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Succession 1

G.R. No. L-40207

September 28, 1984

ROSA K. KALAW, petitioner,


vs.
HON. JUDGE BENJAMIN RELOVA, Presiding Judge of the CFI of Batangas, Branch VI, Lipa City, and GREGORIO K. KALAW, respondents.
Leandro H. Fernandez for petitioner.
Antonio Quintos and Jose M. Yacat for respondents.

MELENCIO-HERRERA, J.:
On September 1, 1971, private respondent GREGORIO K. KALAW, claiming to be the sole heir of his deceased sister, Natividad K. Kalaw, filed a
petition before the Court of First Instance of Batangas, Branch VI, Lipa City, for the probate of her holographic Will executed on December 24, 1968.
The holographic Will reads in full as follows:
My Last will and Testament
In the name of God, Amen.
I Natividad K. Kalaw Filipino 63years of age, single, and a resident of Lipa City, being of sound and disposing mind and memory, do hereby declare
thus to be my last will and testament.
1.
It is my will that I'll be burried in the cemetery of the catholic church of Lipa City. In accordance with the rights of said Church, and that my
executrix hereinafter named provide and erect at the expose of my state a suitable monument to perpetuate my memory.
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The holographic Will, as first written, named ROSA K. Kalaw, a sister of the testatrix as her sole heir. Hence, on November 10, 1971, petitioner
ROSA K. Kalaw opposed probate alleging, in substance, that the holographic Will contained alterations, corrections, and insertions without the
proper authentication by the full signature of the testatrix as required by Article 814 of the Civil Code reading:
Art. 814. In case of any insertion, cancellation, erasure or alteration in a holographic will the testator must authenticate the same by his full
signature.
ROSA's position was that the holographic Will, as first written, should be given effect and probated so that she could be the sole heir thereunder.
After trial, respondent Judge denied probate in an Order, dated September 3, 197 3, reading in part:
The document Exhibit "C" was submitted to the National Bureau of Investigation for examination. The NBI reported that the handwriting, the
signature, the insertions and/or additions and the initial were made by one and the same person. Consequently, Exhibit "C" was the handwriting of
the decedent, Natividad K. Kalaw. The only question is whether the win, Exhibit 'C', should be admitted to probate although the alterations and/or
insertions or additions above-mentioned were not authenticated by the full signature of the testatrix pursuant to Art. 814 of the Civil Code. The
petitioner contends that the oppositors are estopped to assert the provision of Art. 814 on the ground that they themselves agreed thru their counsel
to submit the Document to the NBI FOR EXAMINATIONS. This is untenable. The parties did not agree, nor was it impliedly understood, that the
oppositors would be in estoppel.
The Court finds, therefore, that the provision of Article 814 of the Civil Code is applicable to Exhibit "C". Finding the insertions, alterations and/or
additions in Exhibit "C" not to be authenticated by the full signature of the testatrix Natividad K. Kalaw, the Court will deny the admission to probate
of Exhibit "C".
WHEREFORE, the petition to probate Exhibit "C" as the holographic will of Natividad K. Kalaw is hereby denied.
SO ORDERED.
From that Order, GREGORIO moved for reconsideration arguing that since the alterations and/or insertions were the testatrix, the denial to probate
of her holographic Will would be contrary to her right of testamentary disposition. Reconsideration was denied in an Order, dated November 2,
1973, on the ground that "Article 814 of the Civil Code being , clear and explicit, (it) requires no necessity for interpretation."
From that Order, dated September 3, 1973, denying probate, and the Order dated November 2, 1973 denying reconsideration, ROSA filed this
Petition for Review on certiorari on the sole legal question of whether or not the original unaltered text after subsequent alterations and insertions
were voided by the Trial Court for lack of authentication by the full signature of the testatrix, should be probated or not, with her as sole heir.
Ordinarily, when a number of erasures, corrections, and interlineations made by the testator in a holographic Will litem not been noted under his
signature, ... the Will is not thereby invalidated as a whole, but at most only as respects the particular words erased, corrected or interlined.1
Manresa gave an Identical commentary when he said "la omision de la salvedad no anula el testamento, segun la regla de jurisprudencia
establecida en la sentencia de 4 de Abril de 1895." 2
However, when as in this case, the holographic Will in dispute had only one substantial provision, which was altered by substituting the original heir
with another, but which alteration did not carry the requisite of full authentication by the full signature of the testator, the effect must be that the
entire Will is voided or revoked for the simple reason that nothing remains in the Will after that which could remain valid. To state that the Will as first
written should be given efficacy is to disregard the seeming change of mind of the testatrix. But that change of mind can neither be given effect
because she failed to authenticate it in the manner required by law by affixing her full signature,
The ruling in Velasco, supra, must be held confined to such insertions, cancellations, erasures or alterations in a holographic Will, which affect only
the efficacy of the altered words themselves but not the essence and validity of the Will itself. As it is, with the erasures, cancellations and
alterations made by the testatrix herein, her real intention cannot be determined with certitude. As Manresa had stated in his commentary on Article
688 of the Spanish Civil Code, whence Article 814 of the new Civil Code was derived:

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... No infringe lo dispuesto en este articulo del Codigo (el 688) la sentencia que no declara la nulidad de un testamento olografo que contenga
palabras tachadas, enmendadas o entre renglones no salvadas por el testador bajo su firnia segun previene el parrafo tercero del mismo, porque,
en realidad, tal omision solo puede afectar a la validez o eficacia de tales palabras, y nunca al testamento mismo, ya por estar esa disposicion en
parrafo aparte de aquel que determine las condiciones necesarias para la validez del testamento olografo, ya porque, de admitir lo contrario, se
Ilegaria al absurdo de que pequefias enmiendas no salvadas, que en nada afectasen a la parte esencial y respectiva del testamento, vinieran a
anular este, y ya porque el precepto contenido en dicho parrafo ha de entenderse en perfecta armonia y congruencia con el art. 26 de la ley del
Notariado que declara nulas las adiciones apostillas entrerrenglonados, raspaduras y tachados en las escrituras matrices, siempre que no se
salven en la forma prevenida, paro no el documento que las contenga, y con mayor motivo cuando las palabras enmendadas, tachadas, o
entrerrenglonadas no tengan importancia ni susciten duda alguna acerca del pensamiento del testador, o constituyan meros accidentes de
ortografia o de purez escrituraria, sin trascendencia alguna(l).
Mas para que sea aplicable la doctrina de excepcion contenida en este ultimo fallo, es preciso que las tachaduras, enmiendas o entrerrenglonados
sin salvar saan de pala bras que no afecter4 alteren ni uarien de modo substancial la express voluntad del testador manifiesta en el documento. Asi
lo advierte la sentencia de 29 de Noviembre de 1916, que declara nulo un testamento olografo por no estar salvada por el testador la enmienda del
guarismo ultimo del ao en que fue extendido 3 (Emphasis ours).
WHEREFORE, this Petition is hereby dismissed and the Decision of respondent Judge, dated September 3, 1973, is hereby affirmed in toto. No
costs.
SO ORDERED.

Succession 3
G.R. No. 106720

September 15, 1994

SPOUSES ROBERTO AND THELMA AJERO, petitioners,


vs.
THE COURT OF APPEALS AND CLEMENTE SAND, respondents.
Miguel D. Larida for petitioners.
Montilla Law Office for private respondent.

PUNO, J.:
This is an appeal by certiorari from the Decision of the Court of
Appeals 1 in CA-G.R. CV No. 22840, dated March 30, 1992, the dispositive portion of which reads;
PREMISES CONSIDERED, the questioned decision of November 19, 1988 of the trial court is hereby REVERSED and SET ASIDE, and the petition
for probate is hereby DISMISSED. No costs.
The earlier Decision was rendered by the RTC of Quezon City, Branch 94, 2 in Sp. Proc. No. Q-37171, and the instrument submitted for probate is
the holographic will of the late Annie Sand, who died on November 25, 1982.
In the will, decedent named as devisees, the following: petitioners Roberto and Thelma Ajero, private respondent Clemente Sand, Meriam S. Arong,
Leah Sand, Lilia Sand, Edgar Sand, Fe Sand, Lisa S. Sand, and Dr. Jose Ajero, Sr., and their children.
On January 20, 1983, petitioners instituted Sp. Proc. No. Q-37171, for allowance of decedent's holographic will. They alleged that at the time of its
execution, she was of sound and disposing mind, not acting under duress, fraud or undue influence, and was in every respect capacitated to
dispose of her estate by will.
Private respondent opposed the petition on the grounds that: neither the testament's body nor the signature therein was in decedent's handwriting;
it contained alterations and corrections which were not duly signed by decedent; and, the will was procured by petitioners through improper
pressure and undue influence. The petition was likewise opposed by Dr. Jose Ajero. He contested the disposition in the will of a house and lot
located in Cabadbaran, Agusan Del Norte. He claimed that said property could not be conveyed by decedent in its entirety, as she was not its sole
owner.
Notwithstanding the oppositions, the trial court admitted the decedent's holographic will to probate. It found, inter alia:
Considering then that the probate proceedings herein must decide only the question of identity of the will, its due execution and the testamentary
capacity of the testatrix, this probate court finds no reason at all for the disallowance of the will for its failure to comply with the formalities prescribed
by law nor for lack of testamentary capacity of the testatrix.
For one, no evidence was presented to show that the will in question is different from the will actually executed by the testatrix. The only objections
raised by the oppositors . . . are that the will was not written in the handwriting of the testatrix which properly refers to the question of its due
execution, and not to the question of identity of will. No other will was alleged to have been executed by the testatrix other than the will herein
presented. Hence, in the light of the evidence adduced, the identity of the will presented for probate must be accepted, i.e., the will submitted in
Court must be deemed to be the will actually executed by the testatrix.
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While the fact that it was entirely written, dated and signed in the handwriting of the testatrix has been disputed, the petitioners, however, have
satisfactorily shown in Court that the holographic will in question was indeed written entirely, dated and signed in the handwriting of the testatrix.
Three (3) witnesses who have convincingly shown knowledge of the handwriting of the testatrix have been presented and have explicitly and
categorically identified the handwriting with which the holographic will in question was written to be the genuine handwriting and signature of the
testatrix. Given then the aforesaid evidence, the requirement of the law that the holographic will be entirely written, dated and signed in the
handwriting of the testatrix has been complied with.
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As to the question of the testamentary capacity of the testratix, (private respondent) Clemente Sand himself has testified in Court that the testatrix
was completely in her sound mind when he visited her during her birthday celebration in 1981, at or around which time the holographic will in
question was executed by the testatrix. To be of sound mind, it is sufficient that the testatrix, at the time of making the will, knew the value of the
estate to be disposed of, the proper object of her bounty, and the character of the testamentary act . . . The will itself shows that the testatrix even
had detailed knowledge of the nature of her estate. She even identified the lot number and square meters of the lots she had conveyed by will. The
objects of her bounty were likewise identified explicitly. And considering that she had even written a nursing book which contained the law and
jurisprudence on will and succession, there is more than sufficient showing that she knows the character of the testamentary act.
In this wise, the question of identity of the will, its due execution and the testamentary capacity of the testatrix has to be resolved in favor of the
allowance of probate of the will submitted herein.
Likewise, no evidence was presented to show sufficient reason for the disallowance of herein holographic will. While it was alleged that the said will
was procured by undue and improper pressure and influence on the part of the beneficiary or of some other person, the evidence adduced have not
shown any instance where improper pressure or influence was exerted on the testatrix. (Private respondent) Clemente Sand has testified that the
testatrix was still alert at the time of the execution of the will, i.e., at or around the time of her birth anniversary celebration in 1981. It was also
established that she is a very intelligent person and has a mind of her own. Her independence of character and to some extent, her sense of
superiority, which has been testified to in Court, all show the unlikelihood of her being unduly influenced or improperly pressured to make the
aforesaid will. It must be noted that the undue influence or improper pressure in question herein only refer to the making of a will and not as to the
specific testamentary provisions therein which is the proper subject of another proceeding. Hence, under the circumstances, this Court cannot find
convincing reason for the disallowance of the will herein.

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Considering then that it is a well-established doctrine in the law on succession that in case of doubt, testate succession should be preferred over
intestate succession, and the fact that no convincing grounds were presented and proven for the disallowance of the holographic will of the late
Annie Sand, the aforesaid will submitted herein must be admitted to probate. 3 (Citations omitted.)
On appeal, said Decision was reversed, and the petition for probate of decedent's will was dismissed. The Court of Appeals found that, "the
holographic will fails to meet the requirements for its validity." 4 It held that the decedent did not comply with Articles 813 and 814 of the New Civil
Code, which read, as follows:
Art. 813: When a number of dispositions appearing in a holographic will are signed without being dated, and the last disposition has a signature
and date, such date validates the dispositions preceding it, whatever be the time of prior dispositions.
Art. 814: In case of insertion, cancellation, erasure or alteration in a holographic will, the testator must authenticate the same by his full signature.
It alluded to certain dispositions in the will which were either unsigned and undated, or signed but not dated. It also found that the erasures,
alterations and cancellations made thereon had not been authenticated by decedent.
Thus, this appeal which is impressed with merit.
Section 9, Rule 76 of the Rules of Court provides that will shall be disallowed in any of the following cases:
(a)

If not executed and attested as required by law;

(b)

If the testator was insane, or otherwise mentally incapable to make a will, at the time of its execution;

(c)

If it was executed under duress, or the influence of fear, or threats;

(d)

If it was procured by undue and improper pressure and influence, on the part of the beneficiary, or of some other person for his benefit;

(e)
If the signature of the testator was procured by fraud or trick, and he did not intend that the instrument should be his will at the time of
fixing his signature thereto.
In the same vein, Article 839 of the New Civil Code reads:
Art. 839: The will shall be disallowed in any of the following cases;
(1)

If the formalities required by law have not been complied with;

(2)

If the testator was insane, or otherwise mentally incapable of making a will, at the time of its execution;

(3)

If it was executed through force or under duress, or the influence of fear, or threats;

(4)

If it was procured by undue and improper pressure and influence, on the part of the beneficiary or of some other person;

(5)

If the signature of the testator was procured by fraud;

(6)
thereto.

If the testator acted by mistake or did not intend that the instrument he signed should be his will at the time of affixing his signature

These lists are exclusive; no other grounds can serve to disallow a will. 5 Thus, in a petition to admit a holographic will to probate, the only issues to
be resolved are: (1) whether the instrument submitted is, indeed, the decedent's last will and testament; (2) whether said will was executed in
accordance with the formalities prescribed by law; (3) whether the decedent had the necessary testamentary capacity at the time the will was
executed; and, (4) whether the execution of the will and its signing were the voluntary acts of the decedent. 6
In the case at bench, respondent court held that the holographic will of Anne Sand was not executed in accordance with the formalities prescribed
by law. It held that Articles 813 and 814 of the New Civil Code, ante, were not complied with, hence, it disallowed the probate of said will. This is
erroneous.
We reiterate what we held in Abangan vs. Abangan, 40 Phil. 476, 479 (1919), that:
The object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to avoid substitution of wills and
testaments and to guaranty their truth and authenticity. Therefore, the laws on this subject should be interpreted in such a way as to attain these
primordial ends. But, on the other hand, also one must not lose sight of the fact that it is not the object of the law to restrain and curtail the exercise
of the right to make a will. So when an interpretation already given assures such ends, any other interpretation whatsoever, that adds nothing but
demands more requisites entirely unnecessary, useless and frustrative of the testator's last will, must be disregarded.
For purposes of probating non-holographic wills, these formal solemnities include the subscription, attestation, and acknowledgment requirements
under Articles 805 and 806 of the New Civil Code.
In the case of holographic wills, on the other hand, what assures authenticity is the requirement that they be totally autographic or handwritten by
the testator himself, 7 as provided under Article 810 of the New Civil Code, thus:
A person may execute a holographic will which must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no
other form, and may be made in or out of the Philippines, and need not be witnessed. (Emphasis supplied.)
Failure to strictly observe other formalities will not result in the disallowance of a holographic will that is unquestionably handwritten by the testator.
A reading of Article 813 of the New Civil Code shows that its requirement affects the validity of the dispositions contained in the holographic will, but
not its probate. If the testator fails to sign and date some of the dispositions, the result is that these dispositions cannot be effectuated. Such failure,
however, does not render the whole testament void.
Likewise, a holographic will can still be admitted to probate, notwithstanding non-compliance with the provisions of Article 814. In the case of Kalaw
vs. Relova 132 SCRA 237 242 (1984), this Court held:

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Ordinarily, when a number of erasures, corrections, and interlineations made by the testator in a holographic Will have not been noted under his
signature, . . . the Will is not thereby invalidated as a whole, but at most only as respects the particular words erased, corrected or interlined.
Manresa gave an identical commentary when he said "la omission de la salvedad no anula el testamento, segun la regla de jurisprudencia
establecida en la sentencia de 4 de Abril de 1985." 8 (Citations omitted.)
Thus, unless the unauthenticated alterations, cancellations or insertions were made on the date of the holographic will or on testator's signature, 9
their presence does not invalidate the will itself. 10 The lack of authentication will only result in disallowance of such changes.
It is also proper to note that the requirements of authentication of changes and signing and dating of dispositions appear in provisions (Articles 813
and 814) separate from that which provides for the necessary conditions for the validity of the holographic will (Article 810). The distinction can be
traced to Articles 678 and 688 of the Spanish Civil Code, from which the present provisions covering holographic wills are taken. They read as
follows:
Art. 678: A will is called holographic when the testator writes it himself in the form and with the requisites required in Article 688.
Art. 688: Holographic wills may be executed only by persons of full age.
In order that the will be valid it must be drawn on stamped paper corresponding to the year of its execution, written in its entirety by the testator and
signed by him, and must contain a statement of the year, month and day of its execution.
If it should contain any erased, corrected, or interlined words, the testator must identify them over his signature.
Foreigners may execute holographic wills in their own language.
This separation and distinction adds support to the interpretation that only the requirements of Article 810 of the New Civil Code and not those
found in Articles 813 and 814 of the same Code are essential to the probate of a holographic will.
The Court of Appeals further held that decedent Annie Sand could not validly dispose of the house and lot located in Cabadbaran, Agusan del
Norte, in its entirety. This is correct and must be affirmed.
As a general rule, courts in probate proceedings are limited to pass only upon the extrinsic validity of the will sought to be probated. However, in
exceptional instances, courts are not powerless to do what the situation constrains them to do, and pass upon certain provisions of the will. 11 In
the case at bench, decedent herself indubitably stated in her holographic will that the Cabadbaran property is in the name of her late father, John H.
Sand (which led oppositor Dr. Jose Ajero to question her conveyance of the same in its entirety). Thus, as correctly held by respondent court, she
cannot validly dispose of the whole property, which she shares with her father's other heirs.
IN VIEW WHEREOF, the instant petition is GRANTED. The Decision of the Court of Appeals in CA-G.R. CV No. 22840, dated March 30, 1992, is
REVERSED and SET ASIDE, except with respect to the invalidity of the disposition of the entire house and lot in Cabadbaran, Agusan del Norte.
The Decision of the Regional Trial Court of Quezon City, Branch 94 in Sp. Proc. No. Q-37171, dated November 19, 1988, admitting to probate the
holographic will of decedent Annie Sand, is hereby REINSTATED, with the above qualification as regards the Cabadbaran property. No costs.
SO ORDERED.

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G.R. No. L-26306

April 27, 1988

TESTATE ESTATE OF THE LATE GREGORIO VENTURA MARIA VENTURA, executrix- appellant, MIGUEL VENTURA and JUANA CARDONA,
heirs-appellants,
vs.
GREGORIA VENTURA and HER HUSBAND, EXEQUIEL VICTORIO, MERCEDES VENTURA and HER HUSBAND, PEDRO D. CORPUZ,
oppositors-appellees.

PARAS, J.:
This is an appeal from the order of the Court of First Instance of Nueva Ecija, Guimba, Branch V in Special Proceedings No. 812, Testate of the late
Gregorio Venture, dated October 5, 1965, removing the appellant Maria Ventura as executrix and administratrix of the estate of the late Gregorio
Ventura, and in her place appointing the appellees Mercedes Ventura and Gregoria Ventura as joint administratrices of the estate. (Record on
Appeal, pp. 120-131.)
Appellant Maria Ventura is the illegitimate daughter of the deceased Gregorio Ventura while Miguel Ventura and Juana Cardona are his son and
saving spouse who are also the brother and mother of Maria Ventura. On the other hand, appellees Mercedes and Gregoria Ventura are the
deceased's legitimate children with his former wife, the late Paulina Simpliciano (Record on Appeal, p. 122) but the paternity of appellees was
denied by the deceased in his will (Record on Appeal, p. 4).
On December 14,1953, Gregorio Ventura filed a petition for the probate of his will which did not include the appellees and the petition was docketed
as Special Proceedings No. 812 (Record on Appeal, pp. 1-3). In the said will, the appellant Maria Ventura, although an illegitimate child, was named
and appointed by the testator to be the executrix of his will and the administratrix of his estate (Record on Appeal, p. 7).
In due course, said will was admitted to probate on January 14,1954 (Record on Appeal, pp. 8-10). Gregorio Ventura died on September 26,1955.
On October 10, 1955, the appellant Maria Ventura filed a motion for her appointment as executrix and for the issuance of letters testamentary in her
favor (Record on Appeal, pp. 10-11). On October 17, 1955, Maria Ventura was appointed executrix and the corresponding letters testamentary was
issued in her favor (Record on Appeal, pp. 11-12).
On or about July 26, 1956, Maria Ventura submitted an inventory of the estate of Gregorio Ventura (Record on Appeal, pp. 12-20).
On June 17,1960, she filed her accounts of administration for the years 1955 to 1960, inclusive. (Record on Appeal, pp. 20-27). Said account of
administration was opposed by the spouses Mercedes Ventura and Pedro Corpuz on July 25, 1960 (Record on Appeal, pp. 27-33) and by Exequiel
Victorio and Gregoria Ventura on August 5,1963 (Record on Appeal, pp. 46-50). Both oppositions assailed the veracity of the report as not reflecting
the true income of the estate and the expenses which allegedly are not administration expenses. But on January 25, 1961, Maria Ventura filed a
motion to hold in abeyance the approval of the accounts of administration or to have their approval without the opposition of the spouses Mercedes
Ventura and Pedro Corpuz and Gregoria Ventura and Exequiel Victorio on the ground that the question of the paternity of Mercedes Ventura and
Gregoria Ventura is still pending final determination before the Supreme Court and that should they be adjudged the adulterous children of testator,
as claimed, they are not entitled to inherit nor to oppose the approval of the counts of administration (Record on Appeals, pp. 33-36). Spouses
Mercedes Ventura and Pedro Corpuz filed on February 2, 1961 their opposition to the motion to hold in abeyance the approval of the accounts of
administration on the ground that Mercedes and Gregoria Ventura had already been declared by the Court of First Instance in Civil Cases No. 1064
and 1476, which cases are supposed to be pending before the Supreme Court, as the legitimate children of Gregorio Ventura, hence, they have
reason to protect their interest (Record on Appeal, pp. 36-39). On February 9,1961, the motion to hold in abeyance the approval of the accounts
was denied (Record on Appeal, pp. 39-40).
It appears that on July 12, 1963, the Court set the case for pre-trial on August 7, 1963 in connection with the accounts of the executrix Maria
Ventura dated June 17, 1960 and the Motion to Annul Provision of Will dated July 14,1962 of Mercedes Ventura (Record on Appeal, p. 45).
On October 22, 1963, four motions were filed by Mercedes Ventura and Gregoria Ventura, namely: (1) motion to remove the executrix Maria
Ventura which was supplemented on April 27, 1965; (2) motion to require her to deposit the harvest of palay of the property under administration in
a bonded warehouse; (3) motion to render an accounting of the proceeds and expenses of Administration; and (4) motion to require her to include in
the inventory of the estate certain excluded properties (Record on Appeal, pp. 50-53; 71). An opposition to said motions was filed by the heirs Juana
Cardona and Miguel Ventura and by the executrix Maria Ventura herself (Record on Appeal, pp. 56-61; 61-70 and 71).
On motion of counsel for Exequiel Victorio and Gregoria Ventura the joint motions to require an Up-to-date Accounting and to Require Executrix
Ventura to Include Excluded Properties in Her Inventory were ordered withdrawn (Order dated February 2, 1965, Record on Appeal, p. 73). The
other two motions were however set for hearing.
The grounds of aforesaid joint motions to remove the executrix Maria Ventura are: (1) that she is grossly incompetent; (2) that she has maliciously
and purposely concealed certain properties of the estate in the inventory; (3) that she is merely an illegitimate daughter who can have no
harmonious relations with the appellees; (4) that the executrix has neglected to render her accounts and failed to comply with the Order of the Court
of December 12, 1963, requiring her to file her accounts of administration for the years 1961 to 1963 (Record on Appeal, pp. 70 and 75-76) and the
Order of June 11, 1964, reiterating aforesaid Order of December 12, 1963 (Record on Appeal, p. 76); and (5) that she is with permanent physical
defect hindering her from efficiently performing her duties as an executrix (Record on Appeal, pp. 50-53 and 74-79).
On May 17, 1965, the executrix Maria Ventura finally submitted her accounts of administration covering the period 1961 to 1965 (Record on Appeal,
pp. 79-84) which were again opposed by the spouses Exequiel Victorio and Gregoria Ventura on September 21, 1965 and by the spouses
Mercedes Ventura and Pedro Corpuz on September 29, 1965 (Record on Appeal, pp. 106-120). On June 2, 1965, the executrix filed her
supplemental opposition to the aforesaid four motions, and prayed that the joint supplemental motion to remove the executrix be denied or held in
abeyance until after the status of Mercedes and Gregoria Ventura as heirs of the testator is finally decided (Record on Appeal, pp. 85-1 01). On
June 3, 1965, the Court, finding that the estate taxes have not been paid, ordered the administratrix to pay the same within thirty (30) days. On
September 13, 1965, the lower court denied the suspension of the proceedings and deferred the resolution of the joint motion to remove executrix
Maria Ventura until after the examination of the physical fitness of said executrix to undertake her duties as such. Also, it ordered the deposit of all
palay to be harvested in the next agricultural year and subsequent years to be deposited in a bonded warehouse to be selected by the Court and
the palay so deposited shall not be withdrawn without the express permission of the Court (Record on Appeal, pp. 103-105). On September 21,
1965, spouses Exequiel Victorio and Gregoria Ventura filed their opposition to the accounts of administration of Maria Ventura dated May 17, 1965,
while that of spouses Mercedes Ventura and Pedro Corpuz was filed on September 29, 1965, both oppositions alleging among others that said
accounts do not reflect the true and actual income of the estate and that the expenses reported thereunder are fake, exhorbitant and speculative
(Record on Appeal, pp. 106-120).

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On October 5, 1965, the court a quo, finding that the executrix Maria Ventura has squandered the funds of the estate, was inefficient and
incompetent, has failed to comply with the orders of the Court in the matter of presenting up-to-date statements of accounts and neglected to pay
the real estate taxes of the estate, rendered the questioned decision, the dispositive portion of which reads:
WHEREFORE, Maria Ventura is hereby removed as executrix and administratrix of the estate and in her place Mercedes Ventura and Gregoria
Ventura are hereby appointed joint a tratrices of the estate upon filing by each of them of a bond of P 7,000.00. Let letters of administration be
issued to Mercedes Ventura and Gregoria Ventura upon their qualification.
IT IS SO ORDERED.
(Record on Appeal pp. 120-131).
Hence, this appeal.
In their brief, appellants Maria Ventura and spouses Juana Cardona and Miguel Ventura assign the following errors allegedly committed by the
probate court:
ASSIGNMENT OF ERRORS
I
The lower court erred in ordering the removal of Maria Ventura as executrix and administratrix of the will and estate of the deceased Gregorio
Ventura without giving her full opportunity to be heard and to present all her evidence.
II
The lower court erred in finding that the executrix Maria Ventura had squandered and dissipated the funds of the estate under her administration.
III
The lower court erred in finding that the executrix Maria Ventura was inefficient and incompetent.
IV
That, considering the circumtances surrounding the case, the lower court erred in finding that the failure of Maria Ventura to submit her periodical
account had justified her removal as executrix.
V
The lower court erred in considering as an established fact that the appellees Mercedes Ventura and Gregoria Ventura are the legitimate daughters
of the deceased Gregorio Ventura.
VI
The lower court erred in finding that the devises and bequests in favor of Maria Ventura and Miguel Ventura as specified in paragraph 8 of the last
Will and Testament of the late Gregorio Ventura have ipso facto been annulled.
VII
The lower court erred in allowing the appellees Mercedes Ventura and Gregoria Ventura to intervene in the hearing of the accounts of
administration submitted by the executrix Maria Ventura and/or in not suspending the hearing of the said accounts until the said appellees have
finally established their status as legitimate children of the deceased Gregorio Ventura.
VIII
The lower court erred in appointing (even without a proper petition for appointment and much less a hearing on the appointment of) the appellees
Mercedes Ventura and Gregoria Ventura who have an adverse interest as joint administratrices of the estate of the deceased Gregorio Ventura.
IX
The lower court erred in not appointing the surviving widow, Juana Cardona, or Miguel Ventura, as administratrix of the estate of Gregorio Ventura
in case the removal of Maria Ventura as executrix and administratrix thereof is legally justified.
X
Considering that there are in fact two (2) factions representing opposite interests in the estate, the lower court erred in not appointing Juana
Cardona, or Miguel Ventura, as one of the two (2) administratrices.' (Joint Brief for the Appellants, pp. 1-4)
On July 19,1967, Atty. Arturo Tolentino (representing appellees Mercedes Ventura and Pedro Corpuz) and Atty. Jose J. Francisco (representing
Gregoria and Exequiel Victoria), having failed to submit their respective briefs within the period for the purpose, which expired on July 2 and May
29,1967, respectively, the Supreme Court Resolved to consider this case submitted for decision WITHOUT SAID APPELLEES' BRIEF (Rollo, p.
152).
The crucial issue in this case is whether or not the removal of Maria Ventura as executrix is legally justified. This issue has, however, become moot
and academic in view of the decision of this Court in related cases.
At the outset, it is worthy to note that aside from the instant special proceedings, there are two other civil cases involving the estate of the deceased
Gregoria Ventura, namely, Civil Cases Nos. 1064 and 1476. Civil Case No. 1064 was filed on December 2, 1952 by herein appellee Gregoria
Ventura in the Court of First Instance of Nueva Ecija, Branch I, against the other appellees herein Mercedes Ventura and their father, Gregorio
Ventura. Later Mercedes Ventura joined cause with Gregoria Ventura. (Record on Appeal, p. 95). Gregoria and Mercedes Ventura claimed that they
are the legitimate children of Gregorio Ventura and his wife Paulina Simpliciano, who died in 1943, and asked that one-half of the properties

Succession 8
described in the complaint be declared as the share of their mother in the conjugal partnership, with them as the only forced heirs of their mother
Paulina (Joint Brief for the Appellants, pp. 53-68).
Subsequently, Civil Case No. 1476 was filed by Alipio, Eufracia and Juliana, all surnamed Simpliciano, against Gregorio Ventura and the two
sisters, Mercedes and Gregoria Ventura, before the Court of First Instance of Nueva Ecija, Branch I. They alleged that as the only children of
Modesto Simpliciano, sole brother of Paulina Simpliciano, they, instead of Mercedes and Gregoria Ventura, whom they claimed are adulterous
children of Paulina with another man, Teodoro Ventura and as such are not entitled to inherit from her, are the ones who should inherit the share of
Paulina Simpliciano in the conjugal Partnership with Gregorio Ventura (Joint Brief For The Appealant,pp.69-79)
It appears that on November 4, 1959, after a joint hearing of Civil Cases Nos. 1064 and 1476, the lower court rendered its judgment, the dispositive
portion of which reads as follows:
WHEREFORE, judgment is hereby rendered declaring Mercedes Ventura and Gregoria Ventura to be the ligitimate daughters of Paulina
Simpliciano and Gregorio Ventura; declaring that as such ligitimate daughters of Paulina Simpliciano they are entitled to 1/2 of the properties
described in paragraph six of the complaint; ordering the defendant Maria Ventura, as administratrix of the estate of Gregorio Ventura to pay to
Mercedes Ventura and Gregorio Ventura the amount of P 19,074.09 which shall be divided equally between Mercedes and Gregoria Ventura
declaring Mercedes Ventura and Pedro Corpuz are the exclusive owners of the property describe in the certificate of Title Nos. T-1102, 212, T-1213,
T-1214, Exhibits 32, 33, 34 and 35, respectively; ordering Mercedes Ventura and Pedro D. Corpuz to pay to the conjugal partnership of Gregorio
Ventura and Paulina Simpliciano the sum of P100,000.00, one-half of which shall pertain to the estate of Gregorio Ventura and the other half to the
estate of Paulina Simpliciano to whom Mercedes and Gregoria Ventura have succeeded, to be divided between Mercedes and Gregoria in equal
parts; and dismissing Civil Case No. 1476. The parties are urged to arrive at an amicable partition of the properties herein adjudicated within twenty
days from receipt of this decision. Upon their failure to do so, the Court shall appoint commissioners to divide the properties in accordance with the
terms of the decision. Without pronouncements as to costs. (Emphasis supplied). (Joint Brief for the Appellants, pp. 3738.)
Thereafter, on July 14, 1962, Mercedes Ventura filed a motion to annul the provisions of the will of the deceased Gregorio Ventura in Special
Proceedings No. 812, which motion was opposed by Miguel Ventura and Juana Cardona and later by Maria Ventura. They claimed that the decision
dated November 4,1959 in Civil Cases Nos. 1064 and 1476 was not yet final.
On February 26,1964, the court annulled the institution of the heirs in the probated will of Gregorio Ventura. The motion for reconsideration of the
aforesaid order filed by executrix Maria Ventura was denied on June 11, 1964.
Accordingly, Maria Ventura appealed the February 26, 1964 and June 11, 1964 orders of the probate court in Special Proceedings No. 812 before
the Supreme Court and was docketed as G.R. No. L-23878. On May 27,1977, this Court, through then Associate Justice Antonio P. Barredo, ruled,
as follows:
And so, acting on appellees' motion to dismiss appeal, it is Our considered opinion that the decision in Civil Cases Nos.1064 and 1476 declaring
that appellees Mercedes and Gregoria Ventura are the ligimate children of the deceased Gregorio Ventura and his wife, Paulina Simpliciano, and as
such are entitled to the annulment of the institution of heirs made in the probated will of said deceased became final and executory upon the finality
of the order, approving ther partition directed in the decision in question. We need not indulge in any discussion as to whether or not, as of the time
the orders here in question were issued by the trial court said decision had the nature of an interlocutory order only. To be sure, in the case of
Miranda, aforementioned, the opinion of the majority of the Court may well be invoked against appellant's pose. In any event, even if the Court were
minded to modify again Miranda and go back to Fuentebella and Zaldariaga and it is not, as of now there can be no question that the approval
by the trial court in Civil Cases Nos. 1064 and 1476 of the partition report of the commissioners appointed for the purpose, one of whom, Emmanuel
Mariano, is the husband of appellant, put a definite end to those cases, leaving nothing else to be done in the trial court. That order of approval is an
appealable one, and inasmuch as no appeal has been taken from the same, it is beyond dispute that the decision in controversy has already
become final and executory in all respects. Hence, the case at bar has become moot and academic. (Ventura vs. Ventura, 77 SCRA 159, May
27,1977)
Under Article 854 of the Civil Code, "the pretention 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," and as a result, intestacy follows, thereby rendering the previous appointment of Maria Ventura as executrix
moot and academic. This would now necessitate the appointment of another administrator, under the following provision:
Section 6, Rule 78 of the Rules of Court:
When and to whom letters of administration granted.-If no executor is named in the will, or the executor or executors are incompetent, refuse the
trust, or fail to give bond, or a person dies intestate, a petition shall be granted:
(a)
To the surviving husband or wife, as the case may be or next of kin, or both, in the discretion of the court, or to such person as such
surviving husband or wife, or both, in the discretion of the court, or to such person as such surviving husband or wife, or next of kin, requests to
have appointed, if competent and willing to serve;"
xxx

xxx

xxx

In the case at bar, the surviving spouse of the deceased Gregorio Ventura is Juana Cardona while the next of kin are: Mercedes and Gregoria
Ventura and Maria and Miguel Ventura. The "next of kin" has been defined as those persons who are entitled under the statute of distribution to the
decedent's property (Cooper vs. Cooper, 43 Ind. A. 620, 88 NE 341). It is generally said that "the nearest of kin, whose interest in the estate is more
preponderant, is preferred in the choice of administrator. 'Among members of a class the strongest ground for preference is the amount or
preponderance of interest. As between next of kin, the nearest of kin is to be preferred." (Cabanas, et al. vs. Enage et al., 40 Off. Gaz. 12 Suppl.
227; citing 12 Am. Jur. Sec. 77, p. 416, cited in Francisco Vicente J., The Revised Rules of Court in the Philippines, Vol. V-B 1970 Ed., p. 23).
As decided by the lower court and sustained by the Supreme Court, Mercedes and Gregoria Ventura are the legitimate children of Gregorio Ventura
and his wife, the late Paulina Simpliciano. Therefore, as the nearest of kin of Gregorio Ventura they are entitled to preference over the illegitimate
children of Gregorio Ventura, namely: Maria and Miguel Ventura. Hence, under the aforestated preference provided in Section 6 of Rule 78, the
person or persons to be appointed administrator are Juana Cardona, as the surviving spouse, or Mercedes and Gregoria Ventura as nearest of kin,
or Juana Cardona and Mercedes and Gregoria Ventura in the discretion of the Court, in order to represent both interests.
PREMISES CONSIDERED, the appeal interposed by appellants Maria Ventura, Juana Cardona and Miguel Ventura is hereby DISMISSED.
SO ORDERED.

Succession 9
G.R. No. L-48840

December 29, 1943

ERNESTO M. GUEVARA, petitioner-appellant,


vs.
ROSARIO GUEVARA and her husband PEDRO BUISON, respondent-appellees.
Primacias, Abad, Mencias & Castillo for appellant.
Pedro C. Quinto for appellees.

OZAETA, J.:
Ernesto M. Guevarra and Rosario Guevara, ligitimate son and natural daughter, respectively, of the deceased Victorino L. Guevara, are litigating
here over their inheritance from the latter. The action was commenced on November 12, 1937, by Rosario Guevara to recover from Ernesto
Guevara what she claims to be her strict ligitime as an acknowledged natural daughter of the deceased to wit, a portion of 423,492 square
meters of a large parcel of land described in original certificate of title No. 51691 of the province of Pangasinan, issued in the name of Ernesto M.
Guervara and to order the latter to pay her P6,000 plus P2,000 a year as damages for withholding such legitime from her. The defendant
answered the complaint contending that whatever right or rights the plaintiff might have had, had been barred by the operation of law.
It appears that on August 26, 1931, Victorino L. Guevara executed a will (exhibit A), apparently with all the formalities of the law, wherein he made
the following bequests: To his stepdaughter Candida Guevara, a pair of earrings worth P150 and a gold chain worth P40; to his son Ernesto M.
Guevara, a gold ring worth P180 and all the furniture, pictures, statues, and other religious objects found in the residence of the testator in
Poblacion Sur, Bayambang, Pangasinan; "a mi hija Rosario Guevara," a pair of earrings worth P120; to his stepson Piuo Guevara, a ring worth
P120; and to his wife by second marriage, Angustia Posadas, various pieces of jewelry worth P1,020.
He also made the following devises: "A mis hijos Rosario Guevara y Ernesto M. Guevara y a mis hijastros, Vivencio, Eduviges, Dionisia, Candida y
Pio, apellidados Guevara," a residential lot with its improvements situate in the town of Bayambang, Pangasinan, having an area of 960 square
meters and assessed at P540; to his wife Angustia Posadas he confirmed the donation propter nuptias theretofore made by him to her of a portion
of 25 hectares of the large parcel of land of 259-odd hectares described in plan Psu-66618. He also devised to her a portion of 5 hectares of the
same parcel of land by way of complete settlement of her usufructurary right.1awphil.net
He set aside 100 hectares of the same parcel of land to be disposed of either by him during his lifetime or by his attorney-in-fact Ernesto M.
Guevara in order to pay all his pending debts and to degray his expenses and those of his family us to the time of his death.
The remainder of said parcel of land his disposed of in the following manner:
(d). Toda la porcion restante de mi terreno arriba descrito, de la extension superficial aproximada de ciento veintinueve (129) hectareas setenta
(70) areas, y veiticinco (25) centiares, con todas sus mejoras existentes en la misma, dejo y distribuyo, pro-indiviso, a mis siguientes herederos
como sigue:
A mi hijo legitimo, Ernesto M. Guevara, ciento ocho (108) hectareas, ocho (8) areas y cincuenta y cuatro (54) centiareas, hacia la parte que colinda
al Oeste de las cien (100) hectareas referidas en el inciso (a) de este parrafo del testamento, como su propiedad absoluta y exclusiva, en la cual
extension superficial estan incluidas cuarenta y tres (43) hectareas, veintitres (23) areas y cuarenta y dos (42) centiareas que le doy en concepto
de mejora.
A mi hija natural reconocida, Rosario Guevara, veintiun (21) hectareas, sesenta y un (61) areas y setenta y un (71) centiareas, que es la parte
restante.
Duodecimo. Nombro por la presente como Albacea Testamentario a mi hijo Ernesto M. Guevara, con relevacion de fianza. Y una vez legalizado
este testamento, y en cuanto sea posible, es mi deseo, que los herederos y legatarios aqui nombrados se repartan extrajudicialmente mis bienes
de conformidad con mis disposiciones arriba consignadas.
Subsequently, and on July 12, 1933, Victorino L. Guevarra executed whereby he conveyed to him the southern half of the large parcel of land of
which he had theretofore disposed by the will above mentioned, inconsideration of the sum of P1 and other valuable considerations, among which
were the payment of all his debts and obligations amounting to not less than P16,500, his maintenance up to his death, and the expenses of his last
illness and funeral expenses. As to the northern half of the same parcel of land, he declared: "Hago constar tambien que reconozco a mi referido
hijo Ernesto M. guevara como dueo de la mitad norte de la totalidad y conjunto de los referidos terrenos por haberlos comprado de su propio
peculio del Sr. Rafael T. Puzon a quien habia vendido con anterioridad."
On September 27, 1933, final decree of registration was issued in land registration case No. 15174 of the Court of First Instance of Pangasinan,
and pursuant thereto original certificate of title No. 51691 of the same province was issued on October 12 of the same year in favor of Ernesto M.
Guevara over the whole parcel of land described in the deed of sale above referred to. The registration proceeding had been commenced on
November 1, 1932, by Victorino L. Guevara and Ernesto M. Guevara as applicants, with Rosario, among others, as oppositor; but before the trial of
the case Victorino L. Guevara withdrew as applicant and Rosario Guevara and her co-oppositors also withdrew their opposition, thereby facilitating
the issuance of the title in the name of Ernesto M. Guevara alone.
On September 27, 1933, Victorino L. Guevarra died. His last will and testament, however, was never presented to the court for probate, nor has any
administration proceeding ever been instituted for the settlement of his estate. Whether the various legatees mentioned in the will have received
their respective legacies or have even been given due notice of the execution of said will and of the dispositions therein made in their favor, does
not affirmatively appear from the record of this case. Ever since the death of Victorino L. Guevara, his only legitimate son Ernesto M. Guevara
appears to have possessed the land adjudicated to him in the registration proceeding and to have disposed of various portions thereof for the
purpose of paying the debts left by his father.
In the meantime Rosario Guevara, who appears to have had her father's last will and testament in her custody, did nothing judicially to invoke the
testamentary dispositions made therein in her favor, whereby the testator acknowledged her as his natural daughter and, aside from certain
legacies and bequests, devised to her a portion of 21.6171 hectares of the large parcel of land described in the will. But a little over four years after
the testor's demise, she (assisted by her husband) commenced the present action against Ernesto M. Guevara alone for the purpose hereinbefore
indicated; and it was only during the trial of this case that she presented the will to the court, not for the purpose of having it probated but only to
prove that the deceased Victirino L. Guevara had acknowledged her as his natural daughter. Upon that proof of acknowledgment she claimed her
share of the inheritance from him, but on the theory or assumption that he died intestate, because the will had not been probated, for which reason,

Succession 10
she asserted, the betterment therein made by the testator in favor of his legitimate son Ernesto M. Guevara should be disregarded. Both the trial
court and the Court of appeals sustained that theory.
Two principal questions are before us for determination: (1) the legality of the procedure adopted by the plaintiff (respondent herein) Rosario
Guevara; and (2) the efficacy of the deed of sale exhibit 2 and the effect of the certificate of title issued to the defendant (petitioner herein) Ernesto
M. Guevara.
I
We cannot sanction the procedure adopted by the respondent Rosario Guevara, it being in our opinion in violation of procedural law and an attempt
to circumvent and disregard the last will and testament of the decedent. The Code of Civil Procedure, which was in force up to the time this case
was decided by the trial court, contains the following pertinent provisions:
Sec. 625. Allowance Necessary, and Conclusive as to Execution. No will shall pass either the real or personal estate, unless it is proved and
allowed in the Court of First Instance, or by appeal to the Supreme Court; and the allowance by the court of a will of real and personal estate shall
be conclusive as to its due execution.
Sec. 626. Custodian of Will to Deliver. The person who has the custody of a will shall, within thirty days after he knows of the death of the
testator, deliver the will into the court which has jurisdiction, or to the executor named in the will.
Sec. 627. Executor to Present Will and Accept or Refuse Trust. A person named as executor in a will, shall within thirty days after he knows of
the death of the testor, or within thirty days after he knows that he is named executor, if he obtained such knowledge after knowing of the death of
the testor, present such will to the court which has jurisdiction, unless the will has been otherwise returned to said court, and shall, within such
period, signify to the court his acceptance of the trust, or make known in writing his refusal to accept it.
Sec. 628. Penalty. A person who neglects any of the duties required in the two proceeding sections, unless he gives a satisfactory excuse to the
court, shall be subject to a fine not exceeding one thousand dollars.
Sec. 629. Person Retaining Will may be Committed. If a person having custody of a will after the death of the testator neglects without
reasonable cause to deliver the same to the court having jurisdiction, after notice by the court so to do, he may be committed to the prison of the
province by a warrant issued by the court, and there kept in close confinement until he delivers the will.
The foregoing provisions are now embodied in Rule 76 of the new Rules of Court, which took effect on July 1, 1940.
The proceeding for the probate of a will is one in rem, with notice by publication to the whole world and with personal notice to each of the known
heirs, legatees, and devisees of the testator (section 630, C. c. P., and sections 3 and 4, Rule 77). Altho not contested (section 5, Rule 77), the due
execution of the will and the fact that the testator at the time of its execution was of sound and disposing mind and not acting under duress,
menace, and undue influence or fraud, must be proved to the satisfaction of the court, and only then may the will be legalized and given effect by
means of a certificate of its allowance, signed by the judge and attested by the seal of the court; and when the will devises real property, attested
copies thereof and of the certificate of allowance must be recorded in the register of deeds of the province in which the land lies. (Section 12, Rule
77, and section 624, C. C. P.)
It will readily be seen from the above provisions of the law that the presentation of a will to the court for probate is mandatory and its allowance by
the court is essential and indispensable to its efficacy. To assure and compel the probate of will, the law punishes a person who neglects his duty to
present it to the court with a fine not exceeding P2,000, and if he should persist in not presenting it, he may be committed to prision and kept there
until he delivers the will.
The Court of Appeals took express notice of these requirements of the law and held that a will, unless probated, is ineffective. Nevertheless it
sanctioned the procedure adopted by the respondent for the following reasons:
The majority of the Court is of the opinion that if this case is dismissed ordering the filing of testate proceedings, it would cause injustice,
incovenience, delay, and much expense to the parties, and that therefore, it is preferable to leave them in the very status which they themselves
have chosen, and to decide their controversy once and for all, since, in a similar case, the Supreme Court applied that same criterion (Leao vs.
Leao, supra), which is now sanctioned by section 1 of Rule 74 of the Rules of Court. Besides, section 6 of Rule 124 provides that, if the procedure
which the court ought to follow in the exercise of its jurisdiction is not specifically pointed out by the Rules of Court, any suitable process or mode of
procedure may be adopted which appears most consistent to the spirit of the said Rules. Hence, we declare the action instituted by the plaintiff to
be in accordance with law.
Let us look into the validity of these considerations. Section 1 of Rule 74 provides as follows:
Section 1.Extrajudicial settlement by agreement between heirs. If the decedent left no debts and the heirs and legatees are all of age, or the
minors are represented by their judicial guardians, the parties may, without securing letters of administration, divide the estate among themselves
as they see fit by means of a public instrument filed in the office of the register of deeds, and should they disagree, they may do so in an ordinary
action of partition. If there is only one heir or one legatee, he may adjudicate to himself the entire estate by means of an affidavit filed in the office of
the register of deeds. It shall be presumed that the decedent left no debts if no creditor files a petition for letters of administration within two years
after the death of the decedent.
That is a modification of section 596 of the Code of Civil Procedure, which reads as follows:
Sec. 596. Settlement of Certain Intestates Without Legal Proceedings. Whenever all the heirs of a person who died intestate are of lawful age
and legal capacity and there are no debts due from the estate, or all the debts have been paid the heirs may, by agreement duly executed in writing
by all of them, and not otherwise, apportion and divide the estate among themselves, as they may see fit, without proceedings in court.
The implication is that by the omission of the word "intestate" and the use of the word "legatees" in section 1 of Rule 74, a summary extrajudicial
settlement of a deceased person's estate, whether he died testate or intestate, may be made under the conditions specified. Even if we give
retroactive effect to section 1 of Rule 74 and apply it here, as the Court of Appeals did, we do not believe it sanctions the nonpresentation of a will
for probate and much less the nullification of such will thru the failure of its custodian to present it to the court for probate; for such a result is
precisely what Rule 76 sedulously provides against. Section 1 of Rule 74 merely authorizes the extrajudicial or judicial partition of the estate of a
decedent "without securing letter of administration." It does not say that in case the decedent left a will the heirs and legatees may divide the estate
among themselves without the necessity of presenting the will to the court for probate. The petition to probate a will and the petition to issue letters
of administration are two different things, altho both may be made in the same case. the allowance of a will precedes the issuance of letters
testamentary or of administration (section 4, Rule 78). One can have a will probated without necessarily securing letters testamentary or of

Succession 11
administration. We hold that under section 1 of Rule 74, in relation to Rule 76, if the decedent left a will and no debts and the heirs and legatees
desire to make an extrajudicial partition of the estate, they must first present that will to the court for probate and divide the estate in accordance
with the will. They may not disregard the provisions of the will unless those provisions are contrary to law. Neither may they so away with the
presentation of the will to the court for probate, because such suppression of the will is contrary to law and public policy. The law enjoins the probate
of the will and public policy requires it, because unless the will is probated and notice thereof given to the whole world, the right of a person to
dispose of his property by will may be rendered nugatory, as is attempted to be done in the instant case. Absent legatees and devisees, or such of
them as may have no knowledge of the will, could be cheated of their inheritance thru the collusion of some of the heirs who might agree to the
partition of the estate among themselves to the exclusion of others.
In the instant case there is no showing that the various legatees other than the present litigants had received their respective legacies or that they
had knowledge of the existence and of the provisions of the will. Their right under the will cannot be disregarded, nor may those rights be obliterated
on account of the failure or refusal of the custodian of the will to present it to the court for probate.
Even if the decedent left no debts and nobdy raises any question as to the authenticity and due execution of the will, none of the heirs may sue for
the partition of the estate in accordance with that will without first securing its allowance or probate by the court, first, because the law expressly
provides that "no will shall pass either real or personal estate unless it is proved and allowed in the proper court"; and, second, because the probate
of a will, which is a proceeding in rem, cannot be dispensed with the substituted by any other proceeding, judicial or extrajudicial, without offending
against public policy designed to effectuate the testator's right to dispose of his property by will in accordance with law and to protect the rights of
the heirs and legatees under the will thru the means provided by law, among which are the publication and the personal notices to each and all of
said heirs and legatees. Nor may the court approve and allow the will presented in evidence in such an action for partition, which is one in
personam, any more than it could decree the registration under the Torrens system of the land involved in an ordinary action for reinvindicacion or
partition.
We therefore believe and so hold that section 1 of Rule 74, relied upon by the Court of Appeals, does not sanction the procedure adopted by the
respondent.
The case of Leao vs. Leao (25 Phil., 180), cited by the Court of Appeals, like section 1 of Rule 74, sanctions the extrajudicial partition by the heirs
of the properties left by a decedent, but not the nonpresentation of a will for probate. In that case one Paulina Ver executed a will on October 11,
1902, and died on November 1, 1902. Her will was presented for probate on November 10, 1902, and was approved and allowed by the Court on
August 16, 1904. In the meantime, and on November 10, 1902, the heirs went ahead and divided the properties among themselves and some of
them subsequently sold and disposed of their shares to third persons. It does not affirmatively appear in the decision in that case that the partition
made by the heirs was not in accordance with the will or that they in any way disregarded the will. In closing the case by its order dated September
1, 1911, the trial court validated the partition, and one of the heirs, Cunegunda Leao, appealed. In deciding the appeal this Court said:
The principal assignment of error is that the lower court committed an error in deciding that the heirs and legatees of the estate of Da. Paulina Ver
had voluntarily divided the estate among themselves.
In resolving that question this Court said:
In view of the positive finding of the judge of the lower court that there had been a voluntary partition of the estate among the heirs and legatees,
and in the absence of positive proof to the contrary, we must conclude that the lower court had some evidence to support its conclusion.
Thus it will be seen that as a matter of fact no question of law was raised and decided in that case. That decision cannot be relied upon as an
authority for the unprecedented and unheard of procedure adopted by the respondent whereby she seeks to prove her status as an acknowledged
natural child of the decedent by his will and attempts to nullify and circumvent the testamentary dispositions made by him by not presenting the will
to the court for probate and by claiming her legitime as an acknowledged natural child on the basis of intestacy; and that in the face of express
mandatory provisions of the law requiring her to present the will to the court for probate.
In the subsequent case of Riosa vs. Rocha (1926), 48 Phil. 737, this Court departed from the procedure sanctioned by the trial court and impliedly
approved by this Court in the Leao case, by holding that an extrajudicial partition is not proper in testate succession. In the Riosa case the Court,
speaking thru Chief Justice Avancea, held:
1.
EXTRAJUDICIAL PARTITION; NOT PROPER IN TESTATE SUCCESSION. Section 596 of the Code of Civil Procedure, authorizing
the heirs of a person who dies intestate to make extrajudicial partition of the property of the deceased, without going into any court of justice, makes
express reference to intestate succession, and therefore excludes testate succession.
2.
ID.; EFFECTS OF; TESTATE SUCCESSION. In the instant case, which is a testate succession, the heirs made an extrajudicial
partition of the estate and at the same time instituted proceeding for the probate of the will and the administration of the estate. When the time came
for making the partition, they submitted to the court the extrajudicial partition previously made by them, which the court approved. Held: That for the
purposes of the reservation and the rights and obligations created thereby, in connection with the relatives benefited, the property must not be
deemed transmitted to the heirs from the time the extrajudicial partition was made, but from the time said partition was approved by the court.
(Syllabus.)
The Court of Appeals also cites section 6 of Rule 124, which provides that if the procedure which the court ought to follow in the exercise of its
jurisdiction is not specifically pointed out by the Rules of Court, any suitable process for mode of proceeding may be adopted which appears most
conformable to the spirit of the said Rules. That provision is not applicable here for the simple reason that the procedure which the court ought to
follow in the exercise of its jurisdiction is specifically pointed out and prescribed in detail by Rules 74, 76, and 77 of the Rules of Court.
The Court of Appeals also said "that if this case is dismissed, ordering the filing of testate proceedings, it would cause injustice, inconvenience,
delay, and much expense to the parties." We see no injustice in requiring the plaintiff not to violate but to comply with the law. On the contrary, an
injustice might be committed against the other heirs and legatees mentioned in the will if the attempt of the plaintiff to nullify said will by not
presenting it to the court for probate should be sanctioned. As to the inconvenience, delay, and expense, the plaintiff herself is to blame because
she was the custodian of the will and she violated the duty imposed upon her by sections 2, 4, and 5 of Rule 76, which command her to deliver said
will to the court on pain of a fine not exceeding P2,000 and of imprisonment for contempt of court. As for the defendant, he is not complaining of
inconvenience, delay, and expense, but on the contrary he is insisting that the procedure prescribed by law be followed by the plaintiff.
Our conclusion is that the Court of Appeals erred in declaring the action instituted by the plaintiff to be in accordance with law. It also erred in
awarding relief to the plaintiff in this action on the basis of intestacy of the decedent notwithstanding the proven existence of a will left by him and
solely because said will has not been probated due to the failure of the plaintiff as custodian thereof to comply with the duty imposed upon her by
the law.

Succession 12
It is apparent that the defendant Ernesto M. Guevara, who was named executor in said will, did not take any step to have it presented to the court
for probate and did not signify his acceptance of the trust or refusal to accept it as required by section 3 of Rule 76 (formerly section 627 of the
Code of Civil Procedure), because his contention is that said will, insofar as the large parcel of land in litigation is concerned, has been superseded
by the deed of sale exhibit 2 and by the subsequent issuance of the Torrens certificate of title in his favor.
II
This brings us to the consideration of the second question, referring to the efficacy of the deed of sale exhibit 2 and the effect of the certificate of
titled issued to the defendant Ernesto M. Guevara. So that the parties may not have litigated here in vain insofar as that question is concerned, we
deem it proper to decide it now and obviate the necessity of a new action.
The deed of sale exhibit 2 executed by and between Victorino L. Guevara and Ernesto M. Guevara before a notary public on July 12, 1933, may be
divided into two parts: (a) insofar as it disposes of and conveys to Ernesto M. Guevara the southern half of Victorino L. Guevara's hacienda of 259odd hectares in consideration of P1 and other valuable considerations therein mentioned; and (b) insofar as it declares that Ernesto M. Guevara
became the owner of the northern half of the same hacienda by repurchasing it with his own money from Rafael T. Puzon.
A.
As to the conveyance of the southern half of the hacienda to Ernesto M. Guevara in consideration of the latter's assumption of the
obligation to pay all the debts of the deceased, the Court of Appeals found it to be valid and efficacious because: "(a) it has not been proven that the
charges imposed as a condition is [are] less than the value of the property; and (b) neither has it been proven that the defendant did not comply with
the conditions imposed upon him in the deed of transfer." As a matter of fact the Court of Appeals found" "It appears that the defendant has been
paying the debts left by his father. To accomplish this, he had to alienate considerable portions of the above-mentioned land. And we cannot brand
such alienation as anomalous unless it is proven that they have exceeded the value of what he has acquired by virtue of the deed of July 12, 1933,
and that of his corresponding share in the inheritance." The finding of the Court of Appeals on this aspect of the case is final and conclusive upon
the respondent, who did not appeal therefrom.
B.

With regard to the northern half of the hacienda, the findings of fact and of law made by the Court of Appeals are as follows:

The defendant has tried to prove that with his own money, he bought from Rafael Puzon one-half of the land in question, but the Court a quo, after
considering the evidence, found it not proven; we hold that such conclusion is well founded. The acknowledgment by the deceased, Victorino L.
Guevara, of the said transactions, which was inserted incidentally in the document of July 12, 1933, is clearly belied by the fact that the money paid
to Rafael Puzon came from Silvestre P. Coquia, to whom Victorino L. Guevara had sold a parcel of land with the right of repurchase. The defendant,
acting for his father, received the money and delivered it to Rafael Puzon to redeem the land in question, and instead of executing a deed of
redemption in favor of Victorino L. Guevara, the latter executed a deed of sale in favor of the defendant.
The plaintiff avers that she withdrew her opposition to the registration of the land in the name of the defendant, because of the latter's promise that
after paying all the debt of their father, he would deliver to her and to the widow their corresponding shares. As their father then was still alive, there
was no reason to require the delivery of her share and that was why she did not insist on her opposition, trusting on the reliability and sincerity of
her brother's promise. The evidence shows that such promise was really made. The registration of land under the Torrens system does not have the
effect of altering the laws of succession, or the rights of partition between coparceners, joint tenants, and other cotenants nor does it change or
affect in any other way any other rights and liabilities created by law and applicable to unregistered land (sec. 70, Land Registration Law). The
plaintiff is not, then, in estoppel, nor can the doctrine of res judicata be invoked against her claim. Under these circumstances, she has the right to
compel the defendant to deliver her corresponding share in the estate left by the deceased, Victorino L. Guevara.
In his tenth to fourteenth assignments of error the petitioner assails the foregoing findings of the Court of Appeals. But the findings of fact made by
said court are final and not reviewable by us on certiorari. The Court of Appeals found that the money with which the petitioner repurchased the
northern half of the land in question from Rafael Puzon was not his own but his father's, it being the proceeds of the sale of a parcel of land made
by the latter to Silvestre P. Coquia. Said court also found that the respondent withdrew her opposition to the registration of the land in the name of
the petitioner upon the latter's promise that after paying all the debts of their father he would deliver to her and to the widow their corresponding
shares. From these facts, it results that the interested parties consented to the registration of the land in question in the name of Ernesto M.
Guevara alone subject to the implied trust on account of which he is under obligation to deliver and convey to them their corresponding shares after
all the debts of the original owner of said land had been paid. Such finding does not constitute a reversal of the decision and decree of registration,
which merely confirmed the petitioner's title; and in the absence of any intervening innocent third party, the petitioner may be compelled to fulfill the
promise by virtue of which he acquired his title. That is authorized by section 70 of the Land Registration Act, cited by the Court of Appeals, and by
the decision of this Court in Severino vs. Severino, 44 Phil., 343, and the cases therein cited.
Upon this phase of the litigation, we affirm the finding of the Court of Appeals that the northern half of the land described in the will exhibit A and in
original certificate of title No. 51691 still belongs to the estate of the deceased Victorino L. Guevara. In the event the petitioner Ernesto M. Guevara
has alienated any portion thereof, he is under obligation to compensate the estate with an equivalent portion from the southern half of said land that
has not yet been sold. In other words, to the estate of Victorino L. Guevara still belongs one half of the total area of the land described in said
original certificate of title, to be taken from such portions as have not yet been sold by the petitioner, the other half having been lawfully acquired by
the latter in consideration of his assuming the obligation to pay all the debts of the deceased.
Wherefore, that part of the decision of the Court of Appeals which declares in effect that notwithstanding exhibit 2 and the issuance of original
certificate of title No. 51691 in the name of Ernesto M. Guevara, one half of the land described in said certificate of title belongs to the estate of
Victorino L. Guevara and the other half to Ernesto M. Guevara in consideration of the latter's assumption of the obligation to pay all the debts of the
deceased, is hereby affirmed; but the judgment of said court insofar as it awards any relief to the respondent Rosario Guevara in this action is
hereby reversed and set aside, and the parties herein are hereby ordered to present the document exhibit A to the proper court for probate in
accordance with law, without prejudice to such action as the provincial fiscal of Pangasinan may take against the responsible party or parties under
section 4 of Rule 76. After the said document is approved and allowed by the court as the last will and testament of the deceased Victorino L.
Guevara, the heirs and legatees therein named may take such action, judicial or extrajudicial, as may be necessary to partition the estate of the
testator, taking into consideration the pronouncements made in part II of this opinion. No finding as to costs in any of the three instances.

Succession 13
G.R. No. L-22595

November 1, 1927

Testate Estate of Joseph G. Brimo, JUAN MICIANO, administrator, petitioner-appellee,


vs.
ANDRE BRIMO, opponent-appellant.
Ross, Lawrence and Selph for appellant.
Camus and Delgado for appellee.

ROMUALDEZ, J.:
The partition of the estate left by the deceased Joseph G. Brimo is in question in this case.
The judicial administrator of this estate filed a scheme of partition. Andre Brimo, one of the brothers of the deceased, opposed it. The court,
however, approved it.
The errors which the oppositor-appellant assigns are:
(1) The approval of said scheme of partition; (2) denial of his participation in the inheritance; (3) the denial of the motion for reconsideration of the
order approving the partition; (4) the approval of the purchase made by the Pietro Lana of the deceased's business and the deed of transfer of said
business; and (5) the declaration that the Turkish laws are impertinent to this cause, and the failure not to postpone the approval of the scheme of
partition and the delivery of the deceased's business to Pietro Lanza until the receipt of the depositions requested in reference to the Turkish laws.
The appellant's opposition is based on the fact that the partition in question puts into effect the provisions of Joseph G. Brimo's will which are not in
accordance with the laws of his Turkish nationality, for which reason they are void as being in violation or article 10 of the Civil Code which, among
other things, provides the following:
Nevertheless, legal and testamentary successions, in respect to the order of succession as well as to the amount of the successional rights and the
intrinsic validity of their provisions, shall be regulated by the national law of the person whose succession is in question, whatever may be the
nature of the property or the country in which it may be situated.
But the fact is that the oppositor did not prove that said testimentary dispositions are not in accordance with the Turkish laws, inasmuch as he did
not present any evidence showing what the Turkish laws are on the matter, and in the absence of evidence on such laws, they are presumed to be
the same as those of the Philippines. (Lim and Lim vs. Collector of Customs, 36 Phil., 472.)
It has not been proved in these proceedings what the Turkish laws are. He, himself, acknowledges it when he desires to be given an opportunity to
present evidence on this point; so much so that he assigns as an error of the court in not having deferred the approval of the scheme of partition
until the receipt of certain testimony requested regarding the Turkish laws on the matter.
The refusal to give the oppositor another opportunity to prove such laws does not constitute an error. It is discretionary with the trial court, and,
taking into consideration that the oppositor was granted ample opportunity to introduce competent evidence, we find no abuse of discretion on the
part of the court in this particular. There is, therefore, no evidence in the record that the national law of the testator Joseph G. Brimo was violated in
the testamentary dispositions in question which, not being contrary to our laws in force, must be complied with and executed. lawphil.net
Therefore, the approval of the scheme of partition in this respect was not erroneous.
In regard to the first assignment of error which deals with the exclusion of the herein appellant as a legatee, inasmuch as he is one of the persons
designated as such in will, it must be taken into consideration that such exclusion is based on the last part of the second clause of the will, which
says:
Second. I like desire to state that although by law, I am a Turkish citizen, this citizenship having been conferred upon me by conquest and not by
free choice, nor by nationality and, on the other hand, having resided for a considerable length of time in the Philippine Islands where I succeeded
in acquiring all of the property that I now possess, it is my wish that the distribution of my property and everything in connection with this, my will, be
made and disposed of in accordance with the laws in force in the Philippine islands, requesting all of my relatives to respect this wish, otherwise, I
annul and cancel beforehand whatever disposition found in this will favorable to the person or persons who fail to comply with this request.
The institution of legatees in this will is conditional, and the condition is that the instituted legatees must respect the testator's will to distribute his
property, not in accordance with the laws of his nationality, but in accordance with the laws of the Philippines.
If this condition as it is expressed were legal and valid, any legatee who fails to comply with it, as the herein oppositor who, by his attitude in these
proceedings has not respected the will of the testator, as expressed, is prevented from receiving his legacy.
The fact is, however, that the said condition is void, being contrary to law, for article 792 of the civil Code provides the following:
Impossible conditions and those contrary to law or good morals shall be considered as not imposed and shall not prejudice the heir or legatee in
any manner whatsoever, even should the testator otherwise provide.
And said condition is contrary to law because it expressly ignores the testator's national law when, according to article 10 of the civil Code above
quoted, such national law of the testator is the one to govern his testamentary dispositions.
Said condition then, in the light of the legal provisions above cited, is considered unwritten, and the institution of legatees in said will is unconditional
and consequently valid and effective even as to the herein oppositor.
It results from all this that the second clause of the will regarding the law which shall govern it, and to the condition imposed upon the legatees, is
null and void, being contrary to law.
All of the remaining clauses of said will with all their dispositions and requests are perfectly valid and effective it not appearing that said clauses are
contrary to the testator's national law.

Succession 14
Therefore, the orders appealed from are modified and it is directed that the distribution of this estate be made in such a manner as to include the
herein appellant Andre Brimo as one of the legatees, and the scheme of partition submitted by the judicial administrator is approved in all other
respects, without any pronouncement as to costs.
So ordered.

Succession 15
G.R. Nos. L-3087 and L-3088

July 31, 1954

In re: Testate Estate of the deceased JOSE B. SUNTAY. SILVINO SUNTAY, petitioner-appellant,
vs.
In re: Intestate Estate of the deceased JOSE B. SUNTAY,
FEDERICO C. SUNTAY, administrator-appellee.
Claro M. Recto for appellant.
Sison and Aruego for appellee.
PADILLA, J.:
This is an appeal from a decree of the Court of First Instance of Bulacan disallowing the alleged will and testament executed in Manila on
November 1929, and the alleged last will and testament executed in Kulangsu, Amoy, China, on 4 January 1931, by Jose B. Suntay. The value of
the estate left by the deceased is more than P50,000.
On 14 May 1934 Jose B. Suntay, a Filipino citizen and resident of the Philippines, died in the city of Amoy, Fookien province, Republic of China,
leaving real and personal properties in the Philippines and a house in Amoy, Fookien province, China, and children by the first marriage had with
the late Manuela T. Cruz namely, Apolonio, Concepcion, Angel, Manuel, Federico, Ana, Aurora, Emiliano, and Jose, Jr. and a child named Silvino by
the second marriage had with Maria Natividad Lim Billian who survived him. Intestate proceedings were instituted in the Court of First Instance of
Bulacan (special proceedings No. 4892) and after hearing letters of administration were issued to Apolonio Suntay. After the latter's death Federico
C. Suntay was appointed administrator of the estate. On 15 October 1934 the surviving widow filed a petition in the Court of First Instance of
Bulacan for the probate of a last will and testament claimed to have been executed and signed in the Philippines on November 1929 by the late
Jose B. Suntay. This petition was denied because of the loss of said will after the filing of the petition and before the hearing thereof and of the
insufficiency of the evidence to establish the loss of the said will. An appeal was taken from said order denying the probate of the will and this Court
held the evidence before the probate court sufficient to prove the loss of the will and remanded the case to the Court of First Instance of Bulacan for
the further proceedings (63 Phil., 793). In spite of the fact that a commission from the probate court was issued on 24 April 1937 for the taking of the
deposition of Go Toh, an attesting witness to the will, on 7 February 1938 the probate court denied a motion for continuance of the hearing sent by
cablegram from China by the surviving widow and dismissed the petition. In the meantime the Pacific War supervened. After liberation, claiming that
he had found among the files, records and documents of his late father a will and testament in Chinese characters executed and signed by the
deceased on 4 January 1931 and that the same was filed, recorded and probated in the Amoy district court, Province of Fookien, China, Silvino
Suntay filed a petition in the intestate proceedings praying for the probate of the will executed in the Philippines on November 1929 (Exhibit B) or of
the will executed in Amoy, Fookien, China, on 4 January 1931 (Exhibit N).
There is no merit in the contention that the petitioner Silvino Suntay and his mother Maria Natividad Lim Billian are estopped from asking for the
probate of the lost will or of the foreign will because of the transfer or assignment of their share right, title and interest in the estate of the late Jose
B. Suntay to Jose G. Gutierrez and the spouses Ricardo Gutierrez and Victoria Goo and the subsequent assignment thereof by the assignees to
Francisco Pascual and by the latter to Federico C. Suntay, for the validity and legality of such assignments cannot be threshed out in this
proceedings which is concerned only with the probate of the will and testament executed in the Philippines on November 1929 or of the foreign will
allegedly executed in Amoy on 4 January 1931 and claimed to have been probated in the municipal district court of Amoy, Fookien province,
Republic of China.
As to prescription, the dismissal of the petition for probate of the will on 7 February 1938 was no bar to the filing of this petition on 18 June 1947, or
before the expiration of ten years.
As to the lost will, section 6, Rule 77, provides:
No will shall be proved as a lost or destroyed will unless the execution and validity of the same be established, and the will is proved to have been
in existence at the time of the death of the testator, or is shown to have been fraudulently or accidentally destroyed in the lifetime of the testator
without his knowledge, nor unless its provisions are clearly and distinctly proved by at least two credible witnesses. When a lost will is proved, the
provisions thereof must be distinctly stated and certified by the judge, under the seal of the court, and the certificate must be filed and recorded as
other wills are filed and recorded.
The witnesses who testified to the provisions of the lost will are Go Toh, an attesting witness, Anastacio Teodoro and Ana Suntay. Manuel Lopez,
who was an attesting witness to the lost will, was dead at the time of the hearing of this alternative petition. In his deposition Go Toh testifies that he
was one of the witnesses to the lost will consisting of twenty-three sheets signed by Jose B. Suntay at the bottom of the will and each and every
page thereof in the presence of Alberto Barretto, Manuel Lopez and himself and underneath the testator's signature the attesting witnesses signed
and each of them signed the attestation clause and each and every page of the will in the presence of the testator and of the other witnesses
(answers to the 31st, 41st, 42nd, 49th, 50th, 55th and 63rd interrogatories, Exhibit D-1), but did not take part in the drafting thereof (answer to the
11th interrogatory, Id.); that he knew the contents of the will written in Spanish although he knew very little of that language (answers to the 22nd
and 23rd interrogatories and to X-2 cross-interrogatory, Id.) and all he knows about the contends of the lost will was revealed to him by Jose B.
Suntay at the time it was executed (answers to the 25th interrogatory and to X-4 and X-8 cross-interrogatories, Id.); that Jose B. Suntay told him
that the contents thereof are the same as those of the draft (Exhibit B) (answers to the 33rd interrogatory and to X-8 cross-interrogatory, Id.) which
he saw in the office of Alberto Barretto in November 1929 when the will was signed (answers to the 69th, 72nd, and 74th interrogatories, Id); that
Alberto Barretto handed the draft and said to Jose B. Suntay: "You had better see if you want any correction" (answers to the 81st, 82nd and 83rd
interrogatories, Id.); that "after checking Jose B. Suntay put the "Exhibit B" in his pocket and had the original signed and executed" (answers to the
91st interrogatory, and to X-18 cross-interrogatory, Id.); that Mrs. Suntay had the draft of the will (Exhibit B) translated into Chinese and he read the
translation (answers to the 67th interrogatory, Id.); that he did not read the will and did not compare it (check it up) with the draft (Exhibit B)
(answers to X-6 and X-20 cross-interrogatories, Id.).
Ana Suntay testifies that sometime in September 1934 in the house of her brother Apolonio Suntay she learned that her father left a will "because of
the arrival of my brother Manuel Suntay, who was bringing along with him certain document and he told us or he was telling us that it was the will of
our father Jose B. Suntay which was taken from Go Toh. ..." (p. 524, t. s. n., hearing of 24 February 1948); that she saw her brother Apolonio
Suntay read the document in her presence and of Manuel and learned of the adjudication made in the will by her father of his estate, to wit: onethird to his children, one-third to Silvino and his mother and the other third to Silvino, Apolonio, Concepcion and Jose, Jr. (pp. 526-8, 530-1, 542, t. s.
n. Id.); that "after Apolonio read that portion, then he turned over the document to Manuel, and he went away," (p. 528, t. s. n., Id.). On crossexamination, she testifies that she read the part of the will on adjudication to know what was the share of each heir (pp. 530, 544, t. s. n., Id.) and on
redirect she testifies that she saw the signature of her father, Go Toh, Manuel Lopez and Alberto Barretto (p. 546, t. s. n., Id.).
Anastacio Teodoro testifies that one day in November 1934 (p. 273, t. s. n., hearing of 19 January 1948), before the last postponement of the
hearing granted by the Court, Go Toh arrived at his law office in the De los Reyes Building and left an envelope wrapped in red handkerchief

Succession 16
[Exhibit C] (p. 32, t. s. n., hearing of 13 October 1947); that he checked up the signatures on the envelope Exhibit A with those on the will placed in
the envelope (p. 33, t. s. n., Id.); that the will was exactly the same as the draft Exhibit B (pp. 32, 47, 50, t. s. n., Id.).
If the will was snatched after the delivery thereof by Go Toh to Anastacio Teodoro And returned by the latter to the former because they could not
agree on the amount of fees, the former coming to the latter's office straight from the boat (p. 315, t. s. n., hearing of 19 January 1948) that brought
him to the Philippines from Amoy, and that delivery took place in November 1934 (p. 273, t. s. n., Id.), then the testimony of Ana Suntay that she
saw and heard her brother Apolonio Suntay read the will sometime in September 1934 (p. 524, t. s. n., hearing of 24 February 1948), must not be
true.
Although Ana Suntay would be a good witness because she was testifying against her own interest, still the fact remains that she did not read the
whole will but only the adjudication (pp. 526-8, 530-1, 542, t. s. n., Id.) and saw only the signature, of her father and of the witnesses Go Toh,
Manuel Lopez and Alberto Barretto (p. 546, t. s. n., Id.). But her testimony on cross-examination that she read the part of the will on adjudication is
inconsistent with her testimony in chief that after Apolonio had read that part of the will he turned over or handed the document to Manuel who went
away (p. 528, t. s. n., Id.).
If it is true that Go Toh saw the draft Exhibit B in the office of Alberto Barretto in November 1929 when the will was signed, then the part of his
testimony that Alberto Barretto handed the draft to Jose B. Suntay to whom he said: "You had better see if you want any correction" and that "after
checking Jose B. Suntay put the "Exhibit B" in his pocket and had the original signed and executed" cannot be true, for it was not the time for
correcting the draft of the will, because it must have been corrected before and all corrections and additions written in lead pencil must have been
inserted and copied in the final draft of the will which was signed on that occasion. The bringing in for the draft (Exhibit B) on that occasion is just to
fit it within the framework of the appellant's theory. At any rate, all of Go Toh's testimony by deposition on the provisions of the alleged lost will is
hearsay, because he came to know or he learned to them from information given him by Jose B. Suntay and from reading the translation of the draft
(Exhibit B) into Chinese.
Much stress is laid upon the testimony of Federico C. Suntay who testifies that he read the supposed will or the alleged will of his father and that the
share of the surviving widow, according to the will, is two-thirds of the estate (p. 229, t. s. n., hearing of 24 October 1947). But this witness testified
to oppose the appointment of a co-administrator of the estate, for the reason that he had acquired the interest of the surviving widow not only in the
estate of her deceased husband but also in the conjugal property (pp. 148, 205, 228, 229, 231, t. s. n., Id.) Whether he read the original will or just
the copy thereof (Exhibit B) is not clear. For him the important point was that he had acquired all the share, participation and interest of the surviving
widow and of the only child by the second marriage in the estate of his deceased father. Be that as it may, his testimony that under the will the
surviving widow would take two-thirds of the estate of the late Jose B. Suntay is at variance with Exhibit B and the testimony of Anastacio Teodoro.
According to the latter, the third for strict legitime is for the ten children; the third for betterment is for Silvino, Apolonio, Concepcion and Jose Jr.;
and the third for free disposal is for the surviving widow and her child Silvino.
Hence, granting that there was a will duly executed by Jose B. Suntay placed in the envelope (Exhibit A) and that it was in existence at the time of,
and not revoked before, his death, still the testimony of Anastacio Teodoro alone falls short of the legal requirement that the provisions of the lost
will must be "clearly and distinctly proved by at least two credible witnesses." Credible witnesses mean competent witnesses and those who testify
to facts from or upon hearsay are neither competent nor credible witnesses.
On the other hand, Alberto Barretto testifies that in the early part of 1929 he prepared or drew up two mills for Jose B. Suntay at the latter's request,
the rough draft of the first will was in his own handwriting, given to Manuel Lopez for the final draft or typing and returned to him; that after checking
up the final with the rough draft he tore it and returned the final draft to Manuel Lopez; that this draft was in favor of all the children and the widow
(pp. 392-4, 449, t. s. n., hearing of 21 February 1948); that two months later Jose B. Suntay and Manuel Lopez called on him and the former asked
him to draw up another will favoring more his wife and child Silvino; that he had the rough draft of the second will typed (pp. 395, 449 t. s. n., Id.)
and gave it to Manuel Lopez (p. 396, t. s. n., Id.); that he did not sign as witness the second will of Jose B. Suntay copied from the typewritten draft
[Exhibit B] (p. 420, t. s. n., Id.); that the handwritten insertions or additions in lead pencil to Exhibit B are not his (pp. 415-7 435-6, 457, t. s. n., Id.);
that the final draft of the first will made up of four or five pages (p. 400, t. s. n., Id.) was signed and executed, two or three months after Suntay and
Lopez had called on him (pp. 397-8, 403, 449, t. s. n., Id.) in his office at the Cebu Portland Cement in the China Banking Building on Dasmarias
street by Jose B. Suntay, Manuel Lopez and a Chinaman who had all come from Hagonoy (p. 398, t. s. n., Id.); that on that occasion they brought
an envelope (Exhibit A) where the following words were written: "Testamento de Jose B. Suntay" (pp. 399, 404, t. s. n., Id.); that after the signing of
the will it was placed inside the envelope (Exhibit A) together with an inventory of the properties of Jose B. Suntay and the envelope was sealed by
the signatures of the testator and the attesting witnesses (pp. 398, 401, 441, 443, 461, t. s. n., Id.); that he again saw the envelope (Exhibit A) in his
house one Saturday in the later part of August 1934, brought by Go Toh and it was then in perfect condition (pp. 405-6, 411, 440-2, t. s. n., Id.); that
on the following Monday Go Toh went to his law office bringing along with him the envelope (Exhibit A) in the same condition; that he told Go Toh
that he would charge P25,000 as fee for probating the will (pp. 406, 440-2, Id.); that Go Toh did not leave the envelope (Exhibit A) either in his
house or in his law office (p. 407, t. s. n., Id.); that Go Toh said he wanted to keep it and on no occasion did Go Toh leave it to him (pp. 409, 410, t.
s. n., Id.).
The testimony of Go Toh taken and heard by Assistant Fiscal F. B. Albert in connection with the complaint for estafa filed against Manuel Suntay for
the alleged snatching of the envelope (Exhibit A), corroborates the testimony of Alberto Barretto to the effect that only one will was signed by Jose
B. Suntay at his office in which he (Alberto Barretto), Manuel Lopez and Go Toh took part as attesting witnesses (p. 15, t. s. n., Exhibit 6). Go Toh
testified before the same assistant fiscal that he did not leave the will in the hands of Anastacio Teodoro (p. 26, t. s. n., Exhibit 6). He said, quoting
his own words, "Because I can not give him this envelope even though the contract (on fees) was signed. I have to bring that document to court or
to anywhere else myself." (p. 27, t. s. n., Exhibit 6).
As to the will claimed to have been executed on 4 January 1931 in Amoy, China, the law on the point in Rule 78. Section 1 of the rule provides:
Wills proved and allowed in a foreign country, according to the laws of such country, may be allowed, filed, and recorded by the proper Court of First
Instance in the Philippines.
Section 2 provides:
When a copy of such will and the allowance thereof, duly authenticated, is filed with a petition for allowance in the Philippines, by the executor or
other person interested, in the court having jurisdiction, such court shall fix a time and place for the hearing, and cause notice thereof to be given as
in case of an original will presented for allowance.
Section 3 provides:
If it appears at the hearing that the will should be allowed in the Philippines, the court shall so allow it, and a certificate of its allowance, signed by
the Judge, and attested by the seal of the courts, to which shall be attached a copy of the will, shall be filed and recorded by the clerk, and the will
shall have the same effect as if originally proved and allowed in such court.

Succession 17
The fact that the municipal district court of Amoy, China, is a probate court must be proved. The law of China on procedure in the probate or
allowance of wills must also be proved. The legal requirements for the execution of a valid will in China in 1931 should also be established by
competent evidence. There is no proof on these points. The unverified answers to the questions propounded by counsel for the appellant to the
Consul General of the Republic of China set forth in Exhibits R-1 and R-2, objected to by counsel for the appellee, are inadmissible, because apart
from the fact that the office of Consul General does not qualify and make the person who holds it an expert on the Chinese law on procedure in
probate matters, if the same be admitted, the adverse party would be deprived of his right to confront and cross-examine the witness. Consuls are
appointed to attend to trade matters. Moreover, it appears that all the proceedings had in the municipal district court of Amoy were for the purpose
of taking the testimony of two attesting witnesses to the will and that the order of the municipal district court of Amoy does not purport to probate the
will. In the absence of proof that the municipal district court of Amoy is a probate court and on the Chinese law of procedure in probate matters, it
may be presumed that the proceedings in the matter of probating or allowing a will in the Chinese courts are the a deposition or to a perpetuation of
testimony, and even if it were so it does not measure same as those provided for in our laws on the subject. 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 toe
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.
The order of the municipal district court of Amoy, China, which reads as follows:
ORDER:
SEE BELOW
The above minutes were satisfactorily confirmed by the interrogated parties, who declare that there are no errors, after said minutes were loudly
read and announced actually in the court.
Done and subscribed on the Nineteenth day of the English month of the 35th year of the Republic of China in the Civil Section of the Municipal
District Court of Amoy, China.
HUANG KUANG CHENG
Clerk of Court
CHIANG TENG HWA
Judge
(Exhibit N-13, p. 89 Folder of Exhibits.).
does not purport to probate or allow the will which was the subject of the proceedings. 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 this country.
The decree appealed from is affirmed, without pronouncement as to costs.
Pablo, Bengzon, A. Reyes, Labrador and Concepcion, JJ., concur.
Separate Opinions
PARAS, C.J., dissenting:
As a preliminary statement we may well refer to the case of Maria Natividad Lim Billian, petitioner and appellant, vs. Apolonio Suntay, Angel Suntay,
Manuel Suntay, and Jose Suntay, oppositors and appellees, 63 Phil., 793-797, in which the following decision was rendered by this Court on
November 25, 1936, holding that the will executed by Jose B. Suntay who died in the City of Amoy, China, on May 14, 1934, was lost under the
circumstances pointed out therein, and ordering the return of the case to the Court of First Instance of Bulacan for further proceedings:
On May 14, 1934, Jose B. Suntay died in the City of Amoy, China. He married twice, the first time to Manuela T. Cruz with whom he had several
children now residing in the Philippines, and the second time to Maria Natividad Lim Billian with whom he had a son.
On the same date, May 14, 1934, Apolonio Suntay, eldest son of the deceased by his first marriage, filed the latter's intestate in the Court of First
Instance of Manila (civil case No. 4892).
On October 15, 1934, and in the same court, Maria Natividad Lim Billian also instituted the present proceedings for the probate of a will allegedly
left by the deceased.
According to the petitioner, before the deceased died in China he left with her a sealed envelope (Exhibit A) containing his will and, also another
document (Exhibit B of the petitioner) said to be a true copy of the original contained in the envelope. The will in the envelope was executed in the
Philippines, with Messrs. Go Toh, Alberto Barretto and Manuel Lopez as attesting witnesses. On August 25, 1934, Go Toh, as attorney-in-fact of the
petitioner, arrived in the Philippines with the will in the envelope and its copy Exhibit B. While Go Toh was showing this envelope to Apolonio Suntay
and Angel Suntay, children by first marriage of the deceased, they snatched and opened it and, after getting its contents and throwing away the
envelope, they fled.
Upon this allegation, the petitioner asks in this case that the brothers Apolonio, Angel, Manuel and Jose Suntay, children by the first marriage of the
deceased, who allegedly have the document contained in the envelope which is the will of the deceased, be ordered to present it in court, that a day
be set for the reception of evidence on the will, and that the petitioner be appointed executrix pursuant to the designation made by the deceased in
the will.
In answer to the court's order to present the alleged will, the brothers Apolonio, Angel, Manuel and Jose Suntay stated that they did not have the
said will and denied having snatched it from Go Toh.

Succession 18
In view of the allegations of the petition and the answer of the brothers Apolonio, Angel, Manuel and Jose Suntay, the questions raised herein are:
The loss of the alleged will of the deceased, whether Exhibit B accompanying the petition is an authentic copy thereof, and whether it has been
executed with all the essential and necessary formalities required by law for its probate.
At the trial of the case on March 26, 1934, the petitioner put two witnesses upon the stand, Go Toh and Tan Boon Chong, who corroborated the
allegation that the brothers Apolonio and Angel appropriated the envelope in the circumstances above-mentioned. The oppositors have not adduced
any evidence counter to the testimony of these two witnesses. The court, while making no express finding on this fact, took it for granted in its
decision; but it dismissed the petition believing that the evidence is insufficient to establish that the envelope seized from Go Toh contained the will
of the deceased, and that the said will was executed with all the essential and necessary formalities required by law for its probate.
In our opinion, the evidence is sufficient to establish the loss of the document contained in the envelope. Oppositors' answer admits that, according
to Barretto, he prepared a will of the deceased to which he later become a witness together with Go Toh and Manuel Lopez, and that this will was
placed in an envelope which was signed by the deceased and by the instrumental witnesses. In court there was presented and attached to the case
an open and empty envelope signed by Jose B. Suntay, Alberto Barretto, Go Toh and Manuel Lopez. It is thus undeniable that this envelope Exhibit
A is the same one that contained the will executed by the deceased-drafted by Barretto and with the latter, Go Toh and Manuel Lopez as attesting
witnesses. These tokens sufficiently point to the loss of the will of the deceased, a circumstance justifying the presentation of secondary evidence of
its contents and of whether it was executed with all the essential and necessary legal formalities.
The trial of this case was limited to the proof of loss of the will, and from what has taken place we deduce that it was not petitioner's intention to
raise, upon the evidence adduced by her, the other points involved herein, namely, as we have heretofore indicated, whether Exhibit B is a true
copy of the will and whether the latter was executed with all the formalities required by law for its probate. The testimony of Alberto Barretto bears
importantly in this connection.
Wherefore, the loss of the will executed by the deceased having been sufficiently established, it is ordered that this case be remanded to the court
of origin for further proceedings in obedience to this decision, without any pronouncement as to the costs. So ordered
On June 18, 1947, Silvino Suntay, the herein petitioner, filed a petition in the Court of First Instance of Bulacan praying "that an order be issued (a)
either directing the continuation of the proceedings in the case remanded by the Supreme Court by virtue of its decision in G. R. No. 44276 and
fixing a date for the reception of evidence of the contents of the will declared lost, or the allowance, filing and recording of the will of the deceased
which had been duly probated in China, upon the presentation of the certificates and authentications required by Section 41, Rule 123 (Yu Chengco
vs. Tiaoqui supra), or both proceedings concurrently and simultaneously; (b) that letters of administration be issued to herein petitioner as coadministrator of the estate of the deceased together with Federico Suntay; and (c) that such other necessary and proper orders be issued which this
Honorable Court deems appropriate in the premises." While this petition was opposed by Federico C. Suntay, son of the deceased Jose B. Suntay
with his first wife, Manuela T. Cruz, the other children of the first marriage, namely, Ana Suntay, Aurora Suntay, Concepcion Suntay, Lourdes
Guevara Vda. de Suntay, Manuel Suntay and Emiliano Suntay, filed the following answer stating that they had no opposition thereto; "Come now
the heirs Concepcion Suntay, Ana Suntay, Aurora Suntay, Lourdes Guevara Vda. de Suntay, Manuel Suntay, and Emiliano Suntay, through their
undersigned attorney, and, in answer to the alternative petition filed in these proceedings by Silvino Suntay, through counsel, dated June 18, 1947,
to this Honorable Court respectfully state that, since said alternative petition seeks only to put into effect the testamentary disposition and wishes of
their late father, they have no opposition thereto."
After hearing, the Court of First Instance of Bulacan rendered on April 19, 1948, the following decision:
This action is for the legalization of the alleged will of Jose B. Suntay, deceased.
In order to have a comprehensive understanding of this case, it is necessary to state the background on which the alternative petition of the herein
petitioner Silvino Suntay has been based.
The decision of the Supreme Court (Exhibit O), in re will of the deceased Jose B. Suntay, 63 Phil., 793-797, is hereunder produced:
(As quoted above)
The above quoted decision of the Supreme Court was promulgated on November 25, 1936 (Exhibit O).
The Clerk of the Court of Court of First Instance of Bulacan notified the parties of the decision on December 15, 1936; and the case was set for
hearing on February 12, 1937, but it was transferred to March 29, 1937 (Exhibit O), on motion of the then petitioner Maria Natividad Lim Billian
(Exhibit F). Again, it was postponed until "further setting" in the order of court dated March 18, 1937, upon motion of the petitioner (Exhibit H).
In the meantime, the deposition of Go Toh was being sought (Exhibit H).
The hearing of the case was again set for February 7, 1936, by order of the court dated January 5, 1938, upon motion of Emiliano Suntay and Jose
Suntay, Jr. On the same day of the hearing which had been set, the petitioner, then, Maria Natividad Lim Billian, sent a telegram from Amoy, China,
addressed to the Court of First Instance of Bulacan moving for the postponement of the hearing on the ground that Atty. Eriberto de Silva who was
representing her died (Exhibit K). The court, instead of granting the telegraphic motion for postponement, dismissed the case in the order dated
February 7, 1938 (Exhibit L).
On July 3, 1947, the petitioner Silvino Suntay filed a motion for the consolidation of the intestate Estate of the deceased Jose B. Suntay, Special
Proceeding No. 4892 and the Testate Estate of Jose B. Suntay, Special Proceeding No. 4952, which latter case is the subject of the said alternative
petition. The motion for the merger and consolidation of the two cases was granted on July 3, 1947.
That oppositor, Federico C. Suntay, in the Testate Proceeding filed a motion to dismiss the alternative petition on November 14, 1947, which was
denied by the court in its resolution of November 22, 1947. The said oppositor not being satisfied with the ruling of this court denying the motion to
dismiss, filed before the Supreme Court a petition for a writ of certiorari with preliminary injunction, which was dismissed for lack of merit on January
27, 1948.
In obedience to the decision of the Supreme Court (Exhibit O) and upon the alternative petition of Silvino Suntay, and, further, upon the dismissal of
the petition for a writ of certiorari with preliminary injunction, the court was constrained to proceed with the hearing of the probate of the lost will, the
draft of which is Exhibit B, or the admission and recording of the will which had been probated in Amoy, China.
The evidence for the petitioner, Silvino Suntay, shows that Jose B. Suntay married twice; first to Manuela T. Cruz who died on June 15, 1920 and
had begotten with her Apolonio, now deceased, Concepcion, Angel, Manuel, Federico, Ana, Aurora, Emiliano and Jose, Jr., all surnamed Suntay,
and second, to Maria Natividad Lim Billian with whom he had as the only child Silvino Suntay, the petitioner herein.

Succession 19
Some time in November 1929, Jose B. Suntay executed his last will and testament in the office of Atty. Alberto Barretto in Manila, which was
witnessed by Alberto Barretto, Manuel Lopez and Go Toh. The will was prepared by said Alberto Barretto upon the instance of Jose B. Suntay, and
it was written in the Spanish language which was understood and spoken by said testator. After the due execution of the will, that is signing every
page and the attestation clause by the testator and the witnesses in the presence of each other, the will was placed inside the envelope (Exhibit A),
sealed and on the said envelope the testator and the three subscribing witnesses also signed, after which it was delivered to Jose B. Suntay.
A year or so after the execution of the will, Jose B. Suntay together with his second wife Maria Natividad Lim Billian and Silvino Suntay who was
then of tender age went to reside in Amoy, Fookien, China, where he died on May 14, 1934. The will was entrusted to the widow, Maria Natividad
Lim Billian.
Upon the death of Jose B. Suntay on May 14, 1934, Apolonio Suntay, the oldest son now deceased, instituted the Intestate Proceedings No. 4892,
upon the presumption that no will existed. Maria Natividad Lim Billian who remained in Amoy, China, had with her the will and she engaged the
services of the law firm of Barretto and Teodoro for the probate of the will. Upon the request of the said attorneys the will was brought to the
Philippines by Go Toh who was one of the attesting witnesses, and it was taken to the law office of Barretto and Teodoro. The law firm of Barretto
and Teodoro was composed of Atty. Alberto Barretto and Judge Anastacio Teodoro. The probate of the will was entrusted to the junior partner Judge
Anastacio Teodoro; and, upon the presentation of the sealed envelope to him, he opened it and examined the said will preparatory to the filing of
the petition for probate. There was a disagreement as to the fees to be paid by Maria Natividad Lim Billian, and as she (through Go Toh) could not
agree to pay, P20,000 as fees, the will was returned to Go Toh by Judge Anastacio Teodoro after the latter had kept it in his safe, in his office, for
three days.
Subsequently, the will inside the envelope was snatched from Go Toh by Manuel Suntay and Jose, Jr., which fact has been established in the
decision of the Supreme Court at the beginning of this decision. Go Toh could recover the envelope (Exhibit A) and the piece of cloth with which the
envelope was wrapped (Exhibit C).
The Testate Proceeding was filed nevertheless and in lien of the lost will a draft of the will (Exhibit B) was presented as secondary evidence for
probate. It was disallowed by this court through Judge Buenaventura Ocampo, but on appeal the Supreme Court remanded the case to this court
for further proceeding (Exhibit C).
In the meantime, a Chinese will which was executed in Amoy Fookien, China, on January 4, 1931, by Jose B. Suntay, written in Chinese characters
(Exhibit P) was discovered in Amoy, China, among the papers left by Jose B. Suntay, and said will had been allowed to probate in the Amoy District
Court, China, which is being also presented by Silvino Suntay for allowance and recording in this court.
The said petition is opposed by Federico C. Suntay on the main ground that Maria Natividad Lim Billian and Silvino Suntay have no more interest in
the properties left by Jose B. Suntay, because they have already sold their respective shares, interests and participations. But such a ground of
opposition is not of moment in the instant case, because the proposition involved herein in the legalization of the lost will or the allowance and
recording of the will which had been probated in Amoy, China.
It is now incumbent upon this court to delve into the evidence whether or not Jose B. Suntay, deceased, left a will (the draft of which is Exhibit B)
and another will which was executed and another will which was executed and probated in Amoy, China.
There is no longer any doubt that Jose B. Suntay while he was still residing in the Philippines, had executed a will; such is the conclusion of the
Supreme Court in its decision (Exhibit O). That the will was snatched and it has never been produced in court by those who snatched it, and
consequently considered lost, is also an established fact.
The contention of the oppositor, Federico C. Suntay, is that the will that was executed by Jose B. Suntay in the Philippines contained provisions
which provided for equal distribution of the properties among the heirs; hence, the draft (Exhibit B) cannot be considered as secondary evidence,
because it does not provide for equal distribution, but if favors Maria Natividad Lim Billian and Silvino Suntay. He relies on the testimony of Atty.
Alberto Barretto who declared that the first will which he drafted and reduced into a plain copy was the will that was executed by Jose B. Suntay and
placed inside the envelope (Exhibit A).
Granting that the first will which Atty. Alberto Barretto had drafted became the will of Jose B. Suntay and it was snatched by, and, therefore, it had
fallen into the hands of, Manuel Suntay and the brothers of the first marriage, it stands to reason that said Manuel Suntay and brothers would have
been primarily interested in the production of said will in court, for obvious reasons, namely, that they would have been favored. But it was
suppressed and "evidence willfully suppressed would be adverse if produced" (Section 69 (e), Rule 123 of the Rules of Court). The contention,
therefore, that the first will which was drafted by Atty. Barretto was the one placed inside the envelope (Exhibit A) is untenable.
It might be said in this connection that the draft of the will (Exhibit B) has been admitted by Atty. Alberto Barretto as identical in substance and form
to the second draft which he prepared in typewriting; it differs only, according to him, in style. He denied that the insertions in long hand in the said
draft are in his own handwriting; however, Judge Anastacio Teodoro averred that the said insertions are the handwriting of Atty. Alberto Barretto. But
when Atty. Alberto Barretto was asked to show any manuscript of his for purposes of comparison, he declined to do so alleging that he did not have
any document in his possession showing his handwriting notwithstanding the fact that he was testifying in his own house at 188 Sta. Mesa
Boulevard, Manila. He further testified that the first will be drafted contained four or five pages, but the second draft contained twenty-three pages;
that he declared in one breath that he did not read the will any more when it was signed by the testator and the attesting witnesses because it would
take up much time, and in the same breath he declared that he checked it before it was signed; and that he destroyed the draft of the first will which
was in his own handwriting, but he delivered the draft of the second will which he prepared to Jose B. Suntay in the presence of Manuel Lopez, now
deceased.
Whether or not the final plain copy of the draft of the will (Exhibit B) was executed by the testator, Jose B. Suntay, and attested by the subscribing
witnesses, Atty. Alberto Barretto, Manuel Lopez and Go Toh, is the pivotal point in this instant case. Judge Anastacio Teodoro testified that he
opened the sealed envelope when it was given to him by Go Toh preparatory to the presentation of the petition for the probate of the said will. As
the lawyer entrusted with that task, he had to examine the will and have it copied to be reproduced or appended to the petition. He could not do
otherwise if he is worth salt as a good lawyer; he could not perform the stunt of "blind flying" in the judicial firmament. Every step must be taken with
certainty and precision under any circumstances. He could not have talked about the attorney's fees with Go Toh, unless he has not examined the
will beforehand. And, declaring that it was the exact draft of the will that was inside the envelope (Exhibit A), the testimony of Atty. Alberto Barretto to
the contrary notwithstanding.
The testimony of Judge Anastacio Teodoro is corroborated by Go Toh, one of the attesting witnesses, in his deposition (Exhibit D-1).
Ana Suntay, one of the heirs and who would be affected adversely by the legalization of the will in question, also testified on rebuttal that she saw
the original will in the possession of Manuel Suntay, immediately after the snatching. She read it and she particularly remembers the manner in
which the properties were to be distributed. Exhibit B was shown to her on the witness stand and she declared that the provision regarding the

Succession 20
distribution of the properties in said Exhibit B is the same as that contained in the original will. Said testimony of Ana Suntay, therefore, belies the
testimony of Atty. Alberto Barretto.
With respect to the proof of lost or destroyed will, Section 6 of Rule 77 provides as follows:
"No will shall be proved as a lost or destroyed will unless the execution and validity of the same be established, and the will is proved to have been
in existence at the time of the death of the testator, or it is shown to have been fraudulently or accidentally destroyed in the lifetime of the testator
without his knowledge, nor unless its provisions are clearly and distinctly proved by at least two credible witnesses. When a lost will is proved, the
provisions thereof must be distinctly stated and certified by the judge, under the seal of the court, and the certificate must be filed and recorded as
other wills are filed and recorded."
Section 8 of the same Rule provides as follows:
"If it appears at the time fixed for the hearing that the subscribing witnesses are dead or insane, or that none of them resides in the Philippines the
court may admit the testimony of other witnesses to prove the sanity of the testator, and the due execution of the will; and as evidence of the due
execution of the will, it may admit proof of the handwriting of the testator and of the subscribing witnesses, or any of them."
Manuel Lopez as one of the subscribing witnesses is dead. Atty. Alberto Barretto and Go Toh are still living. The former testified during the hearing,
while Go Toh's deposition was introduced in evidence which was admitted. In the absence of the testimony of Manuel Lopez, deceased, the
testimony of Judge Anastacio Teodoro and Ana Suntay was received.
It is an established fact that the will, draft of which is Exhibit B, was lost or destroyed; that it was executed and valid and that it existed at the time of
the death of Jose B. Suntay. These circumstances also apply to the will (Exhibit P) which was executed in Amoy, China.
The contents of the Chinese will is substantially the same as the draft (Exhibit B). Granting that the will executed in the Philippines is non-existent
as contended by the oppositor, although the findings of this court is otherwise, the will executed and probated in China should be allowed and
recorded in this court. All the formalities of the law in China had been followed in its execution, on account of which it was duly probated in the Amoy
District Court. There is no cogent reason, therefore, why it should not be admitted and recorded in this jurisdiction.
The said will (Exhibit P) in Chinese characters is presented as an alternate in case the will executed in the Philippines would not be allowed to
probate, or as a corroborative evidence that the will, the draft of which is Exhibit B, has been duly executed in the Philippines by Jose B. Suntay.
Rule 78 of the Rules of Court covers the allowance of will proved outside of the Philippines and administration of estate thereunder.
Section 1 of said rule provides:
"Wills proved and allowed in the United States, or any state or territory thereof, or in foreign country, according to the laws of such state, territory, or
country, may be allowed, filed, and recorded by the proper Court of First Instance in the Philippines."
Section 2 of the same rule provides:
"When a copy of such will and the allowance thereof, duly authenticated, is filed with a petition for allowance in the Philippines, by the executor or
other person interested, in the court having jurisdiction, such court shall fix a time and place for the hearing, and cause notice thereof to be given as
in case of an original will presented for allowance."
This court has delved deep into the evidence adduced during the hearing with that penetrating scrutiny in order to discovery the real facts; it had
used unsparingly the judicial scapel; and it has winnowed the evidenced to separate the grain from the chaff. All the facts lead to the inevitable
conclusion that Jose B. Suntay, in his sound and disposing mind and not acting under duress or undue influence, executed the will which is lost, the
draft of which is Exhibit B, with all the necessary formalities prescribed by law. He, likewise, executed the second will (Exhibit P) in Amoy, China,
which has been duly probated in Amoy District Court,-a corroborative evidence that the testator really executed the will. Copies of the said wills duly
certified and under the seal of the court are appended hereto, marked Exhibits B and P, and they form part of this decision.
In view of the foregoing considerations, the court is of the opinion and so declares that the draft of the will (Exhibit B) is, to all legal intents and
purposes, and testament of the deceased Jose B. Suntay. With costs against the oppositor, Federico C. Suntay.
Oppositor Federico C. Suntay filed on May 20, 1948, a motion for new trial and to set aside the decision rendered on April 19, 1948, to which the
petitioner filed an opposition, followed by a reply filed by the oppositor and an answer on the part of the petitioner. Without reopening the case and
receiving any new or additional evidence, the Court of First Instance of Bulacan, on September 29, 1948, promulgated the following resolution
setting aside his first decision and disallowing the wills sought to be probated by the petitioner in his alternative petition filed on June 18, 1947:
This is a motion for new trial and to set aside the decision legalizing the will of Jose B. Suntay and allowing and recording another will executed by
him in Amoy, China.
By virtue of this motion, this court is constrained to go over the evidence and the law applicable thereto with the view of ascertaining whether or not
the motion is well founded. Both parties have presented extensive memoranda in support of their respective contentions.
This court has gone over the evidence conscientiously, and it reiterates its findings of the same facts in this resolution, whether or not the facts
established by the petitioner, Silvino Suntay, warrant the legalization of the lost will and the allowance and recording of the will that was executed in
Amoy, China, is therefore, the subject of this instant motion.
A. As to the legalization of the Lost Will. There is no question in the mind of this court that the original will which Jose B. Suntay, deceased
executed in the Philippines in the year 1929 was lost (Exhibit O, Decision of the Supreme Court). The evidence adduced by the petitioner during the
hearing has established through the testimony of Judge Anastacio Teodoro and that of Go Toh (an attesting witness) that the will was executed by
Jose B. Suntay, deceased, with all the formalities required by law. For the purpose of legalizing an original and existing will, the evidence on record
is sufficient as to the execution and attesting in the manner required by law.
Section 8 of Rule 77 provides as follows:
"SEC. 8. Proof when witnesses dead or insane or do not reside in the Philippines. If it appears at the time fixed for the hearing that the
subscribing witnesses are dead or insane, or that none of them resides in the Philippines, the court may admit the testimony of other witnesses to
prove the sanity of the testator, and the due execution of the will; and as evidence of the execution of the will, may admit proof of the handwriting of
the testator and of the subscribing witnesses, or any of them."

Succession 21
Section 11 of said rule also provides as follows:
"SEC. 11. Subscribing witnesses produced or accounted for where contest. If the will is contested, all the subscribing witnesses present in the
Philippines and not insane, must be produced and examined, and the death, absence, or insanity of any of them must be satisfactorily shown to the
court. If all or some of the subscribing witnesses are present in the Philippines, but outside the province where the will has been filed, their
deposition must be taken. If all or some of the subscribing witnesses produced and examined testify against the due execution of the will, or do not
remember having attested to it, or are otherwise of doubtful credibility, the will may be allowed if the court is satisfied from the testimony of other
witnesses and from all the evidence presented that the will was executed and attested in the manner required by law."
The three attesting witnesses were Manuel Lopez, deceased Alberto Barretto and Go Toh. The last two witnesses are still living; the former testified
against and the latter in favor. In other words, the attesting witness, Go Toh, only, testified in his deposition in favor of the due execution of the will.
Hence, the petitioner presented another witness, Judge Anastacio Teodoro, to establish and prove the due execution of the said will. Ana Suntay
was also presented as a witness in rebuttal evidence. The testimony of Go Toh in his deposition as an attesting witness, coupled with the testimony
of Judge Anastacio Teodoro who was able to examine the original will that was executed by Jose B. Suntay, deceased, when it was given to him by
Go Toh for the purpose of filing the petition in court for its legalization, and could recognize the signatures of the testator as well as of the three
attesting witnesses on the said original will is sufficient to convince the court that the original will was executed by the deceased Jose B. Suntay with
all the formalities required by law. The original will, therefore, if it was presented in court to probate would be allowed to all legal intents and
purposes. But it was not the original will that was presented, because it was lost, but an alleged draft (Exhibit B) of the said original will which does
not bear the signature of the testator and any of the attesting witness. The original will was duly executed with all the formalities required by law, but
it was unfortunately lost; and the curtain falls for the next setting.
The Court is now confronted with the legalization of the lost will whether or not the draft (Exhibit B) should be admitted as secondary evidence in
lieu of the lost will and allowed to probate.
Section 6. Rule 77 provides as follows:
"SEC. 6. Proof of lost or destroyed will Certificate thereupon. No will shall be proved as a lost will or destroyed will unless the execution and
validity of the same be established, and the will is proved to have been in existence at the time of the death of the testator, or is shown to have been
fraudulently or accidentally destroyed in the lifetime of the testator without his knowledge, nor unless its provisions are clearly and distinctly proved
by at least two credible witnesses. When a lost will is proved, the provisions thereof must be distinctly stated and certified by the Judge, under the
seal of the court and the certificate must be filed and recorded as other wills are filed and recorded." (Emphasis Court's)
From the above quoted provision of the law, it is clear that the petitioner should not only establish the execution and validity of the will, its existence
at the time of the death of the testator or its fraudulent and accidental destruction in the lifetime of the testator without his knowledge, but also must
prove its provisions clearly and distinctly by at least two credible witnesses. The exact language of the clause in the above quoted provision of the
law is "nor unless its provisions are clearly and distinctly proved by at least two credible witnesses." The legalization of a lost will is not so easy,
therefore, as that of an original will. The question, therefore, is boiled down to, and projected on the screen, in a very sharp focus; namely, the
execution and validity must be established and the provisions must be clearly and distinctly proved by at least credible witnesses.
Granting that the execution and validity of the lost will have been established through the testimony of Judge Anastacio Teodoro and Go Toh, and
perhaps superficially by the rebuttal witness, Ana Suntay, does it follow that the provisions of the lost will have been clearly and distinctly proved by
at least two credible witnesses? A careful review of the evidence has revealed that at most the only credible witness who testified as to the
provisions of the will was Judge Anastacio Teodoro, and yet he testified on the provisions of the lost will with the draft (Exhibit B) in his hands while
testifying. It may be granted, however, that with or without the draft of the will (Exhibit B) in his hands, he could have testified clearly and distinctly
on the provisions of the said lost will, because he had kept the will in his safe, in his office, for three days, after opening it, and he is well versed in
Spanish language in which the will as written. But did the attesting witness Go Toh, testify in his deposition and prove clearly and distinctly the
provisions of the lost will? He did not, and he could not have done so even if he tried because the original will was not read to him nor by him before
or at the signing of the same. It was written in Spanish and he did not and does not understand the Spanish language. Neither was there any
occasion for him to have the contents of the said will, after its execution and sealing inside the envelope (Exhibit A), read to him because it was
opened only when Judge Teodoro had examined it and then subsequently snatched from Go Toh. Ana Suntay on rebuttal did not, likewise, prove
clearly and distinctly the provisions of the said lost will because she has not had enough schooling and she does possess adequate knowledge of
the Spanish language as shown by the fact that she had to testify in Tagalog on the witness standing.
It is evident, therefore, that although the petitioner has established the execution and validity of the lost will, yet he had not proved clearly and
distinctly the provisions of the will by at least two credible witnesses.
B. As to the Allowance and Recording of the will Executed in Amoy, China. Jose B. Suntay, while he was residing in China during the remaining
years of his life, executed also a will, written in Chinese characters, the translation of which is marked Exhibit P. It was allowed to probate in the
District Court of Amoy, China. The question is whether or not the said will should be allowed and recorded in this jurisdiction.
Section 1 of Rule 78 provides as follows:
"SEC. 1. Will proved outside Philippines any be allowed here. Will proved and allowed in the United States, or any state or territory thereof, or in
a foreign country, according to the laws of such state, territory, or country, may be allowed, filed, and recorded by the proper court of First Instance
in the Philippines."
Section 2 of the same Rule also provides:
"SEC. 2. Notice of hearing for allowance. When a copy of such will and the allowance thereof, duly authenticated, is filed with a petition for
allowance in the Philippines by the executor or other persons interested, in the Court having jurisdiction, such court shall fix a time and place for the
hearing, and cause notice thereof to be given as in case of an original will presented for allowance."
Sections 41 and 42 of Rule 123 provides as follows:
"SEC. 41. Proof of Public or official record. An official record or an entry therein, when admissible for any purpose, may be evidenced by an
official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied, if the
record is not kept in the Philippines, with a certificate that such officer has the custody. If the office in which the record is kept is within the United
States or its territory, the certificate may be made by a judge of a court of record of the district or political subdivision in which the record is kept,
authenticated by the seal of the court, or may be made by any public officer having a seal of the office and having official duties in the district or
political subdivision in which the record is kept, authenticated by the seal of his office. If the office in which the record is kept is in a foreign country,

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the certificate may be made by a secretary of embassy or legation, consul general, consul, vice consul, or consular agent or by any officer in the
foreign service of the United States stationed in the foreign country in which the record is kept, and authenticated by the seal of his office."
F. "SEC. 42. What attestation of copy must state. Whenever a copy of writing is attested for the purpose of evidence, the attestation must state,
in substance, that the copy is a correct copy of the original, or a specific part thereof, as the case may be. The attestation must be under the official
seal of the attesting officer, if there be any, or if he be the clerk of a court having a seal, under the seal of such court."
In the case of Yu Changco vs. Tiaoqui, 11 Phil. 598, 599, 600, our Supreme Court said:
"Section 637 of the Code of Civil Procedure says that will proved and allowed in a foreign country, according to the laws of such country, may be
allowed, filed, and recorded in the Court of First Instance of the province in which the testator has real or personal estate on which such will may
operate; but section 638 requires that the proof of the authenticity of a will executed in a foreign country must be duly "authenticated". Such
authentication, considered as a foreign judicial record, is prescribed by section 304, which requires the attestation of the clerk or of the legal keeper
of the records with the seal of the court annexed, if there be a seal, together with a certificate of the chief judge or presiding magistrate that the
signature of either of the functionaries attesting the will is genuine, and, finally, the certification of the authenticity of the signature of such judge or
presiding magistrate, by the ambassador, minister, consul, vice consul or consular agent of the United States in such foreign country. And, should
the will be considered, from an administrative point of view, as a mere official document 'of a foreign country', it may be proved, 'by the original, or
by a copy certified by the legal keeper thereof, with a certificate, under the seal of the country or sovereign, that the document is a valid and
subsisting document of such country, and that the copy is duly certified by the officer having the legal custody of the original. (Sec. 313, par. 8)."
In the case of Fluemer vs. Hix, 54 Phil. 610, 611, 612, and 613, our Supreme Court said:
"It is the theory of the petitioner that the alleged will was executed in Elkins, West Virginia, on November 3, 1925, by Hix who had his residence in
that jurisdiction, and that the laws of West Virginia govern. To this end, there was submitted a copy of section 3868 of Acts 1882, c. 84 as found in
West Virginia Code, Annotated, by Hogg, Charles E., Vol. 2, 1914, p. 1690, and as certified to by the Director of the National Library. But this was
far from compliance with the law. The laws of a foreign jurisdiction do not prove themselves in our courts. The courts of the Philippine Islands are
not authorized to take judicial notice of the laws of the various States of the American Union. Such laws must be proved as facts. (In re Estate of
Johnson (1918), 39 Phil., 156.) Here the requirements of the law were not met. There was not showing that the book from which an extract was
taken was printed or published under the authority of the State of West Virginia, as provided in section 300 of the Code of Civil Procedure. Nor was
the extract from the law attested by the certificate of the officer having charge of the original under the seal of the State of West Virginia, as provided
in section 301 of the Code of Civil Procedure. No evidence was introduced to show that the extract from the laws of West Virginia was in force at the
time the alleged will was executed.
"It was also necessary for the petitioner to prove that the testator had his domicile in West Virginia and not in the Philippine Islands. The only
evidence introduced to establish this fact consisted of the recitals in the alleged will and the testimony of the petitioner.
"While the appeal was pending submission in this court, the attorney for the appellant presented an unverified petition asking the court to accept as
part of the evidence the documents attached to the petition. One of these documents discloses that a paper writing purporting to be the last will and
testament of Edward Randolph Hix, deceased, was presented for probate on June 8, 1929, to the clerk of Randolph County, State of West Virginia,
in vacation, and was duly proven by the oaths of Dana Vansley and Joseph L. Madden, the subscribing witnesses thereto, and ordered to be
recorded and filed. It was shown by another document that in vacation, on June 8, 1929, the clerk of court of Randolph County, West Virginia,
appointed Claude E. Maxwell as administrator, cum testamento annexo, of the estate of Edward Randolph Hix, deceased ... However this may be
no attempt has been made to comply with the provisions of sections 637, 638, and 639 of the Code of Civil Procedure, for no hearing on the
question of the allowance of a will said to have been proved and allowed in West Virginia has been requested. ... ."
Granting that the will of Jose B. Suntay which was executed in Amoy, China, was validly done in accordance with the law of the Republic of China
on the matter, is it necessary to prove in this jurisdiction the existence of such law in China as a prerequisite to the allowance and recording of said
will? The answer is in the affirmative as enunciated in Fluemer vs. Hix, supra, and in Yanez de Barnuevo vs. Fuster, 29 Phil., 606. In the latter case,
the Supreme Court said:
"A foreign law may be proved by the certificate of the officer having in charge of the original, under the seal of the state or country. It may also be
proved by an official copy of the same published under the authority of the particular state and purporting to contain such law. (Secs. 300 and 301,
Act No. 190.), (Syllabus.)
The provisions of section 300 and 301 of the Code of Civil Procedure (Act No. 190) are as follows:
"SEC. 300. Printed laws of the State or Country. Books printed or published under the authority of the United States, or one of the States of the
United States, or a foreign country, and purporting to contain statutes, codes, or other written law of such State or country or proved to be
commonly admitted in the tribunals of such State or country an evidence of the written law thereof, are admissible in the Philippine Islands are
evidence of such law."
"SEC. 301. Attested copy of foreign laws. A copy of the written law or other public writing of any state or country, attested by the certificate of the
officer having charge of the original, under the seal of the state or country, is admissible as evidence of such law or writing."
The petitioner has presented in evidence the certification of the Chinese Consul General, Tsutseng T. Shen, of the existence of the law in China
(Exhibit B-3), relative to the execution and probate of the will executed by Jose B. Suntay in Amoy, China (Exhibit P). Is that evidence admissible, in
view of the provisions of Sections 41 and 42 of the Rules of the Rules of Court. Is the said certification of the Chinese Consul General in the
Philippines a substantial compliance with the provisions of the above mentioned section 41 and 42 of our Rules of Court?
This court has its doubts as to the admissibility in evidence of the Chinese Consul General in the Philippines of the existence of the laws of Republic
of China relative to the execution and probate of a will executed in China. Such law may exist in China, but
"An official record or an entry therein, when admissible for any purpose, may be evidence by an official publication thereof or by a copy attested by
the officer having the legal custody of the record, or by his deputy, and accompanied, if the record is not kept in the Philippines, with a certificate
that such officer has the custody. ... If the office in which the record is kept is in a foreign country, the certificate may be made by a secretary of
embassy or legation, consul general, consul, vice consul, or consular agent or by any officer in the foreign service of the United States stationed in
the foreign country in which the record is kept, and authenticated by the seal of his office." (Sec. 41 of Rule 123.)
The law of the Republic of China is a public or official record and it must be proved in this jurisdiction through the means prescribed by our Rules of
Court. It is, therefore, obvious that the Chinese Counsel General in the Philippines who certified as to the existence of such law is not the officer
having the legal custody of the record, nor is he a deputy of such officer. And, if the office in which the record is kept is in a foreign country, the

Succession 23
certificate may be made by a secretary of embassy or legation, consul general, consul, vice consul, or consular agent or by any officer in the foreign
service of the United States stationed in the foreign country in which the record is kept, and authenticated by the seal of his office.
It is clear, therefore, that the above provisions of the Rules of Court (Rule 123, sec. 41) not having been complied with, the doubt of this court has
been dissipated, and it is of the opinion and so holds that the certification of the Chinese Consul General alone is not admissible as evidence in the
jurisdiction.
The evidence of record is not clear as to whether Jose B. Suntay, who was born in China, but resided in the Philippines for a long time, has become
a Filipino citizen by naturalization, or he remained a citizen of the Republic of China. The record does not, likewise, show with certainty whether or
not he had changed his permanent domicile from the Philippines to Amoy, China. His change of permanent domicile could only be inferred. But the
question of his permanent domicile pales into insignificance in view of the overtowering fact that the law of China pertinent to the allowance and
recording of the said will in this jurisdiction has been satisfactorily established by the petitioner.
Both the petitioner and the oppositor have extensively urged in their respective memorandum and in the oral argument in behalf of the oppositor the
question of estoppel. The consideration of the points raised by them would open the door to the appreciation of the intrinsic validity of the provisions
of the will which is not of moment at the present stage of the proceeding. While the probate of a will is conclusive as to the compliance with all
formal requisites necessary to the lawful execution of the will, such probate does not affect the intrinsic validity of the provisions of the will. With
respect to the latter the will in governed by the substantive law relative to descent and distribution. (In re Johnson, 39 Phil., 157).
IN VIEW OF THE FOREGOING, and upon reconsideration, the previous decision rendered in this case allowing the will (Exhibit B) and allowing and
recording the foreign will (Exhibit P) is set aside; and this court is of the opinion and so holds that the said two wills should be, as they are hereby
disallowed. Without special pronouncement as to costs.
It is very significant that in the foregoing resolution, the Court of First Instance of Bulacan "reiterates its finding of the same facts in this resolution,"
and merely proceeds to pose the sole question "whether or not the facts established by the petitioner, Silvino Suntay, warrant the legalization of the
lost will and allowance and recording of the will that was executed in Amoy, China." The somersault executed by the trial court is premised on the
ground that "although the petitioner has established the execution and validity of the lost will, yet he has not proved clearly and distinctly the
provisions of the will by the least two credible witnesses"; and that, assuming that the will of Jose B. Suntay executed in Amoy, China, was in
accordance with the law of the Republic of China, the certification of the Chinese Consul General in the Philippines as the existence of such law is
not admissible evidence in this jurisdiction. In effect the resolution on the motion for reconsideration promulgated by the trial court, and the decision
of the majority herein, adopt the position that the testimony of Judge Anastacio Teodoro as to the provisions of the lost will, while credible and
perhaps sufficient in extent, is not corroborated by the witnesses Go Toh and Ana Suntay and, therefore, falls short of the requirement in section 6,
Rule 77, of the Rules of Court that the provisions of the lost will must be "clearly and distinctly proved by at least two witnesses." That this
requirement was obviously construed, to mean that the exact provisions are to be established, may be deduced from the following dialogue
between his Honor, Judge Potenciano Pecson, and attorney Teofilo Sison, new counsel for oppositor Federico C. Suntay, who appeared for the first
time at the ex parte hearing of the oppositor's motion for new trial on September 1, 1949:
COURT: However, Rule 77, Section 6, provides in proving a lost will, the provisions of the lost will must be distinctly stated and certified by the
Judge.
ATTY. TEOFILO SISON: Yes, Your Honor.
COURT: That presupposes that the judge could only certify to the exact provisions of the will from the evidence presented.
ATTY. TEOFILO SISON: That is our contention, provided that provision is clearly established by two credible witnesses so that the Court could state
that in the decision, we agree, that is the very point.
(t. s. n. 75, Session of Sept. 1, 1948)
The sound rule, however, as we have found it to be, as to the degree of proof required to establish the contents of a lost or destroyed will, is that
there is sufficient compliance if two witnesses have substantiated the provisions affecting the disposition of the testator's properties; and this is
especially necessary to prevent the "perpetration of fraud by permitting a presumption to supply the suppressed proof," to keep a wrong-doer from
utilizing the rule as his "most effective weapon," or to avoid the enjoyment of a "premium from the rascality of one whose interests might suggest the
destruction of a will."
Section 1865 of the Code requires that the provisions of a lost will must be clearly and distinctly proved by at least two credible witnesses before it
can be admitted to probate; but this section must receive a liberal construction (Hook vs. Pratt, 8 Hun. 102-109) and its spirit is complied with by
holding that it applies only to those provisions which affect the disposition of the testator's property and which are of the substance of the will.
The allegations of the contents of the will are general, and under ordinary circumstances, would be in sufficient; but the fact alleged, if proven as
alleged, would certainly authorize the establishment of the will so far as its bequests are concerned. To require that a copy of the will or the
language of the bequests, in detail, should be pleaded, where no copy has been preserved, and where the memory of the witnesses does not hold
the exact words, would not only deny the substance for mere form, but would offer a premium upon the rascality of one whose interests might
suggest the destruction of a will. As said in Anderson vs. Irwin, 101 Ill. 411: "The instrument in controversy having been destroyed without the fault
of the defendant in error ... and there not appearing to be any copy of it in existence, it would be equivalent to denying the complainant relief
altogether to require her to prove the very terms in which it was conceived. All that could reasonably be required of her under the circumstances
could be to show in general terms the disposition which the testator made of his property by the instruments; that it purported to be his will and was
duly attested by the requisite number of witnesses." In Allison vs. Allison, 7 Dana 91, it was said in speaking of the character and extent of proof
required in such a case:" nor is there any just ground to object to the proof because the witnesses have not given the language of the will or the
substance thereof. They have given the substance of the different devises as to the property or interest devised, and to whom devised and we
would not stop, in the case of a destroyed will, to scan with rigid scrutiny the form of the proof, provided we are satisfied of the substance of its
provisions." (Jose vs. Casler 139 Ind. 392, 38 N. E. 812).
The evidence in the case falls short of establishing the existence of such a writing, except as it may be presumed, under the maxim Omnia
preasumuntur in odium spoliateris." There was evidence tending to show that the second will of Anne Lambie was in the possession of Francis
Lambie, and that it came to the hands of the proponents, warranting the inference that it has been suppressed or destroyed. If from this evidence
the jury found such paper destroyed the law permits the presumption that it was legally drawn and executed, notwithstanding the terms of the
statute, which requires the revoking instrument to be formally executed. If a will be lost, secondary evidence may be given of its contents; if
suppressed or destroyed, the same is true; and, if necessary the law will prevent the perpetration of a fraud by permitting a presumption to supply
the suppressed proof. We cannot assent to the proposition that the statute is so right as to be the wrongdoer's most effective weapons. The
misconduct once established to the satisfaction of the jury, it is no hardship to the wrongdoer to say. "Produce the evidence in your possession, or
we will presume that your opponent's contention is true." When one deliberately destroys, or purposely induces another to destroy, a written

Succession 24
instrument subsequently become a matter of judicial inquiry between the spoliator and an innocent party, the latter will not be required to make strict
proof of the contents of such instrument in order to establish a right founded thereon. Brook, Leg. Max. 576, Preston vs. Preston, 132, Atl. 55, 61.
(Re Lambie's Estate, 97 Mich, 55,56 N. W. 225)
Judged from the standard set forth in the foregoing authorities, and bearing in mind that the circumstances of this case lead to the only conclusion
that the loss of the will in question is of course imputable to those whose interests are adverse to the petitioner and the widow Lim Billian, we have
no hesitancy in holding the view that the dispositions of the properties left by the deceased Jose B. Suntay is provided in his will which was lost or
snatched in the manner recited in the decision of this Court in the case of Lim Billian vs. Suntay, 63 Phil., 798-797, had been more than sufficiently
proved by the testimony of Judge Anastacio Teodoro, Go Toh, and Ana Suntay, supported conclusively by the draft of the lost will presented in
evidence as Exhibit "B", and even by the testimony of oppositor Federico C. Suntay himself.
It is to be recalled that the trial Judge, in his first decision of April 19, 1948, made the following express findings with respect to the testimony of
Judge Teodoro: "Judge Anastacio Teodoro testified that he opened the sealed envelope when it was given to him by Go Toh preparatory to the
presentation of the petition for the probate of the said will. As the lawyer entrusted with that task, he had to examine the will and have it copied to be
reproduced or appended to the petition. He could not do otherwise if he is worth his salt as a good lawyer. He could not perform the stunt of "blind
flying" in the judicial firmament. Every step must be taken with certainty and precision under any circumstances. He could not have talked about the
attorney's fees with Go Toh, unless he has not examined the will beforehand. And, when he was shown Exhibit B, he did not hesitate in declaring
that it was the exact draft of the will that was inside the envelope (Exhibit A), the testimony of Atty. Alberto Barretto to the contrary notwithstanding."
We should not forget, in this connection, that in the resolution on the motion for reconsideration the trial Judge reiterated the findings in his decision,
although as regards the testimony of Judge Teodoro admittedly "the only credible witness who testified as to the provisions of the will," he observed
that Judge Teodoro had the draft Exhibit "B" in his hands while testifying. We cannot see any justifying for the observation, assuming that Judge
Teodoro consulted the draft, since even the trial Judge granted that he "could have testified clearly and distinctly on the provisions of the said lost
will, because he had kept the will in his safe, in his office, for three days, after opening it, and he is well versed in Spanish language in which the will
was written." As a matter of fact, however, it is not true that Judge Teodoro had the draft in question before him while testifying as may be seen from
the following passages of the transcript:
Q. And, have you read that will which was inside this envelope, Exhibit A? "A. Yes.
Q. Do you remember more or less the contents of the will?
ATTY. FERRIN: With our objection, the best evidence is original will itself, Your Honor.
ATTY. RECTO: We are precisely proving by means of secondary evidence, the contents of the will, because according to the Supreme Court, and
that is a fact already decided, that the will of Jose B. Suntay was lost and that is res adjudicata.
COURT: Witness may answer.
WITNESS: I remember the main features of the will because as I said I was the one fighting for the postponement of the hearing of the intestate
case because I was asked by Don Alberto Barretto to secure the postponement until the will that was executed by the deceased is sent here by the
widow from China, with whom we communicated with several letters, and when the will arrived. I had to check the facts as appearing in the will, and
examined fully in connection with the facts alleged in the intestate, and there was a striking fact in the intestate that Apolonio Suntay has..
ATTY. FERRIN: (Interrupting) May we ask that the witness answer categorically the questions of Atty. Recto, it seems that the answers of the
witness are kilometric ...
ATTY. RECTO: Sometimes the question cannot be answered fully unless the witness would relate and give all the facts.
COURT: The Attorney for the Administrator may move for the striking out of any testimony that is not responsive to the question.
ATTY. FERRIN: That is why, our objection, the answer is out of the question.
COURT: Atty. Recto may propound another question.
ATTY. RECTO: I heard the witness was saying something and he has not finished the sentence, and I want to ask the Court just to allow the witness
to finish his sentence.
COURT: You may finish.
WITNESS: "A. There was a sentence, the point I was trying to check first was whether the value of the estate left by the deceased was SIXTY
THOUSAND PESOS (P60,000.00) as Apolonio Suntay made it appear in his petition, and when I looked at the original will, I found out that it was
several hundred thousand pesos, several thousands of pesos, hundreds of pesos, that was very striking fact to me because the petition for intestate
was for SIXTY THOUSAND PESOS (P60,000.00), and I came to know that it was worth more than SEVEN HUNDRED THOUSAND (P700,000.00)
PESOS.
Q. Do you remember, Judge, the disposition of the will, the main disposition of the will? "A. Yes, because our client were the widow, Maria
Natividad Lim Billian, and his son, Silvino, the only son in the second marriage, that was very important for me to know.
Q. How were the properties distributed according to that will?- "A. The properties were distributed into three (3) parts, one part which we call
legitima corta, were equally distributed to the ten (10) children, nine (9) in the first marriage, and one (1) in the second marriage with Maria
Natividad Lim Billian. The other third, the betterment was given to four (4) children, Concepcion, and Apolonio getting a quiet substantial share in
the betterment, around SIXTY THOUSAND (P60,000.00) for Concepcion, Apolonio the amount of SEVENTY THOUSAND (70,000,00) PESOS or
little over, and then about ONE HUNDRED THOUSAND (P100,000.00) PESOS of the betterment in favor of Silvino, the minor of the second
marriage, and to Jose equal to Concepcion.
Q. So the betterment, as I understand from you went to four (4) children?-"A. Yes.
Q. Silvino in the second marriage, Concepcion, Apolonio and Jose in the first marriage? " A. Yes.
Q. What about the free disposal?-" A. The free disposal was disposed in favor of the widow, Maria Natividad Lim Billian and Silvino, his minor son in
equal parts..

Succession 25
Q. What about, if you remember, if there was something in the will in connection with that particular of the usufruct of the widow? "A. It was
somewhat incorporated into the assets of the estate left by the deceased.
Q. Do you remember the number of pages of which that will consisted? "A. Twenty-three (23) pages.
Q. Do you remember if the pages were signed by the testator? "A. Yes, sir, it was signed.
Q. And the foot of the testament or the end of the testament, was it signed by the testator? "A. Yes, sir, and the attestation clause was the last
page signed by the three instrumental witnesses, Alberto Barretto, one Chinaman Go Toh, and Manuel Lopez, my former Justice of the Peace of
Hagonoy.
Q. Do you remember if there witnesses signed on the different pages of the will? "A. Yes, sir, they signed with their name signatures.
Q. Showing you this document consisting of twenty-three (23) pages in Spanish and which document appears already attached to this same
testamentary proceedings and already marked as EXHIBIT B, will you please tell the Court if and for instance on page eight (8) of this document,
pagina octavo, it says, there are handwritings in pencil, some of which read as follows: "Los cinco-octavos (5/8) partes corresponds a mi hijo
Emiliano", can you recognize whose handwriting is that? "A. From my best estimate it is the handwriting of Don Alberto Barretto.
Q. About the end of the same page eight (8) pagina octavo, of the same document Exhibit B, there is also the handwriting in pencil which reads: "La
otra sexta parte (6.a) corresponde a Bonifacio Lopez", can you recognize that handwriting? "A. Yes, sir, this is the handwriting of Don Alberto
Barretto, and I wish to call the attention of the Court to compare letter "B" which is in capital letter with the signature of Don Alberto Barretto in the
envelope, "Alberto Barretto" and stroke identifies one hand as having written those words.
Q. Will you please go over cursorily this document, Exhibit B composed of twenty-three (23) pages and please tell the Court if this document had
anything to do with the will which according to you was contained in the envelope, Exhibit A? "A. This is exactly the contents of the original will
which I received and kept in my office inside the safe for three (3) days, and I precisely took special case in the credits left by the deceased, and I
remember among them, were the De Leon family, and Sandiko, well known to me, and then the disposition of the estate, divided into three (3) equal
parts, and I noticed that they are the contents of the will read.
His Honor, Judge Pecson, was positive in his first decision that "the testimony of Judge Anastacio Teodoro is corroborated by Go Toh, one of the
attesting witnesses, in his deposition (Exhibit D-1)." Yet in setting aside his first decision, he remarked that Go Toh's testimony did not prove clearly
and distinctly the provision of the lost will, because: "He did not, and he could not have done so even if he tried because the original will was not
read to him nor by him before or at the signing of the same. It was written in Spanish and he did not and does not understand the Spanish
language. Neither was there any occasion for him to have the contents of the said will, after its execution and sealing inside the envelope (Exhibit
A), read to him, because it was opened only when Judge Teodoro had examined it and then subsequently snatched from Go Toh."
The later position thus taken by Judge Pecson is palpably inconsistent with the following unequivocal statements of Go Toh contained in hid
disposition taken in Amoy, China, on April 17, 1938, and in oppositor's Exhibit "6":
26. State what you know of the contents of that will.
. . . . Regarding (1) expenditures (2) Philippine citizenship; (3) Distribution of estates among children (4) Taking care of grave lot; (5) guardianship of
Silvino Suntay and (6) after paying his debts he will have approximately 720,000 pesos left. This amount will be divided into three equal parts of
240,000 pesos each. The first part is to be divided equally among the ten children born by the first and second wives and the second part among
the three sons Silvino Suntay, 75,000 approximately; Apolonio Suntay, 50,000 pesos approximately; Jose Suntay and Concepcion Suntay, 36,000
each approximately. The third part is to be divided between Maria Lim Billian and Silvino Suntay; each will get approximately 110,000 pesos. Silvino
Suntay will get a total of 210,000 pesos approximately, Maria Natividad Lim Billian a total of 290,000 approximately, and Apolonio Suntay a total of
80,000 approximately, Concepcion Suntay and Jose Suntay will get 60,000 pesos each approximately. The rest of the children will get
approximately 29,000 each. The way of distribution of the property of Jose B. Suntay, movable and immovable, and the outstanding debts to be
collected was arranged by Jose B. Suntay.
xxx

xxx

xxx

78. On the occasion of the execution of the testament of Jose B. Suntay, state whether or not you say Exhibit B ... Yes.
79. In the affirmative case, state if you know who had the possession of Exhibit B and the testament the first time you saw them on that occasion.
... Yes, I know who had possession of them.
80. Can you say whether or not Jose B. Suntay happened to get those documents later on, on that same occasion? ... He got them after the
execution.
81. Please name the person who gave those documents to Mr. Suntay. ... Alberto Barretto gave the documents to Jose B. Suntay.
82. Did the person who gave those documents to Suntay say anything to him (Suntay) at the time of giving them? ... Yes.
83. If so what was it that he said, if he said any? ... He said, "You had better see if you want any correction."
84. What did Mr. Suntay do after those documents were given to him? ... Jose B. Suntay looked at them and then gave one copy to Manuel
Lopez for checking.
85. State whether or not Mr. Suntay gave one of those documents to another man. ... Yes.
86. In the affirmative case, can you say which of the two documents was given and who the man was? ... Yes he gave Exhibit B to Manuel
Lopez.
87. State whether or not Mr. Suntay said something to the man to whom he gave one of those documents. ... Yes.
88. In the affirmative case can you repeat more or less what Mr. Suntay said to that man? ... He told him to read it for checking.
89. State if you know what did the man do with one of those documents given to him. ... He took it and read it for checking.
90. What did in turn Mr. Suntay do with the other one left with him? ... Jose B. Suntay looked at the original and checked them.

Succession 26
91. What was done with those documents later on if there was anything done with them? ... After checking, Jose B. Suntay put Exhibit B in his
pocket and had the original signed and executed.
92. What was done with the testament of Jose B. Suntay after it was signed by the testator and its witnesses? ... It was taken away by Jose B.
Suntay. (Exhibit D, D-1.)
Q. Did you know the contents of this envelope? "A. I knew that it was a will.
Q. But did you know the provisions of the will? "A. It is about the distribution of the property to the heirs.
Q. Did you know how the property was distributed according to the will? "A. I know that more than P500,000 was for the widow and her son,
more than P100,000 for the heirs that are in the family. (Exhibit "6", p. 28).
Q. You stated that you were one of the witnesses to the will and that the will was written in Spanish. Was it written in typewriting or in handwriting of
somebody? "A. That will was written in typewriting.
Q. Did you read the contents of that will, or do you know the contents of that will? A. No, sir, because I do not know Spanish.
Q. How do you know that it was the will of Jose B. Suntay ? "A. Because I was one of the signers and I saw it." (Exhibit "6", p. 19.)
22. Do you understand the language in which that will was written? ... I know a little Spanish.
23. Do you talk or write that language? I can write and talk a little Spanish. (Exhibits D, D-1.)
As to Ana Suntay's corroborating testimony, Judge Pecson aptly made the following findings: "Ana Suntay, one of the heirs and who would be
affected adversely by the legalization of the will in question, also testified on rebuttal that she saw the original will in the possession of Manuel
Suntay immediately after the snatching. She read it and she particularly remembers the manner in which the properties were to be distributed.
Exhibit B was shown to her on the witness stand and she declared that the provision regarding the distribution of the properties in said Exhibit B is
the same as that contained in the original will. Said testimony of Ana Suntay, therefore, belies the testimony of Atty. Alberto Barretto." And yet in the
resolution on the motion for new trial, the trial Judge had to state that "Ana Suntay on rebuttal did not, likewise, prove clearly and distinctly the
provisions of the said lost will, because she has not had enough schooling and she does not possess adequate knowledge of the Spanish language
as shown by the fact that she had to testify in Tagalog on the witness stand." The potent error committed by Judge Pecson in reversing his views as
regards Ana's testimony, is revealed readily in the following portions of the transcript:
P. Cuantas paginas tenia aquel documento a que usted se refiere? "R. Probablemente seria mas de veinte (20) paginas.
P. No serian treinta (30) paginas? "Abogado Recto: La testigo ha contestado ya que mas de veinte (20).
Juzgado: Se estima
Abogado Mejia:
P. Usted personalmente leyo el documento" "R. Yo leyo mi hermano en presencia mia.
P. La pregunta es, si usted personalmente ha leido el documento? " R. Si, lo he visto.
P. No solamente le pregunto a usted si Vd. ha visto el testamento sino si usted ha leido personalmente el testamento? "R. Si la parte de la
adjudicacion lo he leido para asegurarme a que porcion corresponde a cada uno de nosotros.
P. Puede usted repetir poco mas o menos esa porcion a que se hacia la distribucion del alegado testamento? "R. Como ya he declarado, que
las propiedades de mi difunto padre se habian dividido en tres partes, una tercera parte se nos adjudica a nosotros diez (1) hijos en primeros
nupcias y segunda nupcia, la segunda tercera parte los adjudica a la viuda y a Silvino, y la otra tercera parte se lo adjudica a sus hijos como
mejora a Silvino, Apolonio, Concepcion y Jose.
P. Eso, tal como usted personalmente lo leyo en el documento? "R. Si Seor.
P. Quiere usted tener la bondad, seora, de repetir poco mas o menos las palabras en ese documento que se distribuia las propiedades del
defundo padre usted como usted relata aqui? "Abogado Recto: Objetamos a la pregunta por falta de base, porque elle solamente se fijo en la parte
como se distribuian las propiedades pero no ha dicho la testigo que ella lo ha puesto de memoria, ni Vd. ha preguntado en que lenguaje estaba
escrito el testamento ...
Juzgado: Se estima.
Abogado Mejia:
P. Sabe usted en que lenguaje estaba redactado el documento que usted leyo personalmente? "R. En Castellano.
P. Puede usted repetirnos ahora en Castellano algunas frases o palabras como se hizo la distribucion en aquel supuesto testamento?
Abogado Recto: Objecion, por falta de base, uno puede entender el espaol y sin embargo no podra repetir lo que ha leido, y no se sabe todavia si
ha estudiado el espaol bastante hasta el punto de poder hablarlo.
Juzgado: Se estima.
Abogado Mejia
P. Usted dijo que estaba puesto en castellano el supuesto testamento que Vda. leyo, usted poso el castellano? "R. Yo entiendo el castellano,
pero no puedo hablar bien.
P. Usted estudio el castellano en algun colegio? "Rj. Si, seor, En Sta. Catalina.

Succession 27
P. Cuantos aos? "R. Nuestros estudios no han sido continuous porque mi padre nos ingresaba en el colegio y despues nos sacaba para estar
afuera, y no era continuo nuestro estudio.
P. Pero en total, como cuantos meses o aos estaba usted en el colegio aprendiendo el castelano? "R. Unos cuatro o cinco aos.
P. Entonces usted puede leer el castellano con facilidad, seora? "R. Si, castellano sencillo puedo entender y lo puedo leer.
P. Usted entiende las preguntas que se le dirigian aqui en castellano sin interpretacion o sin el interprete? "R. Si, Seor.
P. Puede usted contestar en castellano? "R. Bueno, pero como de contestar, por eso quiero que la pregunta se me traduzca antes. asi puedo
contestar debidamente. (t.s.n. pp. 533-534.)
We are really at a loss to understand why, without any change whatsoever in the evidence, the trial Judge reversed his first decision, particularly
when he announced therein that "it is now incumbent upon this court to delve into the evidence whether or not Jose B. Suntay, deceased, left a will
(the draft of which is Exhibit B) and another will which was executed and probated in Amoy, China." His action is indeed surprising when we take
into account the various circumstancial features presently to be stated, that clearly confirm the testimony of Judge Anastacio Teodoro, G. Toh and
Ana Suntay, or otherwise constitute visible indicia of oppositor's desire to frustrate the wishes of his father, Jose B. Suntay.
In our opinion the most important piece of evidence in favor of the petitioner's case is the draft of the lost will, Exhibit "B." Its authenticity cannot be
seriously questioned, because according to the trial Judge himself, oppositor's own witness, Atty. Alberto Barretto, admitted it to be "identical in
substance and form to the second draft which he prepared in typewriting." Indeed, all the "A's" and "B's" in the handwritten insertions of the draft are
very similar to those in Barretto's admittedly genuine signature on the envelope, Exhibit "A." The finding of Judge Pecson on the point in his first
decision (reiterated expressly in the resolution on the motion for new trial), should control, not only because it is in accordance with the evidence but
because the oppositor had failed and did not even attempt to have the trial Judge reconsider or reverse his factual conclusions. The draft, Exhibit
"B," having been positively identified by the witnesses for the petitioner to be an exact copy of the lost will of Jose B. Suntay, is therefore conclusive.
Oppositor's effort to show that said draft was never signed in final form, and was thought of merely to deceive petitioner's mother, Lim Billian, and
that the will actually executed and put in the envelope, Exhibit "A", provided that the testator's estate would be divided equally among his heirs, as in
the case of intestacy, was necessarily futile because, if this allegation is true, the will would not have been "snatched" from Go Toh and the loss
certainly cannot be imputed to the widow Lim Billian or the petitioner; the snatched will would have been produced to put an end to petitioner's and
his mother's claim for greater inheritance or participation under the lost will; and the envelope containing the first will providing for equal shares,
would not have been entrusted to the care and custody of the widow Lim Billian.
It is very noteworthy that out of the nine children of the first marriage, only Angel, Jose and Federico Suntay had opposed the probate of the will in
question; the rest, namely, Ana, Aurora, Concepcion, Lourdes, Manuel and Emiliano Suntay, having expressly manifested in their answer that they
had no opposition thereto, since the petitioner's alternative petition "seeks only to put into effect the testamentary disposition and wishes of their late
father." This attitude is significantly an indication of the justness of petitioner's claim, because it would have been to their greater advantage if they
had sided with oppositor Federico Suntay in his theory of equal inheritance for all the children of Jose B. Suntay. Under the lost will or its draft
Exhibit "B", each of the Suntay children would receive only some P 25,000.00, whereas in case of intestacy or under the alleged will providing for
equal shares, each of them would receive some P100,000.00. And yet the Suntay children other than Angel, Jose and Federico had chosen to give
their conformity to the alternative petition in this case.
Another unequivocal confirmation of the lost will is the will which Jose B. Suntay executed in Amoy, Fookien, China, on January 4, 1931, and
probated in Amoy District Court, China, containing virtually the same provisions as those in the draft Exhibit "B". What better evidence is there of an
man's desire or insistence to express his last wishes than the execution of a will reiterating the same provisions contained in an earlier will.
Assuming that the Chinese will cannot be probated in the jurisdiction, its probative value as corroborating evidence cannot be ignored.
Oppositor himself had admitted having read the will in question under which the widow Lim Billian was favored; and this again in a way goes to
corroborate the evidence for the petitioner as to the contents of the will sought to be probated.
COURT:
Q. Have you read the supposed will or the alleged will of your father? "A. Yes, sir.
COURT:
Q. Can you tell the court the share or participation in the inheritance of Maria Natividad Lim Billian according to the will?
A. Yes sir, she will inherit, I think, two-thirds (2/3) of the estate, in other words she is the most favored in the will, so when they sold that, they sold
everything, they are selling everything even the conjugal property. (t. s. n. 228-229.)
The decision of the majority leans heavily on the testimony of Atty. Alberto Barretto, forgetful perhaps of the fact that the trial Judge gave no
credence to said witness. It should be repeated that Judge Pecson reiterated in the resolution on the motion for new trial all his findings in the first
decision. If as Atty. Barretto testified, Lim Billian was entitled under the will actually signed by Jose Suntay only to P10,000.00, in addition to
properties in China value at P15,000.00, the fees of P25,000.00 admittedly asked by him would absorb her entire inheritance; and this would
normally not be done by any law practitioner. Upon the other hand, there is evidence to the effect that Atty. Barretto might have become hostile to
the petitioner and his mother Lim Billian in view of the latter's refusal to agree to the amount of P25,000.00 and her offer to pay only P100.00. There
is also evidence tending to show that as early as 1942, Atty. Barretto was paid by oppositor Federico Suntay the sum of P16,000.00 which, although
allegedly for services in the testate proceedings, was paid out of the personal funds of said oppositors to supply Atty. Barretto's needs. This
circumstances perhaps further explains why the latter had to support the side of Federico Suntay.
We have quoted in full the decision of this court in the "snatching" case and the first decision of Judge Pecson in this case, both in the hope and in
the belief (1) that the first would reveal the manner by which those adversely affected had planned to prevent the last wishes of the deceased Jose
B. Suntay from being carried on, and (2) that the second, by the facts correctly recited therein and by the force and accuracy of its logic would
amply show the weakness and utter lack of foundation of the resolution on the motion for reconsideration. We have set forth at length pertinent
portions of the testimony of various witnesses to demonstrate more plainly the plausibility of the original decision of Judge Pecson, and the latter's
consequent bad judgment in having forced himself to accomplish a somersault, a feat which the majority, in my opinion, have mistakenly
commended. We have found this to be one of the cases of this court in which we have had occasion to participate, where there can be absolutely
no doubt as to the result outright reversal for which, with due respect to the majority opinion, we vote without hesitancy.

Succession 28
G.R. No. L-20234

December 23, 1964

PAULA DE LA CERNA, ET AL., petitioners,


vs.
MANUELA REBACA POTOT, ET AL., and THE HONORABLE COURT OF APPEALS, respondents.
Philip M. Alo and Crispin M. Menchavez for petitioners.
Nicolas Jumapao for respondents.
REYES, J.B.L., J.:
Appeal by Paula de la Cerna and others from a decision of the Court of Appeals, Sixth Division (C.A.-G.R. No. 23763-R) reversing that of the Court
of First Instance of Cebu (Civ. Case No. R-3819) and ordering the dismissal of an action for partition.
The factual background appears in the following portion of the decision of the Court of Appeals (Petition, Annex A, pp. 2-4):
It appears that on May 9, 1939, the spouses, Bernabe de la Serna and Gervasia Rebaca, executed a joint last will and testament in the local dialect
whereby they willed that "our two parcels of land acquired during our marriage together with all improvements thereon shall be given to Manuela
Rebaca, our niece, whom we have nurtured since childhood, because God did not give us any child in our union, Manuela Rebaca being married to
Nicolas Potot", and that "while each of the testators is yet living, he or she will continue to enjoy the fruits of the two lands aforementioned", the said
two parcels of land being covered by Tax No. 4676 and Tax No. 6677, both situated in sitio Bucao, barrio Lugo, municipality of Borbon, province of
Cebu. Bernabe dela Serna died on August 30, 1939, and the aforesaid will was submitted to probate by said Gervasia and Manuela before the
Court of First Instance of Cebu which, after due publication as required by law and there being no opposition, heard the evidence, and, by Order of
October 31, 1939; in Special Proceedings No. 499, "declara legalizado el documento Exhibit A como el testamento y ultima voluntad del finado
Bernabe de la Serna con derecho por parte du su viuda superstite Gervasia Rebaca y otra testadora al propio tiempo segun el Exhibit A de gozar
de los frutos de los terranos descritos en dicho documents; y habido consideracion de la cuantia de dichos bienes, se decreta la distribucion
sumaria de los mismos en favor de la logataria universal Manuela Rebaca de Potot previa prestacion por parte de la misma de una fianza en la
sum de P500.00 para responder de cualesquiera reclamaciones que se presentare contra los bienes del finado Bernabe de la Serna de los aos
desde esta fecha" (Act Esp. 499, Testamentaria Finado Bernabe de la Serna) Upon the death of Gervasia Rebaca on October 14, 1952, another
petition for the probate of the same will insofar as Gervasia was concerned was filed on November 6, 1952, being Special Proceedings No. 1016-R
of the same Court of First Instance of Cebu, but for failure of the petitioner, Manuela R. Potot and her attorney, Manuel Potot to appear, for the
hearing of said petition, the case was dismissed on March 30, 1954 Spec. Proc. No. 1016-R, In the matter of the Probate of the Will of Gervasia
Rebaca).
The Court of First Instance ordered the petition heard and declared the testament null and void, for being executed contrary to the prohibition of
joint wills in the Civil Code (Art. 669, Civil Code of 1889 and Art. 818, Civil Code of the Philippines); but on appeal by the testamentary heir, the
Court of Appeals reversed, on the ground that the decree of probate in 1939 was issued by a court of probate jurisdiction and conclusive on the due
execution of the testament. Further, the Court of Appeals declared that:
... . It is true the law (Art. 669, old Civil Code; Art. 818, new Civil Code). prohibits the making of a will jointly by two or more persons either for their
reciprocal benefit or for the benefit of a third person. However, this form of will has long been sanctioned by use, and the same has continued to be
used; and when, as in the present case, one such joint last will and testament has been admitted to probate by final order of a Court of competent
jurisdiction, there seems to be no alternative except to give effect to the provisions thereof that are not contrary to law, as was done in the case of
Macrohon vs. Saavedra, 51 Phil. 267, wherein our Supreme Court gave effect to the provisions of the joint will therein mentioned, saying,
"assuming that the joint will in question is valid."
Whence this appeal by the heirs intestate of the deceased husband, Bernabe de la Cerna.
The appealed decision correctly held that the final decree of probate, entered in 1939 by the Court of First Instance of Cebu (when the testator,
Bernabe de la Cerna, died), has conclusive effect as to his last will and testament despite the fact that even then the Civil Code already decreed the
invalidity of joint wills, whether in favor of the joint testators, reciprocally, or in favor of a third party (Art. 669, old Civil Code). The error thus
committed by the probate court was an error of law, that should have been corrected by appeal, but which did not affect the jurisdiction of the
probate court, nor the conclusive effect of its final decision, however erroneous. A final judgment rendered on a petition for the probate of a will is
binding upon the whole world (Manalo vs. Paredes, 47 Phil. 938; In re Estates of Johnson, 39 Phil. 156); and public policy and sound practice
demand that at the risk of occasional errors judgment of courts should become final at some definite date fixed by law. Interest rei publicae ut finis
set litium (Dy Cay vs. Crossfield, 38 Phil, 521, and other cases cited in 2 Moran, Comments on the Rules of Court (1963 Ed., p. 322).
Petitioners, as heirs and successors of the late Bernabe de la Cerna, are concluded by the 1939 decree admitting his will to probate. The contention
that being void the will cannot be validated, overlooks that the ultimate decision on Whether an act is valid or void rests with the courts, and here
they have spoken with finality when the will was probated in 1939. On this court, the dismissal of their action for partition was correct.
But the Court of Appeals should have taken into account also, to avoid future misunderstanding, that the probate decree in 1989 could only affect
the share of the deceased husband, Bernabe de la Cerna. It could not include the disposition of the share of the wife, Gervasia Rebaca, who was
then still alive, and over whose interest in the conjugal properties the probate court acquired no jurisdiction, precisely because her estate could not
then be in issue. Be it remembered that prior to the new Civil Code, a will could not be probated during the testator's lifetime.
It follows that the validity of the joint will, in so far as the estate of the wife was concerned, must be, on her death, reexamined and adjudicated de
novo, since a joint will is considered a separate will of each testator. Thus regarded, the holding of the court of First Instance of Cebu that the joint
will is one prohibited by law was correct as to the participation of the deceased Gervasia Rebaca in the properties in question, for the reasons
extensively discussed in our decision in Bilbao vs. Bilbao, 87 Phil. 144, that explained the previous holding in Macrohon vs. Saavedra, 51 Phil. 267.
Therefore, the undivided interest of Gervasia Rebaca should pass upon her death to her heirs intestate, and not exclusively to the testamentary
heir, unless some other valid will in her favor is shown to exist, or unless she be the only heir intestate of said Gervasia.
It is unnecessary to emphasize that the fact that joint wills should be in common usage could not make them valid when our Civil Codes consistently
invalidated them, because laws are only repealed by other subsequent laws, and no usage to the contrary may prevail against their observance
(Art. 5, Civ. Code of 1889; Art. 7, Civil Code of the Philippines of 1950).
WITH THE FOREGOING MODIFICATION, the judgment of the Court of Appeals in CA-G.R. No. 23763-R is affirmed. No Costs.

Succession 29
G.R. No. L-7647

March 27, 1914

DOMINGO CALUYA, petitioner-appellant,


vs.
LUCINA DOMINGO, respondent-appellee.
Lucas Paredes for appellant.
Julio Adiarte for appellee.
MORELAND, J.:
This is an appeal from a judgment of the Court of First Instance of the Province of Ilocos Norte denying the probate of a will.
The learned court below based its judgment upon three grounds. The first one was that, although the testator had signed by mark, it nowhere
appeared in the will who had written the signature or that it had been written at his request. The second, that the witness Antonino Pandaraoan
could not really have signed the attestation clause because, at the time it was executed, he was attending a session of the municipal council of
Piddig as a member thereof. Third: That as to the other witness, Segundino Asis, the will mentioned and confirmed a sale of land to him by the
testator, and he being thereby an interested party his testimony could not be believed.
We do not believe that any of the objections are well founded and the judgment refusing its probate must, therefore, be reversed.
Section 618 of the Code of Civil Procedure provides in part:
No will, except as provided in the preceding section, shall be valid to pass any estate, real or personal, nor charge or affect the same, unless it be in
writing and signed by the testator, or by the testator's name written by some other person in his presence, and by his express direction, and attested
and subscribed by three or more credible witnesses in the presence of the testator and of each other. . . .
It is nowhere required that, where the testator is unable to write, the fact that his signature was written by some other person, at his request and
express direction, should appear in the body of the will itself. In the case of Barut vs. Cabacungan (21 Phil. Rep., 461, 463) we held the following:
From these provisions it is entirely clear that, with respect to the validity of the will, it is unimportant whether the person who writes the name of the
testatrix signs his own or not. The important thing is that it clearly appears that the name of the testatrix was signed at her express direction in the
presence of three witnesses and that they attested and subscribed it in her presence and in the presence of each other. That is all the statute
requires. It may be wise as a practical matter that the one who signs the testator's name signs also his own; but that is not essential to the validity of
the will. Whether one person or another signed the name of the testatrix in this case is absolutely unimportant so far as the validity of her will is
concerned. The plain wording of the statute shows that the requirement laid down by the trial court, if it did lay it down, is absolutely unnecessary
under the law; and the reasons underlying the provisions of the statute relating to the execution of wills do not in any sense require such a
provision. From the standpoint of language it is an impossibility to draw from the words of the law the inference that the person who signs the name
of the testator must sign his own name also. The law requires only three witnesses to a will, not four.
Nor is such requirement found in any other branch of the law. The name of a person who is unable to write may be signed by another, by express
direction, to any instrument known to the law. There is no necessity whatever, so far as the validity of the instrument is concerned, for the person
who writes the name of the principal in the document to sign his pen name also. As a matter of policy it may be wise that he did so inasmuch as it
would give such intimation as would enable a person proving the document to demonstrate more readily the execution by the principal. But as a
matter of essential validity of the document, it is unnecessary. The main thing to be established in the execution of the will is the signature of the
testator. If that signature is proved, whether it be written by himself or by another at his request, it is none the less valid, and the fact of such
signature can be proved as perfectly and as completely when the person signing for the principal omits to sign his own name as it can when he
actually signs. To hold a will invalid for the lack of the signature of the person signing the name of the principal is, in the particular case, a complete
abrogation of the law of wills, as it rejects and destroys a will which the status expressly declares is valid.
The section above quoted also provides that "the attestation clause shall state the fact that the testator signed the will, or caused it to be signed by
some other person, at his express direction, in the presence of the witnesses, and that they attested and subscribed it in his presence and in the
presence of each other. But the absence of such form of attestation shall not render the will invalid if it is proven that the will was in fact signed and
attested as in this section provided."
Not only does the attestation clause comply with the requirements of this section, but it appears clearly proved in evidence that the name of the
testator was signed by another person at his request and under his direction and in his presence and in the presence of the witnesses to the will.
Moreover, as appears from the last clause of the section, if the attestation clause is defective, or even absent, the will is nevertheless valid provided
it is satisfactorily proved that it was in fact signed and executed as provided by law.
As to the second objection, namely, that Antonino Pandaraoan could not have signed the will as a witness thereto, as stated in the attestation
clause, because he was attending a meeting of the municipal council of Piddig at the time the will is alleged to have been executed, we believe this
also to be without merit. It does not appear in the evidence of the opposition that the witness Pandaraoan was attending a meeting of the municipal
council of Piddig from something like 10 o'clock till 12.30 o'clock of the day on which the will was executed ands that the will was executed
sometime between 10 and 12 o'clock. To much weight, however, can not be given to the testimony relative to the precise time of the execution of
the will. The barrio of Piddig is only a short distance from the house in which the will was executed and it would have taken but a short time to cover
the distance. the witness Pandaraoan himself testified directly and positively that, after having left the meeting of the municipal council, he went to
the house of the testator by appointment and there signed the will as stated in the attestation clause. The other witnesses to the will support this
declaration. Not only this, but the notary public who drew up the will and who translated it to the testator and who was present at the time of its
execution, declared and testified that the witnesses whose names appear upon the will were present at the time it was executed by the testator and
that they signed the same at his request and in his presence and in the presence of each other. All of the witnesses to the will unite in declaring that
they were there present at the time the will was executed and that they signed as witnesses in the presence of the testator and of each other. The
mere fact that there was a session of the municipal council of Piddig about the same time that the will was executed is not necessarily conclusive
against the fact that Antonino Pandaraoan was present and signed as a subscribing witness as he declares. Mistakes in time are easily made
among witnesses who measure time not so much by clocks or watches as by the sun. Antonino Pandaraoan testified that the municipal council
began its session about 10 o'clock; that in order to attend the execution of the will, as he had agreed with the notary public he would do, he was
obliged to leave the session before it terminated; that he so left the session, mounted a horse and arrived at the house of the testator at about 12
o'clock, in time to take part in the execution of the ill as stated in the attestation clause.
We do not believe that the clear and positive testimony of the witnesses to the will and of the notary public is overcome by the evidence offered in
opposition to the probate.

Succession 30
As to the third ground upon which the court based its decision; namely, that the will having mentioned and confirmed a sale of land to Segundino
Asis, one of the witnesses to the will, while not rendering the will entirely invalid, throws great doubt upon the legality of its execution and especially
the testimony of said witness relating thereto.
Section 622 provides:
If a person attests the execution of a will, to whom or to whose wife or husband, or parent, or child, a beneficial devise, legacy, or interest, of or
affecting real or personal estate, is given by such will, such devise, legacy, or interest shall, so far only as concerns such person, or the wife or
husband, or parent or child of such person, or anyone claiming under such person or such wife or husband, or parent or child, be void, unless there
are three other competent witnesses to such will, and such person so attesting shall be admitted as a witness as if such devise, legacy, or interest
had not been made or given. But a mere charge on the real or personal estate of the testator, for the payment of debts, shall not prevent his
creditors from being competent witnesses to his will.
As will readily be seen on reading this section, nothing in the will before us relative to the sale of land to Segundino Asis creates such an interest
therein as falls within the provisions thereof. Indeed, no interest of any kind was created by the will in favor of Segundino Asis, nor did it convey or
transfer of any interest to him. It simply mentioned a fact already consummated, a sale already made. Even if, however, the will had conveyed an
interest to Segundino Asis, it would not have been for that reason void. Only that clause of the will conveying an interest to him would have been
void; the remainder could have stood and would have stood as a valid testament.
We are confident from a thorough examination of the record that a fair preponderance of the evidence is in favor of the proponents, and there being
no legal impediment to the probate the court erred in refusing it.
The judgment appealed from is hereby reversed and the cause remanded to the court whence it came with instructions to legalize and probate the
will in accordance with the petition.

Succession 31
G.R. No. 76464

February 29, 1988

TESTATE ESTATE OF THE LATE ADRIANA MALOTO, ALDINA MALOTO CASIANO, CONSTANCIO MALOTO, PURIFICACION MIRAFLOR,
ROMAN CATHOLIC CHURCH OF MOLO, AND ASILO DE MOLO, petitioners,
vs.
COURT OF APPEALS, PANFILO MALOTO AND FELINO MALOTO, respondents.

SARMIENTO, J.:
This is not the first time that the parties to this case come to us. In fact, two other cases directly related to the present one and involving the same
parties had already been decided by us in the past. In G.R. No. L-30479, 1 which was a petition for certiorari and mandamus instituted by the
petitioners herein, we dismissed the petition ruling that the more appropriate remedy of the petitioners is a separate proceeding for the probate of
the will in question. Pursuant to the said ruling, the petitioners commenced in the then Court of First Instance of Iloilo, Special Proceeding No. 2176,
for the probate of the disputed will, which was opposed by the private respondents presently, Panfilo and Felino both surnamed Maloto. The trial
court dismissed the petition on April 30, 1970. Complaining against the dismissal, again, the petitioners came to this Court on a petition for review
by certiorari. 2 Acting on the said petition, we set aside the trial court's order and directed it to proceed to hear the case on the merits. The trial
court, after hearing, found the will to have already been revoked by the testatrix. Adriana Maloto, and thus, denied the petition. The petitioners
appealed the trial court's decision to the Intermediate Appellate Court which, on June 7, 1985, affirmed the order. The petitioners' motion for
reconsideration of the adverse decision proved to be of no avail, hence, this petition.
For a better understanding of the controversy, a factual account would be a great help.
On October 20, 1963, Adriana Maloto died leaving as heirs her niece and nephews, the petitioners Aldina Maloto-Casiano and Constancio, Maloto,
and the private respondents Panfilo Maloto and Felino Maloto. Believing that the deceased did not leave behind a last will and testament, these four
heirs commenced on November 4, 1963 an intestate proceeding for the settlement of their aunt's estate. The case was instituted in the then Court
of First Instance of Iloilo and was docketed as Special Proceeding No. 1736. However, while the case was still in progress, or to be exact on
February 1, 1964, the parties Aldina, Constancio, Panfilo, and Felino executed an agreement of extrajudicial settlement of Adriana's estate.
The agreement provided for the division of the estate into four equal parts among the parties. The Malotos then presented the extrajudicial
settlement agreement to the trial court for approval which the court did on March 21, 1964. That should have signalled the end of the controversy,
but, unfortunately, it had not.
Three years later, or sometime in March 1967, Atty. Sulpicio Palma, a former associate of Adriana's counsel, the late Atty. Eliseo Hervas, discovered
a document entitled "KATAPUSAN NGA PAGBUBULAT-AN (Testamento)," dated January 3,1940, and purporting to be the last will and testament of
Adriana. Atty. Palma claimed to have found the testament, the original copy, while he was going through some materials inside the cabinet drawer
formerly used by Atty. Hervas. The document was submitted to the office of the clerk of the Court of First Instance of Iloilo on April 1, 1967.
Incidentally, while Panfilo and Felino are still named as heirs in the said will, Aldina and Constancio are bequeathed much bigger and more valuable
shares in the estate of Adriana than what they received by virtue of the agreement of extrajudicial settlement they had earlier signed. The will
likewise gives devises and legacies to other parties, among them being the petitioners Asilo de Molo, the Roman Catholic Church of Molo, and
Purificacion Miraflor.
Thus, on May 24, 1967, Aldina and Constancio, joined by the other devisees and legatees named in the will, filed in Special Proceeding No. 1736 a
motion for reconsideration and annulment of the proceedings therein and for the allowance of the will When the trial court denied their motion, the
petitioner came to us by way of a petition for certiorari and mandamus assailing the orders of the trial court . 3 As we stated earlier, we dismissed
that petition and advised that a separate proceeding for the probate of the alleged will would be the appropriate vehicle to thresh out the matters
raised by the petitioners.
Significantly, the appellate court while finding as inconclusive the matter on whether or not the document or papers allegedly burned by the
househelp of Adriana, Guadalupe Maloto Vda. de Coral, upon instructions of the testatrix, was indeed the will, contradicted itself and found that the
will had been revoked. The respondent court stated that the presence of animus revocandi in the destruction of the will had, nevertheless, been
sufficiently proven. The appellate court based its finding on the facts that the document was not in the two safes in Adriana's residence, by the
testatrix going to the residence of Atty. Hervas to retrieve a copy of the will left in the latter's possession, and, her seeking the services of Atty.
Palma in order to have a new will drawn up. For reasons shortly to be explained, we do not view such facts, even considered collectively, as
sufficient bases for the conclusion that Adriana Maloto's will had been effectively revoked.
There is no doubt as to the testamentary capacity of the testatrix and the due execution of the will. The heart of the case lies on the issue as to
whether or not the will was revoked by Adriana.
The provisions of the new Civil Code pertinent to the issue can be found in Article 830.
Art. 830. No will shall be revoked except in the following cases:
(1)

By implication of law; or

(2)

By some will, codicil, or other writing executed as provided in case of wills: or

(3)
By burning, tearing, cancelling, or obliterating the will with the intention of revoking it, by the testator himself, or by some other person in
his presence, and by his express direction. If burned, torn cancelled, or obliterated by some other person, without the express direction of the
testator, the will may still be established, and the estate distributed in accordance therewith, if its contents, and due execution, and the fact of its
unauthorized destruction, cancellation, or obliteration are established according to the Rules of Court. (Emphasis Supplied.)
It is clear that the physical act of destruction of a will, like burning in this case, does not per se constitute an effective revocation, unless the
destruction is coupled with animus revocandi on the part of the testator. It is not imperative that the physical destruction be done by the testator
himself. It may be performed by another person but under the express direction and in the presence of the testator. Of course, it goes without
saying that the document destroyed must be the will itself.
In this case, while animus revocandi or the intention to revoke, may be conceded, for that is a state of mind, yet that requisite alone would not
suffice. "Animus revocandi is only one of the necessary elements for the effective revocation of a last will and testament. The intention to revoke
must be accompanied by the overt physical act of burning, tearing, obliterating, or cancelling the will carried out by the testator or by another person
in his presence and under his express direction. There is paucity of evidence to show compliance with these requirements. For one, the document
or papers burned by Adriana's maid, Guadalupe, was not satisfactorily established to be a will at all, much less the will of Adriana Maloto. For

Succession 32
another, the burning was not proven to have been done under the express direction of Adriana. And then, the burning was not in her presence. Both
witnesses, Guadalupe and Eladio, were one in stating that they were the only ones present at the place where the stove (presumably in the kitchen)
was located in which the papers proffered as a will were burned.
The respondent appellate court in assessing the evidence presented by the private respondents as oppositors in the trial court, concluded that the
testimony of the two witnesses who testified in favor of the will's revocation appear "inconclusive." We share the same view. Nowhere in the records
before us does it appear that the two witnesses, Guadalupe Vda. de Corral and Eladio Itchon, both illiterates, were unequivocably positive that the
document burned was indeed Adriana's will. Guadalupe, we think, believed that the papers she destroyed was the will only because, according to
her, Adriana told her so. Eladio, on the other hand, obtained his information that the burned document was the will because Guadalupe told him so,
thus, his testimony on this point is double hearsay.
At this juncture, we reiterate that "(it) is an important matter of public interest that a purported win is not denied legalization on dubious grounds.
Otherwise, the very institution of testamentary succession will be shaken to its very foundations ...." 4
The private respondents in their bid for the dismissal of the present action for probate instituted by the petitioners argue that the same is already
barred by res adjudicata. They claim that this bar was brought about by the petitioners' failure to appeal timely from the order dated November 16,
1968 of the trial court in the intestate proceeding (Special Proceeding No. 1736) denying their (petitioners') motion to reopen the case, and their
prayer to annul the previous proceedings therein and to allow the last will and testament of the late Adriana Maloto. This is untenable.
The doctrine of res adjudicata finds no application in the present controversy. For a judgment to be a bar to a subsequent case, the following
requisites must concur: (1) the presence of a final former judgment; (2) the former judgment was rendered by a court having jurisdiction over the
subject matter and the parties; (3) the former judgment is a judgment on the merits; and (4) there is, between the first and the second action,
Identity of parties, of subject matter, and of cause of action. 5 We do not find here the presence of all the enumerated requisites.
For one, there is yet, strictly speaking, no final judgment rendered insofar as the probate of Adriana Maloto's will is concerned. The decision of the
trial court in Special Proceeding No. 1736, although final, involved only the intestate settlement of the estate of Adriana. As such, that judgment
could not in any manner be construed to be final with respect to the probate of the subsequently discovered will of the decedent. Neither is it a
judgment on the merits of the action for probate. This is understandably so because the trial court, in the intestate proceeding, was without
jurisdiction to rule on the probate of the contested will . 6 After all, an action for probate, as it implies, is founded on the presence of a will and with
the objective of proving its due execution and validity, something which can not be properly done in an intestate settlement of estate proceeding
which is predicated on the assumption that the decedent left no will. Thus, there is likewise no Identity between the cause of action in intestate
proceeding and that in an action for probate. Be that as it may, it would be remembered that it was precisely because of our ruling in G.R. No. L30479 that the petitioners instituted this separate action for the probate of the late Adriana Maloto's will. Hence, on these grounds alone, the
position of the private respondents on this score can not be sustained.
One last note. The private respondents point out that revocation could be inferred from the fact that "(a) major and substantial bulk of the properties
mentioned in the will had been disposed of: while an insignificant portion of the properties remained at the time of death (of the testatrix); and,
furthermore, more valuable properties have been acquired after the execution of the will on January 3,1940." 7 Suffice it to state here that as these
additional matters raised by the private respondents are extraneous to this special proceeding, they could only be appropriately taken up after the
will has been duly probated and a certificate of its allowance issued.
WHEREFORE, judgment is hereby rendered REVERSING and SETTING ASIDE the Decision dated June 7, 1985 and the Resolution dated
October 22, 1986, of the respondent Court of Appeals, and a new one ENTERED for the allowance of Adriana Maloto's last will and testament.
Costs against the private respondents.
This Decision is IMMEDIATELY EXECUTORY.

Succession 33
G.R. No. L-2538

September 21, 1951

Testate Estate of the Deceased MARIANO MOLO Y LEGASPI. JUANA JUAN VDA. DE MOLO, petitioner-appellee,
vs.
LUZ, GLICERIA and CORNELIO MOLO, oppositors-appellants.
Claro M. Recto and Serafin C. Dizon for appellants.
Delgado & Flores for appellee.
BAUTISTA ANGELO, J.:
This is an appeal from an order of the Court of First Instance of Rizal admitting to probate the last will and testament of the deceased Mariano Molo
y Legaspi executed on August 17, 1918. The oppositors-appellants brought the case on appeal to this Court for the reason that the value of the
properties involved exceeds P50,000.
Mariano Molo y Legaspi died on January 24, 1941, in the municipality of Pasay, province of Rizal, without leaving any forced heir either in the
descending or ascending line. He was survived, however, by his wife, the herein petitioner Juana Juan Vda. de Molo, and by his nieces and
nephew, the oppositors-appellants, Luz Gliceria and Cornelio, all surnamed Molo, who were the legitimate children of Candido Molo y Legaspi,
deceased brother of the testator. Mariano Molo y Legaspi left two wills, one executed on August 17, 1918, (Exhibit A) and another executed on June
20, 1939. (Exhibit I). The later will executed in 1918.
On February 7, 1941, Juana Juan Vda. de Molo, filed in the Court of First Instance of Rizal a petition, which was docketed as special proceeding
No. 8022 seeking the probate of the will executed by the deceased on June 20, 1939. There being no opposition, the will was probated. However,
upon petition filed by the herein oppositors, the order of the court admitting the will to probate was set aside and the case was reopened. After
hearing, at which both parties presented their evidence, the court rendered decision denying the probate of said will on the ground that the
petitioner failed to prove that the same was executed in accordance with law.
In view of the disallowance of the will executed on June 20, 1939, the widow on February 24, 1944, filed another petition for the probate of the will
executed by the deceased on August 17, 1918, which was docketed as special proceeding No. 56, in the same court. Again, the same oppositors
filed an opposition to the petition based on three grounds: (1) that petitioner is now estopped from seeking the probate of the will of 1918; (2) that
said will has not been executed in the manner required by law and (3) that the will has been subsequently revoked. But before the second petition
could be heard, the battle for liberation came and the records of the case were destroyed. Consequently, a petition for reconstitution was filed, but
the same was found to be impossible because neither petitioner nor oppositors could produce the copies required for its reconstitution. As a result,
petitioner filed a new petition on September 14, 1946, similar to the one destroyed, to which the oppositors filed an opposition based on the same
grounds as those contained in their former opposition. Then, the case was set for trial, and on May 28, 1948, the court issued an order admitting the
will to probate already stated in the early part of this decision. From this order the oppositors appealed assigning six errors, to wit.
I.
The probate court erred in not holding that the present petitioner voluntarily and deliberately frustrated the probate of the will dated June
20, 1939, in special proceeding No. 8022, in order to enable her to obtain the probate of another alleged will of Molo dated 191.
II.

The court a quo erred in not holding that the petitioner is now estopped from seeking the probate of Molo's alleged will of 1918.

III.

The lower court erred in not holding that petitioner herein has come to court with "unclean hands" and as such is not entitled to relief.

IV.

The probate court erred in not holding that Molo's alleged will of August 17, 1918 was not executed in the manner required by law.

V.

The probate court erred in not holding that the alleged will of 1918 was deliberately revoked by Molo himself.

VI.

The lower court erred in not holding that Molo's will of 1918 was subsequently revoked by the decedent's will of 1939.

In their first assignment of error, counsel for oppositors contend that the probate court erred in not holding that the petitioner voluntarily and
deliberately frustrated the probate of the will dated June 20, 1939, in order to enable her to obtain the probate of the will executed by the deceased
on August 17, 1918, pointing out certain facts and circumstances with their opinion indicate that petitioner connived with the witness Canuto Perez
in an effort to defeat and frustrate the probate of the 1939 will because of her knowledge that said will intrinsically defective in that "the one and only
testamentory disposition thereof was a "disposicion captatoria". These circumstances, counsel for the appellants contend, constitute a series of
steps deliberately taken by petitioner with a view to insuring the realization of her plan of securing the probate of the 1918 will which she believed
would better safeguard her right to inherit from the decease.
These imputations of fraud and bad faith allegedly committed in connection with special proceedings No. 8022, now closed and terminated, are
vigorously met by counsel for petitioner who contends that to raise them in these proceedings which are entirely new and distinct and completely
independent from the other is improper and unfair as they find no support whatsoever in any evidence submitted by the parties in this case. They
are merely based on the presumptions and conjectures not supported by any proof. For this reason, counsel, contends, the lower court was justified
in disregarding them and in passing them sub silentio in its decision.
A careful examination of the evidence available in this case seems to justify this contention. There is indeed no evidence which may justify the
insinuation that petitioner had deliberately intended to frustrate the probate of the 1939 will of the deceased to enable her to seek the probate of
another will other than a mere conjecture drawn from the apparently unexpected testimony of Canuto Perez that he went out of the room to answer
an urgent call of nature when Artemio Reyes was signing the will and the failure of petitioner later to impeach the character of said witness in spite
of the opportunity given her by the court to do so. Apart from this insufficiency of evidence, the record discloses that this failure has been explained
by petitioner when she informed the court that she was unable to impeach the character of her witness Canuto Perez because of her inability to find
witnesses who may impeach him, and this explanation stands uncontradicted. Whether this explanation is satisfactory or not, it is not now, for us to
determine. It is an incident that comes within the province of the former case. The failure of petitioner to present the testimony of Artemio Reyes at
the hearing has also been explained, and it appears that petitioner has filed because his whereabouts could not be found. Whether this is true or
not is also for this Court to determine. It is likewise within the province and function of the court in the former case. And the unfairness of this
imputation becomes more glaring when we stock of the developments that had taken place in these proceedings which show in bold relief the true
nature of the conduct, behavior and character of the petitioner so bitterly assailed and held in disrepute by the oppositors.
It should be recalled that the first petition for the probate of the will executed on June 20, 1939, was filed on February 7, 1941, by the petitioner.
There being no opposition, the will was probated. Subsequently, however, upon petition of the herein oppositors, the order of the court admitting
said will to probate was set aside, over the vigorous opposition of the herein petitioner, and the case was reopened. The reopening was ordered
because of the strong opposition of the oppositors who contended that he will had not been executed as required by law. After the evidence of both

Succession 34
parties had been presented, the oppositors filed an extensive memorandum wherein they reiterated their view that the will should be denied
probate. And on the strenght of this opposition, the court disallowed the will.
If petitioner then knew that the 1939 will was inherently defective and would make the testamentary disposition in her favor invalid and ineffective,
because it is a "disposicion captatoria", which knowledge she may easily acquire through consultation with a lawyer, there was no need her to go
through the order of filing the petition for the probate of the will. She could accomplish her desire by merely suppressing the will or tearing or
destroying it, and then take steps leading to the probate of the will executed in 1918. But for her conscience was clear and bade her to take the only
proper step possible under the circumstances, which is to institute the necessary proceedings for the probate of the 1939 will. This she did and the
will was admitted to probate. But then the unexpected happened. Over her vigorous opposition, the herein appellants filed a petition for reopening,
and over her vigorous objection, the same was granted and the case was reopened. Her motion for reconsideration was denied. Is it her fault that
the case was reopened? Is it her fault that the order admitting the will to probate was set aside? That was a contingency which petitioner never
expected. Had appellants not filed their opposition to the probate of the will and had they limited their objection to the intrinsic validity of said will,
their plan to defeat the will and secure the intestacy of the deceased would have perhaps been accomplished. But they failed in their strategy. If
said will was denied probate it is due to their own effort. It is now unfair to impute bad faith petitioner simply because she exerted every effort to
protect her own interest and prevent the intestacy of the deceased to happen.
Having reached the foregoing conclusions, it is obvious that the court did not commit the second and third errors imputed to it by the counsel for
appellants. Indeed, petitioner cannot be considered guilty or estoppel which would prevent her from seeking the probate of the 1918 will simply
because of her effort to obtain the allowance of the 1939 will has failed considering that in both the 1918 and 1939 wills she was in by her husband
as his universal heir. Nor can she be charged with bad faith far having done so because of her desire to prevent the intestacy of her husband. She
cannot be blamed being zealous in protecting her interest.
The next contention of appellants refers to the revocatory clause contained in 1939 will of the deceased which was denied probate. They contend
that, notwithstanding the disallowance of said will, the revocatory clause is valid and still has the effect of nullifying the prior of 1918.
Counsel for petitioner meets this argument by invoking the doctrine laid down in the case of Samson vs. Naval, (41 Phil., 838). He contends that the
facts involved in that case are on all fours with the facts of this case. Hence, the doctrine is that case is here controlling.
There is merit in this contention. We have carefully read the facts involved in the Samson case we are indeed impressed by their striking similarity
with the facts of this case. We do not need to recite here what those facts are; it is enough to point out that they contain many points and
circumstances in common. No reason, therefore, is seen by the doctrine laid down in that case (which we quote hereunder) should not apply and
control the present case.
A subsequent will, containing a clause revoking a previous will, having been disallowed, for the reason that it was not executed in conformity with
the provisions of section 618 of the Code of Civil Procedure as to the making of wills, cannot produce the effect of annulling the previous will,
inasmuch as said revocatory clause is void. (41 Phil., 838.)
Apropos of this question, counsel for oppositors make the remark that, while they do not disagree with the soundness of the ruling laid down in the
Samson case, there is reason to abandon said ruling because it is archaic or antiquated and runs counter to the modern trend prevailing in
American jurisprudence. They maintain that said ruling is no longer controlling but merely represents the point of view of the minority and should,
therefore, be abandoned, more so if we consider the fact that section 623 of our Code of Civil Procedure, which governs the revocation of wills, is of
American origin and as such should follow the prevailing trend of the majority view in the United States. A long line of authorities is cited in support
of this contention. And these authorities hold the view, that "an express revocation is immediately effective upon the execution of the subsequent
will, and does not require that it first undergo the formality of a probate proceeding". (p. 63, appellants' brief .
While they are many cases which uphold the view entertained by counsel for oppositors, and that view appears to be in controlling the states where
the decisions had been promulgated, however, we are reluctant to fall in line with the assertion that is now the prevailing view in the United States.
In the search we have made of American authorities on the subject, we found ourselves in a pool of conflicting opinions perhaps because of the
peculiar provisions contained in the statutes adopted by each State in the subject of revocation of wills. But the impression we gathered from a
review and the study of the pertinent authorities is that the doctrine laid down in the Samson case is still a good law. On page 328 of the American
Jurisprudence Vol. 57, which is a revision Published in 1948, we found the following passages which in our opinion truly reflect the present trend of
American jurisprudence on this matter affecting the revocation of wills:
SEC. 471.
Observance of Formalities in Execution of Instrument. Ordinarily, statutes which permit the revocation of a will by another
writing provide that to be effective as a revocation, the writing must be executed with the same formalities which are required to be observed in the
execution of a will. Accordingly, where, under the statutes, attestation is necessary to the making of a valid will, an unattested non testamentary
writing is not effective to revoke a prior will. It has been held that a writing fails as a revoking instrument where it is not executed with the formalities
requisite for the execution of a will, even though it is inscribed on the will itself, although it may effect a revocation by cancellation or obliteration of
the words of the will. A testator cannot reserve to himself the power to modify a will by a written instrument subsequently prepared but not executed
in the manner required for a will.
SEC, 472.
Subsequent Unexecuted, Invalid, or Ineffective Will or Codicil. A will which is invalid because of the incapacity of the testator,
or of undue influence can have no effect whatever as a revoking will. Moreover, a will is not revoked by the unexecuted draft of a later one. Nor is a
will revoked by a defectively executed will or codicil, even though the latter contains a clause expressly revoking the former will, in a jurisdiction
where it is provided by a controlling statute that no writing other than a testamentary instrument is sufficient to revoke a will, for the simple reason
that there is no revoking will. Similarly where the statute provides that a will may be revoked by a subsequent will or other writing executed with the
same formalities as are required in the execution of wills, a defectively executed will does not revoke a prior will, since it cannot be said that there is
a writing which complies with the statute. Moreover, a will or codicil which, on account of the manner in which it is executed, is sufficient to pass only
personally does not affect dispositions of real estate made by a former will, even though it may expressly purport to do so. The intent of the testator
to revoke is immaterial, if he has not complied with the statute. (57 Am. Jur., 328, 329.)
We find the same opinion in the American Law Reports, Annotated, edited in 1939. On page 1400, Volume 123, there appear many authorities on
the "application of rules where second will is invalid", among which a typical one is the following:
It is universally agreed that where the second will is invalid on account of not being executed in accordance with the provisions of the statute, or
where the testator who has not sufficient mental capacity to make a will or the will is procured through undue influence, or the such, in other words,
where the second will is really no will, it does not revoke the first will or affect it in any manner. Mort vs. Baker University (193-5) 229 Mo. App., 632,
78 S.W. (2d), 498.
These treaties cannot be mistaken. They uphold the view on which the ruling in the Samson case is predicated. They reflect the opinion that this
ruling is sound and good and for this reason, we see no justification for abondoning it as now suggested by counsel for the oppositors.

Succession 35
It is true that our law on the matter (sec. 623, Code Civil Procedure) provides that a will may be some will, codicil, or other writing executed as
proved in case of wills" but it cannot be said that the 1939 will should be regarded, not as a will within the meaning of said word, but as "other
writing executed as provided in the case of wills", simply because it was denied probate. And even if it be regarded as any other writing within the
meaning of said clause, there is authority for holding that unless said writing is admitted to probate, it cannot have the effect of revocation. (See 57
Am. Jur. pp. 329-330).
But counsel for oppositors contemned that, regardless of said revocatory clause, said will of 1918 cannot still be given effect because of the
presumption that it was deliberately revoked by the testator himself. The oppositors contend that the testator, after executing the 1939 will, and with
full knowledge of the recovatory clause contained said will, himself deliberately destroyed the original of the 1918 will, and for that reason the will
submitted by petitioner for probate in these proceedings is only a duplicate of said original.
There is no evidence which may directly indicate that the testator deliberately destroyed the original of the 1918 will because of his knowledge of
the revocatory clause contained in the will he executed in 1939. The only evidence we have is that when the first will was executed in 1918, Juan
Salcedo, who prepared it, gave the original and copies to the testator himself and apparently they remained in his possession until he executed his
second will in 1939. And when the 1939 will was denied probate on November 29, 1943, and petitioner was asked by her attorney to look for
another will, she found the duplicate copy (Exhibit A) among the papers or files of the testator. She did not find the original.
If it can be inferred that the testator deliberately destroyed the 1918 will because of his knowledge of the revocatory clause of the 1939 will, and it is
true that he gave a duplicate copy thereof to his wife, the herein petitioner, the most logical step for the testator to take is to recall said duplicate
copy in order that it may likewise be destroyed. But this was not done as shown by the fact that said duplicate copy remained in the possession of
petitioner. It is possible that because of the long lapse of twenty-one (21) years since the first will was executed, the original of the will had been
misplaced or lost, and forgetting that there was a copy, the testator deemed it wise to execute another will containing exactly the same testamentary
dispositions. Whatever may be the conclusion we may draw from this chain of circumstances, the stubborn fact is that there is no direct evidence of
voluntary or deliberate destruction of the first will by the testator. This matter cannot be inference or conjectur.
Granting for the sake of argument that the earlier will was voluntarily destroyed by the testator after the execution of the second will, which revoked
the first, could there be any doubt, under this theory, that said earlier will was destroyed by the testator in the honest belief that it was no longer
necessary because he had expressly revoked it in his will of 1939? In other words, can we not say that the destruction of the earlier will was but the
necessary consequence of the testator's belief that the revocatory clause contained in the subsequent will was valid and the latter would be given
effect? If such is the case, then it is our opinion that the earlier will can still be admitted to probate under the principle of "dependent relative
revocation".
This doctrine is known as that of dependent relative revocation, and is usually applied where the testator cancels or destroys a will or executes an
instrument intended to revoke a will with a present intention to make a new testamentary disposition as a substitute for the old, and the new
disposition is not made or, if made, fails of effect for same reason. The doctrine is n limited to the existence of some other document, however, and
has been applied where a will was destroyed as a consequence of a mistake of law. . . . (68 C.J.P. 799).
The rule is established that where the act of destruction is connected with the making of another will so as fairly to raise the inference that the
testator meant the revocation of the old to depend upon the efficacy of a new disposition intended to be substituted, the revocation will be
conditional and dependent upon the efficacy of the new disposition; and if, for any reason, the new will intended to be made as a substitute is
inoperative, the revocation fails and the original will remains in full force. (Gardner, pp. 232, 233.)
This is the doctrine of dependent relative revocation. The failure of a new testamentary disposition upon whose validity the revocation depends, is
equivalent to the non-fulfillment of a suspensive conditions, and hence prevents the revocation of the original will. But a mere intent to make at
some time a will in the place of that destroyed will not render the destruction conditional. It must appear that the revocation is dependent upon the
valid execution of a new will. (1 Alexander, p. 751; Gardner, p. 253.)
We hold therefore, that even in the supposition that the destruction of the original will by the testator could be presumed from the failure of the
petitioner to produce it in court, such destruction cannot have the effect of defeating the prior will of 1918 because of the fact that it is founded on
the mistaken belief that the will of 1939 has been validly executed and would be given due effect. The theory on which this principle is predicated is
that the testator did not intend to die intestate. And this intention is clearly manifest when he executed two wills on two different occasion and
instituted his wife as his universal heir. There can therefore be no mistake as to his intention of dying testate.
The remaining question to be determined refers to the sufficiency of the evidence to prove the due execution of the will.
The will in question was attested, as required by law, by three witnesses, Lorenzo Morales, Rufino Enriquez, and Angel Cuenca. The first two
witnesses died before the commencement of the present proceedings. So the only instrumental witness available was Angel Cuenca and under our
law and precedents, his testimony is sufficient to prove the due execution of the will. However, petitioner presented not only the testimony of
Cuenca but placed on the witness stand Juan Salcedo, the notary public who prepared and notarized the will upon the express desire and
instruction of the testator, The testimony of these witnesses shows that the will had been executed in the manner required by law. We have read
their testimony and we were impressed by their readiness and sincerity. We are convinced that they told the truth.
Wherefore, the order appealed from is hereby affirmed, with costs against the appellants.

Succession 36
G.R. No. L-11823

February 11, 1918

CRISTINA SAMSON, DELFINA NAVAL, and SOR CONSOLACION EUGENIO, petitioners-appellants,


vs.
MONICA NAVAL, ROSA NAVAL, and CELESTINA NAVAL, objectors-appellants.
Guillermo Lualhati for appellants.
Perfecto Gabriel for appellees.
ARAULLO, J.:
On September 20, 1915, attorney Perfecto Gabriel presented in the Court of First Instance of the city of Manila for allowance as the will of Simeona
F. Naval, who died in said city two days previously, a document executed by her of February 13, 1915, and in which he was appointed executor. The
case was recorded as No. 13386 and, after hearing the petition for allowance filed by said executor, it was denied on the ground that said document
was not duly executed by the deceased as her last will and testament, inasmuch as she did not sign it in the presence of three witness and the two
witnesses did not sign it in the presence of each other. Thereafter the nieces and legatees of the same deceased filed in the same court for
allowance as her will, another document executed by her on October 31, 1914, and, consequently, the case was registered under another number,
which was No. 13579. The petition for allowance was opposed by Monica Naval, Rosa Naval, and Cristina Naval on the ground that the will, the
allowance of which is asked, could not be allowed, because of the existence of another will of subsequent date, executed during her lifetime by the
same Simeona F. Naval, and because said will has been revoked by another executed subsequently by her during her lifetime, and further, because
sail will has not been executed with the formalities required by existing laws. Trial having taken place, at which evidence was adduced, the court on
February 8, 1916, issued an order, admitting said second document and ordering its allowance as the last will and testament o said deceased. From
said order the opponents appealed to this court and transmitted to us the corresponding declarations. Tow of the opponents, that is, Rosa and
Cristina Naval, assigned, as errors committed by the court, the following:
1.

The finding of the court that the will of October 31, 1914, has not been revoked by that of February 13, 1915;

2.
The act of the court in permitting the petitioner to institute and proceed with the proceedings relative to the last case for the allowance of
the will, No. 13579, notwithstanding that proceedings had already been had in the other case No. 13386 and final judgment rendered therein; and
3.
The act of the court in denying the motion for continuance of the trial on the allowance of the will of October 31, 1914, which motion was
presented for the sole purpose of introducing evidence to show the falsity of the signature appearing in said will and submitting said signature to the
Bureau of Science for analysis.
The other opponent, Monica Naval, assigned, besides the first two errors already mentioned, the finding of the court that the disallowance of the will
of said deceased, dated February 13, 1915, on the ground that is was not executed in such form that it could transmit real and personal property,
according to section 618 of the Code of Civil Procedure, also had the effect of annulling the revocatory clause in said will.
From the evidence it appears, as we have already stated, that the trial court declared that the first document presented by the executor of the
deceased, Simeona F. Naval, as a will executed by her on February 13, 1915, and which was the subject-matter of case No. 13386 of said court,
could not be allowed, on the ground that it was not executed with the requisites and formalities prescribed by law. Article 739 of the Civil Code
provides that a former will is by operation of law revoked by another valid subsequent will, if the testator does not state in the later will his desire that
the former should subsist wholly or partly. In harmony with this provision of substantive law, we find section 623 of the Code of Civil Procedure,
which provides that no will shall be revoked, except by implication of law, otherwise than by some will, codicil, or other writing executed as provided
in case of wills.
Therefore, according to the legal provisions, in order that the will of February 13, 1915, that is, the first document presented as the will of the
deceased Simeona F. Naval, could have the effect of revoking that which was presented afterwards by the petitioners as executed by the same
deceased on October 31, 1914, that is, on a date previous to the execution of the first, it was necessary and indispensable that the later will, that is,
that first presented for allowance, should be perfect or valid, that it, executed as provided by lay in case of wills.
It also appears from the record that the opponents themselves maintained that said later will, that is, that of February 13, 1915, was not perfect, or
executed as provided by law in case of wills, and the Court of First Instance of Manila has so held in disallowing said documents as the will of the
deceased. So that it very evident that the second will presented, that is, that of October 31, 1914, was not and could not have been revoked by the
first, and the court was not in error in so holding in the order appealed from. We deem it unnecessary to add a single word mere or cite well-known
doctrines and opinions of jurists in support of what has already been stated.
As to the second error assigned by the opponents, we believe it sufficient to refer to what the court below stated in the judgment appealed from. It is
as follows:
The court finds no incongruency in the presentation of a prior will when another will of subsequent date has been disallowed. Disregarding the fact
that the petitioners in this case were not those who presented the will in No. 13386, in which the petition was presented by the same D. Perfecto
Gabriel as executor, it is proper to take into account that the object of a petition for allowance is to ask for an order declaring that a will has been
executed in accordance with the requisites and formalities required by law. This is a question for the court to decide and is out of the control of the
party who presents the will. The allowance or disallowance of a will by a competent court depends upon whether the evidence adduced at the trial
shows or does not show that the formalities required by law have been complied with, and this cannot be determined in advance, as a general rule,
by the person who presents the testament. for he has not always concurred in or seen the execution of the will.
If, therefore, the personal who presents a will and asks that if be allowed does not secure its allowance, and he has in his possession another will,
or has information that another exists, he does not contradict himself by asking for the allowance of the will of earlier date merely because the later
will was declared invalid by the proper court. If in this case there is any who adopts a contradictory position, it is the respondent himself, inasmuch
as in case No. 13386 he alleged, as a ground for the disallowance of the will then presented, that it was not executed in accordance with the law,
and now he maintains the contrary, for he claims that said will revoked that which is now presented.
With respect to the third error, it is beyond doubt that the court did not commit it, for it appears that when the examination of the witness, Cristina
Samson, was finished and the court told Attorney Lualhati, counsel for the respondents, to continue adducing his evidence, he said he had no more
proof, although he added that he would ask the court to grant him permission to send the will of 1914 to the Bureau of Science, which petition was
objected to by the attorney for the proponents and denied by the court. Immediately thereafter the attorney for the opponents asked for the
continuance of the trial, which was also denied by the court, after objection was made by the proponents. The attorney for the opponents excepted
to said ruling.

Succession 37
Therefore, the petition of said attorney for the remission of said will to the Bureau of Science, in the terms in which it was made to the court, after ha
had stated that he had no more evidence to present, signified that he left it to the discretion of the court to grant it or not. Furthermore, no exception
was taken to the order to the order denying this motion, and although the attorney for the opponents excepted to the order denying the motion for
continuance of the trial, such exception was completely useless and ineffective for the purpose of alleging before this court that the trial court erred
in that respect, for said resolution, being one of those left to the discretion of the court in the exercise of it functions, according to section 141 of the
Code of Civil Procedure, it could not be the subject of an exception, unless the court, in denying said motion, abused its discretional power and
thereby prejudiced the essential rights of the respondents, which is not the case here.
The error which, in addition to the first two already mentioned, has been assigned by the opponent and appellant, Monica Naval, and refers,
according to her, to the court's action in declaring that the disallowance of the will of the deceased Simeona F. Naval, dated February 13, 1915, for
the reason that it was not executed in such manner and from that it could transmit real and personal property, according to the provisions of section
618 of the Code of Civil Procedure, also had the effect of annulling the revocatory clause of said will.
First of all, it is not true that the court made such statement in the terms given in said assignment of error, that is, it is not true that the court declared
that, because said will was not executed in the form required by law in order that it may transmit real and personal property, according to the
provisions of section 618, the disallowance of said will also had the effect of annulling the revocatory clause therein contained. In the order
appealed from there is no declaration or conclusion made in these terms. The court did not say that the annulment of the revocatory clause in said
will was the effect or consequence of the fact that it was not allowed on the ground that it was not executed in the form required by law in order that
it may transmit real and personal property. Referring to the construction, given by the respondent to sections 618 and 623 of the Code of Civil
Procedure, to the effect that a subsequent will may revoke a previous will, although the later will has not been allowed by the competent court, it
being sufficient that the intention of the testator to revoke the previous will should be clearly expressed, and that, while the requisite of allowance is
necessary in order that it may transmit property from one person to another, it is not necessary in order that it might procedure other effects, for
example, the effect of a revocatory clause, or a clause of aknowledgment of a child, what the court declared, we repeat, was that although the
revocation of a will should have been effected, not by means of another will or codicil, but by mans of a document, as authorized by said section
623, which document should have the requisites and conditions fixed in section 618, the presentation of the document to the court was necessary in
order that the latter might allow it, by declaring that it was executed with the formalities required by law for the execution of a will, and finally
concluding that, just as to, is to be proved that the requisites of section 618 have been complied with in order that a will may be of value through its
allowance, so without such allowance the revocatory clause like the other provisions of the will, has no value or effect except to show extraneous
matters, as, for example, the acknowledgment of natural children, of some debt or obligation. In such case, the document could produce effect, but
not as will, but simply as a written admission made by the person executing it. And It is beyond doubt that the revocatory clause contained in a
document, like the present, which contains provisions proper of a will, as those relating to legacies and distribution of the properties of the testator
after his death as well as the appointment of executors, is not matter extraneous to the will, but merely a part thereof, intimately connected with it as
well as with the will or wills, the revocation of which is declared in said clause; in short, the desire of the testator declared in the revocatory clause is
related to the desire of the same testator expressed in the provisions of the testament in which said clause is found and to that which he might have
expressed in the testaments which he may have previously executed. There is such relation between the revocatory clause and the will which
contains it, that if the will does not produce legal effects, because it has not been executed in accordance with the provisions of the law, neither
would the revocatory clause therein produce legal effects. And if, in the present case, the so-called will of the deceased, Simeona F. Naval, dated
February 13, 1915, was not duly executed by her as her last will and testament, ad declared by the court in its decision of November 19, 1915, in
case No. 13386, for which reason its allowance was denied, neither may it be maintained that the revocatory clause contained in said will is the
expression of the last will of said deceased. The disallowance of the ill, therefore, produced the effect of annulling the revocatory clause, not exactly
because said will was not executed in such from that it could transmit real and personal property, as inaccurately alleged by the appellant, Monica
Naval, to be the court's finding, upon which said assignment of error is based, but because it was proved that said will was not executed or signed
with the formalities and requisites required by section 618 of the Code of Civil Procedure, a cause which also produces the nullity of the same will,
according to section 634 of said law; and of course what is invalid in law can produce no effect whatever.
If the instrument propounded as a revocation be in form a will, it must be perfect as such, and be subscribed and attested as is required by the
statute. An instrument intended to be a will, but filing of its effect as such on account of some imperfection in its structure or for want of due
execution, cannot be set up for the purpose of revoking a former will. (40 Cyc., p. 1177, and cases cited therein.)
A subsequent will containing a clause revoking an earlier will must, as a general rule, be admitted to probate before the clause of revocation can
have any effect, and the same kind, quality, and method of proof is required for the establishment of the subsequent will as was required for the
establishment of the former will. (40 Cyc., p. 1178, and cases cited therein.)
But admitting that the will said to have been executed by the deceased Simeona F. Naval on February 13, 1915, notwithstanding its inefficacy to
transmit property for the reason that it has not been executed, according to the provisions of said section 618 of the Code of Civil Procedure, should
be considered as executed by her in order to express her desire, appearing in one of its clauses, to revoke and annul any previous will of hers, as
stated in clause 13, this being the argument adduced by the appellant, Monica naval, in support of said assignment of error neither could it be
maintained that, the allowance of said will having been denied by the court on November 11, 1915, said revocatory clause subsists and the intention
expressed by the testratrix therein is valid and legally effective, for the simple reason that, in order that a will may be revoked by a document, it is
necessary, according to the conclusive provisions of section 623 of said procedural law, that such documents be executed according to the
provisions relating to will in section 618, and the will in question, or, according to the respondent, the so-called document, was not executed
according to the provisions of said section, according to the express finding of the trial court in its order of November 11, 1915, acquiesced in by the
opponent herself, and which is now final and executory. Therefore, the disallowance of said will and the declaration that it was not executed
according to the provisions of law as to wills, produced the effect of annulling said revocatory clause.
In support of the argument advanced in her brief said appellant, Monica Naval, cites the declaration made by the Supreme Court of Massachusetts
in Wallis vs. Wallis (114 Mass., 510, 512)m which, according to the appellant herself, was in the following terms:
If it be shown that a later will was duly executed and attested, containing a clause expressly revoking former will nothing else appearing as to its
contents, it is nevertheless good as a revocation, but it can only be made available by setting it up in opposition to the probate of the earlier will.
In the decision of said case the finding referred to be by the appellant appears not to have been made by the Supreme Court of Massachusetts.
The syllabus of said decision says:
When a will revoking a former will is in existence, it must be established in the Probate Court; but when it has been lost or destroyed, and its
contents cannot be sufficiently proved to admit it to probate, it may nevertheless be availed of as a revocation in opposition to the probate of the will
revoked by it.:
And in the body of the decision there is a declaration, to which the appellant must have desired to refer in her brief, which declaration says:

Succession 38
If it can be proved that a later will was duly executed, attested and subscribed, and that it contained a clause expressly revoking all former wills, but
evidence of the rest of its contents cannot be obtained, it is nevertheless a good revocation; and it can be made available only by allowing it to be
set up in opposition to the probate of the earlier will,. . .
The facts of the case in which this decision was rendered are different from the facts of the case at bar. That was a case concerning a will filed by
one of the children of the testatrix, Mary Wallis, as her last will, to the allowance of which another son objected, alleging that said will had been
revoked by another executed by the same deceased subsequent to the will that was filed, and that it had been fraudulently destroyed or taken by
his brother, the proponent and his wife, or by one of them, in order to deprive him of the rights conferred upon him by said will. Therefore, the will
said to have been subsequently executed by the testatrix and in which, according to the oppositor, the clause revocatory of the former will
appeared, was not presented by said oppositor, while the previous will was, in the contrary, filed for allowance by the son of the testratrix, who
appeared to be favored therein, said oppositor having alleged that the subsequent will, that is, that containing the revocatory clause, had been
drawn, subscribed and executed in accordance with the provisions of the law, a fact which he was ready to prove just as he was ready to prove that
it had been destroyed or suppressed by the proponent, his brother and his wife, or one of them. In the case at bar, the subsequent will containing
the revocatory clause of the previous will executed by the deceased Simeona F. Naval was presented to the court for allowance and it was
disallowed a fact which gave opportunity to the legatees of said deceased to present a previous will executed by her on October 31, 1914, and
said two wills having been successively presented, evidence as to them was also successively adduced for their allowance by the court.
Therefore, the declaration made by the Supreme Court of Massachusetts in Wallis vs. Wallis (supra), to the effect that a subsequent will containing
a revocatory clause of previous wills, constitutes a valid revocation and may be used in objecting to the allowance of the previous will, even when it
is not possible to obtain proof of the remainder of the contents of said subsequent will, refers to the case in which the latter had been taken away,
destroyed or suppressed, and it was impossible to present it for allowance, but requires for that purpose that it be proved that said subsequent will
has been executed, attested, and subscribed in due form and that it contained, furthermore, that revocatory clause. This is what said declaration
and, in relation thereto, also what the syllabus of the decision thereof clearly says. The court, through Chief Justice Gray, in giving its opinion, thus
began by saying:
By our law, no will can be revoked by any subsequent instrument, other than a "will, codicil or writing, signed, attested and subscribed in the manner
provided for making a will." And when an instrument of revocation is in existence and capable of being propounded for probate, its validity should be
tried by a direct proceeding instituted for the purpose in the Probate Court. (Loughton vs. Atkins, 1 Pick., 535.)
It results, therefore, that while perfect parity does not exist between the case decided by the Supreme Court of Massachusetts, to which the
appellant Monica Naval refers, and that which is not before us, it is wholly unquestionable that, whether the case deals with a subsequent will
revocatory of a previous will, which may possibly be presented to a probate court for allowance, or of a subsequent will, also revocatory of a
previous will, which could not be presented for allowance, because it has been taken or hidding, or mislaid in order that such will may constitute
a valid revocation and be utilized in the second case, although the remaining provisions may not be proven, in opposition to the allowance of the
previous will, it is necessary to prove that it was executed, attested, and subscribed in due form, and, of course, also that it contained a clause
expressly revoking the previous will, or, what is the same thing, that said subsequent will has been executed according to the provisions relating to
wills, as expressed in section 623 of the procedural law in force. There can be no doubt whatever that this applies when the revocation had been
made to appear in a writing or document susceptible of presentation for allowance, like the so-called will of the deceased Simeona F. Naval, dated
February 13, 1915, and considered by said respondent and appellant as a mere document of revocation, for, as already seen in said decision
invoked by her, the requisite as to signing, attesting, and subscribing in the form, required by law for the execution of wills in order that it may revoke
a previous will, is also required in a will as well as in a codicil, or in a writing, and in referring to a document of revocation, it is also expressed that
its validity should be proved in a direct proceeding, instituted for the purpose in a probate court. In the case at bar, the document, executed by the
deceased, Simeona F. Naval, as her last will and testament, dated February 13, 1915, has been presented for allowance; it validity has been proved
by means of said procedure in the Court of Probate of Manila, and that court denied its allowance, on the ground that the document in question had
not been duly executed by the deceased, as her last will and testament, because she did not sign in the presence of three witnesses, and two of
these witnesses did not sign in the presence of each other, or what is the same thing, that said document has not be attested and subscribed in the
manner established by law for the execution of will, or, in other words, as provided by law in case of wills, as stated by section 623 of said
procedural law, and this resolution was acquiesced in, as already stated, by the respondents in this case, and is, therefore, final and executory.
In conclusions, the doctrine laid down in the decision of the Supreme Court of Massachusetts, invoked by the appellant, Monica Naval, is in
conformity with the provision of said section 623 of our procedural law and article 739 of the Civil Code, and the will executed by the deceased
Simeona F. Naval on October 31, 1914, not having been revoked, according to these provisions, by the will presented and alleged as executed by
the same deceased subsequently on February 13, 1915, the allowance of which was denied by the Court of First Instance of Manila, the court
below was not in error in ordering the allowance of said will, that is, of that of October 31, 1914, as the last will and testament of said deceased.
Wherefore, the order appealed from is affirmed, with the costs of this instance against the appellants. So ordered.

Succession 39
G.R. No. 115925

August 15, 2003

SPOUSES RICARDO PASCUAL and CONSOLACION SIOSON, petitioners,


vs.
COURT OF APPEALS and REMEDIOS S. EUGENIO-GINO, respondents.
CARPIO, J.:
The Case
This is a petition for review of the Decision1 dated 31 January 1994 of the Court of Appeals ordering the Register of Deeds of Metro Manila, District
III, to place TCT No. (232252) 1321 in the name of respondent Remedios S. Eugenio-Gino. The Decision ordered the Register of Deeds to cancel
the names of petitioners Ricardo Pascual and Consolacion Sioson ("petitioners") in TCT No. (232252) 1321. The Decision also directed petitioners
to pay respondent moral and exemplary damages and attorneys fees.
The Facts
Petitioner Consolacion Sioson ("CONSOLACION") and respondent Remedios S. Eugenio-Gino ("REMEDIOS") are the niece and granddaughter,
respectively, of the late Canuto Sioson ("CANUTO"). CANUTO and 11 other individuals, including his sister Catalina Sioson ("CATALINA") and his
brother Victoriano Sioson ("VICTORIANO"), were co-owners of a parcel of land in Tanza, Navotas, Metro Manila. The property, known as Lot 2 of
Plan Psu 13245, had an area of 9,347 square meters and was covered by Original Certificate of Title No. 4207 issued by the Register of Deeds of
Rizal. CATALINA, CANUTO, and VICTORIANO each owned an aliquot 10/70 share or 1,335 square meters of Lot 2.2
On 20 November 1951, CANUTO had Lot 2 surveyed and subdivided into eight lots (Lot Nos. 2-A to 2-H) through Subdivision Plan Psd 34713
which the Director of Lands approved on 30 May 1952. Lot No. 2-A, with an area of 670 square meters, and Lot No. 2-E, with an area of 2,000
square meters, were placed under CANUTOs name. Three other individuals took the remaining lots.3
On 26 September 1956, CANUTO and CONSOLACION executed a Kasulatan ng Bilihang Tuluyan4 ("KASULATAN"). Under the KASULATAN,
CANUTO sold his 10/70 share in Lot 2 in favor of CONSOLACION for P2,250.00. The KASULATAN, notarized by Notary Public Jose T. de los
Santos of Navotas, provides:
Na ako, CANUTO SIOSON, mamamayang Pilipino, may katampatang gulang, kasal kay Raymunda San Diego, at naninirahan sa Tanza, Navotas,
Rizal, sa bisa at pamamagitan ng kasulatang ito ay nagpapatunay at nagpapatibay:
1. Na ako ang lubos at tunay na may-ari ng 10/70 bahaging hindi hati (10/70 porcion pro-indiviso) ng isang lagay na lupa (Lote No. 2, Plano Psu13245), na nasa sa nayon ng Tanza, Municipio ng Navotas, Provincia ng Rizal, at ang descripcion o pagkakakilanlan ng nasabing lote ay nakasaad
sa Certificado Original, de Titulo No. 4207 ng Oficina ng Registrador de Titulos ng Rizal, gaya ng sumusunod:
xxxx
2. Na dahil at alang-alang sa halagang Dalawang Libo Dalawang Daan at Limampung Piso (P2,250.00), salaping Pilipino, na sa akin ay ibinayad ni
CONSOLACION SIOSON, kasal kay Ricardo S. Pascual, may sapat na gulang, mamamayang Pilipino, at naninirahan sa Dampalit, Malabon, Rizal
at ang pagkakatanggap ng nasabing halaga ay aking inaamin at pinatutunayan, ay aking ipinagbili, inilipat at isinalin, sa pamamagitan ng bilihang
tuluyan at walang pasubali a favor [sic] sa nasabing si CONSOLACION SIOSON, sa kanyang tagapagmana at mapaglilipatan ang lahat ng aking
titulo, karapatan at kaparti na binubuo ng 10/70 bahaging hindi hati (10/70 porcion pro-indiviso) ng loteng descrito or tinutukoy sa itaas nito.
(Emphasis supplied)
CONSOLACION immediately took possession of Lot Nos. 2-A and 2-E. She later declared the land for taxation purposes and paid the
corresponding real estate taxes.5
On 23 October 1968, the surviving children of CANUTO, namely, Felicidad and Beatriz, executed a joint affidavit6 ("JOINT AFFIDAVIT") affirming
the KASULATAN in favor of CONSOLACION. They also attested that the lots their father had sold to CONSOLACION were Lot Nos. 2-A and 2-E of
Subdivision Plan Psd 34713. The JOINT AFFIDAVIT reads:
KAMING sina FELICIDAD SIOSON at BEATRIZ SIOSON, pawang mga Pilipino, kapuwa may sapat na gulang at naninirahan, ang una sa Tanza,
Navotas at ang ikalawa sa Concepcion, Malabon, lalawigan ng Rizal, sa ilalim ng isang ganap na panunumpa alinsunod sa batas, ay malayang
nagsasalaysay ng mga sumusunod:
Na kami ang mga buhay na anak na naiwan ni CANUTO SIOSON na nagmamay-ari ng 10/70 bahaging hindi hati (10/70 porcion pro-indiviso) ng
isang lagay na lupa (Lote No. 2, plano Psu-13245), na nasa Nayon ng Tanza, Navotas, Rizal, at ang mga palatandaan nito ay nasasaad sa
Certificado Original de Titulo No. 4207 ng Tanggapan ng Registrador de Titulos ng Rizal;
Na sa lubos naming kaalaman, ay ipinagbili ng aming Ama na si Canuto Sioson ang kaniyang buong bahagi na 10/70 sa nasabing Lote No. 2, kay
CONSOLACION SIOSON, may-bahay ni Ricardo S. Pascual, na taga Dampalit, Malabon, Rizal, sa halagang P2,250.00, salaping pilipino, noong
ika 16 [sic] ng Septiembre, 1956, sa pamamagitan ng isang KASULATAN NG BILIHANG TULUYAN na pinagtibay sa harap ng Notario Publico Jose
T. de los Santos nang pechang nabanggit, sa Navotas, Rizal, (Doc. No. 194, Page No. 84; Book No. IV; Series of 1956);
Na ang nasabing lupa na ipinagbili ng aming Ama kay Consolacion Sioson ni Pascual, ay nakikilala ngayong mga Lote No. 2-A at Lote 2-E ng Plano
de Subdivision Psd-34713; na pinagtibay ng Assistant Director of Lands noong Mayo 30, 1952;
Na aming ngayong pinatitibayan ang pagka-pagbili ng bahagi ng aming Ama kay Consolacion Sioson ni Pascual ng ngayoy nakikilalang Lote No.
2-A at Lote No. 2-E ng Plano de Subdivision Psd-34713. (Emphasis supplied)
On 28 October 1968, CONSOLACION registered the KASULATAN and the JOINT AFFIDAVIT with the Office of the Register of Deeds of Rizal
("Register of Deeds"). Based on these documents, the Register of Deeds issued to CONSOLACION Transfer Certificate of Title No. (232252) 1321
covering Lot Nos. 2-A and 2-E of Subdivision Plan Psd 34713 with a total area of 2,670 square meters.
On 4 February 1988, REMEDIOS filed a complaint against CONSOLACION and her spouse Ricardo Pascual in the Regional Trial Court of
Malabon, Branch 165, for "Annulment or Cancellation of Transfer Certificate [of Title] and Damages." REMEDIOS claimed that she is the owner of
Lot Nos. 2-A and 2-E because CATALINA devised these lots to her in CATALINAs last will and testament7 ("LAST WILL") dated 29 May 1964.
REMEDIOS added that CONSOLACION obtained title to these lots through fraudulent means since the area covered by TCT (232252) 1321 is

Succession 40
twice the size of CANUTOs share in Lot 2. REMEDIOS prayed for the cancellation of CONSOLACIONs title, the issuance of another title in her
name, and the payment to her of damages.
Petitioners sought to dismiss the complaint on the ground of prescription. Petitioners claimed that the basis of the action is fraud, and REMEDIOS
should have filed the action within four years from the registration of CONSOLACIONs title on 28 October 1968 and not some 19 years later on 4
February 1988. REMEDIOS opposed the motion, claiming that she became aware of CONSOLACIONs adverse title only in February 1987.
CONSOLACION maintained that she had timely filed her complaint within the four-year prescriptive on 4 February 1988.
In its order of 28 April 1988, the trial court denied petitioners motion to dismiss. The trial court held that the reckoning of the prescriptive period for
filing REMEDIOS complaint is evidentiary in nature and must await the presentation of the parties evidence during the trial. During the pre-trial
stage, REMEDIOS clarified that she was claiming only CATALINAs 10/70 share in Lot 2, or 1,335 square meters, which constitute of the area of
Lot Nos. 2-A and 2-E.8 The trial of the case then ensued.
The Ruling of the Trial Court
On 26 November 1990, the trial court rendered judgment dismissing the case and ordering REMEDIOS to pay petitioners P10,000 as attorneys
fees and the cost of suit. The trial court held that the action filed by REMEDIOS is based on fraud, covered by the four-year prescriptive period. The
trial court also held that REMEDIOS knew of petitioners adverse title on 19 November 1982 when REMEDIOS testified against petitioners in an
ejectment suit petitioners had filed against their tenants in Lot Nos. 2-A and 2-E. Thus, the complaint of REMEDIOS had already prescribed when
she filed it on 4 February 1988.
The trial court further ruled that REMEDIOS has no right of action against petitioners because CATALINAs LAST WILL from which REMEDIOS
claims to derive her title has not been admitted to probate. Under Article 838 of the Civil Code, no will passes real or personal property unless it is
allowed in probate in accordance with the Rules of Court. The dispositive portion of the trial courts decision provides:
WHEREFORE, judgment is hereby rendered in favor of the defendants and against plaintiff, ordering:
1. The dismissal of this case;
2. The plaintiff to pay the defendants the sum of Ten Thousand (P10,000.00) Pesos as and for attorneys fees; and
3. The plaintiff to pay the costs of suit.9
REMEDIOS appealed to the Court of Appeals.
The Ruling of the Court of Appeals
On 31 January 1994, the Court of Appeals rendered judgment reversing the decision of the trial court. The appellate court held that what
REMEDIOS filed was a suit to enforce an implied trust allegedly created in her favor when CONSOLACION fraudulently registered her title over Lot
Nos. 2-A and 2-E. Consequently, the prescriptive period for filing the complaint is ten years, not four. The Court of Appeals counted this ten-year
period from 19 November 1982. Thus, when REMEDIOS filed her complaint on 4 February 1988, the ten-year prescriptive period had not yet
expired.
The appellate court held that CATALINAs unprobated LAST WILL does not preclude REMEDIOS from seeking reconveyance of Lot Nos. 2-A and 2E as the LAST WILL may subsequently be admitted to probate. The dispositive portion of the appellate courts ruling provides:
WHEREFORE, the decision appealed from is REVERSED and SET ASIDE. The Registry of Deeds of Rizal or Metro Manila, District III, is ordered to
place Transfer Certificate of Title No. (232252) 1321 under the name of Remedios S. Eugenio-Gino as executor of the will of Catalina Sioson and
cancel the names of the Spouses Ricardo Pascual and Consolacion Sioson inscribed over said title as owners of the covered lot. Defendantsappellees spouses Ricardo Pascual and Consolacion Sioson are ordered to pay plaintiff-appellant Remedios S. Eugenio-Gino moral damages in
the amount of P50,000.00, exemplary damages of P20,000[.00] and attorneys fees of P20,000.00 and P500.00 per appearance.10
Petitioners sought reconsideration of the ruling. However, the Court of Appeals denied their motion in its order dated 15 June 1994.
Hence, this petition.
The Issues
Petitioners allege the following assignment of errors:
I. THE COURT OF APPEALS ERRED IN HOLDING THAT PRIVATE RESPONDENTS CAUSE OF ACTION IS NOT BARRED BY PRESCRIPTION
WHICH FINDING IS MANIFESTLY CONTRARY TO LAW AND THE APPLICABLE DECISIONS OF THIS HONORABLE COURT.
II. THE COURT OF APPEALS ERRED IN NOT HOLDING THAT PRIVATE RESPONDENT DOES NOT HAVE ANY TITLE AND HAS UTTERLY
FAILED TO PROVE ANY TITLE TO THE LOTS INVOLVED IN THIS CASE, AND IN ORDERING THE CANCELLATION OF THE CERTIFICATE OF
TITLE OF PETITIONERS.
III. THE COURT OF APPEALS ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION AND IN GROSS
VIOLATION OF THE RULES OF COURT IN ORDERING THE ENTIRE PROPERTY COVERED BY TRANSFER CERTIFICATE OF TITLE NO.
(232252) 1321 TO BE PLACED IN THE NAME OF PRIVATE RESPONDENT, BECAUSE THE CLAIM OF PRIVATE RESPONDENT IS LIMITED
ONLY TO ONE-HALF (1/2) PORTION OF THE PROPERTY, AND THE OTHER HALF THEREOF UNQUESTIONABLY BELONGS TO
PETITIONERS.
IV. THE COURT OF APPEALS ERRED IN HOLDING THAT PETITIONERS ACTED FRAUDULENTLY AND IN BAD FAITH IN SECURING THEIR
CERTIFICATE OF TITLE TO THE PROPERTY INVOLVED IN THIS CASE, AND IN ORDERING PETITIONERS TO PAY PRIVATE RESPONDENTS
MORAL DAMAGES, EXEMPLARY DAMAGES AND ATTORNEYS FEES.11
The pivotal questions are: (1) whether prescription bars the action filed by REMEDIOS, and (2) whether REMEDIOS is a real party-in-interest.
The Ruling of the Court
The petition has merit.

Succession 41
The Action is Barred by Prescription
The trial court held that the action filed by REMEDIOS is one based on fraud. REMEDIOS action seeks to recover real property that petitioners
allegedly acquired through fraud. Consequently, the trial court held that the action prescribes in four years counted from REMEDIOS actual
discovery of petitioners adverse title. The trial court concluded that REMEDIOS belatedly filed her suit on 4 February 1988 because she actually
knew of petitioners adverse title since 19 November 1982.
On the other hand, the Court of Appeals held that what REMEDIOS filed was a suit to enforce an implied trust. REMEDIOS had ten years counted
from actual notice of the breach of trust, that is, the assertion of adverse title, within which to bring her action. The appellate court held that
REMEDIOS seasonably filed her complaint on 4 February 1988 because she allegedly discovered petitioners adverse title only on 19 November
1982.
What REMEDIOS filed was an action to enforce an implied trust but the same is already barred by prescription.
Prescriptive Period is 10 Years Counted
From Registration of Adverse Title
The four-year prescriptive period relied upon by the trial court applies only if the fraud does not give rise to an implied trust, and the action is to
annul a voidable contract under Article 139012 of the Civil Code. In such a case, the four-year prescriptive period under Article 139113 begins to run
from the time of discovery of the mistake, violence, intimidation, undue influence or fraud.
In the present case, REMEDIOS does not seek to annul the KASULATAN. REMEDIOS does not assail the KASULATAN as a voidable contract. In
fact, REMEDIOS admits the validity of the sale of 1,335 square meters of land under the KASULATAN. However, REMEDIOS alleges that the
excess area of 1,335 meters is not part of the sale under the KASULATAN. REMEDIOS seeks the removal of this excess area from TCT No.
(232252) 1321 that was issued to CONSOLACION. Consequently, REMEDIOS action is for "Annulment or Cancellation of Transfer Certificate [of
Title] and Damages."14
REMEDIOS action is based on an implied trust under Article 1456 since she claims that the inclusion of the additional 1,335 square meters in TCT
No. (232252) 1321 was without basis. In effect, REMEDIOS asserts that CONSOLACION acquired the additional 1,335 square meters through
mistake or fraud and thus CONSOLACION should be considered a trustee of an implied trust for the benefit of the rightful owner of the property.
Clearly, the applicable prescriptive period is ten years under Article 1144 and not four years under Articles 1389 and 1391.
It is now well-settled that the prescriptive period to recover property obtained by fraud or mistake, giving rise to an implied trust under Article 145615
of the Civil Code, is ten years pursuant to Article 1144.16 This ten-year prescriptive period begins to run from the date the adverse party repudiates
the implied trust, which repudiation takes place when the adverse party registers the land.17
REMEDIOS filed her complaint on 4 February 1988 or more than 19 years after CONSOLACION registered her title over Lot Nos. 2-A and 2-E on
28 October 1968. Unquestionably, REMEDIOS filed the complaint late thus warranting its dismissal. As the Court recently declared in Spouses
Alfredo v. Spouses Borras,18
Following Caro,19 we have consistently held that an action for reconveyance based on an implied trust prescribes in ten years. We went further by
specifying the reference point of the ten-year prescriptive period as the date of the registration of the deed or the issuance of the title.
The Court of Appeals Reckoning of
Prescriptive Period from Actual Notice
of Adverse Title Not Justified
In holding that the action filed by REMEDIOS has not prescribed, the Court of Appeals invoked this Courts ruling in Adille v. Court of Appeals.20 In
Adille, the Court reckoned the ten-year prescriptive period for enforcing implied trusts not from registration of the adverse title but from actual notice
of the adverse title by the cestui que trust. However, the Court, in justifying its deviation from the general rule, explained:
[W]hile actions to enforce a constructive trust prescribes (sic) in ten years, reckoned from the date of the registration of the property, we x x x are
not prepared to count the period from such date in this case. We note the petitioners sub rosa efforts to get hold of the property exclusively for
himself beginning with his fraudulent misrepresentation in his unilateral affidavit of extrajudicial settlement that he is "the only heir and child of his
mother Feliza["] with the consequence that he was able to secure title in his name also. (Emphasis supplied)
Such commission of specific fraudulent conduct is absent in the present case. Other than asserting that petitioners are guilty of fraud because they
secured title to Lot Nos. 2-A and 2-E with an area twice bigger than what CANUTO allegedly sold to CONSOLACION, REMEDIOS did not present
any other proof of petitioners fraudulent conduct akin to Adille.
CONSOLACION obtained title to Lot Nos. 2-A and 2-E through the KASULATAN executed by CANUTO and the JOINT AFFIDAVIT executed by his
surviving children, one of whom, Felicidad, is the mother of REMEDIOS. The KASULATAN referred to the sale of CANUTOs 10/70 share in Lot 2
without specifying the area of the lot sold. The JOINT AFFIDAVIT referred to the "Plano de Subdivision Psd-34713" without also specifying the area
of the lot sold. However, Subdivision Plan Psd 34713, as certified by the Assistant Director of Lands on 30 May 1952, showed an area of 2,670
square meters in the name of CANUTO. Based on these documents, the Register of Deeds issued TCT No. (232252) 1321 to CONSOLACION
covering an area of 2,670 square meters.
REMEDIOS does not assail the KASULATAN or the JOINT AFFIDAVIT as fictitious or forged. REMEDIOS even admits the authenticity of
Subdivision Plan Psd 34713 as certified by the Assistant Director of Lands.21 Moreover, REMEDIOS has not contested petitioners claim that
CANUTO doubled his share in Lot 2 by acquiring VICTORIANOs share.22
Plainly, the increase in the area sold from 1,335 square meters to 2,670 square meters is a glaring mistake. There is, however, no proof whatsoever
that this increase in area was the result of fraud. Allegations of fraud in actions to enforce implied trusts must be proved by clear and convincing
evidence.23 Adille, which is anchored on fraud,24 cannot apply to the present case.
At any rate, even if we apply Adille to this case, prescription still bars REMEDIOS complaint. As executrix of CATALINAs LAST WILL, REMEDIOS
submitted to the then Court of First Instance of Caloocan in Special Proceedings Case No. C-208 the inventory of all the property comprising
CATALINAs estate, which included Lot Nos. 2-A and 2-E. In a motion dated 7 November 1977, CONSOLACION sought the exclusion of these lots

Succession 42
from the inventory, invoking her title over them. REMEDIOS was served a copy of the motion on 8 November 1977 against which she filed an
opposition. Nevertheless, the trial court overruled REMEDIOS objection. In its order of 3 January 1978, the trial court granted CONSOLACIONs
motion and ordered the exclusion of Lot Nos. 2-A and 2-E from the estate of CATALINA. REMEDIOS did not appeal from this ruling.
REMEDIOS thus had actual notice of petitioners adverse title on 8 November 1977. Even if, for the sake of argument, the ten-year prescriptive
period begins to run upon actual notice of the adverse title, still REMEDIOS right to file this suit has prescribed. REMEDIOS had until 11 November
1987 within which to file her complaint. When she did so on 4 February 1988, the prescriptive period had already lapsed.
Respondent is Not a Real Party-in-Interest
Not only does prescription bar REMEDIOS complaint. REMEDIOS is also not a real party-in-interest who can file the complaint, as the trial court
correctly ruled.
The 1997 Rules of Civil Procedure require that every action must be prosecuted or defended in the name of the real party-in-interest who is the
party who stands to benefit or suffer from the judgment in the suit.25 If one who is not a real party-in-interest brings the action, the suit is dismissible
for lack of cause of action.26
REMEDIOS anchored her claim over Lot Nos. 2-A and 2-E (or over its one-half portion) on the devise of these lots to her under CATALINAs LAST
WILL. However, the trial court found that the probate court did not issue any order admitting the LAST WILL to probate. REMEDIOS does not
contest this finding. Indeed, during the trial, REMEDIOS admitted that Special Proceedings Case No. C-208 is still pending.27
Article 838 of the Civil Code states that "[N]o will shall pass either real or personal property unless it is proved and allowed in accordance with the
Rules of Court." This Court has interpreted this provision to mean, "until admitted to probate, [a will] has no effect whatever and no right can be
claimed thereunder."28 REMEDIOS anchors her right in filing this suit on her being a devisee of CATALINAs LAST WILL. However, since the
probate court has not admitted CATALINAs LAST WILL, REMEDIOS has not acquired any right under the LAST WILL. REMEDIOS is thus without
any cause of action either to seek reconveyance of Lot Nos. 2-A and 2-E or to enforce an implied trust over these lots.
The appellate court tried to go around this deficiency by ordering the reconveyance of Lot Nos. 2-A and 2-E to REMEDIOS in her capacity as
executrix of CATALINAs LAST WILL. This is inappropriate because REMEDIOS sued petitioners not in such capacity but as the alleged owner of
the disputed lots. Thus, REMEDIOS alleged in her complaint:
3. The plaintiff is a niece and compulsory heir of the late CATALINA SIOSON who died single and without any child of her own and who, during her
lifetime, was the owner of those two (2) parcels of land located at Tanza, Navotas, Rizal (now Metro Manila), formerly covered by Original Certificate
of Title No. 4207 of the Registry of Deeds for the Province of Rizal, x x x.
4. The plaintiff, aside from being the compulsory heir of the deceased CATALINA SIOSON, has sole and exclusive claim of ownership over the
above-mentioned two (2) parcels of land by virtue of a will or "Huling Habilin at Pagpapasiya" executed by Catalina Sioson on May 19, 1964 before
Notary Public Efren Y. Angeles at Navotas, Rizal, in which document the deceased Catalina Sioson specifically and exclusively bequeathed to the
plaintiff the above-mentioned Lots 2-A and 2-E of Psd-34713 approved by the Bureau of Lands on May 30, 1952. Copy of the "Huling Habilin at
Pagpapasiya" consisting of four (4) pages is hereto attached and forms an integral part hereof as Annex "A;"
5. Sometime on or about February, 1987, plaintiff discovered that the above-mentioned Lots 2-A and 2-E of subdivision plan Psd-34713 are now
registered or titled in the name of the defendants under Transfer Certificate of Title No. (232252) 1321 of the Registry of Deeds of Rizal, now MetroManila District III. Copy of the title is hereto attached and forms an integral part hereof as Annex "B;"
6. Upon further inquiry and investigation, plaintiff discovered that the defendants were able to obtain title in their name of the said parcels of land by
virtue of a "Kasulatan ng Bilihang Tuluyan" allegedly executed by Canuto Sioson on September 26, 1956 before Notary Public Jose [T.] de los
Santos of Navotas, Metro-Manila. Copy of the said document is hereto attached and forms an integral part hereof as Annex "C;"
7. The plaintiff also discovered that although x x x the original sale did not specify the parcels of land sold by Canuto Sioson, the defendants
submitted an alleged Affidavit executed by Felicidad Sioson and Beatriz Sioson identifying the lots sold by Canuto Sioson to the defendants as Lots
2-A and 2-E of subdivision plan Psd-34713. Copy of the Affidavit dated October 3, 1968 on the basis of which the present Transfer Certificate of
Title No. (232252) 1321 was issued to the defendants is hereto attached and forms an integral part hereof as Annex "D;"
8. The defendants are clearly guilty of fraud in presenting the aforementioned Affidavit (Annex "D") to the Register of Deeds as the basis of their
claim to Lots 2-A and 2-E in view of the fact that the parcels sold to them by Canuto Sioson, assuming there was such a sale, were different parcels
of land, Lots 2-A and 2-E being the properties of the late Catalina Sioson who bequeathed the same to the plaintiff.
xxxx
12. Because of the defendants fraudulent actuations on this matter, plaintiff suffered and continious [sic] to suffer moral damages arising from
anxiety, shock and wounded feelings. Defendants should also be assessed exemplary damages by way of a lesson to deter them from again
committing the fraudulent acts, or acts of similar nature, by virtue of which they were able to obtain title to the parcels of land involved in this case x
x x.29 (Emphasis supplied)
Indeed, all throughout the proceedings below and even in her Comment to this petition, REMEDIOS continued to pursue her claim as the alleged
owner of one-half of the disputed lots.
Other Matters Raised in the Petition
The Court deems it unnecessary to pass upon the other errors petitioners assigned concerning the award of damages and attorneys fees to
REMEDIOS. Such award assumes that REMEDIOS is a real party-in-interest and that she timely filed her complaint. As earlier shown, this is not
the case.
WHEREFORE, we GRANT the petition. The Decision of the Court of Appeals dated 31 January 1994 and its Resolution dated 15 June 1994 are
SET ASIDE. The complaint filed by respondent Remedios Eugenio-Gino, dated 2 February 1988 is DISMISSED.
SO ORDERED.

Succession 43
G.R. No. L-57848

June 19, 1982

RAFAEL E. MANINANG and SOLEDAD L. MANINANG, petitioners,


vs.
COURT OF APPEALS, HON. RICARDO L. PRONOVE, JR., as Judge of the Court of First Instance of Rizal and BERNARDO S. ASENETA,
respondents.

MELENCIO-HERRERA, J.:
A Petition to Review the Decision of April 28, 1981 of respondent Appellate Court in CA-G.R. No. 12032-R entitled "Rafael E. Maninang and
Soledad L. Maninang vs. Hon. Ricardo Pronove, Judge of the Court of First Instance of Rizal, Pasig, Branch XI, and Bernardo S. Aseneta".
Pertinent to the controversy are the following antecedental facts:
On May 21, 1977, Clemencia Aseneta, single, died at the Manila Sanitarium Hospital at age 81. She left a holographic will, the pertinent portions of
which are quoted hereunder:
xxx

xxx

xxx

It is my will that all my real properties located in Manila, Makati, Quezon City, Albay and Legaspi City and all my personal properties shagllbe
inherited upon my death by Dra. Soledad L. Maninang with whose family I have lived continuously for around the last 30 years now. Dra. Maninang
and her husband Pamping have been kind to me. ... I have found peace and happiness with them even during the time when my sisters were still
alive and especially now when I am now being troubled by my nephew Bernardo and niece Salvacion. I am not incompetent as Nonoy would like
me to appear. I know what is right and wrong. I can decide for myself. I do not consider Nonoy as my adopted son. He has made me do things
against my will.
xxx

xxx

xxx

On June 9, 1977, petitioner Soledad Maninang filed a Petition for probate of the Will of the decedent with the Court of First Instance-Branch IV,
Quezon City (Sp. Proc. No. Q-23304, hereinafter referred to as the Testate Case).
On July 25, 1977, herein respondent Bernardo Aseneta, who, as the adopted son, claims to be the sole heir of decedent Clemencia Aseneta,
instituted intestate proceedings with the Court of First Instance-Branch XI, Pasig, Rizal (Sp. Proc. No. 8569, called hereinafter the Intestate Case"
for brevity).
On December 23, 1977, the Testate and Intestate Cases were ordered consolidated before Branch XI, presided by respondent Judge.
Respondent Bernardo then filed a Motion to Dismiss the Testate Case on the ground that the holographic will was null and void because he, as the
only compulsory heir, was preterited and, therefore, intestacy should ensue. In support of said Motion to Dismiss, respondent Bernardo cited the
cases of Neri vs. Akutin (72 Phil. 322); Nuguid vs. Nuguid (17 SCRA 449), and Ramos vs. Baldovino (2 CA Rep. 2nd, 878). 1
In her Opposition to said Motion to Dismiss, petitioner Soledad averred that it is still the rule that in a case for probate of a Will, the Court's area of
inquiry is limited to an examination of and resolution on the extrinsic validity of the will; and that respondent Bernardo was effectively disinherited by
the decedent. 2
On September 8, 1980, the lower Court ordered the dismissal of the Testate Case in this wise:
For reasons stated in the motion to dismiss filed by petitioner Bernardo S. Aseneta which the Court finds meritorious, the petition for probate of will
filed by Soledad L. Maninang and which was docketed as Sp. Proc. No. Q-23304 is DISMISSED, without pronouncement as to costs.
On December 19, 1980, the lower Court denied reconsideration for lack of merit and in the same Order appointed Bernardo as the administrator of
the intestate estate of the deceased Clemencia Aseneta "considering that he is a forced heir of said deceased while oppositor Soledad Maninang is
not, and considering further that Bernardo Aseneta has not been shown to be unfit to perform the duties of the trust. "
Petitioners Maninang resorted to a certiorari Petition before respondent Court of Appeals alleging that the lower Court exceeded its jurisdiction in
issuing the Orders of dismissal of the Testate Case (September 8, 1980) and denial of reconsideration (December 19, 1980).
On April 28, 1981, respondent Court 3 denied certiorari and ruled that the trial Judge's Order of dismissal was final in nature as it finally disposed of
the Testate Case and, therefore, appeal was the proper remedy, which petitioners failed to avail of. Continuing, it said that even granting that the
lower Court committed errors in issuing the questioned Orders, those are errors of judgment reviewable only by appeal and not by Certiorari. 'Thus,
this Petition before us.
We find that the Court a quo a quo acted in excess of its jurisdiction when it dismissed the Testate Case. Generally, the probate of a Will is
mandatory.
No will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court. 4
The law enjoins the probate of the Will and public policy requires it, because unless the Will is probated and notice thereof given to the whole world,
the right of a person to dispose of his property by Will may be rendered nugatory. 5
Normally, the probate of a Will does not look into its intrinsic validity.
... The authentication of a will decides no other question than such as touch upon the capacity of the testator and the compliance with those
requisites or solemnities which the law prescribes for the validity of wills. It does not determine nor even by implication prejudge the validity or
efficiency (sic) of the provisions, these may be impugned as being vicious or null, notwithstanding its authentication. The que0stions relating to
these points remain entirely unaffected, and may be raised even after the will has been authenticated .... 6
Opposition to the intrinsic validity or legality of the provisions of the will cannot be entertained in Probate proceeding because its only purpose is
merely to determine if the will has been executed in accordance with the requirements of the law. 7

Succession 44
Respondent Bernardo, however, relies on the pronouncement in Nuguid vs. Nuguid 8, reading:
In a proceeding for the probate of a will, the Court's area of inquiry is limited to an examination of, and resolution on, the extrinsic validity of the will,
the due execution thereof, the testatrix's testamentary capacity and the compliance with the requisites or solemnities prescribed by law. The intrinsic
validity of the will normally comes only after the court has declared that the will has been duly authenticated. However, where practical
considerations demand that the intrinsic validity of the will be passed upon, even before it is probated, the Court should meet that issue. (Emphasis
supplied)
Our ruling in Balanay vs. Hon. Martinez 9 had a similar thrust:
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.
The Nuguid and the Balanay cases provide the exception rather than the rule. The intrinsic validity of the Wills in those cases was passed upon
even before probate because "practical considerations" so demanded. Moreover, for the parties in the Nuguid case, the "meat of the controversy"
was the intrinsic validity of the Will; in fact, the parties in that case "shunted aside the question of whether or not the Will should be allowed
probate." Not so in the case before us now where the probate of the Will is insisted on by petitioners and a resolution on the extrinsic validity of the
Will demanded.
Moreover, in the Nuguid case, this Court ruled that the Will was intrinsically invalid as it completely preterited the parents of the testator. In the
instant case, a crucial issue that calls for resolution is whether under the terms of the decedent's Will, private respondent had been preterited or
disinherited, and if the latter, whether it was a valid disinheritance. Preterition and disinheritance are two diverse concepts.
... Preterition "consists in the omission in the testator's will of the forced heirs or anyone of them, either because they are not mentioned therein, or,
though mentioned, they are neither instituted as heirs nor are expressly disinherited." (Neri vs. Akutin, 72 Phil. 325). Disinheritance, in turn, "is a
testamentary disposition depriving any compulsory heirs of his share in the legitimate for a cause authorized by law." (Justice J.B.L. Reyes and R.C.
Puno, "An Outline of Philippine Civil Law", 1956 ed., Vol. III, p. 8, citing cases) Disinheritance is always "voluntary", preterition upon the other hand,
is presumed to be "involuntary" (Sanchez Roman, Estudios de Derecho Civil 2nd edition, Volume 2.o p. 1131). 10
The effects of preterition and disinheritance are also totally different.
... The effects flowing from preterition are totally different from those of disinheritance. Pretention under Article 854 of the New Civil Code shall annul
the institution of heir. This annulment is in toto, unless in the wail there are, in addition, testamentary dispositions in the form of devises or legacies.
In ineffective disinheritance under Article 918 of the same Code, such disinheritance shall also "annul the institution of heirs", but only "insofar as it
may prejudice the person disinherited", which last phrase was omitted in the case of preterition (III Tolentino, Civil Code of the Philippines, 1961
Edition, p. 172). Better stated yet, in disinheritance the nullity is limited to that portion of the estate of which the disinherited heirs have been illegally
deprived. 11
By virtue of the dismissal of the Testate Case, the determination of that controversial issue has not been thoroughly considered. We gather from the
assailed Order of the trial Court that its conclusion was that respondent Bernardo has been preterited We are of opinion, however, that from the
face of the Will, that conclusion is not indubitable.
As held in the case of Vda. de Precilla vs. Narciso 12
... it is as important a matter of public interest that a purported will is not denied legalization on dubious grounds. Otherwise, the very institution of
testamentary succession will be shaken to its foundation, ...
Coming now to the procedural aspect, suffice it to state that in view of our finding that respondent Judge had acted in excess of his jurisdiction in
dismissing the Testate Case, certiorari is a proper remedy. An act done by a Probate Court in excess of its jurisdiction may be corrected by
Certiorari. 13 And even assuming the existence of the remedy of appeal, we harken to the rule that in the broader interests of justice, a petition for
certiorari may be entertained, particularly where appeal would not afford speedy and adequate relief.
WHEREFORE, the Decision in question is set aside and the Orders of the Court of First Instance-Branch XI, Rizal, dated September 8, 1980 and
December 19, 1980, are nullified. Special Proceeding No. Q-23304 is hereby remanded to said Court of First Instance-Branch XI. Rizal, therein to
be reinstated and consolidated with Special Proceeding No. 8569 for further proceedings.
No pronouncement as to costs.
SO ORDERED.

Succession 45
G.R. No. L-42226

July 26, 1935

In re estate of the deceased Ines Basa de Mercado.


JOAQUINA BASA, ET AL., petitioners-appellants,
vs.
ATILANO G. MERCADO, respondent-appellee.
Briones and Martinez for appellants.
Jose Gutierrez David for appellee.
GODDARD, J.:
By virtue of an order dated June 27, 1931, the Honorable Hermogenes Reyes, Judge of the Court of First Instance of Pampanga, allowed and
probated the last will and testament of Ines Basa, deceased. On January 30, 1932, the same judge approved the account of the administrator of the
estate, declared him the only heir of the deceased under the will and closed the administration proceedings. On April 11, 1934, the herein
petitioners-appellants filed a motion in which they prayed that said proceedings be reopened and alleged that the court lacked jurisdiction to act in
the matter because there was a failure to comply with requirements as to the publication of the notice of hearing prescribed in the following section
of the Code of Civil Procedure:
SEC. 630. Court to appoint hearing on will. When a will is delivered to a court having jurisdiction of the same, the court shall appoint a time and
place when all concerned may appear to contest the allowance of the will, and shall cause public notice thereof to be given by publication in such
newspaper or newspapers as the court directs of general circulation in the province, three weeks successively, previous to the time appointed, and
no will shall be allowed until such notice has been given. At the hearing all testimony shall be taken under oath, reduced to writing and signed by the
witnesses.
In this motion the appellants claim that the provisions of section 630 of the Code of Civil Procedure have not been complied with in view of the fact
that although the trial judge, on May 29, 1931, ordered the publication of the required notice for "three weeks successively" previous to the time
appointed for the hearing on the will, the first publication was on June 6, 1931, the third on June 20, 1931, and the hearing took place on the 27th of
that month, only twenty-one days after the date of the first publication instead of three full weeks before the day set for the hearing.
Section 630 of our Code of Civil Procedure is taken from the Code of Civil Procedure of the State of Vermont. The Supreme Court of that State,
commenting on the phrase "three weeks successively", held:
The date of examining and allowing P.A. Barlett's final account of administration, and for decreeing the residue of the estate to the lawful claimants
of the same, was set by the probate court for December 19, 1919, at the probate office in Brighton, and an order was made to this effect on
November 28, 1919. The order provided also that notice should be given by publication for three weeks successively in the Essex County Herald. In
accordance with this order, the notice was published in the issues for December 4, 11 and 18, respectively. This was "public notice" to all persons
interested of the time and place of examining and allowing said account and making decree of distribution, and was sufficient under the provisions
of G.L. 3276. (Lenehen vs. Spaulding, 57 Vt., 115.) "The proceeding was according to law in all respects, and being in the nature of a proceeding in
rem, it binds everybody by its legal effect." (Burbeck vs. Little, 50 Vt., 713.) At the time and place set for the hearing none of the petitioners or other
legatees under the will of Nickerson Warner appeared. Thereupon the judge of probate then and there continued the hearing until April 6, 1920, at
which time the final account of P.A .Barlett as administrator de bonis non with will annexed was filed and, no one appearing to object, the same was
allowed, and the decree of distribution was entered. (In re Warner's Estate [Supreme Court of Vermont] 1925; 127 Atl. Rep., 362, 364; 98 Vt., 254,
261.)
It will be noted that in the above cited case the last of the three publications was on December 18, 1919, and the hearing on the administrators's
final account was set for December 19 of that year, only fifteen days after the date of the first publication.
In view of the foregoing, it is held that the language used in section 630 of the Code of Civil Procedure does not mean that the notice, referred to
therein, should be published for three full weeks before the date set for the hearing on the will. In other words the first publication of the notice need
not be made twenty-one days before the day appointed for the hearing.
The appellants also contend that the trial court erred in ruling that the weekly newspaper, Ing Katipunan, in which the notice of hearing was
published, was a newspaper of general circulation in the Province of Pampanga.
The record shows that Ing Katipunan is a newspaper of general circulation in view of the fact that it is published for the dissemination of local news
and general information; that it has a bona fide subscription list of paying subscribers; that it is published at regular intervals and that the trial court
ordered the publication to be made in Ing Katipunan precisely because it was a "newspaper of general circulation in the Province of Pampanga."
Furthermore no attempt has been made to prove that it was a newspaper devoted to the interests or published for the entertainment of a particular
class, profession, trade, calling, race or religious denomination. The fact that there is another paper published in Pampanga that has a few more
subscribers (72 to be exact) and that certain Manila dailies also have a larger circulation in that province is unimportant. The law does not require
that publication of the notice, referred to in the Code of Civil Procedure, should be made in the newspaper with the largest numbers is necessary to
constitute a newspaper of general circulation.
The assignments of error of the appellants are overruled and the appealed order of the trial court is affirmed with costs in this instance against the
appellants.

Succession 46
G.R. Nos. L-46430-31

July 30, 1979

FRANCISCA ALSUA-BETTS, JOSEPH O. BETTS, JOSE MADARETA, ESTEBAN P. RAMIREZ, and THE REGISTER OF DEEDS FOR ALBAY
PROVINCE, petitioners,
vs.
COURT OF APPEALS, AMPARO ALSUA BUENVIAJE, FERNANDO BUENVIAJE, FERNANDO ALSUA, represented by his guardian, CLOTILDE S.
ALSUA and PABLO ALSUA, respondents.
Rafael Triumfante for petitioners.
Sabido-Sabido & Associates and Madrid Law Office for private respondents.

GUERRERO, J.:1wph1.t
This is an appeal by certiorari from the decision of the Court of Appeals in CA-G.R. Nos. 54492-R and 54493-R which reversed the decision of the
Court of First Instance of Albay allowing the probate of the win of Don Jesus Alsua in Special Proceedings No. 699 and dismissing the complaint in
Civil Case 3068 after declaring the two deeds of sale executed by Don Jesus Alsua legal and valid. The respondent court 1 denied the probate of
the will, declared null and void the two sales subject of the complaint and ordered the defendants, petitioners herein, to pay damages to the
plaintiffs, now the private respondents, the sum of Five Thousand Pesos (P5,000.00), to render an accounting of the properties in their possession
and to reimburse the latter the net gain in the proportion that appertains to them in the properties from the date of the firing of the complaint up to
complete restoration plus Fifty Thousand Pesos (P50,000.00) as attorney's fees and costs.
The antecedent events leading to the filing of these two consolidated actions are the following.
On November 25, 1949, Don Jesus Alsua and his wife, Do;a Florentina Rella, both of Ligao, Albay, together with all their living children, Francisca
Alsua-Betts, Pablo Alsua, Fernando Alsua thru this judicial guardian Clotilde Samson, and Amparo Alsua de Buenviaje, entered into a duly notarized
agreement, Escritura de Particion Extrajudicial (Exhibit 8), over the then present and existing properties of the spouses Don Jesus and Do;a
Florentina enumerated in a prepared inventory, Exhibit 8-A, the essential features of which are stated in private respondents' Brief, pp. 26-29, to wit:
t.hqw
(1)
Basis of the partition: Inventory (Annex A) of all the properties of the Alsua spouses, which inventory consists of 97 pages, all of them
signed by the spouses and all the above named heirs in the left margin of every page (parafo primers).
(2)
An acknowledgment of the spouses that all the properties described in the inventory (Annex A) are conjugal properties with the exception
of five parcels of land Identified with the figures of 1 to 5 and 30 shares of San Miguel Brewery stock which are paraphernal properties of the late
Do;a Tinay (segundo parafo).
(3)

An acknowledgment that during their marriage, they had nine children but five of them died minors, unmarried (parafo tercero y cuatro).

(4)
An acknowledgment that on the basis of Article 1056 of the Civil Code (old) to avoid Possible misunderstanding among their children
concerning the inheritance they are entitled to in the event of death of one of them they have decided to effectuate an extrajudicial partition of all the
properties described in Annex "A" thereto under the following terms and conditions: (Parafo quinto):
To Francisca Alsua, married to Joseph O. Betts were allotted or assigned all the real properties with the improvements thereon specifically
described from pages 1-12 of said inventory or, 34 parcels of land with a total land area of 5,720,364 sq. meters, with a book or appraised value of
P69,740.00.
To Pablo Alsua, married to Teresa Locsin were allotted or assigned all the real properties with the improvements thereon specifically described from
pages 12-20 of said inventory or, 26 parcels of land with a total land area of 5,679,262 sq. meters, with a book or appraised value of P55,940.00.
To Fernando Alsua, married to Clotilde Samson were allotted or assigned all the real properties with the improvements thereon specifically
described from pages 20-33 of said inventory or, 47 parcels of land with a total land area of 6,639,810 sq. meters, with a book or appraised value of
P89,300.00.
To Amparo Alsua, married to Fernando Buenviaje were allotted or assigned all the real properties with the improvements thereon specifically
described from pages 33-47 of said inventory or, 47 parcels of land with a total land area of 5,630,715 sq. meters, with a book or appraised value of
P58,830.00. t.hqw
(a)
Each and every one of the heirs named above acknowledge and admit that the totality of the properties allotted and adjudicated to the
heirs as described in the preceding paragraph, constitute one half of the properties described in Annex "A", including any amount of cash deposited.
(b)
That all the heirs acknowledge and admit that all the properties assigned to them as their hereditary portion represent one-half not only of
the conjugal properties but includes the paraphernal properties waiving now and forever any complaint or claim they have or they may have
concerning the amount, value, extension and location of the properties that are allotted to each and everyone. They also waive any claim they have
or they may have over the remaining portion of the properties, which spouses reserved for themselves.
(c)
That in case of death of one of the spouses, each and everyone of the heirs acknowledge that the properties which are left in the
possession of the surviving spouse, including any amount in cash, are even less than the one- half that should correspond in absolute ownership as
his legitimate participation in the conjugal properties. In consequence they waive any claim that they have or may have over said portion of said
properties or any amount in cash during the lifetime of the surviving spouse, including any right or claim they have or they may have over the
paraphernal properties of Do;a Tinay in the event the surviving spouse is Don Jesus.
(d)
The spouses on their part in case of death of any one of them, the surviving spouse waives any claim he or she may have over the
properties assigned or adjudicated to the heirs under and by virtue of this deed. The properties which were reserved for them (the spouses) should
be considered as his or her legitimate participation in the conjugal properties and the fair compensation of his or her usufruct on the properties that
the surviving spouse reserved for himself or herself which shag be distributed in equal shares among the heirs upon his or her death unless said
properties of some of them have been disposed of during the lifetime of the surviving spouse.
(e)
Any heir who may dare question the validity and legitimacy of the provision contained herein shall be under obligation to pay to the other
heirs, in the concept of damages and prejudice, the sum of P5,000.00 plus attorney's fees.

Succession 47
(f)

The provisions of this deed shall bind the successors of the herein heirs.

(g)
In the event of death of one of the spouses, the properties assigned or adjudicated to each and everyone of the heirs shall be considered
as his share or participation in the estate or as his inheritance left by the deceased and each heir shall become the absolute owner of the properties
adjudicated to him under this deed.
On January 5, 1955, Don Jesus and Do;a Florentina, also known as Do;a Tinay separately executed their respective holographic wills (Exhs. 6-B
and 7-B), the provisions of which were in conformity and in implementation of the extrajudicial partition of November 25, 1949. Their holographic
wills similarly provided for the institution of the other to his or her share in the conjugal properties, the other half of the conjugal assets having been
partitioned to constitute their legitime among their four living children in the Extrajudicial Partition of 1949. The wigs also declared that in the event
of future acquisitions of other properties by either of them, one-half thereof would belong to the other spouse, and the other half shall be divided
equally among the four children. The holographic will of Do;a Tinay written in Spanish reads, as translated: t.hqw
TESTAMENT
I, FLORENTINA R. DE ALSUA, 67 years old, Filipina, married to Don Jesus Alsua, resident of and with postal address in the Municipality of Ligao,
Province of Albay, Philippines, being in the full possession of my mental and physical faculties freely and spontaneously execute this my last will
and testament in my handwriting and signed by me and expressed in the Spanish language which I speak, write and understand, this 5th day of
January, 1955 in the Municipality of Ligao, Province of Albay, and in which I ordain and provide:
First: That in or about the year 1906 I was married to my husband Don Jesus Alsua and begot nine (9) children with him, four (4) of whom are still
living and they are Francisco Alsua, Pablo Alsua, Fernando Alsua and Amparo Alsua. The other five (5) died during their minority, single and without
children.
Second: That after my marriage to my husband Don Jesus Alsua and during our conjugal union, and as a result of our efforts and industry, we were
able to acquire conjugal properties consisting of abaca (abales) and cacao lands and urban lands registered in the office of the Registry of Property
of the Province of Albay and in the City of Manila.
Third: That I institute as my heirs with right to inherit the following- my spouse Don Jesus Alsua, one-half (1/2) of my properties, real and personal,
and the other half, to my children Francisco Alsua, married to Joseph O. Betts, Pablo Alsua, Fernando Alsua, married to Clotilde Samson, and
Amparo Alsua, married to Fernando Buenviaje, in equal parts. It is to be understood, however, that the other half that corresponds as legitime to my
above named children have already been given to them, pursuant to a document dated November 25, 1949 and ratified on the same day, month
and year before Notary Public Segundo G. Flores (Reg. No. 525; Pag. 15; Lib. 11; Series of 1949) enjoining each and everyone of them to respect
and faithfully comply with each and every clause contained in the said document.
Fourth: That should I acquire new properties after the execution of this testament, the same shall be partitioned among my spouse and above
named children or the children mentioned in above par. 3 in the same proportion that is, one-half (1 1/2) to my spouse; and the other half to my
children in equal parts.
Fifth: That I name as my executor my husband Don Jesus Alsua without having to post any bond.
IN VIRTUE WHEREOF, I hereby sign in my own handwriting this testament on this 5th day of January, 1955 in the Municipality of Ligao, Province of
Albay, Philippines. t.hqw
(SGD.) FLORENTINA R. DE ALSUA
(Joint Record on appeal pp. 420-423, CA-G.R. No. 54492-R)
As previously stated, Don Jesus Alsua executed a separate but similar holographic will on the same day, Jan. 5, 1955 in exactly the same terms
and conditions as the above will of his wife.
On May 21, 1956, the spouses Don Jesus and Do;a Tinay filed before the Court of First Instance of Albay their respective petitions for the probate
of their respective holographic wins which were docketed as Special Proceedings No. 484 (Jesus Alsua, Petitioner) and Special Proceedings No.
485 (Do;a Florentina Ralla de Alsua, Petitioner).
On August 14, 1956, the spouses Don Jesus and Do;a Tinay executed their mutual and reciprocal codicils amending and supplementing their
respective holographic wins. Again, the codicils similarly acknowledged and provided that one-half of all the properties of the spouses, conjugal and
paraphernal, had been disposed of, conveyed to and partitioned among their legitimate heirs in the "Escritura de Particion" of November 25, 1949,
but that they reserved for themselves (the spouses Don Jesus and Do;a Tinay) the other half or those not disposed of to the said legitimate heirs
under the above agreement of partition, and that they mutually and reciprocally bequeathed unto each other their participation therein as well as in
all properties which might be acquired subsequently. Each spouse also declared that should she or he be the surviving spouse, whatever belongs to
him or her or would pertain to him or her, would be divided equally among the four children. It was also declared in both codicils that upon the death
of either of the spouses, the surviving spouse was designated mutually and reciprocally as the executor or administrator of all the properties
reserved for themselves.
The codicil executed by Do;a Tinay, written in Spanish reads, as translated: t.hqw
CODICIL
This codicil supplements and amends the preceding testament. That my spouse and I have agreed to divide the properties which we have acquired
into 2 parts. The 1/2 that would correspond to me covers all the properties that I have partitioned among my children in the Document of Partition
dated November 25, 1949 before Notary Public Segundo G. Flores, Jr. (Doc. No. 525; Pag. No. 15; Lib. No. 11; Series of 1949) (and) even as the
properties which by reason of this testament I leave to my husband as his share and the other half that corresponds to my husband constitutes an
the properties that up to now have not been disposed of, particularly the urban lands situated in Legaspi, Albay, Ligao of the Province of Albay and
in the City of Manila, with the exception of that portion that I bequeath to my husband as his inheritance and his legitimate.
That I institute as my heirs with the right to inherit my husband Don Jesus Alsua and my children Francisco Alsua, Pablo Alsua, Fernando Alsua and
Amparo Alsua. I leave to my aforecited children all the properties described in the above mentioned Document of Partition dated November 25,
1949 which correspond to each one of them and in the profits (fruits) expressed in the same, and in the event that the properties granted to one or
any of my children should exceed in quantity or value those corresponding to another or others, I hereby declare that it is my will that the same be
divided among my children as their inheritance from the free portion of my property.

Succession 48
I leave to my spouse Don Jesus Alsua as his legitime and as Ws inheritance the part of the free portion of my property which have not been
allocated in favor of my children in the Document of Partition aforecited and that which should exceed 1/2 of the conjugal property of gains that
pertains to him as above stated, including all those properties which we shall acquire after the execution of this document.
In case it should be God's will that I survive my spouse, I hereby declare that it is my will that any and all kinds of property that pertain to me or
would pertain to me, which have not been disposed of pursuant to the partition, should be divided equally among my above-mentioned heirs after
my death. Ligao, Albay, Philippines, August 14,1956. t.hqw
(SGD.) FLORENTINA RALLA DE ALSUA
(joint Record on Appeal pp. 423-425, CA-G.R. No. 54492-R)
And as stated previously, on the same day, August 14, 1956, Don Jesus executed also a separate but similar codicil in exactly the same terms and
conditions as the above codicil of his wife. Also on the same day of August 14, 1956, the spouses Don Jesus and Do;a Tinay both filed their
respective supplemental petitions for the probate of their respective codicils in the probate proceedings earlier filed. On February 19, 1957, their
respective holographic wins and the codicils thereto were duly admitted to probate.
Upon the death of Do;a Tinay on October 2, 1959, Don Jesus was named executor to serve without bond in an order issued by the probate court
on October 13, 1959. Letters testamentary having been issued in favor of Don Jesus, he took his oath of office and performed his duties as such
until July 1, 1960.
Thereafter in the early part of November, 1959, Don Jesus cancelled his holographic will in the presence of his bookkeeper and secretary, Esteban
P. Ramirez, whom he instructed to make a list of all his remaining properties with their corresponding descriptions. His lawyer, Atty. Gregorio
imperial Sr. was then instructed to draft a new will which was duly signed by Don Jesus and his attesting witnesses on November 14, 1959 at Ms
home in Ligao, Albay. This notarial will and testament (Exh. A) of Don Jesus executed on November 14, 1959 had three essential features: (a) it
expressly cancelled, revoked and annulled all the provisions of Don Jesus' holographic will of January 5, 1955 and his codicil of August 14, 1956;
(b) it provided for the collation of all his properties donated to his four living children by virtue of the "Escritura de Particion Extra. judicial" of 1949,
and that such properties be taken into account in the partition of his estate among the children; and (c) it instituted his children as legatees/devisees
of certain specific properties, and as to the rest of the properties and whatever may be subsequently acquired in the future, before his death, were
to be given to Francisca and Pablo, naming Francesca as executrix to serve without a bond.
After all debts, funeral charges and other expenses of the estate of Do;a Tinay had been paid, all her heirs including Don Jesus, submitted to the
probate court for approval a deed of partition executed on December 19, 1959 (Exh. 7-Q) and which essentially confirmed the provisions of the
partition of 1949, the holographic will and codicil of Do;a Tinay. On July 6, 1960, the court approved the partition of 1959 and on January 6, 1961
declared the termination of the proceedings on the estate of Do;a Tinay.
On May 6,1964, Don Jesus Alsua died.
On May 20, 1964, petitioner herein Francisca Alsua Betts, as the executrix named in the will of November 14, 1959, filed a petition for the probate of
said new will of Don Jesus Alsua before the Court of First Instance of Albay and was docketed as Special Proceedings No. 699. Oppositions thereto
were filed by Pablo, Amparo and Fernando, thru his judicial guardian Clotilde Samson, on the following grounds: (a) that Don Jesus was not of
sound and disposing mind at the time of the execution of the alleged will; (b) that the will was executed under duress or influence of fear or threats;
or it was procured by undue and improper pressure and influence on the part of the main beneficiaries and of person or persons in collusion with
them, or the signature of the testator was secured by or thru fraud; (c) that the will was not executed according to the formal requirements of the
law; and (d) that the alleged will subject of probate contravened the Extrajudicial Partition of 1949 agreed upon by him, his deceased spouse, Do;a
Tinay, and all his children, Francisco, Pablo, Amparo and Fernando thru his judicial guardian Clotilde Samson, and also contravened Don Jesus'
own probated holographic will and codicil of 1955 and 1956, respectively, essentially confirming and implementing the said partition of 1949 which
had already been partially executed by all the signatories thereto in the partition of the estate of Do;a Tinay in December, 1959.
On the basis of Francisca's designation as executrix in the new will dated November 14, 1959, the Probate Court appointed her Administratrix of the
estate of her late father, Don Jesus Alsua. She then filed with the Probate Court an inventory of the properties of the estate which, according to the
oppositors therein (the private respondents now) did not include some properties appearing in the agreement of November 25. 1949 or in the
inventory attached thereto as Annex "A" and in the "Escritura de Particion" of December 19, 1959 as belonging to or should pertain to Don Jesus.
According to the oppositors, these properties consist of thirty- three (33) premium agricultural lots with a total land area of 1,187,970 square meters,
or approximately 119 hectares and with a total assessed value of P48,410.00 or a probable total market value of P238,000.00 at only P2,000.00 per
hectare, and four (4) commercial urban lots Ideally located in the business section of Legazpi City including the lot and the building presently
occupied by the well-known "Mayon Hotel" with an assessed value of approximately P117,260.00 or a probable market value at the time of
P469,040.00. It appearing from the new will that these properties were bequeathed to Pablo Alsua and Francisco Alsua-Betts, specifically, 3 parcels
of the 33 agricultural lands to Pablo and the rest to Francisco, the oppositors also raised in issue the non-inclusion of said properties in the
inventory of the estate of their late father. In answer, Francisco claimed ownership over the same, alleging that she bought the properties from their
father and presenting the two Deeds of Sale now being assailed, one dated August 26, 1961 purporting to show the sale of the 33 parcels of
agricultural land to Francisco by their father for the price of P70,000.00 and the other dated November 26, 1962 evidencing the sale of the four
urban lots for the sum of P80,000.00. Claiming fraud in the sales, the oppositors filed Civil Case No. 3068, seeking the annulment of the aforesaid
two deeds of sale, with damages, which upon agreement of the parties was then jointly heard and tried with Special Proceedings No. 699 for
probate of the Last Will and Testament of Don Jesus executed on November 14, 1959.
After a joint hearing of the merits of these two cases, the Court of First Instance of Albay promulgated a decision on January 15, 1973, the
dispositive portion of which states: t.hqw
WHEREFORE, in view of all the foregoing, judgment is hereby rendered, to wit:
1.
In Special Proceedings 699, the Court hereby APPROVES and ALLOWS the Will executed by Don Jesus Alsua at Ligao, Albay, on
November 14, 1959, which had been marked as Exhibit A, consisting of nine (9) pages, and orders that the same be made the basis for division and
distribution of the estate of said testator;
2.
In Civil Case 3068, the Court hereby dismisses the complaint and holds that the sale on August 26, 1961 (Exh. U) and the sale on
November 26, 1962 (Exh. W), are lawful and valid sales and accordingly conveyed title to the VENDEE thereof. The Plaintiffs in Civil Case 3068.
are ordered jointly and severally to pay to the defendant, Francisco Alsua Betts Fifty Thousand Pesos (P50,000.00) as damages and Fifty Thousand
(P50,000.00) Pesos for attorney's fees or a total of One Hundred Thousand Pesos (P100,000.00) and to pay the costs.

Succession 49
On appeal by herein respondents to the Court of Appeals, the court reversed the appealed decision in a judgment rendered on April 4, 1977, the
dispositive portion of which states, as translated, thus t.hqw
IN VIEW OF THE FOREGOING, this Tribunal finds itself constrained to set aside as it hereby sets aside the decision appealed from in the following
manner: (1) in Special Proceedings 699, the probate of the will, Exh. A, is hereby denied; (2) in Civil Case No. 3068, Exhs. U and W and the titles
issued on the basis thereof are hereby declared null and void, ordering the appellees Francisco Alsua and Joseph Betts to pay to the plaintiffs in the
concept of fixed damages, the sum of P5,000.00 and to render an accounting of properties in their possession and to reimburse the plaintiffs the net
gain, in the proportion that appertains to them in the properties subject of litigation in Civil Case No. 3068 from the date of the filing of this complaint,
up to the complete restoration of the properties pertaining to (plaintiffs) pursuant to Article 2208 of the New Civil Code, paragraph 11, ordering them
in addition to pay to the plaintiffs and oppositors the sum of P50,000.00 as attorney's fees, and the costs.
Hence, the petition at bar assailing the respondent court's decision on four assigned errors, to wit: t.hqw
I.
The respondent Court of Appeals erred in not affirming the findings of the probate court (Special Proceedings No. 699) that private
respondents, oppositors to the probate of the will, are in estoppel to question the competence of testator Don Jesus Alsua.
II.

The respondent Court of Appeals grossly erred in holding that testator Don Jesus Alsua cannot revoke his previous will.

III.

The respondent court's finding is grounded entirely on speculation, surmises or conjectures resulting in a gross misapprehension of facts.

IV.

The respondent court grossly erred in annulling the sales of August 26, 1961 (Exh. U), and of November 26, 1962 (Exh. W).

On the first issue of estoppel raised in the assignment of errors, We hold that the same is of no moment. The controversy as to the competency or
incompetency of Don Jesus Alsua to execute his will cannot be determined by acts of the herein private respondents as oppositors to the will in
formally agreeing in writing jointly with the petitioner Francisca Alsua de Betts that their father, Don Jesus Alsua, be appointed by the court executor
of the will of their mother in Special Proceedings No. 485, Testate Estate of Do;a Florentina Ralla de Alsua and in subsequently petitioning the
court not to require Don Jesus Alsua to file any accounting as executor in the proceedings, which petitioners claim and was upheld by the trial court
as constituting estoppel on the part of the private respondents from questioning the competence of Don Jesus Alsua.
The principle of estoppel is not applicable in probate proceedings, a ruling laid down in the case of Testate Estate of the Late Procopia Apostol
Benedicta Obispo, et al vs. Remedios Obispo, 50 O.G. 614, penned by Justice J.B.L. Reyes, an eminent and recognized authority on Civil Law
when he was still in the Court of Appeals, and We quote: t.hqw
Finally, probate proceedings involve public interest, and the application therein of the rile of estoppel, when it win block the ascertainment of the
truth as to the circumstances surrounding the execution of a testament, would seem inimical to public policy. Over and above the interest of private
parties is that of the state to see that testamentary dispositions be carried out if, and only if, executed conformably to law.
The Supreme Court of New York aptly said in Re Canfield's Will, 300 N.Y.S., 502: t.hqw
'The primary purpose of the proceeding is not to establish the existence of the right of any living person, but to determine whether or not the
decedent has performed the acts specified by the pertinent statutes, which are the essential prerequisites to personal direction of the mode of
devolution of his property on death. There is no legal but merely a moral duty resting upon a proponent to attempt to validate the wishes of the
departed, and he may and frequently does receive no personal benefit from the performance of the act.
One of the most fundamental conceptions of probate law, is that it is the duty of the court to effectuate, in so far as may be compatible with the
public interest, the devolutionary wishes of a deceased person (Matter of Watson's Wilt 262 N.Y., 284, 294, 186, N.E., 787; Matter of Marriman's
Estate, 124 Misc. 320, 325, 208, N.Y.S., 672; Foley, S., affirmed 217 app. Div., 733, 216 N.Y.S., 126, Henderson, S., Matter of Draske's Estate, 160
Misc. 587, 593, 290, N.Y.S., 581). To that end, the court is, in effect, an additional party to every litigation affecting the disposal of the assets of the
deceased. Matter of Van Valkenburgh's Estate, 164 Misc. 295, 298, N.Y.S., 219.'
The next issue that commands Our attention is whether the respondent court erred in not allowing the probate of the last will and testament of Don
Jesus Alsua. Petitioners claim that the disallowance was based on speculations, surmises or conjectures, disregarding the facts as found by the trial
court. The Civil Court is very clear and explicit in providing the cases where a will may be disallowed under Article 839 which provides as follows:
t.hqw
Art. 839. The will shall be disallowed in any of the following cases:
(1)

If the formalities required by law have not been complied with;

(2)

If the testator was insane, or otherwise mentally incapable of making a wilt at the time of its execution;

(3)

If it was executed through force or under duress, or the influence of fear, or threats;

(4)

If it was procured by undue and improper pressure and influence, on the part of the beneficiary or of some other person;

(5)

If the signature of the testator was procured by fraud,

(6)
thereto.

If the testator acted by mistake or did not intend that the instrument he signed should be his will at the time of affixing his signature

The issue under consideration appears to Us to have been answered by the respondent court itself when it accepted the findings of the trial court
on the due execution of the questioned will and testament of Don Jesus, declaring: t.hqw
... and going back to the previous question, whether the questioned will and testament of November 14, 1959, Exh. A, was executed in accordance
with Arts. 805-809 of the New Civil Code, this Tribunal from the very beginning accepts the findings of the inferior court concerning the question,
t.hqw
On October 2, 1959, Do;a Florentina died at Ligao, Albay. About 2 weeks after said death of his wife, Don Jesus Alsua decided to make a new will,
thereby revoking and cancelling his previous holographic will which he made on January 5, 1955 and also its codicil dated August 14, 1956. In the
presence of his bookkeeper and secretary, Esteban P. Ramirez, he crossed out in ink each and every page of said page he wrote on each page the
word "cancelado", and affixed his signature thereon (Exh V-5, V-6, consecutively up to and including Exh. V-14). He then instructed Ramirez to
make a list of all s properties with their corresponding descriptions.

Succession 50
Meanwhile, Don Jesus Alsua sent for his lawyer, Don Gregorio Imperial, Sr. and the latter came accompanied by his son, Atty. Jorge S, Imperial,
who, incidentally, is now a judge of the Court of First Instance of Naga City, Camarines Sur. Don Jesus informed his lawyers that he wanted to make
a new will, and accordingly gave more detailed instructions as to how he wanted to divide his properties among his four children. He handed to
them a list and on the left he indicated the name of the child to whom the listed properties shall pertain. Atty. Jorge Imperial took notes of the
instructions of Don Jesus Alsua. To Don Jesus, Spanish is his major language, as in fact his conversations with Don Gregorio are always in
Spanish. A few days before November 14, 1959, Atty. Jorge S. Imperial showed to Don Jesus the semi-final draft of the will and after reading it Don
Jesus said that it was as directed by him, and after making a few minor corrections, he instructed Atty. Jorge S. Imperial to put the win in final form.
He further told Atty, Jorge Imperial that the signing of the will should be at his home in Ligao, in the morning of November 14, 1959, and that the
witnesses should be Mr. Ramon Balana, the then Register of Deeds of Albay; Mr. Jose Madarieta who is a friend of the family; and Mr. Jose Gaya
who is a sort of employee of Don Jesus.
Thus in the morning of November 14, 1959, Don Gregorio and Atty. Jorge S. Imperial, riding in a sedan, stopped at the Legaspi residence of Mr.
Ramon Balana, and informed the latter that Don Jesus was requesting him to be one of the attesting witnesses to his will. Mr. Balana, having a very
high regard for Don Jesus, considered it an honor to be so asked, and gladly went with the Imperials. They arrived at the residence of Don Jesus at
Ligao; Albay, almost ten o'clock of that morning, and they were ushered in by Mr. Jose Gaya, and the latter requested them to be seated at the
usual receiving room on the ground floor while he announced their arrival to Don Jesus who was on the second floor. Soon Don Jesus came down,
carrying with him the will to be signed placed inside a cartolina folder. He greeted Don Gregorio, Mr. Balan, and Atty. Imperial and immediately
joined them in conversation. Mr. Gaya called for Mr. Jose Madarieta, whose residence is just across the road from the house of Don Jesus. Mr.
Madarieta was already informed by Don Jesus himself about the fact of signing the will that morning, and so, on being advised by Mr. Gaya that the
Imperials had already arrived, Madarieta proceeded to the residence of Don Jesus, without much delay. With the coming of Madarieta and the
coming back of Gaya, there were now six people gathered in the living room, namely: Don Jesus Alsua, Don Gregorio Imperial Atty. Jorge S.
Imperial Mr. Ramon Balana, Mr. Jose Madarieta, and Mr. Jose Gaya. All the witnesses who testified for the petitioner declared that Don Jesus was
in bright and lively conversation which ran from problems of farming and the merits of French-made wines. At 1 1:00 o'clock, Don Gregorio made a
remark that it is about time to do what they were there for, and this was followed by a more or less statement from Jesus, who said: t.hqw
'Preisamente es por lo que he Hamado a ustedes que esten presentes para ser testigos de rni ultimo voluntad y testamento que ha sido preparado
por el abogado Sr. Gregorio Imperial segun mis instrucciones cuyo documento tengo aqui conmigo y encuentro que, despues de lo he leido, esta
satisfactoriamente hecho segun mis instrucciones, Como saben ustedes tengo cuatro (4) hijos todos egos.' (pp. 43-44, t.s.n., hearing of December
7, 1967, Sarte.
On request of Don Jesus, all of them moved to the big round table on another part of the same sala for convenience in signing because there were
chairs all around this table. The will which consisted of nine pages, with a duplicate, and triplicate was laid on the round table and the signing
began, with Atty. Jorge S. Imperial assisting each person signing by indicating the proper place where the signature shall be written. Don Jesus, as
testator, signed first. After signing the original and the two other sets, the three sets were then passed to Mr. Ramon Balana who signed as attesting
witness. After Mr. Balana, Mr. Jose Madarieta signed next as another attesting witness, and when Mr. Madarieta finished signing all the three sets,
the same were passed to Mr. Jose Gaya who also signed as the third attesting witness. On each of the three sets, Don Jesus signed ten times,
one on the margin of each of the nine pages, and at the end of the instrument proper. Each of the three attesting witnesses (Balana, Madarieta and
Gaya) signed eleven times on each set, one on the margin of each of the nine pages, one at the end of the instrument proper and one below the
attestation clause. The original will was marked as Exh. A (or set A); the duplicate as Exh. K (or set K) and the triplicate of Don Jesus, Mr. Balana,
Mr. Madarieta, and Mr. Gaya were Identified by Mr. Balana, Mr. Madarieta and Atty. (now Judge) imperial. It was also clearly established that when
Don Jesus signed the will Mr. Balana, Mr. Madarieta, and Mr. Gaya were present and witnessed said signing, and that when each of these three
witnesses was signing, Don Jesus and the two other attesting witnesses were present and Witnessing said Signing. The signing by the testator and
the attesting witnesses having been completed, Atty. Jorge S. Imperial as Notary Public with commission for the entire province of Albay, notarized
the wilt and sealed it with his notarial seat which seal he brought along that morning. After all the three sets were notarized, they were all given back
to Don Jesus who placed them inside the same folder. At that moment, it was already about 12:30 P.M. and Don Jesus invited all of them to lunch,
which invitation was gladly accepted by all of then-L (pp. 474-480, Joint Record on Appeal in CA-G.R. No. 54492-R)
which findings are supported by the evidence, - it is quite difficult to conclude that the same had not complied with the requirements of Arts. 804806 of the New Civil Code. ... (CA Decision, pp. 13-16, as translated).
This cited portion of the appealed decision accepts as a fact that the findings of the lower court declaring the contested will as having been
executed with all the formal requirements of a valid will, are supported by the evidence. This finding is conclusive upon this Tribunal and We cannot
alter, review or revise the same. Hence, there is no further need for Us to dwell on the matter as both the lower court and the respondent appellate
court have declared that these are the facts and such facts are fully borne and supported by the records. We find no error in the conclusion arrived
at that the contested will was duly executed in accordance with law. We rule that the questioned last will and testament of Don Jesus Alsua fully
complied with the formal requirements of the law.
Respondent court, however, denied probate of the will after ,'noting certain details which were a little bit difficult to reconcile with the ordinary course
of things and of life." First was the fact that the spouses Don Jesus and Do;a Tinay together with their four children Francisco, Pablo, Amparo and
Fernando had executed the Extrajudicial Partition of November 25, 1949 (Exh. A) which divided the conjugal properties of the spouses between the
spouses themselves and the children under the terms and conditions and dispositions herein before stated and to implement its provisions, Don
Jesus and Do;a Tinay subsequently executed separately their respective holographic wigs both dated January 5, 1955 and codicils dated August
14, 1956 with the same terms and conditions as reproduced herein earlier. Both holographic wills and codicils having been probated thereafter and
upon the death of Do;a Tinay, Don Jesus was appointed executor of the will and in due time the partition of the properties or estate of Do;a Tinay
was approved by the probate court on July 6, 1960.
The respondent court ruled that the Extrajudicial Partition of November 25, 1949 was an enforceable contract which was binding on Don Jesus
Alsua as the surviving spouse, barring him from violating said partition agreement, barring him from revoking his holographic will of January 5, 1955
and his codicil of August 14, 1956, and further barring him from executing his new will and testament of November 14, 1959, now the subject of the
probate proceedings elevated to this Court.
We do not agree with this ruling of the Court of Appeals. We hold that the Extrajudicial Partition of November 25, 1949 is null and void under Article
1056 in relation to Article 1271 of the old Civil Code which are applicable hereto. These Articles provide as follows: t.hqw
Art. 1056. If the testator should make a partition of his property by an act inter vivos, or by will, such partition shall stand in so far as it does not
prejudice the legitime of the forced heirs. ...
Art. 1271. All things, even future ones, which are not excluded from the commerce of man, may be the subject-matter of contracts.
Nevertheless, no contract may be entered into with respect to future inheritances, except those the object of which is to make a division inter vivos
of an estate, in accordance with Article 1056.

Succession 51
All services not contrary to law or to good morals may also be the subject- matter of contract.
Article 1056 specifically uses the word "testator" from which the clear intent of the law may be deduced that the privilege of partitioning one's estate
by acts inter vivos is restricted only to one who has made a prior will or testament. In other words, Article 1056 being an exception cannot be given
a wider scope as to include in the exception any person whether he has made a will or not.
Respondent court citing the same Article concluded that under both the old and new Civil Code, a person who executes a will is permitted at the
same time or a little thereafter or even before as long as he mentions this fact in the will, to partition his properties pursuant to the provisions of
Article 1056 of the old Civil Code. The court further added that jurisprudence is to the effect that the partition presupposes the execution of the will
that it ratifies or effectuates, citing the case of Legasto vs. Verzosa, 54 Phil. 776. Finally, respondent court held the opinion that the extrajudicial
partition of November 14, 1949 was ratified in the holographic will executed by Don Jesus on Jan. 5, 1955 and in the codicil of August 14, 1956.
Again, We do not agree with this ruling of the respondent court. In Legasto vs. Verzosa, supra, the Supreme Court categorically declared the
necessity of a prior will before the testator can partition his properties among his heirs, and We quote the pertinent portions of the decision: t.
hqw
The first question to decide in the instant appeal is whether the partition made by Sabina Almadin of her property among her nieces, the defendants
and appellants herein, was valid and enforceable.
Article 1056 of the Civil Code provides:
Art. 1056. If the testator should make a partition of his property by an act inter vivos, or by will, such partition shall stand in so far as it does not
prejudice the legitime of the forced heirs.
The Supreme Court of Spain, in a decision rendered on June 13, 1903, laid down the following doctrine:
Considering that the language of article 1056 cannot be interpreted to mean that a person may, by acts inter vivos, partition his property referred to
in the section wherein said article is found, without the authority of a testament containing an expression of his last will, or the authority of law, for,
otherwise, a partition thus made would be tantamount to making a will in a manner not provided for, authorized, nor included in the chapter referring
to testaments, and especially, to the forms thereof, which is entirely different from the legal consequences of a free disposition made by parents
during their lifetime, whereby they give to their children the whole or a part of their property;
Considering that, inasmuch as the second paragraph of article 1271 makes reference to the aforesaid article, in providing that no contracts may be
entered into with respect to future inheritances except those the object of which is to make a division inter vivos of the estate in accordance with
article 1056, it is evident that said difference likewise leads to the conclusion that a partition thus made should be on the basis of a testamentary or
legal succession and should be made in conformity with the fundamental rules thereof and the order of the heirs entitled to the estate, because
neither of the two provisions could be given a wider meaning or scope than that they simply provide for the division of the estate during the lifetime
of the owner, which, otherwise, would have to be done upon the death of the testator in order to carry into effect the partition of the estate among
the persons interested.
Manresa comments on the same article as follows:
A distinction must be made between the disposition of property and its division; and the provision of article 1056 authorizing the testator to dispose
of his property by acts inter vivos or by last will, must be understood in accordance with this distinction. The Idea is to divide the estate among the
heirs designated by the testator. This designation constitutes the disposition of the properties to take effect after his death, and said act must
necessarily appear in the testament because it is the expression of the testator's last will and must be surrounded by appropriate formalities. Then
comes the second part, to wit, the division in conformity with that disposition, and the testator may make this division in the same will or in another
will, or by an act inter vivos. With these words, the law, in article 1056 as well as in article 1057, which we shall hereafter examine, makes allusion
to the forms or manner of making the partition and not to the effects thereof, which means that, for purposes of partition the formal solemnities
which must accompany every testament or last will are not necessary. Neither is it necessary to observe the special for. realities required in case of
donations, because it is not a matter of disposing gratuitously of properties, but of dividing those which already have been legally disposed of.
It is thus seen that both the Spanish Supreme Court and the learned and authoritative commentator, Manresa, are of opinion that a testator may, by
an act inter vivos, partition his property, but he must first make a will with all the formalities provided for by law. And it could not be otherwise, for
without a will there can be no testator; when the law, therefore, speaks of the partition inter vivos made by a testator of his property, it necessarily
refers to that property which he has devised to his heirs. A person who disposes of his property gratis inter vivos is not called a testator, but a donor.
In employing the word "testator," the law evidently desired to distinguish between one who freely donates his property in life and one who disposes
of it by will to take effect after his death.
We are not in conformity with the holding of the respondent court that the extrajudicial partition of November 25, 1949 which under the old Civil
Code was expressly prohibited as against public policy had been validly ratified by the holographic will of Don Jesus executed on January 5, 1955
and his codicil of August 14, 1956. Such a holding of the appellate court that a person who executes a will is permitted to partition his properties
pursuant to the provisions of Article 1056 of the old Civil Code even before executing his will as long as he mentions this fact in the will, is not
warranted under the ruling of Legasto vs. Verzosa, supra and the commentary of Manresa as quoted above. We rule, therefore, that the respondent
court erred in denying probate to the will of Don Jesus dated November 14, 1959; it erred in holding that Don Jesus being a party to the extrajudicial
partition of 1949 was contractually bound by the provisions thereof and hence could not revoke his participation therein by the simple expedience of
making a new will with contrary provisions or dispositions. It is an error because the so-called extrajudicial partition of 1949 is void and inoperative
as a partition; neither is it a valid or enforceable contract because it involved future inheritance; it may only be given effect as a donation inter vivos
of specific properties to the heirs made by the parents.
Considering that the document, the extrajudicial partition of November 25, 1949, contained specific designation of properties allotted to each child,
We rule that there was substantial compliance with the rules on donations inter vivos under the old Civil Code (Article 633). On the other hand,
there could have been no valid donation to the children of the other half reserved as the free portion of Don Jesus and Do;a Tinay which, as stated
in the deed, was to be divided equally among the children for the simple reason that the property or properties were not specifically described in the
public instrument, an essential requirement under Article 633 which provides as follows: t.hqw
Art. 633. In order that a donation or real property be valid it must be made by public instrument in which the property donated must be specifically
described and in the amount of the encumbrances to be assumed by the donee expressed.
The acceptance must be made in the deed of gift or in a separate public writing; but it shall produce no effect if not made during the lifetime of the
donor.

Succession 52
If the acceptance is made by separate public instrument, authentic notice thereof shall be given the donor, and this proceeding shall be noted in
both instruments.
This other half, therefore, remained as the disposable free portion of the spouses which may be disposed of in such manner that either of the
spouses would like in regards to his or her share in such portion, unencumbered by the provision enjoining the last surviving spouse to give equally
to the children what belongs or-would pertain to him or her. The end result, therefore, is that Don Jesus and Do;a Tinay, in the Deed of 1949, made
to their children valid donations of only one-half of their combined properties which must be charged against their legitime and cannot anymore be
revoked unless inofficious; the other half remained entirely at the free disposal of the spouses with regards to their respective shares.
Upon the death of Do;a Tinay on October 2, 1959, her share in the free portion was distributed in accordance with her holographic will dated
January 25, 1955 and her codicil dated August 14, 1956. It must be stressed here that the distribution of her properties was subject to her
holographic win and codicil, independently of the holographic will and codicil of Don Jesus executed by him on the same date. This is fundamental
because otherwise, to consider both wills and codicils jointly would be to circumvent the prohibition of the Civil Code on joint wills (Art. 818) and
secondly because upon the death of Do;a Tinay, only her estate was being settled, and not that of Don Jesus.
We have carefully examined the provisions of the holographic will and codicil of Do;a Tinay and We find no indication whatsoever that Do;a Tinay
expressly or impliedly instituted both the husband and her children as heirs to her free portion of her share in the conjugal assets. In her holographic
will, mention of her children as heirs was made in the fourth clause but it only provided that, to wit: t.hqw
Cuatro. Que si yo adquieriese nuevase propiedades despues de otorgado este mi testamento seran las mismas repartados entre mi esposo o hijos
arriba mencionada en el parrafo tercero su la misma proporcion o sea: la mitad (1/2) para is esposa; y la otra mitad (1/2) para mis hijos en partes
iguales.
For purposes of clarity and convenience, this fourth clause provided that "Should I acquire new properties after the execution of this testament, the
same shall be partitioned among my spouse and above named children or the children mentioned in above par. 3 in the same proportion, that is,
one- half (1/2) to my spouse; and the other half to my children in equal parts." From the above-quoted provision, the children would only inherit
together with Don Jesus whatever new properties Do;a Tinay would acquire after the execution of her will.
Likewise, the codicil of Do;a Tinay instituted her husband as sole heir to her share in the free portion of the conjugal assets, and We quote that
part of the codicil: t.hqw
Dejo a mi esposo Jesus Alsua como su legitima y como herencia que se sacara de ni cuenta de libre disposicion todos aquellos bienes de los que
no he dispuesto aun en favor de mis hijos en la escritura de reparticion precitada y que excedieran de la mitad de gananciales que le corresponds
tal como arriba declare, incluyendo todos aquenos bienes que se adquiriesen por nosotros despues de otorgado por mi este testamento.
Para el caso de que Dios dispusiera que yo sobreviviera a mi esposo declaro que es mi voluntad que todas las propiedades de todo genero que
me pertenecen y me pudieran pertenecer, no dispuestas aun en la reparticion, se dividan por igual entre mis herederos mencionados despues de
mi muerte.
Again for purposes of clarity and convenience, the above portion states: t.hqw
I leave to my spouse Don Jesus Alsua as his legitime and as his inheritance the part of the free portion of my property which have not been
allocated in favor of my children in the Document of Partition aforecited and that which should exceed 1/2 of the conjugal property of gains that
pertains to him as above stated, including all those properties which we shall acquire after the execution of this document.
In case it should be God's will that I survive my spouse, I hereby declare that it is my will that any and all kinds of property that pertains to me or
would pertain to me, which have not been disposed of pursuant to the partition, should be divided equally among my above-mentioned heirs after
my death.
The children, therefore, would only receive equal shares in the remaining estate of Do;a Tinay in the event that she should be the surviving
spouse. To stress the point, Do;a Tinay did not oblige her husband to give equally to the children, upon his death, all such properties she was
bequeathing him.
Considering now the efficacy of Don Jesus' last will and testament executed on November 14, 1959 in view of Our holding that Do;a Tinay's wig
and codicil did not stipulate that Don Jesus will bestow the properties equally to the children, it follows that all the properties of Do;a Tinay
bequeathed to Don Jesus under her holographic win and codicil became part of Don Jesus' estate unburdened by any condition obligation or
proviso.
Respondents insist that Don Jesus was bound by the extrajudicial partition of November 25, 1949 and had in fact conformed to said Partition by
making a holographic will and codicil with exactly the same provisions as those of Do;a Tinay, which respondent court sustained. We rule,
however, that Don Jesus was not forever bound thereby for his previous holographic will and codicil as such, would remain revokable at his
discretion. Art. 828 of the new Civil Code is clear: "A win may be revoked by the testator at any time before his death. Any waiver or restriction of
this right is void." There can be no restriction that may be made on his absolute freedom to revoke his holographic will and codicil previously made.
This would still hold true even if such previous will had as in the case at bar already been probated (Palacios v. Palacios, 106 Phil. 739). For in the
first place, probate only authenticates the will and does not pass upon the efficacy of the dispositions therein. And secondly, the rights to the
succession are transmitted only from the moment of the death of the decedent (Article 777, New Civil Code). In fine, Don Jesus retained the liberty
of disposing of his property before his death to whomsoever he chose, provided the legitime of the forced heirs are not prejudiced, which is not
herein claimed for it is undisputed that only the free portion of the whole Alsua estate is being contested.
After clearly establishing that only Don Jesus was named as sole heir instituted to the remaining estate of Do;a Tinay in her holographic will and
codicil resulting in all such properties becoming the properties of Don Jesus alone, and after clearly pointing out that Don Jesus can, in law, revoke
his previous holographic will and codicil, by making another win expressly cancelling and revoking the former, the next issue for the Court's
resolution is the validity of the provisions of the contested will. Though the law and jurisprudence are clear that only questions about the extrinsic
validity of the will may be entertained by the probate court, the Court had, on more than one occasion, passed upon the intrinsic validity of a will
even before it had been authenticated. Thus We declared in Nuguid v. Nuguid, 17 SCRA 499: t.hqw
The parties shunted aside the question of whether or not the will should be allowed to probate. For them, the meat of the case is the intrinsic validity
of the wilt Normally this comes only after the court has declared that the will has been duly authenticated. ...
... If the case were to be remanded for probate of the wilt nothing will be gained. On the contrary, this litigation win be protracted and for ought that
appears in the record, in the event of probate or if the court rejects the will probability exists that the case win come up once again before us on the

Succession 53
issue of the intrinsic validity or nullity of the wilt Result: waste of time, effort, expense, plus added anxiety. These are the practical considerations
that induce us to a behalf that we might as well meet head-on the time of the validity of the provisions of the will in question. ...
The last Will and Testament of Don Jesus executed on November 14, 1959 contained an express revocation of his holographic wig of January 5,
1955 and the codicil of August 14, 1956; a statement requiring that all of his properties donated to his children in the Deed of 1949 be collated and
taken into account in the partition of his estate; the institution of all his children as devisees and legatees to certain specific properties; a statement
bequeathing the rest of his properties and all that may be acquired in the future, before his death, to Pablo and Francesca; and a statement naming
Francesca as executrix without bond.
Considering these testamentary provisions, a close scrutiny of the properties distributed to the children under the Deed of 1949 and those
distributed under the contested will of Don Jesus does not show that the former had in fact been included in the latter. This being so, it must be
presumed that the intention of Don Jesus in his last win was not to revoke the donations already made in the Deed of 1949 but only to redistribute
his remaining estate, or that portion of the conjugal assets totally left to his free disposal and that which he received as his inheritance from Do;a
Tinay. The legitimes of the forced heirs were left unimpaired, as in fact, not one of said forced heirs claimed or intimated otherwise. The properties
that were disposed of in the contested will belonged wholly to Don Jesus Alsua's free portion and may be diamond of by him to whomsoever he may
choose.
If he now favored Francesca more, as claimed by private respondents, or Pablo as in fact he was, We cannot and may not sit in judgment upon the
motives and sentiments of Don Jesus in doing so. We have clearly laid down this rule in Bustamante v. Arevalo, 73 Phil. 635, to wit: t.hqw
... nevertheless it would be venturesome for the court to advance its own Idea of a just distribution of the property in the face of a different mode of
disposition so clearly expressed by the testatrix in the latter will. ...
It would be a dangerous precedent to strain the interpretation of a will in order to effect what the court believes to be an equitable division of the
estate of a deceased person. The only functions of the courts in these cases is to carry out the intention of the deceased as manifested in the wig.
Once that intention has been determined through a careful reading of the will or wills, and provided the law on legitimes has not been violated, it is
beyond the place of judicial cognizance to inquire into the fairness or unfairness of any devise or bequeast. The court should not sit in judgment
upon the motives and sentiments of the testatrix, first, because as already stated, nothing in the law restrained her from disposing of her property in
any manner she desired, and secondly, because there are no adequate means of ascertaining the inward process of her conscience. She was the
sole judge of her own attitude toward those who expected her bounty. ...
Respondent court, in trying to rationalize the will of Don Jesus which allegedly benefited and favored the petitioner to the prejudice of the other heirs
who would have been entitled to an equal share under the extrajudicial partition of 1949, faced two alternatives-one, to consider Don Jesus as a
man of culture and honor and would not snow himself to violate the previous agreement, and the other as one whose mental faculties or his
possession of the same had been diminished considering that when the will was executed, he was already 84 years of age and in view of his
weakness and advanced age, the actual administration of his properties had been left to his assistant Madarieta who, for his part received
instructions from Francisco and her husband, Joseph Betts. According to the court, the better explanation is the latter, which is not legally tenable.
Under Article 799 of the New Civil Code which provides as follows: t.hqw
Art. 799. To be of sound mind, it is not necessary that the testator be in full possession of all his reasoning faculties, or that his mind be wholly
unbroken, unimpaired, or unshattered by disease, injury or other cause.
It shall be sufficient if the testator was able at the time of making the will to know the nature of the estate to be disposed of, the proper objects of his
bounty, and the character of the testamentary act,
The test of testamentary capacity is at the time of the making of the win. Mere weakness of mind or partial imbecility from disease of body or from
age-does not render a person incapable of making a will. t.hqw
Between the highest degree of soundness of mind and memory which unquestionably carries with it full testamentary capacity, and that degrees of
mental aberration generally known as insanity or Idiocy, there are numberless degrees of mental capacity or incapacity and while on one hand it
has been held that mere weakness of mind, or partial imbecility from disease of body, or from age, will not render a person incapable of making a
will; a weak or feebleminded person may make a valid will, provided he has understanding and memory sufficient to enable him to know what he is
about to do and how or to whom he is disposing of his property. To constitute a sound and disposing mind, it is not necessary that the mind be
unbroken or unimpaired or unshattered by disease or otherwise. It has been held that testamentary incapacity does not necessarily require that a
person shall actually be insane or of unsound mind. (Bugnao vs. Ubag, 14 Phil. 163).
The Civil Code itself provides under Article 798 that in order to make a will, it is essential that the testator be of sound mind at the time of its
execution, and under Article 800, the law presumes that every person is of sound mind in the absence of proof to the contrary. In the case at bar,
the acceptance by the respondent court of the findings of fact of the trial court on the due execution of the last win and testament of Don Jesus has
foreclosed any and all claim to the contrary that the will was not executed in accordance with the requirements of the law. But more than that,
gleaned from the quoted portions of the appealed decision, the described behavior of Don Jesus is not that of a mentally incapacitated person nor
one suffering from "senile dementia" as claimed by private respondents. From these accepted facts, We find that: (a) it was Don Jesus himself who
gave detailed instructions to his lawyer as to how he wanted to divide his properties among his children by means of a list of his properties should
pertain; (b) the semi-final draft of the contested will prepared by his lawyer w-as even corrected by Don Jesus; (c) on the day of the signing of the
will at his house in Ligao, "Don Jesus was in bright and lively spirits ..., leading in the conversation which ran from problems of farming and the
merits of French-made wines"; (d) the signing of the will by Don Jesus and his attesting witnesses was made after a statement from Don Jesus of
the purpose of their meeting or gathering, to wit: t.hqw
Precisamente es por lo que he Ilamado a ustedes que eaten presentes para ser testigos de mi ultima voluntad y testamento que ha sido preparado
por el abogado Sr. Gregorio Imperial segun mis instrucciones cuyo documents tengo aqui con migo y encuentro que, despues de lo he leido, esta
satisfactoriamente hecho segun mis ingtrucciones, Como saben ustedes tengo cuatro (4) hijos todos ellos.
Clearly then, Don Jesus knew exactly what his actions were and the fun implications thereof.
In rejecting probate of the wilt respondent court further pointed out other details which, in the words of the decision "are a little bit difficult to
reconcile with the ordinary course of things and of fife" such as the fact that Don Jesus had sought the probate of his will of January 5, 1955 and his
codicil of August 14, 1956 during his lifetime but insofar as the will of November 14, 1959 is concerned, he had no intention of seeking the probate
thereof during his lifetime, the alleged redundant and unnecessary proceedings undertaken by Don Jesus in the properties under question to
petitioner Franciso Alsua-Betts when the same properties had already been bequeathed to her in the will of November 14, 1959 and that "nothing,
absolutely nothing, could be made the basis for finding that Don Jesus Alsua had regarded his other children with less favor, and that he was more
sympathetic to Francisca so as to or forget the former depriving them of benefits already given to them and rewarding the latter with

Succession 54
disproportionate advantages or benefits, to such an extreme as to violate his previous disposition consecrated in the previous extrajudicial partition,
Exh. 8."
We agree with the petitioner that these details which respondent court found difficult to reconcile with the ordinary course of things and of life are
mere conjectures, surmises or speculations which, however, do not warrant or justify disallowance of the probate of the win of Don Jesus. The fact
that Don Jesus did not cause his will to be probated during his lifetime while his previous holographic win and codicil were duly probated when he
was still alive is a mere speculation which depends entirely on the discretion of Don Jesus as the testator. The law does not require that a will be
probated during the lifetime of the testator and for not doing so there cannot arise any favorable or unfavorable consequence therefrom. The parties
cannot correctly guess or surmise the motives of the testator and neither can the courts. Such surmise, speculation or conjecture is no valid and
legal ground to reject allowance or disallowance of the wig. The same thing can be said as to whatever reason Don Jesus had for selling the
properties to his daughter Francisca when he had already assigned the same properties to her in his will. While We can speculate that Don Jesus
desired to have possession of the properties transferred to Francisca after the sale instead of waiting for his death may be a reasonable explanation
or speculation for the act of the testator and yet there is no certainty that such was actually the reason. This is as good a conjecture as the
respondents may offer or as difficult to accept which respondent court believes. A conjecture is always a conjecture; it can never be admitted as
evidence.
Now, the annulment case. The only issue raised anent the civil case for annulment of the two Deeds of Sale executed by and between Don Jesus
and petitioner Francisco is their validity or nullity. Private respondents mainly contend that the sales were fictitious or simulated, there having been
no actual consideration paid. They further insist that the issue raised is a question of fact and, therefore, not reviewable in a certiorari proceeding
before the Supreme Court. On the other hand, petitioners herein maintain that it was error for the respondent court to set aside on appeal the
factual findings of the trial court that the two sales were valid.
It is true that the jurisprudence of this Court in cases brought to Us from the Court of Appeals is limited to reviewing and revising the errors of law
imputed to it, its findings of fact being conclusive; and this same principle applies even if the Court of Appeals was in disagreement with the lower
court as to the weight of evidence with a consequent reversal of its findings of fact. But what should not be ignored by lawyers and litigants alike is
the more basic principle that the "findings of fact" described as "final" or "conclusive" are those borne out by the record or those which are based
upon substantial evidence. The general rule laid down by the Supreme Court does not declare the absolute correctness of all the findings of fact
made by the Court of Appeals. These are exceptions to the general rule, where We have reviewed and revised the findings of fact of the Court of
Appeals. Among the exceptions to the rule that findings of fact by the Court of Appeals cannot be reviewed on appeals by certiorari are:
1.

When the conclusion is a finding grounded entirely on speculation, surmises or conjectures (Joaquin vs. Navarro, 93 Phil. 257);

2.

When the inference made is manifestly mistaken, absurd or impossible (Luna vs. Linatok, 74 Phil. 15);

3.

Where there is a grave abuse of discretion (Buyco vs. People, 51 O.G. 2927);

4.

When the judgment is based on a misapprehension of facts (Cruz vs. Sosing, L-4875, Nov. 27, 1953);

5.

When the findings of fact are conflicting (Casica vs. Villaseca, L-9590, April 30, 1957); and

6.
When the Court of Appeals, in making its findings, went beyond the issues of the case and the same is contrary to the admissions of both
appellant and appellee (Evangelists vs. Alto Surety & Ins. Co., L-11139, April 23, 1958; Ramos vs. Pepsi Cola, L-22533, Feb. 9, 1967, 19 SCRA
289).
In the case at bar, We find and so declare that the respondent court's conclusion as to the nullity of the contested sales was not supported by the
evidence on record and adduced during the trial.
Evident from the records are the following documentary evidence: (1) Exhibit U, a deed of sale over agricultural lands executed on August 26, 1961
by Don Jesus in favor of Francisca for the consideration of Seventy Thousand Pesos (P70,000.00), which document bears the signature of Don
Jesus, not assailed as a forgery, and the signature of Pablo Alsua as an instrumental witness, again not assailed as a forgery nor alleged as done
thru fraud, force or threat. (2) Exhibit "W", a deed of sale over urban lots executed on November 16, 1962 for the consideration of Eighty Thousand
Pesos (P80,000.00), which document also bears the signature of Don Jesus, also admittedly not a forgery. (3) Exhibit "F", a document dated August
26, 1961 and signed by Don Jesus and Pablo Alsua as witness, acknowledging receipt of a Bank of Philippine Island Check No. 0252 in the amount
of Seventy Thousand Pesos (P70,000.00) for the sale of 33 parcels of agricultural land to Francisco under the same date; again, Pablo did not deny
the genuineness of his signature. (4) Exhibit "X", a Bank of the Philippine Islands Check No. D-6979 dated November 26, 1962, in the amount of
P32,644.71, drawn and signed by Francesca, payable to Don Jesus. (5) Exhibit "X-1", a second Bank of Philippine Islands Check (No. D-6980) also
dated November 26, 1962 in the amount of ?47,355.29, drawn by Francisco and payable to Don Jesus. (6) Exhibit "X-3 " and "X-5 ", endorsements
on the back of the last two checks by Don Jesus, again, his signatures thereon were not assailed. (7) Exhibit "A" (in the annulment case), a Bureau
of Internal Revenue Receipt (No. 2347260) dated November 29, 1962 with a notation acknowledging the receipt of BPI Check No. D-6980 in the
amount of P47,355.29 from Don Jesus Alsua in payment of Balance of Transfer of Tax Ass. No. EA-35415-19 plus interest. We are convinced and
satisfied from this array of documentary evidence that in fact, Don Jesus sold the subject properties to his daughter, Francisca for the total
consideration of P150,000.00.
The claim of the private respondents that the sales were fictitious and void for being without cause or consideration is as weak and flimsy as the
ground upon which the respondent court upheld said claim on the basis that there was no need for funds in Don Jesus' old age aside from the
speculation that there was nothing in the evidence that showed what motivated Don Jesus to change his mind as to favor Francesca and
discriminate against the other children. The two contracts of same executed by Don Jesus in favor of Francesca are evidenced by Exhibits "U" and
"W", the genuineness of which were not at all assailed at any time during this long drawn-out litigation of 15 years standing. That the consideration
stated in the contracts were paid is also sufficiently proved as the receipts thereof by Don Jesus were even signed by one of the private
respondents, Pablo Alsua, as a witness. The latter cannot now deny the payment of the consideration And even of he now allege that in fact no
transfer of money was involved, We find his allegation belied by Exhibits "X-3 " and "X-5 ", which show that the checks of Francisco made payable
to Don Jesus. were in fact given to Don Jesus as he endorsed them on the back thereof, and most specifically Exhibit "A" in the annulment case,
which proved that Don Jesus actually used Exhibit "XI " to complete payment on the estate and inheritance tax on the estate of his wife to the
Bureau of Internal Revenue.
Private respondents further insist that the sales were fraudulent because of the inadequacy of the given price. Inadequacy of consideration does not
vitiate a contract unless it is proven which in the case at bar was not, that there was fraud, mistake or undue influence. (Article 1355, New Civil
Code). We do not find the stipulated price as so inadequate to shock the court's conscience, considering that the price paid was much higher than
the assessed value of the subject properties and considering that the sales were effected by a father to her daughter in which case filial love must
be taken into account.

Succession 55
WHEREFORE, IN VIEW OF THE FOREGOING, the decision appealed from is hereby set aside. The decision of the Court of First Instance Of
Albay in Special Proceedings No. 699 and Civil Case No. 3068 is hereby reinstated, with costs against respondents.
SO ORDERED.

Succession 56
G.R. No. 124715

January 24, 2000

RUFINA LUY LIM, petitioner,


vs.
COURT OF APPEALS, AUTO TRUCK TBA CORPORATION, SPEED DISTRIBUTING, INC., ACTIVE DISTRIBUTORS, ALLIANCE MARKETING
CORPORATION, ACTION COMPANY, INC. respondents.
BUENA, J.:
May a corporation, in its universality, be the proper subject of and be included in the inventory of the estate of a deceased person?
Petitioner disputes before us through the instant petition for review on certiorari, the decision1 of the Court of Appeals promulgated on 18 April
1996, in CA-GR SP No. 38617, which nullified and set aside the orders dated 04 July 19952, 12 September 19953 and 15 September 19954 of the
Regional Trial Court of Quezon City, Branch 93, sitting as a probate court.
Petitioner Rufina Luy Lim is the surviving spouse of late Pastor Y. Lim whose estate is the subject of probate proceedings in Special Proceedings Q95-23334, entitled, "In Re: Intestate Estate of Pastor Y. Lim Rufina Luy Lim, represented by George Luy, Petitioner".1wphi1.nt
Private respondents Auto Truck Corporation, Alliance Marketing Corporation, Speed Distributing, Inc., Active Distributing, Inc. and Action Company
are corporations formed, organized and existing under Philippine laws and which owned real properties covered under the Torrens system.
On 11 June 1994, Pastor Y. Lim died intestate. Herein petitioner, as surviving spouse and duly represented by her nephew George Luy, fried on 17
March 1995, a joint petition5 for the administration of the estate of Pastor Y. Lim before the Regional Trial Court of Quezon City.
Private respondent corporations, whose properties were included in the inventory of the estate of Pastor Y. Lim, then filed a motion6 for the lifting of
lis pendens and motion7 for exclusion of certain properties from the estate of the decedent.
In an order8 dated 08 June 1995, the Regional Trial Court of Quezon City, Branch 93, sitting as a probate court, granted the private respondents'
twin motions, in this wise:
Wherefore, the Register of Deeds of Quezon City is hereby ordered to lift, expunge or delete the annotation of lis pendens on Transfer Certificates
of Title Nos. 116716, 116717, 116718, 116719 and 5182 and it is hereby further ordered that the properties covered by the same titles as well as
those properties by (sic) Transfer Certificate of Title Nos. 613494, 363123, 236236 and 263236 are excluded from these proceedings.
SO ORDERED.
Subsequently, Rufina Luy Lim filed a verified amended petition9 which contained the following averments:
3. The late Pastor Y. Lim personally owned during his lifetime the following business entities, to wit:
Business Entity
Address:
xxx
xxx
xxx
Alliance Marketing, Inc.
Block 3, Lot 6, Dacca BF Homes, Paraaque, Metro Manila.
xxx
xxx
xxx
Speed Distributing Inc.
910 Barrio Niog, Aguinaldo Highway, Bacoor, Cavite.
xxx
xxx
xxx
Auto Truck TBA Corp.
2251 Roosevelt Avenue, Quezon City.
xxx
xxx
xxx
Active Distributors, Inc.
Block 3, Lot 6, Dacca BF Homes, Paraaque, Metro Manila.
xxx
xxx
xxx
Action Company
100 20th Avenue Murphy, Quezon City or 92-D Mc-Arthur Highway Valenzuela Bulacan.
3.1 Although the above business entities dealt and engaged in business with the public as corporations, all their capital, assets and equity were
however, personally owned by the late Pastor Y Lim. Hence the alleged stockholders and officers appearing in the respective articles of
incorporation of the above business entities were mere dummies of Pastor Y. Lim, and they were listed therein only for purposes of registration with
the Securities and Exchange Commission.
4. Pastor Lim, likewise, had Time, Savings and Current Deposits with the following banks: (a) Metrobank, Grace Park, Caloocan City and Quezon
Avenue, Quezon City Branches and (b) First Intestate Bank (formerly Producers Bank), Rizal Commercial Banking Corporation and in other banks
whose identities are yet to be determined.
5. That the following real properties, although registered in the name of the above entities, were actually acquired by Pastor Y. Lim during his
marriage with petitioner, to wit:
Corporation
Title
Location
xxx
xxx
xxx
k. Auto Truck
TCT No. 617726
Sto. Domingo TBA
Corporation Cainta, Rizal
q. Alliance Marketing
TCT No. 27896
Prance, Metro Manila
Copies of the above-mentioned Transfer Certificate of Title and/or Tax Declarations are hereto attached as Annexes "C" to "W".
xxx

xxx

xxx

7. The aforementioned properties and/or real interests left by the late Pastor Y. Lim, are all conjugal in nature, having been acquired by him during
the existence of his marriage with petitioner.
8. There are other real and personal properties owned by Pastor Y. Lim which petitioner could not as yet identify. Petitioner, however will submit to
this Honorable Court the identities thereof and the necessary documents covering the same as soon as possible.
On 04 July 1995, the Regional Trial Court acting on petitioner's motion issued an order10, thus:

Succession 57
Wherefore, the order dated 08 June 1995 is hereby set aside and the Registry of Deeds of Quezon City is hereby directed to reinstate the
annotation of lis pendens in case said annotation had already been deleted and/or cancelled said TCT Nos. 116716, 116717, 116718, 116719 and
51282.
Further more (sic), said properties covered by TCT Nos. 613494, 365123, 236256 and 236237 by virtue of the petitioner are included in the instant
petition.
SO ORDERED.
On 04 September 1995, the probate court appointed Rufina Lim as special administrator11 and Miguel Lim and Lawyer Donald Lee, as co-special
administrators of the estate of Pastor Y. Lim, after which letters of administration were accordingly issued.
In an order12 dated 12 September 1995, the probate court denied anew private respondents' motion for exclusion, in this wise:
The issue precisely raised by the petitioner in her petition is whether the corporations are the mere alter egos or instrumentalities of Pastor Lim,
Otherwise (sic) stated, the issue involves the piercing of the corporate veil, a matter that is clearly within the jurisdiction of this Honorable Court and
not the Securities and Exchange Commission. Thus, in the case of Cease vs. Court of Appeals, 93 SCRA 483, the crucial issue decided by the
regular court was whether the corporation involved therein was the mere extension of the decedent. After finding in the affirmative, the Court ruled
that the assets of the corporation are also assets of the estate.
A reading of P.D. 902, the law relied upon by oppositors, shows that the SEC's exclusive (sic) applies only to intra-corporate controversy. It is simply
a suit to settle the intestate estate of a deceased person who, during his lifetime, acquired several properties and put up corporations as his
instrumentalities.
SO ORDERED.
On 15 September 1995, the probate court acting on an ex parte motion filed by petitioner, issued an order13 the dispositive portion of which reads:
Wherefore, the parties and the following banks concerned herein under enumerated are hereby ordered to comply strictly with this order and to
produce and submit to the special administrators, through this Honorable Court within (5) five days from receipt of this order their respective records
of the savings/current accounts/time deposits and other deposits in the names of Pastor Lim and/or corporations above-mentioned, showing all the
transactions made or done concerning savings/current accounts from January 1994 up to their receipt of this court order.
xxx

xxx

xxx

SO ORDERED.
Private respondent filed a special civil action for certiorari14, with an urgent prayer for a restraining order or writ of preliminary injunction, before the
Court of Appeals questioning the orders of the Regional Trial Court, sitting as a probate court.
On 18 April 1996, the Court of Appeals, finding in favor of herein private respondents, rendered the assailed decision15, the decretal portion of
which declares:
Wherefore, premises considered, the instant special civil action for certiorari is hereby granted, The impugned orders issued by respondent court on
July 4, 1995 and September 12, 1995 are hereby nullified and set aside. The impugned order issued by respondent on September 15, 1995 is
nullified insofar as petitioner corporations" bank accounts and records are concerned.
SO ORDERED.
Through the expediency of Rule 45 of the Rules of Court, herein petitioner Rufina Luy Lim now comes before us with a lone assignment of
error16:
The respondent Court of Appeals erred in reversing the orders of the lower court which merely allowed the preliminary or provisional inclusion of the
private respondents as part of the estate of the late deceased (sic) Pastor Y. Lim with the respondent Court of Appeals arrogating unto itself the
power to repeal, to disobey or to ignore the clear and explicit provisions of Rules 81,83,84 and 87 of the Rules of Court and thereby preventing the
petitioner, from performing her duty as special administrator of the estate as expressly provided in the said Rules.
Petitioner's contentions tread on perilous grounds.
In the instant petition for review, petitioner prays that we affirm the orders issued by the probate court which were subsequently set aside by the
Court of Appeals.
Yet, before we delve into the merits of the case, a review of the rules on jurisdiction over probate proceedings is indeed in order.
The provisions of Republic Act 769117, which introduced amendments to Batas Pambansa Blg. 129, are pertinent:
Sec. 1. Section 19 of Batas Pambansa Blg. 129, otherwise known as the "Judiciary Reorganization Act of 1980", is hereby amended to read as
follows:
Sec. 19. Jurisdiction in civil cases. Regional Trial Courts shall exercise exclusive jurisdiction:
xxx

xxx

xxx

(4) In all matters of probate, both testate and intestate, where the gross value of the estate exceeds One Hundred Thousand Pesos (P100,000) or,
in probate matters in Metro Manila, where such gross value exceeds Two Hundred Thousand Pesos (P200,000);
xxx

xxx

xxx

Sec. 3. Section 33 of the same law is hereby amended to read as follows:


Sec. 33. Jurisdiction of Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts in Civil Cases. Metropolitan Trial
Courts, Municipal Trial Courts and Municipal Circuit Trial Courts shall exercise:

Succession 58
1. Exclusive original jurisdiction over civil actions and probate proceedings, testate and intestate, including the grant of provisional remedies in
proper cases, where the value of the personal property, estate or amount of the demand does not exceed One Hundred Thousand Pesos
(P100,000) or, in Metro Manila where such personal property, estate or amount of the demand does not exceed Two Hundred Thousand Pesos
(P200,000), exclusive of interest, damages of whatever kind, attorney's fees, litigation expenses and costs, the amount of which must be specifically
alleged, Provided, that interest, damages of whatever kind, attorney's, litigation expenses and costs shall be included in the determination of the
filing fees, Provided further, that where there are several claims or causes of actions between the same or different parties, embodied in the same
complaint, the amount of the demand shall be the totality of the claims in all the causes of action, irrespective of whether the causes of action arose
out of the same or different transactions;
xxx

xxx

xxx

Simply put, the determination of which court exercises jurisdiction over matters of probate depends upon the gross value of the estate of the
decedent.
As to the power and authority of the probate court, petitioner relies heavily on the principle that a probate court may pass upon title to certain
properties, albeit provisionally, for the purpose of determining whether a certain property should or should not be included in the inventory.
In a litany of cases, We defined the parameters by which the court may extend its probing arms in the determination of the question of title in
probate proceedings.
This Court, in PASTOR, JR. vs. COURT OF APPEALS,18 held:
. . . As a rule, the question of ownership is an extraneous matter which the probate court cannot resolve with finality. Thus, for the purpose of
determining whether a certain property should or should not be included in the inventory of estate properties, the Probate Court may pass upon the
title thereto, but such determination is provisional, not conclusive, and is subject to the final decision in a separate action to resolve title.
We reiterated the rule in PEREIRA vs. COURT OF APPEALS19:
. . . The function of resolving whether or not a certain property should be included in the inventory or list of properties to be administered by the
administrator is one clearly within the competence of the probate court. However, the court's determination is only provisional in character, not
conclusive, and is subject to the final decision in a separate action which may be instituted by the parties.
Further, in MORALES vs. CFI OF CAVITE20 citing CUIZON vs. RAMOLETE21, We made an exposition on the probate court's limited jurisdiction:
It is a well-settled rule that a probate court or one in charge of proceedings whether testate or intestate cannot adjudicate or determine title to
properties claimed to be a part of the estate and which are equally claimed to belong to outside parties. All that the said court could do as regards
said properties is to determine whether they should or should not be included in the inventory or list of properties to be administered by the
administrator. If there is no dispute, well and good; but if there is, then the parties, the administrator and the opposing parties have to resort to an
ordinary action for a final determination of the conflicting claims of title because the probate court cannot do so.
Again, in VALERA vs. INSERTO22, We had occasion to elucidate, through Mr. Justice Andres Narvasa23:
Settled is the rule that a Court of First Instance (now Regional Trial Court), acting as a probate court, exercises but limited jurisdiction, and thus has
no power to take cognizance of and determine the issue of title to property claimed by a third person adversely to the decedent, unless the claimant
and all other parties having legal interest in the property consent, expressly or impliedly, to the submission of the question to the probate court for
adjudgment, or the interests of third persons are not thereby prejudiced, the reason for the exception being that the question of whether or not a
particular matter should be resolved by the court in the exercise of its general jurisdiction or of its limited jurisdiction as a special court (e.g. probate,
land registration, etc.), is in reality not a jurisdictional but in essence of procedural one, involving a mode of practice which may be waived. . . .
. . . . These considerations assume greater cogency where, as here, the Torrens title is not in the decedent's name but in others, a situation on
which this Court has already had occasion to rule . . . . (emphasis Ours)
Petitioner, in the present case, argues that the parcels of land covered under the Torrens system and registered in the name of private respondent
corporations should be included in the inventory of the estate of the decedent Pastor Y. Lim, alleging that after all the determination by the probate
court of whether these properties should be included or not is merely provisional in nature, thus, not conclusive and subject to a final determination
in a separate action brought for the purpose of adjudging once and for all the issue of title.
Yet, under the peculiar circumstances, where the parcels of land are registered in the name of private respondent corporations, the jurisprudence
pronounced in BOLISAY vs., ALCID 24 is of great essence and finds applicability, thus:
It does not matter that respondent-administratrix has evidence purporting to support her claim of ownership, for, on the other hand, petitioners have
a Torrens title in their favor, which under the law is endowed with incontestability until after it has been set aside in the manner indicated in the law
itself, which of course, does not include, bringing up the matter as a mere incident in special proceedings for the settlement of the estate of
deceased persons. . . .
. . . . In regard to such incident of inclusion or exclusion, We hold that if a property covered by Torrens title is involved, the presumptive
conclusiveness of such title should be given due weight, and in the absence of strong compelling evidence to the contrary, the holder thereof should
be considered as the owner of the property in controversy until his title is nullified or modified in an appropriate ordinary action, particularly, when as
in the case at bar, possession of the property itself is in the persons named in the title. . . .
A perusal of the records would reveal that no strong compelling evidence was ever presented by petitioner to bolster her bare assertions as to the
title of the deceased Pastor Y. Lim over the properties. Even so, P.D. 1529, otherwise known as, "The Property Registration Decree", proscribes
collateral attack on Torrens Title, hence:
xxx

xxx

xxx

Sec. 48. Certificate not subject to collateral attack. A certificate of title shall not be subject to collateral attack. It cannot be altered, modified or
cancelled except in a direct proceeding in accordance with law.
In CUIZON vs. RAMOLETE, where similarly as in the case at bar, the property subject of the controversy was duly registered under the Torrens
system, We categorically stated:

Succession 59
. . . Having been apprised of the fact that the property in question was in the possession of third parties and more important, covered by a transfer
certificate of title issued in the name of such third parties, the respondent court should have denied the motion of the respondent administrator and
excluded the property in question from the inventory of the property of the estate. It had no authority to deprive such third persons of their
possession and ownership of the property. . . .
Inasmuch as the real properties included in the inventory of the estate of the Late Pastor Y. Lim are in the possession of and are registered in the
name of private respondent corporations, which under the law possess a personality separate and distinct from their stockholders, and in the
absence of any cogency to shred the veil of corporate fiction, the presumption of conclusiveness of said titles in favor of private respondents should
stand undisturbed.
Accordingly, the probate court was remiss in denying private respondents' motion for exclusion. While it may be true that the Regional Trial Court,
acting in a restricted capacity and exercising limited jurisdiction as a probate court, is competent to issue orders involving inclusion or exclusion of
certain properties in the inventory of the estate of the decedent, and to adjudge, albeit, provisionally the question of title over properties, it is no less
true that such authority conferred upon by law and reinforced by jurisprudence, should be exercised judiciously, with due regard and caution to the
peculiar circumstances of each individual case.
Notwithstanding that the real properties were duly registered under the Torrens system in the name of private respondents, and as such were to be
afforded the presumptive conclusiveness of title, the probate court obviously opted to shut its eyes to this gleamy fact and still proceeded to issue
the impugned orders.
By its denial of the motion for exclusion, the probate court in effect acted in utter disregard of the presumption of conclusiveness of title in favor of
private respondents. Certainly, the probate court through such brazen act transgressed the clear provisions of law and infringed settled
jurisprudence on this matter.
Moreover, petitioner urges that not only the properties of private respondent corporations are properly part of the decedent's estate but also the
private respondent corporations themselves. To rivet such flimsy contention, petitioner cited that the late Pastor Y. Lim during his lifetime, organized
and wholly-owned the five corporations, which are the private respondents in the instant case.25 Petitioner thus attached as Annexes "F"26 and
"G"27 of the petition for review affidavits executed by Teresa Lim and Lani Wenceslao which among others, contained averments that the
incorporators of Uniwide Distributing, Inc. included on the list had no actual and participation in the organization and incorporation of the said
corporation. The affiants added that the persons whose names appeared on the articles of incorporation of Uniwide Distributing, Inc., as
incorporators thereof, are mere dummies since they have not actually contributed any amount to the capital stock of the corporation and have been
merely asked by the late Pastor Y. Lim to affix their respective signatures thereon.
It is settled that a corporation is clothed with personality separate and distinct from that of the persons composing it. It may not generally be held
liable for that of the persons composing it. It may not be held liable for the personal indebtedness of its stockholders or those of the entities
connected with it.28
Rudimentary is the rule that a corporation is invested by law with a personality distinct and separate from its stockholders or members. In the same
vein, a corporation by legal fiction and convenience is an entity shielded by a protective mantle and imbued by law with a character alien to the
persons comprising it.
Nonetheless, the shield is not at all times invincible. Thus, in FIRST PHILIPPINE INTERNATIONAL BANK vs. COURT OF APPEALS29, We
enunciated:
. . . When the fiction is urged as a means of perpetrating a fraud or an illegal act or as a vehicle for the evasion of an existing obligation, the
circumvention of statutes, the achievement or perfection of a monopoly or generally the perpetration of knavery or crime, the veil with which the law
covers and isolates the corporation from the members or stockholders who compose it will be lifted to allow for its consideration merely as an
aggregation of individuals. . . .
Piercing the veil of corporate entity requires the court to see through the protective shroud which exempts its stockholders from liabilities that
ordinarily, they could be subject to, or distinguishes one corporation from a seemingly separate one, were it not for the existing corporate fiction.30
The corporate mask may be lifted and the corporate veil may be pierced when a corporation is just but the alter ego of a person or of another
corporation. Where badges of fraud exist, where public convenience is defeated; where a wrong is sought to be justified thereby, the corporate
fiction or the notion of legal entity should come to naught.31
Further, the test in determining the applicability of the doctrine of piercing the veil of corporate fiction is as follows: 1) Control, not mere majority or
complete stock control, but complete domination, not only of finances but of policy and business practice in respect to the transaction attacked so
that the corporate entity as to this transaction had at the time no separate mind, will or existence of its own; (2) Such control must have been used
by the defendant to commit fraud or wrong, to perpetuate the violation of a statutory or other positive legal duty, or dishonest and unjust act in
contravention of plaintiffs legal right; and (3) The aforesaid control and breach of duty must proximately cause the injury or unjust loss complained
of. The absence of any of these elements prevent "piercing the corporate veil".32
Mere ownership by a single stockholder or by another corporation of all or nearly all of the capital stock of a corporation is not of itself a sufficient
reason for disregarding the fiction of separate corporate personalities.33
Moreover, to disregard the separate juridical personality of a corporation, the wrong-doing must be clearly and convincingly established. It cannot be
presumed.34
Granting arguendo that the Regional Trial Court in this case was not merely acting in a limited capacity as a probate court, petitioner nonetheless
failed to adduce competent evidence that would have justified the court to impale the veil of corporate fiction. Truly, the reliance reposed by
petitioner on the affidavits executed by Teresa Lim and Lani Wenceslao is unavailing considering that the aforementioned documents possess no
weighty probative value pursuant to the hearsay rule. Besides it is imperative for us to stress that such affidavits are inadmissible in evidence
inasmuch as the affiants were not at all presented during the course of the proceedings in the lower court. To put it differently, for this Court to
uphold the admissibility of said documents would be to relegate from Our duty to apply such basic rule of evidence in a manner consistent with the
law and jurisprudence.
Our pronouncement in PEOPLE BANK AND TRUST COMPANY vs. LEONIDAS35 finds pertinence:
Affidavits are classified as hearsay evidence since they are not generally prepared by the affiant but by another who uses his own language in
writing the affiant's statements, which may thus be either omitted or misunderstood by the one writing them. Moreover, the adverse party is deprived

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of the opportunity to cross-examine the affiants. For this reason, affidavits are generally rejected for being hearsay, unless the affiant themselves
are placed on the witness stand to testify thereon.
As to the order36 of the lower court, dated 15 September 1995, the Court of Appeals correctly observed that the Regional Trial Court, Branch 93
acted without jurisdiction in issuing said order; The probate court had no authority to demand the production of bank accounts in the name of the
private respondent corporations.
WHEREFORE, in view of the foregoing disquisitions, the instant petition is hereby DISMISSED for lack of merit and the decision of the Court of
Appeals which nullified and set aside the orders issued by the Regional Trial Court, Branch 93, acting as a probate court, dated 04 July 1995 and
12 September 1995 is AFFIRMED.1wphi1.nt
SO ORDERED.

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G.R. No. L-12767

November 16, 1918

In the matter of the estate of EMIL H. JOHNSON. EBBA INGEBORG JOHNSON, applicant-appellant,
Hartigan & Welch for applicant and appellant.
Hartford Beaumont for Victor Johnson and others as appellees.
Chas. E. Tenney for Alejandra Ibaez de Johnson, personally and as guardian,
and for Simeona Ibaez, appellees.

STREET, J.:
On February 4, 1916, Emil H. Johnson, a native of Sweden and a naturalized citizen of the United States, died in the city of Manila, leaving a will,
dated September 9, 1915, by which he disposed of an estate, the value of which, as estimated by him, was P231,800. This document is an
holographic instrument, being written in the testator's own handwriting, and is signed by himself and two witnesses only, instead of three witnesses
required by section 618 of the Code of Civil Procedure. This will, therefore, was not executed in conformity with the provisions of law generally
applicable to wills executed by inhabitants of these Islands, and hence could not have been proved under section 618.
On February 9, 1916, however, a petition was presented in the Court of First Instance of the city of Manila for the probate of this will, on the ground
that Johnson was at the time of his death a citizen of the State of Illinois, United States of America; that the will was duly executed in accordance
with the laws of that State; and hence could properly be probated here pursuant to section 636 of the Code of Civil Procedure. This section reads as
follows:
Will made here by alien. A will made within the Philippine Islands by a citizen or subject of another state or country, which is executed in
accordance with the law of the state or country of which he is a citizen or subject, and which might be proved and allowed by the law of his own
state or country, may be proved, allowed, and recorded in the Philippine Islands, and shall have the same effect as if executed according to the laws
of these Islands.
The hearing on said application was set for March 6, 1916, and three weeks publication of notice was ordered in the "Manila Daily Bulletin." Due
publication was made pursuant to this order of the court. On March 6, 1916, witnesses were examined relative to the execution of the will; and upon
March 16th thereafter the document was declared to be legal and was admitted to probate. At the same time an order was made nominating Victor
Johnson and John T. Pickett as administrators of the estate, with the sill annexed. Shortly thereafter Pickett signified his desire not to serve, and
Victor Johnson was appointed sole administrator.
By the will in question the testator gives to his brother Victor one hundred shares of the corporate stock in the Johnson-Pickett Rope Company; to
his father and mother in Sweden, the sum of P20,000; to his daughter Ebba Ingeborg, the sum of P5,000; to his wife, Alejandra Ibaez, the sum of
P75 per month, if she remains single; to Simeona Ibaez, spinster, P65 per month, if she remains single. The rest of the property is left to the
testator's five children Mercedes, Encarnacion, Victor, Eleonor and Alberto.
The biographical facts relative to the deceased necessary to an understanding of the case are these: Emil H. Johnson was born in Sweden, May
25, 1877, from which country he emigrated to the United States and lived in Chicago, Illinois, from 1893 to 1898. On May 9, 1898, at Chicago, he
was married to Rosalie Ackeson, and immediately thereafter embarked for the Philippine Islands as a soldier in the Army of the United States. As a
result of relations between Johnson and Rosalie Ackeson a daughter, named Ebba Ingeborg, was born a few months after their marriage. This child
was christened in Chicago by a pastor of the Swedish Lutheran Church upon October 16, 1898.
After Johnson was discharged as a soldier from the service of the United States he continued to live in the Philippine Islands, and on November 20,
1902, the wife, Rosalie Johnson, was granted a decree of divorce from him in the Circuit Court of Cook County, Illinois, on the ground of desertion.
A little later Johnson appeared in the United States on a visit and on January 10, 1903, procured a certificate of naturalization at Chicago. From
Chicago he appears to have gone to Sweden, where a photograph, exhibited in evidence in this case, was taken in which he appeared in a group
with his father, mother, and the little daughter, Ebba Ingeborg, who was then living with her grandparents in Sweden. When this visit was concluded,
the deceased returned to Manila, where he prospered in business and continued to live until his death.
In this city he appears to have entered into marital relations with Alejandra Ibaez, by whom he had three children, to wit, Mercedes, baptized May
31, 1903; Encarnacion, baptized April 29, 1906; and Victor, baptized December 9, 1907. The other two children mentioned in the will were borne to
the deceased by Simeona Ibaez.
On June 12, 1916, or about three months after the will had been probated, the attorneys for Ebba Ingeborg Johnson entered an appearance in her
behalf and noted an exception to the other admitting the will to probate. On October 31, 1916, the same attorneys moved the court to vacate the
order of March 16 and also various other orders in the case. On February 20, 1917, this motion was denied, and from this action of the trial court
the present appeal has been perfected.
As will be discerned, the purpose of the proceeding on behalf of the petitioner is to annul the decree of probate and put the estate into intestate
administration, thus preparing the way for the establishment of the claim of the petitioner as the sole legitimate heir of her father.
The grounds upon which the petitioner seeks to avoid the probate are four in number and may be stated, in the same sequence in which they are
set forth in the petition, as follows:
(1)

Emil H. Johnson was a resident of the city of Manila and not a resident of the State of Illinois at the time the will in question was executed;

(2)

The will is invalid and inadequate to pass real and personal property in the State of Illinois;

(3)

The order admitting the will to probate was made without notice to the petitioner; and

(4)

The order in question was beyond the jurisdiction of the court.

It cannot of course be maintained that a court of first instance lacks essential jurisdiction over the probate of wills. The fourth proposition above
stated must, accordingly, be interpreted in relation with the third and must be considered as a corollary deduced from the latter. Moreover, both the
third and fourth grounds stated take precedence, by reason of their more fundamental implications, over the first two; and a logical exposition of the
contentions of the petitioner is expressed in the two following propositions:
(I)

The order admitting the will to probate was beyond the jurisdiction of the court and void because made without notice to the petitioner;

Succession 62
(II)
The judgment from which the petitioner seeks relief should be set aside because the testator was not a resident of the State of Illinois and
the will was not in conformity with the laws of that State.
In the discussion which is to follow we shall consider the problems arising in this cae in the order last above indicated. Upon the question, then, of
the jurisdiction of the court, it is apparent from an inspection of the record of the proceedings in the court below that all the steps prescribed by law
as prerequisites to the probate of a will were complied with in every respect and that the probate was effected in external conformity with all legal
requirements. This much is unquestioned. It is, however, pointed out in the argument submitted in behalf of the petitioner, that, at the time the court
made the order of publication, it was apprised of the fact that the petitioner lived in the United States and that as daughter and heir she was
necessarily interested in the probate of the will. It is, therefore, insisted that the court should have appointed a date for the probate of the will
sufficiently far in the future to permit the petitioner to be present either in person or by representation; and it is said that the failure of the court thus
to postpone the probate of the will constitutes an infringement of that provision of the Philippine Bill which declared that property shall not be taken
without due process of law.
On this point we are of the opinion that the proceedings for the probate of the will were regular and that the publication was sufficient to give the
court jurisdiction to entertain the proceeding and to allow the will to be probated.
As was said in the case of In re Davis (136 Cal., 590, 596), "the proceeding as to the probate of a will is essentially one in rem, and in the very
nature of things the state is allowed a wide latitude in determining the character of the constructive notice to be given to the world in a proceeding
where it has absolute possession of the res. It would be an exceptional case where a court would declare a statute void, as depriving a party of his
property without due process of law, the proceeding being strictly in rem, and the res within the state, upon the ground that the constructive notice
prescribed by the statute was unreasonably short."
In that case the petitioner had been domiciled in the Hawaiian Islands at the time of the testator's death; and it was impossible, in view of the
distance and means of communication then existing, for the petitioner to appear and oppose the probate on the day set for the hearing in California.
It was nevertheless held that publication in the manner prescribed by statute constituted due process of law. (See Estate of Davis, 151 Cal., 318;
Tracy vs. Muir, 151 Cal., 363.)
In the Davis case (136 Cal., 590) the court commented upon the fact that, under the laws of California, the petitioner had a full year within which she
might have instituted a proceeding to contest the will; and this was stated as one of the reasons for holding that publication in the manner provided
by statute was sufficient. The same circumstance was commented upon in O'Callaghan vs. O'Brien (199 U. S., 89), decided in the Supreme Court
of the United States. This case arose under the laws of the State of Washington, and it was alleged that a will had been there probated without the
notice of application for probate having been given as required by law. It was insisted that this was an infringement of the Fourteenth Amendment of
the Constitution of the United States. This contention was, however, rejected and it was held that the statutory right to contest the will within a year
was a complete refutation of the argument founded on the idea of a violation of the due process provision.
The laws of these Islands, in contrast with the laws in force in perhaps all of the States of the American Union, contain no special provision, other
than that allowing an appeal in the probate proceedings, under which relief of any sort can be obtained from an order of a court of first instance
improperly allowing or disallowing a will. We do, however, have a provision of a general nature authorizing a court under certain circumstances to
set aside any judgment, order, or other proceeding whatever. This provision is found in section 113 of the Code of Civil Procedure, which reads as
follows:
Upon such terms as may be just the court may relieve a party or his legal representative from a judgment, order or other proceeding taken against
him through his mistake, inadvertence, surprise or excusable neglect; Provided, That application therefor be made within a reasonable time, but in
no case exceeding six months after such judgment, order, or proceeding was taken.
The use of the word "judgment, order or other proceeding" in this section indicates an intention on the part of the Legislature to give a wide latitude
to the remedy here provided, and in our opinion its operation is not to be restricted to judgments or orders entered in ordinary contentious litigation
where a plaintiff impleads a defendant and brings him into court by personal service of process. In other words the utility of the provision is not
limited to actions proper but extends to all sorts of judicial proceedings.
In the second section of the Code of Civil Procedure it is declared that the provisions of this Code shall be liberally construed to promote its object
and to assist the parties in obtaining speedy justice. We think that the intention thus exhibited should be applied in the interpretation of section 113;
and we hold that the word "party," used in this section, means any person having an interest in the subject matter of the proceeding who is in a
position to be concluded by the judgment, order, to other proceeding taken.
The petitioner, therefore, in this case could have applied, under the section cited, at any time within six months for March 16, 1916, and upon
showing that she had been precluded from appearing in the probate proceedings by conditions over which she had no control and that the order
admitting the will to probate had been erroneously entered upon insufficient proof or upon a supposed state of facts contrary to the truth, the court
would have been authorized to set the probate aside and grant a rehearing. It is no doubt true that six months was, under the circumstances, a very
short period of time within which to expect the petitioner to appear and be prepared to contest the probate with the proof which she might have
desired to collect from remote countries. Nevertheless, although the time allowed for the making of such application was inconveniently short, the
remedy existed; and the possibility of its use is proved in this case by the circumstance that on June 12, 1916, she in fact here appeared in court by
her attorneys and excepted to the order admitting the will to probate.
It results that, in conformity with the doctrine announced in the Davis case, above cited, the proceedings in the court below were conducted in such
manner as to constitute due process of law. The law supplied a remedy by which the petitioner might have gotten a hearing and have obtained relief
from the order by which she is supposed to have been injured; and though the period within which the application should have been made was
short, the remedy was both possible and practicable.
From what has been said it follows that the order of March 16, 1916, admitting the will of Emil H. Johnson to probate cannot be declared null and
void merely because the petitioner was unavoidably prevented from appearing at the original hearing upon the matter of the probate of the will in
question. Whether the result would have been the same if our system of procedure had contained no such provision as that expressed in section
113 is a matter which we need not here consider.
Intimately connected with the question of the jurisdiction of the court, is another matter which may be properly discussed at this juncture. This
relates to the interpretation to be placed upon section 636 of the Code of Civil Procedure. The position is taken by the appellant that this section is
applicable only to wills of liens; and in this connection attention is directed to the fact that the epigraph of this section speaks only of the will made
here by an alien and to the further fact that the word "state" in the body of the section is not capitalized. From this it is argued that section 636 is not
applicable to the will of a citizen of the United States residing in these Islands.lawphil.net

Succession 63
We consider these suggestions of little weight and are of the opinion that, by the most reasonable interpretation of the language used in the statute,
the words "another state or country" include the United States and the States of the American Union, and that the operation of the statute is not
limited to wills of aliens. It is a rule of hermeneutics that punctuation and capitalization are aids of low degree in interpreting the language of a
statute and can never control against the intelligible meaning of the written words. Furthermore, the epigraph, or heading,, of a section, being
nothing more than a convenient index to the contents of the provision, cannot have the effect of limiting the operative words contained in the body of
the text. It results that if Emil H. Johnson was at the time of his death a citizen of the United States and of the State of Illinois, his will was provable
under this section in the courts of the Philippine Islands, provided the instrument was so executed as to be admissible to probate under the laws of
the State of Illinois.
We are thus brought to consider the second principal proposition stated at the outset of this discussion, which raises the question whether the order
f probate can be set aside in this proceeding on the other ground stated in the petition, namely, that the testator was not a resident of the State of
Illinois and that the will was not made in conformity with the laws of that State.
The order of the Court of First Instance admitting the will to probate recites, among other things:
That upon the date when the will in question was executed Emil H. Johnson was a citizen of the United States, naturalized in the State of Illinois,
County of Cook, and that the will in question was executed in conformity with the dispositions of the law f the State of Illinois.
We consider this equivalent to a finding that upon the date of the execution of the will the testator was a citizen of the State of Illinois and that the
will was executed in conformity with the laws of that State. Upon the last point the finding is express; and in our opinion the statement that the
testator was a citizen of the United States, naturalized in the State of Illinois, should be taken to imply that he was a citizen of the State of Illinois, as
well as of the United States.
The naturalization laws of the United States require, as a condition precedent to the granting of the certificate of naturalization, that the applicant
should have resided at least five years in the United States and for one year within the State or territory where the court granting the naturalization
papers is held; and in the absence of clear proof to the contrary it should be presumed that a person naturalized in a court of a certain State thereby
becomes a citizen of that State as well as of the United States.
In this connection it should be remembered that the Fourteenth Amendment to the Constitution of the United States declares, in its opening words,
that all persons naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein
they reside.
It is noteworthy that the petition by which it is sought to annul the probate of this will does not assert that the testator was not a citizen of Illinois at
the date when the will was executed. The most that is said on this point is he was "never a resident of the State of Illinois after the year 1898, but
became and was a resident of the city of Manila," etc. But residence in the Philippine Islands is compatible with citizenship in Illinois; and it must be
considered that the allegations of the petition on this point are, considered in their bearing as an attempt to refute citizenship in Illinois, wholly
insufficient.
As the Court of First Instance found that the testator was a citizen of the State of Illinois and that the will was executed in conformity with the laws of
that State, the will was necessarily and properly admitted to probate. And how is it possible to evade the effect of these findings?
In Section 625 of the Code of Civil Procedure it is declared that "the allowance by the court of a will of real or personal property shall be conclusive
as to its due execution."
The due execution of a will involves conditions relating to a number of matters, such as the age and mental capacity of the testator, the signing of
the document by the testator, or by someone in his behalf, and the acknowledgment of the instrument by him in the presence of the required
number of witnesses who affix their signatures to the will to attest the act. The proof of all these requisites is involved in the probate; and as to each
and all of them the probate is conclusive. (Castaeda vs. Alemany, 3 Phil. Rep., 426; Pimentel vs. Palanca, 5 Phil. Rep., 436; Chiong Joc-Soy vs.
Vao, 8 Phil. Rep., 119; Sanchez vs. Pascual, 11 Phil. Rep., 395; Montaano vs. Suesa, 14 Phil. Rep., 676.)
Our reported cases do not contain the slightest intimation that a will which has been probated according to law, and without fraud, can be annulled,
in any other proceeding whatever, on account of any supposed irregularity or defect in the execution of the will or on account of any error in the
action of the court upon the proof adduced before it. This court has never been called upon to decide whether, in case the probate of a will should
be procured by fraud, relief could be granted in some other proceeding; and no such question is now presented. But it is readily seen that if fraud
were alleged, this would introduce an entirely different factor in the cae. In Austrua vs. Ventenilla (21 Phil. Rep., 180, 184), it was suggested but not
decided that relief might be granted in case the probate of a will were procured by fraud.
The circumstance that the judgment of the trial court recites that the will was executed in conformity with the law of Illinois and also, in effect, that
the testator was a citizen of that State places the judgment upon an unassailable basis so far as any supposed error apparent upon the fact of the
judgment is concerned. It is, however, probable that even if the judgment had not contained these recitals, there would have been a presumption
from the admission of the will to probate as the will of a citizen of Illinois that the facts were as recited in the order of probate.
As was said by this court in the case of Banco Espaol-Filipino vs. Palanca (37 Phil. Rep., 921), "There is no principle of law better settled than that
after jurisdiction has once been acquired, every act of a court of general jurisdiction shall be presumed to have been rightly done. This rule is
applied to every judgment or decree rendered in the various stages of the proceedings from their initiation to their completion (Voorhees vs. United
States Bank, 10 Pet., 314; 35 U. S., 449); and if the record is silent with respect to any fact which must have established before the court could
have rightly acted, it will be presumed that such fact was properly brought to its knowledge."
The Court of First Instance is a court of original and general jurisdiction; and there is no difference in its faculties in this respect whether exercised in
matters of probate or exerted in ordinary contentious litigation. The trial court therefore necessarily had the power to determine the facts upon which
the propriety of admitting the will to probate depended; and the recital of those facts in the judgment was probably not essential to its validity. No
express ruling is, however, necessary on this point.
What has been said effectually disposes of the petition considered in its aspect as an attack upon the order of probate for error apparent on the face
of the record. But the petitioner seeks to have the judgment reviewed, it being asserted that the findings of the trial court especially on the
question of the citizenship of the testator are not supported by the evidence. It needs but a moment's reflection, however, to show that in such a
proceeding as this it is not possible to reverse the original order on the ground that the findings of the trial court are unsupported by the proof
adduced before that court. The only proceeding in which a review of the evidence can be secured is by appeal, and the case is not before us upon
appeal from the original order admitting the will to probate. The present proceedings by petition to set aside the order of probate, and the appeal
herein is from the order denying this relief. It is obvious that on appeal from an order refusing to vacate a judgment it is not possible to review the
evidence upon which the original judgment was based. To permit this would operate unduly to protract the right of appeal.

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However, for the purpose of arriving at a just conception of the case from the point of view of the petitioner, we propose to examine the evidence
submitted upon the original hearing, in connection with the allegations of the petition, in order to see, first, whether the evidence submitted to the
trial court was sufficient to justify its findings, and, secondly, whether the petition contains any matter which would justify the court in setting the
judgment, aside. In this connection we shall for a moment ignore the circumstance that the petition was filed after the expiration of the six months
allowed by section 113 of the Code of Civil Procedure.
The principal controversy is over the citizenship of the testator. The evidence adduced upon this point in the trial court consists of the certificate of
naturalization granted upon January 10, 1903, in the Circuit Court of Cook County, Illinois, in connection with certain biographical facts contained in
the oral evidence. The certificate of naturalization supplies incontrovertible proof that upon the date stated the testator became a citizen of the
United States, and inferentially also a citizen of said State. In the testimony submitted to the trial court it appears that, when Johnson first came to
the United States as a boy, he took up his abode in the State of Illinois and there remained until he came as a soldier in the United States Army to
the Philippine Islands. Although he remained in these Islands for sometime after receiving his discharge, no evidence was adduced showing that at
the time he returned to the United States, in the autumn of 1902, he had then abandoned Illinois as the State of his permanent domicile, and on the
contrary the certificate of naturalization itself recites that at that time he claimed to be a resident of Illinois.
Now, if upon January 10, 1903, the testator became a citizen of the United States and of the State of Illinois, how has he lost the character of citizen
with respect to either of these jurisdictions? There is no law in force by virtue of which any person of foreign nativity can become a naturalized
citizen of the Philippine Islands; and it was, therefore, impossible for the testator, even if he had so desired, to expatriate himself from the United
States and change his political status from a citizen of the United States to a citizen of these Islands. This being true, it is to be presumed that he
retained his citizenship in the State of Illinois along with his status as a citizen of the United States. It would be novel doctrine to Americans living in
the Philippine Islands to be told that by living here they lose their citizenship in the State of their naturalization or nativity.
We are not unmindful of the fact that when a citizen of one State leaves it and takes up his abode in another State with no intention of returning, he
immediately acquires citizenship in the State of his new domicile. This is in accordance with that provision of the Fourteenth Amendment to the
Constitution of the United States which says that every citizen of the United States is a citizen of the State where in he resides. The effect of this
provision necessarily is that a person transferring his domicile from one State to another loses his citizenship in the State of his original above upon
acquiring citizenship in the State of his new abode. The acquisition of the new State citizenship extinguishes the old. That situation, in our opinion,
has no analogy to that which arises when a citizen of an American State comes to reside in the Philippine Islands. Here he cannot acquire a new
citizenship; nor by the mere change of domicile does he lose that which he brought with him.
The proof adduced before the trial court must therefore be taken as showing that, at the time the will was executed, the testator was, as stated in
the order of probate, a citizen of the State of Illinois. This, in connection with the circumstance that the petition does not even so much as deny such
citizenship but only asserts that the testator was a resident of the Philippine Islands, demonstrates the impossibility of setting the probate aside for
lack of the necessary citizenship on the part of the testator. As already observed, the allegation of the petition on this point is wholly insufficient to
justify any relief whatever.
Upon the other point as to whether the will was executed in conformity with the statutes of the State of Illinois we note that it does not
affirmatively appear from the transaction of the testimony adduced in the trial court that any witness was examined with reference to the law of
Illinois on the subject of the execution of will. The trial judge no doubt was satisfied that the will was properly executed by examining section 1874 of
the Revised Statutes of Illinois, as exhibited in volume 3 of Starr & Curtis's Annotated Illinois Statutes, 2nd ed., p. 426; and he may have assumed
that he could take judicial notice of the laws of Illinois under section 275 of the Code of Civil Procedure. If so, he was in our opinion mistaken. that
section authorizes the courts here to take judicial notice, among other things, of the acts of the legislative department of the United States. These
words clearly have reference to Acts of the Congress of the United States; and we would hesitate to hold that our courts can, under this provision,
take judicial notice of the multifarious laws of the various American States. Nor do we think that any such authority can be derived from the broader
language, used in the same action, where it is said that our courts may take judicial notice of matters of public knowledge "similar" to those therein
enumerated. The proper rule we think is to require proof of the statutes of the States of the American Union whenever their provisions are
determinative of the issues in any action litigated in the Philippine courts.
Nevertheless, even supposing that the trial court may have erred in taking judicial notice of the law of Illinois on the point in question, such error is
not now available to the petitioner, first, because the petition does not state any fact from which it would appear that the law of Illinois is different
from what the court found, and, secondly, because the assignment of error and argument for the appellant in this court raises no question based on
such supposed error. Though the trial court may have acted upon pure conjecture as to the law prevailing in the State of Illinois, its judgment could
not be set aside, even upon application made within six months under section 113 of the Code of Civil procedure, unless it should be made to
appear affirmatively that the conjecture was wrong. The petitioner, it is true, states in general terms that the will in question is invalid and inadequate
to pass real and personal property in the State of Illinois, but this is merely a conclusion of law. The affidavits by which the petition is accompanied
contain no reference to the subject, and we are cited to no authority in the appellant's brief which might tent to raise a doubt as to the correctness of
the conclusion of the trial court. It is very clear, therefore, that this point cannot be urged as of serious moment.
But it is insisted in the brief for the appellant that the will in question was not properly admissible to probate because it contains provisions which
cannot be given effect consistently with the laws of the Philippine Islands; and it is suggested that as the petitioner is a legitimate heir of the testator
she cannot be deprived of the legitime to which she is entitled under the law governing testamentary successions in these Islands. Upon this point it
is sufficient to say that the probate of the will does not affect the intrinsic validity of its provisions, the decree of probate being conclusive only as
regards the due execution of the will. (Code of Civil Procedure, secs. 625, 614; Sahagun vs. De Gorostiza, 7 Phil. Rep., 347, 349; Chiong Joc-Soy
vs. Vao, 8 Phil. Rep., 119, 121; Limjuco vs. Ganara, 11 Phil. Rep., 393, 395.)
If, therefore, upon the distribution of this estate, it should appear that any legacy given by the will or other disposition made therein is contrary to the
law applicable in such case, the will must necessarily yield upon that point and the law must prevail. Nevertheless, it should not be forgotten that the
intrinsic validity of the provisions of this will must be determined by the law of Illinois and not, as the appellant apparently assumes, by the general
provisions here applicable in such matters; for in the second paragraph of article 10 of the Civil Code it is declared that "legal and testamentary
successions, with regard to the order of succession, as well as to the amount of the successional rights and to the intrinsic validity of their
provisions, shall be regulated by the laws of the nation of the person whose succession is in question, whatever may be the nature of the property
and the country where it may be situate."
From what has been said, it is, we think, manifest that the petition submitted to the court below on October 31, 1916, was entirely insufficient to
warrant the setting aside of the other probating the will in question, whether said petition be considered as an attack on the validity of the decree for
error apparent, or whether it be considered as an application for a rehearing based upon the new evidence submitted in the affidavits which
accompany the petition. And in this latter aspect the petition is subject to the further fatal defect that it was not presented within the time allowed by
law.
It follows that the trial court committed no error in denying the relief sought. The order appealed from is accordingly affirmed with costs. So ordered.

Succession 65
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 party-petitioner, in lieu of his former client, Ms. Del Rosario.
On March 28, 1968, the trial judge dismissed the appeal and denied petitioner's motion for substitution.

Succession 66
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.

Succession 67
G.R. No. 108581

December 8, 1999

LOURDES L. DOROTHEO, petitioner,


vs.
COURT OF APPEALS, NILDA D. QUINTANA, for Herself and as Attorney-in-Fact of VICENTE DOROTHEO and JOSE DOROTHEO, respondents.

YNARES-SANTIAGO, J.:
May a last will and testament admitted to probate but declared intrinsically void in an order that has become final and executory still be given effect?
This is the issue that arose from the following antecedents:
Private respondents were the legitimate children of Alejandro Dorotheo and Aniceta Reyes. The latter died in 1969 without her estate being settled.
Alejandro died thereafter. Sometime in 1977, after Alejandro's death, petitioner, who claims to have taken care of Alejandro before he died, filed a
special proceeding for the probate of the latter's last will and testament. In 1981, the court issued an order admitting Alejandro's will to probate.
Private respondents did not appeal from said order. In 1983, they filed a "Motion To Declare The Will Intrinsically Void." The trial court granted the
motion and issued an order, the dispositive portion of which reads:
WHEREFORE, in view of the foregoing, Order is hereby issued declaring Lourdes Legaspi not the wife of the late Alejandro Dorotheo, the
provisions of the last will and testament of Alejandro Dorotheo as intrinsically void, and declaring the oppositors Vicente Dorotheo, Jose Dorotheo
and Nilda Dorotheo Quintana as the only heirs of the late spouses Alejandro Dorotheo and Aniceta Reyes, whose respective estates shall be
liquidated and distributed according to the laws on intestacy upon payment of estate and other taxes due to the government. 1
Petitioner moved for reconsideration arguing that she is entitled to some compensation since she took care of Alejandro prior to his death although
she admitted that they were not married to each other. Upon denial of her motion for reconsideration, petitioner appealed to the Court of Appeals,
but the same was dismissed for failure to file appellant's brief within the extended period
granted. 2 This dismissal became final and executory on February 3, 1989 and a corresponding entry of judgment was forthwith issued by the Court
of Appeals on May 16, 1989. A writ of execution was issued by the lower court to implement the final and executory Order. Consequently, private
respondents filed several motions including a motion to compel petitioner to surrender to them the Transfer Certificates of Titles (TCT) covering the
properties of the late Alejandro. When petitioner refused to surrender the TCT's, private respondents filed a motion for cancellation of said titles and
for issuance of new titles in their names. Petitioner opposed the motion.
An Order was issued on November 29, 1990 by Judge Zain B. Angas setting aside the final and executory Order dated January 30, 1986, as well as
the Order directing the issuance of the writ of execution, on the ground that the order was merely "interlocutory", hence not final in character. The
court added that the dispositive portion of the said Order even directs the distribution of the estate of the deceased spouses. Private respondents
filed a motion for reconsideration which was denied in an Order dated February 1, 1991. Thus, private respondents filed a petition before the Court
of Appeals, which nullified the two assailed Orders dated November 29, 1990 and February 1, 1991.
Aggrieved, petitioner instituted a petition for review arguing that the case filed by private respondents before the Court of Appeals was a petition
under Rule 65 on the ground of grave abuse of discretion or lack of jurisdiction. Petitioner contends that in issuing the two assailed orders, Judge
Angas cannot be said to have no jurisdiction because he was particularly designated to hear the case. Petitioner likewise assails the Order of the
Court of Appeals upholding the validity of the January 30, 1986 Order which declared the intrinsic invalidity of Alejandro's will that was earlier
admitted to probate.
Petitioner also filed a motion to reinstate her as executrix of the estate of the late Alejandro and to maintain the status quo or lease of the premises
thereon to third parties. 3 Private respondents opposed the motion on the ground that petitioner has no interest in the estate since she is not the
lawful wife of the late Alejandro.
The petition is without merit. A final and executory decision or order can no longer be disturbed or reopened no matter how erroneous it may be. In
setting aside the January 30, 1986 Order that has attained finality, the trial court in effect nullified the entry of judgment made by the Court of
Appeals. It is well settled that a lower court cannot reverse or set aside decisions or orders of a superior court, for to do so would be to negate the
hierarchy of courts and nullify the essence of review. It has been ruled that a final judgment on probated will, albeit erroneous, is binding on the
whole world. 4
It has been consistently held that if no appeal is taken in due time from a judgment or order of the trial court, the same attains finality by mere lapse
of time. Thus, the order allowing the will became final and the question determined by the court in such order can no longer be raised anew, either
in the same proceedings or in a different motion. The matters of due execution of the will and the capacity of the testator acquired the character of
res judicata and cannot again be brought into question, all juridical questions in connection therewith being for once and forever closed. 5 Such final
order makes the will conclusive against the whole world as to its extrinsic validity and due execution. 6
It should be noted that probate proceedings deals generally with the extrinsic validity of the will sought to be probated, 7 particularly on three
aspects:
n

whether the will submitted is indeed, the decedent's last will and testament;

compliance with the prescribed formalities for the execution of wills;

the testamentary capacity of the testator; 8

and the due execution of the last will and testament. 9

Under the Civil Code, due execution includes a determination of whether the testator was of sound and disposing mind at the time of its execution,
that he had freely executed the will and was not acting under duress, fraud, menace or undue influence and that the will is genuine and not a
forgery, 10 that he was of the proper testamentary age and that he is a person not expressly prohibited by law from making a will. 11
The intrinsic validity is another matter and questions regarding the same may still be raised even after the will has been authenticated. 12 Thus, it
does not necessarily follow that an extrinsically valid last will and testament is always intrinsically valid. Even if the will was validly executed, if the
testator provides for dispositions that deprives or impairs the lawful heirs of their legitime or rightful inheritance according to the laws on succession,
13 the unlawful provisions/dispositions thereof cannot be given effect. This is specially so when the courts had already determined in a final and
executory decision that the will is intrinsically void. Such determination having attained that character of finality is binding on this Court which will no
longer be disturbed. Not that this Court finds the will to be intrinsically valid, but that a final and executory decision of which the party had the

Succession 68
opportunity to challenge before the higher tribunals must stand and should no longer be reevaluated. Failure to avail of the remedies provided by
law constitutes waiver. And if the party does not avail of other remedies despite its belief that it was aggrieved by a decision or court action, then it is
deemed to have fully agreed and is satisfied with the decision or order. As early as 1918, it has been declared that public policy and sound practice
demand that, at the risk of occasional errors, judgments of courts must at some point of time fixed by law 14 become final otherwise there will be no
end to litigation. Interes rei publicae ut finis sit litium the very object of which the courts were constituted was to put an end to controversies. 15
To fulfill this purpose and to do so speedily, certain time limits, more or less arbitrary, have to be set up to spur on the slothful. 16 The only instance
where a party interested in a probate proceeding may have a final liquidation set aside is when he is left out by reason of circumstances beyond his
control or through mistake or inadvertence not imputable to negligence, 17 which circumstances do not concur herein.
Petitioner was privy to the suit calling for the declaration of the intrinsic invalidity of the will, as she precisely appealed from an unfavorable order
therefrom. Although the final and executory Order of January 30, 1986 wherein private respondents were declared as the only heirs do not bind
those who are not parties thereto such as the alleged illegitimate son of the testator, the same constitutes res judicata with respect to those who
were parties to the probate proceedings. Petitioner cannot again raise those matters anew for relitigation otherwise that would amount to forumshopping. It should be remembered that forum shopping also occurs when the same issue had already been resolved adversely by some other
court. 18 It is clear from the executory order that the estates of Alejandro and his spouse should be distributed according to the laws of intestate
succession.
Petitioner posits that the January 30, 1986 Order is merely interlocutory, hence it can still be set aside by the trial court. In support thereof, petitioner
argues that "an order merely declaring who are heirs and the shares to which set of heirs is entitled cannot be the basis of execution to require
delivery of shares from one person to another particularly when no project of partition has been filed." 19 The trial court declared in the January 30,
1986 Order that petitioner is not the legal wife of Alejandro, whose only heirs are his three legitimate children (petitioners herein), and at the same
time it nullified the will. But it should be noted that in the same Order, the trial court also said that the estate of the late spouses be distributed
according to the laws of intestacy. Accordingly, it has no option but to implement that order of intestate distribution and not to reopen and again reexamine the intrinsic provisions of the same will.
It can be clearly inferred from Article 960 of the Civil Code, on the law of successional rights that testacy is preferred to intestacy. 20 But before
there could be testate distribution, the will must pass the scrutinizing test and safeguards provided by law considering that the deceased testator is
no longer available to prove the voluntariness of his actions, aside from the fact that the transfer of the estate is usually onerous in nature and that
no one is presumed to give Nemo praesumitur donare. 21 No intestate distribution of the estate can be done until and unless the will had failed
to pass both its extrinsic and intrinsic validity. If the will is extrinsically void, the rules of intestacy apply regardless of the intrinsic validity thereof. If it
is extrinsically valid, the next test is to determine its intrinsic validity that is whether the provisions of the will are valid according to the laws of
succession. In this case, the court had ruled that the will of Alejandro was extrinsically valid but the intrinsic provisions thereof were void. Thus, the
rules of intestacy apply as correctly held by the trial court.
Furthermore, Alejandro's disposition in his will of the alleged share in the conjugal properties of his late spouse, whom he described as his "only
beloved wife", is not a valid reason to reverse a final and executory order. Testamentary dispositions of properties not belonging exclusively to the
testator or properties which are part of the conjugal regime cannot be given effect. Matters with respect to who owns the properties that were
disposed of by Alejandro in the void will may still be properly ventilated and determined in the intestate proceedings for the settlement of his and
that of his late spouse's estate.
Petitioner's motion for appointment as administratrix is rendered moot considering that she was not married to the late Alejandro and, therefore, is
not an heir.
WHEREFORE, the petition is DENIED and the decision appealed from is AFFIRMED.
SO ORDERED.

Succession 69
G.R. No. 129505

January 31, 2000

OCTAVIO S. MALOLES II, petitioner,


vs.
PACITA DE LOS REYES PHILLIPS, respondent.
----------------------------G.R. No. 133359

January 31, 2000

OCTAVIO S. MALOLES II, petitioner,


vs.
COURT OF APPEALS, HON. FERNANDO V. GOROSPE, JR., in his Official Capacity as Presiding Judge of RTC-Makati, Branch 61, and PACITA
PHILLIPS as the alleged executrix of the alleged will of the late Dr. Arturo de Santos, respondents.
MENDOZA, J.:
These are petitions for review on certiorari of the decisions of the Thirteenth and the Special Eighth Divisions of the Court of Appeals which ruled
that petitioner has no right to intervene in the settlement of the estate of Dr. Arturo de Santos. The cases were consolidated considering that they
involve the same parties and some of the issues raised are the same.
The facts which gave rise to these two petitions are as follows:
On July 20, 1995, Dr. Arturo de Santos, Filipino and a resident of Makati City, filed a petition for probate of his will1 in the Regional Trial Court,
Branch 61, Makati, docketed as Sp. Proc. No. M-4223. In his petition, Dr. De Santos alleged that he had no compulsory heirs; that he had named in
his will as sole legatee and devisee the Arturo de Santos Foundation, Inc.; that he disposed by his will his properties with an approximate value of
not less than P2,000,000.00; and that copies of said will were in the custody of the named executrix, private respondent Pacita de los Reyes
Phillips. A copy of the will2 was annexed to the petition for probate.
On February 16, 1996, Judge Fernando V. Gorospe, Jr. of RTC-Makati, Branch 61 issued an order granting the petition and allowing the will. The
order reads:
On 03 August 1995, the Court issued an Order setting the hearing of the petition on 12 September 1995, at 8:30 o'clock in the morning, copies of
which were served to Arturo de Santos Foundation, Inc. and Ms. Pacita de los Reyes Phillips (Officer's Return, dated 04 September 1995 attached
to the records). When the case was called for hearing on the date set, no oppositor appeared nor any written opposition was ever filed and on
motion of petitioner, he was allowed to adduce his evidence in support of the petition.
Petitioner personally appeared before this Court and was placed on the witness stand and was directly examined by the Court through "free
wheeling" questions and answers to give this Court a basis to determine the state of mind of the petitioner when he executed the subject will. After
the examination, the Court is convinced that petitioner is of sound and disposing mind and not acting on duress, menace and undue influence or
fraud, and that petitioner signed his Last Will and Testament on his own free and voluntary will and that he was neither forced nor influenced by any
other person in signing it.
Furthermore, it appears from the petition and the evidence adduced that petitioner in his lifetime, executed his Last Will and Testament (Exhs. "A",
"A-1", "A-2", "A-4", "A-5") at his residence situated at 9 Bauhinia corner Intsia Streets, Forbes Park, Makati City; said Last Will and Testament was
signed in the presence of his three (3) witnesses, namely, to wit: Dr. Elpidio Valencia (Exhs. "A-6", "A-7", "A-8", "A-16", "A-16-A"), Atty. Edward J.
Berenguer (Exhs. "A-3", "A-3-A", "A-9", "A-10", & "A-11"), and Atty. Victoria C. delos Reyes (Exhs. "A-12", "A-13", "A-14", "A-17", & "A-18"), who in
turn, in the presence of the testator and in the presence of each and all of the witnesses signed the said Last Will and Testament and duly notarized
before Notary Public Anna Melissa L. Rosario (Exh. "A-15"); on the actual execution of the Last Will and Testament, pictures were taken (Exhs. "B"
to "B-3").
Petitioner has no compulsory heirs and Arturo de Santos Foundation, Inc., with address at No. 9 Bauhinia corner Intsia Streets, Forbes Park, Makati
City has been named as sole legatee and devisee of petitioner's properties, real and personal, approximately valued at not less than P2 million, Ms.
Pacita de los Reyes Phillips was designated as executor and to serve as such without a bond.1wphi1.nt
From the foregoing facts, the Court finds that the petitioner has substantially established the material allegations contained in his petition. The Last
Will and Testament having been executed and attested as required by law; that testator at the time of the execution of the will was of sane mind
and/or not mentally incapable to make a Will; nor was it executed under duress or under the influence of fear or threats; that it was in writing and
executed in the language known and understood by the testator duly subscribed thereof and attested and subscribed by three (3) credible
witnesses in the presence of the testator and of another; that the testator and all the attesting witnesses signed the Last Will and Testament freely
and voluntarily and that the testator has intended that the instrument should be his Will at the time of affixing his signature thereto.
WHEREFORE, as prayed for by the petitioner (testator himself) the petition for the allowance of the Last Will and Testament of Arturo de Santos is
hereby APPROVED and ALLOWED.
Shortly after the probate of his will, Dr. De Santos died on February 26, 1996.
On April 3, 1996, petitioner Octavio S. Maloles II filed a motion for intervention claiming that, as the only child of Alicia de Santos (testator's sister)
and Octavio L. Maloles, Sr., he was the sole full-blooded nephew and nearest of kin of Dr. De Santos. He likewise alleged that he was a creditor of
the testator. Petitioner thus prayed for the reconsideration of the order allowing the will and the issuance of letters of administration in his name.
On the other hand, private respondent Pacita de los Reyes Phillips, the designated executrix of the will, filed a motion for the issuance of letters
testamentary with Branch 61. Later, however, private respondent moved to withdraw her motion. This was granted, while petitioner was required to
file a memorandum of authorities in support of his claim that said court (Branch 61) still had jurisdiction to allow his intervention.3
Petitioner filed his memorandum of authorities on May 13, 1996. On the other hand, private respondent, who earlier withdrew her motion for the
issuance of letters testamentary in Branch 61, refiled a petition for the same purpose with the Regional Trial Court, Makati, which was docketed as
Sp. Proc. No. M-4343 and assigned to Branch 65.
Upon private respondent's motion, Judge Salvador Abad Santos of Branch 65 issued an order, dated June 28, 1996, appointing her as special
administrator of Dr. De Santos's estate.

Succession 70
On July 29, 1996, petitioner sought to intervene in Sp. Proc. No. M-4343 and to set aside the appointment of private respondent as special
administrator. He reiterated that he was the sole and full blooded nephew and nearest of kin of the testator; that he came to know of the existence
of Sp. Proc. No. M-4343 only by accident; that the probate proceedings in Sp. Proc. No. M-4223 before Branch 61 of the same court was still
pending; that private respondent misdeclared the true worth of the testator's estate; that private respondent was not fit to be the special
administrator of the estate; and that petitioner should be given letters of administration for the estate of Dr. De Santos.
On August 28, 1996, Judge Abad Santos ordered the transfer of Sp. Proc. No. M-4343 to Branch 61, on the ground that "[it] is related to the case
before Judge Gorospe of RTC Branch 61 . . ."
It appears, however, that in Sp. Proc. No. M-4223, Judge Gorospe had denied on August 26, 1996 petitioner's motion for intervention. Petitioner
brought this matter to the Court of Appeals which, in a decision4 promulgated on February 13, 1998, upheld the denial of petitioner's motion for
intervention.
Meanwhile, Judge Gorospe issued an order, dated September 4, 1996, returning the records of Sp. Proc. No. M-4343 to Branch 65 on the ground
that there was a pending case involving the Estate of Decedent Arturo de Santos pending before said court. The order reads:
Acting on the ORDER dated 28 August 1996 of Branch 65, this Court, transferring this case to this Branch 61 on the ground that this case is related
with a case before this Court, let this case be returned to Branch 65 with the information that there is no related case involving the ESTATE OF
DECEDENT ARTURO DE SANTOS pending before this Branch.
There is, however, a case filed by ARTURO DE SANTOS, as petitioner under Rule 76 of the Rules of Court for the Allowance of his will during his
lifetime docketed as SP. PROC. NO. M-4223 which was already decided on 16 February 1996 and has become final.
It is noted on records of Case No. M-4223 that after it became final, herein Petitioner Pacita de los Reyes Phillips filed a MOTION FOR THE
ISSUANCE OF LETTERS TESTAMENTARY, which was subsequently withdrawn after this Court, during the hearing, already ruled that the motion
could not be admitted as the subject matter involves a separate case under Rule 78 of the Rules of Court, and movant withdrew her motion and
filed this case (No. 4343).
Octavio de Santos Maloles [II] filed a MOTION FOR INTERVENTION before Case No. M-4223 and this motion was already DENIED in the order
(Branch 61) of 26 August 1996 likewise for the same grounds that the matter is for a separate case to be filed under Rule 78 of the Rules of Court
and cannot be included in this case filed under Rule 76 of the Rules of Court.
It is further noted that it is a matter of policy that consolidation of cases must be approved by the Presiding Judges of the affected Branches.
Initially, in his decision dated September 23, 1996,5 Judge Abad Santos appeared firm in his position that " . . . it would be improper for (Branch 65)
to hear and resolve the petition (Sp. Proc. No. M-4343)," considering that the probate proceedings were commenced with Branch 61. He thus
ordered the transfer of the records back to the latter branch. However, he later recalled his decision and took cognizance of the case "to expedite
the proceedings." Thus, in his Order, dated October 21, 1996, he stated:
Considering the refusal of the Hon. Fernando V. Gorospe, Jr. of Branch 61 to continue hearing this case notwithstanding the fact that said branch
began the probate proceedings of the estate of the deceased and must therefore continue to exercise its jurisdiction to the exclusion of all others,
until the entire estate of the testator had been partitioned and distributed as per Order dated 23 September 1996, this branch (Regional Trial Court
Branch 65) shall take cognizance of the petition if only to expedite the proceedings, and under the concept that the Regional Trial Court of Makati
City is but one court.
Furnish a copy of this order to the Office of the Chief justice and the Office of the Court Administrator, of the Supreme Court; the Hon. Fernando V.
Gorospe, Jr.; Pacita De Los Reyes Phillips, Petitioner; and Octavio de Santos Maloles, Intervenor.
On November 4, 1996, Judge Abad Santos granted petitioner's motion for intervention. Private respondent moved for a reconsideration but her
motion was denied by the trial court. She then filed a petition for certiorari in the Court of Appeals which, on February 26, 1997, rendered a
decision6 setting aside the trial court's order on the ground that petitioner had not shown any right or interest to intervene in Sp. Proc. No. M-4343.
Hence, these petitions which raise the following issues:
1. Whether or not the Honorable Regional Trial Court Makati, Branch 61 has lost jurisdiction to proceed with the probate proceedings upon its
issuance of an order allowing the will of Dr. Arturo de Santos.
2. Whether or not the Honorable (Regional Trial Court Makati, Branch 65) acquired jurisdiction over the petition for issuance of letters
testamentary filed by (private) respondent.
3. Whether or not the petitioner, being a creditor of the late Dr. Arturo de Santos, has a right to intervene and oppose the petition for issuance of
letters testamentary filed by the respondent.
4. Whether or not (private) respondent is guilty of forum shopping in filing her petition for issuance of letters testamentary with the Regional Trial
Court Makati, Branch 65 knowing fully well that the probate proceedings involving the same restate estate of the decedent is still pending with
the Regional Trial Court Makati, Branch 61.
First. Petitioner contends that the probate proceedings in Branch 61 of RTC-Makati did not terminate upon the issuance of the order allowing the
will of Dr. De Santos. Citing the cases of Santiesteban v. Santiesteban7 and Tagle v. Manalo,8 he argues that the proceedings must continue until
the estate is fully distributed to the lawful heirs, devisees, and legatees of the testator, pursuant to Rule 73, 1 of the Rules of Court. Consequently,
petitioner contends that Branch 65 could not lawfully act upon private respondent's petition for issuance of letters testamentary.
The contention has no merit.
In cases for the probate of wills, it is well-settled that the authority of the court is limited to ascertaining the extrinsic validity of the will, i.e., whether
the testator, being of sound mind, freely executed the will in accordance with the formalities prescribed by law.9
Ordinarily, probate proceedings are instituted only after the death of the testator, so much so that, after approving and allowing the will, the court
proceeds to issue letters testamentary and settle the estate of the testator. The cases cited by petitioner are of such nature. In fact, in most
jurisdictions, courts cannot entertain a petition for probate of the will of a living testator under the principle of ambulatory nature of wills.10
However, Art. 838 of the Civil Code authorizes the filing of a petition for probate of the will filed by the testator himself. It provides:

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CIVIL CODE, ART. 838. No will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court.
The testator himself may, during his lifetime, petition the court having jurisdiction for the allowance of his will. In such case, the pertinent provisions
of the Rules of Court for the allowance of wills after the testator's death shall govern.
The Supreme Court shall formulate such additional Rules of Court as may be necessary for the allowance of wills on petition of the testator.
Subject to the right of appeal, the allowance of the will, either during the lifetime of the testator or after his death, shall be conclusive as to its due
execution.
Rule 76, 1 likewise provides:
Sec. 1. Who may petition for the allowance of will. Any executor, devisee, or legatee named in a will, or any other person interested in the estate,
may, at any time after the death of the testator, petition the court having jurisdiction to have the will allowed, whether the same be in his possession
or not, or is lost or destroyed.
The testator himself may, during his lifetime, petition in the court for the allowance of his will.
The rationale for allowing the probate of wills during the lifetime of testator has been explained by the Code Commission thus:
Most of the cases that reach the courts involve either the testamentary capacity of the testator or the formalities adopted in the execution of wills.
There are relatively few cases concerning the intrinsic validity of testamentary dispositions. It is far easier for the courts to determine the mental
condition of a testator during his lifetime than after his death. Fraud, intimidation and undue influence are minimized. Furthermore, if a will does not
comply with the requirements prescribed by law, the same may be corrected at once. The probate during the testator's life, therefore, will lessen the
number of contest upon wills. Once a will is probated during the lifetime of the testator, the only questions that may remain for the courts to decide
after the testator's death will refer to the intrinsic validity of the testamentary dispositions. It is possible, of course, that even when the testator
himself asks for the allowance of the will, he may be acting under duress or undue influence, but these are rare cases.
After a will has been probated during the lifetime of the testator, it does not necessarily mean that he cannot alter or revoke the same before his
death. Should he make a new will, it would also be allowable on his petition, and if he should die before he has had a chance to present such
petition, the ordinary probate proceeding after the testator's death would be in order.11
Thus, after the allowance of the will of Dr. De Santos on February 16, 1996, there was nothing else for Branch 61 to do except to issue a certificate
of allowance of the will pursuant to Rule 73, 12 of the Rules of Court. There is, therefore, no basis for the ruling of Judge Abad Santos of Branch
65 of RTC-Makati that
Branch 61 of the Regional Trial Court of Makati having begun the probate proceedings of the estate of the deceased, it continues and shall continue
to exercise said jurisdiction to the exclusion of all others. It should be noted that probate proceedings do not cease upon the allowance or
disallowance of a will but continues up to such time that the entire estate of the testator had been partitioned and distributed.
The fact that the will was allowed during the lifetime of the testator meant merely that the partition and distribution of the estate was to be
suspended until the latter's death. In other words, the petitioner, instead of filing a new petition for the issuance of letters testamentary, should have
simply filed a manifestation for the same purpose in the probate court.12
Petitioner, who defends the order of Branch 65 allowing him to intervene, cites Rule 73, 1 which states:
Where estate of deceased persons settled. If the decedent is an inhabitant of the Philippines at the time of his death, whether a citizen or an
alien, his will shall be proved, or letters of administration granted, and his estate settled, in the Court of First Instance in the province in which he
resides at the time of his death, and if he is an inhabitant of a foreign country, the Court of First Instance of any province in which he had estate. The
court first taking cognizance of the settlement of the estate of a decedent, shall exercise jurisdiction to the exclusion of all other courts. The
jurisdiction assumed by a court, so far as it depends on the place of residence of the decedent, or of the location of his estate, shall not be
contested in a suit or proceeding, except in an appeal from that court, in the original case, or when the want of jurisdiction appears on the record.
The above rule, however, actually provides for the venue of actions for the settlement of the estate of deceased persons. In Garcia Fule v. Court of
Appeals, it was held:13
The aforequoted Section 1, Rule 73 (formerly Rule 75, Section 1), specifically the clause "so far as it depends on the place of residence of the
decedent, or of the location of the state," is in reality a matter of venue, as the caption of the Rule indicates: "Settlement of Estate of Deceased
Persons. Venue and Processes." It could not have been intended to define the jurisdiction over the subject matter, because such legal provision is
contained in a law of procedure dealing merely with procedural matters. Procedure is one thing, jurisdiction over the subject matter is another. The
power or authority of the court over the subject matter "existed was fixed before procedure in a given cause began." That power or authority is not
altered or changed by procedure, which simply directs the manner in which the power or authority shall be fully and justly exercised. There are
cases though that if the power is not exercised conformably with the provisions of the procedural law, purely, the court attempting to exercise it
loses the power to exercise it legally. However, this does not amount to a loss of jurisdiction over the subject matter. Rather, it means that the court
may thereby lose jurisdiction over the person or that the judgment may thereby be rendered defective for lack of something essential to sustain it.
The appearance of this provision in the procedural law at once raises a strong presumption that it has nothing to do with the jurisdiction of the court
over the subject matter. In plain words, it is just a matter of method, of convenience to the parties.
Indeed, the jurisdiction over probate proceedings and settlement of estates with approximate value of over P100,000.00 (outside Metro Manila) or
P200,000.00 (in Metro Manila) belongs to the regional trial courts under B.P. Blg. 129, as amended. The different branches comprising each court in
one judicial region do not possess jurisdictions independent of and incompatible with each other.14
It is noteworthy that, although Rule 73, 1 applies insofar as the venue of the petition for probate of the will of Dr. De Santos is concerned, it does
not bar other branches of the same court from taking cognizance of the settlement of the estate of the testator after his death. As held in the leading
case of Bacalso v. Ramolote:15
The various branches of the Court of First Instance of Cebu under the Fourteenth Judicial District, are a coordinate and co-equal courts, and the
totality of which is only one Court of First Instance. The jurisdiction is vested in the court, not in the judges. And when a case is filed in one branch,
jurisdiction over the case does not attach to the branch or judge alone, to the exclusion of the other branches. Trial may be held or proceedings
continue by and before another branch or judge. It is for this reason that Section 57 of the Judiciary Act expressly grants to the Secretary of Justice,
the administrative right or power to apportion the cases among the different branches, both for the convenience of the parties and for the

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coordination of the work by the different branches of the same court. The apportionment and distribution of cases does not involve a grant or
limitation of jurisdiction, the jurisdiction attaches and continues to be vested in the Court of First Instance of the province, and the trials may be held
by any branch or judge of the court.
Necessarily, therefore, Branch 65 of the RTC of Makati City has jurisdiction over Sp. Proc. No. M-4343.
Second. Petitioner claims the right to intervene in and oppose the petition for issuance of letters testamentary filed by private respondent. He
argues that, as the nearest next of kin and creditor of the testator, his interest in the matter is material and direct. In ruling that petitioner has no right
to intervene in the proceedings before Branch 65 of RTC-Makati City, the Court of Appeals held:
The private respondent herein is not an heir or legatee under the will of the decedent Arturo de Santos. Neither is he a compulsory heir of the latter.
As the only and nearest collateral relative of the decedent, he can inherit from the latter only in case of intestacy. Since the decedent has left a will
which has already been probated and disposes of all his properties the private respondent can inherit only if the said will is annulled. His interest in
the decedent's estate is, therefore, not direct or immediate.
His claim to being a creditor of the estate is a belated one, having been raised for the first time only in his reply to the opposition to his motion to
intervene, and, as far as the records show, not supported by evidence.
. . . . [T]he opposition must come from one with a direct interest in the estate or the will, and the private respondent has none. Moreover, the ground
cited in the private respondent's opposition, that the petitioner has deliberately misdeclared the truth worth and value of the estate, is not relevant to
the question of her competency to act as executor. Section 2, Rule 76 of the Rules of Court requires only an allegation of the probable value and
character of the property of the estate. The true value can be determined later on in the course of the settlement of the estate.16
Rule 79, 1 provides:
Opposition to issuance of letters testamentary. Simultaneous petition for administration. Any person interested in a will may state in writing the
grounds why letters testamentary should not issue to the persons named therein as executors, or any of them, and the court, after hearing upon
notice, shall pass upon the sufficiency of such grounds. A petition may, at the same time, be filed for letters of administration with the will annexed.
Under this provision, it has been held that an "interested person" is one who would be benefited by the estate, such as an heir, or one who has a
claim against the estate, such as a creditor, and whose interest is material and direct, not merely incidental or contingent.17
Even if petitioner is the nearest next of kin of Dr. De Santos, he cannot be considered an "heir" of the testator. It is a fundamental rule of
testamentary succession that one who has no compulsory or forced heirs may dispose of his entire estate by will. Thus, Art. 842 of the Civil Code
provides:
One who has no compulsory heirs may dispose by will of all his estate or any part of it in favor of any person having capacity to succeed.
One who has compulsory heirs may dispose of his estate provided he does not contravene the provisions of this Code with regard to the legitimate
of said heirs.
Compulsory heirs are limited to the testator's
(1) Legitimate children and descendants, with respect to their legitimate parents and ascendants;
(2) In default of the foregoing, legitimate parents and ascendants, with respect to their legitimate children and descendants;
(3) The widow or widower;
(4) Acknowledged natural children, and natural children by legal fiction;
(5) Other illegitimate children referred to in Article 287 of the Civil Code.18
Petitioner, as nephew of the testator, is not a compulsory heir who may have been preterited in the testator's will.
Nor does he have any right to intervene in the settlement proceedings based on his allegation that he is a creditor of the deceased. Since the
testator instituted or named an executor in his will, it is incumbent upon the Court to respect the desires of the testator. As we stated in Ozaeta v.
Pecson:19
The choice of his executor is a precious prerogative of a testator, a necessary concomitant of his right to dispose of his property in the manner he
wishes. It is natural that the testator should desire to appoint one of his confidence, one who can be trusted to carry out his wishes in the disposal of
his estate. The curtailment of this right may be considered a curtailment of the right to dispose.
Only if the appointed executor is incompetent, refuses the trust, or fails to give bond may the court appoint other persons to administer the estate.20
None of these circumstances is present in this case.
Third. Petitioner contends that private respondent is guilty of forum shopping when she filed the petition for issuance of letters testamentary (Sp.
Proc. No. M-4343) while the probate proceedings (Sp. Proc. No. M-4223) were still pending. According to petitioner, there is identity of parties,
rights asserted, and reliefs prayed for in the two actions which are founded on the same facts, and a judgment in either will result in res judicata in
the other.
This contention has no merit. As stated earlier, the petition for probate was filed by Dr. De Santos, the testator, solely for the purpose of
authenticating his will. Upon the allowance of his will, the proceedings were terminated.1wphi1.nt
On the other hand, the petition for issuance of letters testamentary was filed by private respondent, as executor of the estate of Dr. De Santos, for
the purpose of securing authority from the Court to administer the estate and put into effect the will of the testator. The estate settlement
proceedings commenced by the filing of the petition terminates upon the distribution and delivery of the legacies and devises to the persons named
in the will. Clearly, there is no identity between the two petitions, nor was the latter filed during the pendency of the former. There was, consequently,
no forum shopping.
WHEREFORE, the petition is DENIED and the decisions of the Court of Appeals are hereby AFFIRMED. SO ORDERED.

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G.R. No. L-23445

June 23, 1966

REMEDIOS NUGUID, petitioner and appellant,


vs.
FELIX NUGUID and PAZ SALONGA NUGUID, oppositors and appellees.
Custodio O. Partade for petitioner and appellant.
Beltran, Beltran and Beltran for oppositors and appellees.
SANCHEZ, J.:
Rosario Nuguid, a resident of Quezon City, died on December 30, 1962, single, without descendants, legitimate or illegitimate. Surviving her were
her legitimate parents, Felix Nuguid and Paz Salonga Nuguid, and six (6) brothers and sisters, namely: Alfredo, Federico, Remedios, Conrado,
Lourdes and Alberto, all surnamed Nuguid.
On May 18, 1963, petitioner Remedios Nuguid filed in the Court of First Instance of Rizal a holographic will allegedly executed by Rosario Nuguid
on November 17, 1951, some 11 years before her demise. Petitioner prayed that said will be admitted to probate and that letters of administration
with the will annexed be issued to her.
On June 25, 1963, Felix Nuguid and Paz Salonga Nuguid, concededly the legitimate father and mother of the deceased Rosario Nuguid, entered
their opposition to the probate of her will. Ground therefor, inter alia, is that by the institution of petitioner Remedios Nuguid as universal heir of the
deceased, oppositors who are compulsory heirs of the deceased in the direct ascending line were illegally preterited and that in consequence
the institution is void.
On August 29, 1963, before a hearing was had on the petition for probate and objection thereto, oppositors moved to dismiss on the ground of
absolute preterition.
On September 6, 1963, petitioner registered her opposition to the motion to dismiss.1wph1.t
The court's order of November 8, 1963, held that "the will in question is a complete nullity and will perforce create intestacy of the estate of the
deceased Rosario Nuguid" and dismissed the petition without costs.
A motion to reconsider having been thwarted below, petitioner came to this Court on appeal.
1. Right at the outset, a procedural aspect has engaged our attention. The case is for the probate of a will. The court's area of inquiry is limited to
an examination of, and resolution on, the extrinsic validity of the will. The due execution thereof, the testatrix's testamentary capacity, and the
compliance with the requisites or solemnities by law prescribed, are the questions solely to be presented, and to be acted upon, by the court. Said
court at this stage of the proceedings is not called upon to rule on the intrinsic validity or efficacy of the provisions of the will, the legality of any
devise or legacy therein.1
A peculiar situation is here thrust upon us. The parties shunted aside the question of whether or not the will should be allowed probate. For them,
the meat of the case is the intrinsic validity of the will. Normally, this comes only after the court has declared that the will has been duly
authenticated.2 But petitioner and oppositors, in the court below and here on appeal, travelled on the issue of law, to wit: Is the will intrinsically a
nullity?
We pause to reflect. If the case were to be remanded for probate of the will, nothing will be gained. On the contrary, this litigation will be protracted.
And for aught that appears in the record, in the event of probate or if the court rejects the will, probability exists that the case will come up once
again before us on the same issue of the intrinsic validity or nullity of the will. Result: waste of time, effort, expense, plus added anxiety. These are
the practical considerations that induce us to a belief that we might as well meet head-on the issue of the validity of the provisions of the will in
question.3 After all, there exists a justiciable controversy crying for solution.
2. Petitioner's sole assignment of error challenges the correctness of the conclusion below that the will is a complete nullity. This exacts from us a
study of the disputed will and the applicable statute.
Reproduced hereunder is the will:
Nov. 17, 1951
I, ROSARIO NUGUID, being of sound and disposing mind and memory, having amassed a certain amount of property, do hereby give, devise, and
bequeath all of the property which I may have when I die to my beloved sister Remedios Nuguid, age 34, residing with me at 38-B Iriga, Q.C. In
witness whereof, I have signed my name this seventh day of November, nineteen hundred and fifty-one.
(Sgd.) Illegible
T/ ROSARIO NUGUID
The statute we are called upon to apply in Article 854 of the Civil Code which, in part, provides:
ART. 854. The preterition or omission of one, some, or all of the compulsory heirs in the direct line, whether living at the time of the execution of the
will or born after the death of the testator, shall annul the institution of heir; but the devises and legacies shall be valid insofar as they are not
inofficious. ...
Except for inconsequential variation in terms, the foregoing is a reproduction of Article 814 of the Civil Code of Spain of 1889, which is similarly
herein copied, thus
Art. 814. The preterition of one or all of the forced heirs in the direct line, whether living at the time of the execution of the will or born after the death
of the testator, shall void the institution of heir; but the legacies and betterments4 shall be valid, in so far as they are not inofficious. ...
A comprehensive understanding of the term preterition employed in the law becomes a necessity. On this point Manresa comments:

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La pretericion consiste en omitar al heredero en el testamento. O no se le nombra siquiera o aun nombrandole como padre, hijo, etc., no se le
instituya heredero ni se le deshereda expresamente ni se le asigna parte alguna de los bienes, resultando privado de un modo tacito de su derecho
a legitima.
Para que exista pretericion, con arreglo al articulo 814, basta que en el testamento omita el testador a uno cualquiera de aquellos a quienes por su
muerte corresponda la herencia forzosa.
Se necesita, pues, a) Que la omision se refiera a un heredero forzoso. b) Que la omision sea completa; que el heredero forzoso nada reciba en el
testamento.
It may now appear trite bat nonetheless helpful in giving us a clear perspective of the problem before us, to have on hand a clear-cut definition of
the word annul:
To "annul" means to abrogate, to make void ... In re Morrow's Estate, 54 A. 342, 343, 204 Pa. 484.6
The word "annul" as used in statute requiring court to annul alimony provisions of divorce decree upon wife's remarriage means to reduce to
nothing; to annihilate; obliterate; blot out; to make void or of no effect; to nullify; to abolish. N.J.S.A. 2:50 38 (now N.J.S. 2A:34-35). Madden vs.
Madden, 40 A. 2d 611, 614, 136 N..J Eq. 132.7
ANNUL. To reduce to nothing; annihilate; obliterate; to make void or of no effect; to nullify; to abolish; to do away with. Ex parte Mitchell, 123 W. Va.
283, 14 S.E. 2d. 771, 774.8
And now, back to the facts and the law. The deceased Rosario Nuguid left no descendants, legitimate or illegitimate. But she left forced heirs in the
direct ascending line her parents, now oppositors Felix Nuguid and Paz Salonga Nuguid. And, the will completely omits both of them: They thus
received nothing by the testament; tacitly, they were deprived of their legitime; neither were they expressly disinherited. This is a clear case of
preterition. Such preterition in the words of Manresa "anulara siempre la institucion de heredero, dando caracter absoluto a este ordenamiento
referring to the mandate of Article 814, now 854 of the Civil Code.9 The one-sentence will here institutes petitioner as the sole, universal heir
nothing more. No specific legacies or bequests are therein provided for. It is in this posture that we say that the nullity is complete. Perforce, Rosario
Nuguid died intestate. Says Manresa:
En cuanto a la institucion de heredero, se anula. Lo que se anula deja de existir, en todo o en parte? No se aade limitacion alguna, como en el
articulo 851, en el que se expresa que se anulara la institucion de heredero en cuanto prejudique a la legitima del deseheredado Debe, pues,
entenderse que la anulacion es completa o total, y que este articulo como especial en el caso que le motiva rige con preferencia al 817. 10
The same view is expressed by Sanchez Roman:
La consecuencia de la anulacion o nulidad de la institucion de heredero por pretericion de uno, varios o todos los forzosos en linea recta, es la
apertura de la sucesion intestada total o parcial. Sera total, cuando el testador que comete la pretericion, hubiese dispuesto de todos los bienes por
titulo universal de herencia en favor de los herederos instituidos, cuya institucion se anula, porque asi lo exige la generalidad del precepto legal del
art. 814, al determinar, como efecto de la pretericion, el de que "anulara la institucion de heredero." ... 11
Really, as we analyze the word annul employed in the statute, there is no escaping the conclusion that the universal institution of petitioner to the
entire inheritance results in totally abrogating the will. Because, the nullification of such institution of universal heir without any other testamentary
disposition in the will amounts to a declaration that nothing at all was written. Carefully worded and in clear terms, Article 854 offers no leeway for
inferential interpretation. Giving it an expansive meaning will tear up by the roots the fabric of the statute. On this point, Sanchez Roman cites the
"Memoria annual del Tribunal Supreme, correspondiente a 1908", which in our opinion expresses the rule of interpretation, viz:
... El art. 814, que preceptua en tales casos de pretericion la nulidad de la institucion de heredero, no consiente interpretacion alguna favorable a la
persona instituida en el sentido antes expuesto aun cuando parezca, y en algun caso pudiera ser, mas o menos equitativa, porque una nulidad no
significa en Derecho sino la suposicion de que el hecho o el acto no se ha realizado, debiendo por lo tanto procederse sobre tal base o supuesto, y
consiguientemente, en un testamento donde falte la institucion, es obligado llamar a los herederos forzosos en todo caso, como habria que llamar
a los de otra clase, cuando el testador no hubiese distribudo todos sus bienes en legados, siendo tanto mas obligada esta consecuencia legal
cuanto que, en materia de testamentos, sabido es, segun tiene declarado la jurisprudencia, con repeticion, que no basta que sea conocida la
voluntad de quien testa si esta voluntad no aparece en la forma y en las condiciones que la ley ha exigido para que sea valido y eficaz, por lo que
constituiria una interpretacion arbitraria, dentro del derecho positivo, reputar como legatario a un heredero cuya institucion fuese anulada con
pretexto de que esto se acomodaba mejor a la voluntad del testador, pues aun cuando asi fuese, sera esto razon para modificar la ley, pero no
autoriza a una interpretacion contraria a sus terminos y a los principios que informan la testamentifaccion, pues no porque parezca mejor una cosa
en el terreno del Derecho constituyente, hay razon para convereste juicio en regla de interpretacion, desvirtuando y anulando por este
procedimiento lo que el legislador quiere establecer. 12
3. We should not be led astray by the statement in Article 854 that, annullment notwithstanding, "the devises and legacies shall be valid insofar as
they are not inofficious". Legacies and devises merit consideration only when they are so expressly given as such in a will. Nothing in Article 854
suggests that the mere institution of a universal heir in a will void because of preterition would give the heir so instituted a share in the
inheritance. As to him, the will is inexistent. There must be, in addition to such institution, a testamentary disposition granting him bequests or
legacies apart and separate from the nullified institution of heir. Sanchez Roman, speaking of the two component parts of Article 814, now 854,
states that preterition annuls the institution of the heir "totalmente por la pretericion"; but added (in reference to legacies and bequests) "pero
subsistiendo ... todas aquellas otras disposiciones que no se refieren a la institucion de heredero ... . 13 As Manresa puts it, annulment throws open
to intestate succession the entire inheritance including "la porcion libre (que) no hubiese dispuesto en virtud de legado, mejora o donacion. 14
As aforesaid, there is no other provision in the will before us except the institution of petitioner as universal heir. That institution, by itself, is null and
void. And, intestate succession ensues.
4. Petitioner's mainstay is that the present is "a case of ineffective disinheritance rather than one of preterition". 15 From this, petitioner draws the
conclusion that Article 854 "does not apply to the case at bar". This argument fails to appreciate the distinction between pretention and
disinheritance.
Preterition "consists in the omission in the testator's will of the forced heirs or anyone of them, either because they are not mentioned therein, or,
though mentioned, they are neither instituted as heirs nor are expressly disinherited." 16 Disinheritance, in turn, "is a testamentary disposition
depriving any compulsory heir of his share in the legitime for a cause authorized by law. " 17 In Manresa's own words: "La privacion expresa de la
legitima constituye la desheredacion. La privacion tacita de la misma se denomina pretericion." 18 Sanchez Roman emphasizes the distinction by
stating that disinheritance "es siempre voluntaria"; preterition, upon the other hand, is presumed to be "involuntaria". 19 Express as disinheritance
should be, the same must be supported by a legal cause specified in the will itself. 20

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The will here does not explicitly disinherit the testatrix's parents, the forced heirs. It simply omits their names altogether. Said will rather than be
labeled ineffective disinheritance is clearly one in which the said forced heirs suffer from preterition.
On top of this is the fact that the effects flowing from preterition are totally different from those of disinheritance. Preterition under Article 854 of the
Civil Code, we repeat, "shall annul the institution of heir". This annulment is in toto, unless in the will there are, in addition, testamentary dispositions
in the form of devises or legacies. In ineffective disinheritance under Article 918 of the same Code, such disinheritance shall also "annul the
institution of heirs", put only "insofar as it may prejudice the person disinherited", which last phrase was omitted in the case of preterition. 21 Better
stated yet, in disinheritance the nullity is limited to that portion of the estate of which the disinherited heirs have been illegally deprived. Manresa's
expressive language, in commenting on the rights of the preterited heirs in the case of preterition on the one hand and legal disinheritance on the
other, runs thus: "Preteridos, adquiren el derecho a todo; desheredados, solo les corresponde un tercio o dos tercios, 22 el caso. 23
5. Petitioner insists that the compulsory heirs ineffectively disinherited are entitled to receive their legitimes, but that the institution of heir "is not
invalidated," although the inheritance of the heir so instituted is reduced to the extent of said legitimes. 24
This is best answered by a reference to the opinion of Mr. Chief Justice Moran in the Neri case heretofore cited, viz:
But the theory is advanced that the bequest made by universal title in favor of the children by the second marriage should be treated as legado and
mejora and, accordingly, it must not be entirely annulled but merely reduced. This theory, if adopted, will result in a complete abrogation of Articles
814 and 851 of the Civil Code. If every case of institution of heirs may be made to fall into the concept of legacies and betterments reducing the
bequest accordingly, then the provisions of Articles 814 and 851 regarding total or partial nullity of the institution, would. be absolutely meaningless
and will never have any application at all. And the remaining provisions contained in said article concerning the reduction of inofficious legacies or
betterments would be a surplusage because they would be absorbed by Article 817. Thus, instead of construing, we would be destroying integral
provisions of the Civil Code.
The destructive effect of the theory thus advanced is due mainly to a failure to distinguish institution of heirs from legacies and betterments, and a
general from a special provision. With reference to article 814, which is the only provision material to the disposition of this case, it must be
observed that the institution of heirs is therein dealt with as a thing separate and distinct from legacies or betterments. And they are separate and
distinct not only because they are distinctly and separately treated in said article but because they are in themselves different. Institution of heirs is
a bequest by universal title of property that is undetermined. Legacy refers to specific property bequeathed by a particular or special title. ... But
again an institution of heirs cannot be taken as a legacy. 25
The disputed order, we observe, declares the will in question "a complete nullity". Article 854 of the Civil Code in turn merely nullifies "the institution
of heir". Considering, however, that the will before us solely provides for the institution of petitioner as universal heir, and nothing more, the result is
the same. The entire will is null.
Upon the view we take of this case, the order of November 8, 1963 under review is hereby affirmed. No costs allowed. So ordered.

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G.R. No. L-56340

June 24, 1983

SPOUSES ALVARO PASTOR, JR. and MA. ELENA ACHAVAL DE PASTOR, petitioners,
vs.
THE COURT OF APPEALS, JUAN Y. REYES, JUDGE OF BRANCH I, COURT OF FIRST INSTANCE OF CEBU and LEWELLYN BARLITO
QUEMADA, respondents.
Pelaez, Pelaez, & Pelaez Law Office for petitioners.
Ceniza, Rama & Associates for private respondents.

PLANA, J.:
I.

FACTS:

This is a case of hereditary succession.


Alvaro Pastor, Sr. (PASTOR, SR.), a Spanish subject, died in Cebu City on June 5, 1966, survived by his Spanish wife Sofia Bossio (who also died
on October 21, 1966), their two legitimate children Alvaro Pastor, Jr. (PASTOR, JR.) and Sofia Pastor de Midgely (SOFIA), and an illegitimate child,
not natural, by the name of Lewellyn Barlito Quemada QUEMADA PASTOR, JR. is a Philippine citizen, having been naturalized in 1936. SOFIA is a
Spanish subject. QUEMADA is a Filipino by his mother's citizenship.
On November 13, 1970, QUEMADA filed a petition for the probate and allowance of an alleged holographic will of PASTOR, SR. with the Court of
First Instance of Cebu, Branch I (PROBATE COURT), docketed as SP No. 3128-R. The will contained only one testamentary disposition: a legacy
in favor of QUEMADA consisting of 30% of PASTOR, SR.'s 42% share in the operation by Atlas Consolidated Mining and Development Corporation
(ATLAS) of some mining claims in Pina-Barot, Cebu.
On November 21, 1970, the PROBATE COURT, upon motion of QUEMADA and after an ex parte hearing, appointed him special administrator of
the entire estate of PASTOR, SR., whether or not covered or affected by the holographic will. He assumed office as such on December 4, 1970
after filing a bond of P 5,000.00.
On December 7, 1970, QUEMADA as special administrator, instituted against PASTOR, JR. and his wife an action for reconveyance of alleged
properties of the estate, which included the properties subject of the legacy and which were in the names of the spouses PASTOR, JR. and his wife,
Maria Elena Achaval de Pastor, who claimed to be the owners thereof in their own rights, and not by inheritance. The action, docketed as Civil Case
No. 274-R, was filed with the Court of First Instance of Cebu, Branch IX.
On February 2, 1971, PASTOR, JR. and his sister SOFIA filed their opposition to the petition for probate and the order appointing QUEMADA as
special administrator.
On December 5, 1972, the PROBATE COURT issued an order allowing the will to probate. Appealed to the Court of Appeals in CA-G.R. No. 52961R, the order was affirmed in a decision dated May 9, 1977. On petition for review, the Supreme Court in G.R. No. L-46645 dismissed the petition in
a minute resolution dated November 1, 1977 and remanded the same to the PROBATE COURT after denying reconsideration on January 11, 1978.
For two years after remand of the case to the PROBATE COURT, QUEMADA filed pleading after pleading asking for payment of his legacy and
seizure of the properties subject of said legacy. PASTOR, JR. and SOFIA opposed these pleadings on the ground of pendency of the reconveyance
suit with another branch of the Cebu Court of First Instance. All pleadings remained unacted upon by the PROBATE COURT.
On March 5, 1980, the PROBATE COURT set the hearing on the intrinsic validity of the will for March 25, 1980, but upon objection of PASTOR, JR.
and SOFIA on the e ground of pendency of the reconveyance suit, no hearing was held on March 25. Instead, the PROBATE COURT required the
parties to submit their respective position papers as to how much inheritance QUEMADA was entitled to receive under the wig. Pursuant thereto,
PASTOR. JR. and SOFIA submitted their Memorandum of authorities dated April 10, which in effect showed that determination of how much
QUEMADA should receive was still premature. QUEMADA submitted his Position paper dated April 20, 1980. ATLAS, upon order of the Court,
submitted a sworn statement of royalties paid to the Pastor Group of tsn from June 1966 (when Pastor, Sr. died) to February 1980. The statement
revealed that of the mining claims being operated by ATLAS, 60% pertained to the Pastor Group distributed as follows:
1.

A. Pastor, Jr. ...................................40.5%

2.

E. Pelaez, Sr. ...................................15.0%

3.

B. Quemada .......................................4.5%

On August 20, 1980, while the reconveyance suit was still being litigated in Branch IX of the Court of First Instance of Cebu, the PROBATE COURT
issued the now assailed Order of Execution and Garnishment, resolving the question of ownership of the royalties payable by ATLAS and ruling in
effect that the legacy to QUEMADA was not inofficious. [There was absolutely no statement or claim in the Order that the Probate Order of
December 5, 1972 had previously resolved the issue of ownership of the mining rights of royalties thereon, nor the intrinsic validity of the
holographic will.]
The order of August 20, 1980 found that as per the holographic will and a written acknowledgment of PASTOR, JR. dated June 17, 1962, of the
above 60% interest in the mining claims belonging to the Pastor Group, 42% belonged to PASTOR, SR. and only 33% belonged to PASTOR, JR.
The remaining 25% belonged to E. Pelaez, also of the Pastor Group. The PROBATE COURT thus directed ATLAS to remit directly to QUEMADA
the 42% royalties due decedent's estate, of which QUEMADA was authorized to retain 75% for himself as legatee and to deposit 25% with a
reputable banking institution for payment of the estate taxes and other obligations of the estate. The 33% share of PASTOR, JR. and/or his
assignees was ordered garnished to answer for the accumulated legacy of QUEMADA from the time of PASTOR, SR.'s death, which amounted to
over two million pesos.
The order being "immediately executory", QUEMADA succeeded in obtaining a Writ of Execution and Garnishment on September 4, 1980, and in
serving the same on ATLAS on the same day. Notified of the Order on September 6, 1980, the oppositors sought reconsideration thereof on the
same date primarily on the ground that the PROBATE COURT gravely abused its discretion when it resolved the question of ownership of the
royalties and ordered the payment of QUEMADA's legacy after prematurely passing upon the intrinsic validity of the will. In the meantime, the

Succession 77
PROBATE COURT ordered suspension of payment of all royalties due PASTOR, JR. and/or his assignees until after resolution of oppositors'
motion for reconsideration.
Before the Motion for Reconsideration could be resolved, however, PASTOR, JR., this time joined by his wife Ma. ELENA ACHAVAL DE PASTOR,
filed with the Court of Appeals a Petition for certiorari and Prohibition with a prayer for writ of preliminary injunction (CA-G.R. No. SP- 11373-R).
They assailed the Order dated August 20, 1980 and the writ of execution and garnishment issued pursuant thereto. The petition was denied on
November 18, 1980 on the grounds (1) that its filing was premature because the Motion for Reconsideration of the questioned Order was still
pending determination by the PROBATE COURT; and (2) that although "the rule that a motion for reconsideration is prerequisite for an action for
certiorari is never an absolute rule," the Order assailed is "legally valid. "
On December 9, 1980, PASTOR, JR. and his wife moved for reconsideration of the Court of Appeal's decision of November 18, 1980, calling the
attention of the appellate court to another order of the Probate Court dated November 11, 1980 (i.e., while their petition for certiorari was pending
decision in the appellate court), by which the oppositors' motion for reconsideration of the Probate Court's Order of August 20, 1980 was denied.
[The November 11 Order declared that the questions of intrinsic validity of the will and of ownership over the mining claims (not the royalties alone)
had been finally adjudicated by the final and executory Order of December 5, 1972, as affirmed by the Court of Appeals and the Supreme Court,
thereby rendering moot and academic the suit for reconveyance then pending in the Court of First Instance of Cebu, Branch IX. It clarified that only
the 33% share of PASTOR, JR. in the royalties (less than 7.5% share which he had assigned to QUEMADA before PASTOR, SR. died) was to be
garnished and that as regards PASTOR, SR.'s 42% share, what was ordered was just the transfer of its possession to the custody of the PROBATE
COURT through the special administrator. Further, the Order granted QUEMADA 6% interest on his unpaid legacy from August 1980 until fully paid.]
Nonetheless, the Court of Appeals denied reconsideration.
Hence, this Petition for Review by certiorari with prayer for a writ of pre y injunction, assailing the decision of the Court of Appeals dated November
18, 1980 as well as the orders of the Probate Court dated August 20, 1980, November 11, 1980 and December 17, 1980, Med by petitioners on
March 26, 1981, followed by a Supplemental Petition with Urgent Prayer for Restraining Order.
In April 1981, the Court (First Division) issued a writ of preliminary injunction, the lifting of which was denied in the Resolution of the same Division
dated October 18, 1982, although the bond of petitioners was increased from P50,000.00 to P100,000.00.
Between December 21, 1981 and October 12, 1982, private respondent filed seven successive motions for early resolution. Five of these motions
expressly prayed for the resolution of the question as to whether or not the petition should be given due course.
On October 18, 1982, the Court (First Division) adopted a resolution stating that "the petition in fact and in effect was given due course when this
case was heard on the merits on September 7, (should be October 21, 1981) and concise memoranda in amplification of their oral arguments on
the merits of the case were filed by the parties pursuant to the resolution of October 21, 1981 . . . " and denied in a resolution dated December 13,
1982, private respondent's "Omnibus motion to set aside resolution dated October 18, 1982 and to submit the matter of due course to the present
membership of the Division; and to reassign the case to another ponente."
Upon Motion for Reconsideration of the October 18, 1982 and December 13, 1982 Resolutions, the Court en banc resolved to CONFIRM the
questioned resolutions insofar as hey resolved that the petition in fact and in effect had been given due course.
II.

ISSUES:

Assailed by the petitioners in these proceedings is the validity of the Order of execution and garnishment dated August 20, 1980 as well as the
Orders subsequently issued allegedly to implement the Probate Order of December 5, 1972, to wit: the Order of November 11, 1980 declaring that
the Probate Order of 1972 indeed resolved the issues of ownership and intrinsic validity of the will, and reiterating the Order of Execution dated
August 20, 1980; and the Order of December 17, 1980 reducing to P2,251,516.74 the amount payable to QUEMADA representing the royalties he
should have received from the death of PASTOR, SR. in 1966 up to February 1980.
The Probate Order itself, insofar as it merely allowed the holographic will in probate, is not questioned. But petitioners denounce the Probate Court
for having acted beyond its jurisdiction or with grave abuse of discretion when it issued the assailed Orders. Their argument runs this way: Before
the provisions of the holographic win can be implemented, the questions of ownership of the mining properties and the intrinsic validity of the
holographic will must first be resolved with finality. Now, contrary to the position taken by the Probate Court in 1980 i.e., almost eight years after
the probate of the will in 1972 the Probate Order did not resolve the two said issues. Therefore, the Probate Order could not have resolved and
actually did not decide QUEMADA's entitlement to the legacy. This being so, the Orders for the payment of the legacy in alleged implementation of
the Probate Order of 1972 are unwarranted for lack of basis.
Closely related to the foregoing is the issue raised by QUEMADA The Probate Order of 1972 having become final and executory, how can its
implementation (payment of legacy) be restrained? Of course, the question assumes that QUEMADA's entitlement to the legacy was finally
adjudged in the Probate Order.
On the merits, therefore, the basic issue is whether the Probate Order of December 5, 1972 resolved with finality the questions of ownership and
intrinsic validity. A negative finding will necessarily render moot and academic the other issues raised by the parties, such as the jurisdiction of the
Probate Court to conclusively resolve title to property, and the constitutionality and repercussions of a ruling that the mining properties in dispute,
although in the name of PASTOR, JR. and his wife, really belonged to the decedent despite the latter's constitutional disqualification as an alien.
On the procedural aspect, placed in issue is the propriety of certiorari as a means to assail the validity of the order of execution and the
implementing writ.
III.

DISCUSSION:

1.

Issue of Ownership

(a)
In a special proceeding for the probate of a will, the issue by and large is restricted to the extrinsic validity of the will, i.e., whether the
testator, being of sound mind, freely executed the will in accordance with the formalities prescribed by law. (Rules of Court, Rule 75, Section 1; Rule
76, Section 9.) As a rule, the question of ownership is an extraneous matter which the Probate Court cannot resolve with finality. Thus, for the
purpose of determining whether a certain property should or should not be included in the inventory of estate properties, the Probate Court may
pass upon the title thereto, but such determination is provisional, not conclusive, and is subject to the final decision in a separate action to resolve
title. [3 Moran, Comments on the Rules of Court (1980 ed.), p. 458; Valero Vda. de Rodriguez vs. Court of Appeals, 91 SCRA 540.]
(b)
The rule is that execution of a judgment must conform to that decreed in the dispositive part of the decision. (Philippine-American
Insurance Co. vs. Honorable Flores, 97 SCRA 811.) However, in case of ambiguity or uncertainty, the body of the decision may be scanned for

Succession 78
guidance in construing the judgment. (Heirs of Presto vs. Galang, 78 SCRA 534; Fabular vs. Court of Appeals, 119 SCRA 329; Robles vs. Timario.
107 Phil. 809.)
The Order sought to be executed by the assailed Order of execution is the Probate Order of December 5, 1972 which allegedly resolved the
question of ownership of the disputed mining properties. The said Probate Order enumerated the issues before the Probate Court, thus:
Unmistakably, there are three aspects in these proceedings: (1) the probate of the holographic will (2) the intestate estate aspect; and (3) the
administration proceedings for the purported estate of the decedent in the Philippines.
In its broad and total perspective the whole proceedings are being impugned by the oppositors on jurisdictional grounds, i.e., that the fact of the
decedent's residence and existence of properties in the Philippines have not been established.
Specifically placed in issue with respect to the probate proceedings are: (a) whether or not the holographic will (Exhibit "J") has lost its efficacy as
the last will and testament upon the death of Alvaro Pastor, Sr. on June 5, 1966, in Cebu City, Philippines; (b) Whether or not the said will has been
executed with all the formalities required by law; and (c) Did the late presentation of the holographic will affect the validity of the same?
Issues In the Administration Proceedings are as follows: (1) Was the ex- parte appointment of the petitioner as special administrator valid and
proper? (2) Is there any indispensable necessity for the estate of the decedent to be placed under administration? (3) Whether or not petition is
qualified to be a special administrator of the estate; and (4) Whether or not the properties listed in the inventory (submitted by the special
administrator but not approved by the Probate Court) are to be excluded.
Then came what purports to be the dispositive portion:
Upon the foregoing premises, this Court rules on and resolves some of the problems and issues presented in these proceedings, as follows:
(a)
The Court has acquired jurisdiction over the probate proceedings as it hereby allows and approves the so-called holographic will of
testator Alvaro Pastor, Sr., executed on July 31, 1961 with respect to its extrinsic validity, the same having been duly authenticated pursuant to the
requisites or solemnities prescribed by law. Let, therefore, a certificate of its allowance be prepared by the Branch Clerk of this Court to be signed
by this Presiding Judge, and attested by the seal of the Court, and thereafter attached to the will, and the will and certificate filed and recorded by
the clerk. Let attested copies of the will and of the certificate of allowance thereof be sent to Atlas Consolidated Mining & Development Corporation,
Goodrich Bldg., Cebu City, and the Register of Deeds of Cebu or of Toledo City, as the case may be, for recording.
(b)
There was a delay in the granting of the letters testamentary or of administration for as a matter of fact, no regular executor and/or
administrator has been appointed up to this time and - the appointment of a special administrator was, and still is, justified under the circumstances
to take possession and charge of the estate of the deceased in the Philippines (particularly in Cebu) until the problems causing the delay are
decided and the regular executor and/or administrator appointed.
(c)
There is a necessity and propriety of a special administrator and later on an executor and/or administrator in these proceedings, in spite
of this Court's declaration that the oppositors are the forced heirs and the petitioner is merely vested with the character of a voluntary heir to the
extent of the bounty given to him (under) the will insofar as the same will not prejudice the legitimes of the oppositor for the following reasons:
1.

To submit a complete inventory of the estate of the decedent-testator Alvaro Pastor, Sr.

2.

To administer and to continue to put to prolific utilization of the properties of the decedent;

3.
To keep and maintain the houses and other structures and belonging to the estate, since the forced heirs are residing in Spain, and
prepare them for delivery to the heirs in good order after partition and when directed by the Court, but only after the payment of estate and
inheritance taxes;
(d)
Subject to the outcome of the suit for reconveyance of ownership and possession of real and personal properties in Civil Case No. 274-T
before Branch IX of the Court of First Instance of Cebu, the intestate estate administration aspect must proceed, unless, however, it is duly proven
by the oppositors that debts of the decedent have already been paid, that there had been an extrajudicial partition or summary one between the
forced heirs, that the legacy to be given and delivered to the petitioner does not exceed the free portion of the estate of the testator, that the
respective shares of the forced heirs have been fairly apportioned, distributed and delivered to the two forced heirs of Alvaro Pastor, Sr., after
deducting the property willed to the petitioner, and the estate and inheritance taxes have already been paid to the Government thru the Bureau of
Internal Revenue.
The suitability and propriety of allowing petitioner to remain as special administrator or administrator of the other properties of the estate of the
decedent, which properties are not directly or indirectly affected by the provisions of the holographic will (such as bank deposits, land in Mactan
etc.), will be resolved in another order as separate incident, considering that this order should have been properly issued solely as a resolution on
the issue of whether or not to allow and approve the aforestated will. (Emphasis supplied.)
Nowhere in the dispositive portion is there a declaration of ownership of specific properties. On the contrary, it is manifest therein that ownership
was not resolved. For it confined itself to the question of extrinsic validity of the win, and the need for and propriety of appointing a special
administrator. Thus it allowed and approved the holographic win "with respect to its extrinsic validity, the same having been duly authenticated
pursuant to the requisites or solemnities prescribed by law." It declared that the intestate estate administration aspect must proceed " subject to the
outcome of the suit for reconveyance of ownership and possession of real and personal properties in Civil Case 274-T before Branch IX of the CFI
of Cebu." [Parenthetically, although the statement refers only to the "intestate" aspect, it defies understanding how ownership by the estate of some
properties could be deemed finally resolved for purposes of testate administration, but not so for intestate purposes. Can the estate be the owner of
a property for testate but not for intestate purposes?] Then again, the Probate Order (while indeed it does not direct the implementation of the
legacy) conditionally stated that the intestate administration aspect must proceed "unless . . . it is proven . . . that the legacy to be given and
delivered to the petitioner does not exceed the free portion of the estate of the testator," which clearly implies that the issue of impairment of legitime
(an aspect of intrinsic validity) was in fact not resolved. Finally, the Probate Order did not rule on the propriety of allowing QUEMADA to remain as
special administrator of estate properties not covered by the holographic will, "considering that this (Probate) Order should have been properly
issued solely as a resolution on the issue of whether or not to allow and approve the aforestated will. "
(c)
That the Probate Order did not resolve the question of ownership of the properties listed in the estate inventory was appropriate,
considering that the issue of ownership was the very subject of controversy in the reconveyance suit that was still pending in Branch IX of the Court
of First Instance of Cebu.
(d)
What, therefore, the Court of Appeals and, in effect, the Supreme Court affirmed en toto when they reviewed the Probable Order were
only the matters properly adjudged in the said Order.

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(e)
In an attempt to justify the issuance of the Order of execution dated August 20, 1980, the Probate Court in its Order of November 11,
1980 explained that the basis for its conclusion that the question of ownership had been formally resolved by the Probate Order of 1972 are the
findings in the latter Order that (1) during the lifetime of the decedent, he was receiving royalties from ATLAS; (2) he had resided in the Philippines
since pre-war days and was engaged in the mine prospecting business since 1937 particularly in the City of Toledo; and (3) PASTOR, JR. was only
acting as dummy for his father because the latter was a Spaniard.
Based on the premises laid, the conclusion is obviously far-fetched.
(f)
It was, therefore, error for the assailed implementing Orders to conclude that the Probate Order adjudged with finality the question of
ownership of the mining properties and royalties, and that, premised on this conclusion, the dispositive portion of the said Probate Order directed
the special administrator to pay the legacy in dispute.
2.

Issue of Intrinsic Validity of the Holographic Will -

(a)
When PASTOR, SR. died in 1966, he was survived by his wife, aside from his two legitimate children and one illegitimate son. There is
therefore a need to liquidate the conjugal partnership and set apart the share of PASTOR, SR.'s wife in the conjugal partnership preparatory to the
administration and liquidation of the estate of PASTOR, SR. which will include, among others, the determination of the extent of the statutory
usufructuary right of his wife until her death. * When the disputed Probate order was issued on December 5, 1972, there had been no liquidation of
the community properties of PASTOR, SR. and his wife.
(b)
So, also, as of the same date, there had been no prior definitive determination of the assets of the estate of PASTOR, SR. There was an
inventory of his properties presumably prepared by the special administrator, but it does not appear that it was ever the subject of a hearing or that it
was judicially approved. The reconveyance or recovery of properties allegedly owned but not in the name of PASTOR, SR. was still being litigated in
another court.
(c)
There was no appropriate determination, much less payment, of the debts of the decedent and his estate. Indeed, it was only in the
Probate Order of December 5, 1972 where the Probate Court ordered that... a notice be issued and published pursuant to the provisions of Rule 86 of the Rules of Court, requiring all persons having money claims against
the decedent to file them in the office of the Branch Clerk of this Court."
(d)

Nor had the estate tax been determined and paid, or at least provided for, as of December 5, 1972.

(e)

The net assets of the estate not having been determined, the legitime of the forced heirs in concrete figures could not be ascertained.

(f)
All the foregoing deficiencies considered, it was not possible to determine whether the legacy of QUEMADA - a fixed share in a specific
property rather than an aliquot part of the entire net estate of the deceased - would produce an impairment of the legitime of the compulsory heirs.
(g)
Finally, there actually was no determination of the intrinsic validity of the will in other respects. It was obviously for this reason that as late
as March 5, 1980 - more than 7 years after the Probate Order was issued the Probate Court scheduled on March 25, 1980 a hearing on the intrinsic
validity of the will.
3.

Propriety of certiorari

Private respondent challenges the propriety of certiorari as a means to assail the validity of the disputed Order of execution. He contends that the
error, if any, is one of judgment, not jurisdiction, and properly correctible only by appeal, not certiorari.
Under the circumstances of the case at bar, the challenge must be rejected. Grave abuse of discretion amounting to lack of jurisdiction is much too
evident in the actuations of the probate court to be overlooked or condoned.
(a)
Without a final, authoritative adjudication of the issue as to what properties compose the estate of PASTOR, SR. in the face of conflicting
claims made by heirs and a non-heir (MA. ELENA ACHAVAL DE PASTOR) involving properties not in the name of the decedent, and in the absence
of a resolution on the intrinsic validity of the will here in question, there was no basis for the Probate Court to hold in its Probate Order of 1972,
which it did not, that private respondent is entitled to the payment of the questioned legacy. Therefore, the Order of Execution of August 20, 1980
and the subsequent implementing orders for the payment of QUEMADA's legacy, in alleged implementation of the dispositive part of the Probate
Order of December 5, 1972, must fall for lack of basis.
(b)
The ordered payment of legacy would be violative of the rule requiring prior liquidation of the estate of the deceased, i.e., the
determination of the assets of the estate and payment of all debts and expenses, before apportionment and distribution of the residue among the
heirs and legatees. (Bernardo vs. Court of Appeals, 7 SCRA 367.)
(c)
Neither has the estate tax been paid on the estate of PASTOR, SR. Payment therefore of the legacy to QUEMADA would collide with the
provision of the National Internal Revenue Code requiring payment of estate tax before delivery to any beneficiary of his distributive share of the
estate (Section 107 [c])
(d)
reads:

The assailed order of execution was unauthorized, having been issued purportedly under Rule 88, Section 6 of the Rules of Court which

Sec. 6. Court to fix contributive shares where devisees, legatees, or heirs have been in possession. Where devisees, legatees, or heirs have
entered into possession of portions of the estate before the debts and expenses have been settled and paid and have become liable to contribute
for the payment of such debts and expenses, the court having jurisdiction of the estate may, by order for that purpose, after hearing, settle the
amount of their several liabilities, and order how much and in what manner each person shall contribute, and may issue execution as circumstances
require.
The above provision clearly authorizes execution to enforce payment of debts of estate. A legacy is not a debt of the estate; indeed, legatees are
among those against whom execution is authorized to be issued.
... there is merit in the petitioners' contention that the probate court generally cannot issue a writ of execution. It is not supposed to issue a writ of
execution because its orders usually refer to the adjudication of claims against the estate which the executor or administrator may satisfy without
the necessity of resorting to a writ of execution. The probate court, as such, does not render any judgment enforceable by execution.

Succession 80
The circumstances that the Rules of Court expressly specifies that the probate court may issue execution (a) to satisfy (debts of the estate out of)
the contributive shares of devisees, legatees and heirs in possession of the decedent's assets (Sec. 6. Rule 88), (b) to enforce payment of the
expenses of partition (Sec. 3, Rule 90), and (c) to satisfy the costs when a person is cited for examination in probate proceedings (Sec. 13, Rule
142) may mean, under the rule of inclusion unius est exclusion alterius, that those are the only instances when it can issue a writ of execution. (Vda.
de Valera vs. Ofilada, 59 SCRA 96, 108.)
(d)
It is within a court's competence to order the execution of a final judgment; but to order the execution of a final order (which is not even
meant to be executed) by reading into it terms that are not there and in utter disregard of existing rules and law, is manifest grave abuse of
discretion tantamount to lack of jurisdiction. Consequently, the rule that certiorari may not be invoked to defeat the right of a prevailing party to the
execution of a valid and final judgment, is inapplicable. For when an order of execution is issued with grave abuse of discretion or is at variance with
the judgment sought to be enforced (PVTA vs. Honorable Gonzales, 92 SCRA 172), certiorari will lie to abate the order of execution.
(e)
Aside from the propriety of resorting to certiorari to assail an order of execution which varies the terms of the judgment sought to be
executed or does not find support in the dispositive part of the latter, there are circumstances in the instant case which justify the remedy applied
for.
Petitioner MA. ELENA ACHAVAL DE PASTOR, wife of PASTOR, JR., is the holder in her own right of three mining claims which are one of the
objects of conflicting claims of ownership. She is not an heir of PASTOR, SR. and was not a party to the probate proceedings. Therefore, she could
not appeal from the Order of execution issued by the Probate Court. On the other hand, after the issuance of the execution order, the urgency of the
relief she and her co-petitioner husband seek in the petition for certiorari states against requiring her to go through the cumbersome procedure of
asking for leave to intervene in the probate proceedings to enable her, if leave is granted, to appeal from the challenged order of execution which
has ordered the immediate transfer and/or garnishment of the royalties derived from mineral properties of which she is the duly registered owner
and/or grantee together with her husband. She could not have intervened before the issuance of the assailed orders because she had no valid
ground to intervene. The matter of ownership over the properties subject of the execution was then still being litigated in another court in a
reconveyance suit filed by the special administrator of the estate of PASTOR, SR.
Likewise, at the time petitioner PASTOR, JR. Med the petition for certiorari with the Court of Appeals, appeal was not available to him since his
motion for reconsideration of the execution order was still pending resolution by the Probate Court. But in the face of actual garnishment of their
major source of income, petitioners could no longer wait for the resolution of their motion for reconsideration. They needed prompt relief from the
injurious effects of the execution order. Under the circumstances, recourse to certiorari was the feasible remedy.
WHEREFORE, the decision of the Court of Appeals in CA G.R. No. SP-11373-R is reversed. The Order of execution issued by the probate Court
dated August 20, 1980, as well as all the Orders issued subsequent thereto in alleged implementation of the Probate Order dated December 5,
1972, particularly the Orders dated November 11, 1980 and December 17, 1980, are hereby set aside; and this case is remanded to the appropriate
Regional Trial Court for proper proceedings, subject to the judgment to be rendered in Civil Case No. 274-R.
SO ORDERED.

Succession 81
[G.R. No. 78778 : December 3, 1990.]
191 SCRA 814
LEONIDA CORONADO, FELIX BUENO, MELANIA RETIZOS, BERNARDINO BUENASEDA and JOVITA MONTEFALCON, Petitioners, vs. THE
COURT OF APPEALS and JUANA BUENO ALBOVIAS, Respondents.

DECISION

PARAS, J.:

This is a petition for review on certiorari seeking to reverse the decision* of the respondent appellate court dated March 3, 1987 CA-G.R. CV No.
06911 entitled "Juana (Bueno) Albovias et al., v. Leonida Coronado, et al.," affirming the decision of the lower court, the decretal portion of which
reads:: nad
"WHEREFORE, premises considered, judgment is hereby rendered:
1. Declaring Leonida Coronado to have no title or interest over the property in question, hence, has no authority to dispose of the same in favor of
her co-defendants;
2. Declaring the sales executed by Coronado and subsequent transactions involving the same property null and void ab initio;
3. Declaring the plaintiff to be the true and legal owner of the subject parcel of land;
4. Ordering the defendants to vacate the subject premises and to surrender possession thereof unto the plaintiff;
5. Ordering the defendants to jointly and severally pay unto the plaintiff the sum of P2,000.00 as attorney's fees and P10,000.00 as moral and
exemplary damages.
Costs against the defendants." (Rollo, p. 17)
As found by the respondent appellate court, the property subject of this case is a parcel of land situated in Nagcarlan, Laguna, containing 277
square meters, more particularly described as follows:: nad
"A parcel of land situated in the Poblacion, Municipality of Nagcarlan, province of Laguna. Bounded on the North, by property of Epifania Irlandez
(formerly Bonifacio Formentera); on the East, by that of Julio Lopez; on the South, by that of Dalmacio Monterola (formerly Domingo Bueno); and
on the West, by C. Lirio Street. Containing an area of two hundred seventy seven (277) square meters, more or less. Assessed at P3,320.00 under
tax declaration No. 241." (Ibid., p. 15)
Said parcel of land is being contested by Juana Albovias, herein private respondent, on the one hand, and Leonida-Coronado, Felix Bueno, Melania
Retizos, Bernardino Buenseda and Jovita Montefalcon, herein petitioners, on the other hand.
Juana Albovias (JUANA, for brevity) claims that the property in question is a portion of a bigger lot referred to as Parcel G in the last will and
testament executed in 1918 by Melecio Artiaga, grandfather of JUANA. This bigger lot was inherited under that will by JUANA, her brother Domingo
Bueno, and two other grandchildren, namely Bonifacio and Herminigildo, both surnamed Formentera. Parcel G is described as follows:
"Isang lagay na lupa na ang bahagi ay walang tanim na halaman at ang bahagi naman ay may tanim na saguing, tumatayo sa gawin Canloran ng
Calle Avenida Rizal nitong Nagcarlan, at humahangan sa Ibaba; sa ari cong Testador; sa Silangan, sa cay Enrique Jovellano; sa Ilaya, sa namatay
na Perfecto Nanagas, at sa Canloran, tubig na pinamamagatang San Cido." (Ibid., p. 16)
JUANA further claims that sometime in 1925 or 1926, C. Lirio Street was created by the Municipality of Nagcarla traversing said Parcel G and thus
dividing it into two portions, one on the west of C. Lirio St. and the other to the east of said street. Parcel G was divided by the heirs in the following
manner; the land was divided into two portions, the northern portion of which was adjudicated in favor of the Formenteras and the southern portion
was given to JUANA and Doming Bueno. The southern portion in turn was partitioned between JUANA and Domingo Bueno, the former getting the
northern part adjoining the lot of the Formenteras, and the latter the southern part which adjoins the lot of Perfecto Nanagas (not owned by
Dalmacio Monterola). The part allocated to Domingo was later sold by him to Dalmacio Monterola, owner of the adjoining property (Ibid.).: nad
Moreover, JUANA claims that her property was included together with the two parcels of land owned by Dalmacio Monterola, which were sold by
Monterola's successor-in-interest Leonida Coronado (now married to Felix Bueno) to Melania Retizos on April 18, 1970. Melania Retizos in turn sold
the lots, including that one being claimed by JUANA, to the spouse Bernardino Buenaseda and Jovita Montefalcon, now the present possessors
thereof, sometime in 1974 (Ibid., pp. 16-17).
On the other hand, Leonida Coronado and her co-petitioners (CORONADO, for brevity) claim that the property in question was bequeathed to
Leonida Coronado under a Will executed by Dr. Dalmacio Monterola, who was allegedly in possession thereof even before the outbreak of World
War II (Ibid., p. 107).
Parenthetically, said will was probated under Sp. Proc. No. SC-283, entitled "Testate Estate of the Deceased Monterola Leonida F. Coronado,
petitioner (Ibid., p. 105). JUANA, together with her husband, opposed the said probate. Despite their opposition, however, the Will was allowed by
the then Court of First Instance of Laguna, Sta. Cruz Branch (Ibid., p. 106). On appeal, said decision was affirmed by the Court of Appeals in CAG.R. No. 40353, entitled "Leonida F. Coronado, petitioner-appellee v. Heirs of Dr. Dalmacio Monterola, oppositors-appellants" (Ibid.). It is not
apparent, however, from the record whether or not said decision has already become final and executory.

Succession 82
As a result of the conflicting claims over the property in question, JUANA filed an action for quieting of title, declaratory relief and damages against
CORONADO in the Regional Trial Court of the Fourth Judicial Region, Branch XXVI, Sta. Cruz, Laguna, docketed as Civil Case No. 7345 (Ibid., p.
4).
As adverted to above (first par.), the lower court rendered judgment in favor of JUANA.
Not satisfied with the decision of the lower court, CORONADO elevated the case to the Court of Appeals, which affirmed the decision appealed
from (Ibid., p. 20). Hence, this petition.:-cralaw
CORONADO raised the following assigned errors:
I
THE RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN ARRIVING AT A CONCLUSION WHICH IS CONTRARY TO THE FACTS AND
CIRCUMSTANCES OF THE CASE AND IN NOT APPLYING THE APPLICABLE PROVISION OF LAW AND JURISPRUDENCE LAID DOWN BY
THIS HONORABLE COURT. (Ibid., p. 108)
II
THERE IS NO EVIDENCE PRESENTED TO SHOW THAT THE LAND IN QUESTION CLAIMED BY PRIVATE RESPONDENT IS THE SAME
PROPERTY ADJUDICATED TO JUANA BUENO UNDER THE WILL OF THE DECEASED MELECIO ARTIAGA; NEITHER IS THERE EVIDENCE
TO SHOW THAT SAID WILL HAD BEEN PROBATED. (Ibid., p. 114)
III
PRIVATE RESPONDENT IS IN ESTOPPEL FROM QUESTIONING THE OWNERSHIP OF THE PETITIONER OVER THE LAND IN QUESTION
HAVING FAILED TO RAISE THE SAME IN THE ESTATE PROCEEDING IN THE TRIAL COURT AND EVEN ON APPEAL. (Ibid., p. 119)
IV
THE RESPONDENT COURT OF APPEALS MISAPPRECIATED THE EVIDENCE SUBMITTED AND FACTS ADMITTED ON RECORD. IT
THEREFORE COMMITTED GRAVE AND SERIOUS ERROR. (Ibid., p. 121)
As required by this Court, CORONADO filed their memorandum on May 8, 1989 (Ibid., p. 105); while that of JUANA was filed on October 13, 1989
(Ibid., p. 139).
The petition is devoid of merit.
Under the first assigned error, CORONADO assails the respondent appellate court's finding that Dr. Dalmacio Monterola could not have acquired
the subject land by acquisitive prescription. Citing Art. 1116 of the New Civil Code in relation to Section 41 of the Code of Civil Procedure,
CORONADO claims that JUANA had already foreclosed whatever right or legal title she had over the property in question, the reason being that
Monterola's continued possession of the said property for over ten years since 1934 ripened into full and absolute ownership (Ibid., p. 112).
The argument has no factual basis.
Time and again, it has been ruled that the jurisdiction of the Supreme Court in cases brought to it from the Court of Appeals is limited to reviewing
and revising the errors of law imputed to it, its findings of fact being conclusive. It is not the function of the Supreme Court to analyze or weigh such
evidence all over again, its jurisdiction being limited to reviewing errors of law that might have been committed. Absent, therefore, a showing that
the findings complained of are totally devoid of support in the record, so that they are so glaringly erroneous as to constitute serious abuse of
discretion, such findings must stand, for the Supreme Court is not expected or required to examine or contrast the oral and documentary evidence
submitted by the parties (Andres v. Manufacturers Hanover & Trust Corporation, G.R. 82670, September 15, 1989). There are no convincing
reasons in the instant case to depart from this rule.
As found by the respondent appellate court, Monterola never claimed ownership over the property in question. As a matter of fact, one of the deeds
of donation executed by Monterola in favor of Leonida Coronado acknowledged that the boundary owner on the property conveyed to her is
JUANA. This is precisely the reason why during the lifetime of the late Dalmacio Monterola, JUANA had always been allowed to enter and reap the
benefits or produce of the said property. It was only after the death of said Monterola in 1970 that Leonida Coronado prohibited JUANA from
entering it (Ibid., p. 18).:- nad
Even assuming arguendo that Monterola was indeed in continued possession of the said property for over ten years since 1934, said possession is
insufficient to constitute the fundamental basis of the prescription. Possession, under the Civil Code, to constitute the foundation of a prescriptive
right, must be possession under claim of title (en concepto de dueno), or to use the common law equivalent of the term, it must be adverse. Acts of
possessory character performed by one who holds by mere tolerance of the owner are clearly not en concepto de dueno, and such possessory
acts, no matter how long so continued, do not start the running of the period of prescription (Manila Electric Company v. Intermediate Appellate
Court, G.R. 71393, June 28, 1989).
In this case, Monterola, as found by the respondent appellate court and the lower court, never categorically claimed ownership over the property in
question, much less his possession thereof en concepto de dueno. Accordingly, he could not have acquired said property by acquisitive
prescription.
Anent the contention of CORONADO that Leonida Coronado could tack her possession to that of Monterola, so that claim of legal title or ownership
over the subject property, even against the petitioners, the Buenasesas, who are purchasers for value and in good faith, is a foregone or settled
issue, the respondent appellate court aptly answered the same in this wise:
"It follows that Leonida Coronado could not have derived ownership of the land in question from her predecessor-in-interest Dalmacio Monterola,
whether by prescription or by some other title. Neither can she claim acquisitive prescription in her own name. It was only in 1970 after the death of
Dalmacio Monterola that she asserted her claim of ownership adverse to that of plaintiff-appellee. Having knowledge that she had no title over the
land in question, she must be deemed to have claimed it in bad faith. Under Article 1137 of the Civil Code, ownership and other real rights over
immovables prescribe through uninterrupted adverse possession thereof for thirty years, without need of title or good faith. And even granting that
she had no notice or defect in her title and was, therefore, in good faith, a period of ten years of possession is necessary for her to acquire the land
by ordinary prescription. (Article 1134, Civil Code). But she can claim to have possessed the land only in 1968, the year the Monterola lots were
donated to her. The period, however, was interrupted in 1975, or 7 years after, when the complaint below was filed." (Rollo, pp. 18-19)

Succession 83
Under the second assigned error, CORONADO claims that the will under which JUANA inherited the property in question from her grandfather,
Melecio Artiaga, was never probated; hence, said transfer for ownership was ineffectual considering that under Rule 75, Sec. 1 of the Rules of
Court (formerly Sec. 125 of Act No. 190, no will shall pass either real or personal property unless it is proved and allowed in the proper court (Ibid.,
p. 115).
The contention is without merit.chanrobles virtual law library
While it is true that no will shall pass either real or personal property unless it is proved and allowed in the proper court (Art. 838, Civil Code), the
questioned will, however, may be sustained on the basis of Article 1056 of the Civil Code of 1899, which was in force at the time said document was
executed by Melecio Artiaga in 1918. The said article read as follows:
"Article 1056. If the testator should make a partition of his properties by an act inter vivos, or by will, such partition shall stand in so far as it does not
prejudice the legitime of the forced heir." (Mang-Oy v. Court of Appeals, 144 SCRA 33 [1986])
In this case, nowhere was it alleged nor shown that Leonida Coronado is entitled to legitime from Melecio Artiaga. The truth of the matter is that the
record is bereft of any showing that Leonida Coronado and the late Melecio Artiaga were related to each other.
Under the third assigned error, CORONADO claims that JUANA is estopped from questioning the ownership of Leonida Coronado over the land in
question having failed to raise the same in the estate proceedings in the trial court and even on appeal (Rollo, p. 119).
The contention is likewise without merit.
Normally, the probate of a will does not look into its intrinsic validity. The authentication of a will decides no other questions than such as touch upon
the capacity of the testator and the compliance with those requisites or solemnities which the law prescribes for the validity of the wills. It does not
determine nor even by implication prejudge the validity or efficiency of the provisions of the will, thus may be impugned as being vicious or null,
notwithstanding its authentication. The question relating to these points remain entirely unaffected, and may be raised even after the will has been
authenticated (Maninang, et al., v. Court of Appeals, 114 SCRA 473 [1982]). Consequently, JUANA is not estopped from questioning the ownership
of the property in question, notwithstanding her having objected to the probate of the will executed by Monterola under which Leonida Coronado is
claiming title to the said property.:-cralaw
Under the fourth assigned error, it is alleged by CORONADO that JUANA's petition is weak for want of factual and legal support; the weakness of
JUANA's position lies in the fact that she did not only fail to identify the subject land, but also failed to explain the discrepancy in the boundary of the
property she is claiming to be hers (Rollo, p. 125).
The contention is unavailing.
The fact that JUANA failed to identify the property in question and to explain the discrepancy in the boundary of said property, assuming they are
true, is immaterial, in view of the findings of the lower court as to the identity of the property in question. Moreover, the lower court found sufficient
evidence to support the conclusion that the property in question is the same property adjudicated to JUANA under the will of Melecio Artiaga, and
that CORONADO has no right whatsoever to said property (Ibid., p. 20). Such findings are conclusive upon this Court (Reynolds Philippine
Corporation v. Court of Appeals, 169 SCRA 220 [1989]).
PREMISES CONSIDERED, the decision appealed from is hereby AFFIRMED.
SO ORDERED.

Succession 84
G.R. No. L-54919

May 30, 1984

POLLY CAYETANO, petitioner,


vs.
HON. TOMAS T. LEONIDAS, in his capacity as the Presiding Judge of Branch XXXVIII, Court of First Instance of Manila and NENITA CAMPOS
PAGUIA, respondents.
Ermelo P. Guzman for petitioner.
Armando Z. Gonzales for private respondent.

GUTIERREZ, JR., J.:


This is a petition for review on certiorari, seeking to annul the order of the respondent judge of the Court of First Instance of Manila, Branch XXXVIII,
which admitted to and allowed the probate of the last will and testament of Adoracion C. Campos, after an ex-parte presentation of evidence by
herein private respondent.
On January 31, 1977, Adoracion C. Campos died, leaving her father, petitioner Hermogenes Campos and her sisters, private respondent Nenita C.
Paguia, Remedios C. Lopez and Marieta C. Medina as the surviving heirs. As Hermogenes Campos was the only compulsory heir, he executed an
Affidavit of Adjudication under Rule 74, Section I of the Rules of Court whereby he adjudicated unto himself the ownership of the entire estate of the
deceased Adoracion Campos.
Eleven months after, on November 25, 1977, Nenita C. Paguia filed a petition for the reprobate of a will of the deceased, Adoracion Campos, which
was allegedly executed in the United States and for her appointment as administratrix of the estate of the deceased testatrix.
In her petition, Nenita alleged that the testatrix was an American citizen at the time of her death and was a permanent resident of 4633 Ditman
Street, Philadelphia, Pennsylvania, U.S.A.; that the testatrix died in Manila on January 31, 1977 while temporarily residing with her sister at 2167
Leveriza, Malate, Manila; that during her lifetime, the testatrix made her last wig and testament on July 10, 1975, according to the laws of
Pennsylvania, U.S.A., nominating Wilfredo Barzaga of New Jersey as executor; that after the testatrix death, her last will and testament was
presented, probated, allowed, and registered with the Registry of Wins at the County of Philadelphia, U.S.A., that Clement L. McLaughlin, the
administrator who was appointed after Dr. Barzaga had declined and waived his appointment as executor in favor of the former, is also a resident of
Philadelphia, U.S.A., and that therefore, there is an urgent need for the appointment of an administratrix to administer and eventually distribute the
properties of the estate located in the Philippines.
On January 11, 1978, an opposition to the reprobate of the will was filed by herein petitioner alleging among other things, that he has every reason
to believe that the will in question is a forgery; that the intrinsic provisions of the will are null and void; and that even if pertinent American laws on
intrinsic provisions are invoked, the same could not apply inasmuch as they would work injustice and injury to him.
On December 1, 1978, however, the petitioner through his counsel, Atty. Franco Loyola, filed a Motion to Dismiss Opposition (With Waiver of Rights
or Interests) stating that he "has been able to verify the veracity thereof (of the will) and now confirms the same to be truly the probated will of his
daughter Adoracion." Hence, an ex-parte presentation of evidence for the reprobate of the questioned will was made.
On January 10, 1979, the respondent judge issued an order, to wit:
At the hearing, it has been satisfactorily established that Adoracion C. Campos, in her lifetime, was a citizen of the United States of America with a
permanent residence at 4633 Ditman Street, Philadelphia, PA 19124, (Exhibit D) that when alive, Adoracion C. Campos executed a Last Will and
Testament in the county of Philadelphia, Pennsylvania, U.S.A., according to the laws thereat (Exhibits E-3 to E-3-b) that while in temporary sojourn
in the Philippines, Adoracion C. Campos died in the City of Manila (Exhibit C) leaving property both in the Philippines and in the United States of
America; that the Last Will and Testament of the late Adoracion C. Campos was admitted and granted probate by the Orphan's Court Division of the
Court of Common Pleas, the probate court of the Commonwealth of Pennsylvania, County of Philadelphia, U.S.A., and letters of administration
were issued in favor of Clement J. McLaughlin all in accordance with the laws of the said foreign country on procedure and allowance of wills
(Exhibits E to E-10); and that the petitioner is not suffering from any disqualification which would render her unfit as administratrix of the estate in
the Philippines of the late Adoracion C. Campos.
WHEREFORE, the Last Will and Testament of the late Adoracion C. Campos is hereby admitted to and allowed probate in the Philippines, and
Nenita Campos Paguia is hereby appointed Administratrix of the estate of said decedent; let Letters of Administration with the Will annexed issue in
favor of said Administratrix upon her filing of a bond in the amount of P5,000.00 conditioned under the provisions of Section I, Rule 81 of the Rules
of Court.
Another manifestation was filed by the petitioner on April 14, 1979, confirming the withdrawal of his opposition, acknowledging the same to be his
voluntary act and deed.
On May 25, 1979, Hermogenes Campos filed a petition for relief, praying that the order allowing the will be set aside on the ground that the
withdrawal of his opposition to the same was secured through fraudulent means. According to him, the "Motion to Dismiss Opposition" was inserted
among the papers which he signed in connection with two Deeds of Conditional Sales which he executed with the Construction and Development
Corporation of the Philippines (CDCP). He also alleged that the lawyer who filed the withdrawal of the opposition was not his counsel-of-record in
the special proceedings case.
The petition for relief was set for hearing but the petitioner failed to appear. He made several motions for postponement until the hearing was set on
May 29, 1980.
On May 18, 1980, petitioner filed another motion entitled "Motion to Vacate and/or Set Aside the Order of January 10, 1979, and/or dismiss the case
for lack of jurisdiction. In this motion, the notice of hearing provided:
Please include this motion in your calendar for hearing on May 29, 1980 at 8:30 in the morning for submission for reconsideration and resolution of
the Honorable Court. Until this Motion is resolved, may I also request for the future setting of the case for hearing on the Oppositor's motion to set
aside previously filed.
The hearing of May 29, 1980 was re-set by the court for June 19, 1980. When the case was called for hearing on this date, the counsel for
petitioner tried to argue his motion to vacate instead of adducing evidence in support of the petition for relief. Thus, the respondent judge issued an

Succession 85
order dismissing the petition for relief for failure to present evidence in support thereof. Petitioner filed a motion for reconsideration but the same
was denied. In the same order, respondent judge also denied the motion to vacate for lack of merit. Hence, this petition.
Meanwhile, on June 6,1982, petitioner Hermogenes Campos died and left a will, which, incidentally has been questioned by the respondent, his
children and forced heirs as, on its face, patently null and void, and a fabrication, appointing Polly Cayetano as the executrix of his last will and
testament. Cayetano, therefore, filed a motion to substitute herself as petitioner in the instant case which was granted by the court on September
13, 1982.
A motion to dismiss the petition on the ground that the rights of the petitioner Hermogenes Campos merged upon his death with the rights of the
respondent and her sisters, only remaining children and forced heirs was denied on September 12, 1983.
Petitioner Cayetano persists with the allegations that the respondent judge acted without or in excess of his jurisdiction when:
1)
He ruled the petitioner lost his standing in court deprived the Right to Notice (sic) upon the filing of the Motion to Dismiss opposition with
waiver of rights or interests against the estate of deceased Adoracion C. Campos, thus, paving the way for the hearing ex-parte of the petition for
the probate of decedent will.
2)
He ruled that petitioner can waive, renounce or repudiate (not made in a public or authenticated instrument), or by way of a petition
presented to the court but by way of a motion presented prior to an order for the distribution of the estate-the law especially providing that
repudiation of an inheritance must be presented, within 30 days after it has issued an order for the distribution of the estate in accordance with the
rules of Court.
3)
He ruled that the right of a forced heir to his legitime can be divested by a decree admitting a will to probate in which no provision is made
for the forced heir in complete disregard of Law of Succession
4)
He denied petitioner's petition for Relief on the ground that no evidence was adduced to support the Petition for Relief when no Notice nor
hearing was set to afford petitioner to prove the merit of his petition a denial of the due process and a grave abuse of discretion amounting to
lack of jurisdiction.
5)
He acquired no jurisdiction over the testate case, the fact that the Testator at the time of death was a usual resident of Dasmarias,
Cavite, consequently Cavite Court of First Instance has exclusive jurisdiction over the case (De Borja vs. Tan, G.R. No. L-7792, July 1955).
The first two issues raised by the petitioner are anchored on the allegation that the respondent judge acted with grave abuse of discretion when he
allowed the withdrawal of the petitioner's opposition to the reprobate of the will.
We find no grave abuse of discretion on the part of the respondent judge. No proof was adduced to support petitioner's contention that the motion to
withdraw was secured through fraudulent means and that Atty. Franco Loyola was not his counsel of record. The records show that after the firing of
the contested motion, the petitioner at a later date, filed a manifestation wherein he confirmed that the Motion to Dismiss Opposition was his
voluntary act and deed. Moreover, at the time the motion was filed, the petitioner's former counsel, Atty. Jose P. Lagrosa had long withdrawn from
the case and had been substituted by Atty. Franco Loyola who in turn filed the motion. The present petitioner cannot, therefore, maintain that the old
man's attorney of record was Atty. Lagrosa at the time of filing the motion. Since the withdrawal was in order, the respondent judge acted correctly in
hearing the probate of the will ex-parte, there being no other opposition to the same.
The third issue raised deals with the validity of the provisions of the will. As a general rule, the probate court's authority is limited only to the extrinsic
validity of the will, the due execution thereof, the testatrix's testamentary capacity and the compliance with the requisites or solemnities prescribed
by law. The intrinsic validity of the will normally comes only after the court has declared that the will has been duly authenticated. However, 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.
(Maninang vs. Court of Appeals, 114 SCRA 478).
In the case at bar, the petitioner maintains that since the respondent judge allowed the reprobate of Adoracion's will, Hermogenes C. Campos was
divested of his legitime which was reserved by the law for him.
This contention is without merit.
Although on its face, the will appeared to have preterited the petitioner and thus, the respondent judge should have denied its reprobate outright,
the private respondents have sufficiently established that Adoracion was, at the time of her death, an American citizen and a permanent resident of
Philadelphia, Pennsylvania, U.S.A. Therefore, under Article 16 par. (2) and 1039 of the Civil Code which respectively provide:
Art. 16 par. (2).
xxx

xxx

xxx

However, intestate and testamentary successions, both with respect to the order of succession and to the amount of successional rights and to the
intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever
may be the nature of the property and regardless of the country wherein said property may be found.
Art. 1039.
Capacity to succeed is governed by the law of the nation of the decedent.
the law which governs Adoracion Campo's will is the law of Pennsylvania, U.S.A., which is the national law of the decedent. Although the parties
admit that the Pennsylvania law does not provide for legitimes and that all the estate may be given away by the testatrix to a complete stranger, the
petitioner argues that such law should not apply because it would be contrary to the sound and established public policy and would run counter to
the specific provisions of Philippine Law.
It is a settled rule that as regards the intrinsic validity of the provisions of the will, as provided for by Article 16(2) and 1039 of the Civil Code, the
national law of the decedent must apply. This was squarely applied in the case of Bellis v. Bellis (20 SCRA 358) wherein we ruled:
It is therefore evident that whatever public policy or good customs may be involved in our system of legitimes, Congress has not intended to extend
the same to the succession of foreign nationals. For it has specifically chosen to leave, inter alia, the amount of successional rights, to the
decedent's national law. Specific provisions must prevail over general ones.

Succession 86
xxx

xxx

xxx

The parties admit that the decedent, Amos G. Bellis, was a citizen of the State of Texas, U.S.A., and under the law of Texas, there are no forced
heirs or legitimes. Accordingly, since the intrinsic validity of the provision of the will and the amount of successional rights are to be determined
under Texas law, the Philippine Law on legitimes cannot be applied to the testacy of Amos G. Bellis.
As regards the alleged absence of notice of hearing for the petition for relief, the records wig bear the fact that what was repeatedly scheduled for
hearing on separate dates until June 19, 1980 was the petitioner's petition for relief and not his motion to vacate the order of January 10, 1979.
There is no reason why the petitioner should have been led to believe otherwise. The court even admonished the petitioner's failing to adduce
evidence when his petition for relief was repeatedly set for hearing. There was no denial of due process. The fact that he requested "for the future
setting of the case for hearing . . ." did not mean that at the next hearing, the motion to vacate would be heard and given preference in lieu of the
petition for relief. Furthermore, such request should be embodied in a motion and not in a mere notice of hearing.
Finally, we find the contention of the petition as to the issue of jurisdiction utterly devoid of merit. Under Rule 73, Section 1, of the Rules of Court, it
is provided that:
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 resided at the time of his death, and if he is an inhabitant of a foreign country, the Court of First Instance of any province in which he had
estate. The court first taking cognizance of the settlement of the estate of a decedent, shall exercise jurisdiction to the exclusion of all other courts.
The jurisdiction assumed by a court, so far as it depends on the place of residence of the decedent, or of the location of his estate, shall not be
contested in a suit or proceeding, except in an appeal from that court, in the original case, or when the want of jurisdiction appears on the record.
Therefore, the settlement of the estate of Adoracion Campos was correctly filed with the Court of First Instance of Manila where she had an estate
since it was alleged and proven that Adoracion at the time of her death was a citizen and permanent resident of Pennsylvania, United States of
America and not a "usual resident of Cavite" as alleged by the petitioner. Moreover, petitioner is now estopped from questioning the jurisdiction of
the probate court in the petition for relief. It is a settled rule that a party cannot invoke the jurisdiction of a court to secure affirmative relief, against
his opponent and after failing to obtain such relief, repudiate or question that same jurisdiction. (See Saulog Transit, Inc. vs. Hon. Manuel Lazaro, et
al., G. R. No. 63 284, April 4, 1984).
WHEREFORE, the petition for certiorari and prohibition is hereby dismissed for lack of merit.
SO ORDERED.

Succession 87
G.R. No. 83484

February 12, 1990

CELEDONIA SOLIVIO, petitioner,


vs.
THE HONORABLE COURT OF APPEALS and CONCORDIA JAVELLANA VILLANUEVA, respondents.
Rex Suiza Castillon for petitioner.
Salas & Villareal for private respondent.
MEDIALDEA, J.:
This is a petition for review of the decision dated January 26, 1988 of the Court of Appeals in CA GR CV No. 09010 (Concordia Villanueva v.
Celedonia Solivio) affirming the decision of the trial court in Civil Case No. 13207 for partition, reconveyance of ownership and possession and
damages, the dispositive portion of which reads as follows:
WHEREFORE, judgment is hereby rendered for the plaintiff and against defendant:
a)
Ordering that the estate of the late Esteban Javellana, Jr. be divided into two (2) shares: one-half for the plaintiff and one-half for
defendant. From both shares shall be equally deducted the expenses for the burial, mausoleum and related expenditures. Against the share of
defendants shall be charged the expenses for scholarship, awards, donations and the 'Salustia Solivio Vda. de Javellana Memorial Foundation;'
b)
Directing the defendant to submit an inventory of the entire estate property, including but not limited to, specific items already mentioned
in this decision and to render an accounting of the property of the estate, within thirty (30) days from receipt of this judgment; one-half (1/2) of this
produce shall belong to plaintiff;
c)

Ordering defendant to pay plaintiff P5,000.00 as expenses of litigation; P10,000.00 for and as attorney's fees plus costs.

SO ORDERED. (pp. 42-43, Rollo)


This case involves the estate of the late novelist, Esteban Javellana, Jr., author of the first post-war Filipino novel "Without Seeing the Dawn," who
died a bachelor, without descendants, ascendants, brothers, sisters, nephews or nieces. His only surviving relatives are: (1) his maternal aunt,
petitioner Celedonia Solivio, the spinster half-sister of his mother, Salustia Solivio; and (2) the private respondent, Concordia Javellana-Villanueva,
sister of his deceased father, Esteban Javellana, Sr.
He was a posthumous child. His father died barely ten (10) months after his marriage in December, 1916 to Salustia Solivio and four months before
Esteban, Jr. was born.
Salustia and her sister, Celedonia (daughter of Engracio Solivio and his second wife Josefa Fernandez), a teacher in the Iloilo Provincial High
School, brought up Esteban, Jr.
Salustia brought to her marriage paraphernal properties (various parcels of land in Calinog, Iloilo covered by 24 titles) which she had inherited from
her mother, Gregoria Celo, Engracio Solivio's first wife (p. 325, Record), but no conjugal property was acquired during her short-lived marriage to
Esteban, Sr.
On October 11, 1959, Salustia died, leaving all her properties to her only child, Esteban, Jr., including a house and lot in La Paz, Iloilo City, where
she, her son, and her sister lived. In due time, the titles of all these properties were transferred in the name of Esteban, Jr.
During his lifetime, Esteban, Jr. had, more than once, expressed to his aunt Celedonia and some close friends his plan to place his estate in a
foundation to honor his mother and to help poor but deserving students obtain a college education. Unfortunately, he died of a heart attack on
February 26,1977 without having set up the foundation.
Two weeks after his funeral, Concordia and Celedonia talked about what to do with Esteban's properties. Celedonia told Concordia about Esteban's
desire to place his estate in a foundation to be named after his mother, from whom his properties came, for the purpose of helping indigent students
in their schooling. Concordia agreed to carry out the plan of the deceased. This fact was admitted by her in her "Motion to Reopen and/or
Reconsider the Order dated April 3, 1978" which she filed on July 27, 1978 in Special Proceeding No. 2540, where she stated:
4.
That petitioner knew all along the narrated facts in the immediately preceding paragraph [that herein movant is also the relative of the
deceased within the third degree, she being the younger sister of the late Esteban Javellana, father of the decedent herein], because prior to the
filing of the petition they (petitioner Celedonia Solivio and movant Concordia Javellana) have agreed to make the estate of the decedent a
foundation, besides they have closely known each other due to their filiation to the decedent and they have been visiting each other's house which
are not far away for (sic) each other. (p. 234, Record; Emphasis supplied.)
Pursuant to their agreement that Celedonia would take care of the proceedings leading to the formation of the foundation, Celedonia in good faith
and upon the advice of her counsel, filed on March 8, 1977 Spl. Proceeding No. 2540 for her appointment as special administratrix of the estate of
Esteban Javellana, Jr. (Exh. 2). Later, she filed an amended petition (Exh. 5) praying that letters of administration be issued to her; that she be
declared sole heir of the deceased; and that after payment of all claims and rendition of inventory and accounting, the estate be adjudicated to her
(p. 115, Rollo).
After due publication and hearing of her petition, as well as her amended petition, she was declared sole heir of the estate of Esteban Javellana, Jr.
She explained that this was done for three reasons: (1) because the properties of the estate had come from her sister, Salustia Solivio; (2) that she
is the decedent's nearest relative on his mother's side; and (3) with her as sole heir, the disposition of the properties of the estate to fund the
foundation would be facilitated.
On April 3, 1978, the court (Branch II, CFI, now Branch 23, RTC) declared her the sole heir of Esteban, Jr. Thereafter, she sold properties of the
estate to pay the taxes and other obligations of the deceased and proceeded to set up the "SALUSTIA SOLIVIO VDA. DE JAVELLANA
FOUNDATION" which she caused to be registered in the Securities and Exchange Commission on July 17,1981 under Reg. No. 0100027 (p. 98,
Rollo).
Four months later, or on August 7, 1978, Concordia Javellana Villanueva filed a motion for reconsideration of the court's order declaring Celedonia
as "sole heir" of Esteban, Jr., because she too was an heir of the deceased. On October 27, 1978, her motion was denied by the court for tardiness
(pp. 80-81, Record). Instead of appealing the denial, Concordia filed on January 7, 1980 (or one year and two months later), Civil Case No. 13207

Succession 88
in the Regional Trial Court of Iloilo, Branch 26, entitled "Concordia Javellana- Villanueva v. Celedonia Solivio" for partition, recovery of possession,
ownership and damages.
On September 3, 1984, the said trial court rendered judgment in Civil Case No. 13207, in favor of Concordia Javellana-Villanueva.
On Concordia's motion, the trial court ordered the execution of its judgment pending appeal and required Celedonia to submit an inventory and
accounting of the estate. In her motions for reconsideration of those orders, Celedonia averred that the properties of the deceased had already
been transferred to, and were in the possession of, the 'Salustia Solivio Vda. de Javellana Foundation." The trial court denied her motions for
reconsideration.
In the meantime, Celedonia perfected an appeal to the Court of Appeals (CA GR CV No. 09010). On January 26, 1988, the Court of Appeals,
Eleventh Division, rendered judgment affirming the decision of the trial court in toto. Hence, this petition for review wherein she raised the following
legal issues:
1.
whether Branch 26 of the RTC of Iloilo had jurisdiction to entertain Civil Case No. 13207 for partition and recovery of Concordia
Villanueva's share of the estate of Esteban Javellana, Jr. even while the probate proceedings (Spl. Proc. No. 2540) were still pending in Branch 23
of the same court;
2.

whether Concordia Villanueva was prevented from intervening in Spl. Proc. No. 2540 through extrinsic fraud;

3.
whether the decedent's properties were subject to reserva troncal in favor of Celedonia, his relative within the third degree on his mother's
side from whom he had inherited them; and
4.
whether Concordia may recover her share of the estate after she had agreed to place the same in the Salustia Solivio Vda. de Javellana
Foundation, and notwithstanding the fact that conformably with said agreement, the Foundation has been formed and properties of the estate have
already been transferred to it.
I.

The question of jurisdiction

After a careful review of the records, we find merit in the petitioner's contention that the Regional Trial Court, Branch 26, lacked jurisdiction to
entertain Concordia Villanueva's action for partition and recovery of her share of the estate of Esteban Javellana, Jr. while the probate proceedings
(Spl, Proc. No. 2540) for the settlement of said estate are still pending in Branch 23 of the same court, there being as yet no orders for the
submission and approval of the administratix's inventory and accounting, distributing the residue of the estate to the heir, and terminating the
proceedings (p. 31, Record).
It is the order of distribution directing the delivery of the residue of the estate to the persons entitled thereto that brings to a close the intestate
proceedings, puts an end to the administration and thus far relieves the administrator from his duties (Santiesteban v. Santiesteban, 68 Phil. 367,
Philippine Commercial and Industrial Bank v. Escolin, et al., L-27860, March 29, 1974, 56 SCRA 266).
The assailed order of Judge Adil in Spl. Proc. No. 2540 declaring Celedonia as the sole heir of the estate of Esteban Javellana, Jr. did not toll the
end of the proceedings. As a matter of fact, the last paragraph of the order directed the administratrix to "hurry up the settlement of the estate." The
pertinent portions of the order are quoted below:
2.
As regards the second incident [Motion for Declaration of Miss Celedonia Solivio as Sole Heir, dated March 7, 1978], it appears from the
record that despite the notices posted and the publication of these proceedings as required by law, no other heirs came out to interpose any
opposition to the instant proceeding. It further appears that herein Administratrix is the only claimant-heir to the estate of the late Esteban Javellana
who died on February 26, 1977.
During the hearing of the motion for declaration as heir on March 17, 1978, it was established that the late Esteban Javellana died single, without
any known issue, and without any surviving parents. His nearest relative is the herein Administratrix, an elder [sic] sister of his late mother who
reared him and with whom he had always been living with [sic] during his lifetime.
xxx

xxx

xxx

2.
Miss Celedonia Solivio, Administratrix of this estate, is hereby declared as the sole and legal heir of the late Esteban S. Javellana, who
died intestate on February 26, 1977 at La Paz, Iloilo City.
The Administratrix is hereby instructed to hurry up with the settlement of this estate so that it can be terminated. (pp, 14-16, Record)
In view of the pendency of the probate proceedings in Branch 11 of the Court of First Instance (now RTC, Branch 23), Concordia's motion to set
aside the order declaring Celedonia as sole heir of Esteban, and to have herself (Concordia) declared as co-heir and recover her share of the
properties of the deceased, was properly filed by her in Spl. Proc. No. 2540. Her remedy when the court denied her motion, was to elevate the
denial to the Court of Appeals for review on certiorari. However, instead of availing of that remedy, she filed more than one year later, a separate
action for the same purpose in Branch 26 of the court. We hold that the separate action was improperly filed for it is the probate court that has
exclusive jurisdiction to make a just and legal distribution of the estate.
In the interest of orderly procedure and to avoid confusing and conflicting dispositions of a decedent's estate, a court should not interfere with
probate proceedings pending in a co-equal court. Thus, did we rule in Guilas v. Judge of the Court of First Instance of Pampanga, L-26695, January
31, 1972, 43 SCRA 111, 117, where a daughter filed a separate action to annul a project of partition executed between her and her father in the
proceedings for the settlement of the estate of her mother:
The probate court loses jurisdiction of an estate under administration only after the payment of all the debts and the remaining estate delivered to
the heirs entitled to receive the same. The finality of the approval of the project of The probate court, in the exercise of its jurisdiction to make
distribution, has power to determine the proportion or parts to which each distributed is entitled. ... The power to determine the legality or illegality of
the testamentary provision is inherent in the jurisdiction of the court making a just and legal distribution of the inheritance. ... To hold that a separate
and independent action is necessary to that effect, would be contrary to the general tendency of the jurisprudence of avoiding multiplicity of suits;
and is further, expensive, dilatory, and impractical. (Marcelino v. Antonio, 70 Phil. 388)
A judicial declaration that a certain person is the only heir of the decedent is exclusively within the range of the administratrix proceedings and can
not properly be made an independent action. (Litam v. Espiritu, 100 Phil. 364)
A separate action for the declaration of heirs is not proper. (Pimentel v. Palanca, 5 Phil. 436)

Succession 89
partition by itself alone does not terminate the probate proceeding (Timbol v. Cano, 1 SCRA 1271, 1276, L-15445, April 29, 1961; Siguiong v.
Tecson, 89 Phil. pp. 28, 30). As long as the order of the distribution of the estate has not been complied with, the probate proceedings cannot be
deemed closed and terminated Siguiong v. Tecson, supra); because a judicial partition is not final and conclusive and does not prevent the heirs
from bringing an action to obtain his share, provided the prescriptive period therefore has not elapsed (Mari v. Bonilia, 83 Phil. 137). The better
practice, however, for the heir who has not received his share, is to demand his share through a proper motion in the same probate or
administration proceedings, or for reopening of the probate or administrative proceedings if it had already been closed, and not through an
independent action, which would be tried by another court or Judge which may thus reverse a decision or order of the probate or intestate court
already final and executed and re-shuffle properties long ago distributed and disposed of. (Ramos v. Ortuzar, 89 Phil. 730, 741-742; Timbol v. Cano,
supra; Jingco v. Daluz, L-5107, April 24, 1953, 92 Phil. 1082; Roman Catholic v. Agustines, L-14710, March 29, 1960, 107 Phil. 455, 460-461;
Emphasis supplied)
In Litam et al., v. Rivera, 100 Phil. 364, where despite the pendency of the special proceedings for the settlement of the intestate estate of the
deceased Rafael Litam the plaintiffs-appellants filed a civil action in which they claimed that they were the children by a previous marriage of the
deceased to a Chinese woman, hence, entitled to inherit his one-half share of the conjugal properties acquired during his marriage to Marcosa
Rivera, the trial court in the civil case declared that the plaintiffs-appellants were not children of the deceased, that the properties in question were
paraphernal properties of his wife, Marcosa Rivera, and that the latter was his only heir. On appeal to this Court, we ruled that "such declarations
(that Marcosa Rivera was the only heir of the decedent) is improper, in Civil Case No. 2071, it being within the exclusive competence of the court in
Special Proceedings No. 1537, in which it is not as yet, in issue, and, will not be, ordinarily, in issue until the presentation of the project of partition.
(p. 378).
However, in the Guilas case, supra, since the estate proceedings had been closed and terminated for over three years, the action for annulment of
the project of partition was allowed to continue. Considering that in the instant case, the estate proceedings are still pending, but nonetheless,
Concordia had lost her right to have herself declared as co-heir in said proceedings, We have opted likewise to proceed to discuss the merits of her
claim in the interest of justice.
The orders of the Regional Trial Court, Branch 26, in Civil Case No. 13207 setting aside the probate proceedings in Branch 23 (formerly Branch 11)
on the ground of extrinsic fraud, and declaring Concordia Villanueva to be a co-heir of Celedonia to the estate of Esteban, Jr., ordering the partition
of the estate, and requiring the administratrix, Celedonia, to submit an inventory and accounting of the estate, were improper and officious, to say
the least, for these matters he within the exclusive competence of the probate court.
II.

The question of extrinsic fraud

Was Concordia prevented from intervening in the intestate proceedings by extrinsic fraud employed by Celedonia? It is noteworthy that extrinsic
fraud was not alleged in Concordia's original complaint in Civil Case No. 13207. It was only in her amended complaint of March 6, 1980, that
extrinsic fraud was alleged for the first time.
Extrinsic fraud, as a ground for annulment of judgment, is any act or conduct of the prevailing party which prevented a fair submission of the
controversy (Francisco v. David, 38 O.G. 714). A fraud 'which prevents a party from having a trial or presenting all of his case to the court, or one
which operates upon matters pertaining, not to the judgment itself, but to the manner by which such judgment was procured so much so that there
was no fair submission of the controversy. For instance, if through fraudulent machination by one [his adversary], a litigant was induced to withdraw
his defense or was prevented from presenting an available defense or cause of action in the case wherein the judgment was obtained, such that the
aggrieved party was deprived of his day in court through no fault of his own, the equitable relief against such judgment may be availed of. (Yatco v.
Sumagui, 44623-R, July 31, 1971). (cited in Philippine Law Dictionary, 1972 Ed. by Moreno; Varela v. Villanueva, et al., 96 Phil. 248)
A judgment may be annulled on the ground of extrinsic or collateral fraud, as distinguished from intrinsic fraud, which connotes any fraudulent
scheme executed by a prevailing litigant 'outside the trial of a case against the defeated party, or his agents, attorneys or witnesses, whereby said
defeated party is prevented from presenting fully and fairly his side of the case. ... The overriding consideration is that the fraudulent scheme of the
prevailing litigant prevented a party from having his day in court or from presenting his case. The fraud, therefore, is one that affects and goes into
the jurisdiction of the court. (Libudan v. Gil, L-21163, May 17, 1972, 45 SCRA 17, 27-29; Sterling Investment Corp. v. Ruiz, L-30694, October 31,
1969, 30 SCRA 318, 323)
The charge of extrinsic fraud is, however, unwarranted for the following reasons:
1.
Concordia was not unaware of the special proceeding intended to be filed by Celedonia. She admitted in her complaint that she and
Celedonia had agreed that the latter would "initiate the necessary proceeding" and pay the taxes and obligations of the estate. Thus paragraph 6 of
her complaint alleged:
6.
... for the purpose of facilitating the settlement of the estate of the late Esteban Javellana, Jr. at the lowest possible cost and the least
effort, the plaintiff and the defendant agreed that the defendant shall initiate the necessary proceeding, cause the payment of taxes and other
obligations, and to do everything else required by law, and thereafter, secure the partition of the estate between her and the plaintiff, [although
Celedonia denied that they agreed to partition the estate, for their agreement was to place the estate in a foundation.] (p. 2, Record; emphasis
supplied)
Evidently, Concordia was not prevented from intervening in the proceedings. She stayed away by choice. Besides, she knew that the estate came
exclusively from Esteban's mother, Salustia Solivio, and she had agreed with Celedonia to place it in a foundation as the deceased had planned to
do.
2.
The probate proceedings are proceedings in rem. Notice of the time and place of hearing of the petition is required to be published (Sec.
3, Rule 76 in relation to Sec. 3, Rule 79, Rules of Court). Notice of the hearing of Celedonia's original petition was published in the "Visayan
Tribune" on April 25, May 2 and 9, 1977 (Exh 4, p. 197, Record). Similarly, notice of the hearing of her amended petition of May 26, 1977 for the
settlement of the estate was, by order of the court, published in "Bagong Kasanag" (New Light) issues of May 27, June 3 and 10, 1977 (pp. 182305, Record). The publication of the notice of the proceedings was constructive notice to the whole world. Concordia was not deprived of her right
to intervene in the proceedings for she had actual, as well as constructive notice of the same. As pointed out by the probate court in its order of
October 27, 1978:
... . The move of Concordia Javellana, however, was filed about five months after Celedonia Solivio was declared as the sole heir. ... .
Considering that this proceeding is one in rem and had been duly published as required by law, despite which the present movant only came to
court now, then she is guilty of laches for sleeping on her alleged right. (p. 22, Record)
The court noted that Concordia's motion did not comply with the requisites of a petition for relief from judgment nor a motion for new trial.

Succession 90
The rule is stated in 49 Corpus Juris Secundum 8030 as follows:
Where petition was sufficient to invoke statutory jurisdiction of probate court and proceeding was in rem no subsequent errors or irregularities are
available on collateral attack. (Bedwell v. Dean 132 So. 20)
Celedonia's allegation in her petition that she was the sole heir of Esteban within the third degree on his mother's side was not false. Moreover, it
was made in good faith and in the honest belief that because the properties of Esteban had come from his mother, not his father, she, as Esteban's
nearest surviving relative on his mother's side, is the rightful heir to them. It would have been self-defeating and inconsistent with her claim of sole
heirship if she stated in her petition that Concordia was her co-heir. Her omission to so state did not constitute extrinsic fraud.
Failure to disclose to the adversary, or to the court, matters which would defeat one's own claim or defense is not such extrinsic fraud as will justify
or require vacation of the judgment. (49 C.J.S. 489, citing Young v. Young, 2 SE 2d 622; First National Bank & Trust Co. of King City v. Bowman, 15
SW 2d 842; Price v. Smith, 109 SW 2d 1144, 1149)
It should be remembered that a petition for administration of a decedent's estate may be filed by any "interested person" (Sec. 2, Rule 79, Rules of
Court). The filing of Celedonia's petition did not preclude Concordia from filing her own.
III.

On the question of reserva troncal

We find no merit in the petitioner's argument that the estate of the deceased was subject to reserva troncal and that it pertains to her as his only
relative within the third degree on his mother's side. The reserva troncal provision of the Civil Code is found in Article 891 which reads as follows:
ART. 891. The ascendant who inherits from his descendant any property which the latter may have acquired by gratuitous title from another
ascendant, or a brother or sister, is obliged to reserve such property as he may have acquired by operation of law for the benefit of relatives who
are within the third degree and who belong to the line from which said property came.
The persons involved in reserva troncal are:
1.

The person obliged to reserve is the reservor (reservista)the ascendant who inherits by operation of law property from his descendants.

2.
The persons for whom the property is reserved are the reservees (reservatarios)relatives within the third degree counted from the
descendant (propositus), and belonging to the line from which the property came.
3.
The propositusthe descendant who received by gratuitous title and died without issue, making his other ascendant inherit by operation
of law. (p. 692, Civil Law by Padilla, Vol. II, 1956 Ed.)
Clearly, the property of the deceased, Esteban Javellana, Jr., is not reservable property, for Esteban, Jr. was not an ascendant, but the descendant
of his mother, Salustia Solivio, from whom he inherited the properties in question. Therefore, he did not hold his inheritance subject to a reservation
in favor of his aunt, Celedonia Solivio, who is his relative within the third degree on his mother's side. The reserva troncal applies to properties
inherited by an ascendant from a descendant who inherited it from another ascendant or 9 brother or sister. It does not apply to property inherited
by a descendant from his ascendant, the reverse of the situation covered by Article 891.
Since the deceased, Esteban Javellana, Jr., died without descendants, ascendants, illegitimate children, surviving spouse, brothers, sisters,
nephews or nieces, what should apply in the distribution of his estate are Articles 1003 and 1009 of the Civil Code which provide:
ART. 1003.
If there are no descendants, ascendants, illegitimate children, or a surviving spouse, the collateral relatives shall succeed to the
entire estate of the deceased in accordance with the following articles.
ART. 1009.
estate.

Should there be neither brothers nor sisters, nor children of brothers or sisters, the other collateral relatives shall succeed to the

The latter shall succeed without distinction of lines or preference among them by reason of relationship by the whole blood.
Therefore, the Court of Appeals correctly held that:
Both plaintiff-appellee and defendant-appellant being relatives of the decedent within the third degree in the collateral line, each, therefore, shall
succeed to the subject estate 'without distinction of line or preference among them by reason of relationship by the whole blood,' and is entitled onehalf (1/2) share and share alike of the estate. (p. 57, Rollo)
IV.

The question of Concordia's one-half share

However, inasmuch as Concordia had agreed to deliver the estate of the deceased to the foundation in honor of his mother, Salustia Solivio Vda. de
Javellana (from whom the estate came), an agreement which she ratified and confirmed in her "Motion to Reopen and/or Reconsider Order dated
April 3, 1978" which she filed in Spl. Proceeding No. 2540:
4.
That ... prior to the filing of the petition they (petitioner Celedonia Solivio and movant Concordia Javellana) have agreed to make the
estate of the decedent a foundation, besides they have closely known each other due to their filiation to the decedent and they have been visiting
each other's house which are not far away for (sic) each other. (p. 234, Record; Emphasis supplied)
she is bound by that agreement. It is true that by that agreement, she did not waive her inheritance in favor of Celedonia, but she did agree to place
all of Esteban's estate in the "Salustia Solivio Vda. de Javellana Foundation" which Esteban, Jr., during his lifetime, planned to set up to honor his
mother and to finance the education of indigent but deserving students as well.
Her admission may not be taken lightly as the lower court did. Being a judicial admission, it is conclusive and no evidence need be presented to
prove the agreement (Cunanan v. Amparo, 80 Phil. 227; Granada v. Philippine National Bank, L-20745, Sept. 2, 1966, 18 SCRA 1; Sta. Ana v.
Maliwat, L-23023, Aug. 31, 1968, 24 SCRA 1018; People v. Encipido, G.R.70091, Dec. 29, 1986, 146 SCRA 478; and Rodillas v. Sandiganbayan,
G.R. 58652, May 20, 1988, 161 SCRA 347).
The admission was never withdrawn or impugned by Concordia who, significantly, did not even testify in the case, although she could have done so
by deposition if she were supposedly indisposed to attend the trial. Only her husband, Narciso, and son-in-law, Juanito Domin, actively participated

Succession 91
in the trial. Her husband confirmed the agreement between his wife and Celedonia, but he endeavored to dilute it by alleging that his wife did not
intend to give all, but only one-half, of her share to the foundation (p. 323, Record).
The records show that the "Salustia Solivio Vda. de Javellana Foundation" was established and duly registered in the Securities and Exchange
Commission under Reg. No. 0100027 for the following principal purposes:
1.
To provide for the establishment and/or setting up of scholarships for such deserving students as the Board of Trustees of the Foundation
may decide of at least one scholar each to study at West Visayas State College, and the University of the Philippines in the Visayas both located in
Iloilo City.
2.
To provide a scholarship for at least one scholar for St. Clements Redemptorist Community for a deserving student who has the religious
vocation to become a priest.
3.
To foster, develop, and encourage activities that will promote the advancement and enrichment of the various fields of educational
endeavors, especially in literary arts. Scholarships provided for by this foundation may be named after its benevolent benefactors as a token of
gratitude for their contributions.
4.
To direct or undertake surveys and studies in the community to determine community needs and be able to alleviate partially or totally
said needs.
5.
To maintain and provide the necessary activities for the proper care of the Solivio-Javellana mausoleum at Christ the King Memorial Park,
Jaro, Iloilo City, and the Javellana Memorial at the West Visayas State College, as a token of appreciation for the contribution of the estate of the
late Esteban S. Javellana which has made this foundation possible. Also, in perpetuation of his Roman Catholic beliefs and those of his mother,
Gregorian masses or their equivalents will be offered every February and October, and Requiem masses every February 25th and October llth, their
death anniversaries, as part of this provision.
6.
To receive gifts, legacies, donations, contributions, endowments and financial aids or loans from whatever source, to invest and reinvest
the funds, collect the income thereof and pay or apply only the income or such part thereof as shall be determined by the Trustees for such
endeavors as may be necessary to carry out the objectives of the Foundation.
7.
To acquire, purchase, own, hold, operate, develop, lease, mortgage, pledge, exchange, sell, transfer, or otherwise, invest, trade, or deal,
in any manner permitted by law, in real and personal property of every kind and description or any interest herein.
8.
To do and perform all acts and things necessary, suitable or proper for the accomplishments of any of the purposes herein enumerated or
which shall at any time appear conducive to the protection or benefit of the corporation, including the exercise of the powers, authorities and
attributes concerned upon the corporation organized under the laws of the Philippines in general, and upon domestic corporation of like nature in
particular. (pp. 9-10, Rollo)
As alleged without contradiction in the petition' for review:
The Foundation began to function in June, 1982, and three (3) of its eight Esteban Javellana scholars graduated in 1986, one (1) from UPV
graduated Cum Laude and two (2) from WVSU graduated with honors; one was a Cum Laude and the other was a recipient of Lagos Lopez award
for teaching for being the most outstanding student teacher.
The Foundation has four (4) high school scholars in Guiso Barangay High School, the site of which was donated by the Foundation. The School has
been selected as the Pilot Barangay High School for Region VI.
The Foundation has a special scholar, Fr. Elbert Vasquez, who would be ordained this year. He studied at St. Francis Xavier Major Regional
Seminary at Davao City. The Foundation likewise is a member of the Redemptorist Association that gives yearly donations to help poor students
who want to become Redemptorist priests or brothers. It gives yearly awards for Creative writing known as the Esteban Javellana Award.
Further, the Foundation had constructed the Esteban S. Javellana Multi-purpose Center at the West Visayas State University for teachers' and
students' use, and has likewise contributed to religious civic and cultural fund-raising drives, amongst other's. (p. 10, Rollo)
Having agreed to contribute her share of the decedent's estate to the Foundation, Concordia is obligated to honor her commitment as Celedonia
has honored hers.
WHEREFORE, the petition for review is granted. The decision of the trial court and the Court of Appeals are hereby SET ASIDE. Concordia J.
Villanueva is declared an heir of the late Esteban Javellana, Jr. entitled to one-half of his estate. However, comformably with the agreement
between her and her co-heir, Celedonia Solivio, the entire estate of the deceased should be conveyed to the "Salustia Solivio Vda. de Javallana
Foundation," of which both the petitioner and the private respondent shall be trustees, and each shall be entitled to nominate an equal number of
trustees to constitute the Board of Trustees of the Foundation which shall administer the same for the purposes set forth in its charter. The
petitioner, as administratrix of the estate, shall submit to the probate court an inventory and accounting of the estate of the deceased preparatory to
terminating the proceedings therein.
SO ORDERED.

Succession 92
G.R. No. 106720

September 15, 1994

SPOUSES ROBERTO AND THELMA AJERO, petitioners,


vs.
THE COURT OF APPEALS AND CLEMENTE SAND, respondents.
Miguel D. Larida for petitioners.
Montilla Law Office for private respondent.

PUNO, J.:
This is an appeal by certiorari from the Decision of the Court of
Appeals 1 in CA-G.R. CV No. 22840, dated March 30, 1992, the dispositive portion of which reads;
PREMISES CONSIDERED, the questioned decision of November 19, 1988 of the trial court is hereby REVERSED and SET ASIDE, and the petition
for probate is hereby DISMISSED. No costs.
The earlier Decision was rendered by the RTC of Quezon City, Branch 94, 2 in Sp. Proc. No. Q-37171, and the instrument submitted for probate is
the holographic will of the late Annie Sand, who died on November 25, 1982.
In the will, decedent named as devisees, the following: petitioners Roberto and Thelma Ajero, private respondent Clemente Sand, Meriam S. Arong,
Leah Sand, Lilia Sand, Edgar Sand, Fe Sand, Lisa S. Sand, and Dr. Jose Ajero, Sr., and their children.
On January 20, 1983, petitioners instituted Sp. Proc. No. Q-37171, for allowance of decedent's holographic will. They alleged that at the time of its
execution, she was of sound and disposing mind, not acting under duress, fraud or undue influence, and was in every respect capacitated to
dispose of her estate by will.
Private respondent opposed the petition on the grounds that: neither the testament's body nor the signature therein was in decedent's handwriting;
it contained alterations and corrections which were not duly signed by decedent; and, the will was procured by petitioners through improper
pressure and undue influence. The petition was likewise opposed by Dr. Jose Ajero. He contested the disposition in the will of a house and lot
located in Cabadbaran, Agusan Del Norte. He claimed that said property could not be conveyed by decedent in its entirety, as she was not its sole
owner.
Notwithstanding the oppositions, the trial court admitted the decedent's holographic will to probate. It found, inter alia:
Considering then that the probate proceedings herein must decide only the question of identity of the will, its due execution and the testamentary
capacity of the testatrix, this probate court finds no reason at all for the disallowance of the will for its failure to comply with the formalities prescribed
by law nor for lack of testamentary capacity of the testatrix.
For one, no evidence was presented to show that the will in question is different from the will actually executed by the testatrix. The only objections
raised by the oppositors . . . are that the will was not written in the handwriting of the testatrix which properly refers to the question of its due
execution, and not to the question of identity of will. No other will was alleged to have been executed by the testatrix other than the will herein
presented. Hence, in the light of the evidence adduced, the identity of the will presented for probate must be accepted, i.e., the will submitted in
Court must be deemed to be the will actually executed by the testatrix.
xxx

xxx

xxx

While the fact that it was entirely written, dated and signed in the handwriting of the testatrix has been disputed, the petitioners, however, have
satisfactorily shown in Court that the holographic will in question was indeed written entirely, dated and signed in the handwriting of the testatrix.
Three (3) witnesses who have convincingly shown knowledge of the handwriting of the testatrix have been presented and have explicitly and
categorically identified the handwriting with which the holographic will in question was written to be the genuine handwriting and signature of the
testatrix. Given then the aforesaid evidence, the requirement of the law that the holographic will be entirely written, dated and signed in the
handwriting of the testatrix has been complied with.
xxx

xxx

xxx

As to the question of the testamentary capacity of the testratix, (private respondent) Clemente Sand himself has testified in Court that the testatrix
was completely in her sound mind when he visited her during her birthday celebration in 1981, at or around which time the holographic will in
question was executed by the testatrix. To be of sound mind, it is sufficient that the testatrix, at the time of making the will, knew the value of the
estate to be disposed of, the proper object of her bounty, and the character of the testamentary act . . . The will itself shows that the testatrix even
had detailed knowledge of the nature of her estate. She even identified the lot number and square meters of the lots she had conveyed by will. The
objects of her bounty were likewise identified explicitly. And considering that she had even written a nursing book which contained the law and
jurisprudence on will and succession, there is more than sufficient showing that she knows the character of the testamentary act.
In this wise, the question of identity of the will, its due execution and the testamentary capacity of the testatrix has to be resolved in favor of the
allowance of probate of the will submitted herein.
Likewise, no evidence was presented to show sufficient reason for the disallowance of herein holographic will. While it was alleged that the said will
was procured by undue and improper pressure and influence on the part of the beneficiary or of some other person, the evidence adduced have not
shown any instance where improper pressure or influence was exerted on the testatrix. (Private respondent) Clemente Sand has testified that the
testatrix was still alert at the time of the execution of the will, i.e., at or around the time of her birth anniversary celebration in 1981. It was also
established that she is a very intelligent person and has a mind of her own. Her independence of character and to some extent, her sense of
superiority, which has been testified to in Court, all show the unlikelihood of her being unduly influenced or improperly pressured to make the
aforesaid will. It must be noted that the undue influence or improper pressure in question herein only refer to the making of a will and not as to the
specific testamentary provisions therein which is the proper subject of another proceeding. Hence, under the circumstances, this Court cannot find
convincing reason for the disallowance of the will herein.

Succession 93
Considering then that it is a well-established doctrine in the law on succession that in case of doubt, testate succession should be preferred over
intestate succession, and the fact that no convincing grounds were presented and proven for the disallowance of the holographic will of the late
Annie Sand, the aforesaid will submitted herein must be admitted to probate. 3 (Citations omitted.)
On appeal, said Decision was reversed, and the petition for probate of decedent's will was dismissed. The Court of Appeals found that, "the
holographic will fails to meet the requirements for its validity." 4 It held that the decedent did not comply with Articles 813 and 814 of the New Civil
Code, which read, as follows:
Art. 813: When a number of dispositions appearing in a holographic will are signed without being dated, and the last disposition has a signature
and date, such date validates the dispositions preceding it, whatever be the time of prior dispositions.
Art. 814: In case of insertion, cancellation, erasure or alteration in a holographic will, the testator must authenticate the same by his full signature.
It alluded to certain dispositions in the will which were either unsigned and undated, or signed but not dated. It also found that the erasures,
alterations and cancellations made thereon had not been authenticated by decedent.
Thus, this appeal which is impressed with merit.
Section 9, Rule 76 of the Rules of Court provides that will shall be disallowed in any of the following cases:
(a)

If not executed and attested as required by law;

(b)

If the testator was insane, or otherwise mentally incapable to make a will, at the time of its execution;

(c)

If it was executed under duress, or the influence of fear, or threats;

(d)

If it was procured by undue and improper pressure and influence, on the part of the beneficiary, or of some other person for his benefit;

(e)
If the signature of the testator was procured by fraud or trick, and he did not intend that the instrument should be his will at the time of
fixing his signature thereto.
In the same vein, Article 839 of the New Civil Code reads:
Art. 839: The will shall be disallowed in any of the following cases;
(1)

If the formalities required by law have not been complied with;

(2)

If the testator was insane, or otherwise mentally incapable of making a will, at the time of its execution;

(3)

If it was executed through force or under duress, or the influence of fear, or threats;

(4)

If it was procured by undue and improper pressure and influence, on the part of the beneficiary or of some other person;

(5)

If the signature of the testator was procured by fraud;

(6)
thereto.

If the testator acted by mistake or did not intend that the instrument he signed should be his will at the time of affixing his signature

These lists are exclusive; no other grounds can serve to disallow a will. 5 Thus, in a petition to admit a holographic will to probate, the only issues to
be resolved are: (1) whether the instrument submitted is, indeed, the decedent's last will and testament; (2) whether said will was executed in
accordance with the formalities prescribed by law; (3) whether the decedent had the necessary testamentary capacity at the time the will was
executed; and, (4) whether the execution of the will and its signing were the voluntary acts of the decedent. 6
In the case at bench, respondent court held that the holographic will of Anne Sand was not executed in accordance with the formalities prescribed
by law. It held that Articles 813 and 814 of the New Civil Code, ante, were not complied with, hence, it disallowed the probate of said will. This is
erroneous.
We reiterate what we held in Abangan vs. Abangan, 40 Phil. 476, 479 (1919), that:
The object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to avoid substitution of wills and
testaments and to guaranty their truth and authenticity. Therefore, the laws on this subject should be interpreted in such a way as to attain these
primordial ends. But, on the other hand, also one must not lose sight of the fact that it is not the object of the law to restrain and curtail the exercise
of the right to make a will. So when an interpretation already given assures such ends, any other interpretation whatsoever, that adds nothing but
demands more requisites entirely unnecessary, useless and frustrative of the testator's last will, must be disregarded.
For purposes of probating non-holographic wills, these formal solemnities include the subscription, attestation, and acknowledgment requirements
under Articles 805 and 806 of the New Civil Code.
In the case of holographic wills, on the other hand, what assures authenticity is the requirement that they be totally autographic or handwritten by
the testator himself, 7 as provided under Article 810 of the New Civil Code, thus:
A person may execute a holographic will which must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no
other form, and may be made in or out of the Philippines, and need not be witnessed. (Emphasis supplied.)
Failure to strictly observe other formalities will not result in the disallowance of a holographic will that is unquestionably handwritten by the testator.
A reading of Article 813 of the New Civil Code shows that its requirement affects the validity of the dispositions contained in the holographic will, but
not its probate. If the testator fails to sign and date some of the dispositions, the result is that these dispositions cannot be effectuated. Such failure,
however, does not render the whole testament void.
Likewise, a holographic will can still be admitted to probate, notwithstanding non-compliance with the provisions of Article 814. In the case of Kalaw
vs. Relova 132 SCRA 237 242 (1984), this Court held:

Succession 94
Ordinarily, when a number of erasures, corrections, and interlineations made by the testator in a holographic Will have not been noted under his
signature, . . . the Will is not thereby invalidated as a whole, but at most only as respects the particular words erased, corrected or interlined.
Manresa gave an identical commentary when he said "la omission de la salvedad no anula el testamento, segun la regla de jurisprudencia
establecida en la sentencia de 4 de Abril de 1985." 8 (Citations omitted.)
Thus, unless the unauthenticated alterations, cancellations or insertions were made on the date of the holographic will or on testator's signature, 9
their presence does not invalidate the will itself. 10 The lack of authentication will only result in disallowance of such changes.
It is also proper to note that the requirements of authentication of changes and signing and dating of dispositions appear in provisions (Articles 813
and 814) separate from that which provides for the necessary conditions for the validity of the holographic will (Article 810). The distinction can be
traced to Articles 678 and 688 of the Spanish Civil Code, from which the present provisions covering holographic wills are taken. They read as
follows:
Art. 678: A will is called holographic when the testator writes it himself in the form and with the requisites required in Article 688.
Art. 688: Holographic wills may be executed only by persons of full age.
In order that the will be valid it must be drawn on stamped paper corresponding to the year of its execution, written in its entirety by the testator and
signed by him, and must contain a statement of the year, month and day of its execution.
If it should contain any erased, corrected, or interlined words, the testator must identify them over his signature.
Foreigners may execute holographic wills in their own language.
This separation and distinction adds support to the interpretation that only the requirements of Article 810 of the New Civil Code and not those
found in Articles 813 and 814 of the same Code are essential to the probate of a holographic will.
The Court of Appeals further held that decedent Annie Sand could not validly dispose of the house and lot located in Cabadbaran, Agusan del
Norte, in its entirety. This is correct and must be affirmed.
As a general rule, courts in probate proceedings are limited to pass only upon the extrinsic validity of the will sought to be probated. However, in
exceptional instances, courts are not powerless to do what the situation constrains them to do, and pass upon certain provisions of the will. 11 In
the case at bench, decedent herself indubitably stated in her holographic will that the Cabadbaran property is in the name of her late father, John H.
Sand (which led oppositor Dr. Jose Ajero to question her conveyance of the same in its entirety). Thus, as correctly held by respondent court, she
cannot validly dispose of the whole property, which she shares with her father's other heirs.
IN VIEW WHEREOF, the instant petition is GRANTED. The Decision of the Court of Appeals in CA-G.R. CV No. 22840, dated March 30, 1992, is
REVERSED and SET ASIDE, except with respect to the invalidity of the disposition of the entire house and lot in Cabadbaran, Agusan del Norte.
The Decision of the Regional Trial Court of Quezon City, Branch 94 in Sp. Proc. No. Q-37171, dated November 19, 1988, admitting to probate the
holographic will of decedent Annie Sand, is hereby REINSTATED, with the above qualification as regards the Cabadbaran property. No costs.
SO ORDERED.

Succession 95
G.R. No. L-31048

January 20, 1976

LUCENA MAGALLANES, petitioner,


vs.
HON. UNION KAYANAN, Presiding Judge of Branch IV, CFI, Quezon and the HEIRS OF ELIGIO MAGALLANES, respondents.
Abelio M. Marte and Clemente T. Alcala for petitioner.
Eufemio E. de Mesa for private respondents.

MARTIN. J.:
The validity of a summary judgment rendered in the Court of First Instance of Quezon, in Special Proceedings No. 3913, entitled Re: Summary
Settlement of the Estate of Filomena Magallanes, Lucena Magallanes, petitioner, versus Heirs of Eligio Magallanes, oppositors, is the main issue in
this petition for review.
On August 4, 1960, petitioner Lucena Magallanes filed a "Solicitud" praying that Lot No. 2657 covered by Original Certificate of Title No. 1091 and
one-half () of Lot No. 3465 covered by Original Certificate of Title No. 6447, both of the Register of Deeds of Tayabas (Quezon) be partitioned and
distributed among the heirs of the deceased Filomena Magallanes.
On October 31, 1961, private respondents, the Heirs of Eligio Magallanes, namely: Maria San Buenaventura, Godofredo Magallanes and Carmen
Magallanes de Ingente filed their opposition and motion to dismiss the "Solicitud" claiming title and ownership over the parcels of land in question
and raising the issue that the trial court is devoid of jurisdiction to resolve the issues raised in the pleadings.
On July 12, 1968, the private respondents filed a petition for summary judgment on the pleadings praying that their absolute right of ownership over
the properties in question be recognized and confirmed. Petitioner files her opposition to the petition for summary judgment on the ground that in a
summary settlement of an estate, the Court has no jurisdiction to pass finally and definitely upon the title or ownership over the properties involved
therein; and that summary judgment is not proper, there being a genuine issue or material controversy raised by the pleadings of the parties.
On March 21, 1969, the lower court, rendered a summary judgment on the pleadings submitted by the parties confirming the private respondents'
(Heirs of Eligio Magallanes) absolute and exclusive right of ownership and possession over the whole of Lot No. 2657 and the one-half undivided
portion of Lot No. 3465 and ordering the Register of Deeds of Quezon Province to cancel the Notice of Lis Pendens on Original Certificate of Title
No. 1091 covering Lot No. 2657.
On April 22, 1969, the petitioner moved for reconsideration of the aforesaid summary judgment and/or new trial but the lower court on June 19,
1969 denied the motion for reconsideration for being pro forma and declared its decision dated March 21, 1969 to be final and executory.
Accordingly, a writ of execution was issued and served upon the petitioner on July 14, 1969. However, even before said date, petitioner was able to
perfect her appeal on June 30, 1969, with the filing of the notice of appeal, appeal bond and record on appeal.
In her brief, petitioner presses upon the lower court the following errors:
I
THE TRIAL COURT ERRED IN PASSING UPON FINALLY AND DEFINITELY THE TITLE TO OR OWNERSHIP OF LOT 2657 OF THE LUCENA
CADASTRE, COVERED BY ORIGINAL CERTIFICATE OF TITLE NO. 1091 OF THE REGISTER OF DEEDS OF TAYABAS AND ONE-HALF ()
OF LOT NO. 3465 OF THE LUCENA CADASTRE, COVERED BY CERTIFICATE OF TITLE NO. 6447 OF THE REGISTER OF DEEDS OF
TAYABAS, WHEN IT HAS NO JURISDICTION TO SO ACT, THE PETITIONER HAVING CONSISTENTLY REFUSED TO SUBMIT THAT ISSUE TO
THE JURISDICTION OF THE TRIAL COURT.
II
THE TRIAL COURT ERRED IN NOT MERELY DETERMINING IN THE DECISION DATED MARCH 21, 1969 WHETHER OR NOT THE
PROPERTIES IN QUESTION SHOULD BE INCLUDED IN THE INVENTORY ASSUMING THE AFORESAID DECISION RENDERED THROUGH
SUMMARY JUDGMENT WAS PROPER AND REGULAR.
III
THE TRIAL COURT ERRED IN RENDERING THE DECISION DATED MARCH 21, 1969 THROUGH SUMMARY JUDGMENT, WITHOUT TRIAL,
WHERE THERE ARE GENUINE ISSUES AND MATERIAL CONTROVERSY, THE PETITIONER CLAIMING IN HER PLEADINGS THAT SHE AND
HER CO-HEIRS OWN THE REALTIES IN QUEZON BY INHERITANCE FROM THE DECEASED FILOMENA MAGALLANES WHILE THE
RESPONDENTS CLAIM OWNERSHIP OVER THE AFORESAID REALTIES BY PURCHASE FROM THE DECEASED FILOMENA MAGALLANES
DURING HER LIFETIME.
IV
THE TRIAL COURT ERRED WHEN IT HELD IN ITS ORDER OF JUNE 19, 1969 THAT THE MOTION FOR RECONSIDERATION DATED APRIL
21, 1969 IS PRO FORMA AND DID NOT SUSPEND THE RUNNING OF THE PERIOD TO APPEAL.
V
THE TRIAL COURT ERRED IN HOLDING THE DECISION DATED MARCH 21, 1969 FINAL AND EXECUTORY.
VI
THE TRIAL COURT ERRED IN ORDERING THE ISSUANCE OF A WRIT OF EXECUTION IN THE SAME ORDER OF JUNE 19, 1969.
VII
THE TRIAL COURT ERRED IN ISSUING THE WRIT OF EXECUTION DATED JUNE 19, 1969 WHICH IS VOID AND OF NO EFFECT.

Succession 96
We find merit in the petitioner's argument that the lower court has no jurisdiction to pass finally and definitely upon the title or ownership of the
properties involved in the summary settlement of the estate of the deceased Filomena Magallanes instituted by the petitioner. Well established is
the doctrine that the property, whether real or personal, which are alleged to form part of the estate of a deceased person but claimed by another to
be his property by adverse title to that of the deceased and his estate and not by virtue of any right of inheritance from ' the deceased, cannot be
determined by the probate court. Such questions must be submitted to the Court of First Instance in the exercise of its general jurisdiction to try and
determine ordinary actions. 1 The probate court may do so only for the purpose of determining whether or not a given property should be included
in the inventory of the estate of the deceased, but such determination is not conclusive and is still subject to a final decision in a separate action to
be instituted between the parties. 2 Likewise, the probate court may also determine questions of title to property if the parties voluntarily submitted
to its jurisdiction and introduced evidence to prove ownership. 3
In the case at bar, the action instituted by the petitioner was not for the purpose of determining whether or not a given property should be included in
the inventory of the estate of the deceased. The action was for partition and distribution of the properties left by the deceased. Neither have all of
the parties voluntarily submitted the issue of ownership for resolution by the court. As a matter of fact the petitioner opposed the petition of private
respondents to have the issue of ownership or title decided in the proceeding for the settlement of the estate of the deceased. It was therefore
erroneous for the lower court to resolve the question of title or ownership over the properties in said proceeding. It could only pass upon such a
question in the exercise of its general jurisdiction in an ordinary action.
Petitioner faulted the lower court for rendering summary judgment on the case. Summary judgment can be availed of where no genuine issue as to
any material fact is raised in the pleadings. 4 Where there is an issue or issues of fact joined by the parties or where the facts pleaded by the parties
are disputed or contested, neither one of them can pray for a summary judgment to take the place of a trial. 5 Summary judgment can be rendered
only where there are no questions of fact in issue or where the material allegations of the pleadings are not disputed.
An examination of the pleadings in this case clearly shows that there is a genuine issue or material controversy raised therein. Thus, petitioner
claims that she and her co-heirs have the right to inherit the properties in question as they form part of the estate of Filomena Magallanes. On the
other hand, herein private respondents contend that they acquired the ownership over the said properties by purchase from Filomena Magallanes
during her lifetime. In the face of the conflicting claims of both petitioner and respondents a factual dispute certainly arises which can only be
properly settled by means of a trial on the merits. Summary judgment was, therefore, uncalled for in the premises.
Petitioner also assailed the order of the lower court denying her motion for reconsideration of the summary judgment in question as pro forma. A
motion for new trial or reconsideration on the ground that the judgment is contrary to law, which does not point out the supposed defects in the
judgment is pro forma Section 2, Rule 37 of the Rules of Court requires the movant for the new trial to point out the findings of fact or conclusions of
law supposed to be insufficiently borne out by the evidence or contrary to law. 6 A reading of the motion for reconsideration of the aforesaid
summary judgment show's specifically the conclusions reached by the lower court which are contrary to law, the lack of jurisdiction on the part of the
lower court to resolve the issue of ownership and possession of properties left by a deceased person in the settlement of his estate proceeding and
the propriety of the rendition of the summary judgment on the pleadings submitted by the parties. Although the former pleadings of the petitioner
already contained allegations on the question of jurisdiction and the propriety of the summary judgment, this fact does not make the motion for
reconsideration pro forma because it expressly made reference to what portion of the lower court's conclusion are contrary to law and to established
jurisprudence. In a case 7 the Supreme Court held that the motion for new trial or reconsideration cannot be considered as simply pro forma where t
not only states that the decision is contrary to law but also explains in detail relevant facts for seeking its revocation. Since the motion for
reconsideration is not pro forma the filing of the same on time stopped the running of the period within which to appeal the decision. It was therefore
an error on the part of the lower court to issue a writ of execution of the decision in question before it has become final and executory.
Finally, private respondents claim that the trial court erred in approving petitioner's record on appeal after it had lost jurisdiction over the case. There
is no need to resolve the assigned error. It is elementary that in a petition for certiorari like the case before Us, the submission of a record on appeal
is not necessary.
WHEREFORE, in view of all the foregoing judgment is hereby rendered:
1.

Declaring the decision of the lower court dated March 21, 1968 and the writ of execution dated June 19, 1969 null and void; and

2.
Remanding the case to the lower court as a court of general jurisdiction to settle the title and ownership over the parcels of land in
question between Lucena Magallanes who claims to have inherited the same from Filomena Magallanes and-the heirs of Eligio Magallanes who
claim to have purchased them.
Costs against the private respondents.
SO ORDERED.

Succession 97
G.R. No. L-55509

April 27, 1984

ETHEL GRIMM ROBERTS, petitioner,


vs.
JUDGE TOMAS R. LEONIDAS, Branch 38, Court of First Instance of Manila; MAXINE TATE-GRIMM, EDWARD MILLER GRIMM II and LINDA
GRIMM, respondents.
N. J. Quisumbing and Associates for petitioners.
Angara, Abello, Concepcion, Regala and Cruz for respondents.

AQUINO, J.:+.wph!1
The question in this case is whether a petition for allowance of wills and to annul a partition, approved in an intestate proceeding by Branch 20 of
the Manila Court of First Instance, can be entertained by its Branch 38 (after a probate in the Utah district court).
Antecedents. Edward M. Grimm an American resident of Manila, died at 78 in the Makati Medical Center on November 27, 1977. He was
survived by his second wife, Maxine Tate Grimm and their two children, named Edward Miller Grimm II (Pete) and Linda Grimm and by Juanita
Grimm Morris and Ethel Grimm Roberts (McFadden), his two children by a first marriage which ended in divorce (Sub-Annexes A and B. pp. 36-47,
Rollo).
He executed on January 23, 1959 two wills in San Francisco, California. One will disposed of his Philippine estate which he described as conjugal
property of himself and his second wife. The second win disposed of his estate outside the Philippines.
In both wills, the second wife and two children were favored. The two children of the first marriage were given their legitimes in the will disposing of
the estate situated in this country. In the will dealing with his property outside this country, the testator said: t.hqw
I purposely have made no provision in this will for my daughter, Juanita Grimm Morris, or my daughter, Elsa Grimm McFadden (Ethel Grimm
Roberts), because I have provided for each of them in a separate will disposing of my Philippine property. (First clause, pp. 43-47, Rollo).
The two wills and a codicil were presented for probate by Maxine Tate Grimm and E. LaVar Tate on March 7, 1978 in Probate No. 3720 of the Third
Judicial District Court of Tooele County, Utah. Juanita Grimm Morris of Cupertino, California and Mrs. Roberts of 15 C. Benitez Street, Horseshoe
Village, Quezon City were notified of the probate proceeding (Sub-Annex C, pp. 48-55, Rollo).
Maxine admitted that she received notice of the intestate petition filed in Manila by Ethel in January, 1978 (p. 53, Rollo). In its order dated April 10,
1978, the Third Judicial District Court admitted to probate the two wills and the codicil It was issued upon consideration of the stipulation dated April
4, 1978 "by and between the attorneys for Maxine Tate Grimm, Linda Grimm, Edward Miller Grimm II, E. LaVar Tate, Juanita Kegley Grimm (first
wife), Juanita Grimm Morris and Ethel Grimm Roberts" (Annex C, pp. 48-51, Rollo).
Two weeks later, or on April 25, 1978, Maxine and her two children Linda and Pete, as the first parties, and Ethel, Juanita Grimm Morris and their
mother Juanita Kegley Grimm as the second parties, with knowledge of the intestate proceeding in Manila, entered into a compromise agreement in
Utah regarding the estate. It was signed by David E. Salisbury and Donald B. Holbrook, as lawyers of the parties, by Pete and Linda and the
attorney-in-fact of Maxine and by the attorney-in-fact of Ethel, Juanita Grimm Morris and Juanita Kegley Grimm.
In that agreement, it was stipulated that Maxine, Pete and Ethel would be designated as personal representatives (administrators) of Grimm's
Philippine estate (par. 2). It was also stipulated that Maxine's one-half conjugal share in the estate should be reserved for her and that would not be
less than $1,500,000 plus the homes in Utah and Santa Mesa, Manila (par. 4). The agreement indicated the computation of the "net distributable
estate". It recognized that the estate was liable to pay the fees of the Angara law firm (par. 5).
It was stipulated in paragraph 6 that the decedent's four children "shall share equally in the Net Distributable Estate" and that Ethel and Juanita
Morris should each receive at least 12-1/2% of the total of the net distributable estate and marital share. A supplemental memorandum also dated
April 25, 1978 was executed by the parties (Sub-Annex F, pp. 49-61, Annex, F-1, pp. 75-76, Testate case).
Intestate proceeding No. 113024.-At this juncture, it should be stated that forty- three days after Grimm's death, or January 9, 1978, his daughter of
the first marriage, Ethel, 49, through lawyers Deogracias T. Reyes and. Gerardo B. Macaraeg, filed with Branch 20 of the Manila Court of First
Instance intestate proceeding No. 113024 for the settlement of his estate. She was named special administratrix.
On March 11, the second wife, Maxine, through the Angara law office, filed an opposition and motion to dismiss the intestate proceeding on the
ground of the pendency of Utah of a proceeding for the probate of Grimm's will. She also moved that she be appointed special administratrix, She
submitted to the court a copy of Grimm's will disposing of his Philippine estate. It is found in pages 58 to 64 of the record.
The intestate court in its orders of May 23 and June 2 noted that Maxine, through a new lawyer, William C. Limqueco (partner of Gerardo B.
Macaraeg, p. 78, testate case withdrew that opposition and motion to dismiss and, at the behest of Maxine, Ethel and Pete, appointed them joint
administrators. Apparently, this was done pursuant to the aforementioned Utah compromise agreement. The court ignored the will already found in
the record.
The three administrators submitted an inventory. With the authority and approval of the court, they sold for P75,000 on March 21, 1979 the so-called
Palawan Pearl Project, a business owned by the deceased. Linda and Juanita allegedly conformed with the sale (pp. 120-129, Record). It turned
out that the buyer, Makiling Management Co., Inc., was incorporated by Ethel and her husband, Rex Roberts, and by lawyer Limqueco (Annex L, p.
90, testate case).
Also with the court's approval and the consent of Linda and Juanita, they sold for P1,546,136 to Joseph Server and others 193,267 shares of RFM
Corporation (p. 135, Record).
Acting on the declaration of heirs and project of partition signed and filed by lawyers Limqueco and Macaraeg (not signed by Maxine and her two
children), Judge Conrado M. Molina in his order of July 27, 1979 adjudicated to Maxine onehalf (4/8) of the decedent's Philippine estate and oneeighth (1/8) each to his four children or 12-1/2% (pp. 140-142, Record). No mention at all was made of the will in that order.

Succession 98
Six days later, or on August 2, Maxine and her two children replaced Limqueco with Octavio del Callar as their lawyer who on August 9, moved to
defer approval of the project of partition. The court considered the motion moot considering that it had already approved the declaration of heirs and
project of partition (p. 149, Record).
Lawyer Limqueco in a letter to Maxine dated August 2, 1979 alleged that he was no longer connected with Makiling Management Co., Inc. when the
Palawan Pearl Project was sold: that it was Maxine's son Pete who negotiated the sale with Rex Roberts and that he (Limqueco) was going to sue
Maxine for the lies she imputed to him (Annex H, p. 78, testate case).
Ethel submitted to the court a certification of the Assistant Commissioner of Internal Revenue dated October 2, 1979. It was stated therein that
Maxine paid P1,992,233.69 as estate tax and penalties and that he interposed no objection to the transfer of the estate to Grimm's heirs (p. 153,
Record). The court noted the certification as in conformity with its order of July 27, 1979.
After November, 1979 or for a period of more than five months, there was no movement or activity in the intestate case. On April 18, 1980 Juanita
Grimm Morris, through Ethel's lawyers, filed a motion for accounting "so that the Estate properties can be partitioned among the heirs and the
present intestate estate be closed." Del Callar, Maxine's lawyer was notified of that motion.
Before that motion could be heard, or on June 10, 1980, the Angara law firm filed again its appearance in collaboration with Del Callar as counsel
for Maxine and her two children, Linda and Pete. It should be recalled that the firm had previously appeared in the case as Maxine's counsel on
March 11, 1978, when it filed a motion to dismiss the intestate proceeding and furnished the court with a copy of Grimm's will. As already noted, the
firm was then superseded by lawyer Limqueco.
Petition to annul partition and testate proceeding No. 134559. On September 8, 1980, Rogelio A. Vinluan of the Angara law firm in behalf of
Maxine, Pete and Linda, filed in Branch 38 of the lower court a petition praying for the probate of Grimm's two wills (already probated in Utah), that
the 1979 partition approved by the intestate court be set aside and the letters of administration revoked, that Maxine be appointed executrix and
that Ethel and Juanita Morris be ordered to account for the properties received by them and to return the same to Maxine (pp. 25-35, Rollo).
Grimm's second wife and two children alleged that they were defraud due to the machinations of the Roberts spouses, that the 1978 Utah
compromise agreement was illegal, that the intestate proceeding is void because Grimm died testate and that the partition was contrary to the
decedent's wills.
Ethel filed a motion to dismiss the petition. Judge Leonidas denied it for lack of merit in his order of October 27, 1980. Ethel then filed a petition for
certiorari and prohibition in this Court, praying that the testate proceeding be dismissed, or. alternatively that the two proceedings be consolidated
and heard in Branch 20 and that the matter of the annulment of the Utah compromise agreement be heard prior to the petition for probate (pp. 2223, Rollo).
Ruling. We hold that respondent judge did not commit any grave abuse of discretion, amounting to lack of jurisdiction, in denying Ethel's motion
to dismiss.
A testate proceeding is proper in this case because Grimm died with two wills and "no will shall pass either real or personal property unless it is
proved and allowed" (Art. 838, Civil Code; sec. 1, Rule 75, Rules of Court).
The probate of the will is mandatory (Guevara vs. Guevara, 74 Phil. 479 and 98 Phil. 249; Baluyot vs. Panio, L-42088, May 7, 1976, 71 SCRA 86). It
is anomalous that the estate of a person who died testate should be settled in an intestate proceeding. Therefore, the intestate case should be
consolidated with the testate proceeding and the judge assigned to the testate proceeding should continue hearing the two cases.
Ethel may file within twenty days from notice of the finality of this judgment an opposition and answer to the petition unless she considers her
motion to dismiss and other pleadings sufficient for the purpose. Juanita G. Morris, who appeared in the intestate case, should be served with
copies of orders, notices and other papers in the testate case.
WHEREFORE the petition is dismissed. The temporary restraining order is dissolved. No costs.
SO ORDERED.1wph1.t

Succession 99
G.R. No. 45425

March 27, 1992

CELSA L. VDA. DE KILAYKO, ENCARNACION L. VDA. DE PANLILIO and REMEDIOS L. VDA. DE GUINTO, petitioners,
vs.
HON. JUDGE ERNESTO TENGCO of the Court of First Instance of Negros Occidental, Bacolod City, Branch IV and RODOLFO LIZARES and
AMELO LIZARES, as Judicial Administrators of the Estate of the late EUSTAQUIA LIZARES, respondents.
G.R. No. 45965

March 27, 1992

ROLDOFO LIZARES and AMELO LIZARES, as Judicial Administrators of the ESTATE OF EUSTAQUIA LIZARES, petitioners,
vs.
HON. JUDGE ERNESTO TENGCO, CELSA L. VDA. DE KILAYKO, ENCARNACION L. VDA. DE PANLILIO and REMEDIOS VDA. DE GUINTO,
respondents.

ROMERO, J.:
These consolidated cases seek to annul the orders 1 dated September 20, 1976, January 7, 1977 and January 31, 1977 of the then Court of First
Instance of Negros Occidental, Branch, IV respectively, cancelling the notice of lis pendens filed by Celsa L. Vda. de Kilayko, et al. with the Register
of Deeds of Negros Occidental, denying the motion for reconsideration of the order dated September 20, 1976 filed by Celsa L. Vda. de Kilayko, et
al., and holding in abeyance the resolution of defendants' motion to dismiss.
The undisputed facts of the case are as follows:
On November 20, 1962, the late Maria Lizares y Alunan executed a "Testamento" 2 which contains among its provisions, the following:
DECIMA Asimismo, ordeno y dispongo que mi participacion consistente en una tercera parte (1/3) de una catorce (1/14) avas partes proindivisas
de la Hda. Minuluan, que he adquirido mediante permuta de mi hermano Dr. Antonio A. Lizares, se adjudique, como por el presente se adjudica, a
mi sobrina Eustaquia Lizares; ENTENDIENDOSE, sin embargo, que en el caso de que mi citada sobrina Eustaquia Lizares muera soltera o sin
descendientes legitimos, mi referida participacion en la Hda. Minuluan se adjudicara a mi hermano Antonio A. Lizares que me sobrevivan.
UNDECIMA Tambien ordeno y dispongo que el resto de todas mis propiendades, incluyendo mis participaciones, derechos e intereses (no
dispuestos mas arriba) an las Haciendas "Minuluan" (Lotes Nos. 439, 403, 1273, 1274, 1278, 1279 y 1280 del Catastro de Talisay, Negros
Occidental), y "Matab-ang" (Lotes Nos. 514, 550, 552, 553 y 1287-C del Catastrado de Talisay, Negros Occidental), situadas en el Municipio de
Talisay, Provincia de Negros Occidental, I.F., el resto de mis acciones en la Central Talisay-Silay Milling Co., Inc. (unas 2,860 acciones) y de la
Financing Corporation of the Philippines (unas 53,636 acciones), registradas a mi nombre y no heredadas de mi difunta madre Da. Enrica A. Vda.
de Lizares, mis acciones en la Central Bacolod-Murcia Milling Co., Inc., Negros Navigation Co. y otras Compaas Mineras, y todos los demas
bienes no mencionados en este testamento y que me pertenezcan en la fecha de mi muerte, se adjudiquen, como por el presente adjudico, a mi
sobrina Srta. Eusaquia Lizares, hija de mi difunto hermano Don Simplicio Lizares cuidados que mi citada sobrina me ha prestado y signe
prestandome hasta ahora. Ordeno, sin embargo, a mi referida sobrina, Srta. Eustaquia Lizares, que ella se haga cargo de pagar todas las
obligaciones que tengo y que gravan sobre las propriedades adjudicadas a la misma. Asimismo ordeno a mi citada sobrina que ella mande
celebrar una Misa Gregoriana cada ao en sufragio de mi alma, y misas ordinarias en sufragio de las almas de mi difunto Padre y de mi difunta
Madre, el 6 de Marzo y 17 de Deciembre de cada ao, respectivamente, y mande celebrar todos los aos la fiesta de San Jose en Talisay como lo
hago hasta ahora. En el caso de que mi citada sobrina, Srta. Eustaquia Lizares, falleciere sin dejar descendientes legitimos, ordeno y dispongo que
mi participacion consistente en una sexta parte (1/6) de la Hda. Matab-ang, con su correspondiente cuota de azucar y otros mejoras, se adjudique
a mis hermanas y hermano antes mencionados y que me sobrevivan (Emphasis supplied)
On January 28, 1968, Maria Lizares y Alunan died without any issue leaving said "testamento" in the possession and custody of her niece, Eustquia
Lizares. 3 On February 6, 1968, Eustaquia filed a petition for the settlement of the testate estate of Maria Lizares y Alunan, before the Court of First
Instance of Negros Occidental, Branch IV, docketed as Special Proceedings No. 8452. 4
The required publication of the notice of hearing of the petition having been made, in due course, the probate court issued an order declaring the
will probated and appointing Eustaquia as the executrix of the estate of Maria Lizares. 5
On July 10, 1968, Eustaquia filed a project of partition 6 which was granted by the probate court in an order dated January 8, 1971. Simultaneously,
said court declared the heirs, devisees, legatees and usufructuaries mentioned in the project of partition as the only heirs, devisees, legatees and
usufructuaries of the estate; adjudicated to them the properties repectively assigned to each and every one of them, and ordered the Register of
Deeds of Negros Occidental and Bacolod City to effect the corresponding transfer of the real properties to said heirs as well as the transfer of
shares, stocks, and dividends in different corporations, companies and partnerships in the name of Maria Lizares to the heirs and legatees, and the
closure of the testate proceedings of Maria Lizares. 7
Thereafter, Eustaquia filed an urgent motion to reopen the testate proceedings in order that some properties of Maria Lizares which had been
omitted in the partition be adjudicated to her. 8 The Court granted the motion and correspondingly reopened the testate proceedings. It adjudicated
to Eustaquia certain shares of stocks, a revolving fund certificate, plantation credits and sugar quota allocations, and real or personal properties of
Maria Lizares which were not given by her to any other person in her last will and testament. 9
On November 28, 1972, the heirs of Maria Lizares, namely: Encarnacion L. Vda. de Panlilio, Remedios L. Vda. de Guinto, Felicidad Paredes
Llopez, Rosario Paredes Mendoza and Eustaquia Lizares executed an agreement of partition and subdivision, thereby terminating their coownership over Lots Nos. 550, 514, 553, 1287-C of plan SWO-7446, and 552, all of the Cadastral Survey of Talisay covered by Transfer Certificates
of Title Nos. T-65004, T-65005; T-65006, T-65007, and T-65008. 10
A year later or on November 23, 1973, Eustquia Lizares died single without any descendant. 11 In due time, Rodolfo Lizares and Amelo Lizares
were appointed joint administrators of Eustquia's intestate estate.
On the strength of the testamentary provisions contained in paragraphs 10 and 11 of the will of Maria Lizares, which were allegedly in the nature of
a simple substitution, Celsa Vda. de Kilayko, Encarnacion Vda. de Panlilio, and Remedios Vda. de Guinto (hereinafter collectively referred to as
Celsa L. Vda. de Kilayko, et al.) filed a motion in Special Proceedings No. 8452 to reopen once again the testate estate proceedings of Maria
Lizares. They prayed among others that a substitute administrator be appointed; that the order dated January 8, 1971 be reconsidered and
amended by declaring them as heirs to 1/3 of 1/14 of Hda. Minuluan and to 1/6 of Hda. Matab-ang, both of which form an aggregate area of 33
hectares; that the Register of Deeds of Negros Occidental, after such amendment, be ordered to register at the back of their respective certificates

Succession 100
of title, the order of probate and a "declaration" that movants are the heirs of said properties, and correspondingly issue new certificates of title in
their names. 12
Two (2) sets of intestate heirs of the deceased Eustaquia Lizares namely: Socorro L. Vda. de Escario, Rodolfo Lizares, Mario Lizares, Lucrecia
Gustilo, and Aurora Lizares Wagner opposed the aforesaid motion. They alleged that the court had no more jurisdiction to reopen the testate estate
proceedings of Maria Lizares as the order of closure had long become final and that the testamentary provisions sought to be enforced are null and
void. 13
On April 6, 1974, the Court issued an order denying the motion to reopen the testate proceedings and holding that inasmuch as the settlement of an
estate is a proceeding in rem, the judgment therein is binding against the whole world. It observed that inspite of the fact that the movants knew that
the court had jurisdiction over them, they did not take part in the proceedings nor did they appeal the order of January 8, 1971. Thus, the court
concluded, even if the said order was erroneous, and since the error was not jurisdictional, the same could have been corrected only by a regular
appeal. The period for filing a motion for reconsideration having expired, the court opined that the movants could have sought relief from judgment
under Rule 38 of the Rules of Court, but unfortunately for the movants, the period for filing such remedy had also elapsed. 14
Celsa L. Vda. de Kilayko, et al. then filed a motion for reconsideration of said order. It was denied on June 17, 1974. 15 Hence, on October 14,
1974, the said movants filed a complaint for recovery of ownership and possession of real property against the joining administrators of the estate of
Eustaquia Lizares, Rodolfo and Amelo Lizares. It was docketed as Civil Case No. 11639 with the then Court of First Instance of Negros Occidental,
Branch IV. 16 On the same date, they availed of their rights under Rule 14, Section 24 of Rules of Court
by filing a notice of lis pendens with the Register of Deeds of Negros Occidental. 17
As duly appointed judicial joint administrators of the estate of the late Eustaquia Lizares, Rodolfo Lizares and Amelo Lizares (the joint administrators
for brevity), filed a motion to dismiss alleging that the court had no jurisdiction over the subject matter or nature of the case; the cause of action was
barred by prior judgment, and the complaint stated no cause of action. 18 This motion was opposed by the plaintiffs.
On January 23, 1975, the joint administrators filed a motion for the cancellation of the notice of lis pendens on the contentions that there existed
exceptional circumstances which justified the cancellation of the notice of lis pendens and that no prejudice would be caused to the plaintiffs. 19 The
latter opposed said motion. The defendants having filed a reply thereto, the plaintiffs filed a rejoinder reiterating their arguments in their opposition to
the motion for cancellation of notice of lis pendens. 20
On September 20, 1976, respondent judge issued an order granting the motion for cancellation of notice of lis pendens. 21 The court
simultaneously held in abeyance the resolution of the motion to dismiss the complaint.
The joint administrators filed the answer to the complaint in Civil Case No. 11639. 22 Thereafter, they filed a motion for preliminary hearing on
affirmative defenses. 23 Celsa L. Vda. de Kilayko, et al. vigorously opposed said motion. 24
On November 3, 1976, Celsa L. Vda. de Kilayko, et al. filed a motion praying for the reconsideration of the order dated September 20, 1976. 25 The
joint administrators having filed an opposition thereto, 26 on January 7, 1977 the lower court denied the aforesaid motion for reconsideration. 27 It
held that while a notice of lis pendens would serve as notice to strangers that a particular property was under litigation, its annotation upon the
certificates of title to the properties involved was not necessary because such properties, being in custodia legis, could not just be alienated without
the approval of the court. Moreover, the court added, a notice of lis pendens would prejudice any effort of the estate to secure crop loans which
were necessary for the viable cultivation and production of sugar to which the properties were planted.
Upon receipt of a copy of said order, Celsa L. Vda. de Kilayko, et al. filed in this Court a motion for extension of time to file a petition for review on
certiorari. Docketed as G.R No. L-45425, the petition contends that the grounds of lis pendens, namely, that the properties are in custodia legis and
the lending institutions would not grant crop loans to the estate, are not the legal grounds provided for under Sec. 24, Rule 14 of the Rules of Court
for the cancellation of a notice of lis pendens.
Meanwhile, on January 31, 1977, the lower court issued an order stating that since on September 21, 1976 it had held in abeyance the resolution of
the motion to dismiss, it was also proper to suspend the resolution of the affirmative defenses interposed by the defendants until after trial on the
merits of the case. Accordingly, the court set the date of pre-trial for March 24, 1977. 28
On April 13, 1977, the joint administrators filed before this Court a petition for certiorari, prohibition and/or mandamus with prayer for a writ of
preliminary injunction. It was docketed as G.R. No. L-45965. Petitioners contend that the lower court had no jurisdiction over Civil Case No. 11639
as it involves the interpretation of the will of Maria Lizares, its implementation and/or the adjudication of her properties. They assert that the matter
had been settled in Special Proceedings No. become final and unappealable long before the complaint in Civil Case No. 8452 which had become
final and unappealable long before the complaint in Civil Case No. 11639 was filed, and therefore, the cause of action in the latter case was barred
by the principle of res judicata. They aver that the claim of Celsa, Encarnacion and Remedios, sisters of Maria Lizares, over the properties left by
their niece Eustaquia and which the latter had inherited by will from Maria Lizares, was groundless because paragraphs 10 and 11 of Maria's will on
which Celsa L. Vda. de Kilayko, et al. base their claim, conceived of a fideicommissary substitution of heirs. Petitioners contend that said provisions
of the will are not valid because under Article 863 of the Civil code, they constitute an invalid fideicommissary substitution of heirs.
On April 26, 1977, this Court issued a temporary restraining order enjoining the lower court from further proceeding with the trial of Civil Case No.
11639. 29 After both G.R. Nos. L-45425 and L-45965 had been given due course and submitted for decision, on January 20, 1986, the two cases
were consolidated.
The petition in G.R. No. L-45965 is impressed with merit.
In testate succession, there can be no valid partition among the heirs until after the will has been probated. 30 The law enjoins the probate of a will
and the public requires it, because unless a will is probated and notice thereof given to the whole world, the right of a person to dispose of his
property by will may be rendered nugatory. 31 The authentication of a will decides no other question than such as touch upon the capacity of the
testator and the compliance with those requirements or solemnities which the law prescribes for the validity of a will. 32
Pertinent to the issue interposed by the petitioners in G.R. No. L-45965 is Section 1, Rule 90 of the Rules of Court which reads:
Sec. 1. When order for distribution of residue made. When the debts, funeral charges, and expenses of administration, the allowance to the
widow, and inheritance tax, if any, chargeable to the estate in accordance with law, have been paid, the court, on application of the executor or
administrator, or of a person interested in the estate, and after hearing upon notice, shall assign the residue of the estate to the persons entitled to
the same, naming them and the proportions or parts, to which each is entitled, and such persons may demand and recover their respective shares
from the executor or administrator, or any other person having the same in his possession. If there is a controversy before the court as to who are
the lawful heirs of the deceased person or as to the distributive shares to which each person is entitled under the law, the controversy shall be
heard and decided as in ordinary cases.

Succession 101
No distribution shall be allowed until the payment of the obligations above-mentioned has been made or provided for, unless the distributees, or any
of them give a bond, in a sum to be fixed by the court, conditioned for the payment of said obligations within such time as the court directs.
Applying this rule, in the cases of De Jesus v. Daza, 33 and Torres v. Encarnacion, 34 the Court said:
. . . (T)he probate court, having the custody and control of the entire estate, is the most logical authority to effectuate this provision, within the estate
proceeding, said proceeding being the most convenient one in which this power and function of the court can be exercised and performed without
the necessity of requiring the parties to undergo the incovenience and litigate an entirely different action.
Some decisions of the Court pertinent to the issue that the probate court has the jurisdiction to settle the claims of an heir and the consequent
adjudication of the properties, are worth mentioning. In the cases of Arroyo v. Gerona, 35 and Benedicto v. Javellana, 36 this Court said:
. . . any challenge to the validity of a will, any objection to the authentication thereof, and every demand or claim which any heir, legatee or party
interested in a testate or intestate succession may make, must be acted upon and decided within the same special proceedings, not in a separate
action, and the same judge having jurisdiction in the administration of the estate shall take cognizance of the question raised, inasmuch as when
the day comes he will be called upon to make distribution and adjudication of the property to the interested parties. . . . (Emphasis supplied)
The probate court, in the exercise of its jurisdiction to distribute the estate, has the power to determine the proportion or parts to which each
distributee is entitled . . .. 37 A project of partition is merely a proposal for the distribution of the heredity estate which the court may accept or reject.
It is the court that makes that distribution of the estate and determines the persons entitled thereto. 38
In the instant case, the records will show that in the settlement of the testate estate of Maria Lizares, the executrix, Eustaquia Lizares submitted on
January 8, 1971, a project of partition in which the parcels of land, subject matters of the complaint for reconveyance, were included as property of
the estate and assigned exclusively to Eustaquia as a devisee of Maria Lizares. In accordance with said project of partition which was approved by
the probate court, Encarnacion Lizares Vda. de Panlilio, Remedios Lizares Vda. de Guinto, Felicidad Paredes Llopez, Rosario Paredes Mendoza
and Eustaquia Lizares executed an Agreement of Partition and Subdivision on November 28, 1972, whereby they agreed to terminate their coownership over Lots Nos. 550, 514, 553, 1287-C of SWO-7446 and 552 covered by Transfer Certificates of Title Nos. T-65004, T-65005, T-65006,
T-65007 and T-65008. These facts taken altogether show that the Lizares sisters recognized the decree of partition sanctioned by the probate court
and in fact reaped the fruits thereof.
Hence, they are now precluded from attacking the validity of the partition or any part of it in the guise of a complaint for reconveyance. A party
cannot, in law and in good conscience be allowed to reap the fruits of a partition, agreement or judgment and repudiate what does not suit him. 39
Thus, where a piece of land has been included in a partition and there is no allegation that the inclusion was affected through improper means or
without petitioner's knowledge, the partition barred any further litigation on said title and operated to bring the property under the control and
jurisdiction of the court for its proper disposition according to the tenor of the partition. 40 The question of private respondents title over the lots in
question has been concluded by the partition and became a closed matter.
The admission made by Celsa L. Vda. de Kilayko, et al. in their complaint, Civil Case No. 11639, that Eustaquia had been in possession of the
questioned lots since March 2, 1971 up to the time of her death indicates that the distribution pursuant to the decree of partition has already been
carried out. Moreover, it cannot be denied that when Celsa L. Vda. de Kilayko, et al. moved for the reopening of the testate estate proceedings of
Maria Lizares, the judicial decree of partition and order of closure of such proceedings was already final and executory, then reglementary period of
thirty (30) days having elapsed from the time of its issuance, with no timely appeal having been filed by them. Therefore, they cannot now be
permitted to question the adjudication of the properties left by will of Maria Lizares, by filing an independent action for the reconveyance of the very
same properties subject of such partition.
A final decree of distribution of the estate of a deceased person vests the title to the land of the estate in the distributees. If the decree is erroneous,
it should be corrected by opportune appeal, for once it becomes final, its binding effect is like any other judgment in rem, unless properly set aside
for lack of jurisdiction or fraud. Where the court has validly issued a decree of distribution and the same has become final, the validity or invalidity of
the project of partition becomes irrelevant. 41
It is a fundamental concept in the origin of every jural system, a principle of public policy, that at the risk of occasional errors, judgments of courts
should become final at some definite time fixed by law, interest rei publicae ut finis sit litum. "The very object of which the courts were constituted
was to put an end to controversies." 42 The only instance where a party interested in a probate proceeding may have a final liquidation set aside is
when he is left out by reason of circumstances beyond his control or through mistake or inadvertence not imputable to negligence. Even then, the
better practice to secure relief is the opening of the same by proper motion within the reglementary period, instead of an independent action, the
effect of which if successful, would be for another court or judge to throw out a decision or order already final and executed and reshuffle properties
long ago distributed and disposed of. 43
The fundamental principle upon which the doctrine of res judicata rests is that parties ought not to be permitted to litigate the same issue more than
once, that, when a right or fact has been judicially tried and determined by a court of competent jurisdiction, or an opportunity for such trial has been
given, the judgment of the court, so long as it remains unreversed, should be conclusive upon the parties and those in privity with them in law or
estate. 44
All the requisites for the existence of res judicata are present. Thus, the order approving the distribution of the estate of Maria Lizares to the heirs
instituted in said will has become final and unappealable; the probate court that rendered judgment had jurisdiction over the subject matter and over
the parties; the judgment or orders had been rendered on the merits; the special proceedings for the settlement of the estate of Maria Lizares was a
proceeding in rem that was directed against the whole world including Celsa L. Vda. de Kilayko, et al., so that it can be said that there is a similarity
of parties in Special Proceedings No. 8452 and Civil Case No. 11639, the judicial administrators of Eustaquia being privy to Celsa L. Vda. de
Kilayko, et al.; there is identity of subject matter involved in both actions, namely, the properties left by Maria Lizares; there is identity of causes of
action because in the first action there was a declaration of the probate court in its order dated April 6, 1974 that although the testatrix intended a
fideicommissary substitution in paragraphs 10 and 11 of her will, the substitution can have no effect because the requisites for it to be valid, had not
been satisfied. 45
Granting that res judicata has not barred the institution of Civil Case No. 11639, the contention of Celsa L. Vda. de Kilayko, et al. that they are
conditional substitute heirs of Eustaquia in the testate estate of Maria Lizares 46 is not meritorious. While the allegation of the joint administrators
that paragraphs 10 and 11 of Maria Lizares' last will and testament conceives of a fideicommissary substitution under Article 863 of the Civil Code is
also baseless as said paragraphs do not impose upon Eustaquia a clear obligation to preserve the estate in favor of Celsa L. Vda. de Kilayko, et al.,
neither may said paragraphs be considered as providing for a vulgar or simple substitution.
It should be remembered that when a testator merely names an heir and provides that if such heir should die a second heir also designated shall
succeed, there is no fideicommissary substitution. The substitution should then be construed as a vulgar or simple substitution under Art. 859 of the

Succession 102
Civil Code but it shall be effective only if the first heir dies before the testator. 47 In this case, the instituted heir, Eustaquia, survived the testatrix,
Maria Lizares. Hence, there can be no substitution of heirs for, upon Maria Lizares' death, the properties involved unconditionally devolved upon
Eustaquia. Under the circumstances, the sisters of Maria Lizares could only inherit the estate of Eustaquia by operation of the law of intestacy.
With respect to the cancellation of the notice of lis pendens on the properties involved, there is no merit in the contention of Celsa L. Vda. de
Kilayko, et al., that the lower court acted contrary to law and/or gravely abused its discretion in cancelling the notice of lis pendens. The cancellation
of such a precautionary notice, being a mere incident in an action, may be ordered by the court having jurisdiction over it at any given time. 48
Under Sec. 24, Rule 14 of the Rules of Court, a notice of lis pendens may be cancelled "after proper showing that the notice is for the purpose of
molesting the adverse party, or that it is not necessary to protect the rights of the party who caused it to be recorded." 49 In this case, the lower
court ordered the cancellation of said notice on the principal reason that the administrators of the properties involved are subject to the supervision
of the court and the said properties are under custodia legis. Therefore, such notice was not necessary to protect the rights of Celsa L. Vda. de
Kilayko, et al. More so in this case where it turned out that their claim to the properties left by Eustaquia is without any legal basis.
WHEREFORE, the petition for review on certiorari in L-45425 is hereby DENIED but the petition for certiorari and prohibition and/or mandamus in L45965 is GRANTED. The temporary restraining order of April 26, 1977 which was issued by the Court in L-45965 is made PERMANENT. Costs
against the petitioners in L-45425.
SO ORDERED.

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G.R. No. L-4602

August 31, 1951

JOSEFA PEAFLORIDA VDA. DE ARANCILLO and VICENTE ARANCILLO, movants and appellants,
vs.
REHABILITATION FINANCE CORPORATION, oppositor-appellee.
Fulgencio Vega and Emilio Eligio for appellants.
Rizal R. Ortiz for appellee.
FERIA, J.:
The facts in this case as stated in appellants' brief and accepted as correct by the appellee are the following:
On February 19, 1947, Carmen Ubalde executed a deed of donation inter vivos in favor of Asuncion Arancillo, predecessor-in-interest of Josefa
Peaflorida Vda. de Arancillo and Vicente Arancillo (herein movants- appellants), involving a certain parcel of land identified as Lot No. 7669 of the
Cadastral Survey of Pototan, Iloilo, and covered by Original Certificate of Title No. 41448 of the land records of the province of Iloilo. Dr. Asuncion
Arancillo the donee, died on June 18, 1948, in the city of Manila was succeeded in all his property rights by herein movants-appellants. Lot No.
7679 was mortgaged to the to the Agricultural and Industrial Bank, predecessor-in-interest of appellee, prior to the execution of the aforementioned
donation. On July 29, 1948, Carmen Ubalde, the registered owner, liquidated her mortgage indebtedness to the Agricultural and Industrial Bank and
executed a new mortgage in favor of the Agricultural and Industrial Bank, now Rehabilitation Finance Corporation, the owner's copy of Torrens Title
No. 41448 covering Lot No, 7679 has been in the possession of the mortgage. On October 13, 1948, movants-appellants requested the oppositorappellee to lend them the owner's copy of Torrens Title No. 41448 covering Lot No. 7679 in order that they could register the aforementioned deed
of donation without prejudice to the right of the Rehabilitation Finance Corporation as mortgagee of the property in question. The oppositor-appellee
refused; and, hence, on November 19, 1948, appellants filed a motion in court, praying that the said Rehabilitation Finance Corporation be
compelled to deliver the owners copy of the Torrens title aforementioned to the Register of Deeds of Iloilo in order that the deed of donation could
be registered (Record Appeal, pp. 1-5). Said motion, which was opposed by appellee (Record Appeal, pp. 6-7 was denied by the Court of first
Instance of Iloilo in its order dated November 29, 1948 (Record Appeal, pp. 8-9). Movants-appellants filed a motion for reconsideration which was
denied by the lower in its order dated December 20, 1948 (Record Appeal, pp. 22 27.)
The appellants in their first and second assignments of errors, submit the following arguments:
(a) In the light of the decision of the Supreme Court in the case of Bank of the Philippine Islands vs. Ty Camco Sobrino et al., the refusal of the
Rehabilitation Finance Corporation to surrender the owner's copy of the Torrens title to the Register of Deeds or its opposition to the registration of
the deed of donation in question is equivalent to questioning the validity of said donation which can only be done in an ordinary action.
(b) The validity of the prohibition contained in the mortgage contract in the case at bar to the effect that the mortgagor shall not sell, dispose of, or
encumber the mortgaged property without the consent of the mortgagee is not in issue.
(c) The prohibition mentioned in the preceding paragraph must be interpreted and construed in relation to the other stipulation of the same contract
which state that in cast the property mortgaged is sold or conveyed in spite of the prohibition, the vendee shall assume the mortgage together with
the vendor.
(d) In view of the principles interpretation of contracts laid down in Articles 1284 and 1285 of the Civil Code and sec. 59 of Rules 123 of the Rules of
the Court, the aforementioned stipulation qualifying the prohibition must be made applicable to the instant case. (Appellants Brief, pp. 12, 13.)
The mortgage contract executed by the appellants' predecessor in interest in favor of the defunct Agricultural and Industrial Bank and now the
appellee, contains the following proviso:
The Mortgagor shall not sell, dispose of nor in any manner encumber to the mortgage property, without the written consent of the mortgagee. If in
spite of this stipulation the property is sold, the Vendee shall assume the mortgage in the terms and conditions under which it is constituted, it being
understood that the assumption by the Vendee shall not release the Vendor of his obligation to the Agricultural & Industrial Bank; on the contrary,
both Vendor and Vendee shall be jointly and severally liable for said mortgage obligation. (Record on Appeal, pp. 22-23.)
The question involved in the present case is not the validity of the donation but whether or not the appellee may be compelled against its will to give
its consent to the registration of said donation, in view of the above quoted stipulation. The appellees does not and can not question the validity of
the transfer by donation to the appellants or their predecessor in interest of the property mortgage, because said property, being registered in
accordance with the Torrens System or Act No. 496, can not be considered as transferred until and unless said transfer has been registered.
In the case of Philippine Industrial Co. vs. El Hogar Filipino and Vallejo, (45 Phil. 336, 339, 341), this court held that the prohibition in a mortgage
contract against the encumbrances sale or disposal of the property mortgaged not contrary to law, morals or public interest (sec. 1255 of the Civil
Code). Such prohibition being valid, it follows that the appellee cannot be compelled by the courts to give its consent to the registration of the deed
of donation of the property mortgage by delivering for that purpose the transfer certificate of title in its possession. Otherwise the mortgagor may
circumvent the prohibition by compelling the mortgagee to do what the latter has to the sale or disposal or encumbrances of the mortgaged
property.
The decision in the case of Bank of the Philippines Islands vs. Ty Mamco, et al. (57 Phil., 803) is not applicable to the present case. In said case the
second mortgage had already been registered in the office of the Register of Deeds when the motion to cancel such registration was filed. And this
Court held that the Court of First Instance of Pangasinan was correct in holding that the cancellation of the registration of said second mortgage
involves the question of validity thereof; and the said court had no jurisdiction to pass upon that question. However, in deciding said question upon
the request of the parties, this Court held that the second mortgage in said case was valid because the mortgage the right to treat the second
mortgage as null and void, but only to immediately foreclosure the mortgage as penalty for such violation. This Court did not pass upon the validity
of an agreement made expressly in a contract, giving the mortgage the right to treat such second mortgage the right to treat such second mortgage
or disposal without the mortgagee's consent as null and void, as a penalty for such violation. While, in the present case the donation has not been
yet registered and therefore the question of validity of the transfer by donation of the property mortgaged to the appellants is not and can not be the
question in issue.
The decision in the case of Ty Camco has not reversed or modified the ruling laid in the case of Philippine Industrial Co. vs. El Hogar Filipino (45
Phil., 336), which held valid the prohibition to sell, dispose of, or any manner encumber the mortgage property such as the one contained in the
above quoted paragraph of the mortgage contract under consideration.
Although the owner's certificate of title has been delivered by the mortgagor to the mortgagee and is in the possession of the latter, it is still possible
that the mortgagor may sell, dispose of or in any manner encumbrances the mortgaged property, and register the sale, transfer or encumbrance in

Succession 104
the owner's certificate of title, without the written consent of the mortgagee; for as the attorney for the appellee says, the certificate of title may be
borrowed by the mortgagor from the mortgagee for a purpose other than the registration of document of transfer or second encumbrance, or it may
be accidentally lost and found by another person, or it may be stolen and delivered to the mortgagor, in which cases the transfer or second
mortgage may have the opportunity of effecting the registration of subsequent instrument of transfer or second encumbrances, without the consent
of the mortgagee.
As to the appellant's third assignment of error, the lower court was right in holding that "It is neither for this Court nor for the movants to inquire into
the reasons why the mortgagee does not welcome nay change in the position of the mortgage debtor. It is enough that the agreement prohibiting
the disposition of the mortgaged property by the mortgagor without the consent of the mortgagee is valid and binding." Besides, as the appellee's
attorney says in connection with this particular case: "On this point, we wish to state that in the matter of granting loans the Rehabilitation Finance
Corporation does not consider the sufficiency of securities alone. As government institution, it is guided by certain policies designed to accomplish a
government program. It is in pursuance of those policies that it has seen fit to include certain conditions in the mortgagee contract which if violated
might hamper such program."
In view of the foregoing, the order appealed from is affirmed with costs against the appellants.

Succession 105
G.R. No. 110427

February 24, 1997

The Incompetent, CARMEN CAIZA, represented by her legal guardian, AMPARO EVANGELISTA, petitioner,
vs.
COURT OF APPEALS (SPECIAL FIRST DIVISION), PEDRO ESTRADA and his wife, LEONORA ESTRADA, respondents.

NARVASA, C.J.:
On November 20, 1989, being then ninety-four (94) years of age, Carmen Caiza, a spinster, a retired pharmacist, and former professor of the
College of Chemistry and Pharmacy of the University of the Philippines, was declared incompetent by judgment 1 of the Regional Trial Court of
Quezon City, Branch 107, 2 in a guardianship proceeding instituted by her niece, Amparo A. Evangelista. 3 She was so adjudged because of her
advanced age and physical infirmities which included cataracts in both eyes and senile dementia. Amparo A. Evangelista was appointed legal
guardian of her person and estate.
Caiza was the owner of a house and lot at No. 61 Tobias St., Quezon City. On September 17, 1990, her guardian Amparo Evangelista commenced
a suit in the Metropolitan Trial Court (MetroTC) of Quezon City (Branch 35) to eject the spouses Pedro and Leonora Estrada from said premises. 4
The complaint was later amended to identify the incompetent Caiza as plaintiff, suing through her legal guardian, Amparo Evangelista.
The amended Complaint 5 pertinently alleged that plaintiff Caiza was the absolute owner of the property in question, covered by TCT No. 27147;
that out of kindness, she had allowed the Estrada Spouses, their children, grandchildren and sons-in-law to temporarily reside in her house, rentfree; that Caiza already had urgent need of the house on account of her advanced age and failing health, "so funds could be raised to meet her
expenses for support, maintenance and medical treatment;" that through her guardian, Caiza had asked the Estradas verbally and in writing to
vacate the house but they had refused to do so; and that "by the defendants' act of unlawfully depriving plaintiff of the possession of the house in
question, they . . (were) enriching themselves at the expense of the incompetent, because, while they . . (were) saving money by not paying any
rent for the house, the incompetent . . (was) losing much money as her house could not be rented by others." Also alleged was that the complaint
was "filed within one (1) year from the date of of first letter of demand dated February 3, 1990."
In their Answer with Counterclaim, the defendants declared that they had been living in Caiza's house since the 1960's; that in consideration of
their faithful service they had been considered by Caiza as her own family, and the latter had in fact executed a holographic will on September 4,
1988 by which she "bequeathed" to the Estradas the house and lot in question.
Judgment was rendered by the MetroTC on April 13, 1992 in Caiza's favor, 6 the Estradas being ordered to vacate the premises and pay Caiza
P5,000.00 by way of attorney's fees.
But on appeal, 8 the decision was reversed by the Quezon City Regional Trial Court, Branch 96. 9 By judgment rendered on October 21, 1992, 10
the RTC held that the "action by which the issue of defendants' possession should be resolved is accion publiciana, the obtaining factual and legal
situation . . demanding adjudication by such plenary action for recovery of possession cognizable in the first instance by the Regional Trial Court."
Caiza sought to have the Court of Appeals reverse the decision of October 21, 1992, but failed in that attempt. In a decision 11 promulgated on
June 2, 1993, the Appellate Court 12 affirmed the RTC's judgment in toto. It ruled that (a) the proper remedy for Caiza was indeed an accion
publiciana in the RTC, not an accion interdictal in the MetroTC, since the "defendants have not been in the subject premises as mere tenants or
occupants by tolerance, they have been there as a sort of adopted family of Carmen Caiza," as evidenced by what purports to be the holographic
will of the plaintiff; and (b) while "said will, unless and until it has passed probate by the proper court, could not be the basis of defendants' claim to
the property, . . it is indicative of intent and desire on the part of Carmen Caiza that defendants are to remain and are to continue in their
occupancy and possession, so much so that Caiza's supervening incompetency can not be said to have vested in her guardian the right or
authority to drive the defendants out." 13
Through her guardian, Caiza came to this Court praying for reversal of the Appellate Court's judgment. She contends in the main that the latter
erred in (a) holding that she should have pursued an accion publiciana, and not an accion interdictal; and in (b) giving much weight to "a xerox copy
of an alleged holographic will, which is irrelevant to this case." 14
In the responsive pleading filed by them on this Court's requirement, 15 the Estradas insist that the case against them was really not one of unlawful
detainer; they argue that since possession of the house had not been obtained by them by any "contract, express or implied," as contemplated by
Section 1, Rule 70 of the Rules of Court, their occupancy of the premises could not be deemed one "terminable upon mere demand (and hence
never became unlawful) within the context of the law." Neither could the suit against them be deemed one of forcible entry, they add, because they
had been occupying the property with the prior consent of the "real owner," Carmen Caiza, which "occupancy can even ripen into full ownership
once the holographic will of petitioner Carmen Caiza is admitted to probate." They conclude, on those postulates, that it is beyond the power of
Caiza's legal guardian to oust them from the disputed premises.
Carmen Caiza died on March 19, 1994, 16 and her heirs the aforementioned guardian, Amparo Evangelista, and Ramon C. Nevado, her niece
and nephew, respectively were by this Court's leave, substituted for her. 17
Three issues have to be resolved: (a) whether or not an ejectment action is the appropriate judicial remedy for recovery of possession of the
property in dispute; (b) assuming desahucio to be proper, whether or not Evangelista, as Caiza's legal guardian had authority to bring said action;
and (c) assuming an affirmative answer to both questions, whether or not Evangelista may continue to represent Caiza after the latter's death.
I
It is axiomatic that what determines the nature of an action as well as which court has jurisdiction over it, are the allegations of the complaint and
the character of the relief sought. 18 An inquiry into the averments of the amended complaint in the Court of origin is thus in order. 19
The amended Complaint alleges: 20
6.
That the plaintiff Carmen Caiza, is the sole and absolute owner of a house and lot at No. 61 Scout Tobias, Quezon City, which property
is now the subject of this complaint;
xxx

xxx

xxx

Succession 106
9.
That the defendants, their children, grandchildren and sons-in-law, were allowed to live temporarily in the house of plaintiff Carmen
Caiza, for free, out of her kindness;
10.
That the plaintiff, through her legal guardian, has duly notified the defendants, for them to vacate the said house, but the two (2) letters of
demand were ignored and the defendants refused to vacate the same. . .
11.
That the plaintiff, represented by her legal guardian, Amparo Evangelista, made another demand on the defendants for them to vacate
the premises, before Barangay Captain Angelina A. Diaz of Barangay Laging Handa, Quezon City, but after two (2) conferences, the result was
negative and no settlement was reached. A photocopy of the Certification to File Action dated July 4, 1990, issued by said Barangay Captain is
attached, marked Annex "D" and made an integral part hereof;
12.
That the plaintiff has given the defendants more than thirty (30) days to vacate the house, but they still refused to vacate the premises,
and they are up to this time residing in the said place;
13.
That this complaint is filed within one (1) year from the date of first letter of demand dated February 3, 1990 (Annex "B") sent by the
plaintiff to the defendants, by her legal guardian Amparo Evangelista;
14.
By the defendants' act of unlawfully depriving the plaintiff of the possession of the house in question, they are enriching themselves at the
expense of the incompetent plaintiff because, while they are saving money by not paying any rent for the house, the plaintiff is losing much money
as her house could not be rented by others;
15.
That the plaintiff's health is failing and she needs the house urgently, so that funds could be raised to meet her expenses for her support,
maintenance and medical treatment;
16.
That because of defendants' refusal to vacate the house at No. 61 Scout Tobias, Quezon City, the plaintiff, through her legal guardian,
was compelled to go to court for justice, and she has to spend P10,000.00 as attorney's fees.
Its prayer 21 is quoted below:
WHEREFORE, in the interest of justice and the rule of law, plaintiff, Carmen Caiza, represented by her legal guardian, Amparo Evangelista,
respectfully prays to this Honorable Court, to render judgment in favor of plaintiff and against the defendants as follows:
1.
To order the defendants, their children, grandchildren, sons-in-law and other persons claiming under them, to vacate the house and
premises at No. 6 1 Scout Tobias, Quezon City, so that its possession can be restored to the plaintiff Carmen Caiza; and
2.

To pay attorney's fees in the amount of P10,000.00;

3.

To pay the costs of the suit.

In essence, the amended complaint states:


1)
that the Estradas were occupying Caiza's house by tolerance having been "allowed to live temporarily . . (therein) for free, out of . .
(Caiza's) kindness;"
2)
that Caiza needed the house "urgently" because her "health . . (was) failing and she . . (needed) funds . . to meet her expenses for her
support, maintenance and medical treatment;"
3)
house;

that through her general guardian, Caiza requested the Estradas several times, orally and in writing, to give back possession of the

4)

that the Estradas refused and continue to refuse to give back the house to Caiza, to her continuing prejudice; and

5)

that the action was filed within one (1) year from the last demand to vacate.

Undoubtedly, a cause of action for desahucio has been adequately set out. It is settled that in an action for unlawful detainer, it suffices to allege that
the defendant is unlawfully withholding possession from the plaintiff is deemed sufficient, 22 and a complaint for unlawful detainer is sufficient if it
alleges that the withholding of possession or the refusal to vacate is unlawful without necessarily employing the terminology of the law. 23
The Estradas' first proffered defense derives from a literal construction of Section 1, Rule 70 of the Rules of Court which inter alia authorizes the
institution of an unlawful detainer suit when "the possession of any land or building is unlawfully withheld after the expiration or termination of the
right to hold possession, by virtue of any contract, express or implied." They contend that since they did not acquire possession of the property in
question "by virtue of any contract, express or implied" they having been, to repeat, "allowed to live temporarily . . (therein) for free, out of . .
(Caiza's) kindness" in no sense could there be an "expiration or termination of . . (their) right to hold possession, by virtue of any contract,
express or implied." Nor would an action for forcible entry lie against them, since there is no claim that they had "deprived (Caiza) of the
possession of . . (her property) by force, intimidation, threat, strategy, or stealth.
The argument is arrant sophistry. Caiza's act of allowing the Estradas to occupy her house, rent-free, did not create a permanent and indefeasible
right of possession in the latter's favor. Common sense, and the most rudimentary sense of fairness clearly require that that act of liberality be
implicitly, but no less certainly, accompanied by the necessary burden on the Estradas of returning the house to Caiza upon her demand. More
than once has this Court adjudged that a person who occupies the land of another at the latter's tolerance or permission without any contract
between them is necessarily bound by an implied promise that he will vacate upon demand, failing which a summary action for ejectment is the
proper remedy against him. 24 The situation is not much different from that of a tenant whose lease expires but who continues in occupancy by
tolerance of the owner, in which case there is deemed to be an unlawful deprivation or withholding of possession as of the date of the demand to
vacate. 25 In other words, one whose stay is merely tolerated becomes a deforciant illegally occupying the land or property the moment he is
required to leave. 26 Thus, in Asset Privatization Trust vs. Court of Appeals, 27 where a company, having lawfully obtained possession of a plant
upon its undertaking to buy the same, refused to return it after failing to fulfill its promise of payment despite demands, this Court held that "(a)fter
demand and its repudiation, . . (its) continuing possession . . became illegal and the complaint for unlawful detainer filed by the
. . (plant's owner) was its proper remedy.
It may not be amiss to point out in this connection that where there had been more than one demand to vacate, the one-year period for filing the
complaint for unlawful detainer must be reckoned from the date of the last demand, 28 the reason being that the lessor has the option to waive his

Succession 107
right of action based on previous demands and let the lessee remain meanwhile in the premises. 29 Now, the complaint filed by Caiza's guardian
alleges that the same was "filed within one (1) year from the date of the first letter of demand dated February 3, 1990." Although this averment is not
in accord with law because there is in fact a second letter of demand to vacate, dated February 27, 1990, the mistake is inconsequential, since the
complaint was actually filed on September 17, 1990, well within one year from the second (last) written demand to vacate.
The Estradas' possession of the house stemmed from the owner's express permission. That permission was subsequently withdrawn by the owner,
as was her right; and it is immaterial that the withdrawal was made through her judicial guardian, the latter being indisputably clothed with authority
to do so. Nor is it of any consequence that Carmen Caiza had executed a will bequeathing the disputed property to the Estradas; that
circumstance did not give them the right to stay in the premises after demand to vacate on the theory that they might in future become owners
thereof, that right of ownership being at best inchoate, no transfer of ownership being possible unless and until the will is duly probated.
Thus, at the time of the institution of the action of desahucio, the Estradas had no legal right to the property, whether as possessors by tolerance or
sufferance, or as owners. They could not claim the right of possession by sufferance; that had been legally ended. They could not assert any right of
possession flowing from their ownership of the house; their status as owners is dependent on the probate of the holographic will by which the
property had allegedly been bequeathed to them an event which still has to take place; in other words, prior to the probate of the will, any
assertion of possession by them would be premature and inefficacious.
In any case, the only issue that could legitimately be raised under the circumstances was that involving the Estradas' possession by tolerance, i.e.,
possession de facto, not de jure. It is therefore incorrect to postulate that the proper remedy for Caiza is not ejectment but accion publiciana, a
plenary action in the RTC or an action that is one for recovery of the right to possession de jure.
II
The Estradas insist that the devise of the house to them by Caiza clearly denotes her intention that they remain in possession thereof, and legally
incapacitated her judicial guardian, Amparo Evangelista, from evicting them therefrom, since their ouster would be inconsistent with the ward's will.
A will is essentially ambulatory; at any time prior to the testator's death, it may be changed or revoked; 30 and until admitted to probate, it has no
effect whatever and no right can be claimed thereunder, the law being quite explicit: "No will shall pass either real or personal property unless it is
proved and allowed in accordance with the Rules of Court" (ART. 838, id.). 31 An owner's intention to confer title in the future to persons possessing
property by his tolerance, is not inconsistent with the former's taking back possession in the meantime for any reason deemed sufficient. And that in
this case there was sufficient cause for the owner's resumption of possession is apparent: she needed to generate income from the house on
account of the physical infirmities afflicting her, arising from her extreme age.
Amparo Evangelista was appointed by a competent court the general guardian of both the person and the estate of her aunt, Carmen Caiza. Her
Letters of Guardianship 32 dated December 19, 1989 clearly installed her as the "guardian over the person and properties of the incompetent
CARMEN CANIZA with full authority to take possession of the property of said incompetent in any province or provinces in which it may be situated
and to perform all other acts necessary for the management of her properties . . " 33 By that appointment, it became Evangelista's duty to care for
her aunt's person, to attend to her physical and spiritual needs, to assure her well-being, with right to custody of her person in preference to
relatives and friends. 34 It also became her right and duty to get possession of, and exercise control over, Caiza's property, both real and personal,
it being recognized principle that the ward has no right to possession or control of his property during her incompetency. 35 That right to manage the
ward's estate carries with it the right to take possession thereof and recover it from anyone who retains it, 36 and bring and defend such actions as
may be needful for this purpose. 37
Actually, in bringing the action of desahucio, Evangelista was merely discharging the duty to attend to "the comfortable and suitable maintenance of
the ward" explicitly imposed on her by Section 4, Rule 96 of the Rules of Court, viz.:
Sec. 4. Estate to be managed frugally, and proceeds applied to maintenance of ward. A guardian must manage the estate of his ward frugally
and without waste, and apply the income and profits thereof, so far as maybe necessary, to the comfortable and suitable maintenance of the ward
and his family, if there be any; and if such income and profits be insufficient for that purpose, the guardian may sell or encumber the real estate,
upon being authorized by order to do so, and apply to such of the proceeds as may be necessary to such maintenance.
Finally, it may be pointed out in relation to the Estradas's defenses in the ejectment action, that as the law now stands, even when, in forcible entry
and unlawful detainer cases, the defendant raises the question of ownership in his pleadings and the question of possession cannot be resolved
without deciding the issue of ownership, the Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts nevertheless have
the undoubted competence to resolve "the issue of ownership . . only to determine the issue of possession." 38
III
As already stated, Carmen Caiza passed away during the pendency of this appeal. The Estradas thereupon moved to dismiss the petition, arguing
that Caiza's death automatically terminated the guardianship, Amaparo Evangelista lost all authority as her judicial guardian, and ceased to have
legal personality to represent her in the present appeal. The motion is without merit.
While it is indeed well-established rule that the relationship of guardian and ward is necessarily terminated by the death of either the guardian or the
ward, 39 the rule affords no advantage to the Estradas. Amparo Evangelista, as niece of Carmen Caiza, is one of the latter's only two (2) surviving
heirs, the other being Caiza's nephew, Ramon C. Nevado. On their motion and by Resolution of this Court 40 of June 20, 1994, they were in fact
substituted as parties in the appeal at bar in place of the deceased, in accordance with Section 17, Rule 3 of the Rules of Court, viz.: 41
Sec. 18. Death of a party. After a party dies and the claim is not thereby extinguished, the court shall order, upon proper notice, the legal
representative of the deceased to appear and be substituted for the deceased within a period of thirty (30) days, or within such time as may be
granted. If the legal representative fails to appear within said time, the court may order the opposing party to procure the appointment of a legal
representative of the deceased within a time to be specified by the court, and the representative shall immediately appear for and on behalf of the
interest of the deceased. The court charges involved in procuring such appointment, if defrayed by the opposing party, may be recovered as costs.
The heirs of the deceased may be allowed to be substituted for the deceased, without requiring the appointment of an executor or administrator and
the court may appoint guardian ad litem for the minor heirs.
To be sure, an ejectment case survives the death of a party. Caiza's demise did not extinguish the desahucio suit instituted by her through her
guardian. 42 That action, not being a purely personal one, survived her death; her heirs have taken her place and now represent her interests in the
appeal at bar.
WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals promulgated on June 2, 1993 affirming the Regional Trial Court's
judgment and dismissing petitioner's petition for certiorari is REVERSED and SET ASIDE, and the Decision dated April 13, 1992 of the
Metropolitan Trial Court of Quezon City, Branch 35, in Civil Case No. 3410 is REINSTATED and AFFIRMED. Costs against private respondents.

Succession 108
SO ORDERED.
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.

Succession 109
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

Succession 110
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.

Succession 111
G.R. No. L-32213

November 26, 1973

AGAPITA N. CRUZ, petitioner,


vs.
HON. JUDGE GUILLERMO P. VILLASOR, Presiding Judge of Branch I, Court of First Instance of Cebu, and MANUEL B. LUGAY, respondents.
Paul G. Gorrez for petitioner.
Mario D. Ortiz for respondent Manuel B. Lugay.

ESGUERRA, J.:
Petition to review on certiorari the judgment of the Court First Instance of Cebu allowing the probate of the last will a testament of the late Valente Z.
Cruz. Petitioner-appellant Agapita N. Cruz, the surviving spouse of the said decease opposed the allowance of the will (Exhibit "E"), alleging the will
was executed through fraud, deceit, misrepresentation and undue influence; that the said instrument was execute without the testator having been
fully informed of the content thereof, particularly as to what properties he was disposing and that the supposed last will and testament was not
executed in accordance with law. Notwithstanding her objection, the Court allowed the probate of the said last will and testament Hence this appeal
by certiorari which was given due course.
The only question presented for determination, on which the decision of the case hinges, is whether the supposed last will and testament of Valente
Z. Cruz (Exhibit "E") was executed in accordance with law, particularly Articles 805 and 806 of the new Civil Code, the first requiring at least three
credible witnesses to attest and subscribe to the will, and the second requiring the testator and the witnesses to acknowledge the will before a
notary public.
Of the three instrumental witnesses thereto, namely Deogracias T. Jamaloas Jr., Dr. Francisco Paares and Atty. Angel H. Teves, Jr., one of them,
the last named, is at the same time the Notary Public before whom the will was supposed to have been acknowledged. Reduced to simpler terms,
the question was attested and subscribed by at least three credible witnesses in the presence of the testator and of each other, considering that the
three attesting witnesses must appear before the notary public to acknowledge the same. As the third witness is the notary public himself, petitioner
argues that the result is that only two witnesses appeared before the notary public to acknowledge the will. On the other hand, private respondentappellee, Manuel B. Lugay, who is the supposed executor of the will, following the reasoning of the trial court, maintains that there is substantial
compliance with the legal requirement of having at least three attesting witnesses even if the notary public acted as one of them, bolstering up his
stand with 57 American Jurisprudence, p. 227 which, insofar as pertinent, reads as follows:
It is said that there are, practical reasons for upholding a will as against the purely technical reason that one of the witnesses required by law signed
as certifying to an acknowledgment of the testator's signature under oath rather than as attesting the execution of the instrument.
After weighing the merits of the conflicting claims of the parties, We are inclined to sustain that of the appellant that the last will and testament in
question was not executed in accordance with law. The notary public before whom the will was acknowledged cannot be considered as the third
instrumental witness since he cannot acknowledge before himself his having signed the will. To acknowledge before means to avow (Javellana v.
Ledesma, 97 Phil. 258, 262; Castro v. Castro, 100 Phil. 239, 247); to own as genuine, to assent, to admit; and "before" means in front or preceding
in space or ahead of. (The New Webster Encyclopedic Dictionary of the English Language, p. 72; Funk & Wagnalls New Standard Dictionary of the
English Language, p. 252; Webster's New International Dictionary 2d. p. 245.) Consequently, if the third witness were the notary public himself, he
would have to avow assent, or admit his having signed the will in front of himself. This cannot be done because he cannot split his personality into
two so that one will appear before the other to acknowledge his participation in the making of the will. To permit such a situation to obtain would be
sanctioning a sheer absurdity.
Furthermore, the function of a notary public is, among others, to guard against any illegal or immoral arrangement Balinon v. De Leon, 50 0. G.
583.) That function would defeated if the notary public were one of the attesting instrumental witnesses. For them he would be interested sustaining
the validity of the will as it directly involves him and the validity of his own act. It would place him in inconsistent position and the very purpose of
acknowledgment, which is to minimize fraud (Report of Code Commission p. 106-107), would be thwarted.
Admittedly, there are American precedents holding that notary public may, in addition, act as a witness to the executive of the document he has
notarized. (Mahilum v. Court Appeals, 64 0. G. 4017; 17 SCRA 482; Sawyer v. Cox, 43 Ill. 130). There are others holding that his signing merely as
notary in a will nonetheless makes him a witness thereon (Ferguson v. Ferguson, 47 S. E. 2d. 346; In Re Douglas Will, N. Y. S. 2d. 641; Ragsdal v.
Hill, 269 S. W. 2d. 911, Tyson Utterback, 122 So. 496; In Re Baybee's Estate 160 N. 900; W. Merill v. Boal, 132 A. 721; See also Trenwith v.
Smallwood, 15 So. 1030). But these authorities do not serve the purpose of the law in this jurisdiction or are not decisive of the issue herein
because the notaries public and witnesses referred to aforecited cases merely acted as instrumental, subscribing attesting witnesses, and not as
acknowledging witnesses. He the notary public acted not only as attesting witness but also acknowledging witness, a situation not envisaged by
Article 805 of the Civil Code which reads:
ART. 806. Every will must be acknowledged before a notary public by the testator and the witnesses. The notary public shall not be required to
retain a copy of the will or file another with the office of the Clerk of Court. [Emphasis supplied]
To allow the notary public to act as third witness, or one the attesting and acknowledging witnesses, would have the effect of having only two
attesting witnesses to the will which would be in contravention of the provisions of Article 80 be requiring at least three credible witnesses to act as
such and of Article 806 which requires that the testator and the required number of witnesses must appear before the notary public to acknowledge
the will. The result would be, as has been said, that only two witnesses appeared before the notary public for or that purpose. In the circumstances,
the law would not be duly in observed.
FOR ALL THE FOREGOING, the judgment appealed from is hereby reversed and the probate of the last will and testament of Valente Z. Cruz
(Exhibit "E") is declared not valid and hereby set aside.
Cost against the appellee.

Succession 112
G.R. No. 144915

February 23, 2004

CAROLINA CAMAYA, FERDINAND CAMAYA, EDGARDO CAMAYA and ANSELMO MANGULABNAN, petitioners
vs.
BERNARDO PATULANDONG, respondent.
DECISION
CARPIO-MORALES, J.:
Before this Court is a petition for review on certiorari under Rule 45 of the 1997 Revised Rules of Court seeking the reversal of the Court of Appeals
Decision dated June 19, 2000 in CA-G.R. CV No. 53757, "In re: Petition for the Probate of the Codicil (Will) of Rufina Reyes; Bernardo Patulandong
v. Anselmo Mangulabnan v. Carolina G. Camaya, Ferdinand Camaya and Edgardo Camaya."
On November 17, 1972, Rufina Reyes (testatrix) executed a notarized will wherein she devised, among others, Lot No. 288-A to her grandson
Anselmo Mangulabnan (Mangulabnan). The pertinent portion of her will reads:
IKALIMA. - Aking inihahayag at ginagawa na tagapagmana, sa aking kusang loob, ang pinalaki kong APO na si ANSELMO P. MANGULABNAN,
may sapat na gulang, kasal kay Flora Umagap, at naninirahan sa San Lorenzo, Gapan, Nueva Ecija, at anak ng aking anak na si SIMPLICIA, at sa
aking APO na si ANSELMO ay aking ipinagkakaloob at ipinamamana, sa aking pagkamatay, ang mga sumusunod kong pagaari:
LOT NO. TITLE NO.
KINALALAGYAN NABANGGIT SA
288-A
NT-47089 Sta. Cruz (1) p. 2
3348-A 100629 Poblacion (2) p. 2
3349-B 100630 Poblacion (3) p. 2
xxx1 (Underscoring in the original; emphasis supplied)
The testatrixs son Bernardo Patulandong (Patulandong), respondent herein, was in the will appointed as the executor.
During her lifetime, the testatrix herself filed a petition for the probate of her will before the then Court of First Instance (CFI) of Nueva Ecija where it
was docketed as Sp. Pro. No. 128.
By Order2 of January 11, 1973, the CFI admitted the will to probate.
On June 27, 1973, the testatrix executed a codicil modifying above-quoted paragraph five of her will in this wise:
UNA. - Ang Lote No. 288-A na nakalagay sa barrio ng Sta. Cruz, Gapan, Nueva Ecija, magsukat 36,384 metro cuadrados, at nagtataglay ng TCT
No. NT-47089, na aking ipinamana sa aking apong si ANSELMO P. MANGULABNAN, sangayon sa Pangkat IKA-LIMA, pp. 5-6, ng aking HULING
HABILIN (Testamento), ay ipinasiya kong ipagkaloob at ipamana sa aking mga anak na sina BERNARDO, SIMPLICIA, GUILLERMA at JUAN
nagaapellidong PATULANDONG, at sa aking apong si ANSELMO P. MANGULABNAN, sa magkakaparehong bahagi na tig-ikalimang bahagi bawat
isa sa kanila.
IKALAWA. - Na maliban sa pagbabagong ito, ang lahat ng mga tadhana ng aking HULING HABILIN ay aking pinagtitibay na muli.
x x x3 (Underscoring in the original; emphasis supplied) On May 14, 1988, the testatrix died.
Mangulabnan later sought the delivery to him by executor Patulandong of the title to Lot 288-A. Patulandong refused to heed the request, however,
in view of the codicil which modified the testators will.
Mangulabnan thus filed an "action for partition" against Patulandong with the Regional Trial Court of Gapan, Nueva Ecija, docketed as Civil Case
No. 552 (the partition case).
On June 8, 1989, the trial court rendered a decision in the partition case,4 the dispositive portion of which reads:
WHEREFORE, the court orders the partitioning of the properties and the defendant to deliver the copy of the Transfer Certificate of Title No. NT47089.
However, in view of the case cited by the plaintiff himself, the court holds that the partition is without prejudice [to]... the probate of the codicil in
accordance with the Rules of Court, [P]alacios vs. Catimbang Palacios cited by the plaintiff:
"After a will has been probated during the lifetime of the testator, it does not necessarily mean that he cannot alter or revoke the same before his
death. Should he make a new will, it would also be allowable of his petition and if he should die before he had a chance to present such petition, the
ordinary probate proceedings after the testators death would be in order."
The Court also orders that the right of the tenants of the agricultural land in question should be protected meaning to say that the tenants should not
be ejected. (Emphasis and underscoring supplied)
On July 17, 1989 Patulandong filed before the Regional Trial Court of Nueva Ecija a petition5 for probate of the codicil of the testatrix, docketed as
Sp. Proc. No. 218.
On December 28, 1989, the probate court issued an Order6 setting the petition for hearing and ordering the publication of said order.
On February 7, 1991, by virtue of the decision in the partition case, Mangulabnan caused the cancellation of the title of the testatrix over Lot No.
288-A and TCT No. NT-2157507 was issued in his name.
Mangulabnan later sold to herein petitioners Camayas Lot No. 288-A by a Deed of Sale dated February 19, 1991.8 TCT No. NT-215750 was thus
cancelled and TCT No. NT-2164469 was issued in the name of the Camayas.
On January 16, 1996, the trial rendered a decision10 in Sp. Proc. No. 218 admitting the codicil to probate and disposing as follows:
WHEREFORE, in view of all the foregoing, judgment is hereby rendered in the following manner:

Succession 113
1. Declaring Transfer Certificate of Title No. NT-215750 issued by the Register of Deeds of Nueva Ecija in the name of Anselmo Mangulabnan dated
February 7, 1991 and the Deed of Absolute Sale executed by him in favor of the intervenors Carolina, Ferdinand and Edgardo, all surnamed
Camaya on February 19, 1991 and Transfer Certificate of Title No. NT-216446 under date March 18, 1991 issued in the names of the above-named
intervenors as NULL and VOID and of no force and effect; and,
2. Ordering the Register of Deeds of Nueva Ecija to cancel Transfer of Certificate of Title Nos. NT-215750 and NT-216446 and reissue the
corresponding Certificate of Titles to Bernardo R. Patulandong, Filipino, married to Gorgonia Mariano residing at San Vicente, Gapan, Nueva Ecija,
Juan R. Patulandong, Filipino, widower and residing at San Lorenzo, Gapan, Nueva Ecija; Guillerma R. Patulandong Linsangan of legal age,
Filipino, widow and residing at San Vicente, Gapan, Nueva Ecija, Simplicia R. Patulandong Mangulabnan, of legal age, widow, and residing at San
Lorenzo, Gapan, Nueva Ecija and her grandson, Anselmo Mangulabnan with full personal circumstances stated herein to the extent of one fifth
(1/5) each pursuant to the approved codicil (will) of Rufina Reyes dated June 27, 1973.11
The Camayas who had been allowed to intervene in Sp. Proc. No. 218, and Mangulabnan, filed a Motion for Reconsideration of the above-said
decision but it was denied by Order12 of February 28,1996.
On appeal to the Court of Appeals, the Camayas and Mangulabnan (hereinafter referred to as petitioners) raised the following errors:
1. THERE WERE SERIOUS SUBSTANTIAL DEPARTURES FROM THE FORMALITIES REQUIRED BY THE RULES, THE LAW, AND THE
AUTHORITY OF THE REGIONAL TRIAL COURT SETTING AS A PROBATE COURT.
2. THE OPPOSITOR DID NOT ONLY ACQUIRE LOT NO. 288-A BY WILL BUT HE ALSO ACQUIRED THE SAME BY PARTITION IN A CIVIL CASE
WHERE THE DECISION HAS ALREADY REACHED ITS FINALITY AND THEREFORE CAN NO LONGER BE NEGATED BY A QUESTIONABLE
CODICIL.
3. THAT THE SUBJECT LOT 288-A IS NO LONGER WITHIN THE REACHED (sic) OF THE PETITIONER CONSIDERING THAT THE
OPPOSITOR VENDOR HAD A CLEAN TITLE AND THAT THE INTERVENORS-VENDEED HAD ACQUIRED THE SAME BY WAY OF SALE AS
INNOCENT PURCHASER IN GOOD FAITH AND FOR VALUE.13
By Decision14 of June 19, 2000, the Court of Appeals affirmed that of the trial court.
Hence, the present petition for Review on Certiorari proffering the following issues:
1. Whether the probate court exceeded its jurisdiction when it declared null and void and ordered the cancellation of the TCTs of petitioners and the
deed of sale; and
2. Whether the final judgment in Civil Case No. 552 bars the allowance of the codicil.
As to the first issue, petitioners contend that the under the law, the probate court has no power, authority, and jurisdiction to declare null and void
the sale and titles of petitioners;15 and that the probate court can only resolve the following issues:
1. Whether or not the instrument which is offered for probate is the last will and testament of the decedent; in other words, the question is one of
identity[;]
2. Whether or not the will has been executed in accordance with the formalities prescribed by law; in other words, the question is one of due
execution[; and]
3. Whether the testator had testamentary capacity at the time of the execution of the will; in other words, the question is one of capacity.16
In Cuizon v. Ramolete, 17 this Court elucidated on the limited jurisdiction of a probate court, to wit:
It is well-settled rule that a probate court or one in charge of proceedings whether testate or intestate cannot adjudicate or determine title to
properties claimed to be a part of the estate and which are equally claimed to belong to outside parties. All that said court could do as regards said
properties is to determine whether they should or should not be included in the inventory or list of properties to be administered by the administrator.
If there is no dispute, well and good; but if there is, then the parties, the administrator, and the opposing parties have to resort to an ordinary action
for a final determination of the conflicting claims of title because the probate court cannot do so.
xxx
Having been apprised of the fact that the property in question was in the possession of third parties and more important, covered by a transfer
certificate of title issued in the name of such third parties, the respondent court should have denied the motion of the respondent administrator and
excluded the property in question from the inventory of the property of the estate. It had no authority to deprive such third persons of their
possession and ownership of the property. x x x (Emphasis and underscoring supplied)
Following Cuizon, the probate court exceeded its jurisdiction when it further declared the deed of sale and the titles of petitioners null and void, it
having had the effect of depriving them possession and ownership of the property.
Moreover, following Section 48 of the Property Registry Decree which reads:
SECTION 48. Certificate not subject to collateral attack. - A certificate of title shall not be subject to collateral attack. It cannot be altered, modified,
or cancelled except in a direct proceeding in accordance with law,
petitioners titles cannot, under probate proceedings, be declared null and void.
As to the second issue, petitioners argue that by allowing the codicil to probate, it in effect amended the final judgment in the partition case which is
not allowed by law;18 and that petitioner Camayas are innocent purchasers for value and enjoy the legal presumption that the transfer was
lawful.19
Petitioners first argument does not persuade.
Though the judgment in the partition case had become final and executory as it was not appealed, it specifically provided in its dispositive portion
that the decision was "without prejudice [to] ... the probate of the codicil." The rights of the prevailing parties in said case were thus subject to the
outcome of the probate of the codicil.

Succession 114
The probate court being bereft of authority to rule upon the validity of petitioners titles, there is no longer any necessity to dwell on the merits of
petitioners Camayas claim that they are innocent purchasers for value and enjoy the legal presumption that the transfer was lawful.
WHEREFORE, the petition is GRANTED IN PART.
The Decision of the Court of Appeals dated June 19, 2000 in CA-G.R. CV No. 53757 affirming the January 16, 1996 Decision of Regional Trial
Court, Branch 35, of Gapan, Nueva Ecija, is hereby AFFIRMED with MODIFICATION.
The decision allowing the codicil is AFFIRMED, but the 1) declaration as null and void of Transfer Certificate of Title No. NT-215750 issued on
February 7, 1991 by the Register of Deeds of Nueva Ecija in the name of Anselmo Mangulabnan, the February 19, 1991 Deed of Absolute Sale
executed by him in favor of the intervenors - herein petitioners Carolina, Ferdinand and Edgardo Camaya, and Transfer Certificate of Title No. NT216446 issued on March 18, 1991 in favor of the petitioners Camayas, and 2) the order for the Register of Deeds of Nueva Ecija to cancel Transfer
of Certificate of Title Nos. NT-215750 and NT-216446 and reissue the corresponding Certificate of Titles to Bernardo R. Patulandong, Juan R.
Patulandong, Guillerma R. Patulandong Linsangan, Simplicia R. Patulandong Mangulabnan, and Anselmo Mangulabnan to the extent of one-fifth
(1/5) each pursuant to the approved codicil are SET ASIDE, without prejudice to respondent and his co-heirs ventilation of their right in an
appropriate action.
SO ORDERED.

Succession 115
G.R. No. 133000

October 2, 2001

PATRICIA NATCHER, petitioner,


vs.
HON. COURT OFAPPEALS AND THE HEIR OF GRACIANO DEL ROSARIO LETICIA DEL ROSARIO, EMILIA DEL RESORIO MANANGAN,
ROSALINDA FUENTES LLANA, RODOLFO FUENTES, ALBERTO FUENTES, EVELYN DEL ROSARIO, and EDUARDO DEL ROSARIO,
respondent..
BUENA, J.:
May a Regional Trial Court, acting as a court of general jurisdiction in an action for reconveyance annulment of title with damages, adjudicate
matters relating to the settlement of the estate of a deceased person particularly on questions as to advancement of property made by the decedent
to any of the heirs?
Sought to be reversed in this petition for review on certiorari under Rule 45 is the decision1 of public respondent Court of Appeals, the decretal
portion of which declares:
"Wherefore in view of the foregoing considerations, judgment appealed from is reversed and set aside and another one entered annulling the Deed
of Sale executed by Graciano Del Rosario in favor of defendant-appellee Patricia Natcher, and ordering the Register of Deeds to Cancel TCT No.
186059 and reinstate TCT No. 107443 without prejudice to the filing of a special proceeding for the settlement of the estate of Graciano Del Rosario
in a proper court. No costs.
"So ordered."
Spouses Graciano del Rosario and Graciana Esguerra were registered owners of a parcel of land with an area of 9,322 square meters located in
Manila and covered by Transfer Certificate of Title No. 11889. Upon the death of Graciana in 1951, Graciano, together with his six children, namely:
Bayani, Ricardo, Rafael, Leticia, Emiliana and Nieves, entered into an extrajudicial settlement of Graciana's estate on 09 February 1954
adjudicating and dividing among themselves the real property subject of TCT No. 11889. Under the agreement, Graciano received 8/14 share while
each of the six children received 1/14 share of the said property. Accordingly, TCT No. 11889 was cancelled, and in lieu thereof, TCT No. 35980
was issued in the name of Graciano and the Six children.1wphi1.nt
Further, on 09 February 1954, said heirs executed and forged an "Agreement of Consolidation-Subdivision of Real Property with Waiver of Rights"
where they subdivided among themselves the parcel of land covered by TCT No. 35980 into several lots. Graciano then donated to his children,
share and share alike, a portion of his interest in the land amounting to 4,849.38 square meters leaving only 447.60 square meters registered under
Graciano's name, as covered by TCT No. 35988. Subsequently, the land subject of TCT No. 35988 was further subdivided into two separate lots
where the first lot with a land area of 80.90 square meter was registered under TCT No. 107442 and the second lot with a land area of 396.70
square meters was registered under TCT No. 107443. Eventually, Graciano sold the first lot2 to a third person but retained ownership over the
second lot.3
On 20 March 1980, Graciano married herein petitioner Patricia Natcher. During their marriage, Graciano sold the land covered by TCT No. 107443
to his wife Patricia as a result of which TCT No. 1860594 was issued in the latter's name. On 07 October 1985,Graciano died leaving his second
wife Patricia and his six children by his first marriage, as heirs.
In a complaint5 filed in Civil Case No. 71075 before the Regional Trial Court of Manila, Branch 55, herein private respondents alleged that upon
Graciano's death, petitioner Natcher, through the employment of fraud, misrepresentation and forgery, acquired TCT No. 107443, by making it
appear that Graciano executed a Deed of Sale dated 25 June 19876 in favor herein petitioner resulting in the cancellation of TCT No. 107443 and
the issuance of TCT no. 186059 in the name of Patricia Natcher. Similarly, herein private respondents alleged in said complaint that as a
consequence of such fraudulent sale, their legitimes have been impaired.
In her answer7 dated 19 August 1994, herein petitioner Natcher averred that she was legally married to Graciano in 20 March 1980 and thus, under
the law, she was likewise considered a compulsory heir of the latter. Petitioner further alleged that during Graciano's lifetime, Graciano already
distributed, in advance, properties to his children, hence, herein private respondents may not anymore claim against Graciano's estate or against
herein petitioner's property.
After trial, the Regional Trial Court of Manila, Branch 55, rendered a decision dated 26 January 1996 holding:8
"1) The deed of sale executed by the late Graciano del Rosario in favor of Patricia Natcher is prohibited by law and thus a complete nullity. There
being no evidence that a separation of property was agreed upon in the marriage settlements or that there has been decreed a judicial separation of
property between them, the spouses are prohibited from entering (into) a contract of sale;
"2) The deed as sale cannot be likewise regarded as a valid donation as it was equally prohibited by law under Article 133 of the New Civil Code;
"3) Although the deed of sale cannot be regarded as such or as a donation, it may however be regarded as an extension of advance inheritance of
Patricia Natcher being a compulsory heir of the deceased."
On appeal, the Court of Appeals reversed and set aside the lower court's decision ratiocinating, inter alia:
"It is the probate court that has exclusive jurisdiction to make a just and legal distribution of the estate. The court a quo, trying an ordinary action for
reconveyance / annulment of title, went beyond its jurisdiction when it performed the acts proper only in a special proceeding for the settlement of
estate of a deceased person. XXX
"X X X Thus the court a quo erred in regarding the subject property as advance inheritance. What the court should have done was merely to rule on
the validity of (the) sale and leave the issue on advancement to be resolved in a separate proceeding instituted for that purpose. XXX"
Aggrieved, herein petitioner seeks refuge under our protective mantle through the expediency of Rule 45 of the Rules of Court and assails the
appellate court's decision "for being contrary to law and the facts of the case."
We concur with the Court of Appeals and find no merit in the instant petition.
Section 3, Rule 1 of the 1997 Rules of Civil Procedure defines civil action and special proceedings, in this wise:
"XXX a) A civil action is one by which a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong.

Succession 116
"A civil action may either be ordinary or special. Both are government by the rules for ordinary civil actions, subject to specific rules prescribed for a
special civil action.
"XXX
"c) A special proceeding is a remedy by which a party seeks to establish a status, a right or a particular fact."
As could be gleaned from the foregoing, there lies a marked distinction between an action and a special proceeding. An action is a formal demand
of one's right in a court of justice in the manner prescribed by the court or by the law. It is the method of applying legal remedies according to
definite established rules. The term "special proceeding" may be defined as an application or proceeding to establish the status or right of a party, or
a particular fact. Usually, in special proceedings, no formal pleadings are required unless the statute expressly so provides. In special proceedings,
the remedy is granted generally upon an application or motion."9
Citing American Jurisprudence, a noted authority in Remedial Law expounds further:
"It may accordingly be stated generally that actions include those proceedings which are instituted and prosecuted according to the ordinary rules
and provisions relating to actions at law or suits in equity, and that special proceedings include those proceedings which are not ordinary in this
sense, but is instituted and prosecuted according to some special mode as in the case of proceedings commenced without summons and
prosecuted without regular pleadings, which are characteristics of ordinary actions. XXX A special proceeding must therefore be in the nature of a
distinct and independent proceeding for particular relief, such as may be instituted independently of a pending action, by petition or motion upon
notice."10
Applying these principles, an action for reconveyance and annulment of title with damages is a civil action, whereas matters relating to settlement of
the estate of a deceased person such as advancement of property made by the decedent, partake of the nature of a special proceeding, which
concomitantly requires the application of specific rules as provided for in the Rules of Court.
Clearly, matters which involve settlement and distribution of the estate of the decedent fall within the exclusive province of the probate court in the
exercise of its limited jurisdiction.
Thus, under Section 2, Rule 90 of the Rules of Court, questions as to advancement made or alleged to have been made by the deceased to any
heir may be heard and determined by the court having jurisdiction of the estate proceedings; and the final order of the court thereon shall be binding
on the person raising the questions and on the heir.
While it may be true that the Rules used the word "may", it is nevertheless clear that the same provision11 contemplates a probate court when it
speaks of the "court having jurisdiction of the estate proceedings".
Corollarily, the Regional Trial Court in the instant case, acting in its general jurisdiction, is devoid of authority to render an adjudication and resolve
the issue of advancement of the real property in favor of herein petitioner Natcher, inasmuch as Civil Case No. 471075 for reconveyance and
annulment of title with damages is not, to our mind, the proper vehicle to thresh out said question. Moreover, under the present circumstances, the
RTC of Manila, Branch 55 was not properly constituted as a probate court so as to validly pass upon the question of advancement made by the
decedent Graciano Del Rosario to his wife, herein petitioner Natcher.
At this point, the appellate court's disquisition is elucidating:
"Before a court can make a partition and distribution of the estate of a deceased, it must first settle the estate in a special proceeding instituted for
the purpose. In the case at hand, the court a quo determined the respective legitimes of the plaintiffs-appellants and assigned the subject property
owned by the estate of the deceased to defendant-appellee without observing the proper proceedings provided (for) by the Rules of Court. From the
aforecited discussions, it is clear that trial courts trying an ordinary action cannot resolve to perform acts pertaining to a special proceeding because
it is subject to specific prescribed rules. Thus, the court a quo erred in regarding the subject property as an advance inheritance."12
In resolving the case at bench, this Court is not unaware of our pronouncement in Coca vs. Borromeo13 and Mendoza vs. Teh14 that whether a
particular matter should be resolved by the Regional Trial Court (then Court of First Instance) in the exercise of its general jurisdiction or its limited
probate jurisdiction is not a jurisdictional issue but a mere question of procedure. In essence, it is procedural question involving a mode of practice
"which may be waived".15
Notwithstanding, we do not see any waiver on the part of herein private respondents inasmuch as the six children of the decedent even assailed the
authority of the trail court, acting in its general jurisdiction, to rule on this specific issue of advancement made by the decedent to petitioner.
Analogously, in a train of decisions, this Court has consistently enunciated the long standing principle that although generally, a probate court may
not decide a question of title or ownership, yet if the interested parties are all heirs, or the question is one of collation or advancement, or the parties
consent to the assumption of jurisdiction by the probate court and the rights of third parties are not impaired, then the probate court is competent to
decide the question of ownership.16
Similarly in Mendoza vs. Teh, we had occasion to hold:
"In the present suit, no settlement of estate is involved, but merely an allegation seeking appointment as estate administratrix which does not
necessarily involve settlement of estate that would have invited the exercise of the limited jurisdiction of a probate court.17 (emphasis supplied)
Of equal importance is that before any conclusion about the legal share due to a compulsory heir may be reached, it is necessary that certain steps
be taken first.18 The net estate of the decedent must be ascertained, by deducting all payable obligations and charges from the value of the
property owned by the deceased at the time of his death; then, all donations subject to collation would be added to it. With the partible estate thus
determined, the legitime of the compulsory heir or heirs can be established; and only thereafter can it be ascertained whether or not a donation had
prejudiced the legitimes.19
A perusal of the records, specifically the antecedents and proceedings in the present case, reveals that the trial court failed to observe established
rules of procedure governing the settlement of the estate of Graciano Del Rosario. This Court sees no cogent reason to sanction the nonobservance of these well-entrenched rules and hereby holds that under the prevailing circumstances, a probate court, in the exercise of its limited
jurisdiction, is indeed the best forum to ventilate and adjudge the issue of advancement as well as other related matters involving the settlement of
Graciano Del Rosario's estate.1wphi1.nt

Succession 117
WHEREFORE, premises considered, the assailed decision of the Court of Appeals is hereby AFFIRMED and the instant petition is DISMISSED for
lack of merit.
SO ORDERED.

Succession 118
G.R. No. 168156

December 6, 2006

HEIRS OF ROSENDO LASAM, Represented by Rogelio Lasam and Atty. Edward P. Llonillo, petitioners,
vs.
VICENTA UMENGAN, respondent.
DECISION
CALLEJO, SR., J.:
Before the Court is the petition for review on certiorari filed by the Heirs of Rosendo Lasam, represented by Rogelio M. Lasam and Atty. Edward P.
Llonillo, seeking the reversal of the Decision1 dated February 16, 2005 of the Court of Appeals (CA) in CA-G.R. SP No. 80032. The assailed
decision reversed and set aside the decision of the Regional Trial Court (RTC) of Tuguegarao City, Cagayan and dismissed, for lack of merit, the
complaint for unlawful detainer file by the said heirs against respondent Vicenta Umengan.
The RTC decision affirmed that of the Municipal Trial Court in Cities (MTCC) of the same city, Branch III, which had rendered judgment in favor of
the heirs of Rosendo Lasam and directed the ejectment of respondent Vicenta Umengan from the lot subject of litigation.
The present petition likewise seeks the reversal of the CA Resolution dated May 17, 2005 denying the motion for reconsideration filed by the heirs
of Rosendo Lasam.
As culled from the records, the backdrop of the present case is as follows
The lot subject of the unlawful detainer case is situated in Tuguegarao City, Cagayan. It is the eastern half portion of Lot No. 5427 and Lot No. 990.
The first lot, Lot No. 5427 containing an area of 1,037 square meters, is covered by Original Certificate of Title (OCT) No. 196. The second lot, Lot
No. 990 containing an area of 118 sq m, is covered by OCT No. 1032. These lots are registered in the names of the original owners, spouses Pedro
Cuntapay and Leona Bunagan.
In an instrument denominated as Deed of Confirmation and acknowledged before a notary public on June 14, 1979, the heirs of the said spouses
conveyed the ownership of Lots Nos. 990 and 5427 in favor of their two children, Irene Cuntapay and Isabel Cuntapay. In another instrument
entitled Partition Agreement and acknowledged before a notary public on December 28, 1979, it was agreed that the eastern half portion (subject
lot) of Lots Nos. 990 and 5427 shall belong to the heirs of Isabel Cuntapay. On the other hand, the remaining portion thereof (the west portion) shall
belong to the heirs of Irene Cuntapay. The subject lot (eastern half portion) has an area of 554 sq m.
Isabel Cuntapay had four children by her first husband, Domingo Turingan, namely: Abdon, Sado (deceased), Rufo and Maria. When Domingo
Turingan passed away, Isabel Cuntapay remarried Mariano Lasam. She had two other children by him, namely: Trinidad and Rosendo.
Sometime in January 2001, the heirs of Rosendo Lasam (son of Isabel Cuntapay by her second husband) filed with the MTCC a complaint for
unlawful detainer against Vicenta Umengan, who was then occupying the subject lot. Vicenta Umengan is the daughter of Abdon Turingan (son of
Isabel Cuntapay by her first husband).
In their complaint, the heirs of Rosendo Lasam alleged that they are the owners of the subject lot, having inherited it from their father. Rosendo
Lasam was allegedly the sole heir of the deceased Pedro Cuntapay through Isabel Cuntapay. During his lifetime, Rosendo Lasam allegedly
temporarily allowed Vicenta Umengan to occupy the subject lot sometime in 1955. The latter and her husband allegedly promised that they would
vacate the subject lot upon demand. However, despite written notice and demand by the heirs of Rosendo Lasam, Vicenta Umengan allegedly
unlawfully refused to vacate the subject lot and continued to possess the same. Accordingly, the heirs of Rosendo Lasam were constrained to
institute the action for ejectment.
In her Answer with Counterclaim, Vicenta Umengan specifically denied the material allegations in the complaint. She countered that when Isabel
Cuntapay passed away, the subject lot was inherited by her six children by her first and second marriages through intestate succession. Each of the
six children allegedly had a pro indiviso share of 1/6 of the subject lot.
It was further alleged by Vicenta Umengan that her father, Abdon Turingan, purchased the respective 1/6 shares in the subject lot of his siblings
Maria and Sado. These conveyances were allegedly evidenced by the Deed of Sale dated March 3, 1975, appearing as Doc. No. 88, Page No. 36,
Book No. XIV, series of 1975 of the notarial book of Atty. Pedro Lagui.
Prior thereto, Rufo already sold his 1/6 share in the subject lot to Vicenta Umengan and her husband as evidenced by the Deed of Sale dated June
14, 1961, appearing as Doc. No. 539, Page No. 41, Book No. V, series of 1961 of the notarial book of Atty. Pedro Lagui. Also on June 14, 1961,
Abdon donated his 1/6 share in the subject lot to her daughter Vicenta Umengan as evidenced by the Deed of Donation appearing as Doc. No. 538,
Page No. 41, Book No. V, series of 1961 of the notarial book of the same notary public.
According to Vicenta Umengan, the children of Isabel Cuntapay by her second husband (Rosendo and Trinidad Lasam) own only 2/6 portion of the
subject lot. She thus prayed that the complaint for ejectment be dismissed and that the heirs of Rosendo Lasam be ordered to pay her damages.
The MTCC rendered judgment in favor of the heirs of Rosendo Lasam and directed the ejectment of Vicenta Umengan. In so ruling, the MTCC
gave credence to the newly discovered last will and testament (entitled Testamento Abierto) purportedly executed by Isabel Cuntapay where she
bequeathed the subject lot to her son, Rosendo Lasam, thus:
x x x my share 1/5th (one-fifth) of the Cuntapay heirs, bordered on the North by Sr. Elia Canapi; to the South, by Calle Aguinaldo; to the East, by
Calle P. Burgos and the West, by the late Don Luis Alonso; on the property which is my share stands a house of light materials where I presently
reside; this 1/5th (one-fifth) share of my inheritance from the Cuntapays I leave to my son Rosendo Lasam and also the aforementioned house of
light material x x x2
The MTCC reasoned that the heirs of Rosendo Lasam anchored their claim over the subject lot on the last will and testament of Isabel Cuntapay
while Vicenta Umengan hinged hers on intestate succession and legal conveyances. Citing jurisprudence3 and Article 10804 of the Civil Code, the
MTCC opined that testacy was favored and that intestacy should be avoided and the wishes of the testator should prevail. It observed that the last
will and testament of Isabel Cuntapay was not yet probated as required by law; nonetheless, the institution of a probate proceeding was not barred
by prescription.

Succession 119
With the finding that the subject lot was already bequeathed by Isabel Cuntapay to Rosendo Lasam, the MTCC held that the siblings Abdon, Sado,
Rufo and Maria Turingan no longer had any share therein. Consequently, they could not convey to Vicenta Umengan what they did not own. On the
issue then of who was entitled to possession of the subject lot, the MTCC ruled in favor of the heirs of Rosendo Lasam as it found that Vicenta
Umengans possession thereof was by mere tolerance. The dispositive portion of the MTCC decision reads:
WHEREFORE, in the light of the foregoing considerations, this Court Resolve[d] to order the EJECTMENT of VICENTA T. UMENGAN and in her
place INSTITUTE THE HEIRS OF ROSENDO LASAM.
It is further ordered the defendant shall pay the Heirs of Rosendo Lasam the sum of P500.00 pesos representing the monthly rental of the land from
August 2000 to the time this case shall have been terminated.
Ordering the defendant to pay the plaintiffs the amount of P20,000.00 attorneys fees plus cost of this litigation.
So Ordered.5
On appeal, the RTC affirmed in toto the decision of the MTCC. The RTC echoed the reasoning of the MTCC that the testamentary disposition of the
property of Isabel Cuntapay should be respected, and that the heirs of Rosendo Lasam have a better right to possess the subject lot.
Undaunted, Vicenta Umengan filed an appeal with the CA. She argued that the MTCC had no jurisdiction over the case as it involved the recovery
of ownership of the subject lot, not merely recovery of possession or unlawful detainer. She also assailed the RTCs and the MTCCs holding that
the purported Testamento Abierto of Isabel Cuntapay prevails over Vicenta Umengans muniments of title and, consequently, the heirs of Rosendo
Lasam have a better right to the subject lot than Vicenta Umengan.
In the assailed Decision dated February 16, 2005, the CA reversed and set aside the decision of the RTC. The appellate court preliminarily upheld
the jurisdiction of the MTCC over the subject matter as it found that the allegations in the complaint made out a case for unlawful detainer. The heirs
of Rosendo Lasam in their complaint, according to the CA, only sought for Vicenta Umengan to vacate and surrender possession of the subject lot.
The CA also rejected the contention of the heirs of Rosendo Lasam that the issue of ownership of the subject lot had already been settled in
another case, Civil Case No. 4917, before RTC (Branch 3) of Tuguegarao City. The CA stated that the trial courts order dismissing the said case
was not a "judgment on the merits" as to constitute res judicata.
However, the CA declared that the RTC, as well as the MTCC, erred in ruling that, by virtue of the purported last will and testament of Isabel
Cuntapay, the heirs of Rosendo Lasam have a better right to the subject lot over Vicenta Umengan. The CA explained that the said last will and
testament did not comply with the formal requirements of the law on wills.6
Specifically, the CA found that the pages of the purported last will and testament were not numbered in accordance with the law. Neither did it
contain the requisite attestation clause. Isabel Cuntapay as testator and the witnesses to the will did not affix their respective signatures on the
second page thereof. The said instrument was likewise not acknowledged before a notary public by the testator and the witnesses. The CA even
raised doubts as to its authenticity, noting that while Isabel Cuntapay died in 1947 and the heirs of Rosendo Lasam claimed that they discovered the
same only in 1997, a date May 19, 1956 appears on the last page of the purported will. The CA opined that if this was the date of execution,
then the will was obviously spurious. On the other hand, if this was the date of its discovery, then the CA expressed bafflement as to why the heirs
of Rosendo Lasam, through their mother, declared in the Partition Agreement dated December 28, 1979 that Isabel Cuntapay died intestate.
It was observed by the CA that as against these infirmities in the claim of the heirs of Rosendo Lasam, Vicenta Umengan presented a Deed of Sale
and a Deed of Donation to justify her possession of the subject lot. The CA noted that she has also possessed the subject property since 1955.
Such prior possession, the CA held, gave Vicente Umengan the right to remain in the subject lot until a person with a better right lawfully ejects her.
The heirs of Rosendo Lasam do not have such a better right. The CA stressed that the ruling on the issue of physical possession does not affect the
title to the subject lot nor constitute a binding and conclusive adjudication on the merits on the issue of ownership. The parties are not precluded
from filing the appropriate action to directly contest the ownership of or the title to the subject lot.
The decretal portion of the assailed decision of the CA reads:
WHEREFORE, premises considered, the appeal is GRANTED. The August 29, 2003 decision of the RTC, Branch 1, Tuguegarao City, Cagayan in
Civil Case No. 5924 is hereby REVERSED and SET ASIDE. Private respondents complaint for unlawful detainer against petitioner is dismissed for
lack of merit.
SO ORDERED.7
The heirs of Rosendo Lasam sought the reconsideration thereof but their motion was denied by the CA in its Resolution dated May 17, 2005.
The heirs of Rosendo Lasam (petitioners) now come to the Court alleging that the CA committed reversible error in setting aside the decision of the
RTC, which had affirmed that of the MTCC, and dismissing their complaint for unlawful detainer against respondent Vicenta Umengan.
Petitioners argue that the CA erred when it held, on one hand, that the MTCC had jurisdiction over the subject matter of the complaint as the
allegations therein make out a case for unlawful detainer but, on the other hand, proceeded to discuss the validity of the last will and testament of
Isabel Cuntapay.
Petitioners insist that respondent is holding the subject lot by mere tolerance and that they, as the heirs of Rosendo Lasam who was the rightful
owner of the subject lot, have a better right thereto. It was allegedly error for the CA to declare the last will and testament of Isabel Cuntapay as null
and void for its non-compliance with the formal requisites of the law on wills. The said matter cannot be resolved in an unlawful detainer case, which
only involves the issue of material or physical possession of the disputed property. In any case, they maintain that the said will complied with the
formal requirements of the law.
It was allegedly also erroneous for the CA to consider in respondents favor the deed of sale and deed of donation covering portions of the subject
lot, when these documents had already been passed upon by the RTC (Branch 3) of Tuguegarao City in Civil Case No. 4917 when it dismissed the
respondents complaint for partition of the subject lot. The said order allegedly constituted res judicata and may no longer be reviewed by the CA.
Petitioners emphasize that in an unlawful detainer case, the only issue to be resolved is who among the parties is entitled to the physical or material
possession of the property in dispute. On this point, the MTCC held (and the same was affirmed by the RTC) that petitioners have a better right
since the "merely tolerated" possession of the respondent had already expired upon the petitioners formal demand on her to vacate. In support of
this claim, they point to the affidavit of Heliodoro Turingan, full brother of the respondent, attesting that the latters possession of the subject lot was
by mere tolerance of Rosendo Lasam who inherited the same from Isabel Cuntapay.

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According to petitioners, respondents predecessors-in-interest from whom she derived her claim over the subject lot by donation and sale could not
have conveyed portions thereof to her, as she had claimed, because until the present, it is still covered by OCT Nos. 196 and 1032 under the
names of Pedro and Leona Cuntapay. Their respective estates have not been settled up to now.
It is also the contention of petitioners that the CA should have dismissed outright respondents petition filed therewith for failure to comply with the
technical requirements of the Rules of Court. Specifically, the petition was not allegedly properly verified, lacked statement of material dates and
written explanation on why personal service was not made.
This last contention of petitioners deserves scant consideration. The technical requirements for filing an appeal are not sacrosanct. It has been held
that while the requirements for perfecting an appeal must be strictly followed as they are considered indispensable interdictions against needless
delays and for orderly discharge of judicial business, the law does admit of exceptions when warranted by circumstances.8 In the present case, the
CA cannot be faulted in choosing to overlook the technical defects of respondents appeal. After all, technicality should not be allowed to stand in
the way of equitably and completely resolving the rights and obligations of the parties.9
The Court shall now resolve the substantive issues raised by petitioners.
It is well settled that in ejectment suits, the only issue for resolution is the physical or material possession of the property involved, independent of
any claim of ownership by any of the party litigants. However, the issue of ownership may be provisionally ruled upon for the sole purpose of
determining who is entitled to possession de facto.10
In the present case, petitioners base their claim of right to possession on the theory that their father, Rosendo Lasam, was the sole owner of the
subject lot by virtue of the newly discovered last will and testament of Isabel Cuntapay bequeathing the same to him. Respondent is allegedly
holding the subject lot by mere tolerance of Rosendo Lasam and, upon the petitioners formal demand on her to vacate the same, respondents right
to possess it has expired.
On the other hand, respondent hinges her claim of possession on the legal conveyances made to her by the children of Isabel Cuntapay by her first
husband, namely, Maria, Rufo, Sado and Abdon. These conveyances were made through the sale and donation by the said siblings of their
respective portions in the subject lot to respondent as evidenced by the pertinent deeds.
The CA correctly held that, as between the respective claims of petitioners and respondent, the latter has a better right to possess the subject lot.
As earlier stated, petitioners rely on the last will and testament of Isabel Cuntapay that they had allegedly newly discovered. On the basis of this
instrument, the MTCC and RTC ruled that petitioners have a better right to the possession of the subject lot because, following the law on
succession, it should be respected and should prevail over intestate succession.
However, contrary to the ruling of the MTCC and RTC, the purported last will and testament of Isabel Cuntapay could not properly be relied upon to
establish petitioners right to possess the subject lot because, without having been probated, the said last will and testament could not be the source
of any right.
Article 838 of the Civil Code is instructive:
Art. 838. No will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court.
The testator himself may, during his lifetime, petition the court having jurisdiction for the allowance of his will. In such case, the pertinent provisions
of the Rules of Court for the allowance of wills after the testators death shall govern.
The Supreme Court shall formulate such additional Rules of Court as may be necessary for the allowance of wills on petition of the testator.
Subject to the right of appeal, the allowance of the will, either during the lifetime of the testator or after his death, shall be conclusive as to its due
execution.
In Caiza v. Court of Appeals,11 the Court ruled that: "[a] will is essentially ambulatory; at any time prior to the testators death, it may be changed
or revoked; and until admitted to probate, it has no effect whatever and no right can be claimed thereunder, the law being quite explicit: No will shall
pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court."12
Dr. Tolentino, an eminent authority on civil law, also explained that "[b]efore any will can have force or validity it must be probated. To probate a will
means to prove before some officer or tribunal, vested by law with authority for that purpose, that the instrument offered to be proved is the last will
and testament of the deceased person whose testamentary act it is alleged to be, and that it has been executed, attested and published as required
by law, and that the testator was of sound and disposing mind. It is a proceeding to establish the validity of the will."13 Moreover, the presentation of
the will for probate is mandatory and is a matter of public policy.14
Following the above truisms, the MTCC and RTC, therefore, erroneously ruled that petitioners have a better right to possess the subject lot on the
basis of the purported last will and testament of Isabel Cuntapay, which, to date, has not been probated. Stated in another manner, Isabel
Cuntapays last will and testament, which has not been probated, has no effect whatever and petitioners cannot claim any right thereunder.
Hence, the CA correctly held that, as against petitioners claim, respondent has shown a better right of possession over the subject lot as evidenced
by the deeds of conveyances executed in her favor by the children of Isabel Cuntapay by her first marriage.
Contrary to the claim of petitioners, the dismissal of respondents action for partition in Civil Case No. 4917 before the RTC (Branch 3) of
Tuguegarao City does not constitute res judicata on the matter of the validity of the said conveyances or even as to the issue of the ownership of
the subject lot. The order dismissing respondents action for partition in Civil Case No. 4917 stated thus:
For resolution is a motion to dismiss based on defendants [referring to the petitioners herein] affirmative defenses consisting inter alia in the
discovery of a last will and testament of Isabel Cuntapay, the original owner of the land in dispute.
xxx
It appears, however, that the last will and testament of the late Isabel Cuntapay has not yet been allowed in probate, hence, there is an imperative
need to petition the court for the allowance of said will to determine once and for all the proper legitimes of legatees and devisees before any
partition of the property may be judicially adjudicated.

Succession 121
It is an elementary rule in law that testate proceedings take precedence over any other action especially where the will evinces the intent of the
testator to dispose of his whole estate.
With the discovery of the will of the late Isabel Cuntapay in favor of the defendants, the Court can order the filing of a petition for the probate of the
same by the interested party.
WHEREFORE, in light of the foregoing considerations, let the above-entitled case be as it is hereby DISMISSED.
SO ORDERED.15
For there to be res judicata, the following elements must be present: (1) finality of the former judgment; (2) the court which rendered it had
jurisdiction over the subject matter and the parties; (3) it must be a judgment on the merits; and (4) there must be, between the first and second
actions, identity of parties, subject matter and causes of action.16 The third requisite, i.e., that the former judgment must be a judgment on the
merits, is not present between the action for partition and the complaint a quo for unlawful detainer. As aptly observed by the CA:
Our reading of the Orders (dated June 16, 1997 and October 13, 1997) in Civil Case No. 4917 reveals that the RTC, Branch 3, Tuguegarao,
Cagayan, dismissed the complaint for partition because of the discovery of the alleged last will and testament of Isabel Cuntapay. The court did not
declare respondents [referring to the petitioners herein] the owners of the disputed property. It simply ordered them to petition the court for the
allowance of the will to determine the proper legitimes of the heirs prior to any partition. Instead of filing the appropriate petition for the probate of
Isabel Cuntapays will, the respondents filed the present complaint for unlawful detainer. Viewed from this perspective, we have no doubt that the
courts Orders cited by the respondents are not "judgments on the merits" that would result in the application of the principle of res judicata. Where
the trial court merely refrained from proceeding with the case and granted the motion to dismiss with some clarification without conducting a trial on
the merits, there is no res judicata.17
Further, it is not quite correct for petitioners to contend that the children of Isabel Cuntapay by her first marriage could not have conveyed portions
of the subject lot to respondent, as she had claimed, because until the present, it is still covered by OCT Nos. 196 and 1032 under the names of
Pedro and Leona Cuntapay. To recall, it was already agreed by the heirs of the said spouses in a Partition Agreement dated December 28, 1979
that the subject lot would belong to Isabel Cuntapay. The latter died leaving her six children by both marriages as heirs. Considering that her
purported last will and testament has, as yet, no force and effect for not having been probated, her six children are deemed to be co-owners of the
subject lot having their respective pro indiviso shares. The conveyances made by the children of Isabel Cuntapay by her first marriage of their
respective pro indiviso shares in the subject lot to respondent are valid because the law recognizes the substantive right of heirs to dispose of their
ideal share in the co-heirship and/co-ownership among the heirs. The Court had expounded the principle in this wise:
This Court had the occasion to rule that there is no doubt that an heir can sell whatever right, interest, or participation he may have in the property
under administration. This is a matter which comes under the jurisdiction of the probate court.
The right of an heir to dispose of the decedents property, even if the same is under administration, is based on the Civil Code provision stating that
the possession of hereditary property is deemed transmitted to the heir without interruption and from the moment of the death of the decedent, in
case the inheritance is accepted. Where there are however, two or more heirs, the whole estate of the decedent is, before its partition, owned in
common by such heirs.
The Civil Code, under the provisions of co-ownership, further qualifies this right. Although it is mandated that each co-owner shall have the full
ownership of his part and of the fruits and benefits pertaining thereto, and thus may alienate, assign or mortgage it, and even substitute another
person in its enjoyment, the effect of the alienation or the mortgage, with respect to the co-owners, shall be limited to the portion which may be
allotted to him in the division upon the termination of the co-ownership. In other words, the law does not prohibit a co-owner from selling, alienating
or mortgaging his ideal share in the property held in common.
As early as 1942, this Court has recognized said right of an heir to dispose of property under administration. In the case of Teves de Jakosalem vs.
Rafols, et al., it was said that the sale made by an heir of his share in an inheritance, subject to the result of the pending administration, in no wise,
stands in the way of such administration. The Court then relied on the provision of the old Civil Code, Article 440 and Article 399 which are still in
force as Article 533 and Article 493, respectively, in the new Civil Code. The Court also cited the words of a noted civilist, Manresa: "Upon the death
of a person, each of his heirs becomes the undivided owner of the whole estate left with respect to the part or portion which might be adjudicated to
him, a community of ownership being thus formed among the co-owners of the estate which remains undivided."18
Contrary to the assertion of petitioners, therefore, the conveyances made by the children of Isabel Cuntapay by her first marriage to respondent are
valid insofar as their pro indiviso shares are concerned. Moreover, the CA justifiably held that these conveyances, as evidenced by the deed of
donation and deed of sale presented by respondent, coupled with the fact that she has been in possession of the subject lot since 1955, establish
that respondent has a better right to possess the same as against petitioners whose claim is largely based on Isabel Cuntapays last will and
testament which, to date, has not been probated; hence, has no force and effect and under which no right can be claimed by petitioners.
Significantly, the probative value of the other evidence relied upon by petitioners to support their claim, which was the affidavit of Heliodoro
Turingan, was not passed upon by the MTCC and the RTC. Their respective decisions did not even mention the same.
In conclusion, it is well to stress the CAs admonition that
x x x our ruling on the issue of physical possession does not affect title to the property nor constitute a binding and conclusive adjudication on the
merits on the issue of ownership. The parties are not precluded from filing the appropriate action directly contesting the ownership of or the title to
the property.19
Likewise, it is therefore in this context that the CAs finding on the validity of Isabel Cuntapays last will and testament must be considered. Such is
merely a provisional ruling thereon for the sole purpose of determining who is entitled to possession de facto.
WHEREFORE, premises considered, the petition is DENIED. The assailed Decision dated February 16, 2005 and the Resolution dated May 17,
2005 of the Court of Appeals in CA-G.R. SP No. 80032 are AFFIRMED.
SO ORDERED.

Succession 122
G.R. No. 156407, January 15, 2014
THELMA M. ARANAS, Petitioner, v. TERESITA V. MERCADO, FELIMON V. MERCADO, CARMENCITA M. SUTHERLAND, RICHARD V.
MERCADO, MA. TERESITA M. ANDERSON, AND FRANKLIN L. MERCADO, Respondents.
DECISION
BERSAMIN, J.:
The probate court is authorized to determine the issue of ownership of properties for purposes of their inclusion or exclusion from the inventory to
be submitted by the administrator, but its determination shall only be provisional unless the interested parties are all heirs of the decedent, or the
question is one of collation or advancement, or the parties consent to the assumption of jurisdiction by the probate court and the rights of third
parties are not impaired. Its jurisdiction extends to matters incidental or collateral to the settlement and distribution of the estate, such as the
determination of the status of each heir and whether property included in the inventory is the conjugal or exclusive property of the deceased
spouse.
Antecedents
Emigdio S. Mercado (Emigdio) died intestate on January 12, 1991, survived by his second wife, Teresita V. Mercado (Teresita), and their five
children, namely: Allan V. Mercado, Felimon V. Mercado, Carmencita M. Sutherland, Richard V. Mercado, and Maria Teresita M. Anderson; and his
two children by his first marriage, namely: respondent Franklin L. Mercado and petitioner Thelma M. Aranas (Thelma).
Emigdio inherited and acquired real properties during his lifetime. He owned corporate shares in Mervir Realty Corporation (Mervir Realty) and
Cebu Emerson Transportation Corporation (Cebu Emerson). He assigned his real properties in exchange for corporate stocks of Mervir Realty, and
sold his real property in Badian, Cebu (Lot 3353 covered by Transfer Certificate of Title No. 3252) to Mervir Realty.
On June 3, 1991, Thelma filed in the Regional Trial Court (RTC) in Cebu City a petition for the appointment of Teresita as the administrator of
Emigdios estate (Special Proceedings No. 3094CEB).1 The RTC granted the petition considering that there was no opposition. The letters of
administration in favor of Teresita were issued on September 7, 1992.
As the administrator, Teresita submitted an inventory of the estate of Emigdio on December 14, 1992 for the consideration and approval by the
RTC. She indicated in the inventory that at the time of his death, Emigdio had left no real properties but only personal properties worth
P6,675,435.25 in all, consisting of cash of P32,141.20; furniture and fixtures worth P20,000.00; pieces of jewelry valued at P15,000.00; 44,806
shares of stock of Mervir Realty worth P6,585,585.80; and 30 shares of stock of Cebu Emerson worth P22,708.25.2
Claiming that Emigdio had owned other properties that were excluded from the inventory, Thelma moved that the RTC direct Teresita to amend the
inventory, and to be examined regarding it. The RTC granted Thelmas motion through the order of January 8, 1993.
On January 21, 1993, Teresita filed a compliance with the order of January 8, 1993,3 supporting her inventory with copies of three certificates of
stocks covering the 44,806 Mervir Realty shares of stock;4 the deed of assignment executed by Emigdio on January 10, 1991 involving real
properties with the market value of P4,440,651.10 in exchange for 44,407 Mervir Realty shares of stock with total par value of P4,440,700.00;5 and
the certificate of stock issued on January 30, 1979 for 300 shares of stock of Cebu Emerson worth P30,000.00.6
On January 26, 1993, Thelma again moved to require Teresita to be examined under oath on the inventory, and that she (Thelma) be allowed 30
days within which to file a formal opposition to or comment on the inventory and the supporting documents Teresita had submitted.
On February 4, 1993, the RTC issued an order expressing the need for the parties to present evidence and for Teresita to be examined to enable
the court to resolve the motion for approval of the inventory.7cralawred
On April 19, 1993, Thelma opposed the approval of the inventory, and asked leave of court to examine Teresita on the inventory.
With the parties agreeing to submit themselves to the jurisdiction of the court on the issue of what properties should be included in or excluded from
the inventory, the RTC set dates for the hearing on that issue.8cralawlawlibrary
Ruling of the RTC
After a series of hearings that ran for almost eight years, the RTC issued on March 14, 2001 an order finding and holding that the inventory
submitted by Teresita had excluded properties that should be included, and accordingly ruled:
WHEREFORE, in view of all the foregoing premises and considerations, the Court hereby denies the administratrixs motion for approval of
inventory. The Court hereby orders the said administratrix to redo the inventory of properties which are supposed to constitute as the estate of the
late Emigdio S. Mercado by including therein the properties mentioned in the last five immediately preceding paragraphs hereof and then submit the
revised inventory within sixty (60) days from notice of this order.
The Court also directs the said administratrix to render an account of her administration of the estate of the late Emigdio S. Mercado which had
come to her possession. She must render such accounting within sixty (60) days from notice hereof.
SO ORDERED.9ChanRoblesVirtualawlibrary
On March 29, 2001, Teresita, joined by other heirs of Emigdio, timely sought the reconsideration of the order of March 14, 2001 on the ground that
one of the real properties affected, Lot No. 3353 located in Badian, Cebu, had already been sold to Mervir Realty, and that the parcels of land
covered by the deed of assignment had already come into the possession of and registered in the name of Mervir Realty.10 Thelma opposed the
motion.
On May 18, 2001, the RTC denied the motion for reconsideration,11 stating that there was no cogent reason for the reconsideration, and that the
movants agreement as heirs to submit to the RTC the issue of what properties should be included or excluded from the inventory already estopped
them from questioning its jurisdiction to pass upon the issue.
Decision of the CA

Succession 123
Alleging that the RTC thereby acted with grave abuse of discretion in refusing to approve the inventory, and in ordering her as administrator to
include real properties that had been transferred to Mervir Realty, Teresita, joined by her four children and her stepson Franklin, assailed the
adverse orders of the RTC promulgated on March 14, 2001 and May 18, 2001 by petition for certiorari, stating:
I
THE HONORABLE RESPONDENT JUDGE HAS COMMITTED GRAVE ABUSE OF JURISDICTION (sic) AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN HOLDING THAT THE REAL PROPERTY WHICH WAS SOLD BY THE LATE EMIGDIO S. MERCADO DURING HIS LIFETIME
TO A PRIVATE CORPORATION (MERVIR REALTY CORPORATION) BE INCLUDED IN THE INVENTORY OF THE ESTATE OF THE LATE
EMIGDIO S. MERCADO.
II
THE HONORABLE RESPONDENT JUDGE HAS COMMITTED GRAVE ABUSE OF JURISDICTION (sic) AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN HOLDING THAT REAL PROPERTIES WHICH ARE IN THE POSSESSION OF AND ALREADY REGISTERED IN THE NAME
(OF) PRIVATE CORPORATION (MERVIR REALTY CORPORATION) BE INCLUDED IN THE INVENTORY OF THE ESTATE OF THE LATE
EMIGDIO S. MERCADO.
III
THE HONORABLE RESPONDENT JUDGE HAS COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN HOLDING THAT PETITIONERS ARE NOW ESTOPPED FROM QUESTIONING ITS JURISDICTION IN PASSING UPON THE
ISSUE OF WHAT PROPERTIES SHOULD BE INCLUDED IN THE INVENTORY OF THE ESTATE OF THE LATE EMIGDIO MERCADO.12
On May 15, 2002, the CA partly granted the petition for certiorari, disposing as follows:13
WHEREFORE, FOREGOING PREMISES CONSIDERED, this petition is GRANTED partially. The assailed Orders dated March 14, 2001 and May
18, 2001 are hereby reversed and set aside insofar as the inclusion of parcels of land known as Lot No. 3353 located at Badian, Cebu with an area
of 53,301 square meters subject matter of the Deed of Absolute Sale dated November 9, 1989 and the various parcels of land subject matter of the
Deeds of Assignment dated February 17, 1989 and January 10, 1991 in the revised inventory to be submitted by the administratrix is concerned
and affirmed in all other respects.
SO ORDERED.
The CA opined that Teresita, et al. had properly filed the petition for certiorari because the order of the RTC directing a new inventory of properties
was interlocutory; that pursuant to Article 1477 of the Civil Code, to the effect that the ownership of the thing sold shall be transferred to the
vendee upon its actual and constructive delivery, and to Article 1498 of the Civil Code, to the effect that the sale made through a public instrument
was equivalent to the delivery of the object of the sale, the sale by Emigdio and Teresita had transferred the ownership of Lot No. 3353 to Mervir
Realty because the deed of absolute sale executed on November 9, 1989 had been notarized; that Emigdio had thereby ceased to have any more
interest in Lot 3353; that Emigdio had assigned the parcels of land to Mervir Realty as early as February 17, 1989 for the purpose of saving, as in
avoiding taxes with the difference that in the Deed of Assignment dated January 10, 1991, additional seven (7) parcels of land were included; that
as to the January 10, 1991 deed of assignment, Mervir Realty had been even at the losing end considering that such parcels of land, subject
matter(s) of the Deed of Assignment dated February 12, 1989, were again given monetary consideration through shares of stock; that even if the
assignment had been based on the deed of assignment dated January 10, 1991, the parcels of land could not be included in the inventory
considering that there is nothing wrong or objectionable about the estate planning scheme; that the RTC, as an intestate court, also had no power
to take cognizance of and determine the issue of title to property registered in the name of third persons or corporation; that a property covered by
the Torrens system should be afforded the presumptive conclusiveness of title; that the RTC, by disregarding the presumption, had transgressed the
clear provisions of law and infringed settled jurisprudence on the matter; and that the RTC also gravely abused its discretion in holding that Teresita,
et al. were estopped from questioning its jurisdiction because of their agreement to submit to the RTC the issue of which properties should be
included in the inventory.
The CA further opined as follows:
In the instant case, public respondent court erred when it ruled that petitioners are estopped from questioning its jurisdiction considering that they
have already agreed to submit themselves to its jurisdiction of determining what properties are to be included in or excluded from the inventory to
be submitted by the administratrix, because actually, a reading of petitioners Motion for Reconsideration dated March 26, 2001 filed before public
respondent court clearly shows that petitioners are not questioning its jurisdiction but the manner in which it was exercised for which they are not
estopped, since that is their right, considering that there is grave abuse of discretion amounting to lack or in excess of limited jurisdiction when it
issued the assailed Order dated March 14, 2001 denying the administratrixs motion for approval of the inventory of properties which were already
titled and in possession of a third person that is, Mervir Realty Corporation, a private corporation, which under the law possessed a personality
distinct and separate from its stockholders, and in the absence of any cogency to shred the veil of corporate fiction, the presumption of
conclusiveness of said titles in favor of Mervir Realty Corporation should stand undisturbed.
Besides, public respondent court acting as a probate court had no authority to determine the applicability of the doctrine of piercing the veil of
corporate fiction and even if public respondent court was not merely acting in a limited capacity as a probate court, private respondent nonetheless
failed to adjudge competent evidence that would have justified the court to impale the veil of corporate fiction because to disregard the separate
jurisdictional personality of a corporation, the wrongdoing must be clearly and convincingly established since it cannot be presumed.14
On November 15, 2002, the CA denied the motion for reconsideration of Teresita, et al.15
Issue
Did the CA properly determine that the RTC committed grave abuse of discretion amounting to lack or excess of jurisdiction in directing the
inclusion of certain properties in the inventory notwithstanding that such properties had been either transferred by sale or exchanged for corporate
shares in Mervir Realty by the decedent during his lifetime?
Ruling of the Court
The appeal is meritorious.
I

Succession 124
Was certiorari the proper recourse
to assail the questioned orders of the RTC?
The first issue to be resolved is procedural. Thelma contends that the resort to the special civil action for certiorari to assail the orders of the RTC by
Teresita and her corespondents was not proper.
Thelmas contention cannot be sustained.
The propriety of the special civil action for certiorari as a remedy depended on whether the assailed orders of the RTC were final or interlocutory in
nature. In PahilaGarrido v. Tortogo,16 the Court distinguished between final and interlocutory orders as follows:
The distinction between a final order and an interlocutory order is well known. The first disposes of the subject matter in its entirety or terminates a
particular proceeding or action, leaving nothing more to be done except to enforce by execution what the court has determined, but the latter does
not completely dispose of the case but leaves something else to be decided upon. An interlocutory order deals with preliminary matters and the trial
on the merits is yet to be held and the judgment rendered. The test to ascertain whether or not an order or a judgment is interlocutory or final is:
does the order or judgment leave something to be done in the trial court with respect to the merits of the case? If it does, the order or judgment is
interlocutory; otherwise, it is final.
The order dated November 12, 2002, which granted the application for the writ of preliminary injunction, was an interlocutory, not a final, order, and
should not be the subject of an appeal. The reason for disallowing an appeal from an interlocutory order is to avoid multiplicity of appeals in a single
action, which necessarily suspends the hearing and decision on the merits of the action during the pendency of the appeals. Permitting multiple
appeals will necessarily delay the trial on the merits of the case for a considerable length of time, and will compel the adverse party to incur
unnecessary expenses, for one of the parties may interpose as many appeals as there are incidental questions raised by him and as there are
interlocutory orders rendered or issued by the lower court. An interlocutory order may be the subject of an appeal, but only after a judgment has
been rendered, with the ground for appealing the order being included in the appeal of the judgment itself.
The remedy against an interlocutory order not subject of an appeal is an appropriate special civil action under Rule 65, provided that the
interlocutory order is rendered without or in excess of jurisdiction or with grave abuse of discretion. Then is certiorari under Rule 65 allowed to be
resorted to.
The assailed order of March 14, 2001 denying Teresitas motion for the approval of the inventory and the order dated May 18, 2001 denying her
motion for reconsideration were interlocutory. This is because the inclusion of the properties in the inventory was not yet a final determination of
their ownership. Hence, the approval of the inventory and the concomitant determination of the ownership as basis for inclusion or exclusion from
the inventory were provisional and subject to revision at anytime during the course of the administration proceedings.
In Valero Vda. De Rodriguez v. Court of Appeals,17 the Court, in affirming the decision of the CA to the effect that the order of the intestate court
excluding certain real properties from the inventory was interlocutory and could be changed or modified at anytime during the course of the
administration proceedings, held that the order of exclusion was not a final but an interlocutory order in the sense that it did not settle once and for
all the title to the San Lorenzo Village lots. The Court observed there that:
The prevailing rule is that for the purpose of determining whether a certain property should or should not be included in the inventory, the probate
court may pass upon the title thereto but such determination is not conclusive and is subject to the final decision in a separate action regarding
ownership which may be instituted by the parties (3 Morans Comments on the Rules of Court, 1970 Edition, pages 4489 and 473; Lachenal vs.
Salas, L42257, June 14, 1976, 71 SCRA 262, 266).18 (Bold emphasis supplied)
To the same effect was De Leon v. Court of Appeals,19 where the Court declared that a probate court, whether in a testate or intestate proceeding,
can only pass upon questions of title provisionally, and reminded, citing Jimenez v. Court of Appeals, that the patent reason is the probate courts
limited jurisdiction and the principle that questions of title or ownership, which result in inclusion or exclusion from the inventory of the property, can
only be settled in a separate action. Indeed, in the cited case of Jimenez v. Court of Appeals,20 the Court pointed out:
All that the said court could do as regards the said properties is determine whether they should or should not be included in the inventory or list of
properties to be administered by the administrator. If there is a dispute as to the ownership, then the opposing parties and the administrator have to
resort to an ordinary action for a final determination of the conflicting claims of title because the probate court cannot do so. (Bold emphasis
supplied)
On the other hand, an appeal would not be the correct recourse for Teresita, et al. to take against the assailed orders. The final judgment rule
embodied in the first paragraph of Section 1, Rule 41, Rules of Court,21 which also governs appeals in special proceedings, stipulates that only the
judgments, final orders (and resolutions) of a court of law that completely disposes of the case, or of a particular matter therein when declared by
these Rules to be appealable may be the subject of an appeal in due course. The same rule states that an interlocutory order or resolution
(interlocutory because it deals with preliminary matters, or that the trial on the merits is yet to be held and the judgment rendered) is expressly made
nonappealable.
Multiple appeals are permitted in special proceedings as a practical recognition of the possibility that material issues may be finally determined at
various stages of the special proceedings. Section 1, Rule 109 of the Rules of Court enumerates the specific instances in which multiple appeals
may be resorted to in special proceedings, viz:
Section 1. Orders or judgments from which appeals may be taken. An interested person may appeal in special proceedings from an order or
judgment rendered by a Court of First Instance or a Juvenile and Domestic Relations Court, where such order or judgment:
(a) Allows or disallows a will;
(b) Determines who are the lawful heirs of a deceased person, or the distributive share of the estate to which such person is entitled;
(c) Allows or disallows, in whole or in part, any claim against the estate of a deceased person, or any claim presented on behalf of the estate in
offset to a claim against it;
(d) Settles the account of an executor, administrator, trustee or guardian;
(e) Constitutes, in proceedings relating to the settlement of the estate of a deceased person, or the administration of a trustee or guardian, a final
determination in the lower court of the rights of the party appealing, except that no appeal shall be allowed from the appointment of a special
administrator; and

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(f) Is the final order or judgment rendered in the case, and affects the substantial rights of the person appealing, unless it be an order granting or
denying a motion for a new trial or for reconsideration.
Clearly, the assailed orders of the RTC, being interlocutory, did not come under any of the instances in which multiple appeals are permitted.
II
Did the RTC commit grave abuse of discretion
in directing the inclusion of the properties
in the estate of the decedent?
In its assailed decision, the CA concluded that the RTC committed grave abuse of discretion for including properties in the inventory notwithstanding
their having been transferred to Mervir Realty by Emigdio during his lifetime, and for disregarding the registration of the properties in the name of
Mervir Realty, a third party, by applying the doctrine of piercing the veil of corporate fiction.
Was the CA correct in its conclusion?
The answer is in the negative. It is unavoidable to find that the CA, in reaching its conclusion, ignored the law and the facts that had fully warranted
the assailed orders of the RTC.
Under Section 6(a), Rule 78 of the Rules of Court, the letters of administration may be granted at the discretion of the court to the surviving spouse,
who is competent and willing to serve when the person dies intestate. Upon issuing the letters of administration to the surviving spouse, the RTC
becomes dutybound to direct the preparation and submission of the inventory of the properties of the estate, and the surviving spouse, as the
administrator, has the duty and responsibility to submit the inventory within three months from the issuance of letters of administration pursuant to
Rule 83 of the Rules of Court, viz:
Section 1. Inventory and appraisal to be returned within three months. Within three (3) months after his appointment every executor or
administrator shall return to the court a true inventory and appraisal of all the real and personal estate of the deceased which has come into his
possession or knowledge. In the appraisement of such estate, the court may order one or more of the inheritance tax appraisers to give his or their
assistance.
The usage of the word all in Section 1, supra, demands the inclusion of all the real and personal properties of the decedent in the inventory.22
However, the word all is qualified by the phrase which has come into his possession or knowledge, which signifies that the properties must be
known to the administrator to belong to the decedent or are in her possession as the administrator. Section 1 allows no exception, for the phrase
true inventory implies that no properties appearing to belong to the decedent can be excluded from the inventory, regardless of their being in the
possession of another person or entity.
The objective of the Rules of Court in requiring the inventory and appraisal of the estate of the decedent is to aid the court in revising the accounts
and determining the liabilities of the executor or the administrator, and in making a final and equitable distribution (partition) of the estate and
otherwise to facilitate the administration of the estate.23 Hence, the RTC that presides over the administration of an estate is vested with wide
discretion on the question of what properties should be included in the inventory. According to Peralta v. Peralta,24 the CA cannot impose its
judgment in order to supplant that of the RTC on the issue of which properties are to be included or excluded from the inventory in the absence of
positive abuse of discretion, for in the administration of the estates of deceased persons, the judges enjoy ample discretionary powers and the
appellate courts should not interfere with or attempt to replace the action taken by them, unless it be shown that there has been a positive abuse of
discretion.25 As long as the RTC commits no patently grave abuse of discretion, its orders must be respected as part of the regular performance of
its judicial duty.
There is no dispute that the jurisdiction of the trial court as an intestate court is special and limited. The trial court cannot adjudicate title to
properties claimed to be a part of the estate but are claimed to belong to third parties by title adverse to that of the decedent and the estate, not by
virtue of any right of inheritance from the decedent. All that the trial court can do regarding said properties is to determine whether or not they
should be included in the inventory of properties to be administered by the administrator. Such determination is provisional and may be still revised.
As the Court said in Agtarap v. Agtarap:26
The general rule is that the jurisdiction of the trial court, either as a probate court or an intestate court, relates only to matters having to do with the
probate of the will and/or settlement of the estate of deceased persons, but does not extend to the determination of questions of ownership that
arise during the proceedings. The patent rationale for this rule is that such court merely exercises special and limited jurisdiction. As held in several
cases, a probate court or one in charge of estate proceedings, whether testate or intestate, cannot adjudicate or determine title to properties
claimed to be a part of the estate and which are claimed to belong to outside parties, not by virtue of any right of inheritance from the deceased but
by title adverse to that of the deceased and his estate. All that the said court could do as regards said properties is to determine whether or not they
should be included in the inventory of properties to be administered by the administrator. If there is no dispute, there poses no problem, but if there
is, then the parties, the administrator, and the opposing parties have to resort to an ordinary action before a court exercising general jurisdiction for
a final determination of the conflicting claims of title.
However, this general rule is subject to exceptions as justified by expediency and convenience.
First, the probate court may provisionally pass upon in an intestate or a testate proceeding the question of inclusion in, or exclusion from, the
inventory of a piece of property without prejudice to final determination of ownership in a separate action. Second, if the interested parties are all
heirs to the estate, or the question is one of collation or advancement, or the parties consent to the assumption of jurisdiction by the probate court
and the rights of third parties are not impaired, then the probate court is competent to resolve issues on ownership. Verily, its jurisdiction extends to
matters incidental or collateral to the settlement and distribution of the estate, such as the determination of the status of each heir and whether the
property in the inventory is conjugal or exclusive property of the deceased spouse.27 (Italics in the original; bold emphasis supplied)
It is clear to us that the RTC took pains to explain the factual bases for its directive for the inclusion of the properties in question in its assailed order
of March 14, 2001, viz:
In the first place, the administratrix of the estate admitted that Emigdio Mercado was one of the heirs of Severina Mercado who, upon her death, left
several properties as listed in the inventory of properties submitted in Court in Special Proceedings No. 306R which are supposed to be divided
among her heirs. The administratrix admitted, while being examined in Court by the counsel for the petitioner, that she did not include in the
inventory submitted by her in this case the shares of Emigdio Mercado in the said estate of Severina Mercado. Certainly, said properties constituting

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Emigdio Mercados share in the estate of Severina Mercado should be included in the inventory of properties required to be submitted to the Court
in this particular case.
In the second place, the administratrix of the estate of Emigdio Mercado also admitted in Court that she did not include in the inventory shares of
stock of Mervir Realty Corporation which are in her name and which were paid by her from money derived from the taxicab business which she and
her husband had since 1955 as a conjugal undertaking. As these shares of stock partake of being conjugal in character, onehalf thereof or of the
value thereof should be included in the inventory of the estate of her husband.
In the third place, the administratrix of the estate of Emigdio Mercado admitted, too, in Court that she had a bank account in her name at Union
Bank which she opened when her husband was still alive. Again, the money in said bank account partakes of being conjugal in character, and so,
onehalf thereof should be included in the inventory of the properties constituting as estate of her husband.
In the fourth place, it has been established during the hearing in this case that Lot No. 3353 of Pls657D located in Badian, Cebu containing an
area of 53,301 square meters as described in and covered by Transfer Certificate of Title No. 3252 of the Registry of Deeds for the Province of
Cebu is still registered in the name of Emigdio S. Mercado until now. When it was the subject of Civil Case No. CEB12690 which was decided on
October 19, 1995, it was the estate of the late Emigdio Mercado which claimed to be the owner thereof. Mervir Realty Corporation never intervened
in the said case in order to be the owner thereof. This fact was admitted by Richard Mercado himself when he testified in Court. x x x So the said
property located in Badian, Cebu should be included in the inventory in this case.
Fifthly and lastly, it appears that the assignment of several parcels of land by the late Emigdio S. Mercado to Mervir Realty Corporation on January
10, 1991 by virtue of the Deed of Assignment signed by him on the said day (Exhibit N for the petitioner and Exhibit 5 for the administratrix) was a
transfer in contemplation of death. It was made two days before he died on January 12, 1991. A transfer made in contemplation of death is one
prompted by the thought that the transferor has not long to live and made in place of a testamentary disposition (1959 Prentice Hall, p. 3909).
Section 78 of the National Internal Revenue Code of 1977 provides that the gross estate of the decedent shall be determined by including the value
at the time of his death of all property to the extent of any interest therein of which the decedent has at any time made a transfer in contemplation of
death. So, the inventory to be approved in this case should still include the said properties of Emigdio Mercado which were transferred by him in
contemplation of death. Besides, the said properties actually appeared to be still registered in the name of Emigdio S. Mercado at least ten (10)
months after his death, as shown by the certification issued by the Cebu City Assessors Office on October 31, 1991 (Exhibit O).28
Thereby, the RTC strictly followed the directives of the Rules of Court and the jurisprudence relevant to the procedure for preparing the inventory by
the administrator. The aforequoted explanations indicated that the directive to include the properties in question in the inventory rested on good and
valid reasons, and thus was far from whimsical, or arbitrary, or capricious.
Firstly, the shares in the properties inherited by Emigdio from Severina Mercado should be included in the inventory because Teresita, et al. did not
dispute the fact about the shares being inherited by Emigdio.
Secondly, with Emigdio and Teresita having been married prior to the effectivity of the Family Code in August 3, 1988, their property regime was the
conjugal partnership of gains.29 For purposes of the settlement of Emigdios estate, it was unavoidable for Teresita to include his shares in the
conjugal partnership of gains. The party asserting that specific property acquired during that property regime did not pertain to the conjugal
partnership of gains carried the burden of proof, and that party must prove the exclusive ownership by one of them by clear, categorical, and
convincing evidence.30 In the absence of or pending the presentation of such proof, the conjugal partnership of Emigdio and Teresita must be
provisionally liquidated to establish who the real owners of the affected properties were,31 and which of the properties should form part of the estate
of Emigdio. The portions that pertained to the estate of Emigdio must be included in the inventory.
Moreover, although the title over Lot 3353 was already registered in the name of Mervir Realty, the RTC made findings that put that title in dispute.
Civil Case No. CEB12692, a dispute that had involved the ownership of Lot 3353, was resolved in favor of the estate of Emigdio, and Transfer
Certificate of Title No. 3252 covering Lot 3353 was still in Emigdios name. Indeed, the RTC noted in the order of March 14, 2001, or ten years after
his death, that Lot 3353 had remained registered in the name of Emigdio.
Interestingly, Mervir Realty did not intervene at all in Civil Case No. CEB12692. Such lack of interest in Civil Case No. CEB12692 was susceptible
of various interpretations, including one to the effect that the heirs of Emigdio could have already threshed out their differences with the assistance
of the trial court. This interpretation was probable considering that Mervir Realty, whose business was managed by respondent Richard, was
headed by Teresita herself as its President. In other words, Mervir Realty appeared to be a family corporation.
Also, the fact that the deed of absolute sale executed by Emigdio in favor of Mervir Realty was a notarized instrument did not sufficiently justify the
exclusion from the inventory of the properties involved. A notarized deed of sale only enjoyed the presumption of regularity in favor of its execution,
but its notarization did not per se guarantee the legal efficacy of the transaction under the deed, and what the contents purported to be. The
presumption of regularity could be rebutted by clear and convincing evidence to the contrary.32 As the Court has observed in Suntay v. Court of
Appeals:33
x x x. Though the notarization of the deed of sale in question vests in its favor the presumption of regularity, it is not the intention nor the function of
the notary public to validate and make binding an instrument never, in the first place, intended to have any binding legal effect upon the parties
thereto. The intention of the parties still and always is the primary consideration in determining the true nature of a contract. (Bold emphasis
supplied)
It should likewise be pointed out that the exchange of shares of stock of Mervir Realty with the real properties owned by Emigdio would still have to
be inquired into. That Emigdio executed the deed of assignment two days prior to his death was a circumstance that should put any interested party
on his guard regarding the exchange, considering that there was a finding about Emigdio having been sick of cancer of the pancreas at the time.34
In this regard, whether the CA correctly characterized the exchange as a form of an estate planning scheme remained to be validated by the facts to
be established in court.
The fact that the properties were already covered by Torrens titles in the name of Mervir Realty could not be a valid basis for immediately excluding
them from the inventory in view of the circumstances admittedly surrounding the execution of the deed of assignment. This is because:
The Torrens system is not a mode of acquiring titles to lands; it is merely a system of registration of titles to lands. However, justice and equity
demand that the titleholder should not be made to bear the unfavorable effect of the mistake or negligence of the States agents, in the absence of
proof of his complicity in a fraud or of manifest damage to third persons. The real purpose of the Torrens system is to quiet title to land and put a
stop forever to any question as to the legality of the title, except claims that were noted in the certificate at the time of registration or that may arise
subsequent thereto. Otherwise, the integrity of the Torrens system shall forever be sullied by the ineptitude and inefficiency of land registration
officials, who are ordinarily presumed to have regularly performed their duties.35

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Assuming that only seven titled lots were the subject of the deed of assignment of January 10, 1991, such lots should still be included in the
inventory to enable the parties, by themselves, and with the assistance of the RTC itself, to test and resolve the issue on the validity of the
assignment. The limited jurisdiction of the RTC as an intestate court might have constricted the determination of the rights to the properties arising
from that deed,36 but it does not prevent the RTC as intestate court from ordering the inclusion in the inventory of the properties subject of that
deed. This is because the RTC as intestate court, albeit vested only with special and limited jurisdiction, was still deemed to have all the necessary
powers to exercise such jurisdiction to make it effective.37
Lastly, the inventory of the estate of Emigdio must be prepared and submitted for the important purpose of resolving the difficult issues of collation
and advancement to the heirs. Article 1061 of the Civil Code required every compulsory heir and the surviving spouse, herein Teresita herself, to
bring into the mass of the estate any property or right which he (or she) may have received from the decedent, during the lifetime of the latter, by
way of donation, or any other gratuitous title, in order that it may be computed in the determination of the legitime of each heir, and in the account of
the partition. Section 2, Rule 90 of the Rules of Court also provided that any advancement by the decedent on the legitime of an heir may be
heard and determined by the court having jurisdiction of the estate proceedings, and the final order of the court thereon shall be binding on the
person raising the questions and on the heir. Rule 90 thereby expanded the special and limited jurisdiction of the RTC as an intestate court about
the matters relating to the inventory of the estate of the decedent by authorizing it to direct the inclusion of properties donated or bestowed by
gratuitous title to any compulsory heir by the decedent.38
The determination of which properties should be excluded from or included in the inventory of estate properties was well within the authority and
discretion of the RTC as an intestate court. In making its determination, the RTC acted with circumspection, and proceeded under the guiding policy
that it was best to include all properties in the possession of the administrator or were known to the administrator to belong to Emigdio rather than to
exclude properties that could turn out in the end to be actually part of the estate. As long as the RTC commits no patent grave abuse of discretion,
its orders must be respected as part of the regular performance of its judicial duty. Grave abuse of discretion means either that the judicial or quasi
judicial power was exercised in an arbitrary or despotic manner by reason of passion or personal hostility, or that the respondent judge, tribunal or
board evaded a positive duty, or virtually refused to perform the duty enjoined or to act in contemplation of law, such as when such judge, tribunal or
board exercising judicial or quasijudicial powers acted in a capricious or whimsical manner as to be equivalent to lack of jurisdiction.39
In light of the foregoing, the CAs conclusion of grave abuse of discretion on the part of the RTC was unwarranted and erroneous.
WHEREFORE, the Court GRANTS the petition for review on certiorari; REVERSES and SETS ASIDE the decision promulgated on May 15, 2002;
REINSTATES the orders issued on March 14, 2001 and May 18, 2001 by the Regional Trial Court in Cebu; DIRECTS the Regional Trial Court in
Cebu to proceed with dispatch in Special Proceedings No. 3094CEB entitled Intestate Estate of the late Emigdio Mercado, Thelma Aranas,
petitioner, and to resolve the case; and ORDERS the respondents to pay the costs of suit.ChanRoblesVirtualawlibrary
SO ORDERED.

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G.R. No. 192828

November 28, 2011

RAMON S. CHING AND PO WING PROPERTIES, INC., Petitioners,


vs.
HON. JANSEN R. RODRIGUEZ, in his capacity as Presiding Judge of the Regional Trial Court of Manila, Branch 6, JOSEPH CHENG, JAIME
CHENG, MERCEDES IGNE AND LUCINA SANTOS, substituted by her son, EDUARDO S. BALAJADIA, Respondents.
RESOLUTION
REYES, J.:
The Case
Before us is a Petition for Review on Certiorari1 under Rule 45 of the Rules of Court assailing the December 14, 2009 Decision2 and July 8, 2010
Resolution3 of the Court of Appeals (CA) in CA-G.R. SP No. 99856. The dispositive portion of the assailed Decision reads:
WHEREFORE, in view of all the foregoing premises, judgment is hereby rendered by us DENYING the petition filed in this case and AFFIRMING
the assailed Orders dated March 15, 2007 and May 16, 2007 issued by the respondent Judge of the Regional Trial Court (RTC), Branch 6, in
Manila in Civil Case No. 02-105251.4
The assailed Resolution denied the petitioners' Motion for Reconsideration.
The Factual Antecedents
Sometime between November 25, 2002 and December 3, 2002,5 the respondents filed a Complaint6 against the petitioners and Stronghold
Insurance Company, Global Business Bank, Inc. (formerly PhilBank), Elena Tiu Del Pilar, Asia Atlantic Resources Ventures, Inc., Registers of Deeds
of Manila and Malabon, and all persons claiming rights or titles from Ramon Ching (Ramon) and his successors-in-interest.
The Complaint, captioned as one for "Disinheritance, Declaration of Nullity of Agreement and Waiver, Affidavit of Extra-Judicial Settlement, Deed of
Absolute Sale, Transfer Certificates of Title with Prayer for [the] Issuance of [a] Temporary Restraining Order and [a] Writ of Preliminary Injunction,"
was docketed as Civil Case No. 02-105251 and raffled to Branch 8 of the Regional Trial Court of Manila (RTC).
In the Complaint, the respondents alleged the following as causes of action:
First Cause of Action. They are the heirs of Lim San, also known as Antonio Ching / Tiong Cheng / Ching Cheng Suy (Antonio). Respondents
Joseph Cheng (Joseph) and Jaime Cheng (Jaime) are allegedly the children of Antonio with his common-law wife, respondent Mercedes Igne
(Mercedes). Respondent Lucina Santos (Lucina) claimed that she was also a common-law wife of Antonio. The respondents averred that Ramon
misrepresented himself as Antonio's and Lucina's son when in truth and in fact, he was adopted and his birth certificate was merely simulated. On
July 18, 1996, Antonio died of a stab wound. Police investigators identified Ramon as the prime suspect and he now stands as the lone accused in
a criminal case for murder filed against him. Warrants of arrest issued against him have remained unserved as he is at large. From the foregoing
circumstances and upon the authority of Article 9197 of the New Civil Code (NCC), the respondents concluded that Ramon can be legally
disinherited, hence, prohibited from receiving any share from the estate of Antonio.
Second Cause of Action. On August 26, 1996, prior to the conclusion of the police investigations tagging Ramon as the prime suspect in the murder
of Antonio, the former made an inventory of the latter's estate. Ramon misrepresented that there were only six real estate properties left by Antonio.
The respondents alleged that Ramon had illegally transferred to his name the titles to the said properties. Further, there are two other parcels of
land, cash and jewelries, plus properties in Hongkong, which were in Ramon's possession.
Third Cause of Action. Mercedes, being of low educational attainment, was sweet-talked by Ramon into surrendering to him a Global Business
Bank, Inc. (Global Bank) Certificate of Time Deposit of P4,000,000.00 in the name of Antonio, and the certificates of title covering two condominium
units in Binondo which were purchased by Antonio using his own money but which were registered in Ramon's name. Ramon also fraudulently
misrepresented to Joseph, Jaime and Mercedes that they will promptly receive their complete shares, exclusive of the stocks in Po Wing Properties,
Inc. (Po Wing), from the estate of Antonio. Exerting undue influence, Ramon had convinced them to execute an Agreement8 and a Waiver9 on
August 20, 1996. The terms and conditions stipulated in the Agreement and Waiver, specifically, on the payment by Ramon to Joseph, Jaime and
Mercedes of the amount of P22,000,000.00, were not complied with. Further, Lucina was not informed of the execution of the said instruments and
had not received any amount from Ramon. Hence, the instruments are null and void.
Fourth Cause of Action. Antonio's 40,000 shares in Po Wing, which constitute 60% of the latter's total capital stock, were illegally transferred by
Ramon to his own name through a forged document of sale executed after Antonio died. Po Wing owns a ten-storey building in Binondo. Ramon's
claim that he bought the stocks from Antonio before the latter died is baseless. Further, Lucina's shares in Po Wing had also banished into thin air
through Ramon's machinations.
Fifth Cause of Action. On October 29, 1996, Ramon executed an Affidavit of Extra-Judicial Settlement of Estate10 adjudicating solely to himself
Antonio's entire estate to the prejudice of the respondents. By virtue of the said instrument, new Transfer Certificates of Title (TCTs) covering eight
real properties owned by Antonio were issued in Ramon's name. Relative to the Po Wing shares, the Register of Deeds of Manila had required
Ramon to post a Surety Bond conditioned to answer for whatever claims which may eventually surface in connection with the said stocks. Codefendant Stronghold Insurance Company issued the bond in Ramon's behalf.
Sixth Cause of Action. Ramon sold Antonio's two parcels of land in Navotas to co-defendant Asia Atlantic Business Ventures, Inc. Another parcel of
land, which was part of Antonio's estate, was sold by Ramon to co-defendant Elena Tiu Del Pilar at an unreasonably low price. By reason of
Ramon's lack of authority to dispose of any part of Antonio's estate, the conveyances are null and void ab initio.
Since Ramon is at large, his wife, Belen Dy Tan Ching, now manages Antonio's estate. She has no intent to convey to the respondents their shares
in the estate of Antonio.
The respondents thus prayed for the following in their Complaint:
1. x x x a temporary restraining order be issued restraining the defendant RAMON CHING and/or his attorney-in-fact Belen Dy Tan Ching from
disposing, selling or alienating any property that belongs to the estate of the deceased ANTONIO CHING;
xxx

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4. x x x
a.) Declaring that the defendant RAMON CHING who murdered his father ANTONIO CHING disqualified as heir and from inheriting to (sic) the
estate of his father;
b.) Declaring the nullity of the defendant RAMON CHING transfer (sic) of the six [6] parcels of land from the name of his father ANTONIO CHING to
his name covered by TCT No. x x x;
c.) Declaring the nullity of the AGREEMENT and WAIVER executed by plaintiffs x x x in favor of x x x RAMON CHING for being patently immoral,
invalid, illegal, simulated and (sic) sham;
d.) Declaring the nullity of the transfer of the shares of stocks at (sic) PO WING from the names of ANTONIO CHING and LUCINA SANTOS to the
defendant ANTONIO CHING's name for having been illegally procured through the falsification of their signatures in the document purporting the
transfer thereof;
e.) Declaring the nullity and to have no force and effect the AFFIDAVIT OF SETTLEMENT OF ESTATE executed by x x x RAMON CHING for being
contrary to law and existing jurisprudence;
f.) Declaring the nullity of the DEED OF SALES (sic) executed by x x x RAMON CHING (i) over two (2) parcels of land x x x to defendant ASIA
ATLANTIC BUSINESS VENTURES, Inc.; and (ii) one (1) parcel of land x x x sold to x x x ELENA TIU DEL PILAR for having illegally procured the
ownership and titles of the above properties;
x x x.11
The petitioners filed with the RTC a Motion to Dismiss12 alleging forum shopping, litis pendentia, res judicata and the respondents as not being the
real parties in interest.
On July 30, 2004, the RTC issued an Omnibus Order13 denying the petitioners' Motion to Dismiss.
The respondents filed an Amended Complaint14 dated April 7, 2005 impleading Metrobank as the successor-in-interest of co-defendant Global
Bank. The Amended Complaint also added a seventh cause of action relative to the existence of a Certificate of Premium Plus Acquisition (CPPA)
in the amount of P4,000,000.00 originally issued by PhilBank to Antonio. The respondents prayed that they be declared as the rightful owners of the
CPPA and that it be immediately released to them. Alternatively, the respondents prayed for the issuance of a hold order relative to the CPPA to
preserve it during the pendency of the case.
On April 22, 2005, the petitioners filed their Consolidated Answer with Counterclaim.15
On October 28, 2005, the RTC issued an Order16 admitting the respondents' Amended Complaint. The RTC stressed that Metrobank had already
filed Manifestations admitting that as successor-in-interest of Global Bank, it now possesses custody of Antonio's deposits. Metrobank expressed
willingness to abide by any court order as regards the disposition of Antonio's deposits. The petitioners' Motion for Reconsideration filed to assail the
aforecited Order was denied by the RTC on May 3, 2006.
On May 29, 2006, the petitioners filed their Consolidated Answer with Counterclaim to the respondents' Amended Complaint.
On August 11, 2006, the RTC issued a pre-trial order.17
On January 18, 2007, the petitioners filed a Motion to Dismiss18 the respondents' Amended Complaint on the alleged ground of the RTC's lack of
jurisdiction over the subject matter of the Complaint. The petitioners argued that since the Amended Complaint sought the release of the CPPA to
the respondents, the latter's declaration as heirs of Antonio, and the propriety of Ramon's disinheritance, the suit partakes of the nature of a special
proceeding and not an ordinary action for declaration of nullity. Hence, jurisdiction pertains to a probate or intestate court and not to the RTC acting
as an ordinary court.
On March 15, 2007, the RTC issued an Order19 denying the petitioners' Motion to Dismiss on grounds:
In the case at bar, an examination of the Complaint would disclose that the action delves mainly on the question of ownership of the properties
described in the Complaint which can be properly settled in an ordinary civil action. And as pointed out by the defendants, the action seeks to
declare the nullity of the Agreement, Waiver, Affidavit of Extra-Judicial Settlement, Deed of Absolute Sale, Transfer Certificates of Title, which were
all allegedly executed by defendant Ramon Ching to defraud the plaintiffs. The relief of establishing the status of the plaintiffs which could have
translated this action into a special proceeding was nowhere stated in the Amended Complaint. With regard [to] the prayer to declare the plaintiffs
as the rightful owner[s] of the CPPA and that the same be immediately released to them, in itself poses an issue of ownership which must be proved
by plaintiffs by substantial evidence. And as emphasized by the plaintiffs, the Amended Complaint was intended to implead Metrobank as a codefendant.
As regards the issue of disinheritance, the court notes that during the Pre-trial of this case, one of the issues raised by the defendants Ramon Ching
and Po Wing Properties is: Whether or not there can be disinheritance in intestate succession? Whether or not defendant Ramon Ching can be
legally disinherited from the estate of his father? To the mind of the Court, the issue of disinheritance, which is one of the causes of action in the
Complaint, can be fully settled after a trial on the merits. And at this stage, it has not been sufficiently established whether or not there is a will.20
(Emphasis supplied.)
The above Order, and a subsequent Order dated May 16, 2007 denying the petitioners' Motion for Reconsideration, became the subjects of a
petition for certiorari filed with the CA. The petition, docketed as CA-G.R. SP No. 99856, raised the issue of whether or not the RTC gravely abused
its discretion when it denied the petitioners' Motion to Dismiss despite the fact that the Amended Complaint sought to establish the status or rights of
the respondents which subjects are within the ambit of a special proceeding.
On December 14, 2009, the CA rendered the now assailed Decision21 denying the petition for certiorari on grounds:
Our in-depth assessment of the condensed allegations supporting the causes of action of the amended complaint induced us to infer that nothing in
the said complaint shows that the action of the private respondents should be threshed out in a special proceeding, it appearing that their
allegations were substantially for the enforcement of their rights against the alleged fraudulent acts committed by the petitioner Ramon Ching. The
private respondents also instituted the said amended complaint in order to protect them from the consequence of the fraudulent acts of Ramon
Ching by seeking to disqualify Ramon Ching from inheriting from Antonio Ching as well as to enjoin him from disposing or alienating the subject
properties, including the P4 Million deposit with Metrobank. The intestate or probate court has no jurisdiction to adjudicate such issues, which must

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be submitted to the court in the exercise of its general jurisdiction as a regional trial court. Furthermore, we agree with the trial court that the probate
court could not take cognizance of the prayer to disinherit Ramon Ching, given the undisputed fact that there was no will to be contested in a
probate court.
The petition at bench apparently cavils the subject amended complaint and complicates the issue of jurisdiction by reiterating the grounds or
defenses set up in the petitioners' earlier pleadings. Notwithstanding, the jurisdiction of the court over the subject matter is determined by the
allegations of the complaint without regard to whether or not the private respondents (plaintiffs) are entitled to recover upon all or some of the
causes of action asserted therein. In this regard, the jurisdiction of the court does not depend upon the defenses pleaded in the answer or in the
motion to dismiss, lest the question of jurisdiction would almost entirely depend upon the petitioners (defendants).22 Hence, we focus our resolution
on the issue of jurisdiction on the allegations in the amended complaint and not on the defenses pleaded in the motion to dismiss or in the
subsequent pleadings of the petitioners.
In fine, under the circumstances of the present case, there being no compelling reason to still subject the action of the petitioners in a special
proceeding since the nullification of the subject documents could be achieved in the civil case, the lower court should proceed to evaluate the
evidence of the parties and render a decision thereon upon the issues that it defined during the pre-trial in Civil Case No. 02-105251.23 (emphasis
supplied)
The petitioners' Motion for Reconsideration was denied by the CA through a Resolution24 issued on July 8, 2010.
The Issue
The instant Petition for Review on Certiorari25 is anchored on the issue of:
Whether or not the RTC should have granted the Motion to Dismiss filed by the PETITIONERS on the alleged ground of the RTC's lack of
jurisdiction over the subject matter of the Amended Complaint, to wit, (a) filiations with Antonio of Ramon, Jaime and Joseph; (b) rights of commonlaw wives, Lucina and Mercedes, to be considered as heirs of Antonio; (c) determination of the extent of Antonio's estate; and (d) other matters
which can only be resolved in a special proceeding and not in an ordinary civil action.
The petitioners argue that only a probate court has the authority to determine (a) who are the heirs of a decedent; (b) the validity of a waiver of
hereditary rights; (c) the status of each heir; and (d) whether the property in the inventory is conjugal or the exclusive property of the deceased
spouse.26 Further, the extent of Antonio's estate, the status of the contending parties and the respondents' alleged entitlement as heirs to receive
the proceeds of Antonio's CPPA now in Metrobank's custody are matters which are more appropriately the subjects of a special proceeding and not
of an ordinary civil action.
The respondents opposed27 the instant petition claiming that the petitioners are engaged in forum shopping. Specifically, G.R. Nos. 17550728 and
183840,29 both involving the contending parties in the instant petition were filed by the petitioners and are currently pending before this Court.
Further, in Mendoza v. Hon. Teh,30 the SC declared that whether a particular matter should be resolved by the RTC in the exercise of its general
jurisdiction or its limited probate jurisdiction, is not a jurisdictional issue but a mere question of procedure. Besides, the petitioners, having validly
submitted themselves to the jurisdiction of the RTC and having actively participated in the trial of the case, are already estopped from challenging
the RTC's jurisdiction over the respondents' Complaint and Amended Complaint.31
The Court's Ruling
We resolve to deny the instant petition.
The petitioners failed to comply with a lawful order of this Court directing them to file their reply to the respondents' Comment/Opposition to the
instant Petition. While the prescribed period to comply expired on March 15, 2011, the petitioners filed their Manifestation that they will no longer file
a reply only on October 10, 2011 or after the lapse of almost seven months.
Further, no reversible errors were committed by the RTC and the CA when they both ruled that the denial of the petitioners' second motion to
dismiss Civil Case No. 02-105251 was proper.
Even without delving into the procedural allegations of the respondents that the petitioners engaged in forum shopping and are already estopped
from questioning the RTC's jurisdiction after having validly submitted to it when the latter participated in the proceedings, the denial of the instant
Petition is still in order. Although the respondents' Complaint and Amended Complaint sought, among others, the disinheritance of Ramon and the
release in favor of the respondents of the CPPA now under Metrobank's custody, Civil Case No. 02-105251 remains to be an ordinary civil action,
and not a special proceeding pertaining to a settlement court.
An action for reconveyance and annulment of title with damages is a civil action, whereas matters relating to settlement of the estate of a deceased
person such as advancement of property made by the decedent, partake of the nature of a special proceeding, which concomitantly requires the
application of specific rules as provided for in the Rules of Court.32 A special proceeding is a remedy by which a party seeks to establish a status, a
right, or a particular fact.33 It is distinguished from an ordinary civil action where a party sues another for the enforcement or protection of a right, or
the prevention or redress of a wrong.34 To initiate a special proceeding, a petition and not a complaint should be filed.
Under Article 916 of the NCC, disinheritance can be effected only through a will wherein the legal cause therefor shall be specified. This Court
agrees with the RTC and the CA that while the respondents in their Complaint and Amended Complaint sought the disinheritance of Ramon, no will
or any instrument supposedly effecting the disposition of Antonio's estate was ever mentioned. Hence, despite the prayer for Ramon's
disinheritance, Civil Case No. 02-105251 does not partake of the nature of a special proceeding and does not call for the probate court's exercise of
its limited jurisdiction.
The petitioners also argue that the prayers in the Amended Complaint, seeking the release in favor of the respondents of the CPPA under
Metrobank's custody and the nullification of the instruments subject of the complaint, necessarily require the determination of the respondents'
status as Antonio's heirs.
It bears stressing that what the respondents prayed for was that they be declared as the rightful owners of the CPPA which was in Mercedes'
possession prior to the execution of the Agreement and Waiver. The respondents also prayed for the alternative relief of securing the issuance by
the RTC of a hold order relative to the CPPA to preserve Antonio's deposits with Metrobank during the pendency of the case. It can thus be said that
the respondents' prayer relative to the CPPA was premised on Mercedes' prior possession of and their alleged collective ownership of the same,
and not on the declaration of their status as Antonio's heirs. Further, it also has to be emphasized that the respondents were parties to the execution
of the Agreement35 and Waiver36 prayed to be nullified. Hence, even without the necessity of being declared as heirs of Antonio, the respondents
have the standing to seek for the nullification of the instruments in the light of their claims that there was no consideration for their execution, and
that Ramon exercised undue influence and committed fraud against them. Consequently, the respondents then claimed that the Affidavit of Extra-

Succession 131
Judicial Settlement of Antonios estate executed by Ramon, and the TCTs issued upon the authority of the said affidavit, are null and void as well.
Ramon's averment that a resolution of the issues raised shall first require a declaration of the respondents' status as heirs is a mere defense which
is not determinative of which court shall properly exercise jurisdiction.
In Marjorie Cadimas v. Marites Carrion and Gemma Hugo,37 the Court declared:
It is an elementary rule of procedural law that jurisdiction of the court over the subject matter is determined by the allegations of the complaint
irrespective of whether or not the plaintiff is entitled to recover upon all or some of the claims asserted therein. As a necessary consequence, the
jurisdiction of the court cannot be made to depend upon the defenses set up in the answer or upon the motion to dismiss, for otherwise, the
question of jurisdiction would almost entirely depend upon the defendant. What determines the jurisdiction of the court is the nature of the action
pleaded as appearing from the allegations in the complaint. The averments in the complaint and the character of the relief sought are the matters to
be consulted.1wphi1
In sum, this Court agrees with the CA that the nullification of the documents subject of Civil Case No. 02-105251 could be achieved in an ordinary
civil action, which in this specific case was instituted to protect the respondents from the supposedly fraudulent acts of Ramon. In the event that the
RTC will find grounds to grant the reliefs prayed for by the respondents, the only consequence will be the reversion of the properties subject of the
dispute to the estate of Antonio. Civil Case No. 02-105251 was not instituted to conclusively resolve the issues relating to the administration,
liquidation and distribution of Antonio's estate, hence, not the proper subject of a special proceeding for the settlement of the estate of a deceased
person under Rules 73-91 of the Rules of Court.
The respondents' resort to an ordinary civil action before the RTC may not be strategically sound, because a settlement proceeding should
thereafter still follow, if their intent is to recover from Ramon the properties alleged to have been illegally transferred in his name. Be that as it may,
the RTC, in the exercise of its general jurisdiction, cannot be restrained from taking cognizance of respondents' Complaint and Amended Complaint
as the issues raised and the prayers indicated therein are matters which need not be threshed out in a special proceeding.
WHEREFORE, the instant petition is DENIED. The petitioners' (a) Opposition to the respondents' Motion to Admit Substitution of Party;38 and (b)
Manifestation39 through counsel that they will no longer file a reply to the respondents' Comment/Opposition to the instant petition are NOTED.
SO ORDERED.

Succession 132
G.R. No. 169144

January 26, 2011

IN RE: IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF RUPERTA PALAGANAS WITH PRAYER FOR THE APPOINTMENT OF
SPECIAL ADMINISTRATOR, MANUEL MIGUEL PALAGANAS and BENJAMIN GREGORIO PALAGANAS, Petitioners,
vs.
ERNESTO PALAGANAS, Respondent.
DECISION
ABAD, J.:
This case is about the probate before Philippine court of a will executed abroad by a foreigner although it has not been probated in its place of
execution.
The Facts and the Case
On November 8, 2001 Ruperta C. Palaganas (Ruperta), a Filipino who became a naturalized United States (U.S.) citizen, died single and childless.
In the last will and testament she executed in California, she designated her brother, Sergio C. Palaganas (Sergio), as the executor of her will for
she had left properties in the Philippines and in the U.S.
On May 19, 2003 respondent Ernesto C. Palaganas (Ernesto), another brother of Ruperta, filed with the Regional Trial Court (RTC) of Malolos,
Bulacan, a petition for the probate of Rupertas will and for his appointment as special administrator of her estate.1 On October 15, 2003, however,
petitioners Manuel Miguel Palaganas (Manuel) and Benjamin Gregorio Palaganas (Benjamin), nephews of Ruperta, opposed the petition on the
ground that Rupertas will should not be probated in the Philippines but in the U.S. where she executed it. Manuel and Benjamin added that,
assuming Rupertas will could be probated in the Philippines, it is invalid nonetheless for having been executed under duress and without the
testators full understanding of the consequences of such act. Ernesto, they claimed, is also not qualified to act as administrator of the estate.
Meantime, since Rupertas foreign-based siblings, Gloria Villaluz and Sergio, were on separate occasions in the Philippines for a short visit,
respondent Ernesto filed a motion with the RTC for leave to take their deposition, which it granted. On April, 13, 2004 the RTC directed the parties
to submit their memorandum on the issue of whether or not Rupertas U.S. will may be probated in and allowed by a court in the Philippines.
On June 17, 2004 the RTC issued an order:2 (a) admitting to probate Rupertas last will; (b) appointing respondent Ernesto as special administrator
at the request of Sergio, the U.S.-based executor designated in the will; and (c) issuing the Letters of Special Administration to Ernesto.
Aggrieved by the RTCs order, petitioner nephews Manuel and Benjamin appealed to the Court of Appeals (CA),3 arguing that an unprobated will
executed by an American citizen in the U.S. cannot be probated for the first time in the Philippines.
On July 29, 2005 the CA rendered a decision,4 affirming the assailed order of the RTC,5 holding that the RTC properly allowed the probate of the
will, subject to respondent Ernestos submission of the authenticated copies of the documents specified in the order and his posting of required
bond. The CA pointed out that Section 2, Rule 76 of the Rules of Court does not require prior probate and allowance of the will in the country of its
execution, before it can be probated in the Philippines. The present case, said the CA, is different from reprobate, which refers to a will already
probated and allowed abroad. Reprobate is governed by different rules or procedures. Unsatisfied with the decision, Manuel and Benjamin came to
this Court.
The Issue Presented
The key issue presented in this case is whether or not a will executed by a foreigner abroad may be probated in the Philippines although it has not
been previously probated and allowed in the country where it was executed.
The Courts Ruling
Petitioners Manuel and Benjamin maintain that wills executed by foreigners abroad must first be probated and allowed in the country of its
execution before it can be probated here. This, they claim, ensures prior compliance with the legal formalities of the country of its execution. They
insist that local courts can only allow probate of such wills if the proponent proves that: (a) the testator has been admitted for probate in such foreign
country, (b) the will has been admitted to probate there under its laws, (c) the probate court has jurisdiction over the proceedings, (d) the law on
probate procedure in that foreign country and proof of compliance with the same, and (e) the legal requirements for the valid execution of a will.
But our laws do not prohibit the probate of wills executed by foreigners abroad although the same have not as yet been probated and allowed in the
countries of their execution. A foreign will can be given legal effects in our jurisdiction. Article 816 of the Civil Code states that the will of an alien
who is abroad produces effect in the Philippines if made in accordance with the formalities prescribed by the law of the place where he resides, or
according to the formalities observed in his country.6
In this connection, Section 1, Rule 73 of the 1997 Rules of Civil Procedure provides that if the decedent is an inhabitant of a foreign country, the
RTC of the province where he has an estate may take cognizance of the settlement of such estate. Sections 1 and 2 of Rule 76 further state that
the executor, devisee, or legatee named in the will, or any other person interested in the estate, may, at any time after the death of the testator,
petition the court having jurisdiction to have the will allowed, whether the same be in his possession or not, or is lost or destroyed.
Our rules require merely that the petition for the allowance of a will must show, so far as known to the petitioner: (a) the jurisdictional facts; (b) the
names, ages, and residences of the heirs, legatees, and devisees of the testator or decedent; (c) the probable value and character of the property
of the estate; (d) the name of the person for whom letters are prayed; and (e) if the will has not been delivered to the court, the name of the person
having custody of it. Jurisdictional facts refer to the fact of death of the decedent, his residence at the time of his death in the province where the
probate court is sitting, or if he is an inhabitant of a foreign country, the estate he left in such province.7 The rules do not require proof that the
foreign will has already been allowed and probated in the country of its execution.
In insisting that Rupertas will should have been first probated and allowed by the court of California, petitioners Manuel and Benjamin obviously
have in mind the procedure for the reprobate of will before admitting it here. But, reprobate or re-authentication of a will already probated and
allowed in a foreign country is different from that probate where the will is presented for the first time before a competent court. Reprobate is
specifically governed by Rule 77 of the Rules of Court. Contrary to petitioners stance, since this latter rule applies only to reprobate of a will, it
cannot be made to apply to the present case. In reprobate, the local court acknowledges as binding the findings of the foreign probate court
provided its jurisdiction over the matter can be established.

Succession 133
Besides, petitioners stand is fraught with impractically.1wphi1 If the instituted heirs do not have the means to go abroad for the probate of the will,
it is as good as depriving them outright of their inheritance, since our law requires that no will shall pass either real or personal property unless the
will has been proved and allowed by the proper court.8
Notably, the assailed RTC order of June 17, 2004 is nothing more than an initial ruling that the court can take cognizance of the petition for probate
of Rupertas will and that, in the meantime, it was designating Ernesto as special administrator of the estate. The parties have yet to present
evidence of the due execution of the will, i.e. the testators state of mind at the time of the execution and compliance with the formalities required of
wills by the laws of California. This explains the trial courts directive for Ernesto to submit the duly authenticated copy of Rupertas will and the
certified copies of the Laws of Succession and Probate of Will of California.
WHEREFORE, the Court DENIES the petition and AFFIRMS the Court of Appeals decision in CA-G.R. CV 83564 dated July 29, 2005.
SO ORDERED.ib

Succession 134
G.R. No. L-8927

March 10, 1914

ASUNCION NABLE JOSE, ET AL., plaintiff-appellants,


vs.
MARIA IGNACIA USON, ET AL., defendants-appellees.
Ramon Salinas for appellants.
Pedro M.a Sison for appellees.
MORELAND, J.:
The question involved in this appeal arises from the interpretation of the first and second clauses of a codicil to the will of Filomena Uson. They read
as follows:
First. I declare that all the property which belongs to me as conjugal property, referred to in my said testament, shall be the property of my aforesaid
husband, Don Rafael Sison; in case all or part of said property exists at my husband's death, it is my will that at his death my sisters and nieces
hereinafter named succeed him as heirs.
Second. I declare to be my sisters in lawful wedlock the persons named Doa Antonia Uson, now deceased, who has left tow daughters called
Maria Rosario, widow, and Maria Paz, unmarried; Maria Romualda Uson, widow of Estanislao Lengson; Ignacia Uson, married to Don Vicente
Puson; Eufemia Uson, now deceased, who is survived by three daughters called Maria Salud, Maria Amparo, and Maria Asuncion; and Maria Pilar
Uson; Maria Manaoag Uson, unmarried, issued had by our deceased after Don Daniel Uson with one Leonarda Fernandez, alias Andao de
Lingayen, so that they may have and enjoy it in equal parts as good sisters and relatives.
The court below found that the children of the deceased sisters should take only that portion which their respective mothers would have taken if
they been alive at the time the will was made; that the property should be divided into six equal parts corresponding to the number of sisters; that
each living sister should take one-sixth, and the children of each deceased sister should also take one-sixth, each one- sixth to be divided among
said children equally.
This appeal is taken from the judgment entered upon that finding, appellants asserting that under a proper construction of the paragraphs of the
codicil above-quoted the property should be divided equally between the living sisters and the children of the deceased sisters, share and share
alike, a niece taking the same share that a sister receives.
We are of the opinion that the appellants' contention is well founded. We see no words appellants in the clauses quoted which lead necessarily to
the construction placed upon those paragraphs by the learned court below. On the other hand, we find expressions which seem to indicate with fair
clearness that it was the intention of the testatrix to divide her property equally between her sisters and nieces. The court below based its
construction upon the theory that the other construction would be "an admission that the testatrix desired to favor her deceased sister Eufemia
Uson, who left three children, more than her other deceased sister Antonia Uson, who left two children, and moreover both would be more favored
than any of the other four surviving sisters, one of whom was married at the time of the execution of the said codicil and without doubt had children."
As we look at the codicil we observe, first, that the testatrix, in the first paragraph thereof, declares that after her husband's death she desires that
"my sisters and nieces, as hereinafter named, shall succeed him as heirs."
We note, in the second place, that the testatrix, in the second paragraph of the codicil, names and identifies each one of her heirs then living, in
each one of the persons whom she desires shall succeed her husband in the property. Among those mentioned specially are the nieces as well as
the sisters. The nieces are referred to in no way different from the sisters. Each one stands out in the second paragraph of the codicil as clearly as
the other and under exactly the same conditions.
In the third place, we note, with interest, the last clause of the second paragraph of the codicil which, it seems to us, taken together with the last
clause of the first paragraph of the codicil, is decisive of the intention of the testatrix. In the last clause she says that she names all of the persons
whom she desires to take under her will be name "so that they must take and enjoy the property in equal parts as good sisters and relatives."
We have then in the first paragraph a declaration as to who the testatrix desires shall become the owners of her property on the death of her
husband. Among them we find the names of the nieces as well as of the sisters. We have also the final declaration of the testatrix that she desires
that the sisters and the nieces shall take and enjoy the property in equal parts. That being so, it appears to us that the testatrix's intention is fairly
clear, so clear in fact that it is unnecessary to bring in extraneous arguments to reach a conclusion as to what she intended.
The judgment appealed from is hereby modified by declaring that, of the property passing under the codicil herein above referred to, the living
sisters and the children of the deceased sisters shall take per capita and in equal parts, and as so modified the judgment is affirmed. No costs in
this instance.
Arellano, C.J., Carson and Araullo, JJ., concur.

Succession 135
G.R. No. L-23079

February 27, 1970

RUBEN AUSTRIA, CONSUELO AUSTRIA-BENTA and LAURO AUSTRIA MOZO, petitioners,


vs.
HON. ANDRES REYES, Judge, Court of First Instance of Rizal, PERFECTO CRUZ, BENITA CRUZ-MENEZ ISAGANI CRUZ, ALBERTO CRUZ and
LUZ CRUZ-SALONGA respondents.
Salonga, Ordoez, Yap, Sicat and Associates for petitioners.
Ruben Austria for himself and co-petitioners.
De los Santos, De los Santos and De los Santos for respondent Perfecto Cruz.
Villareal, Almacen, Navarra and Amores for other respondents.

CASTRO, J.:
On July 7, 1956 Basilia Austria vda. de Cruz filed with the Court of First Instance of Rizal (Special Proceedings 2457) a petition for probate, ante
mortem, of her last will and testament. The probate was opposed by the present petitioners Ruben Austria, Consuelo Austria-Benta and Lauro
Austria Mozo, and still others who, like the petitioner, are nephews and nieces of Basilia. This opposition was, however, dismissed and the probate
of the will allowed after due hearing.
The bulk of the estate of Basilia, admittedly, was destined under the will to pass on to the respondents Perfecto Cruz, Benita Cruz-Meez, Isagani
Cruz, Alberto Cruz, and Luz Cruz-Salonga, all of whom had been assumed and declared by Basilia as her own legally adopted children.
On April 23, 1959, more than two years after her will was allowed to probate, Basilia died. The respondent Perfecto Cruz was appointed executor
without bond by the same court in accordance with the provisions of the decedent's will, notwithstanding the blocking attempt pursued by the
petitioner Ruben Austria.
Finally, on November 5, 1959, the present petitioners filed in the same proceedings a petition in intervention for partition alleging in substance that
they are the nearest of kin of Basilia, and that the five respondents Perfecto Cruz, et al., had not in fact been adopted by the decedent in
accordance with law, in effect rendering these respondents mere strangers to the decedent and without any right to succeed as heirs.
Notwithstanding opposition by the respondent Perfecto Cruz, as executor of the estate, the court a quo allowed the petitioners' intervention by its
order of December 22, 1959, couched in broad terms, as follows: "The Petition in Intervention for Partition filed by the above-named oppositors
[Ruben Austria, et al.,] dated November 5, 1959 is hereby granted."
In the meantime, the contending sides debated the matter of authenticity or lack of it of the several adoption papers produced and presented by the
respondents. On motion of the petitioners Ruben Austria, et al., these documents were referred to the National Bureau of Investigation for
examination and advice. N.B.I. report seems to bear out the genuineness of the documents, but the petitioners, evidently dissatisfied with the
results, managed to obtain a preliminary opinion from a Constabulary questioned-document examiner whose views undermine the authenticity of
the said documents. The petitioners Ruben Austria, et al., thus moved the lower court to refer the adoption papers to the Philippine Constabulary for
further study. The petitioners likewise located former personnel of the court which appeared to have granted the questioned adoption, and obtained
written depositions from two of them denying any knowledge of the pertinent adoption proceedings.
On February 6, 1963, more than three years after they were allowed to intervene, the petitioners Ruben Austria, let al., moved the lower court to set
for hearing the matter of the genuineness of the adoption of the respondents Perfecto Cruz, et al., by the late Basilia. Before the date set by the
court for hearing arrived, however, the respondent Benita Cruz-Meez who entered an appearance separately from that of her brother Perfecto
Cruz, filed on February 28, 1963 a motion asking the lower court, by way of alternative relief, to confine the petitioners' intervention, should it be
permitted, to properties not disposed of in the will of the decedent.
On March 4, 1963, the lower court heard the respondent Benita's motion. Both sides subsequently submitted their respective memoranda, and
finally, the lower court issued an order on June 4, 1963, delimiting the petitioners' intervention to the properties of the deceased which were not
disposed of in the will.
The petitioners moved the lower court to reconsider this latest order, eliciting thereby an opposition, from the respondents. On October 25, 1963 the
same court denied the petitioners' motion for reconsideration.
A second motion for reconsideration which set off a long exchange of memoranda from both sides, was summarily denied on April 21, 1964.
Hence this petition for certiorari, praying this Court to annul the orders of June 4 and October 25, 1963 and the order of April 21, 1964, all restricting
petitioners' intervention to properties that were not included in the decedent's testamentary dispositions.
The uncontested premises are clear. Two interests are locked in dispute over the bulk of the estate of the deceased. Arrayed on one side are the
petitioners Ruben Austria, Consuelo Austria-Benta and Lauro Austria Mozo, three of a number of nephews and nieces who are concededly the
nearest surviving blood relatives of the decedent. On the other side are the respondents brothers and sisters, Perfecto Cruz, Benita Cruz-Meez,
Isagani Cruz, Alberto Cruz and Luz Cruz-Salonga, all of whom heirs in the will of the deceased Basilia, and all of whom claim kinship with the
decedent by virtue of legal adoption. At the heart of the controversy is Basilia's last will immaculate in its extrinsic validity since it bears the
imprimatur of duly conducted probate proceedings.
The complaint in intervention filed in the lower court assails the legality of the tie which the respondent Perfecto Cruz and his brothers and sisters
claim to have with the decedent. The lower court had, however, assumed, by its orders in question, that the validity or invalidity of the adoption is
not material nor decisive on the efficacy of the institution of heirs; for, even if the adoption in question were spurious, the respondents Perfecto Cruz,
et al., will nevertheless succeed not as compulsory heirs but as testamentary heirs instituted in Basilia's will. This ruling apparently finds support in
article, 842 of the Civil Code which reads:
One who has no compulsory heirs may dispose of by will all his estate or any part of it in favor of any person having capacity to succeed.
One who has compulsory heirs may dispose of his estate provided he does not contravene the provisions of this Code with regard to the legitime of
said heirs.

Succession 136
The lower court must have assumed that since the petitioners nephews and niece are not compulsory heirs, they do not possess that interest which
can be prejudiced by a free-wheeling testamentary disposition. The petitioners' interest is confined to properties, if any, that have not been disposed
of in the will, for to that extent intestate succession can take place and the question of the veracity of the adoption acquires relevance.
The petitioners nephews and niece, upon the other hand, insist that the entire estate should descend to them by intestacy by reason of the intrinsic
nullity of the institution of heirs embodied in the decedent's will. They have thus raised squarely the issue of whether or not such institution of heirs
would retain efficacy in the event there exists proof that the adoption of the same heirs by the decedent is false.
The petitioners cite, as the controlling rule, article 850 of the Civil Code which reads:
The statement of a false cause for the institution of an heir shall be considered as not written, unless it appears from the will that the testator would
not have made such institution if he had known the falsity of such cause.
Coming closer to the center of the controversy, the petitioners have called the attention of the lower court and this Court to the following pertinent
portions of the will of the deceased which recite:
III
Ang aking mga sapilitang tagapagmana (herederos forzosos) ay ang aking itinuturing na mga anak na tunay (Hijos legalmente adoptados) na sina
Perfecto, Alberto, Luz, Benita at Isagani, na pawang may apelyidong Cruz.
xxx

xxx

xxx

Kung ako ay bawian ng Dios ng buhay, ay aking ipinamamana ang aking mga ari-ariang maiiwan, sa kaparaanang sumusunod:
A.Aking ipinamamana sa aking nabanggit na limang anak na sina Perfecto, Alberto, Luz, Benita at Isagani, na pawang may apelyidong Cruz, na
parepareho ang kaparti ng bawa't isa at walang lamangan (en partes iguales), bilang kanilang sapilitang mana (legiti[ma]), ang kalahati () ng
aking kaparti sa lahat ng aming ari-ariang gananciales ng aking yumaong asawang Pedro Cruz na napapaloob sa Actuacion Especial No. 640 ng
Hukumang Unang Dulugan ng Rizal at itinutukoy sa No. 1 ng parafo IV ng testamentong ito, ang kalahati () ng mga lagay na lupa at palaisdaan
na nasa Obando at Polo, Bulacan, na namana ko sa aking yumaong ama na si Calixto Austria, at ang kalahati () ng ilang lagay na lupa na nasa
Tinejeros, Malabon, Rizal, na aking namana sa yumao kong kapatid na si Fausto Austria.
The tenor of the language used, the petitioners argue, gives rise to the inference that the late Basilia was deceived into believing that she was
legally bound to bequeath one-half of her entire estate to the respondents Perfecto Cruz, et al. as the latter's legitime. The petitioners further
contend that had the deceased known the adoption to be spurious, she would not have instituted the respondents at all the basis of the institution
being solely her belief that they were compulsory heirs. Proof therefore of the falsity of the adoption would cause a nullity of the institution of heirs
and the opening of the estate wide to intestacy. Did the lower court then abuse its discretion or act in violation of the rights of the parties in barring
the petitioners nephews and niece from registering their claim even to properties adjudicated by the decedent in her will?
Before the institution of heirs may be annulled under article 850 of the Civil Code, the following requisites must concur: First, the cause for the
institution of heirs must be stated in the will; second, the cause must be shown to be false; and third, it must appear from the face of the will that the
testator would not have made such institution if he had known the falsity of the cause.
The petitioners would have us imply, from the use of the terms, "sapilitang tagapagmana" (compulsory heirs) and "sapilitang mana" (legitime), that
the impelling reason or cause for the institution of the respondents was the testatrix's belief that under the law she could not do otherwise. If this
were indeed what prompted the testatrix in instituting the respondents, she did not make it known in her will. Surely if she was aware that
succession to the legitime takes place by operation of law, independent of her own wishes, she would not have found it convenient to name her
supposed compulsory heirs to their legitimes. Her express adoption of the rules on legitimes should very well indicate her complete agreement with
that statutory scheme. But even this, like the petitioners' own proposition, is highly speculative of what was in the mind of the testatrix when she
executed her will. One fact prevails, however, and it is that the decedent's will does not state in a specific or unequivocal manner the cause for such
institution of heirs. We cannot annul the same on the basis of guesswork or uncertain implications.
And even if we should accept the petitioners' theory that the decedent instituted the respondents Perfecto Cruz, et al. solely because she believed
that the law commanded her to do so, on the false assumption that her adoption of these respondents was valid, still such institution must stand.
Article 850 of the Civil Code, quoted above, is a positive injunction to ignore whatever false cause the testator may have written in his will for the
institution of heirs. Such institution may be annulled only when one is satisfied, after an examination of the will, that the testator clearly would not
have made the institution if he had known the cause for it to be false. Now, would the late Basilia have caused the revocation of the institution of
heirs if she had known that she was mistaken in treating these heirs as her legally adopted children? Or would she have instituted them
nonetheless?
The decedent's will, which alone should provide the answer, is mute on this point or at best is vague and uncertain. The phrases, "mga sapilitang
tagapagmana" and "sapilitang mana," were borrowed from the language of the law on succession and were used, respectively, to describe the class
of heirs instituted and the abstract object of the inheritance. They offer no absolute indication that the decedent would have willed her estate other
than the way she did if she had known that she was not bound by law to make allowance for legitimes. Her disposition of the free portion of her
estate (libre disposicion) which largely favored the respondent Perfecto Cruz, the latter's children, and the children of the respondent Benita Cruz,
shows a perceptible inclination on her part to give to the respondents more than what she thought the law enjoined her to give to them. Compare
this with the relatively small devise of land which the decedent had left for her blood relatives, including the petitioners Consuelo Austria-Benta and
Lauro Mozo and the children of the petitioner Ruben Austria. Were we to exclude the respondents Perfecto Cruz, et al. from the inheritance, then
the petitioners and the other nephews and nieces would succeed to the bulk of the testate by intestacy a result which would subvert the clear
wishes of the decedent.
Whatever doubts one entertains in his mind should be swept away by these explicit injunctions in the Civil Code: "The words of a will are to receive
an interpretation which will give to every expression some effect, rather than one which will render any of the expressions inoperative; and of two
modes of interpreting a will, that is to be preferred which will prevent intestacy." 1
Testacy is favored and doubts are resolved on its side, especially where the will evinces an intention on the part of the testator to dispose of
practically his whole estate,2 as was done in this case. Moreover, so compelling is the principle that intestacy should be avoided and the wishes of
the testator allowed to prevail, that we could even vary the language of the will for the purpose of giving it effect.3 A probate court has found, by final
judgment, that the late Basilia Austria Vda. de Cruz was possessed of testamentary capacity and her last will executed free from falsification, fraud,
trickery or undue influence. In this situation, it becomes our duty