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.

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.

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 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.
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.

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.

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:

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

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.
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 coownership. 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.
G.R. No. 115925

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 Psu-13245),
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:

August 15, 2003

xxxx

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. 2A 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:

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;

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:

Na aming ngayong pinatitibayan ang pagka-pagbili ng bahagi ng aming

Ama kay Consolacion Sioson ni Pascual ng ngayoy nakikilalang Lote No. 2A 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 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 pretrial 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.

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 2-E 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. Defendants-appellees 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.

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.

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.

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

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

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.

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

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

The petition has merit.

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.

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

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.

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.

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-ininterest 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.

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 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.

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;"

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

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 Metro-Manila 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.
G.R. No. L-42088 May 7, 1976

ALFREDO G. BALUYUT, petitioner,

vs.
HON. ERNANI CRUZ PAO, ENCARNACION LOPEZ VDA. DE BALUYUT, JOSE ESPINO
and CORAZON ESPINO, respondents.
AQUINO, J.:
Sotero Baluyut died in Manila on January 6, 1975 at the age of eighty-six, leaving an estate
allegedly valued at not less than two million pesos.
A few weeks later, or on February 20, his nephew, Alfredo G. Baluyut, filed in the Court of First
Instance of Quezon City a verified petition for letters of administration. He alleged that the
deceased was survived by his widow, Encarnacion Lopez, who was mentally incapable of acting
as administratrix of the decedent's estate. Alfredo surmised that the decedent had executed a
will. He prayed that he be appointed regular administrator and in the meantime as special
administrator.
The lower court in its order of February 24, 1975 appointed Alfredo G. Baluyut as special
administrator with a bond of P100,000.
Mrs. Baluyut in her verified opposition of March 8, 1975 alleged that she was unaware that her
deceased husband executed a will. She characterized as libelous the allegation as to her mental
incapacity. She prayed that she be named administratrix and that the appointment of Alfredo G.
Baluyut as special administrator be set aside.
The lower court in its order of March 24, 1975 cancelled Baluyut's appointment as special
administrator. In that same order the lower court noted that after asking Mrs. Baluyut a series of
questions while on the witness stand, it found that she "is healthy and mentally qualified".
Alfredo G. Baluyut moved for the reconsideration of that order. Acting on that motion, the lower
court in its order of March 31, 1975 appointed Baluyut and Jose Espino as special
administrators.
Mrs. Baluyut in her verified amended opposition of September 2, 1975 asked that Espino, former
governor of Nueva Vizcaya and an alleged acknowledged natural child of Sotero Baluyut, be
appointed administrator should she not be named administratrix.
On November 12, 1975 Mrs. Baluyut filed an urgent motion praying that she be appointed
administratrix. She reasoned out that Alfredo G. Baluyut had no more interest in the decedent's
estate because as a collateral relative he was excluded by Espino and other supposed
descendants of the deceased who had intervened in the proceeding, and, therefore, it was not
necessary to continue with the reception of his evidence.
Alfredo G. Baluyut opposed the urgent motion. He alleged that Espino was not a natural child of
Sotero Baluyut because Espino's parents were the spouses Elino Espino and Josefa de
Guzman. Alfredo further alleged that Mrs. Baluyut was declared an incompetent by the Juvenile
and Domestic Relations Court of Quezon City in its order of September 25, 1975 in Special
Proceeding No. QC-00939 for the guardianship of Mrs. Baluyut. That proceeding was instituted
by her sisters, Cristeta Lopez Vda. de Cuesta and Guadalupe Lopez-Viray.

At the hearing of Mrs. Baluyut's urgent motion on November 17, 1975 no oral and documentary
evidence was presented. The lower court merely examined Mrs. Baluyut as follows:

Atty. Salunat: I think that would be all, your Honor.

Court: Submitted?

Court: We want also to hear her testimony.

Atty. Salunat: We will ask the Court to (be allowed to)
submit a rejoinder, your Honor.

xxx xxx xxx

Atty. Salunat: We are now therefore presenting the
widow, your Honor, to take the witness stand for
examination by the court.
xxx xxx xxx
Court to witness: Can you testify in English?-No, your
Honor, Pampango.
Q. Ilocano? A. No, your Honor.
Atty. Salunat: She can testify in Tagalog your Honor,
which comprehensible.
Court: Your remember when you were born, Mrs.
Baluyut? A. March 25, 1901.

The probate court in its order of November 27, 1975 terminated the appointments of Espino and
Alfredo G. Baluyut as special administrators and appointed Mrs. Baluyut as regular
administratrix with a bond of P20,000. The order was based on the fact that as surviving spouse
she has a preferential right to be appointed as administratrix of her deceased husband's estate
and that she is entitled to three-fourths of the conjugal estate: one-half in her own right and onefourth as heir of the deceased. The lower court said it was convinced of the widow's capacity
and that her "sufficient understanding" justified her appointment.
Letters of administration were issued to Mrs. Baluyut after she posted her bond. She took her
oath of office on November 29, 1975.
On December 13, 1975 Alfredo G. Baluyut filed against respondent Judge, Mrs. Baluyut and the
Espino spouses this special civil action of certiorari in order to set aside the order of November
27 appointing Mrs. Baluyut as administratrix.
This court issued a restraining order enjoining the respondents from enforcing the order of
November 27 and from disposing of the funds or assets of the estate in their possession or
deposited in certain banks.

Q. Where did you graduate? Madres Dominicas.

Q. When did you get married to Sec. Baluyut? A. I
cannot remember the date but this was in Lingayen.
Q. What church? A. A Catholic.
Court: You want to ask more questions Attorney?
Atty. Salunat: Just a few clarificatory questions, your
Honor.

The Espino's in their comment alleged that Alfredo G. Baluyut is aware that Jose Espino was
acknowledged in a notarial instrument by Sotero Baluyut as his natural child.
Mrs. Baluyut in her comment alleged that Alfredo G. Baluyut instituted the administration
proceeding after he had failed to get from her a cheek for P500,000 belonging to the decedent's
estate and that he grossly misrepresented that she was mentally incompetent. She further
alleged that the order of the Juvenile and Domestic Relations Court declaring her an
incompetent was issued in a blitzkrieg manner because it was based on the report of Doctor
Lourdes V. Lapuz which was filed in court just one day before the order was issued.
Mrs. Baluyut's main contention is that it is the probate court and not the Juvenile and Domestic
Relations Court that should decide the issue as to her competency to act as administratrix.

Q. Do you know Gov. Espino? A. Yes.

Q. Why do you know him? A. Because he is like a
son to me.
Q. Do you know whether Gov. Espino has any
relationship with the late Don Sotero Baluyut? A.
Yes, why not.
Q. Will you please tell us what is the relationship if there
is any? A. He is his son, sir.

Alfredo G. Baluyut in his manifestation of February 2, 1976 disclosed that Sotero Baluyut
executed a notarial will on April 14, 1973. In that will he bequeathed to Mrs. Baluyut his one-half
share in certain conjugal assets and one-fourth of the residue of his estate. The remaining threefourths were bequeated to his collateral relatives named Irene, Erlinda, Estrellita, Eliseo and
Alfredo, all surnamed Baluyut, and Emerita, Emilio and Benjamin, all surnamed Miranda. The
testator designated Mrs. Baluyut as executrix. Espino is not mentioned in that will.
In this Court's resolution of May 7, 1976 respondents' comments were treated as their answers.
The case was deemed submitted for decision.

The issue is whether the lower court acted with grave abuse of discretion in appointing Mrs.
Baluyut as administratrix.
We hold that while the probate court correctly assumed that Mrs. Baluyut as surviving spouse
enjoys preference in the granting of letters of administration (Sec. 6[a), Rule 78, Rules of Court),
it does not follow that she should be named administratrix without conducting a full-dress
hearing on her competency to discharge that trust.
Even the directive of the testator in his will designating that a certain person should act as
executor is not binding on the probate court and does not automatically entitle him to the
issuance of letters testamentary. A hearing has to be held in order to ascertain his fitness to act
as executor. He might have been fit to act as executor when the will was executed but
supervening circumstances might have rendered him unfit for that position.
Thus, it was held that a hearing is necessary in order to determine the suitability of the person to
be appointed administrator by giving him the opportunity to prove his qualifications and affording
oppositors a chance to contest the petition (Matute vs. Court of Appeals, L-26106, January 31,
1969, 26 SCRA 768, 791).

Certiorari lies when a grave abuse of discretion was patently committed by the lower court or if
the petitioner's contention is clearly tenable or when the broader interests of justice or public
policy justify the nullification of the questioned order (Manila Electric Company and Sheriff of
Quezon City vs. Hon. Enriquez and Espinosa, 110 Phil. 499, 503; Pacheco vs. Tumangday and
Fernando, 108 Phil. 238; Raneses vs. Teves, L-26854, March 4, 1976).
Before closing, a pending incident herein should be resolved. Alfredo G. Baluyut in his motion of
January 15, 1976 prayed that respondent Judge be enjoined from acting on Mrs. Baluyut's
motion for the appointment of Espino as special administrator. In view of Alfredo G. Baluyut's
manifestation of
April 2, 1976 that his motion had become moot, the same is hereby denied.
WHEREFORE, the lower court's order of November 27, 1975 appointing Mrs. Baluyut as
administratrix is set aside. The letters of administration granted to her are cancelled. The
probate court is directed to conduct further proceedings in consonance with the guidelines
delineated in this decision. Costs against respondent Mrs. Baluyut.
SO ORDERED.

In this case the probate court briefly and perfunctorily interrogated Mrs. Baluyut in order to
satisfy itself on her mental capacity. The court did not give Alfredo G. Baluyut a chance to
contest her qualifications. He had squarely raised the issue as to her competency. The probate
court assumed that
Alfredo G. Baluyut had no interest in the decedent's estate. As it now turned out, he is one of the
legatees named in the decedent's alleged will.
Moreover, it is necessary to convert the proceeding in the lower court into a testamentary
proceeding. The probate of the will cannot be dispensed with and is a matter of public policy
(Art. 838, Civil Code; See. 1, Rule 75, Rules of Court; Guevara vs. Guevara, 74 Phil. 479 and 98
Phil. 249).
After the will is probated, the prior letters of administration should be revoked and proceedings
for the issuance of letters testamentary or of administration under the will should be conducted
(Sec. 1, Rule 82, Rules of Court; Cartajena vs. Lijauco and Zaballa, 38 Phil. 620; Rodriguez vs.
De Borja, L-21993, 64 O.G. 754, 17 SCRA 418).
Whether Sotero Baluyut died testate or intestate, it is imperative in the interest of the orderly
administration of justice that a hearing be held to determine Mrs. Baluyut's fitness to act as
executrix or administratrix. Persons questioning her capacity should be given an adequate
opportunity to be heard and to present evidence.
The lower court departed from the usual course of probate procedure in summarily appointing
Mrs. Baluyut as administratrix on the assumption that Alfredo G. Baluyut was not an interested
party. That irregularity became more pronounced after Alfredo G. Baluyut's revelation that the
decedent had executed a will. He anticipated that development when he articulated in his
petition his belief that Sotero Baluyut executed wills which should be delivered to the court for
probate.

G.R. No. 126950 July 2, 1999

NELSON NUFABLE, SILMOR NUFABLE and AQUILINA NUFABLE, petitioners,
vs.
GENEROSA NUFABLE, VILFOR NUFABLE, MARCELO NUFABLE, and the COURT OF
APPEALS, respondents.
GONZAGA-REYES, J.:
This petition for review on certiorari seeks to reverse and set aside the Decision dated
November 25, 1995 of the Fifth Division 1 of the Court of Appeals for allegedly being contrary to
law.
The following facts as found by the Court of Appeals are undisputed:
Edras Nufable owned at Poblacion, Manjuyod, Negros Oriental, consisting
of 948 square meters, more or less. He died on August 9, 1965 and was
survived by his children, namely: Angel Custodio, Generosa, Vilfor and
Marcelo, all surnamed Nufable. Upon petition for probate filed by said heirs
and after due publication and hearing, the then Court of First Instance of
Negros Oriental (Branch II) issued an Order dated March 30, 1966 admitting
to probate the last will and testament executed by the deceased Edras
Nufable (Exhs. B, C and C-1).
On June 6, 1966 the same court issued an Order approving the Settlement
of Estate submitted by the heirs of the late ESdras Nufable, portions of
which read:
KNOW ALL MEN BY THESE PRESENTS:

We, ANGEL CUSTODIO NUFABLE, GENEROSA

NUFABLE, VILFOR NUFABLE and MARCELO
NUFABLE, all of legal ages (sic), Filipinos, and with
residence and postal address at Manjuyod, Negros
Oriental, Philippines,
HEREBY DECLARE AND MAKE MANIFEST
1. That on August 9, 1965, Rev. Fr. Esdras Nufable died
leaving (a) Last Will and Testament (marked Exh. G)
disposing (of) his properties or estate in favor of his four
legitimate children, namely: Angel Custodio Nufable,
Generosa Nufable, Vilfor Nufable and Marcelo Nufable;
2. That on March 30, 1966 the said Last Will and
Testament was probated by the Honorable Court, Court
of First Instance of Negros Oriental, and is embodied in
the same order appointing an Administratrix, Generosa
Nufable, but to qualify only if she put up a necessary
bond of P1,000.00;
3. That herein legitimate children prefer not to appoint
an Administratrix, as agreed upon (by) all the heirs,
because they have no objection as to the manner of
disposition of their share made by the testator, the
expenses of the proceedings and that they have
already taken possession of their respective shares in
accordance with the will;
4. That the herein heirs agreed, as they hereby agree to
settle the estate in accordance with the terms and
condition of the will in the following manner, to wit:
a) That the parcel of land situated in Poblacion
Manjuyod, Negros Oriental remains undivided for
community ownership but respecting conditions
imposed therein (sic) in the will;
xxx xxx xxx
(Exhs. "E" and "E-1")
Two months earlier, or on March 15, 1966, spouses Angel Custodio and
Aquilina Nufable mortgaged the entire property located at Manjuyod to the
Development Bank of the Philippines [DBP] (Pre-trial Order, dated January
7, 1992, p. 103, Original Records). Said mortgagors became delinquent for
which reason the mortgaged property was foreclosed by DBP on February
26, 1973 (id.).

On January 11, 1980, Nelson Nufable, the son of Angel Custodio Nufable
(who died on August 29, 1978 [TSN, Testimony of Nelson Nufable, Hearing
of August 18, 1992, p. 17]), purchased said property from DBP (Exh. "1").
Generosa, Vilfor and Marcelo, all surnamed Nufable filed with the lower
court a complaint dated July 25, 1985 "To Annul Fraudulent Transactions, to
Quiet Title and To Recover Damages' against Nelson Nufable, and wife,
Silmor Nufable and his mother Aquilina Nufable. Plaintiffs pray:
WHEREFORE, plaintiffs pray this Honorable Court that
after trial judgment be rendered ordering:
(a) That the said Deed of Sale (Annex "C") executed by
the Development Bank of the Philippines in favor of the
defendants be declared null and void as far as the three
fourths (3/4) rights which belongs (sic) to the plaintiffs
are concerned;
(b) That the said three fourths (3/4) rights over the
above parcel in question be declared as belonging to
the plaintiffs at one fourth right to each of them;
(c) To order the defendants to pay jointly and severally
to the plaintiffs by way of actual and moral damages the
amount of P10,000.00 and another P5,000.00 as
Attorney's fees, and to pay the costs.
(d) Plus any other amount which this Court may deem
just and equitable. (p. 6, Original Records)
In their Answer, defendants contend:
4. Paragraph 4 is denied, the truth being that the late
Angel Nufable was the exclusive owner of said
property, that as such owner he mortgaged the same to
the Development Bank of the Philippines on March 15,
1966, that said mortgage was foreclosed and the DBP
became the successful bidder at the auction sale, that
ownership was consolidated in the name of the DBP,
and that defendant Nelson Nufable bought said
property from the DBP thereafter. During this period,
the plaintiffs never questioned the transactions which
were public, never filed any third party claim nor
attempted to redeem said property as redemptioners,
and that said Deed of Sale, Annex "B" to the complaint,
is fictitious, not being supported by any consideration;
(pp. 20-21, id.)
The Deed of Sale (Annex "B"), referred to by the parties is a notarized Deed
of Sale, dated July 12, 1966 (marked as Exhibit "H") by virtue of which,

spouses Angel and Aquilina Nufable, as vendors, sold 3/4 portion of the
subject property to herein plaintiffs for and in consideration of P1,000.00
(Exh. "5"). 2
On November 29, 1995, the Court of Appeals rendered judgment, the dispositive portion 3 of
which reads:
WHEREFORE, the appealed decision of the lower court is REVERSED and
SET ASIDE. A new judgment is hereby entered declaring plaintiffsappellants as the rightful co-owners of the subject property and entitled to
possession of 3/4 southern portion thereof; and defendant-appellee Nelson
Nufable to 1/4 portion.
No award on damages.
No costs.
Defendants-appellees' Motion for Reconsideration was denied for lack of merit in the Resolution
of the Court of Appeals 4 dated October 2, 1996.
Hence, the present petition. Petitioners raise the following grounds for the petition:
1. Honorable Court of Appeals erred in considering as controlling the
probate of the Last Will and Testament of Esdras Nufable, the probate
thereof not being an issue in this case;
2. The Honorable Court of Appeals erred in not considering the fact that the
Development Bank of the Philippines became absolute, exclusive, legal and
rightful owner of the land in question, from whom petitioner Nelson Nufable
acquired the same by purchase and that, therefore, no award can be made
in favor of private respondent unless and until the Development Bank of the
Philippines' title thereto is first declared null and void by the court.
The Court of Appeals, in its decision, stated that the trial court failed to take into consideration
the probated will of the late Esdras Nufable bequeathing the subject property to all his four
children. 5 In the present petition, petitioner present the issue of whether or not the Last Will and
Testament of Esdras Nufable and its subsequent probate are pertinent and material to the
question of the right of ownership of petitioner Nelson Nufable who purchased the land in
question from, and as acquired property of, the Development Bank of the Philippines (DBP, for
short). They contend that the probate of the Last Will Testament and of Esdras Nufable did not
determine the ownership of the land in question as against third parties.1wphi1.nt
As a general rule, courts in probate proceedings are limited only to passing upon the extrinsic
validity of the will sought to be probated, the due execution thereof, the testator's testamentary
capacity and the compliance with the requisites or solemnities prescribes by law. Said court at
this stage of the proceedings is not called to rule on the rule on the intrinsic validity or efficacy of
the will. 6 The question of the intrinsic validity of a will normally comes only after the court has
declared that the will has been duly authenticated.

The records show that upon petition for probate filed by the heirs of the late Esdras Nufable, an
Order dated March 30, 1966 was issued by then Court of First Instance of Negros Oriental,
Branch II, admitting to probate the last will and testament executed by the decedent. 7
Thereafter, on June 6, 1966, the same court approved the Settlement of Estate submitted by the
heirs of the late Esdras Nufable wherein they agreed "(T)hat the parcel land situated in
Poblacion Manjuyod, Negros Oriental remains undivided for community ownership but
respecting conditions imposed therein (sic) in the will." 8 In paragraph 3 thereof, they stated that
"they have no objection as to the manner of disposition of their share made by the testator, the
expenses of the proceeding and that they have already taken possession of their respective
shares in accordance with the will." Verily, it was the heirs of the late Esdras Nufable who agreed
among themselves on the disposition of their shares. The probate court simply approved the
agreement among the heirs which approval was necessary for the validity of any disposition of
the decedent's estate. 9
It should likewise be noted that the late Esdras Nufable died on August 9, 1965. When the entire
property located at Manjuyod was mortgaged on March 15, 1966 by his son Angel Custodio with
DBP, the other heirs of Esdras namely: Generosa, Vilfor and Marcelo had already acquired
successional rights over the said property. This is so because of the principle contained in Article
777 of the Civil Code to the effect that the rights to the succession are transmitted from the
moment of death of the decedent. Accordingly, for the purpose of transmission of rights, it does
not matter whether the Last Will and Testament of the late Esdras Nufable was admitted on
March 30, 1966 or thereafter or that the Settlement of Estate was approved on June 6, 1966 or
months later. It is to be noted that the probated will of the late Esdras Nufable specifically
referred to the subject property in stating that "the land situated in the Poblacion, Manjuyod,
Negros Oriental, should not be divided because this must remain in common for them, but it is
necessary to allow anyone of them brothers and sisters to construct a house therein." 10 It was
therefor the will of the decedent that the subject property should undivided, although the
restriction should not exceed twenty (20) years pursuant to Article 870 11 of the Civil Code.
Thus, when Angel Nufable and his spouses mortgaged the subject property to DBP on March
15, 1966, they had no right to mortgage the entire property. Angel's right over the subject
property was limited only to 1/4 pro indiviso share. As co-owner of the subject property, Angel's
right to sell, assign or mortgage is limited to that portion that may be allotted to him upon
termination of the co-ownership. Well-entrenched is the rule that a co-owner can only alienate
his pro indiviso share in the co-owned property. 12
The Court of Appeals did not err in ruling that Angel Custodio Nufable "had no right to mortgage
the subject property in its entirety. His right to encumber said property was limited only to 1/4 pro
indiviso share of the property in question." 13 Article 493 of the Civil Code spells out the rights or
co-owners over a co-owned property. Pursuant to said Article, a co-owner shall have full
ownership of his part and of the fruits and benefits pertaining thereto. He has the right to
alienate, assign or mortgage it, and even substitute another person in its enjoyment. As a mere
part owner, he cannot alienate the shares of the other co-owners. The prohibition is premised on
the elementary rule that "no one can give what he does not have." 14
Moreover, respondents stipulated that they were not aware of the mortgage by petitioners of the
subject property. 15 This being the case, a co-owner does not lose his part ownership of a coowned property when his share is mortgaged by another co-owner without the former's
knowledge and consent 16 as in the case at bar. It has likewise been ruled that the mortgage of
the inherited property is not binding against co-heirs who never benefitted. 17

Furthermore, the Deed of Sale dated June 17, 1966 marked as Exhibit "H" executed by spouses
Angel and Aquilina Nufable in favor of respondents Generosa, Vilfor and Marcelo wherein the
former sold, ceded and transferred back to the latter the 3/4 portion of the subject property
bolsters respondents' claim that there was co-ownership. Petitioner Nelson himself claimed that
he was aware of the aforesaid Deed of Sale. 18
Anent the second ground of the petition, petitioners allege that the Development Bank of the
Philippines acquired ownership of the land in question through foreclosure, purchase and
consolidation of ownership. Petitioners argue that if petitioner Nelson Nufable had not bought
said land from the DBP, private respondents, in order to acquire said property, must sue said
bank for the recovery thereof, and in so doing, must allege grounds for the annulment of
documents evidencing the bank's ownership thereof. Petitioners contend that since petitioner
Nelson Nufable simply bought the whole land from the bank, they cannot be deprived of the
ownership of 3/4 without making any pronouncement as to the legality or illegality of the bank's
ownership of said land. It is argued that there was no evidence to warrant declaration of nullity of
the bank's acquisition of said land; and that neither was there a finding by the court that the bank
illegally acquired the said property.
As adverted to above, when the subject property was mortgaged by Angel Custodio, he had no
right to mortgage the entire property but only with respect to his 1/4 pro indiviso share as the
property was subject to the successional rights of the other heirs of the late Esdras. Moreover, in
case of foreclosure; a sale would result in the transmission of title to the buyer which is feasible
only if the seller can be in a position to convey ownership of the things sold. 19 And in one case,
20
it was held that a foreclosure would be ineffective unless the mortgagor has title to the
property to be foreclosed. Therefore, as regards the remaining 3/4 pro indiviso share, the same
was held in trust for the party rightfully entitled thereto, 21 who are the private respondents
herein.
Pursuant to Article 1451 of the Civil Code, when land passes by succession to any person and
he causes the legal title to be put in the name of another, a trust is established by implication of
law for the benefit of the true owner. Likewise, under Article 1456 of the same Code, if property
is acquired through mistake or fraud, the person obtaining it is, by force of law, considered a
trustee of an implied trust for the benefit of the person from whom the property comes. In the
case of Noel vs. Court of Appeals, 22 this Court held that "a buyer of a parcel of land at a public
auction to satisfy a judgment against a widow acquired only one-half interest on the land
corresponding to the share of the widow and the other half belonging to the heirs of her husband
became impressed with a constructive trust in behalf of said heirs."
Neither does the fact that DBP succeeded in consolidating ownership over the subject property
in its name terminate the existing co-ownership. Registration of property is not a means of
acquiring ownership. 23 When the subject property was sold to and consolidated in the name of
DBP, it being the winning bidder in the public auction, DBP merely held the 3/4 portion in trust for
the private respondents. When petitioner Nelson purchased the said property, he merely
stepped into the shoes of DBP and acquired whatever rights and obligations appertain thereto.
This brings us to the issue of whether or not the DBP should have been impleaded as partydefendant in the case at bar. Petitioners contend that DBP was never impleaded and that due
process requires that DBP be impleaded so that it can defend its sale to petitioner Nelson
Nufable; and that it was the duty of private respondents, and not of petitioner Nelson, to implead
the bank and ask for the annulment of documents evidencing the bank's ownership of the
disputed land.

In the Rejoinder to the Reply, private respondents that the non-inclusion of DBP as a "necessary
party" was not questioned by petitioners from the time the Complaint was filed until the case was
"finished." It was only after the adverse decision by the respondent Court of Appeals that
petitioners raised the issue.
At the outset, it should be stated petitioners never raised this issue in their Answers and
pursuant to Section 2, Rule 9 of the Rules of Court, defenses and objections not pleaded either
in a motion to dismiss or in the answer are deemed waived.
Nonetheless, the rule is that indispensable parties, i.e., parties in interest without whom no final
determination can be had of an action, shall be joined either as plaintiffs or defendants; the
inclusion as a party, i.e., persons who are not indispensable but ought to be parties if complete
relief is to be accorded as between those already parties, the court may, in its discretion,
proceed in the action without making such persons parties, and the judgment rendered therein
shall be without prejudice to the rights of such persons. 25 Proper parties, therefore, have been
described as parties whose presence in necessary in order to adjudicate the whole controversy,
but whose interests are so far separable that a final decree can be made in their absence
without affecting them. 26 Any claim against a party may be severed and proceeded with
separately. 27
The pivotal issue to be determined is whether DBP is an indispensable party in this case.
Private respondents do not question the legality of the foreclosure of the mortgaged property
and the subsequent sale of the same to DBP. The subject property was already purchased by
petitioner Nelson from DBP and latter, by such sale, transferred its rights and obligations to the
former. Clearly, petitioners' interest in the controversy is distinct and separable from the interest
of DBP and a final determination can be had of the action despite the non-inclusion of DBP as
party-defendant. Hence, DBP, not being an indispensable party, did not have to be impleaded in
this case.
WHEREFORE, there being no reversible error in the decision appealed from, the petition for
review on certiorari is hereby DENIED.1wphi1.nt
SO ORDERED.
G.R. No. L-12207

December 24, 1959

JUAN PALACIOS, petitioner-appellant,

vs.
MARIA CATIMBANG PALACIOS, oppositor-appellee.
BAUTISTA ANGELO, J.:
Juan Palacios executed his last will and testament on June 25, 1946 and availing himself of the
provisions of the new Civil Code, he filed on May 23, 1956 before the Court of First Instance of
Batangas a petition for its approval. In said will, he instituted as his sole heirs his natural children
Antonio C. Palacios and Andrea C. Palacios.

On June 21, 1956, Maria Catimbang filed a opposition to the probate of the will alleging that she
is the acknowledged natural daughter of petitioner but that she was completely ignored in said
will thus impairing here legitime.
After the presentation of petitioner's evidence relative to the essential requisites and formalities
provided by law for the validity of a will, the court on July 6, 1956 issued an order admitting the
will to probate. The court, however, set a date for the hearing of the opposition relative to the
intrinsic validity of the will and, after proper hearing concerning this incident, the court issued
another order declaring oppositor to be the natural child of petitioner and annulling the will
insofar as it impairs her legitime, with costs against petitioner.
From this last order, petitioner gave notice of his intention to appeal directly to the Supreme
Court, and accordingly, the record was elavated to this Court.
It should be noted that petition instituted the present proceeding in order to secure the probate of
his will availing himself of the provisions of Article 838, paragraph 2, of the new Civil Code, which
permit a testator to petition the proper court during his lifetime for the allowance of his will, but to
such petition on Maria Catimbang filed an opposition alleging that she is the acknowledged
natural daughter of petitioner but that she was completely ignored in the will thus impairing her
object to the probate of the will insofar as it due execution is concerned or on the ground that it
has not complied with the formalities prescribed by law; rather she objects to its intrinsic validity
or to the legality of the provisions of the will.
We hold that such opposition cannot be entertained in this proceeding because its only purpose
is merely to determine if the will has been executed in accordance with the requirements of the
law, much less if the purpose of the opposition is to show that the oppositor is an acknowledged
natural child who allegedly has been ignored in the will for issue cannot be raised here but in a
separate action. This is especially so when the testator, as in the present case, is still alive and
has merely filed a petition for the allowance of his will leaving the effects thereof after his
death.lawphi1.net
This is in line with our ruling in Montaano vs. Suesa, 14 Phil., 676, wherein we said: "The
authentication of the 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 a will. It does not determine nor even by implication prejudge the validity or efficiency
of the provisions; that may be impugned as being vicious or null, notwithstanding its
authentication. The questions relating to these points remain entirely un-affected, and may be
raised even after the will has been authenticated."
On the other hand, "after a will has been probated during the lifetime of a testator, it does not
necessarily mean that he cannot alter or revoke the same before he has had a chance to
present such petition, the ordinary probate proceedings after the testator's death would be in
order" (Report of the Code Commission, pp. 53-54).The reason for this comment is that the
rights to the succession are transmitted from the moment of the death of the decedent (Article
777, new Civil Code.).
It is clear that the trial court erred in entertaining the opposition and in annulling the portion of
the will which allegedly impairs the legitime of the oppositor on the ground that, as it has found,
she is an extraneous matter which should be treshed out in a separate action.
Wherefore, the order appealed from is set aside, without pronouncement as to costs.

G.R. No. L-16763 December 22, 1921

PASCUAL COSO, petitioner-appellant,
vs.
FERMINA FERNANDEZ DEZA, ET AL., objectors-appellees.
OSTRAND, J.:
This is an appeal from a decision of the Court of First Instance of Manila setting aside a will on
the ground of undue influence alleged to have been exerted over the mind of a testator by one
Rosario Lopez. The will gives the tercio de libre disposicion to an illegitimate son had by the
testator with said Rosario Lopez, and also provides for the payment to her of nineteen hundred
Spanish duros by way the reimbursement for expenses incurred by her in taking care of the
testator in Barcelona during the years 1909 to 1916, when he is alleged to have suffered from a
severe illness.
The evidence shows that the testator, a married man and resident of the Philippine Islands,
became acquainted with Rosario Lopez in Spain in 1898 and that he had illicit returns with her
for many years thereafter. After his return to the Philippines she followed him, arriving in Manila
in February, 1918, and remained in close communication with him until his death in February,
1919. There is no doubt that she exercised some influence over him and the only question for
our determination is whether this influence was of such a character as to vitiate the will.
The English and American rule in regard to undue influence is thus stated in 40 Cyc., 1144-1149.
Mere general or reasonable influence over a testator is not sufficient to invalidate a
will; to have that effect the influence must be "undue." The rule as to what constitutes
"undue influence" has been variously stated, but the substance of the different
statements is that, to be sufficient to avoid a will, the influence exerted must be of a
kind that so overpowers and subjugates the mind of the testator as to destroy his free
agency and make his express the will of another, rather than his own.1awphil.net
. . . such influence must be actually exerted on the mind of the testator in regard to the
execution of the will in question, either at time of the execution of the will, or so near
thereto as to be still operative, with the object of procuring a will in favor of particular
parties, and it must result in the making of testamentary dispositions which the testator
would not otherwise have made. . . .
. . . and while the same amount of influence may become "undue" when exercised by
one occupying an improper and adulterous relation to testator, the mere fact that
some influence is exercised by a person sustaining that relation does not invalidate a
will, unless it is further shown that the influence destroys the testator's free agency.
The burden is upon the parties challenging the will to show that undue influence, in the sense
above expressed, existed at the time of its execution and we do not think that this burden has
been carried in the present case. While it is shown that the testator entertained strong affections
for Rosario Lopez, it does not appear that her influence so overpowered and subjugated his
mind as to "destroy his free agency and make him express the will of another rather than his
own." He was an intelligent man, a lawyer by profession, appears to have known his own mind,
and may well have been actuated only by a legitimate sense of duty in making provisions for the

welfare of his illegitimate son and by a proper feeling of gratitude in repaying Rosario Lopez for
the sacrifices she had made for him. Mere affection, even if illegitimate, is not undue influence
and does not invalidate a will. No imposition or fraud has been shown in the present case.
Influence gained by kindness and affection will not be regarded as `undue,' if no
imposition or fraud be practiced, even though it induces the testator to make an
unequal and unjust disposition of his property in favor of those who have contributed
to his comfort and ministered to his wants, if such disposition is voluntarily made.
(Mackall vs. Mackall, 135 U. S., 1677.)
It may be further observed that under the Civil Law the right of a person with legal heirs to
dispose of his property by will is limited to only a portion of his estate, and that under the law in
force in these Islands before the enactment of the Code of Civil Procedure, the only outside

influences affecting the validity of a will were duress, deceit, and fraud. The present doctrine of
undue influence originated in a legal system where the right of the testator to dispose of his
property by will was nearly unlimited. Manifestly, greater safeguards in regard to execution of
wills may be warranted when the right to so dispose of property is unlimited than when it is
restricted to the extent it is in this jurisdiction. There is, therefore, certainly no reason for giving
the doctrine of undue influence a wider scope here than it enjoys in the United States.
For the reasons stated, the decision of the lower court disallowing the will of Federico Gimenez
Zoboli is hereby reversed and it is ordered that the will be admitted to probate. No costs will be
allowed. So ordered.