trial, denied the motion on 3 August 1967. 5
Herminio Maravillas petition for probate was opposed by the appellees in an amended opposition
filed in the course of the trial in the court below and admitted without objection. The opposition
alleged the following grounds:jgc:chanrobles.com.ph
"a) That the deceased, Digna Maravilla, the alleged testatrix and the instrumental witnesses did not

sign the alleged will, each and every page thereof, in the presence of each other;
"b) That the deceased, Digna Maravilla, the alleged testatrix, affixed her signature to her alleged will
under undue and improper pressure and influence and/or duress brought to bear upon her by the
petitioner, for his own personal benefit and advantage and that of his nieces, Adelina Sajo and Rose
Marie Kohlhaas and his half-sister Conchita Maravilla Kohlhaas;
"c) That the deceased, Digna Maravilla, at the time she affixed her signature to her alleged will was
not of sound and disposing mind;
"d) That the alleged will, now being offered for probate had already been revoked by the deceased,
Digna Maravilla." 6
After trial, the court below rendered judgment, holding as unsubstantiated the last three (3) grounds
above-enumerated, but sustaining the first, that is, that the will was not executed in accordance with
Section 618 of Act 190, and, therefore, denied the probate of the will.
The petitioner and one Adelina Sajro, who was named a devisee under the questioned will,
appealed the judgment, as aforesaid, assigning errors of fact and law. The oppositors-appellees did
not appeal but counter-assigned errors their brief.
There is no controversy that the late Digna Maravilla died in Manapla, Negros Occidental, on 12
August 1958, leaving an extensive estate. Prior to her death, she was a resident of Saravia, same
province. It is, likewise, undisputed that, at the time of the probate proceedings, only one (1)
(Aquilino Mansueto) of the three (3) attesting witnesses to the will had survived, the two (2) others
(Timoteo Hernaez and Mariano Buenaflor) having died previously.
The will submitted for probate, Exhibit "A," which is typewritten in the Spanish language, purports to
have been executed in Manila on the 7th day of October, 1944; it consists of five (5) pages, including
the page on which the attestation clause was completed. The purported signatures of the testatrix
appear at the logical end of the will on page four and at the left margin of all the other pages. The
attestation clause reads as follows:jgc:chanrobles.com.ph
"CLAUSULA DE ATESTIGUAMIENTO
"Nosotros, TIMOTEO HERNAEZ, AQUILINO MANSUETO y MARIANO BUENAFLOR los abajo
firmantes todos mayores de edad y sin impedimento alguno para ser testigo de este testamento,
certificamos y atestiguamos: Que en la fecha y lugar arriba mencionados Da. DIGNA MARAVILLA
ha otorgado el presente documento como su testamento y ultima voluntad que consta de cinco
paginas utiles incluyendo esta pagina de atestiguamiento, escrito a maquinilla en una sola cara de
cada hoja, todas paginadas correlativamente en letras de puo y letra de la testadora, habiendo
dicha testadora, despues de leido el mismo en nuestra presencia, firmado por triplicado al pie de
este testamento y al margen izquierdo de cada una de las cinco paginas de que se compone en
presencia de todos y cada uno de nosotros que tambien firmamos en el margen izquierdo de cada
pagina y al pie de este atestiguamiento los unos en presencia de los otros y todos en presencia de
lo testadora, quien en el acto del otorgamiento y firma de este documento se halla en plena
capacidad intelectual, amenazada ni enganada par otorgar y firmar este testamento.
"Asi lo atestiguamos y firmamos por triplicado de nuestro puo y letra en Manila hoy a siete de
Octubre de mil novecientos cuarenta y cuatro."cralaw virtua1aw library
At the bottom thereof appear the purported signatures of Timoteo Hernaez, Aquilino Mansueto and
Mariano Buenaflor, attesting witnesses. Their signatures appear also on the left margin of all the five

(5) pages. The paging of the will is by handwritten words, such as "Pagina Primera," "Pagina
Segunda," etc., written at the top of each page. On the lower half of the third page, before the name
"CONCEPCION P. MARAVILLA," is the typewritten word "hermana," which was crossed out, and
over it was handwritten the word "cuada," bearing, at the left hereof, the initials "D. M."cralaw
virtua1aw library
After the legacies in favor of herein appellant Adelina Sajo, a niece of Digna Maravilla, the latters
sister-in-law, Concepcion P. Maravilla de Kohlhaas, and Concepcions daughter, Rose Mary
Kohlhaas, the will named appellant Herminio Maravilla as universal heir and executor. In case of the
heirs death, or if he should not become heir for any reason, he is to be substituted by the legatee
Adelina Sajo in one-half of the properties bequeathed, the other half to pass collectively to legatees
Concepcion P. Maravilla and the daughter of the latter, Rose Mary Kohlhaas. All previous wills are
declared revoked.
In view of the trial courts decision of 8 February 1960 (Record on Appeal, pages 25-51) refusing
probate of the will, the instituted heir, Herminio Maravilla, and the legatee, Adelina Sajo, perfected
their appeal, assigning as errors the findings of the trial court that (a) instrumental witness Aquilino
Mansueto did not actually see Digna Maravilla sign the will; (b) that Digna Maravilla was not present
when Mansueto signed the will as witness; (c) that Mansueto "most probably" did not see Mariano
Buenaflor sign as witness to the will; (d) the testimony of attorney Manuel Villanueva on the due
execution of Digna Maravillas testament was biased and not deserving of credit; and (e) in refusing
probate to the alleged will for not having been executed with the requisites prescribed by Section
618 of Act 190.
At the hearing before the court a quo, only one of the three instrumental witnesses, Col. (ret.)
Aquilino Mansueto, appeared and testified, inasmuch as the other two witnesses (Timoteo Hernaez
and Mariano Buenaflor) concededly died prior to the trial of the case. Col. Mansueto identified his
own signature and those of Dr. Timoteo Hernaez and of Digna Maravilla, and asserted that the latter
did sign in the presence of all three witnesses and attorney Villanueva; 7 that Hernaez signed in his
presence and in the presence of the other witnesses and of Digna Maravilla and that present at the
signing were "Dr. Timoteo Hernaez, Mr. Mariano Buenaflor, attorney Manuel Villanueva and both
Herminio Maravilla and Mrs. Digna Maravilla, (the testatrix) and identified his signature and those of
Digna and Hernaez 8 although, subsequently, the witness admitted that he could not remember very
well whether Mr. Maravilla was there at the time he signed the will. The witness explained that he
could not remember some details because fourteen years had elapsed, and when he signed as a
witness, he did not give it any importance and because of the time he (Col. Mansueto) was very
worried because of rumours that the Japanese Kempeitai would arrest officers of the USAFFE who
did not want to collaborate. 9
Colonel Mansuetos testimony was supported by that of the husband of the testatrix, Herminio
Maravilla, and of attorney Manuel Villanueva. Herminio Maravillas evidence is that a week before 7
October 1944 his wife, Digna Maravilla, told him of her desire to "renew" her will because of the
critical period in Manila before the liberation; 10 he invited Buenaflor, Hernaez and Mansueto to
attest to the will; 11 sent his messenger, Mariano Buenaflor, to ask attorney Manuel Villanueva to
come to his house at Mabini, Ermita, Manila, in order to prepare the will; 12 at his wifes request, he
gave the list of properties to Villanueva; 13 he knew that the will was executed in the dining room
while he remained in the sala; 14 and Villanueva, Mansueto, Hernaez and Buenaflor were in his
house in the morning of 7 October 1944 and sat with his wife around the table in the dining room,
with Villanueva at one end, Digna beside him and the witnesses facing each other; 15 and after the
signing they had lunch, at his invitation, and when they were eating, petitioner Maravilla saw the
three (3) copies of the will on the dining table. 16 However, he did not see there sign. 17
Attorney Manuel Villanueva, as third witness for the proponent asserted that he had been the lawyer

of the Maravillas; that 5 or 6 days before 7 October 1944 he had been summoned through Mariano
Buenaflor to the house of the Maravillas at 222 Mabini, Ermita, Manila, and there met Digna who
requested him to draft a new will, revoking her old one, to include as additional beneficiaries Adelina
Sajo, Concepcion Maravilla, and the latters youngest daughter, Rose Mary Kohlhaas, who lived with
her (Digna) and whom she considered as her real children, having cared for them since childhood.
Digna gave Villanueva instructions concerning the will, and handed him her old will and a
handwritten list of the certificates of title of her properties, which list she asked and obtained from her
husband. Before leaving, Villanueva asked Digna to look for three witnesses; their names were
furnished him two or three days later and he sent word that the will could be executed on 7 October
1944 (as it actually was); on that day he brought one original and 2 copies with him, and handed
them to Digna; she read the document and while doing so the witnesses Mansueto, Hernaez and
Buenaflor came. Villanueva talked with them and satisfied himself that they were competent,
whereupon all proceeded to the dining room table. Attorney Villanueva sat at the head thereof,
Digna at his right, and Hernaez at the right of Digna; at his left was first Mansueto and then
Buenaflor. At the lawyers behest Digna Maravilla read the will in the presence of the witnesses; after
reading she called his attention to a clerical error on page 3, at the second to the last line of
paragraph 9, where Concepcion Maravilla was designated as "hermana" ; the word was cancelled by
the testatrix who wrote "cuada" above the cancelled word, and placed her initials "D. M." beside it.
She also wrote on top of each page the words "Pagina primera," "Pagina Segunda" and so on, upon
Villanuevas instructions, and then Digna and the witnesses signed in the presence of one another
and of attorney Villanueva. 18 The latter did not ask the husband (Herminio) to join the group when
the will was executed, and Herminio remained near the window in the sala. 19 Digna appeared to
the witness very healthy and spoke in Spanish intelligently. The signing ended around 12:30 p.m.,
and after it all ate lunch. 20
Upon the evidence, the trial judge concluded that Mansueto did not actually see Digna Maravilla sign
the will in question, basing such conclusion upon the fact that while Mansueto positively identified his
own signature ("I identify this as my signature") but not that of the testatrix, his five answers to the
questions of counsel, in reference thereto, being "this must be the signature of Mrs. Digna
Maravilla."cralaw virtua1aw library
In our opinion, the trial courts conclusion is far fetched, fanciful and unwarranted. It was but natural
that witness Mansueto should be positive about his own signature, since he was familiar with it. He
had to be less positive about Digna Maravillas signature since he could not be closely acquainted
with the same: for aught the record shows, the signing of the will was the only occasion he saw her
sign; he had no opportunity to study her signature before or after the execution of Exhibit "A."
Furthermore, he witnessed Dignas signing not less than fourteen years previously. To demand that
in identifying Dignas signature Mansueto should display a positiveness equal to the certainty shown
by him in recognizing his own, exceeds the bounds of the reasonable. The variation in the
expressions used by the witness is the best evidence that he was being candid and careful, and it is
a clear badge of truthfulness rather than the reverse.
The trial courts error gains no support from Mansuetos statement on cross-examination that "I
remember and (I) signed the will in the presence of all the witnesses and in the presence of attorney
Villanueva" (page 29, Volume 1, T.s.n., Amago). In the absence of an assurance that no one else
was present, this assertion does not really contradict Mansuetos testimony in chief that "I have read
the entire document before I signed it in the presence of the other witnesses, Digna Maravilla and
Attorney Villanueva" (t.s.n., Amago, Volume 1, pages 18-19). It is well to note that the cross
examiner did not ask Mansueto if no one else besides those mentioned by him had seen him sign.
Any contradiction inferred from both statements is purely conjectural; it did not come from the
witness and is insufficient to impeach his veracity, the difference in the answers being due to no
more than an accidental lapse of memory. A will may be allowed even if some witnesses not
remember having attested it, if other evidence satisfactorily show due execution (V. Act 190, Section

632), and that failure of witness to identify his signature does not bar probate. 21
That Mansueto, Hernaez and Buenaflor, together with the testatrix and the lawyer, sat next to one
another around one table when the will was signed is clearly established by the uncontradicted
testimony of both attorney Villanueva and Herminio Maravilla; and that detail proves beyond doubt
that each one of the parties concerned did sign in the presence of all the others. It should be
remembered, in this connection, that the test is not whether a witness did see the signing of the will
but whether he was in a position to see if he chose to do so. 22
The trial court rejected the evidence of both Herminio Maravilla and Manuel Villanueva, giving as a
reason that they were biased and interested in having the probate succeed. The reasoning is not
warranted: for Herminio Maravilla certainly stood to gain more under the previous will of his wife
(Exhibit "G") where he was made the sole beneficiary, As to attorney Villanueva, while he had been
a friend of Herminio from boyhood, he also had been the family lawyer, and his intervention in the
execution of the will of one of his clients became inevitable, for it is not to be expected that the
testatrix should call upon a stranger for the purpose. If Villanueva wished to perjure in favor of
Herminio, all he needed was to color his testimony against the due execution of the will (Exhibit "A")
and not in favor thereof, since, as previously observed, Dignas first will (Exhibit "G") was more
advantageous to the widower.
We find it difficult to understand the trial courts distrust of a lawyer who did no more than discharge
his professional duty, or its readiness to attribute improper motives to proponents witnesses. This
Court, in Sotelo v. Luzan, 59 Phil. 908, has remarked that
"It is hardly conceivable that any attorney of any standing would risk his professional reputation by
falsifying a will and then go before a court and give false testimony."cralaw virtua1aw library
And in the Fernandez v. Tantoco, 49 Phil. 380, 385, We ruled:jgc:chanrobles.com.ph
"In weighing the testimony of the attesting witnesses to a will, the statements of a competent
attorney, who has been charged with the responsibility of seeing to the proper execution of the
instrument, is entitled to greater weight than the testimony of a person casually called to participate
in the act, supposing of course that no motive is revealed that should induce the attorney to
prevaricate. The reason is that the mind of the attorney, being conversant with the requisites of
proper execution of the instrument, is more likely to become fixed on details, and he is more likely
than other persons to retain those incidents in his memory." (Italics supplied)
Appellees endeavoured to sustain the courts refusal to probate the will by referring to the evidence
of their witness Marino Tupas, a man of "no permanent job", 23 who narrated that on the last week
of September, 1944 one Mariano Buenaflor had been introduced to him by one Lt. Garaton at his
guerrilla outpost in Montalban and described as a man wanted by the Japanese. Tupas patently
exaggerated testimony is that this Buenaflor stayed with him at his outpost camp until January,
1945, living and sleeping with him, and was never for a single moment out of his sight. 24 Why a
civilian refugee should remain at a guerrilla outpost for four months; without engaging in any
particular helpful activity on his part, was not explained. Shown photographs and asked to identify
Buenaflor, Tupas hedged by pleading that the Buenaflor who stayed with him had a long beard.
Thus, oppositor-appellees reverse alibi for the instrumental witness, Mariano Buenaflor, was not
only patently mendacious but did not establish any reliable connection between the instrumental
witness of Dignas will and the Buenaflor who, according to Tupas, stuck to him as a burr in 1944.
No wonder the trial court gave no credit to such evidence.
Oppositors attempts to establish that the testatrix Digna Maravilla was mentally incompetent to
validly execute the will in question met no better fate in the court below. They introduced one

Eufrocina Berja who qualified Digna Maravilla as insane because she saw Digna Maravilla acting
strangely one morning in 1921 (23 years before the will was executed). In Berjas own words
"Would you not call a person insane who is waving a bunch of flowers and singing along a road,
especially taking into consideration their reputation in the Community?" (t.s.n., 21 May 1959, page
19)
Even if to this ridiculous appraisal were to be added the fact that (according to this witness) Digna
saw her in 1946, but would not answer her questions and "was in a deep thought (sic) and her
tongue was coming out of her mouth" (Do., pages 14-15), her evidence would certainly not justify a
finding that Digna Maravilla was not competent to execute the testament in 1944. By Berjas
standards, any one could be held insane.
Nor is the case for the oppositors improved by the evidence of their witness Eleazar Lopez, who
asserted having visited his aunt, Digna Maravilla (whom he had not seen since he was four years
old), two days after the first bombing of Manila by the American planes in September, 1944. Lopez
claimed to have seen Digna on that occasion laughing and crying and then staring blankly at the
ceiling, without recognizing the witness; and that he visited her again toward mid-October of the
same year and she had worsened. 25 Coming from a nephew who expected to succeed if the will in
question * were denied probate, and who sought to become administrator of the estate, even
offering to resign from his position in the government if appointed, 26 this testimony of Lopez was
evidently colored by his monetary interest, thus leading to its correct discrediting by the trial court.
His recollection after 15 years of the alleged symptoms of his aunt is very suspicious, as it does not
even appear that Lopez at the time bothered to inquire from other persons what caused his aunts
alleged abnormal condition. Moreover, the courts duty to reconcile conflicts of evidence should lead
it to hold that the symptoms described by Lopez were due to a temporary disturbance of the nerves
caused by the unsettling effect of a bombardment not previously experienced, compatible with the
due execution of the will on 7 October 1944. As between the testimony of Lopez and that of attorney
Villanueva, who repeatedly visited and talked to the testatrix around the time her will was executed,
We have no hesitation in accepting the latters view that Digna Maravilla was competent to make the
will when it was signed. The law itself declares that
"To be of sound mind, it is not necessary that the testator be in full possession of all his reasoning
faculties or that his mind be wholly unbroken, unimpaired or unshattered by disease, injury or other
cause." (Civil Code, Article 799; Bugnao v. Ubag, 14 Phil. 163.)
We are satisfied that the preponderance of evidence is to the effect that the testament, Exhibit "A,"
was duly executed by a qualified testatrix and competent witnesses, in conformity with the statutory
requirements.
IN VIEW OF THE FOREGOING, the decree of the court below denying probate of the 1944 will of
Digna Maravilla (Exhibit "A") is reversed and the said testament is hereby ordered probated. Let the
records be returned to the Court of origin for further proceedings conformable to law. Costs against
oppositors-appellees.
Concepcion, C.J., Dizon, Zaldivar, Castro, Fernando, Teehankee, Barredo, Villamor and Makasiar,
JJ., concur.
Makalintal, J., did not take part.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION

G.R. No. 74695 September 14, 1993

In the Matter of the Probate of the Last Will and Testament of the Deceased Brigido Alvarado,
CESAR ALVARADO, petitioner,
vs.
HON. RAMON G. GAVIOLA, JR., Presiding Justice, HON. MA. ROSARIO QUETULIO LOSA and
HON. LEONOR INES LUCIANO, Associate Justices, Intermediate Appellate Court, First
Division (Civil Cases), and BAYANI MA. RINO, respondents.
Vicente R. Redor for petitioner.
Bayani Ma. Rino for and in his own behalf.

BELLOSILLO, J.:
Before us is an appeal from the Decision dated 11 April 1986 1 of the First Civil Cases Division of the
then Intermediate Appellate Court, now Court of Appeals, which affirmed the Order dated 27 June
1983 2 of the Regional Trial Court of Sta. Cruz, Laguna, admitting to probate the last will and
testament 3 with codicil 4 of the late Brigido Alvarado.
On 5 November 1977, the 79-year old Brigido Alvarado executed a notarial will entitled "Huling
Habilin" wherein he disinherited an illegitimate son (petitioner) and expressly revoked a previously
executed holographic will at the time awaiting probate before Branch 4 of the Regional Trial Court of
sta. Cruz, Laguna.
As testified to by the three instrumental witnesses, the notary public and by private respondent who
were present at the execution, the testator did not read the final draft of the will himself. Instead,
private respondent, as the lawyer who drafted the eight-paged document, read the same aloud in the
presence of the testator, the three instrumental witnesses and the notary public. The latter four
followed the reading with their own respective copies previously furnished them.
Meanwhile, Brigido's holographic will was subsequently admitted to probate on 9 December 1977.
On the 29th day of the same month, a codicil entitled "Kasulatan ng Pagbabago sa Ilang
Pagpapasiya na Nasasaad sa Huling Habilin na may Petsa Nobiembre 5, 1977 ni Brigido Alvarado"
was executed changing some dispositions in the notarial will to generate cash for the testator's eye
operation. Brigido was then suffering from glaucoma. But the disinheritance and revocatory clauses
were unchanged. As in the case of the notarial will, the testator did not personally read the final draft
of the codicil. Instead, it was private respondent who read it aloud in his presence and in the
presence of the three instrumental witnesses (same as those of the notarial will) and the notary
public who followed the reading using their own copies.

A petition for the probate of the notarial will and codicil was filed upon the testator's death on 3
January 1979 by private respondent as executor with the Court of First Instance, now Regional Trial
Court, of Siniloan, Laguna. 5 Petitioner, in turn, filed an Opposition on the following grounds: that the
will sought to be probated was not executed and attested as required by law; that the testator was
insane or otherwise mentally incapacitated to make a will at the time of its execution due to senility
and old age; that the will was executed under duress, or influence of fear and threats; that it was
procured by undue and improper pressure and influence on the part of the beneficiary who stands to
get the lion's share of the testator's estate; and lastly, that the signature of the testator was procured
by fraud or trick.
When the oppositor (petitioner) failed to substantiate the grounds relied upon in the Opposition, a
Probate Order was issued on 27 June 1983 from which an appeal was made to respondent court.
The main thrust of the appeal was that the deceased was blind within the meaning of the law at the
time his "Huling Habilin" and the codicil attached thereto was executed; that since the reading
required by Art. 808 of the Civil Code was admittedly not complied with, probate of the deceased's
last will and codicil should have been denied.
On 11 April 1986, the Court of Appeals rendered the decision under review with the following
findings: that Brigido Alvarado was not blind at the time his last will and codicil were executed; that
assuming his blindness, the reading requirement of Art. 808 was substantially complied with when
both documents were read aloud to the testator with each of the three instrumental witnesses and
the notary public following the reading with their respective copies of the instruments. The appellate
court then concluded that although Art. 808 was not followed to the letter, there was substantial
compliance since its purpose of making known to the testator the contents of the drafted will was
served.
The issues now before us can be stated thus: Was Brigido Alvarado blind for purpose of Art, 808 at
the time his "Huling Habilin" and its codicil were executed? If so, was the double-reading
requirement of said article complied with?
Regarding the first issue, there is no dispute on the following facts: Brigido Alvarado was not totally
blind at the time the will and codicil were executed. However, his vision on both eyes was only of
"counting fingers at three (3) feet" by reason of the glaucoma which he had been suffering from for
several years and even prior to his first consultation with an eye specialist on
14 December 1977.
The point of dispute is whether the foregoing circumstances would qualify Brigido as a "blind"
testator under Art. 808 which reads:
Art. 808. If the testator is blind, the will shall be read to him twice; once, by one of the
subscribing witnesses, and again, by the notary public before whom the will is
acknowledged.
Petitioner contends that although his father was not totally blind when the will and codicil were
executed, he can be so considered within the scope of the term as it is used in Art. 808. To support
his stand, petitioner presented before the trial court a medical certificate issued by Dr. Salvador R.
Salceda, Director of the Institute of Opthalmology (Philippine Eye Research Institute), 6 the contents
of which were interpreted in layman's terms by Dr. Ruperto Roasa, whose expertise was admitted by
private respondent. 7 Dr. Roasa explained that although the testator could visualize fingers at three
(3) feet, he could no longer read either printed or handwritten matters as of 14 December 1977, the
day of his first consultation. 8

On the other hand, the Court of Appeals, contrary to the medical testimony, held that the testator
could still read on the day the will and the codicil were executed but chose not to do so because of
"poor eyesight." 9 Since the testator was still capable of reading at that time, the court a quo
concluded that Art. 808 need not be complied with.
We agree with petitioner in this respect.
Regardless of respondent's staunch contention that the testator was still capable of reading at the
time his will and codicil were prepared, the fact remains and this was testified to by his witnesses,
that Brigido did not do so because of his "poor," 10 "defective," 11 or "blurred" 12 vision making it
necessary for private respondent to do the actual reading for him.
The following pronouncement in Garcia vs. Vasquez 13 provides an insight into the scope of the term
"blindness" as used in Art. 808, to wit:
The rationale behind the requirement of reading the will to the testator if he is blind or
incapable of reading the will himself (as when he is illiterate), is to make the
provisions thereof known to him, so that he may be able to object if they are not in
accordance with his wishes . . .
Clear from the foregoing is that Art. 808 applies not only to blind testators but also to those who, for
one reason or another, are "incapable of reading the(ir) will(s)." Since Brigido Alvarado was
incapable of reading the final drafts of his will and codicil on the separate occasions of their
execution due to his "poor," "defective," or "blurred" vision, there can be no other course for us but to
conclude that Brigido Alvarado comes within the scope of the term "blind" as it is used in Art. 808.
Unless the contents were read to him, he had no way of ascertaining whether or not the lawyer who
drafted the will and codicil did so confortably with his instructions. Hence, to consider his will as
validly executed and entitled to probate, it is essential that we ascertain whether Art. 808 had been
complied with.
Article 808 requires that in case of testators like Brigido Alvarado, the will shall be read twice; once,
by one of the instrumental witnesses and, again, by the notary public before whom the will was
acknowledged. The purpose is to make known to the incapacitated testator the contents of the
document before signing and to give him an opportunity to object if anything is contrary to his
instructions.
That Art. 808 was not followed strictly is beyond cavil. Instead of the notary public and an
instrumental witness, it was the lawyer (private respondent) who drafted the eight-paged will and the
five-paged codicil who read the same aloud to the testator, and read them only once, not twice as
Art. 808 requires.
Private respondent however insists that there was substantial compliance and that the single reading
suffices for purposes of the law. On the other hand, petitioner maintains that the only valid
compliance or compliance to the letter and since it is admitted that neither the notary public nor an
instrumental witness read the contents of the will and codicil to Brigido, probate of the latter's will and
codicil should have been disallowed.
We sustain private respondent's stand and necessarily, the petition must be denied.
This Court has held in a number of occasions that substantial compliance is acceptable where the
purpose of the law has been satisfied, the reason being that the solemnities surrounding the

execution of wills are intended to protect the testator from all kinds of fraud and trickery but are
never intended to be so rigid and inflexible as to destroy the testamentary privilege. 14
In the case at bar, private respondent read the testator's will and codicil aloud in the presence of the
testator, his three instrumental witnesses, and the notary public. Prior and subsequent thereto, the
testator affirmed, upon being asked, that the contents read corresponded with his instructions. Only
then did the signing and acknowledgement take place. There is no evidence, and petitioner does not
so allege, that the contents of the will and codicil were not sufficiently made known and
communicated to the testator. On the contrary, with respect to the "Huling Habilin," the day of the
execution was not the first time that Brigido had affirmed the truth and authenticity of the contents of
the draft. The uncontradicted testimony of Atty. Rino is that Brigido Alvarado already acknowledged
that the will was drafted in accordance with his expressed wishes even prior to 5 November 1977
when Atty. Rino went to the testator's residence precisely for the purpose of securing his conformity
to the draft. 15
Moreover, it was not only Atty. Rino who read the documents on
5 November and 29 December 1977. The notary public and the three instrumental witnesses
likewise read the will and codicil, albeit silently. Afterwards, Atty. Nonia de la Pena (the notary public)
and Dr. Crescente O. Evidente (one of the three instrumental witnesses and the testator's physician)
asked the testator whether the contents of the document were of his own free will. Brigido answered
in the affirmative. 16 With four persons following the reading word for word with their own copies, it
can be safely concluded that the testator was reasonably assured that what was read to him (those
which he affirmed were in accordance with his instructions), were the terms actually appearing on
the typewritten documents. This is especially true when we consider the fact that the three
instrumental witnesses were persons known to the testator, one being his physician (Dr. Evidente)
and another (Potenciano C. Ranieses) being known to him since childhood.
The spirit behind the law was served though the letter was not. Although there should be strict
compliance with the substantial requirements of the law in order to insure the authenticity of the will,
the formal imperfections should be brushed aside when they do not affect its purpose and which,
when taken into account, may only defeat the testator's will. 17
As a final word to convince petitioner of the propriety of the trial court's Probate Order and its
affirmance by the Court of Appeals, we quote the following pronouncement in Abangan v. Abangan,
18
to wit:
The object of the solemnities surrounding the execution of wills is to close the door
against bad faith and fraud, to avoid the substitution of wills and testaments and to
guaranty their truth and authenticity. Therefore the laws on the subject should be
interpreted in such a way as to attain these primordial ends. But, on the other hand,
also one must not lose sight of the fact that it is not the object of the law to restrain
and curtail the exercise of the right to make a will. So when an interpretation already
given assures such ends, any other interpretation whatsoever, that adds nothing but
demands more requisites entirely unnecessary, useless and frustrative of the
testator's will, must be disregarded (emphasis supplied).
Brigido Alvarado had expressed his last wishes in clear and unmistakable terms in his "Huling
Habilin" and the codicil attached thereto. We are unwilling to cast these aside fro the mere reason
that a legal requirement intended for his protection was not followed strictly when such compliance
had been rendered unnecessary by the fact that the purpose of the law, i.e., to make known to the
incapacitated testator the contents of the draft of his will, had already been accomplished. To
reiterate, substantial compliance suffices where the purpose has been served.

WHEREFORE, the petition is DENIED and the assailed Decision of respondent Court of Appeals
dated 11 April 1986 is AFFIRMED. Considering the length of time that this case has remained
pending, this decision is immediately executory. Costs against petitioner.
SO ORDERED.
Cruz, Grio-Aquino, Davide, Jr. and Quiason, JJ., concur.