SPECPRO| RULE 75| 1

G.R. No. L-55509 April 27, 1984

ETHEL
GRIMM
ROBERTS, petitioner,
vs.
JUDGE TOMAS R. LEONIDAS, Branch 38, Court of First Instance of
Manila; MAXINE TATE-GRIMM, EDWARD MILLER GRIMM II and
LINDA GRIMM, respondents.
AQUINO, J.:+.wph!1

Maxine admitted that she received notice of the intestate petition filed in
Manila by Ethel in January, 1978 (p. 53, Rollo). In its order dated April 10,
1978, the Third Judicial District Court admitted to probate the two wills and
the codicil It was issued upon consideration of the stipulation dated April 4,
1978 "by and between the attorneys for Maxine Tate Grimm, Linda Grimm,
Edward Miller Grimm II, E. LaVar Tate, Juanita Kegley Grimm (first wife),
Juanita Grimm Morris and Ethel Grimm Roberts" (Annex C, pp. 48-51,
Rollo).

Two weeks later, or on April 25, 1978, Maxine and her two children Linda
The question in this case is whether a petition for allowance of wills and to
and Pete, as the first parties, and Ethel, Juanita Grimm Morris and their
annul a partition, approved in anintestate proceeding by Branch 20 of the
mother Juanita Kegley Grimm as the second parties, with knowledge of the
Manila Court of First Instance, can be entertained by its Branch 38 (after a
intestate proceeding in Manila, entered into a compromise agreement in
probate in the Utah district court).
Utah regarding the estate. It was signed by David E. Salisbury and Donald
B. Holbrook, as lawyers of the parties, by Pete and Linda and the attorneyAntecedents. Edward M. Grimm an American resident of Manila, died at
in-fact of Maxine and by the attorney-in-fact of Ethel, Juanita Grimm Morris
78 in the Makati Medical Center on November 27, 1977. He was survived by
and Juanita Kegley Grimm.
his second wife, Maxine Tate Grimm and their two children, named Edward
Miller Grimm II (Pete) and Linda Grimm and by Juanita Grimm Morris and
In that agreement, it was stipulated that Maxine, Pete and Ethel would be
Ethel Grimm Roberts (McFadden), his two children by a first marriage which
designated as personal representatives (administrators) of Grimm's
ended in divorce (Sub-Annexes A and B. pp. 36-47, Rollo).
Philippine estate (par. 2). It was also stipulated that Maxine's one-half
conjugal share in the estate should be reserved for her and that would not
He executed on January 23, 1959 two wills in San Francisco, California. One
be less than $1,500,000 plus the homes in Utah and Santa Mesa, Manila
will disposed of his Philippine estate which he described as conjugal
(par. 4). The agreement indicated the computation of the "net distributable
property of himself and his second wife. The second win disposed of his
estate". It recognized that the estate was liable to pay the fees of the
estate outside the Philippines.
Angara law firm (par. 5).
In both wills, the second wife and two children were favored. The two
children of the first marriage were given their legitimes in the will disposing
of the estate situated in this country. In the will dealing with his property
outside this country, the testator said: t.hqw
I purposely have made no provision in this will for my daughter, Juanita
Grimm Morris, or my daughter, Elsa Grimm McFadden (Ethel Grimm
Roberts), because I have provided for each of them in a separate will
disposing of my Philippine property. (First clause, pp. 43-47, Rollo).
The two wills and a codicil were presented for probate by Maxine Tate
Grimm and E. LaVar Tate on March 7, 1978 in Probate No. 3720 of the Third
Judicial District Court of Tooele County, Utah. Juanita Grimm Morris of
Cupertino, California and Mrs. Roberts of 15 C. Benitez Street, Horseshoe
Village, Quezon City were notified of the probate proceeding (Sub-Annex C,
pp. 48-55, Rollo).

It was stipulated in paragraph 6 that the decedent's four children "shall

share equally in the Net Distributable Estate" and that Ethel and Juanita
Morris should each receive at least 12-1/2% of the total of the net
distributable estate and marital share. A supplemental memorandum also
dated April 25, 1978 was executed by the parties (Sub-Annex F, pp. 49-61,
Annex, F-1, pp. 75-76, Testate case).
Intestate proceeding No. 113024.-At this juncture, it should be stated that
forty- three days after Grimm's death, or January 9, 1978, his daughter of
the first marriage, Ethel, 49, through lawyers Deogracias T. Reyes and.
Gerardo B. Macaraeg, filed with Branch 20 of the Manila Court of First
Instance intestate proceeding No. 113024for the settlement of his estate.
She was named special administratrix.

SPECPRO| RULE 75| 2

On March 11, the second wife, Maxine, through the Angara law office, filed
an opposition and motion to dismiss the intestate proceeding on the ground
of the pendency of Utah of a proceeding for the probate of Grimm's will.
She also moved that she be appointed special administratrix, She submitted
to the court a copy of Grimm's will disposing of his Philippine estate. It is
found in pages 58 to 64 of the record.
The intestate court in its orders of May 23 and June 2 noted that Maxine,
through a new lawyer, William C. Limqueco (partner of Gerardo B.
Macaraeg, p. 78, testate case withdrew that opposition and motion to
dismiss and, at the behest of Maxine, Ethel and Pete, appointed them joint
administrators. Apparently, this was done pursuant to the aforementioned
Utah compromise agreement. The court ignored the will already found in
the record.
The three administrators submitted an inventory. With the authority and
approval of the court, they sold for P75,000 on March 21, 1979 the socalled Palawan Pearl Project, a business owned by the deceased. Linda and
Juanita allegedly conformed with the sale (pp. 120-129, Record). It turned
out that the buyer, Makiling Management Co., Inc., was incorporated by
Ethel and her husband, Rex Roberts, and by lawyer Limqueco (Annex L, p.
90, testate case).
Also with the court's approval and the consent of Linda and Juanita, they
sold for P1,546,136 to Joseph Server and others 193,267 shares of RFM
Corporation (p. 135, Record).
Acting on the declaration of heirs and project of partition signed and filed
by lawyers Limqueco and Macaraeg (not signed by Maxine and her two
children), Judge Conrado M. Molina in his order of July 27, 1979 adjudicated
to Maxine onehalf (4/8) of the decedent's Philippine estate and one-eighth
(1/8) each to his four children or 12-1/2% (pp. 140-142, Record). No
mention at all was made of the will in that order.
Six days later, or on August 2, Maxine and her two children replaced
Limqueco with Octavio del Callar as their lawyer who on August 9, moved
to defer approval of the project of partition. The court considered the
motion moot considering that it had already approved the declaration of
heirs and project of partition (p. 149, Record).
Lawyer Limqueco in a letter to Maxine dated August 2, 1979 alleged that he
was no longer connected with Makiling Management Co., Inc. when the

Palawan Pearl Project was sold: that it was Maxine's son Pete who
negotiated the sale with Rex Roberts and that he (Limqueco) was going to
sue Maxine for the lies she imputed to him (Annex H, p. 78, testate case).
Ethel submitted to the court a certification of the Assistant Commissioner of
Internal Revenue dated October 2, 1979. It was stated therein that Maxine
paid P1,992,233.69 as estate tax and penalties and that he interposed no
objection to the transfer of the estate to Grimm's heirs (p. 153, Record).
The court noted the certification as in conformity with its order of July 27,
1979.
After November, 1979 or for a period of more than five months, there was
no movement or activity in the intestate case. On April 18, 1980 Juanita
Grimm Morris, through Ethel's lawyers, filed a motion for accounting "so
that the Estate properties can be partitioned among the heirs and the
present intestate estate be closed." Del Callar, Maxine's lawyer was notified
of that motion.
Before that motion could be heard, or on June 10, 1980, the Angara law
firm filed again its appearance in collaboration with Del Callar as counsel for
Maxine and her two children, Linda and Pete. It should be recalled that the
firm had previously appeared in the case as Maxine's counsel on March 11,
1978, when it filed a motion to dismiss the intestate proceeding and
furnished the court with a copy of Grimm's will. As already noted, the firm
was then superseded by lawyer Limqueco.
Petition to annul partition and testate proceeding No. 134559. On
September 8, 1980, Rogelio A. Vinluan of the Angara law firm in behalf of
Maxine, Pete and Linda, filed in Branch 38 of the lower court a petition
praying for the probate of Grimm's two wills (already probated in Utah),
that the 1979 partition approved by the intestate court be set aside and the
letters of administration revoked, that Maxine be appointed executrix and
that Ethel and Juanita Morris be ordered to account for the properties
received by them and to return the same to Maxine (pp. 25-35, Rollo).
Grimm's second wife and two children alleged that they were defraud due
to the machinations of the Roberts spouses, that the 1978 Utah
compromise agreement was illegal, that the intestate proceeding is void
because Grimm died testate and that the partition was contrary to the
decedent's wills.

SPECPRO| RULE 75| 3

Ethel filed a motion to dismiss the petition. Judge Leonidas denied it for
lack of merit in his order of October 27, 1980. Ethel then filed a petition for
certiorari and prohibition in this Court, praying that the testate proceeding
be dismissed, or. alternatively that the two proceedings be consolidated and
heard in Branch 20 and that the matter of the annulment of the Utah
compromise agreement be heard prior to the petition for probate (pp. 2223, Rollo).
Ruling. We hold that respondent judge did not commit any grave abuse
of discretion, amounting to lack of jurisdiction, in denying Ethel's motion to
dismiss.
A testate proceeding is proper in this case because Grimm died with two
wills and "no will shall pass either real or personal property unless it is
proved and allowed" (Art. 838, Civil Code; sec. 1, Rule 75, Rules of Court).
The probate of the will is mandatory (Guevara vs. Guevara, 74 Phil. 479
and 98 Phil. 249; Baluyot vs. Panio, L-42088, May 7, 1976, 71 SCRA 86). It
is anomalous that the estate of a person who died testate should be settled
in an intestate proceeding. Therefore, the intestate case should be
consolidated with the testate proceeding and the judge assigned to the
testate proceeding should continue hearing the two cases.
Ethel may file within twenty days from notice of the finality of this judgment
an opposition and answer to the petition unless she considers her motion to
dismiss and other pleadings sufficient for the purpose. Juanita G. Morris,
who appeared in the intestate case, should be served with copies of orders,
notices and other papers in the testate case.
WHEREFORE the petition is dismissed. The temporary restraining order is
dissolved. No costs.
SO ORDERED.1wph

SPECPRO| RULE 75| 4

G.R. Nos. L-21938-39 May 29, 1970

VICENTE
URIARTE, petitioner,
vs.
THE COURT OF FIRST INSTANCE OF NEGROS OCCIDENTAL (12th
Judicial District) THE COURT OF FIRST INSTANCE OF MANILA,
BRANCH
IV,
JUAN
URIARTE
ZAMACONA
and
HIGINIO
URIARTE, respondents.
Norberto J. Quisumbing for petitioner.
Taada, Teehankee & Carreon for respondents.

DIZON, J.:
On October 3, 1963 petitioner Vicente Uriarte filed an original petition
for certiorari docketed as G.R. L-21938 against the respondents Juan
Uriarte Zamacona, Higinio Uriarte, and the Courts of First Instance of
Negros Occidental and of Manila, Branch IV, who will be referred to
hereinafter as the Negros Court and the Manila Court, respectively
praying:
... that after due proceedings judgment be rendered annulling the orders of
19 April 1963 (Annex 'H') and 11 July 1963 (Annex 'I') of respondent
Negros court dismissing the first instituted Special Proceeding No. 6344,
supra, and the order of 1 July 1963 (Annex 'K') of respondent Manila court
denying petitioner's omnibus motion to intervene and to dismiss the laterinstituted Special Proceeding No. 51396, supra, both special proceedings
pertaining to the settlement of the same estate of the same deceased, and
consequently annulling all proceedings had in Special Proceeding No.
51396; supra, of the respondent Manila court as all taken without
jurisdiction.
For the preservation of the rights of the parties pending these proceedings,
petitioner prays for the issuance of a writ of preliminary injunction enjoining
respondents Manila court, Juan Uriarte Zamacona and Higinio Uriarte from
proceeding with Special Proceeding No. 51396, supra, until further orders of
this Court.
Reasons in support of said petition are stated therein as follows:

6. Respondent Negros court erred in dismissing its Special Proceeding No.

6344, supra, and failing to declare itself 'the court first taking cognizance of
the settlement of the estate of' the deceased Don Juan Uriarte y Goite as
prescribed in Rule 75 section 1 of the Rules of Court. Respondent Manila
court erred in failing to dismiss its Special Proceeding No. 51396, supra,
notwithstanding proof of prior filing of Special Proceeding No. 6344, supra,
in the Negros court.
The writ of preliminary injunction prayed for was granted and issued by this
Court on October 24, 1963.
On April 22, 1964 petitioner filed against the same respondents a pleading
entitled SUPPLEMENTAL PETITION FOR MANDAMUS docketed in this
Court as G.R. No. L-21939 praying, for the reasons therein stated, that
judgment be rendered annulling the orders issued by the Negros Court on
December 7, 1963 and February 26, 1964, the first disapproving his record
on appeal and the second denying his motion for reconsideration, and
further commanding said court to approve his record on appeal and to give
due course to his appeal. On July 15, 1964 We issued a resolution deferring
action on this Supplemental Petition until the original action for certiorari
(G.R. L-21938) is taken up on the merits.
On October 21, 1963 the respondents in G.R. L-21938 filed their answer
traversing petitioner's contention that the respondent courts had committed
grave abuse of discretion in relation to the matters alleged in the petition
for certiorari.
It appears that on November 6, 1961 petitioner filed with the Negros Court
a petition for the settlement of the estate of the late Don Juan Uriarte y
Goite (Special Proceeding No. 6344) alleging therein, inter alia, that, as a
natural son of the latter, he was his sole heir, and that, during the lifetime
of said decedent, petitioner had instituted Civil Case No. 6142 in the same
Court for his compulsory acknowledgment as such natural son. Upon
petitioner's motion the Negros Court appointed the Philippine National Bank
as special administrator on November 13, 1961 and two days later it set the
date for the hearing of the petition and ordered that the requisite notices be
published in accordance with law. The record discloses, however, that, for
one reason or another, the Philippine, National Bank never actually qualified
as special administrator.
On December 19, 1961, Higinio Uriarte, one of the two private respondents
herein, filed an opposition to the above-mentioned petition alleging that he

SPECPRO| RULE 75| 5

was a nephew of the deceased Juan Uriarte y Goite who had "executed a
Last Will and Testament in Spain, a duly authenticated copy whereof has
been requested and which shall be submitted to this Honorable Court upon
receipt thereof," and further questioning petitioner's capacity and interest to
commence the intestate proceeding.

WHEREFORE, in order to give way to the certiorari, the record on appeal

filed by the petitioner is hereby disapproved.

On August 28, 1962, Juan Uriarte Zamacona, the other private respondent,
commenced Special Proceeding No. 51396 in the Manila Court for the
probate of a document alleged to be the last will of the deceased Juan
Uriarte y Goite, and on the same date he filed in Special Proceeding No.
6344 of the Negros Court a motion to dismiss the same on the following
grounds: (1) that, as the deceased Juan Uriarte y Goite had left a last will,
there was no legal basis to proceed with said intestate proceedings, and (2)
that petitioner Vicente Uriarte had no legal personality and interest to
initiate said intestate proceedings, he not being an acknowledged natural
son of the decedent. A copy of the Petition for Probate and of the alleged
Will were attached to the Motion to Dismiss.

On April 15, 1963 Vicente Uriarte filed an Omnibus Motion in Special

Proceeding No. 51396 pending in the Manila Court, asking for leave to
intervene therein; for the dismissal of the petition and the annulment of the
proceedings had in said special proceeding. This motion was denied by said
court in its order of July 1 of the same year.

Petitioner opposed the aforesaid motion to dismiss contending that, as the

Negros Court was first to take cognizance of the settlement of the estate of
the deceased Juan Uriarte y Goite, it had acquired exclusive jurisdiction
over same pursuant to Rule 75, Section 1 of the Rules of Court.
On April 19, 1963, the Negros Court sustained Juan Uriarte Zamacona's
motion to dismiss and dismissed the Special Proceeding No. 6344 pending
before it. His motion for reconsideration of said order having been denied
on July 27, 1963, petitioner proceeded to file his notice of appeal, appeal
bond and record on appeal for the purpose of appealing from said orders to
this court on questions of law. The administrator with the will annexed
appointed by the Manila Court in Special Proceeding No. 51396 objected to
the approval of the record on appeal, and under date of December 7, 1963
the Negros Court issued the following order:
Oppositor prays that the record on appeal filed by the petitioner on July 27,
1963, be dismissed for having been filed out of time and for being
incomplete. In the meantime, before the said record on appeal was
approved by this Court, the petitioner filed a petition for certiorari before
the Supreme Court entitled Vicente Uriarte, Petitioner, vs. Court of First
Instance of Negros Occidental, et al., G.R. No. L-21938, bringing this case
squarely before the Supreme Court on questions of law which is tantamount
to petitioner's abandoning his appeal from this Court.

In view of the above-quoted order, petitioner filed the supplemental petition

for mandamus mentioned heretofore.

It is admitted that, as alleged in the basic petition filed in Special

Proceeding No. 6344 of the Negros Court, Vicente Uriarte filed in the same
court, during the lifetime of Juan Uriarte y Goite, Civil Case No. 6142 to
obtain judgment for his compulsory acknowledgment as his natural child.
Clearly inferrable from this is that at the time he filed the action, as well as
when he commenced the aforesaid special proceeding, he had not yet been
acknowledged as natural son of Juan Uriarte y Goite. Up to this time, no
final judgment to that effect appears to have been rendered.
The record further discloses that the special proceeding before the Negros
Court has not gone farther than the appointment of a special administrator
in the person of the Philippine National Bank who, as stated heretofore,
failed to qualify.
On the other hand, it is not disputed that, after proper proceedings were
had in Special Proceeding No. 51396, the Manila Court admitted to probate
the document submitted to, it as the last will of Juan Uriarte y Goite, the
petition for probate appearing not to have been contested. It appears
further that, as stated heretofore, the order issued by the Manila Court on
July 1, 1963 denied petitioner. Vicente Uriarte's Omnibus Motion for
Intervention, Dismissal of Petition and Annulment of said proceedings.
Likewise, it is not denied that to the motion to dismiss the special
proceeding pending before the Negros Court filed by Higinio Uriarte were
attached a copy of the alleged last will of Juan Uriarte y Goite and of the
petition filed with the Manila Court for its probate. It is clear, therefore, that
almost from the start of Special Proceeding No. 6344, the Negros Court and
petitioner Vicente Uriarte knew of the existence of the aforesaid last will
and of the proceedings for its probate.

SPECPRO| RULE 75| 6

The principal legal questions raised in the petition for certiorari are (a)
whether or not the Negros Court erred in dismissing Special Proceeding No.
6644, on the one hand, and on the other, (b) whether the Manila Court
similarly erred in not dismissing Special Proceeding No. 51396
notwithstanding proof of the prior filing of Special Proceeding No. 6344 in
the Negros Court.
Under the Judiciary Act of 1948 [Section 44, paragraph (e)], Courts of First
Instance have original exclusive jurisdiction over "all matters of probate,"
that is, over special proceedings for the settlement of the estate of
deceased persons whether they died testate or intestate. While their
jurisdiction over such subject matter is beyond question, the matter
of venue, or the particular Court of First Instance where the special
proceeding should be commenced, is regulated by former Rule 75, Section
1 of the Rules of Court, now Section 1, Rule 73 of the Revised Rules of
Court, which provides that the estate of a decedent inhabitant of the
Philippines at the time of his death, whether a citizen or an alien, shall be in
the court of first instance in the province in which he resided at the time of
his death, and if he is an inhabitant of a foreign country, the court of first
instance of any province in which he had estate. Accordingly, when the
estate to be settled is that of a non-resident alien like the deceased Juan
Uriarte y Goite the Courts of First Instance in provinces where the
deceased left any property have concurrent jurisdiction to take cognizance
of the proper special proceeding for the settlement of his estate. In the
case before Us, these Courts of First Instance are the Negros and the
Manila Courts province and city where the deceased Juan Uriarte y Goite
left considerable properties. From this premise petitioner argues that, as
the Negros Court had first taken cognizance of the special proceeding for
the settlement of the estate of said decedent (Special Proceeding No.
6344), the Manila Court no longer had jurisdiction to take cognizance of
Special Proceeding No. 51396 intended to settle the estate of the same
decedent in accordance with his alleged will, and that consequently, the first
court erred in dismissing Special Proceeding No. 6344, while the second
court similarly erred in not dismissing Special Proceeding No. 51396.
It can not be denied that a special proceeding intended to effect the
distribution of the estate of a deceased person, whether in accordance with
the law on intestate succession or in accordance with his will, is a "probate
matter" or a proceeding for the settlement of his estate. It is equally true,
however, that in accordance with settled jurisprudence in this jurisdiction,
testate proceedings, for the settlement of the estate of a deceased person
take precedence over intestate proceedings for the same purpose. Thus it

has been held repeatedly that, if in the course of intestate proceedings

pending before a court of first instance it is found it hat the decedent had
left a last will, proceedings for the probate of the latter should replace the
intestate proceedings even if at that stage an administrator had already
been appointed, the latter being required to render final account and turn
over the estate in his possession to the executor subsequently appointed.
This, however, is understood to be without prejudice that should the alleged
last will be rejected or is disapproved, the proceeding shall continue as an
intestacy. As already adverted to, this is a clear indication that proceedings
for the probate of a will enjoy priority over intestate proceedings.
Upon the facts before Us the question arises as to whether Juan Uriarte
Zamacona should have filed the petition for the probate of the last will of
Juan Uriarte y Goite with the Negros Court particularly in Special
Proceeding No. 6344 or was entitled to commence the corresponding
separate proceedings, as he did, in the Manila Court.
The following considerations and the facts of record would seem to support
the view that he should have submitted said will for probate to the Negros
Court, either in a separate special proceeding or in an appropriate motion
for said purpose filed in the already pending Special Proceeding No. 6344.
In the first place, it is not in accord with public policy and the orderly and
inexpensive administration of justice to unnecessarily multiply litigation,
especially if several courts would be involved. This, in effect, was the result
of the submission of the will aforesaid to the Manila Court. In the second
place, when respondent Higinio Uriarte filed an opposition to Vicente
Uriarte's petition for the issuance of letters of administration, he had
already informed the Negros Court that the deceased Juan Uriarte y Goite
had left a will in Spain, of which a copy had been requested for submission
to said court; and when the other respondent, Juan Uriarte Zamacona, filed
his motion to dismiss Special Proceeding No. 6344, he had submitted to the
Negros Court a copy of the alleged will of the decedent, from which fact it
may be inferred that, like Higinio Uriarte, he knew before filing the petition
for probate with the Manila Court that there was already a special
proceeding pending in the Negros Court for the settlement of the estate of
the same deceased person. As far as Higinio Uriarte is concerned, it seems
quite clear that in his opposition to petitioner's petition in Special
Proceeding No. 6344, he had expressly promised to submit said will for
probate to the Negros Court.
But the fact is that instead of the aforesaid will being presented for probate
to the Negros Court, Juan Uriarte Zamacona filed the petition for the

SPECPRO| RULE 75| 7

purpose with the Manila Court. We can not accept petitioner's contention in
this regard that the latter court had no jurisdiction to consider said petition,
albeit we say that it was not the proper venue therefor.
It is well settled in this jurisdiction that wrong venue is merely
a waiveable procedural defect, and, in the light of the circumstances
obtaining in the instant case, we are of the opinion, and so hold, that
petitioner has waived the right to raise such objection or is precluded from
doing so by laches. It is enough to consider in this connection that
petitioner knew of the existence of a will executed by Juan Uriarte y Goite
since December 19, 1961 when Higinio Uriarte filed his opposition to the
initial petition filed in Special Proceeding No. 6344; that petitioner likewise
was served with notice of the existence (presence) of the alleged last will in
the Philippines and of the filing of the petition for its probate with the
Manila Court since August 28, 1962 when Juan Uriarte Zamacona filed a
motion for the dismissal of Special Proceeding No. 6344. All these
notwithstanding, it was only on April 15, 1963 that he filed with the Manila
Court in Special Proceeding No. 51396 an Omnibus motion asking for leave
to intervene and for the dismissal and annulment of all the proceedings had
therein up to that date; thus enabling the Manila Court not only to appoint
an administrator with the will annexed but also to admit said will to probate
more than five months earlier, or more specifically, on October 31, 1962. To
allow him now to assail the exercise of jurisdiction over the probate of the
will by the Manila Court and the validity of all the proceedings had in
Special Proceeding No. 51396 would put a premium on his negligence.
Moreover, it must be remembered that this Court is not inclined to annul
proceedings regularly had in a lower court even if the latter was not
the proper venue therefor, if the net result would be to have the same
proceedings repeated in some other court of similar jurisdiction; more so in
a case like the present where the objection against said proceedings is
raised too late.
In his order of April 19, 1963 dismissing Special Proceeding No. 6344,
Judge Fernandez of the Negros Court said that he was "not inclined to
sustain the contention of the petitioner that inasmuch as the herein
petitioner has instituted Civil Case No. 6142 for compulsory
acknowledgment by the decedent such action justifies the institution by him
of this proceedings. If the petitioner is to be consistent with the authorities
cited by him in support of his contention, the proper thing for him to do
would be to intervene in the testate estate proceedings entitled Special
Proceedings No. 51396 in the Court of First Instance of Manila instead of
maintaining an independent action, for indeed his supposed interest in the

estate of the decedent is of his doubtful character pending the final decision
of the action for compulsory acknowledgment."
We believe in connection with the above matter that petitioner is entitled to
prosecute Civil Case No. 6142 until it is finally determined, or intervene in
Special Proceeding No. 51396 of the Manila Court, if it is still open, or to
ask for its reopening if it has already been closed, so as to be able to
submit for determination the question of his acknowledgment as natural
child of the deceased testator, said court having, in its capacity as a probate
court, jurisdiction to declare who are the heirs of the deceased testator and
whether or not a particular party is or should be declared his acknowledged
natural child (II Moran on Rules of Court, 1957 Ed., p. 476; Conde vs.
Abaya, 13 Phil. 249; Severino vs. Severino, 44 Phil. 343; Lopez vs. Lopez,
68 Phil. 227, and Jimoga-on vs. Belmonte, 47 O. G. 1119).
Coming now to the supplemental petition for mandamus (G.R. No. L21939), We are of the opinion, and so hold, that in view of the conclusions
heretofore stated, the same has become moot and academic. If the said
supplemental petition is successful, it will only result in compelling the
Negros Court to give due course to the appeal that petitioner was taking
from the orders of said court dated December 7, 1963 and February 26,
1964, the first being the order of said court dismissing Special Proceeding
No. 6344, and the second being an order denying petitioner's motion for
the reconsideration of said order of dismissal. Said orders being, as a result
of what has been said heretofore beyond petitioner's power to contest, the
conclusion can not be other than that the intended appeal would serve no
useful purpose, or, worse still, would enable petitioner to circumvent our
ruling that he can no longer question the validity of said orders.
IN VIEW OF THE FOREGOING CONSIDERATIONS, judgment is hereby
rendered denying the writs prayed for and, as a result, the petition
for certiorari filed in G.R. No. L-21938, as well as the supplemental petition
for mandamus docketed as G.R. No. L-21939, are hereby dismissed. The
writ of preliminary injunction heretofore issued is set aside. With costs
against petitioner.

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

SPECPRO| RULE 75| 8

ALFREDO
G.
BALUYUT, petitioner,
vs.
HON. ERNANI CRUZ PAO, ENCARNACION LOPEZ VDA. DE
BALUYUT, JOSE ESPINO and CORAZON ESPINO, respondents.

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.

Mary Concepcion-Bautista for petitioner.

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.

Santiago, Salunat and Agbayani for respondent Encarnacion Lopez Vda. de

Baluyut.

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.

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:
Court: We want also to hear her testimony.
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.
Q. Where did you graduate? Madres Dominicas.

SPECPRO| RULE 75| 9

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.
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.
Atty. Salunat: I think that would be all, your Honor.
Court: Submitted?
Atty. Salunat: We will ask the Court to (be allowed to) submit a rejoinder,
your Honor.
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 one-fourth 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.
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.
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 three-fourths
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.

SPECPRO| RULE 75| 10

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).
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).

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.
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.

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

G.R. No. L-57848 June 19, 1982

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

SPECPRO| RULE 75| 11

MELENCIO-HERRERA, J.:
A Petition to Review the Decision of April 28, 1981 of respondent Appellate
Court in CA-G.R. No. 12032-R entitled "Rafael E. Maninang and Soledad L.
Maninang vs. Hon. Ricardo Pronove, Judge of the Court of First Instance of
Rizal, Pasig, Branch XI, and Bernardo S. Aseneta".
Pertinent to the controversy are the following antecedental facts:
On May 21, 1977, Clemencia Aseneta, single, died at the Manila Sanitarium
Hospital at age 81. She left a holographic will, the pertinent portions of
which are quoted hereunder:
xxx xxx xxx
It is my will that all my real properties located in Manila, Makati, Quezon
City, Albay and Legaspi City and all my personal properties shagllbe
inherited upon my death by Dra. Soledad L. Maninang with whose family I
have lived continuously for around the last 30 years now. Dra. Maninang
and her husband Pamping have been kind to me. ... I have found peace and
happiness with them even during the time when my sisters were still alive
and especially now when I am now being troubled by my nephew Bernardo
and niece Salvacion. I am not incompetent as Nonoy would like me to
appear. I know what is right and wrong. I can decide for myself. I do not
consider Nonoy as my adopted son. He has made me do things against my
will.
xxx xxx xxx
On June 9, 1977, petitioner Soledad Maninang filed a Petition for probate of
the Will of the decedent with the Court of First Instance-Branch IV, Quezon
City (Sp. Proc. No. Q-23304, hereinafter referred to as the Testate Case).
On July 25, 1977, herein respondent Bernardo Aseneta, who, as the
adopted son, claims to be the sole heir of decedent Clemencia Aseneta,
instituted intestate proceedings with the Court of First Instance-Branch XI,
Pasig, Rizal (Sp. Proc. No. 8569, called hereinafter the Intestate Case" for
brevity).
On December 23, 1977, the Testate and Intestate Cases were ordered
consolidated before Branch XI, presided by respondent Judge.

Respondent Bernardo then filed a Motion to Dismiss the Testate Case on the
ground that the holographic will was null and void because he, as the only
compulsory heir, was preterited and, therefore, intestacy should ensue. In
support of said Motion to Dismiss, respondent Bernardo cited the cases of
Neri vs. Akutin (72 Phil. 322); Nuguid vs. Nuguid (17 SCRA 449),
and Ramos vs. Baldovino (2 CA Rep. 2nd, 878). 1
In her Opposition to said Motion to Dismiss, petitioner Soledad averred that
it is still the rule that in a case for probate of a Will, the Court's area of
inquiry is limited to an examination of and resolution on the extrinsic
validity of the will; and that respondent Bernardo was effectively
disinherited by the decedent. 2
On September 8, 1980, the lower Court ordered the dismissal of the Testate
Case in this wise:
For reasons stated in the motion to dismiss filed by petitioner Bernardo S.
Aseneta which the Court finds meritorious, the petition for probate of will
filed by Soledad L. Maninang and which was docketed as Sp. Proc. No. Q23304 is DISMISSED, without pronouncement as to costs.
On December 19, 1980, the lower Court denied reconsideration for lack of
merit and in the same Order appointed Bernardo as the administrator of the
intestate estate of the deceased Clemencia Aseneta "considering that he is
a forced heir of said deceased while oppositor Soledad Maninang is not, and
considering further that Bernardo Aseneta has not been shown to be unfit
to perform the duties of the trust. "
Petitioners Maninang resorted to a certiorari Petition before respondent
Court of Appeals alleging that the lower Court exceeded its jurisdiction in
issuing the Orders of dismissal of the Testate Case (September 8, 1980)
and denial of reconsideration (December 19, 1980).
On April 28, 1981, respondent Court 3 denied certiorari and ruled that the
trial Judge's Order of dismissal was final in nature as it finally disposed of
the Testate Case and, therefore, appeal was the proper remedy, which
petitioners failed to avail of. Continuing, it said that even granting that the
lower Court committed errors in issuing the questioned Orders, those are
errors of judgment reviewable only by appeal and not by Certiorari. 'Thus,
this Petition before us.
We find that the Court a quo a quo acted in excess of its jurisdiction when it
dismissed the Testate Case. Generally, the probate of a Will is mandatory.

SPECPRO| RULE 75| 12

No will shall pass either real or personal property unless it is proved and
allowed in accordance with the Rules of Court. 4

will be passed upon, even before it is probated, the court should meet the
issue.

The law enjoins the probate of the Will and public policy requires it, because
unless the Will is probated and notice thereof given to the whole world, the
right of a person to dispose of his property by Will may be rendered
nugatory. 5

The Nuguid and the Balanay cases provide the exception rather than the
rule. The intrinsic validity of the Wills in those cases was passed upon even
before probate because "practical considerations" so demanded. Moreover,
for the parties in the Nuguid case, the "meat of the controversy" was the
intrinsic validity of the Will; in fact, the parties in that case "shunted aside
the question of whether or not the Will should be allowed probate." Not so
in the case before us now where the probate of the Will is insisted on by
petitioners and a resolution on the extrinsic validity of the Will demanded.

Normally, the probate of a Will does not look into its intrinsic validity.
... The authentication of a will decides no other question than such as touch
upon the capacity of the testator and the compliance with those requisites
or solemnities which the law prescribes for the validity of wills. It does not
determine nor even by implication prejudge the validity or efficiency (sic) of
the provisions, these may be impugned as being vicious or null,
notwithstanding its authentication. The que0stions relating to these points
remain entirely unaffected, and may be raised even after the will has been
authenticated .... 6
Opposition to the intrinsic validity or legality of the provisions of the will
cannot be entertained in Probate proceeding because its only purpose is
merely to determine if the will has been executed in accordance with the
requirements of the law. 7
Respondent Bernardo, however, relies on the pronouncement in Nuguid vs.
Nuguid 8, reading:
In a proceeding for the probate of a will, the Court's area of inquiry is
limited to an examination of, and resolution on, the extrinsic validity of the
will, the due execution thereof, the testatrix's testamentary capacity and
the compliance with the requisites or solemnities prescribed by law. The
intrinsic validity of the will normally comes only after the court has declared
that the will has been duly authenticated. However, where practical
considerations demand that the intrinsic validity of the will be passed upon,
even before it is probated, the Court should meet that issue. (Emphasis
supplied)
Our ruling in Balanay vs. Hon. Martinez

had a similar thrust:

The trial court acted correctly in passing upon the will's intrinsic validity
even before its formal validity had been established. The probate of a will
might become an Idle ceremony if on its face it appears to be intrinsically
void. Where practical considerations demand that the intrinsic validity of the

Moreover, in the Nuguid case, this Court ruled that the Will was intrinsically
invalid as it completely preterited the parents of the testator. In the instant
case, a crucial issue that calls for resolution is whether under the terms of
the decedent's Will, private respondent had been preterited or disinherited,
and if the latter, whether it was a valid disinheritance. Preterition and
disinheritance are two diverse concepts.
... Preterition "consists in the omission in the testator's will of the forced
heirs or anyone of them, either because they are not mentioned therein, or,
though mentioned, they are neither instituted as heirs nor are expressly
disinherited." (Neri vs. Akutin, 72 Phil. 325). Disinheritance, in turn, "is a
testamentary disposition depriving any compulsory heirs of his share in the
legitimate for a cause authorized by law." (Justice J.B.L. Reyes and R.C.
Puno, "An Outline of Philippine Civil Law", 1956 ed., Vol. III, p. 8, citing
cases) Disinheritance is always "voluntary", preterition upon the other
hand, is presumed to be "involuntary" (Sanchez Roman, Estudios de
Derecho Civil 2nd edition, Volume 2.o p. 1131). 10
The effects of preterition and disinheritance are also totally different.
... The effects flowing from preterition are totally different from those of
disinheritance. Pretention under Article 854 of the New Civil Code shall
annul the institution of heir. This annulment is in toto, unless in the wail
there are, in addition, testamentary dispositions in the form of devises or
legacies. In ineffective disinheritance under Article 918 of the same Code,
such disinheritance shall also "annul the institution of heirs", but only
"insofar as it may prejudice the person disinherited", which last phrase was
omitted in the case of preterition (III Tolentino, Civil Code of the
Philippines, 1961 Edition, p. 172). Better stated yet, in disinheritance the

SPECPRO| RULE 75| 13

nullity is limited to that portion of the estate of which the disinherited heirs
have been illegally deprived. 11
By virtue of the dismissal of the Testate Case, the determination of that
controversial issue has not been thoroughly considered. We gather from the
assailed Order of the trial Court that its conclusion was that respondent
Bernardo has been preterited We are of opinion, however, that from the
face of the Will, that conclusion is not indubitable.
As held in the case of Vda. de Precilla vs. Narciso

12

... it is as important a matter of public interest that a purported will is not

denied legalization on dubious grounds. Otherwise, the very institution of
testamentary succession will be shaken to its foundation, ...
Coming now to the procedural aspect, suffice it to state that in view of our
finding that respondent Judge had acted in excess of his jurisdiction in
dismissing the Testate Case, certiorari is a proper remedy. An act done by a
Probate Court in excess of its jurisdiction may be corrected
by Certiorari. 13 And even assuming the existence of the remedy of appeal,
we harken to the rule that in the broader interests of justice, a petition for
certiorari may be entertained, particularly where appeal would not afford
speedy and adequate relief.
WHEREFORE, the Decision in question is set aside and the Orders of the
Court of First Instance-Branch XI, Rizal, dated September 8, 1980 and
December 19, 1980, are nullified. Special Proceeding No. Q-23304 is
hereby remanded to said Court of First Instance-Branch XI. Rizal, therein to
be reinstated and consolidated with Special Proceeding No. 8569 for further
proceedings.
No pronouncement as to costs.
SO ORDERED.

G.R. No. 45425 March 27, 1992

CELSA L. VDA. DE KILAYKO, ENCARNACION L. VDA. DE PANLILIO
and
REMEDIOS
L.
VDA.
DE
GUINTO,petitioners,
vs.
HON. JUDGE ERNESTO TENGCO of the Court of First Instance of
Negros Occidental, Bacolod City, Branch IV and RODOLFO LIZARES
and AMELO LIZARES, as Judicial Administrators of the Estate of the
late EUSTAQUIA LIZARES, respondents.
G.R. No. 45965 March 27, 1992

SPECPRO| RULE 75| 14

ROLDOFO LIZARES and AMELO LIZARES, as Judicial Administrators

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

ROMERO, J.:
These consolidated cases seek to annul the orders 1 dated September 20,
1976, January 7, 1977 and January 31, 1977 of the then Court of First
Instance of Negros Occidental, Branch, IV respectively, cancelling the notice
of lis pendensfiled by Celsa L. Vda. de Kilayko, et al. with the Register of
Deeds of Negros Occidental, denying the motion for reconsideration of the
order dated September 20, 1976 filed by Celsa L. Vda. de Kilayko, et al.,
and holding in abeyance the resolution of defendants' motion to dismiss.
The undisputed facts of the case are as follows:
On November 20, 1962, the late Maria Lizares y Alunan executed a
"Testamento" 2 which contains among its provisions, the following:
DECIMA Asimismo, ordeno y dispongo que mi participacion consistente
en una tercera parte (1/3) de una catorce (1/14) avas partes proindivisas
de la Hda. Minuluan, que he adquirido mediante permuta de mi hermano
Dr. Antonio A. Lizares, se adjudique, como por el presente se adjudica, a mi
sobrina Eustaquia Lizares; ENTENDIENDOSE, sin embargo, que en el caso
de que mi citada sobrina Eustaquia Lizares muera soltera o sin
descendientes legitimos, mi referida participacion en la Hda. Minuluan se
adjudicara a mi hermano Antonio A. Lizares que me sobrevivan.
UNDECIMA Tambien ordeno y dispongo que el resto de todas mis
propiendades, incluyendo mis participaciones, derechos e intereses (no
dispuestos mas arriba) an las Haciendas "Minuluan" (Lotes Nos. 439, 403,
1273, 1274, 1278, 1279 y 1280 del Catastro de Talisay, Negros Occidental),
y "Matab-ang" (Lotes Nos. 514, 550, 552, 553 y 1287-C del Catastrado de
Talisay, Negros Occidental), situadas en el Municipio de Talisay, Provincia de
Negros Occidental, I.F., el resto de mis acciones en la Central Talisay-Silay
Milling Co., Inc. (unas 2,860 acciones) y de la Financing Corporation of the
Philippines (unas 53,636 acciones), registradas a mi nombre y no
heredadas de mi difunta madre Da. Enrica A. Vda. de Lizares, mis

acciones en la Central Bacolod-Murcia Milling Co., Inc., Negros Navigation

Co. y otras Compaas Mineras, y todos los demas bienes no mencionados
en este testamento y que me pertenezcan en la fecha de mi muerte, se
adjudiquen, como por el presente adjudico, a mi sobrina Srta. Eusaquia
Lizares, hija de mi difunto hermano Don Simplicio Lizares cuidados que mi
citada sobrina me ha prestado y signe prestandome hasta ahora. Ordeno,
sin embargo, a mi referida sobrina, Srta. Eustaquia Lizares, que ella se
haga cargo de pagar todas las obligaciones que tengo y que gravan sobre
las propriedades adjudicadas a la misma. Asimismo ordeno a mi citada
sobrina que ella mande celebrar una Misa Gregoriana cada ao en sufragio
de mi alma, y misas ordinarias en sufragio de las almas de mi difunto Padre
y de mi difunta Madre, el 6 de Marzo y 17 de Deciembre de cada ao,
respectivamente, y mande celebrar todos los aos la fiesta de San Jose en
Talisay como lo hago hasta ahora. En el caso de que mi citada sobrina,
Srta. Eustaquia Lizares, falleciere sin dejar descendientes legitimos, ordeno
y dispongo que mi participacion consistente en una sexta parte (1/6) de la
Hda. Matab-ang, con su correspondiente cuota de azucar y otros mejoras,
se adjudique a mis hermanas y hermano antes mencionados y que me
sobrevivan (Emphasis supplied)
On January 28, 1968, Maria Lizares y Alunan died without any issue leaving
said "testamento" in the possession and custody of her niece, Eustquia
Lizares. 3 On February 6, 1968, Eustaquia filed a petition for the settlement
of the testate estate of Maria Lizares y Alunan, before the Court of First
Instance of Negros Occidental, Branch IV, docketed as Special Proceedings
No. 8452. 4
The required publication of the notice of hearing of the petition having been
made, in due course, the probate court issued an order declaring the will
probated and appointing Eustaquia as the executrix of the estate of Maria
Lizares. 5
On July 10, 1968, Eustaquia filed a project of partition 6 which was granted
by the probate court in an order dated January 8, 1971. Simultaneously,
said court declared the heirs, devisees, legatees and usufructuaries
mentioned in the project of partition as the only heirs, devisees, legatees
and usufructuaries of the estate; adjudicated to them the properties
repectively assigned to each and every one of them, and ordered the
Register of Deeds of Negros Occidental and Bacolod City to effect the
corresponding transfer of the real properties to said heirs as well as the
transfer of shares, stocks, and dividends in different corporations,

SPECPRO| RULE 75| 15

companies and partnerships in the name of Maria Lizares to the heirs and
legatees, and the closure of the testate proceedings of Maria Lizares. 7
Thereafter, Eustaquia filed an urgent motion to reopen the testate
proceedings in order that some properties of Maria Lizares which had been
omitted in the partition be adjudicated to her. 8 The Court granted the
motion and correspondingly reopened the testate proceedings. It
adjudicated to Eustaquia certain shares of stocks, a revolving fund
certificate, plantation credits and sugar quota allocations, and real or
personal properties of Maria Lizares which were not given by her to any
other person in her last will and testament. 9
On November 28, 1972, the heirs of Maria Lizares, namely: Encarnacion L.
Vda. de Panlilio, Remedios L. Vda. de Guinto, Felicidad Paredes Llopez,
Rosario Paredes Mendoza and Eustaquia Lizares executed an agreement of
partition and subdivision, thereby terminating their co-ownership over Lots
Nos. 550, 514, 553, 1287-C of plan SWO-7446, and 552, all of the
Cadastral Survey of Talisay covered by Transfer Certificates of Title Nos. T65004, T-65005; T-65006, T-65007, and T-65008. 10
A year later or on November 23, 1973, Eustquia Lizares died single without
any descendant. 11 In due time, Rodolfo Lizares and Amelo Lizares were
appointed joint administrators of Eustquia's intestate estate.
On the strength of the testamentary provisions contained in paragraphs 10
and 11 of the will of Maria Lizares, which were allegedly in the nature of a
simple substitution, Celsa Vda. de Kilayko, Encarnacion Vda. de Panlilio, and
Remedios Vda. de Guinto (hereinafter collectively referred to as Celsa L.
Vda. de Kilayko, et al.) filed a motion in Special Proceedings No. 8452 to
reopen once again the testate estate proceedings of Maria Lizares. They
prayed among others that a substitute administrator be appointed; that the
order dated January 8, 1971 be reconsidered and amended by declaring
them as heirs to 1/3 of 1/14 of Hda. Minuluan and to 1/6 of Hda. Matabang, both of which form an aggregate area of 33 hectares; that the
Register of Deeds of Negros Occidental, after such amendment, be ordered
to register at the back of their respective certificates of title, the order of
probate and a "declaration" that movants are the heirs of said properties,
and correspondingly issue new certificates of title in their names. 12
Two (2) sets of intestate heirs of the deceased Eustaquia Lizares namely:
Socorro L. Vda. de Escario, Rodolfo Lizares, Mario Lizares, Lucrecia Gustilo,
and Aurora Lizares Wagner opposed the aforesaid motion. They alleged that

the court had no more jurisdiction to reopen the testate estate proceedings
of Maria Lizares as the order of closure had long become final and that the
testamentary provisions sought to be enforced are null and void. 13
On April 6, 1974, the Court issued an order denying the motion to reopen
the testate proceedings and holding that inasmuch as the settlement of an
estate is a proceeding in rem, the judgment therein is binding against the
whole world. It observed that inspite of the fact that the movants knew that
the court had jurisdiction over them, they did not take part in the
proceedings nor did they appeal the order of January 8, 1971. Thus, the
court concluded, even if the said order was erroneous, and since the error
was not jurisdictional, the same could have been corrected only by a
regular appeal. The period for filing a motion for reconsideration having
expired, the court opined that the movants could have sought relief from
judgment under Rule 38 of the Rules of Court, but unfortunately for the
movants, the period for filing such remedy had also elapsed. 14
Celsa L. Vda. de Kilayko, et al. then filed a motion for reconsideration of
said order. It was denied on June 17, 1974. 15 Hence, on October 14, 1974,
the said movants filed a complaint for recovery of ownership and
possession of real property against the joining administrators of the estate
of Eustaquia Lizares, Rodolfo and Amelo Lizares. It was docketed as Civil
Case No. 11639 with the then Court of First Instance of Negros Occidental,
Branch IV. 16 On the same date, they availed of their rights under Rule 14,
Section
24
of
Rules
of
Court
by filing a notice of lis pendens with the Register of Deeds of Negros
Occidental. 17
As duly appointed judicial joint administrators of the estate of the late
Eustaquia Lizares, Rodolfo Lizares and Amelo Lizares (the joint
administrators for brevity), filed a motion to dismiss alleging that the court
had no jurisdiction over the subject matter or nature of the case; the cause
of action was barred by prior judgment, and the complaint stated no cause
of action. 18 This motion was opposed by the plaintiffs.
On January 23, 1975, the joint administrators filed a motion for the
cancellation of the notice of lis pendens on the contentions that there
existed exceptional circumstances which justified the cancellation of the
notice of lis pendens and that no prejudice would be caused to the
plaintiffs. 19 The latter opposed said motion. The defendants having filed a
reply thereto, the plaintiffs filed a rejoinder reiterating their arguments in
their opposition to the motion for cancellation of notice of lis pendens. 20

SPECPRO| RULE 75| 16

On September 20, 1976, respondent judge issued an order granting the

motion for cancellation of notice of lis pendens. 21 The court simultaneously
held in abeyance the resolution of the motion to dismiss the complaint.
The joint administrators filed the answer to the complaint in Civil Case No.
11639. 22 Thereafter, they filed a motion for preliminary hearing on
affirmative defenses. 23 Celsa L. Vda. de Kilayko, et al. vigorously opposed
said motion. 24
On November 3, 1976, Celsa L. Vda. de Kilayko, et al. filed a motion
praying for the reconsideration of the order dated September 20,
1976. 25 The joint administrators having filed an opposition thereto, 26 on
January 7, 1977 the lower court denied the aforesaid motion for
reconsideration. 27 It held that while a notice of lis pendens would serve as
notice to strangers that a particular property was under litigation, its
annotation upon the certificates of title to the properties involved was not
necessary because such properties, being in custodia legis, could not just
be alienated without the approval of the court. Moreover, the court added, a
notice of lis pendens would prejudice any effort of the estate to secure crop
loans which were necessary for the viable cultivation and production of
sugar to which the properties were planted.
Upon receipt of a copy of said order, Celsa L. Vda. de Kilayko, et al. filed in
this Court a motion for extension of time to file a petition for review
on certiorari. Docketed as G.R No. L-45425, the petition contends that the
grounds of lis pendens, namely, that the properties are in custodia legis and
the lending institutions would not grant crop loans to the estate, are not the
legal grounds provided for under Sec. 24, Rule 14 of the Rules of Court for
the cancellation of a notice of lis pendens.
Meanwhile, on January 31, 1977, the lower court issued an order stating
that since on September 21, 1976 it had held in abeyance the resolution of
the motion to dismiss, it was also proper to suspend the resolution of the
affirmative defenses interposed by the defendants until after trial on the
merits of the case. Accordingly, the court set the date of pre-trial for March
24, 1977. 28
On April 13, 1977, the joint administrators filed before this Court a petition
for certiorari, prohibition and/or mandamus with prayer for a writ of
preliminary injunction. It was docketed as G.R. No. L-45965. Petitioners
contend that the lower court had no jurisdiction over Civil Case No. 11639
as it involves the interpretation of the will of Maria Lizares, its

implementation and/or the adjudication of her properties. They assert that

the matter had been settled in Special Proceedings No. become final and
unappealable long before the complaint in Civil Case No. 8452 which had
become final and unappealable long before the complaint in Civil Case No.
11639 was filed, and therefore, the cause of action in the latter case was
barred by the principle of res judicata. They aver that the claim of Celsa,
Encarnacion and Remedios, sisters of Maria Lizares, over the properties left
by their niece Eustaquia and which the latter had inherited by will from
Maria Lizares, was groundless because paragraphs 10 and 11 of Maria's will
on which Celsa L. Vda. de Kilayko, et al. base their claim, conceived of a
fideicommissary substitution of heirs. Petitioners contend that said
provisions of the will are not valid because under Article 863 of the Civil
code, they constitute an invalid fideicommissary substitution of heirs.
On April 26, 1977, this Court issued a temporary restraining order enjoining
the lower court from further proceeding with the trial of Civil Case No.
11639. 29 After both G.R. Nos. L-45425 and L-45965 had been given due
course and submitted for decision, on January 20, 1986, the two cases
were consolidated.
The petition in G.R. No. L-45965 is impressed with merit.
In testate succession, there can be no valid partition among the heirs until
after the will has been probated. 30 The law enjoins the probate of a will and
the public requires it, because unless a will is probated and notice thereof
given to the whole world, the right of a person to dispose of his property by
will may be rendered nugatory. 31 The authentication of a will decides no
other question than such as touch upon the capacity of the testator and the
compliance with those requirements or solemnities which the law prescribes
for the validity of a will. 32
Pertinent to the issue interposed by the petitioners in G.R. No. L-45965 is
Section 1, Rule 90 of the Rules of Court which reads:
Sec. 1. When order for distribution of residue made. When the debts,
funeral charges, and expenses of administration, the allowance to the
widow, and inheritance tax, if any, chargeable to the estate in accordance
with law, have been paid, the court, on application of the executor or
administrator, or of a person interested in the estate, and after hearing
upon notice, shall assign the residue of the estate to the persons entitled to
the same, naming them and the proportions or parts, to which each is
entitled, and such persons may demand and recover their respective shares

SPECPRO| RULE 75| 17

from the executor or administrator, or any other person having the same in
his possession. If there is a controversy before the court as to who are the
lawful heirs of the deceased person or as to the distributive shares to which
each person is entitled under the law, the controversy shall be heard and
decided as in ordinary cases.
No distribution shall be allowed until the payment of the obligations abovementioned has been made or provided for, unless the distributees, or any of
them give a bond, in a sum to be fixed by the court, conditioned for the
payment of said obligations within such time as the court directs.
Applying this rule, in the cases of De Jesus v. Daza,
Encarnacion, 34 the Court said:

33

and Torres v.

. . . (T)he probate court, having the custody and control of the entire
estate, is the most logical authority to effectuate this provision, within the
estate proceeding, said proceeding being the most convenient one in which
this power and function of the court can be exercised and performed
without the necessity of requiring the parties to undergo the incovenience
and litigate an entirely different action.
Some decisions of the Court pertinent to the issue that the probate court
has the jurisdiction to settle the claims of an heir and the consequent
adjudication of the properties, are worth mentioning. In the cases of Arroyo
v. Gerona, 35 and Benedicto v. Javellana, 36 this Court said:
. . . any challenge to the validity of a will, any objection to the
authentication thereof, and every demand or claim which any heir, legatee
or party interested in a testate or intestate succession may make, must be
acted upon and decided within the same special proceedings, not in a
separate action, and the same judge having jurisdiction in the
administration of the estate shall take cognizance of the question raised,
inasmuch as when the day comes he will be called upon to make
distribution and adjudication of the property to the interested parties. . . .
(Emphasis supplied)
The probate court, in the exercise of its jurisdiction to distribute the estate,
has the power to determine the proportion or parts to which each
distributee is entitled . . .. 37 A project of partition is merely a proposal for
the distribution of the heredity estate which the court may accept or reject.
It is the court that makes that distribution of the estate and determines the
persons entitled thereto. 38

In the instant case, the records will show that in the settlement of the
testate estate of Maria Lizares, the executrix, Eustaquia Lizares submitted
on January 8, 1971, a project of partition in which the parcels of land,
subject matters of the complaint for reconveyance, were included as
property of the estate and assigned exclusively to Eustaquia as a devisee of
Maria Lizares. In accordance with said project of partition which was
approved by the probate court, Encarnacion Lizares Vda. de Panlilio,
Remedios Lizares Vda. de Guinto, Felicidad Paredes Llopez, Rosario Paredes
Mendoza and Eustaquia Lizares executed an Agreement of Partition and
Subdivision on November 28, 1972, whereby they agreed to terminate their
co-ownership over Lots Nos. 550, 514, 553, 1287-C of SWO-7446 and 552
covered by Transfer Certificates of Title Nos. T-65004, T-65005, T-65006, T65007 and T-65008. These facts taken altogether show that the Lizares
sisters recognized the decree of partition sanctioned by the probate court
and in fact reaped the fruits thereof.
Hence, they are now precluded from attacking the validity of the partition
or any part of it in the guise of a complaint for reconveyance. A party
cannot, in law and in good conscience be allowed to reap the fruits of a
partition, agreement or judgment and repudiate what does not suit
him. 39 Thus, where a piece of land has been included in a partition and
there is no allegation that the inclusion was affected through improper
means or without petitioner's knowledge, the partition barred any further
litigation on said title and operated to bring the property under the control
and jurisdiction of the court for its proper disposition according to the tenor
of the partition. 40 The question of private respondents title over the lots in
question has been concluded by the partition and became a closed matter.
The admission made by Celsa L. Vda. de Kilayko, et al. in their complaint,
Civil Case No. 11639, that Eustaquia had been in possession of the
questioned lots since March 2, 1971 up to the time of her death indicates
that the distribution pursuant to the decree of partition has already been
carried out. Moreover, it cannot be denied that when Celsa L. Vda. de
Kilayko, et al. moved for the reopening of the testate estate proceedings of
Maria Lizares, the judicial decree of partition and order of closure of such
proceedings was already final and executory, then reglementary period of
thirty (30) days having elapsed from the time of its issuance, with no timely
appeal having been filed by them. Therefore, they cannot now be permitted
to question the adjudication of the properties left by will of Maria Lizares,
by filing an independent action for the reconveyance of the very same
properties subject of such partition.

SPECPRO| RULE 75| 18

A final decree of distribution of the estate of a deceased person vests the

title to the land of the estate in the distributees. If the decree is erroneous,
it should be corrected by opportune appeal, for once it becomes final, its
binding effect is like any other judgment in rem, unless properly set aside
for lack of jurisdiction or fraud. Where the court has validly issued a decree
of distribution and the same has become final, the validity or invalidity of
the project of partition becomes irrelevant. 41
It is a fundamental concept in the origin of every jural system, a principle of
public policy, that at the risk of occasional errors, judgments of courts
should become final at some definite time fixed by law, interest rei publicae
ut finis sit litum. "The very object of which the courts were constituted was
to put an end to controversies." 42 The only instance where a party
interested in a probate proceeding may have a final liquidation set aside is
when he is left out by reason of circumstances beyond his control or
through mistake or inadvertence not imputable to negligence. Even then,
the better practice to secure relief is the opening of the same by proper
motion within the reglementary period, instead of an independent action,
the effect of which if successful, would be for another court or judge to
throw out a decision or order already final and executed and reshuffle
properties long ago distributed and disposed of. 43
The fundamental principle upon which the doctrine of res judicata rests is
that parties ought not to be permitted to litigate the same issue more than
once, that, when a right or fact has been judicially tried and determined by
a court of competent jurisdiction, or an opportunity for such trial has been
given, the judgment of the court, so long as it remains unreversed, should
be conclusive upon the parties and those in privity with them in law or
estate. 44
All the requisites for the existence of res judicata are present. Thus, the
order approving the distribution of the estate of Maria Lizares to the heirs
instituted in said will has become final and unappealable; the probate court
that rendered judgment had jurisdiction over the subject matter and over
the parties; the judgment or orders had been rendered on the merits; the
special proceedings for the settlement of the estate of Maria Lizares was a
proceeding in rem that was directed against the whole world including Celsa
L. Vda. de Kilayko, et al., so that it can be said that there is a similarity of
parties in Special Proceedings No. 8452 and Civil Case No. 11639, the
judicial administrators of Eustaquia being privy to Celsa L. Vda. de Kilayko,
et al.; there is identity of subject matter involved in both actions, namely,
the properties left by Maria Lizares; there is identity of causes of action

because in the first action there was a declaration of the probate court in its
order dated April 6, 1974 that although the testatrix intended a
fideicommissary substitution in paragraphs 10 and 11 of her will, the
substitution can have no effect because the requisites for it to be valid, had
not been satisfied. 45
Granting that res judicata has not barred the institution of Civil Case No.
11639, the contention of Celsa L. Vda. de Kilayko, et al. that they are
conditional substitute heirs of Eustaquia in the testate estate of Maria
Lizares 46 is not meritorious. While the allegation of the joint administrators
that paragraphs 10 and 11 of Maria Lizares' last will and testament
conceives of a fideicommissary substitution under Article 863 of the Civil
Code is also baseless as said paragraphs do not impose upon Eustaquia a
clear obligation to preserve the estate in favor of Celsa L. Vda. de Kilayko,
et al., neither may said paragraphs be considered as providing for a vulgar
or simple substitution.
It should be remembered that when a testator merely names an heir and
provides that if such heir should die a second heir also designated shall
succeed, there is no fideicommissary substitution. The substitution should
then be construed as a vulgar or simple substitution under Art. 859 of the
Civil Code but it shall be effective only if the first heir dies before the
testator. 47 In this case, the instituted heir, Eustaquia, survived the
testatrix, Maria Lizares. Hence, there can be no substitution of heirs for,
upon Maria Lizares' death, the properties involved unconditionally devolved
upon Eustaquia. Under the circumstances, the sisters of Maria Lizares could
only inherit the estate of Eustaquia by operation of the law of intestacy.
With respect to the cancellation of the notice of lis pendens on the
properties involved, there is no merit in the contention of Celsa L. Vda. de
Kilayko, et al., that the lower court acted contrary to law and/or gravely
abused its discretion in cancelling the notice of lis pendens. The cancellation
of such a precautionary notice, being a mere incident in an action, may be
ordered by the court having jurisdiction over it at any given time. 48 Under
Sec. 24, Rule 14 of the Rules of Court, a notice of lis pendens may be
cancelled "after proper showing that the notice is for the purpose of
molesting the adverse party, or that it is not necessary to protect the rights
of the party who caused it to be recorded." 49 In this case, the lower court
ordered the cancellation of said notice on the principal reason that the
administrators of the properties involved are subject to the supervision of
the court and the said properties are under custodia legis. Therefore, such
notice was not necessary to protect the rights of Celsa L. Vda. de Kilayko,

SPECPRO| RULE 75| 19

et al. More so in this case where it turned out that their claim to the
properties left by Eustaquia is without any legal basis.
WHEREFORE, the petition for review on certiorari in L-45425 is hereby
DENIED but the petition for certiorari and prohibition and/or mandamus in
L-45965 is GRANTED. The temporary restraining order of April 26, 1977
which was issued by the Court in L-45965 is made PERMANENT. Costs
against the petitioners in L-45425.
SO ORDERED.

G.R. No. L-18979

June 30, 1964

IN THE MATTER OF THE TESTATE ESTATE OF THE LATE JOSEFA

VILLACORTE.
CELSO
ICASIANO, petitioner-appellee,
vs.
NATIVIDAD
ICASIANO
and
ENRIQUE
ICASIANO, oppositorsappellants.

SPECPRO| RULE 75| 20

Jose
W.
Diokno
for
petitioner-appellee.
Rosendo J. Tansinin for oppositor-appellant Natividad Icasiano.
Jaime R. Nuevas for oppositor-appellant Enrique Icasiano.

duplicate to probate. From this order, the oppositors appealed directly to

this Court, the amount involved being over P200,000.00, on the ground
that the same is contrary to law and the evidence.

REYES, J.B.L., J.:

The evidence presented for the petitioner is to the effect that Josefa
Villacorte died in the City of Manila on September 12, 1958; that on June 2,
1956, the late Josefa Villacorte executed a last will and testament in
duplicate at the house of her daughter Mrs. Felisa Icasiano at Pedro
Guevara Street, Manila, published before and attested by three
instrumental witnesses, namely: attorneys Justo P. Torres, Jr. and Jose V.
Natividad, and Mr. Vinicio B. Diy; that the will was acknowledged by the
testatrix and by the said three instrumental witnesses on the same date
before attorney Jose Oyengco Ong, Notary Public in and for the City of
Manila; and that the will was actually prepared by attorney Fermin Samson,
who was also present during the execution and signing of the decedent's
last will and testament, together with former Governor Emilio Rustia of
Bulacan, Judge Ramon Icasiano and a little girl. Of the said three
instrumental witnesses to the execution of the decedent's last will and
testament, attorneys Torres and Natividad were in the Philippines at the
time of the hearing, and both testified as to the due execution and
authenticity of the said will. So did the Notary Public before whom the will
was acknowledged by the testatrix and attesting witnesses, and also
attorneys Fermin Samson, who actually prepared the document. The latter
also testified upon cross examination that he prepared one original and two
copies of Josefa Villacorte last will and testament at his house in Baliuag,
Bulacan, but he brought only one original and one signed copy to Manila,
retaining one unsigned copy in Bulacan.

Appeal from an order of the Court of First Instance of Manila admitting to

probate the document and its duplicate, marked as Exhibits "A" and "A-1",
as the true last will and testament of Josefa Villacorte, deceased, and
appointing as executor Celso Icasiano, the person named therein as such.
This special proceeding was begun on October 2, 1958 by a petition for the
allowance and admission to probate of the original, Exhibit "A" as the
alleged will of Josefa Villacorte, deceased, and for the appointment of
petitioner Celso Icasiano as executor thereof.
The court set the proving of the alleged will for November 8, 1958, and
caused notice thereof to be published for three (3) successive weeks,
previous to the time appointed, in the newspaper "Manila chronicle", and
also caused personal service of copies thereof upon the known heirs.
On October 31, 1958, Natividad Icasiano, a daughter of the testatrix, filed
her opposition; and on November 10, 1958, she petitioned to have herself
appointed as a special administrator, to which proponent objected. Hence,
on November 18, 1958, the court issued an order appointing the Philippine
Trust Company as special administrator. 1wph1.t
On February 18, 1959, Enrique Icasiano, a son of the testatrix, also filed a
manifestation adopting as his own Natividad's opposition to the probate of
the alleged will.
On March 19, 1959, the petitioner proponent commenced the introduction
of his evidence; but on June 1, 1959, he filed a motion for the admission of
an amended and supplemental petition, alleging that the decedent left a will
executed in duplicate with all the legal requirements, and that he was, on
that date, submitting the signed duplicate (Exhibit "A-1"), which he
allegedly found only on or about May 26, 1959. On June 17, 1959,
oppositors Natividad Icasiano de Gomez and Enrique Icasiano filed their
joint opposition to the admission of the amended and supplemental
petition, but by order of July 20, 1959, the court admitted said petition, and
on July 30, 1959, oppositor Natividad Icasiano filed her amended
opposition. Thereafter, the parties presented their respective evidence, and
after several hearings the court issued the order admitting the will and its

The records show that the original of the will, which was surrendered
simultaneously with the filing of the petition and marked as Exhibit "A"
consists of five pages, and while signed at the end and in every page, it
does not contain the signature of one of the attesting witnesses, Atty. Jose
V. Natividad, on page three (3) thereof; but the duplicate copy attached to
the amended and supplemental petition and marked as Exhibit "A-1" is
signed by the testatrix and her three attesting witnesses in each and every
page.
The testimony presented by the proponents of the will tends to show that
the original of the will and its duplicate were subscribed at the end and on
the left margin of each and every page thereof by the testatrix herself and
attested and subscribed by the three mentioned witnesses in the testatrix's
presence and in that of one another as witnesses (except for the missing

SPECPRO| RULE 75| 21

signature of attorney Natividad on page three (3) of the original); that

pages of the original and duplicate of said will were duly numbered; that
the attestation clause thereof contains all the facts required by law to be
recited therein and is signed by the aforesaid attesting witnesses; that the
will is written in the language known to and spoken by the testatrix that the
attestation clause is in a language also known to and spoken by the
witnesses; that the will was executed on one single occasion in duplicate
copies; and that both the original and the duplicate copies were duly
acknowledged before Notary Public Jose Oyengco of Manila on the same
date June 2, 1956.
Witness Natividad who testified on his failure to sign page three (3) of the
original, admits that he may have lifted two pages instead of one when he
signed the same, but affirmed that page three (3) was signed in his
presence.
Oppositors-appellants in turn introduced expert testimony to the effect that
the signatures of the testatrix in the duplicate (Exhibit "A-1") are not
genuine nor were they written or affixed on the same occasion as the
original, and further aver that granting that the documents were genuine,
they were executed through mistake and with undue influence and pressure
because the testatrix was deceived into adopting as her last will and
testament the wishes of those who will stand to benefit from the provisions
of the will, as may be inferred from the facts and circumstances
surrounding the execution of the will and the provisions and dispositions
thereof, whereby proponents-appellees stand to profit from properties held
by them as attorneys-in-fact of the deceased and not enumerated or
mentioned therein, while oppositors-appellants are enjoined not to look for
other properties not mentioned in the will, and not to oppose the probate of
it, on penalty of forfeiting their share in the portion of free disposal.
We have examined the record and are satisfied, as the trial court was, that
the testatrix signed both original and duplicate copies (Exhibits "A" and "A1", respectively) of the will spontaneously, on the same in the presence of
the three attesting witnesses, the notary public who acknowledged the will;
and Atty. Samson, who actually prepared the documents; that the will and
its duplicate were executed in Tagalog, a language known to and spoken by
both the testator and the witnesses, and read to and by the testatrix and
Atty. Fermin Samson, together before they were actually signed; that the
attestation clause is also in a language known to and spoken by the
testatrix and the witnesses. The opinion of expert for oppositors, Mr. Felipe
Logan, that the signatures of the testatrix appearing in the duplicate

original were not written by the same had which wrote the signatures in the
original will leaves us unconvinced, not merely because it is directly
contradicted by expert Martin Ramos for the proponents, but principally
because of the paucity of the standards used by him to support the
conclusion that the differences between the standard and questioned
signatures are beyond the writer's range of normal scriptural variation. The
expert has, in fact, used as standards only three other signatures of the
testatrix besides those affixed to the original of the testament (Exh. A); and
we feel that with so few standards the expert's opinion and the signatures
in the duplicate could not be those of the testatrix becomes extremely
hazardous. This is particularly so since the comparison charts Nos. 3 and 4
fail to show convincingly that the are radical differences that would justify
the charge of forgery, taking into account the advanced age of the testatrix,
the evident variability of her signatures, and the effect of writing fatigue,
the duplicate being signed right the original. These, factors were not
discussed by the expert.
Similarly, the alleged slight variance in blueness of the ink in the admitted
and questioned signatures does not appear reliable, considering the
standard and challenged writings were affixed to different kinds of paper,
with different surfaces and reflecting power. On the whole, therefore, we do
not find the testimony of the oppositor's expert sufficient to overcome that
of the notary and the two instrumental witnesses, Torres and Natividad (Dr.
Diy being in the United States during the trial, did not testify).
Nor do we find adequate evidence of fraud or undue influence. The fact that
some heirs are more favored than others is proof of neither (see In
re Butalid, 10 Phil. 27; Bugnao vs. Ubag, 14 Phil. 163; Pecson vs. Coronal,
45 Phil. 216). Diversity of apportionment is the usual reason for making a
testament; otherwise, the decedent might as well die intestate. The
testamentary dispositions that the heirs should not inquire into other
property and that they should respect the distribution made in the will,
under penalty of forfeiture of their shares in the free part do not suffice to
prove fraud or undue influence. They appear motivated by the desire to
prevent prolonged litigation which, as shown by ordinary experience, often
results in a sizeable portion of the estate being diverted into the hands of
non-heirs and speculators. Whether these clauses are valid or not is a
matter to be litigated on another occassion. It is also well to note that, as
remarked by the Court of Appeals in Sideco vs. Sideco, 45 Off. Gaz. 168,
fraud and undue influence are mutually repugnant and exclude each other;
their joining as grounds for opposing probate shows absence of definite
evidence against the validity of the will.

SPECPRO| RULE 75| 22

On the question of law, we hold that the inadvertent failure of one witness
to affix his signature to one page of a testament, due to the simultaneous
lifting of two pages in the course of signing, is not per se sufficient to justify
denial of probate. Impossibility of substitution of this page is assured not
only the fact that the testatrix and two other witnesses did sign the
defective page, but also by its bearing the coincident imprint of the seal of
the notary public before whom the testament was ratified by testatrix and
all three witnesses. The law should not be so strictly and literally
interpreted as to penalize the testatrix on account of the inadvertence of a
single witness over whose conduct she had no control, where the purpose
of the law to guarantee the identity of the testament and its component
pages is sufficiently attained, no intentional or deliberate deviation existed,
and the evidence on record attests to the full observance of the statutory
requisites. Otherwise, as stated in Vda. de Gil. vs. Murciano, 49 Off. Gaz.
1459, at 1479 (decision on reconsideration) "witnesses may sabotage the
will by muddling or bungling it or the attestation clause".
That the failure of witness Natividad to sign page three (3) was entirely
through pure oversight is shown by his own testimony as well as by the
duplicate copy of the will, which bears a complete set of signatures in every
page. The text of the attestation clause and the acknowledgment before the
Notary Public likewise evidence that no one was aware of the defect at the
time.
This would not be the first time that this Court departs from a strict and
literal application of the statutory requirements, where the purposes of the
law are otherwise satisfied. Thus, despite the literal tenor of the law, this
Court has held that a testament, with the only page signed at its foot by
testator and witnesses, but not in the left margin, could nevertheless be
probated (Abangan vs. Abangan, 41 Phil. 476); and that despite the
requirement for the correlative lettering of the pages of a will, the failure to
make the first page either by letters or numbers is not a fatal defect (Lopez
vs. Liboro, 81 Phil. 429). These precedents exemplify the Court's policy to
require satisfaction of the legal requirements in order to guard against
fraud and bid faith but without undue or unnecessary curtailment of the
testamentary privilege.
The appellants also argue that since the original of the will is in existence
and available, the duplicate (Exh. A-1) is not entitled to probate. Since they
opposed probate of original because it lacked one signature in its third
page, it is easily discerned that oppositors-appellants run here into a
dilemma; if the original is defective and invalid, then in law there is no

other will but the duly signed carbon duplicate (Exh. A-1), and the same is
probatable. If the original is valid and can be probated, then the objection
to the signed duplicate need not be considered, being superfluous and
irrelevant. At any rate, said duplicate, Exhibit A-1, serves to prove that the
omission of one signature in the third page of the original testament was
inadvertent and not intentional.
That the carbon duplicate, Exhibit A-1, was produced and admitted without
a new publication does not affect the jurisdiction of the probate court,
already conferred by the original publication of the petition for probate. The
amended petition did not substantially alter the one first filed, but merely
supplemented it by disclosing the existence of the duplicate, and no
showing is made that new interests were involved (the contents of Exhibit A
and A-1 are admittedly identical); and appellants were duly notified of the
proposed amendment. It is nowhere proved or claimed that the amendment
deprived the appellants of any substantial right, and we see no error in
admitting the amended petition.
IN VIEW OF THE FOREGOING, the decision appealed from is affirmed, with
costs against appellants.

G.R. No. L-23445

June 23, 1966

REMEDIOS
NUGUID, petitioner
and
appellant,
vs.
FELIX NUGUID and PAZ SALONGA NUGUID, oppositors and appellees.
Custodio
O.
Partade
for
petitioner
and
Beltran, Beltran and Beltran for oppositors and appellees.

appellant.

SANCHEZ, J.:
Rosario Nuguid, a resident of Quezon City, died on December 30, 1962,
single, without descendants, legitimate or illegitimate. Surviving her were

SPECPRO| RULE 75| 23

her legitimate parents, Felix Nuguid and Paz Salonga Nuguid, and six (6)
brothers and sisters, namely: Alfredo, Federico, Remedios, Conrado,
Lourdes and Alberto, all surnamed Nuguid.
On May 18, 1963, petitioner Remedios Nuguid filed in the Court of First
Instance of Rizal a holographic will allegedly executed by Rosario Nuguid on
November 17, 1951, some 11 years before her demise. Petitioner prayed
that said will be admitted to probate and that letters of administration with
the will annexed be issued to her.
On June 25, 1963, Felix Nuguid and Paz Salonga Nuguid, concededly the
legitimate father and mother of the deceased Rosario Nuguid, entered their
opposition to the probate of her will. Ground therefor, inter alia, is that by
the institution of petitioner Remedios Nuguid as universal heir of the
deceased, oppositors who are compulsory heirs of the deceased in the
direct ascending line were illegally preterited and that in consequence
the institution is void.
On August 29, 1963, before a hearing was had on the petition for probate
and objection thereto, oppositors moved to dismiss on the ground of
absolute preterition.
On September 6, 1963, petitioner registered her opposition to the motion
to dismiss.1wph1.t
The court's order of November 8, 1963, held that "the will in question is a
complete nullity and will perforce create intestacy of the estate of the
deceased Rosario Nuguid" and dismissed the petition without costs.
A motion to reconsider having been thwarted below, petitioner came to this
Court on appeal.
1. Right at the outset, a procedural aspect has engaged our attention. The
case is for the probate of a will. The court's area of inquiry is limited to
an examination of, and resolution on, the extrinsic validity of the will. The
due execution thereof, the testatrix's testamentary capacity, and the
compliance with the requisites or solemnities by law prescribed, are the
questions solely to be presented, and to be acted upon, by the court. Said
court at this stage of the proceedings is not called upon to rule on
the intrinsic validity or efficacy of the provisions of the will, the legality of
any devise or legacy therein.1

A peculiar situation is here thrust upon us. The parties shunted aside the
question of whether or not the will should be allowed probate. For them,
the meat of the case is the intrinsic validity of the will. Normally, this comes
only after the court has declared that the will has been duly
authenticated.2 But petitioner and oppositors, in the court below and here
on appeal, travelled on the issue of law, to wit: Is the will intrinsically a
nullity?
We pause to reflect. If the case were to be remanded for probate of the
will, nothing will be gained. On the contrary, this litigation will be
protracted. And for aught that appears in the record, in the event of
probate or if the court rejects the will, probability exists that the case will
come up once again before us on the same issue of the intrinsic validity or
nullity of the will. Result: waste of time, effort, expense, plus added
anxiety. These are the practical considerations that induce us to a belief
that we might as well meet head-on the issue of the validity of the
provisions of the will in question.3 After all, there exists a justiciable
controversy crying for solution.
2. Petitioner's sole assignment of error challenges the correctness of the
conclusion below that the will is a complete nullity. This exacts from us a
study of the disputed will and the applicable statute.
Reproduced hereunder is the will:
Nov. 17, 1951
I, ROSARIO NUGUID, being of sound and disposing mind and memory,
having amassed a certain amount of property, do hereby give, devise, and
bequeath all of the property which I may have when I die to my beloved
sister Remedios Nuguid, age 34, residing with me at 38-B Iriga, Q.C. In
witness whereof, I have signed my name this seventh day of November,
nineteen hundred and fifty-one.
(Sgd.) Illegible
T/ ROSARIO NUGUID
The statute we are called upon to apply in Article 854 of the Civil Code
which, in part, provides:
ART. 854. The preterition or omission of one, some, or all of the compulsory
heirs in the direct line, whether living at the time of the execution of the will

SPECPRO| RULE 75| 24

or born after the death of the testator, shall annul the institution of heir;
but the devises and legacies shall be valid insofar as they are not
inofficious. ...

ANNUL. To reduce to nothing; annihilate; obliterate; to make void or of no

effect; to nullify; to abolish; to do away with. Ex parte Mitchell, 123 W. Va.
283, 14 S.E. 2d. 771, 774.8

Except for inconsequential variation in terms, the foregoing is a

reproduction of Article 814 of the Civil Code of Spain of 1889, which is
similarly herein copied, thus

And now, back to the facts and the law. The deceased Rosario Nuguid left
no descendants, legitimate or illegitimate. But she left forced heirs in the
direct ascending line her parents, now oppositors Felix Nuguid and Paz
Salonga Nuguid. And, the will completely omits both of them: They thus
received nothing by the testament; tacitly, they were deprived of their
legitime; neither were they expressly disinherited. This is a clear case of
preterition. Such preterition in the words of Manresa "anulara siempre la
institucion de heredero, dando caracter absoluto a este ordenamiento
referring to the mandate of Article 814, now 854 of the Civil Code. 9 The
one-sentence will here institutes petitioner as the sole, universal heir
nothing more. No specific legacies or bequests are therein provided for. It is
in this posture that we say that the nullity is complete. Perforce, Rosario
Nuguid died intestate. Says Manresa:

Art. 814. The preterition of one or all of the forced heirs in the direct line,
whether living at the time of the execution of the will or born after the
death of the testator, shall void the institution of heir; but the legacies and
betterments4 shall be valid, in so far as they are not inofficious. ...
A comprehensive understanding of the term preterition employed in the law
becomes a necessity. On this point Manresa comments:
La pretericion consiste en omitar al heredero en el testamento. O no se le
nombra siquiera o aun nombrandole como padre, hijo, etc., no se le
instituya heredero ni se le deshereda expresamente ni se le asigna parte
alguna de los bienes, resultando privado de un modo tacito de su derecho a
legitima.
Para que exista pretericion, con arreglo al articulo 814, basta que en el
testamento omita el testador a uno cualquiera de aquellos a quienes por su
muerte corresponda la herencia forzosa.
Se necesita, pues, a) Que la omision se refiera a un heredero forzoso. b)
Que la omision sea completa; que el heredero forzoso nada reciba en el
testamento.
It may now appear trite bat nonetheless helpful in giving us a clear
perspective of the problem before us, to have on hand a clear-cut definition
of the word annul:
To "annul" means to abrogate, to make void ... In re Morrow's Estate, 54 A.
342, 343, 204 Pa. 484.6
The word "annul" as used in statute requiring court to annul alimony
provisions of divorce decree upon wife's remarriage means to reduce to
nothing; to annihilate; obliterate; blot out; to make void or of no effect; to
nullify; to abolish. N.J.S.A. 2:50 38 (now N.J.S. 2A:34-35). Madden vs.
Madden, 40 A. 2d 611, 614, 136 N..J Eq. 132.7

En cuanto a la institucion de heredero, se anula. Lo que se anula deja de

existir, en todo o en parte? No se aade limitacion alguna, como en el
articulo 851, en el que se expresa que se anulara la institucion de heredero
en cuanto prejudique a la legitima del deseheredado Debe, pues,
entenderse que la anulacion es completa o total, y que este articulo como
especial en el caso que le motiva rige con preferencia al 817. 10
The same view is expressed by Sanchez Roman:
La consecuencia de la anulacion o nulidad de la institucion de heredero por
pretericion de uno, varios o todos los forzosos en linea recta, es la apertura
de la sucesion intestada total o parcial. Sera total, cuando el testador que
comete la pretericion, hubiese dispuesto de todos los bienes por titulo
universal de herencia en favor de los herederos instituidos, cuya institucion
se anula, porque asi lo exige la generalidad del precepto legal del art. 814,
al determinar, como efecto de la pretericion, el de que "anulara la
institucion de heredero." ... 11
Really, as we analyze the word annul employed in the statute, there is no
escaping the conclusion that the universal institution of petitioner to the
entire inheritance results in totally abrogating the will. Because, the
nullification of such institution of universal heir without any other
testamentary disposition in the will amounts to a declaration that nothing
at all was written. Carefully worded and in clear terms, Article 854 offers no

SPECPRO| RULE 75| 25

leeway for inferential interpretation. Giving it an expansive meaning will

tear up by the roots the fabric of the statute. On this point, Sanchez Roman
cites the "Memoria annual del Tribunal Supreme, correspondiente a 1908",
which in our opinion expresses the rule of interpretation, viz:
... El art. 814, que preceptua en tales casos de pretericion la nulidad de la
institucion de heredero, no consiente interpretacion alguna favorable a la
persona instituida en el sentido antes expuesto aun cuando parezca, y en
algun caso pudiera ser, mas o menos equitativa, porque una nulidad no
significa en Derecho sino la suposicion de que el hecho o el acto no se ha
realizado, debiendo por lo tanto procederse sobre tal base o supuesto, y
consiguientemente, en un testamento donde falte la institucion, es obligado
llamar a los herederos forzosos en todo caso, como habria que llamar a los
de otra clase, cuando el testador no hubiese distribudo todos sus bienes en
legados, siendo tanto mas obligada esta consecuencia legal cuanto que, en
materia de testamentos, sabido es, segun tiene declarado la jurisprudencia,
con repeticion, que no basta que sea conocida la voluntad de quien testa si
esta voluntad no aparece en la forma y en las condiciones que la ley ha
exigido para que sea valido y eficaz, por lo que constituiria una
interpretacion arbitraria, dentro del derecho positivo, reputar como
legatario a un heredero cuya institucion fuese anulada con pretexto de que
esto se acomodaba mejor a la voluntad del testador, pues aun cuando asi
fuese, sera esto razon para modificar la ley, pero no autoriza a una
interpretacion contraria a sus terminos y a los principios que informan la
testamentifaccion, pues no porque parezca mejor una cosa en el terreno del
Derecho constituyente, hay razon para convereste juicio en regla de
interpretacion, desvirtuando y anulando por este procedimiento lo que el
legislador quiere establecer. 12
3. We should not be led astray by the statement in Article 854 that,
annullment notwithstanding, "the devises and legacies shall be valid insofar
as they are not inofficious". Legacies and devises merit consideration only
when they are so expressly given as such in a will. Nothing in Article 854
suggests that the mere institution of a universal heir in a will void
because of preterition would give the heir so instituted a share in the
inheritance. As to him, the will is inexistent. There must be, in addition to
such institution, a testamentary disposition granting him bequests or
legacies apart and separate from the nullified institution of heir. Sanchez
Roman, speaking of the two component parts of Article 814, now 854,
states that preterition annuls the institution of the heir "totalmente por la
pretericion"; but added (in reference to legacies and bequests) "pero
subsistiendo ... todas aquellas otras disposiciones que no se refieren a la

institucion de heredero ... . 13 As Manresa puts it, annulment throws open to

intestate succession the entire inheritance including "la porcion libre (que)
no hubiese dispuesto en virtud de legado, mejora o donacion. 14
As aforesaid, there is no other provision in the will before us except the
institution of petitioner as universal heir. That institution, by itself, is null
and void. And, intestate succession ensues.
4. Petitioner's mainstay is that the present is "a case of ineffective
disinheritance rather than one of preterition". 15From this, petitioner draws
the conclusion that Article 854 "does not apply to the case at bar". This
argument fails to appreciate the distinction between pretention and
disinheritance.
Preterition "consists in the omission in the testator's will of the forced heirs
or anyone of them, either because they are not mentioned therein, or,
though mentioned, they are neither instituted as heirs nor are expressly
disinherited." 16 Disinheritance, in turn, "is a testamentary disposition
depriving any compulsory heir of his share in the legitime for a cause
authorized by law. " 17 In Manresa's own words: "La privacion expresa de la
legitima constituye la desheredacion. La privacion tacita de la misma se
denomina pretericion." 18 Sanchez Roman emphasizes the distinction by
stating that disinheritance "es siempre voluntaria"; preterition, upon the
other hand, is presumed to be "involuntaria". 19 Express as disinheritance
should be, the same must be supported by a legal cause specified in the will
itself. 20
The will here does not explicitly disinherit the testatrix's parents, the forced
heirs. It simply omits their names altogether. Said will rather than be
labeled ineffective disinheritance is clearly one in which the said forced
heirs suffer from preterition.
On top of this is the fact that the effects flowing from preterition are totally
different from those of disinheritance. Preterition under Article 854 of the
Civil Code, we repeat, "shall annul the institution of heir". This annulment
is in toto, unless in the will there are, in addition, testamentary dispositions
in the form of devises or legacies. In ineffective disinheritance under Article
918 of the same Code, such disinheritance shall also "annul the institution
of heirs", put only "insofar as it may prejudice the person disinherited",
which last phrase was omitted in the case of preterition. 21 Better stated
yet, in disinheritance the nullity is limited to that portion of the estate of
which the disinherited heirs have been illegally deprived. Manresa's

SPECPRO| RULE 75| 26

expressive language, in commenting on the rights of the preterited heirs in institution of petitioner as universal heir, and nothing more, the result is the
the case of preterition on the one hand and legal disinheritance on the same. The entire will is null.
other, runs thus: "Preteridos, adquiren el derecho a todo; desheredados,
Upon the view we take of this case, the order of November 8, 1963 under
solo les corresponde un tercio o dos tercios, 22 el caso. 23
review is hereby affirmed. No costs allowed. So ordered.
5. Petitioner insists that the compulsory heirs ineffectively disinherited are
entitled to receive their legitimes, but that the institution of heir "is not
invalidated," although the inheritance of the heir so instituted is reduced to
the extent of said legitimes. 24
This is best answered by a reference to the opinion of Mr. Chief Justice
Moran in the Neri case heretofore cited, viz:
But the theory is advanced that the bequest made by universal title in favor
of the children by the second marriage should be treated
as legado and mejora and, accordingly, it must not be entirely annulled but
merely reduced. This theory, if adopted, will result in a complete abrogation
of Articles 814 and 851 of the Civil Code. If every case of institution of heirs
may be made to fall into the concept of legacies and betterments reducing
the bequest accordingly, then the provisions of Articles 814 and 851
regarding total or partial nullity of the institution, would. be absolutely
meaningless and will never have any application at all. And the remaining
provisions contained in said article concerning the reduction of inofficious
legacies or betterments would be a surplusage because they would be
absorbed by Article 817. Thus, instead of construing, we would be
destroying integral provisions of the Civil Code.
The destructive effect of the theory thus advanced is due mainly to a failure
to distinguish institution of heirs from legacies and betterments, and a
general from a special provision. With reference to article 814, which is the
only provision material to the disposition of this case, it must be observed
that the institution of heirs is therein dealt with as a thing separate and
distinct from legacies or betterments. And they are separate and distinct
not only because they are distinctly and separately treated in said article
but because they are in themselves different. Institution of heirs is a
bequest by universal title of property that is undetermined. Legacy refers to
specific property bequeathed by a particular or special title. ... But again an
institution of heirs cannot be taken as a legacy. 25
The disputed order, we observe, declares the will in question "a complete
nullity". Article 854 of the Civil Code in turn merely nullifies "the institution
of heir". Considering, however, that the will before us solely provides for the

G.R. No. 156407, January 15, 2014

THELMA M. ARANAS, Petitioner, v. TERESITA V. MERCADO, FELIMON
V. MERCADO, CARMENCITA M. SUTHERLAND, RICHARD V.
MERCADO, MA. TERESITA M. ANDERSON, AND FRANKLIN L.
MERCADO, Respondents.
DECISION
BERSAMIN, J.:
The probate court is authorized to determine the issue of ownership of
properties for purposes of their inclusion or exclusion from the inventory to

SPECPRO| RULE 75| 27

be submitted by the administrator, but its determination shall only be

provisional unless the interested parties are all heirs of the decedent, or the
question is one of collation or advancement, or the parties consent to the
assumption of jurisdiction by the probate court and the rights of third
parties are not impaired. Its jurisdiction extends to matters incidental or
collateral to the settlement and distribution of the estate, such as the
determination of the status of each heir and whether property included in
the inventory is the conjugal or exclusive property of the deceased spouse.

Antecedents

Emigdio S. Mercado (Emigdio) died intestate on January 12, 1991, survived

by his second wife, Teresita V. Mercado (Teresita), and their five children,
namely: Allan V. Mercado, Felimon V. Mercado, Carmencita M. Sutherland,
Richard V. Mercado, and Maria Teresita M. Anderson; and his two children
by his first marriage, namely: respondent Franklin L. Mercado and
petitioner
Thelma
M.
Aranas
(Thelma).
Emigdio inherited and acquired real properties during his lifetime. He owned
corporate shares in Mervir Realty Corporation (Mervir Realty) and Cebu
Emerson Transportation Corporation (Cebu Emerson). He assigned his real
properties in exchange for corporate stocks of Mervir Realty, and sold his
real property in Badian, Cebu (Lot 3353 covered by Transfer Certificate of
Title
No.
3252)
to
Mervir
Realty.
On June 3, 1991, Thelma filed in the Regional Trial Court (RTC) in Cebu City
a petition for the appointment of Teresita as the administrator of Emigdios
estate (Special Proceedings No. 3094CEB). 1 The RTC granted the petition
considering that there was no opposition. The letters of administration in
favor
of
Teresita
were
issued
on
September
7,
1992.
As the administrator, Teresita submitted an inventory of the estate of
Emigdio on December 14, 1992 for the consideration and approval by the
RTC. She indicated in the inventory that at the time of his death, Emigdio
had left no real properties but only personal properties worth
P6,675,435.25 in all, consisting of cash of P32,141.20; furniture and
fixtures worth P20,000.00; pieces of jewelry valued at P15,000.00; 44,806
shares of stock of Mervir Realty worth P6,585,585.80; and 30 shares of
stock
of
Cebu
Emerson
worth
P22,708.25. 2

Claiming that Emigdio had owned other properties that were excluded from
the inventory, Thelma moved that the RTC direct Teresita to amend the
inventory, and to be examined regarding it. The RTC granted Thelmas
motion
through
the
order
of
January
8,
1993.
On January 21, 1993, Teresita filed a compliance with the order of January
8, 1993,3 supporting her inventory with copies of three certificates of stocks
covering the 44,806 Mervir Realty shares of stock; 4 the deed of assignment
executed by Emigdio on January 10, 1991 involving real properties with the
market value of P4,440,651.10 in exchange for 44,407 Mervir Realty shares
of stock with total par value of P4,440,700.00; 5 and the certificate of stock
issued on January 30, 1979 for 300 shares of stock of Cebu Emerson worth
P30,000.00.6
On January 26, 1993, Thelma again moved to require Teresita to be
examined under oath on the inventory, and that she (Thelma) be allowed
30 days within which to file a formal opposition to or comment on the
inventory and the supporting documents Teresita had submitted.
On February 4, 1993, the RTC issued an order expressing the need for the
parties to present evidence and for Teresita to be examined to enable the
court to resolve the motion for approval of the inventory.7cralawred
On April 19, 1993, Thelma opposed the approval of the inventory, and
asked leave of court to examine Teresita on the inventory.
With the parties agreeing to submit themselves to the jurisdiction of the
court on the issue of what properties should be included in or excluded from
the inventory, the RTC set dates for the hearing on that
issue.8cralawlawlibrary
Ruling of the RTC

After a series of hearings that ran for almost eight years, the RTC issued on
March 14, 2001 an order finding and holding that the inventory submitted
by Teresita had excluded properties that should be included, and
accordingly ruled:
WHEREFORE, in view of all the foregoing premises and considerations, the
Court hereby denies the administratrixs motion for approval of inventory.
The Court hereby orders the said administratrix to redo the inventory of

SPECPRO| RULE 75| 28

properties which are supposed to constitute as the estate of the late EMIGDIO S. MERCADO DURING HIS LIFETIME TO A PRIVATE CORPORATION
Emigdio S. Mercado by including therein the properties mentioned in the (MERVIR REALTY CORPORATION) BE INCLUDED IN THE INVENTORY OF THE
last five immediately preceding paragraphs hereof and then submit the ESTATE OF THE LATE EMIGDIO S. MERCADO.
revised inventory within sixty (60) days from notice of this order.
II
The Court also directs the said administratrix to render an account of her
administration of the estate of the late Emigdio S. Mercado which had come
THE HONORABLE RESPONDENT JUDGE HAS COMMITTED GRAVE ABUSE OF
to her possession. She must render such accounting within sixty (60) days
JURISDICTION (sic) AMOUNTING TO LACK OR EXCESS OF JURISDICTION
from
notice
hereof.
IN HOLDING THAT REAL PROPERTIES WHICH ARE IN THE POSSESSION OF
AND ALREADY REGISTERED IN THE NAME (OF) PRIVATE CORPORATION
9
SO ORDERED. ChanRoblesVirtualawlibrary
(MERVIR REALTY CORPORATION) BE INCLUDED IN THE INVENTORY OF THE
ESTATE OF THE LATE EMIGDIO S. MERCADO.
On March 29, 2001, Teresita, joined by other heirs of Emigdio, timely
sought the reconsideration of the order of March 14, 2001 on the ground
that one of the real properties affected, Lot No. 3353 located in Badian,
Cebu, had already been sold to Mervir Realty, and that the parcels of land
covered by the deed of assignment had already come into the possession of
and registered in the name of Mervir Realty.10 Thelma opposed the motion.
On May 18, 2001, the RTC denied the motion for reconsideration, 11 stating
that there was no cogent reason for the reconsideration, and that the
movants agreement as heirs to submit to the RTC the issue of what
properties should be included or excluded from the inventory already
estopped them from questioning its jurisdiction to pass upon the issue.
Decision of the CA

Alleging that the RTC thereby acted with grave abuse of discretion in
refusing to approve the inventory, and in ordering her as administrator to
include real properties that had been transferred to Mervir Realty, Teresita,
joined by her four children and her stepson Franklin, assailed the adverse
orders of the RTC promulgated on March 14, 2001 and May 18, 2001 by
petition for certiorari, stating:
I

III

THE HONORABLE RESPONDENT JUDGE HAS COMMITTED GRAVE ABUSE OF

DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN
HOLDING THAT PETITIONERS ARE NOW ESTOPPED FROM QUESTIONING
ITS JURISDICTION IN PASSING UPON THE ISSUE OF WHAT PROPERTIES
SHOULD BE INCLUDED IN THE INVENTORY OF THE ESTATE OF THE LATE
EMIGDIO MERCADO.12

On May 15, 2002, the CA partly granted the petition for certiorari, disposing
as follows:13
WHEREFORE,
FOREGOING
PREMISES
CONSIDERED,
this
petition
is GRANTED partially. The assailed Orders dated March 14, 2001 and May
18, 2001 are hereby reversed and set aside insofar as the inclusion of
parcels of land known as Lot No. 3353 located at Badian, Cebu with an area
of 53,301 square meters subject matter of the Deed of Absolute Sale dated
November 9, 1989 and the various parcels of land subject matter of the
Deeds of Assignment dated February 17, 1989 and January 10, 1991 in the
revised inventory to be submitted by the administratrix is concerned
and affirmed in
all
other
respects.
SO ORDERED.

THE HONORABLE RESPONDENT JUDGE HAS COMMITTED GRAVE ABUSE OF

JURISDICTION (sic) AMOUNTING TO LACK OR EXCESS OF JURISDICTION
IN HOLDING THAT THE REAL PROPERTY WHICH WAS SOLD BY THE LATE

The CA opined that Teresita, et al. had properly filed the petition
for certiorari because the order of the RTC directing a new inventory of

SPECPRO| RULE 75| 29

properties was interlocutory; that pursuant to Article 1477 of the Civil Code,
to the effect that the ownership of the thing sold shall be transferred to the
vendee upon its actual and constructive delivery, and to Article 1498 of
the Civil Code, to the effect that the sale made through a public instrument
was equivalent to the delivery of the object of the sale, the sale by Emigdio
and Teresita had transferred the ownership of Lot No. 3353 to Mervir Realty
because the deed of absolute sale executed on November 9, 1989 had been
notarized; that Emigdio had thereby ceased to have any more interest in
Lot 3353; that Emigdio had assigned the parcels of land to Mervir Realty as
early as February 17, 1989 for the purpose of saving, as in avoiding taxes
with the difference that in the Deed of Assignment dated January 10, 1991,
additional seven (7) parcels of land were included; that as to the January
10, 1991 deed of assignment, Mervir Realty had been even at the losing
end considering that such parcels of land, subject matter(s) of the Deed of
Assignment dated February 12, 1989, were again given monetary
consideration through shares of stock; that even if the assignment had
been based on the deed of assignment dated January 10, 1991, the parcels
of land could not be included in the inventory considering that there is
nothing wrong or objectionable about the estate planning scheme; that the
RTC, as an intestate court, also had no power to take cognizance of and
determine the issue of title to property registered in the name of third
persons or corporation; that a property covered by the Torrens system
should be afforded the presumptive conclusiveness of title; that the RTC, by
disregarding the presumption, had transgressed the clear provisions of law
and infringed settled jurisprudence on the matter; and that the RTC also
gravely abused its discretion in holding that Teresita, et al. were estopped
from questioning its jurisdiction because of their agreement to submit to
the RTC the issue of which properties should be included in the inventory.
The CA further opined as follows:
In the instant case, public respondent court erred when it ruled that
petitioners are estopped from questioning its jurisdiction considering that
they have already agreed to submit themselves to its jurisdiction of
determining what properties are to be included in or excluded from the
inventory to be submitted by the administratrix, because actually, a reading
of petitioners Motion for Reconsideration dated March 26, 2001 filed before
public respondent court clearly shows that petitioners are not questioning
its jurisdiction but the manner in which it was exercised for which they are
not estopped, since that is their right, considering that there is grave abuse
of discretion amounting to lack or in excess of limited jurisdiction when it

issued the assailed Order dated March 14, 2001 denying the
administratrixs motion for approval of the inventory of properties which
were already titled and in possession of a third person that is, Mervir Realty
Corporation, a private corporation, which under the law possessed a
personality distinct and separate from its stockholders, and in the absence
of any cogency to shred the veil of corporate fiction, the presumption of
conclusiveness of said titles in favor of Mervir Realty Corporation should
stand
undisturbed.
Besides, public respondent court acting as a probate court had no authority
to determine the applicability of the doctrine of piercing the veil of
corporate fiction and even if public respondent court was not merely acting
in a limited capacity as a probate court, private respondent nonetheless
failed to adjudge competent evidence that would have justified the court to
impale the veil of corporate fiction because to disregard the separate
jurisdictional personality of a corporation, the wrongdoing must be clearly
and convincingly established since it cannot be presumed. 14

On November 15, 2002, the CA denied the motion for reconsideration of

Teresita, et al.15
Issue

Did the CA properly determine that the RTC committed grave abuse of
discretion amounting to lack or excess of jurisdiction in directing the
inclusion of certain properties in the inventory notwithstanding that such
properties had been either transferred by sale or exchanged for corporate
shares in Mervir Realty by the decedent during his lifetime?
Ruling of the Court

The appeal is meritorious.

I
Was certiorari the
proper
to assail the questioned orders of the RTC?

recourse

SPECPRO| RULE 75| 30

interlocutory order is rendered without or in excess of jurisdiction or with

The first issue to be resolved is procedural. Thelma contends that the resort grave abuse of discretion. Then is certiorari under Rule 65 allowed to be
to the special civil action for certiorari to assail the orders of the RTC by resorted to.
Teresita
and
her
corespondents
was
not
proper.
Thelmas

contention

cannot

be

sustained.

The propriety of the special civil action for certiorari as a remedy depended
on whether the assailed orders of the RTC were final or interlocutory in
nature.
In PahilaGarrido
v.
Tortogo,16 the
Court
distinguished
between final and interlocutory orders as follows:
The distinction between a final order and an interlocutory order is well
known. The first disposes of the subject matter in its entirety or terminates
a particular proceeding or action, leaving nothing more to be done except
to enforce by execution what the court has determined, but the latter does
not completely dispose of the case but leaves something else to be decided
upon. An interlocutory order deals with preliminary matters and the trial on
the merits is yet to be held and the judgment rendered. The test to
ascertain whether or not an order or a judgment is interlocutory or final
is: does the order or judgment leave something to be done in the trial court
with respect to the merits of the case? If it does, the order or judgment is
interlocutory;
otherwise,
it
is
final.
The order dated November 12, 2002, which granted the application for the
writ of preliminary injunction, was an interlocutory, not a final, order, and
should not be the subject of an appeal. The reason for disallowing an
appeal from an interlocutory order is to avoid multiplicity of appeals in a
single action, which necessarily suspends the hearing and decision on the
merits of the action during the pendency of the appeals. Permitting multiple
appeals will necessarily delay the trial on the merits of the case for a
considerable length of time, and will compel the adverse party to incur
unnecessary expenses, for one of the parties may interpose as many
appeals as there are incidental questions raised by him and as there are
interlocutory orders rendered or issued by the lower court. An interlocutory
order may be the subject of an appeal, but only after a judgment has been
rendered, with the ground for appealing the order being included in the
appeal
of
the
judgment
itself.
The remedy against an interlocutory order not subject of an appeal is an
appropriate special civil action under Rule 65, provided that the

The assailed order of March 14, 2001 denying Teresitas motion for the
approval of the inventory and the order dated May 18, 2001 denying her
motion for reconsideration were interlocutory. This is because the inclusion
of the properties in the inventory was not yet a final determination of their
ownership. Hence, the approval of the inventory and the concomitant
determination of the ownership as basis for inclusion or exclusion from the
inventory were provisional and subject to revision at anytime during the
course
of
the
administration
proceedings.
In Valero Vda. De Rodriguez v. Court of Appeals,17 the Court, in affirming
the decision of the CA to the effect that the order of the intestate court
excluding certain real properties from the inventory was interlocutory and
could be changed or modified at anytime during the course of the
administration proceedings, held that the order of exclusion was not a final
but an interlocutory order in the sense that it did not settle once and for all
the title to the San Lorenzo Village lots. The Court observed there that:
The prevailing rule is that for the purpose of determining whether a certain
property should or should not be included in the inventory, the probate
court may pass upon the title thereto but such determination is not
conclusive and is subject to the final decision in a separate action
regarding ownership which may be instituted by the parties (3
Morans Comments on the Rules of Court, 1970 Edition, pages 4489 and
473; Lachenal vs. Salas, L42257, June 14, 1976, 71 SCRA 262,
266).18 (Bold emphasis supplied)

To the same effect was De Leon v. Court of Appeals,19 where the Court
declared that a probate court, whether in a testate or intestate proceeding,
can only pass upon questions of title provisionally, and reminded,
citing Jimenez v. Court of Appeals, that the patent reason is the probate
courts limited jurisdiction and the principle that questions of title or
ownership, which result in inclusion or exclusion from the inventory of the
property, can only be settled in a separate action. Indeed, in the cited case
of Jimenez v. Court of Appeals,20 the Court pointed out:

SPECPRO| RULE 75| 31

All that the said court could do as regards the said properties is determine
whether they should or should not be included in the inventory or list of
properties to be administered by the administrator. If there is a dispute
as to the ownership, then the opposing parties and the
administrator have to resort to an ordinary action for a final
determination of the conflicting claims of title because the probate
court cannot do so. (Bold emphasis supplied)

On the other hand, an appeal would not be the correct recourse for
Teresita, et al. to take against the assailed orders. The final judgment
rule embodied in the first paragraph of Section 1, Rule 41, Rules of
Court,21 which also governs appeals in special proceedings, stipulates that
only the judgments, final orders (and resolutions) of a court of law that
completely disposes of the case, or of a particular matter therein when
declared by these Rules to be appealable may be the subject of an appeal
in due course. The same rule states that an interlocutory order or resolution
(interlocutory because it deals with preliminary matters, or that the trial on
the merits is yet to be held and the judgment rendered) is expressly made
nonappealable.
Multiple appeals are permitted in special proceedings as a practical
recognition of the possibility that material issues may be finally determined
at various stages of the special proceedings. Section 1, Rule 109 of
the Rules of Court enumerates the specific instances in which multiple
appeals may be resorted to in special proceedings, viz:
Section 1. Orders or judgments from which appeals may be taken. An
interested person may appeal in special proceedings from an order or
judgment rendered by a Court of First Instance or a Juvenile and Domestic
Relations
Court,
where
such
order
or
judgment:
(a)

Allows

or

disallows

will;

(b) Determines who are the lawful heirs of a deceased person, or the
distributive share of the estate to which such person is entitled;
(c) Allows or disallows, in whole or in part, any claim against the estate of a
deceased person, or any claim presented on behalf of the estate in offset to
a
claim
against
it;
(d) Settles the account of an executor, administrator, trustee or guardian;

(e) Constitutes, in proceedings relating to the settlement of the estate of a

deceased person, or the administration of a trustee or guardian, a final
determination in the lower court of the rights of the party appealing, except
that no appeal shall be allowed from the appointment of a special
administrator;
and
(f) Is the final order or judgment rendered in the case, and affects the
substantial rights of the person appealing, unless it be an order granting or
denying a motion for a new trial or for reconsideration.

Clearly, the assailed orders of the RTC, being interlocutory, did not come
under any of the instances in which multiple appeals are permitted.

II
Did
the
RTC
commit
grave
in
directing
the
inclusion
in the estate of the decedent?

abuse
of
of
the

discretion
properties

In its assailed decision, the CA concluded that the RTC committed grave
abuse of discretion for including properties in the inventory notwithstanding
their having been transferred to Mervir Realty by Emigdio during his
lifetime, and for disregarding the registration of the properties in the name
of Mervir Realty, a third party, by applying the doctrine of piercing the veil
of
corporate
fiction.
Was

the

CA

correct

in

its

conclusion?

The answer is in the negative. It is unavoidable to find that the CA, in

reaching its conclusion, ignored the law and the facts that had fully
warranted
the
assailed
orders
of
the
RTC.
Under Section 6(a), Rule 78 of the Rules of Court, the letters of
administration may be granted at the discretion of the court to the
surviving spouse, who is competent and willing to serve when the person
dies intestate. Upon issuing the letters of administration to the surviving
spouse, the RTC becomes dutybound to direct the preparation and
submission of the inventory of the properties of the estate, and the
surviving spouse, as the administrator, has the duty and responsibility to

SPECPRO| RULE 75| 32

submit the inventory within three months from the issuance of letters of
administration pursuant to Rule 83 of the Rules of Court, viz:
Section 1. Inventory and appraisal to be returned within three months.
Within three (3) months after his appointment every executor or
administrator shall return to the court a true inventory and appraisal of
all the real and personal estate of the deceased which has come
into his possession or knowledge. In the appraisement of such estate,
the court may order one or more of the inheritance tax appraisers to give
his or their assistance.

The usage of the word all in Section 1, supra, demands the inclusion of all
the
real
and
personal
properties
of
the
decedent
in
the
inventory.22 However, the word all is qualified by the phrase which has come
into his possession or knowledge, which signifies that the properties must
be known to the administrator to belong to the decedent or are in her
possession as the administrator. Section 1 allows no exception, for the
phrase true inventory implies that no properties appearing to belong to the
decedent can be excluded from the inventory, regardless of their being in
the
possession
of
another
person
or
entity.
The objective of the Rules of Court in requiring the inventory and appraisal
of the estate of the decedent is to aid the court in revising the accounts
and determining the liabilities of the executor or the administrator, and in
making a final and equitable distribution (partition) of the estate and
otherwise to facilitate the administration of the estate.23 Hence, the RTC
that presides over the administration of an estate is vested with wide
discretion on the question of what properties should be included in the
inventory. According to Peralta v. Peralta,24 the CA cannot impose its
judgment in order to supplant that of the RTC on the issue of which
properties are to be included or excluded from the inventory in the absence
of positive abuse of discretion, for in the administration of the estates of
deceased persons, the judges enjoy ample discretionary powers and the
appellate courts should not interfere with or attempt to replace the action
taken by them, unless it be shown that there has been a positive abuse of
discretion.25 As long as the RTC commits no patently grave abuse of
discretion, its orders must be respected as part of the regular performance
of
its
judicial
duty.
There is no dispute that the jurisdiction of the trial court as an intestate
court is special and limited. The trial court cannot adjudicate title to

properties claimed to be a part of the estate but are claimed to belong to

third parties by title adverse to that of the decedent and the estate, not by
virtue of any right of inheritance from the decedent. All that the trial court
can do regarding said properties is to determine whether or not they should
be included in the inventory of properties to be administered by the
administrator. Such determination is provisional and may be still revised. As
the Court said in Agtarap v. Agtarap:26
The general rule is that the jurisdiction of the trial court, either as a probate
court or an intestate court, relates only to matters having to do with the
probate of the will and/or settlement of the estate of deceased persons, but
does not extend to the determination of questions of ownership that arise
during the proceedings. The patent rationale for this rule is that such court
merely exercises special and limited jurisdiction. As held in several cases, a
probate court or one in charge of estate proceedings, whether testate or
intestate, cannot adjudicate or determine title to properties claimed to be a
part of the estate and which are claimed to belong to outside parties, not
by virtue of any right of inheritance from the deceased but by title adverse
to that of the deceased and his estate. All that the said court could do as
regards said properties is to determine whether or not they should be
included in the inventory of properties to be administered by the
administrator. If there is no dispute, there poses no problem, but if there is,
then the parties, the administrator, and the opposing parties have to resort
to an ordinary action before a court exercising general jurisdiction for a final
determination
of
the
conflicting
claims
of
title.
However, this general rule is subject to exceptions as justified by
expediency
and
convenience.
First, the probate court may provisionally pass upon in an intestate
or a testate proceeding the question of inclusion in, or exclusion
from, the inventory of a piece of property without prejudice to final
determination of ownership in a separate action. Second, if the
interested parties are all heirs to the estate, or the question is one of
collation or advancement, or the parties consent to the assumption of
jurisdiction by the probate court and the rights of third parties are
not impaired, then the probate court is competent to resolve issues
on ownership. Verily, its jurisdiction extends to matters incidental or
collateral to the settlement and distribution of the estate, such as the
determination of the status of each heir and whether the property in the

SPECPRO| RULE 75| 33

inventory is conjugal or exclusive property of the deceased

spouse.27 (Italics in the original; bold emphasis supplied)

It is clear to us that the RTC took pains to explain the factual bases for its
directive for the inclusion of the properties in question in its assailed order
of
March
14,
2001, viz:
In the first place, the administratrix of the estate admitted that Emigdio
Mercado was one of the heirs of Severina Mercado who, upon her death,
left several properties as listed in the inventory of properties submitted in
Court in Special Proceedings No. 306R which are supposed to be divided
among her heirs. The administratrix admitted, while being examined in
Court by the counsel for the petitioner, that she did not include in the
inventory submitted by her in this case the shares of Emigdio Mercado in
the said estate of Severina Mercado. Certainly, said properties constituting
Emigdio Mercados share in the estate of Severina Mercado should be
included in the inventory of properties required to be submitted to the
Court in this particular case.
In the second place, the administratrix of the estate of Emigdio Mercado
also admitted in Court that she did not include in the inventory shares of
stock of Mervir Realty Corporation which are in her name and which were
paid by her from money derived from the taxicab business which she and
her husband had since 1955 as a conjugal undertaking. As these shares of
stock partake of being conjugal in character, onehalf thereof or of the
value thereof should be included in the inventory of the estate of her
husband.
In the third place, the administratrix of the estate of Emigdio Mercado
admitted, too, in Court that she had a bank account in her name at Union
Bank which she opened when her husband was still alive. Again, the money
in said bank account partakes of being conjugal in character, and so, one
half thereof should be included in the inventory of the properties
constituting
as
estate
of
her
husband.
In the fourth place, it has been established during the hearing in this case
that Lot No. 3353 of Pls657D located in Badian, Cebu containing an area
of 53,301 square meters as described in and covered by Transfer Certificate
of Title No. 3252 of the Registry of Deeds for the Province of Cebu is still
registered in the name of Emigdio S. Mercado until now. When it was the
subject of Civil Case No. CEB12690 which was decided on October 19,

1995, it was the estate of the late Emigdio Mercado which claimed to be the
owner thereof. Mervir Realty Corporation never intervened in the said case
in order to be the owner thereof. This fact was admitted by Richard
Mercado himself when he testified in Court. x x x So the said property
located in Badian, Cebu should be included in the inventory in this case.
Fifthly and lastly, it appears that the assignment of several parcels of land
by the late Emigdio S. Mercado to Mervir Realty Corporation on January 10,
1991 by virtue of the Deed of Assignment signed by him on the said day
(Exhibit N for the petitioner and Exhibit 5 for the administratrix) was a
transfer in contemplation of death. It was made two days before he died on
January 12, 1991. A transfer made in contemplation of death is one
prompted by the thought that the transferor has not long to live and made
in place of a testamentary disposition (1959 Prentice Hall, p. 3909). Section
78 of the National Internal Revenue Code of 1977 provides that the gross
estate of the decedent shall be determined by including the value at the
time of his death of all property to the extent of any interest therein of
which the decedent has at any time made a transfer in contemplation of
death. So, the inventory to be approved in this case should still include the
said properties of Emigdio Mercado which were transferred by him in
contemplation of death. Besides, the said properties actually appeared to
be still registered in the name of Emigdio S. Mercado at least ten (10)
months after his death, as shown by the certification issued by the Cebu
City Assessors Office on October 31, 1991 (Exhibit O). 28

Thereby, the RTC strictly followed the directives of the Rules of Court and
the jurisprudence relevant to the procedure for preparing the inventory by
the administrator. The aforequoted explanations indicated that the directive
to include the properties in question in the inventory rested on good and
valid reasons, and thus was far from whimsical, or arbitrary, or capricious.
Firstly, the shares in the properties inherited by Emigdio from Severina
Mercado should be included in the inventory because Teresita, et al. did not
dispute the fact about the shares being inherited by Emigdio.
Secondly, with Emigdio and Teresita having been married prior to the
effectivity of the Family Code in August 3, 1988, their property regime was
the conjugal partnership of gains. 29 For purposes of the settlement of
Emigdios estate, it was unavoidable for Teresita to include his shares in the
conjugal partnership of gains. The party asserting that specific property

SPECPRO| RULE 75| 34

acquired during that property regime did not pertain to the conjugal
partnership of gains carried the burden of proof, and that party must prove
the exclusive ownership by one of them by clear, categorical, and
convincing evidence.30 In the absence of or pending the presentation of
such proof, the conjugal partnership of Emigdio and Teresita must be
provisionally liquidated to establish who the real owners of the affected
properties were,31 and which of the properties should form part of the
estate of Emigdio. The portions that pertained to the estate of Emigdio
must
be
included
in
the
inventory.
Moreover, although the title over Lot 3353 was already registered in the
name of Mervir Realty, the RTC made findings that put that title in dispute.
Civil Case No. CEB12692, a dispute that had involved the ownership of Lot
3353, was resolved in favor of the estate of Emigdio, and Transfer
Certificate of Title No. 3252 covering Lot 3353 was still in Emigdios name.
Indeed, the RTC noted in the order of March 14, 2001, or ten years after his
death, that Lot 3353 had remained registered in the name of Emigdio.
Interestingly, Mervir Realty did not intervene at all in Civil Case No. CEB
12692. Such lack of interest in Civil Case No. CEB12692 was susceptible of
various interpretations, including one to the effect that the heirs of Emigdio
could have already threshed out their differences with the assistance of the
trial court. This interpretation was probable considering that Mervir Realty,
whose business was managed by respondent Richard, was headed by
Teresita herself as its President. In other words, Mervir Realty appeared to
be
a
family
corporation.
Also, the fact that the deed of absolute sale executed by Emigdio in favor of
Mervir Realty was a notarized instrument did not sufficiently justify the
exclusion from the inventory of the properties involved. A notarized deed of
sale only enjoyed the presumption of regularity in favor of its execution, but
its notarization did not per se guarantee the legal efficacy of the transaction
under the deed, and what the contents purported to be. The presumption of
regularity could be rebutted by clear and convincing evidence to the
contrary.32 As the Court has observed in Suntay v. Court of Appeals:33
x x x. Though the notarization of the deed of sale in question vests in its
favor the presumption of regularity, it is not the intention nor the function
of the notary public to validate and make binding an instrument never, in
the first place, intended to have any binding legal effect upon the parties
thereto. The intention of the parties still and always is the primary

consideration in determining the true nature of a contract. (Bold

emphasis supplied)

It should likewise be pointed out that the exchange of shares of stock of

Mervir Realty with the real properties owned by Emigdio would still have to
be inquired into. That Emigdio executed the deed of assignment two days
prior to his death was a circumstance that should put any interested party
on his guard regarding the exchange, considering that there was a finding
about Emigdio having been sick of cancer of the pancreas at the time. 34 In
this regard, whether the CA correctly characterized the exchange as a form
of an estate planning scheme remained to be validated by the facts to be
established
in
court.
The fact that the properties
name of Mervir Realty could
them from the inventory
surrounding the execution of

were already covered by Torrens titles in the

not be a valid basis for immediately excluding
in view of the circumstances admittedly
the deed of assignment. This is because:

The Torrens system is not a mode of acquiring titles to lands; it is merely a

system of registration of titles to lands. However, justice and equity demand
that the titleholder should not be made to bear the unfavorable effect of the
mistake or negligence of the States agents, in the absence of proof of his
complicity in a fraud or of manifest damage to third persons. The real
purpose of the Torrens system is to quiet title to land and put a stop forever
to any question as to the legality of the title, except claims that were noted
in the certificate at the time of registration or that may arise subsequent
thereto. Otherwise, the integrity of the Torrens system shall forever be
sullied by the ineptitude and inefficiency of land registration officials, who
are ordinarily presumed to have regularly performed their duties. 35

Assuming that only seven titled lots were the subject of the deed of
assignment of January 10, 1991, such lots should still be included in the
inventory to enable the parties, by themselves, and with the assistance of
the RTC itself, to test and resolve the issue on the validity of the
assignment. The limited jurisdiction of the RTC as an intestate court might
have constricted the determination of the rights to the properties arising
from that deed,36 but it does not prevent the RTC as intestate court from
ordering the inclusion in the inventory of the properties subject of that
deed. This is because the RTC as intestate court, albeit vested only with
special and limited jurisdiction, was still deemed to have all the necessary

SPECPRO| RULE 75| 35

powers

to

exercise

such

jurisdiction

to

make

it

effective.37 on certiorari; REVERSES and SETS ASIDE the decision promulgated on

May 15, 2002; REINSTATES the orders issued on March 14, 2001 and May
Lastly, the inventory of the estate of Emigdio must be prepared and 18, 2001 by the Regional Trial Court in Cebu; DIRECTS the Regional Trial
submitted for the important purpose of resolving the difficult issues of Court in Cebu to proceed with dispatch in Special Proceedings No. 3094
collation and advancement to the heirs. Article 1061 of the Civil CEB entitled Intestate Estate of the late Emigdio Mercado, Thelma Aranas,
Coderequired every compulsory heir and the surviving spouse, herein petitioner, and to resolve the case; and ORDERS the respondents to pay
Teresita herself, to bring into the mass of the estate any property or right the
costs
of
suit.ChanRoblesVirtualawlibrary
which he (or she) may have received from the decedent, during the lifetime
of the latter, by way of donation, or any other gratuitous title, in order that SO ORDERED.
it may be computed in the determination of the legitime of each heir, and in
the account of the partition. Section 2, Rule 90 of the Rules of Court also
provided that any advancement by the decedent on the legitime of an heir
may be heard and determined by the court having jurisdiction of the estate
proceedings, and the final order of the court thereon shall be binding on the
person raising the questions and on the heir. Rule 90 thereby expanded
the special and limited jurisdiction of the RTC as an intestate court about
the matters relating to the inventory of the estate of the decedent by
authorizing it to direct the inclusion of properties donated or bestowed by
gratuitous
title
to
any
compulsory
heir
by
the
decedent. 38
The determination of which properties should be excluded from or included
in the inventory of estate properties was well within the authority and
discretion of the RTC as an intestate court. In making its determination, the
RTC acted with circumspection, and proceeded under the guiding policy that
it was best to include all properties in the possession of the administrator or
were known to the administrator to belong to Emigdio rather than to
exclude properties that could turn out in the end to be actually part of the
estate. As long as the RTC commits no patent grave abuse of discretion, its
orders must be respected as part of the regular performance of its judicial
duty. Grave abuse of discretion means either that the judicial or quasi
judicial power was exercised in an arbitrary or despotic manner by reason
of passion or personal hostility, or that the respondent judge, tribunal or
board evaded a positive duty, or virtually refused to perform the duty
enjoined or to act in contemplation of law, such as when such judge,
tribunal or board exercising judicial or quasijudicial powers acted in a
capricious or whimsical manner as to be equivalent to lack of jurisdiction. 39
In light of the foregoing, the CAs conclusion of grave abuse of discretion on
the
part
of
the
RTC
was
unwarranted
and
erroneous.
WHEREFORE,

the

Court GRANTS the

petition

for

review

G.R. No. 160530

November 20, 2007

CYNTHIA
V.
NITTSCHER, petitioner,
vs.
DR. WERNER KARL JOHANN NITTSCHER (Deceased), ATTY.
ROGELIO P. NOGALES and THE REGIONAL TRIAL COURT OF MAKATI
(Branch 59), respondents.
DECISION
QUISUMBING, J.:
For review on certiorari are the Decision 1 dated July 31, 2003 and
Resolution2 dated October 21, 2003 of the Court of Appeals in CA-G.R. CV
No. 55330, which affirmed the Order3 dated September 29, 1995 of the
Regional Trial Court (RTC), Branch 59, Makati City, in SP Proc. No. M-2330
for the probate of a will.

SPECPRO| RULE 75| 36

The facts are as follows.

Petitioner moved for reconsideration, but her motion was denied for lack of
merit. On May 9, 1996, Atty. Nogales was issued letters testamentary and
was sworn in as executor.

On January 31, 1990, Dr. Werner Karl Johann Nittscher filed with the RTC of
Makati City a petition for the probate of his holographic will and for the
issuance of letters testamentary to herein respondent Atty. Rogelio P. Petitioner appealed to the Court of Appeals alleging that respondents
Nogales.
petition for the issuance of letters testamentary should have been
dismissed outright as the RTC had no jurisdiction over the subject matter
On September 19, 1991, after hearing and with due notice to the and that she was denied due process.
compulsory heirs, the probate court issued an order allowing the said
holographic will, thus:
The appellate court dismissed the appeal, thus:
WHEREFORE, premises considered, the Holographic Will of the petitionertestator Dr. Werner J. Nittscher executed pursuant to the provision of the
second paragraph of Article 838 of the Civil Code of the Philippines on
January 25, 1990 in Manila, Philippines, and proved in accordance with the
provision of Rule 76 of the Revised Rules of Court is hereby allowed.

WHEREFORE,
the
foregoing
considered,
the
appeal
is
hereby DISMISSED and the assailed Order is AFFIRMED in toto. The
court a quo is ordered to proceed with dispatch in the proceedings below.

SO ORDERED.4

Petitioners motion for reconsideration of the aforequoted decision was

denied for lack of merit. Hence, the present petition anchored on the
following grounds:

On September 26, 1994, Dr. Nittscher died. Hence, Atty. Nogales filed a
petition for letters testamentary for the administration of the estate of the
deceased. Dr. Nittschers surviving spouse, herein petitioner Cynthia V.
Nittscher, moved for the dismissal of the said petition. However, the court in
its September 29, 1995 Order denied petitioners motion to dismiss, and
granted respondents petition for the issuance of letters testamentary, to
wit:
In view of all the foregoing, the motion to dismiss is DENIED. The petition
for the issuance of Letters Testamentary, being in order, is GRANTED.
Section 4, Rule 78 of the Revised Rules of Court, provides "when a will has
been proved and allowed, the court shall issue letters testamentary thereon
to the person named as executor therein, if he is competent, accepts the
trust and gives a bond as required by these rules." In the case at bar,
petitioner Atty. Rogelio P. Nogales of the R.P. Nogales Law Offices has been
named executor under the Holographic Will of Dr. Werner J. Nittscher. As
prayed for, let Letters Testamentary be issued to Atty. Rogelio P. Nogales,
the executor named in the Will, without a bond.
SO ORDERED.5

SO ORDERED.6

I.
BOTH THE CA AND THE LOWER COURT ERRED IN NOT DISMISSING
OUTRIGHT THE PETITION FOR LETTERS TESTAMENTARY FILED BY ATTY.
NOGALES WHEN, OBVIOUSLY, IT WAS FILED IN VIOLATION OF REVISED
CIRCULAR NO. 28-91 AND ADMINISTRATIVE CIRCULAR NO. 04-94 OF THIS
HONORABLE COURT.
II.
THE CA ERRED IN NOT DECLARING THAT THE LOWER COURT [HAS] NO
JURISDICTION OVER THE SUBJECT MATTER OF THE PRESENT SUIT.
III.
THE CA ERRED IN CONCLUDING THAT SUMMONS WERE PROPERLY ISSUED
TO THE PARTIES AND ALL PERSONS INTERESTED IN THE PROBATE OF THE
HOLOGRAPHIC WILL OF DR. NITTSCHER.
IV.
THE CA ERRED IN CONCLUDING THAT THE PETITIONER WAS NOT
DEPRIVED OF DUE PROCESS OF LAW BY THE LOWER COURT.7

SPECPRO| RULE 75| 37

Petitioner contends that respondents petition for the issuance of letters

testamentary lacked a certification against forum-shopping. She adds that
the RTC has no jurisdiction over the subject matter of this case because Dr.
Nittscher was allegedly not a resident of the Philippines; neither did he
leave real properties in the country. Petitioner claims that the properties
listed for disposition in her husbands will actually belong to her. She insists
she was denied due process of law because she did not receive by personal
service the notices of the proceedings.
Respondent Atty. Nogales, however, counters that Dr. Nittscher did reside
and own real properties in Las Pias, Metro Manila. He stresses that
petitioner was duly notified of the probate proceedings. Respondent points
out that petitioner even appeared in court to oppose the petition for the
issuance of letters testamentary and that she also filed a motion to dismiss
the said petition. Respondent maintains that the petition for the issuance of
letters testamentary need not contain a certification against forumshopping as it is merely a continuation of the original proceeding for the
probate of the will.
We resolve to deny the petition.
As to the first issue, Revised Circular No. 28-91 and Administrative Circular
No. 04-949 of the Court require a certification against forum-shopping for all
initiatory pleadings filed in court. However, in this case, the petition for the
issuance of letters testamentary is not an initiatory pleading, but a mere
continuation of the original petition for the probate of Dr. Nittschers will.
Hence, respondents failure to include a certification against forum-shopping
in his petition for the issuance of letters testamentary is not a ground for
outright dismissal of the said petition.
8

Anent the second issue, Section 1, Rule 73 of the Rules of Court provides:
SECTION 1. Where estate of deceased persons settled. If the decedent
is an inhabitant of the Philippines at the time of his death, whether a
citizen or an alien, his will shall be proved, or letters of administration
granted, and his estate settled, in the Court of First Instance (now
Regional Trial Court) in the province in which he resides at the time
of his death, and if he is an inhabitant of a foreign country, the Court of
First Instance (now Regional Trial Court) of any province in which he had
estate. (Emphasis supplied.)

In this case, the RTC and the Court of Appeals are one in their finding that
Dr. Nittscher was a resident of Las Pias, Metro Manila at the time of his
death. Such factual finding, which we find supported by evidence on record,
should no longer be disturbed. Time and again we have said that reviews
on certiorari are limited to errors of law. Unless there is a showing that the
findings of the lower court are totally devoid of support or are glaringly
erroneous, this Court will not analyze or weigh evidence all over again. 10
Hence, applying the aforequoted rule, Dr. Nittscher correctly filed in the RTC
of Makati City, which then covered Las Pias, Metro Manila, the petition for
the probate of his will and for the issuance of letters testamentary to
respondent.
Regarding the third and fourth issues, we note that Dr. Nittscher asked for
the allowance of his own will. In this connection, Section 4, Rule 76 of the
Rules of Court states:
SEC. 4. Heirs, devisees, legatees, and executors to be notified by mail or
personally.
If the testator asks for the allowance of his own will, notice shall be sent
only to his compulsory heirs.
In this case, records show that petitioner, with whom Dr. Nittscher had no
child, and Dr. Nittschers children from his previous marriage were all duly
notified, by registered mail, of the probate proceedings. Petitioner even
appeared in court to oppose respondents petition for the issuance of letters
testamentary and she also filed a motion to dismiss the said petition. She
likewise filed a motion for reconsideration of the issuance of the letters
testamentary and of the denial of her motion to dismiss. We are convinced
petitioner was accorded every opportunity to defend her cause. Therefore,
petitioners allegation that she was denied due process in the probate
proceedings is without basis.
As a final word, petitioner should realize that the allowance of her
husbands will is conclusive only as to its due execution. 11 The authority of
the probate court is limited to ascertaining whether the testator, being of
sound mind, freely executed the will in accordance with the formalities
prescribed by law.12 Thus, petitioners claim of title to the properties
forming part of her husbands estate should be settled in an ordinary action
before the regular courts.

SPECPRO| RULE 75| 38

WHEREFORE, the petition is DENIED for lack of merit. The assailed

Decision dated July 31, 2003 and Resolution dated October 21, 2003 of the
Court of Appeals in CA-G.R. CV No. 55330, which affirmed the Order dated
September 29, 1995 of the Regional Trial Court, Branch 59, Makati City, in
SP Proc. No. M-2330 are AFFIRMED.
No pronouncement as to costs.
SO ORDERED.

G.R. Nos. L-63253-54 April 27, 1989

PABLO
RALLA, petitioner,
vs.
HON. ROMULO P. UNTALAN, HON. DOMINGO CORONEL REYES, AND
LEONIE RALLA, PETER RALLA AND MARINELLA RALLA, respondents.
Rafael Triunfante for the Heirs of Pablo Ralla.
Ruben R. Basa for respondents.

SARMIENTO, J.:
This petition seeks the nullification of the Order of respondent Judge
Romulo P. Untalan, 1 dated July 16,1981, excluding from the probate

SPECPRO| RULE 75| 39

proceedings sixty-three parcels of land, as well as the Orders issued by

respondent Judge Domingo Coronel Reyes, 2 denying the petitioner's
motions for reconsideration of the same Order of Judge Untalan dated July
16, 1981.
The petition's beginnings are traced to January 27, 1959, when Rosendo
Ralla, a widower, filed a petition for the probate of his own will in the then
Court of First Instance (now Regional Trial Court) of Albay, which was
docketed as Special Proceedings No. 564. In his will he left his entire estate
to his son, Pablo (the petitioner herein who, upon his death during the
pendency of this petition, was substituted by his heirs), leaving nothing to
his other son, Pedro.
In the same year, Pedro Ralla filed an action for the partition of the estate
of their mother, Paz Escarella; this was docketed as Civil Case No. 2023.
In the course of the hearing of the probate case (Special Proceedings No.
564), Pablo Ralla filed a motion to dismiss the petition for probate on the
ground that he was no longer interested in the allowance of the will of his
late father, Rosendo Ralla, for its probate would no longer be beneficial and
advantageous to him. This motion was denied, and the denial was denied
by the Court of Appeals. (The latter court agreed with the lower court's
conclusion that, indeed, the petitioner stood to gain if the testate
proceedings were to be dismissed because then he would not be compelled
to submit for inclusion in the inventory of the estate of Rosendo Ralla 149
parcels of land from which he alone had been collecting rentals and
receiving income, to the exclusion and prejudice of his brother, Pedro Ralla,
who was being deprived of his successional rights over the said properties.)
The denial of this motion to dismiss was likewise affirmed by this Court (in
G.R. No. L-26253). 3 On the scheduled hearing on November 3, 1966, the
petitioner reiterated his lack of interest in the probate of the subject will.
Consequently, the court, through Judge Perfecto Quicho, declared Pedro and
Pablo Ralla the only heirs of Rosendo Ralla who should share equally upon
the division of the latter's estate, and thereupon converted the testate
proceedings into one of intestacy.
Meanwhile, the brothers agreed to compromise in the partition case (Civil
Case No. 2023). On December 18, 1967, they entered into a project of
partition whereby sixty-three parcels of land, apparently forming the estate
of their deceased mother, Paz Escarella, were amicably divided between the
two of them. This project of partition was approved on December 19,1967
by Judge Ezekiel Grageda.

Eleven years later, or on February 28, 1978, Joaquin Chancoco, brother-inlaw of the petitioner (Pablo) filed a petition, docketed as Special
Proceedings No. 1106, for the probate of the same will of Rosendo Ralla on
the ground that the decedent owed him P5,000.00. Pablo Ralla then filed a
manifestation stating that he had no objections to the probate; thereafter,
he filed a "Motion to Intervene as Petitioner for the Probate of the Will."
This motion was heard ex parte and granted despite the written opposition
of the heirs of Pedro Ralla. Likewise, the petition for probate was granted;
Teodorico Almine, son-in-law of the petitioner, was appointed special
administrator, over and above the objection of the heirs of Pedro Ralla.
However, in taking possession of the properties belonging to the estate of
Rosendo Ralla, Teodorico Almine also took possession of the sixty-three
parcels of land covered by the project of partition mentioned earlier.
Consequently, the heirs of Pedro Ralla (the private respondents herein)
moved to exclude from the estate of Rosendo Ralla the aforesaid parcels of
land.
In an Omnibus order dated August 3, 1979, 4 respondent Judge Romulo P.
Untalan ruled, inter alia, that the sixty-three parcels of land should be
included in the proceedings for the settlement of the estate of Rosendo
Ralla and that said proceedings (both Special Proceedings No. 564 and
Special Proceedings No. 1106, which were ordered consolidated by this
Court) should proceed as probate proceedings.
About two years later, or on June 11, 1981, the private respondents filed a
"Petition To Submit Anew For Consideration Of The Court The Exclusion Of
67 (sic) Parcels of Land Subject Of The Project Of Partition In Civil Case No.
2023." 5 In his Order of July 16,1981, Judge Untalan reconsidered his
earlier Order, to wit:
Premises considered, Order is hereby issued reconsidering the Omnibus
Order of this Court dated August 3,1979, more particularly paragraph 3 of
the dispositive portion thereof. The Project of Partition should, therefore, be
respected and upheld. Hence, the sixty-three (63) parcels referred to
therein should be excluded from the probate proceedings and, likewise from
the administration of Special Administrator Teodorico Almine, Jr.
SO ORDERED. 6
Thereafter, the petitioner filed a motion for reconsideration of the foregoing
order but the same was denied 7 by respondent Judge Domingo Coronel
Reyes, to whose sala Special Proceedings No. 564 and No. 1 1 06 were

SPECPRO| RULE 75| 40

apparently transferred. Still, a second motion for reconsideration was filed;

the same, however, was also denied. 8

Two closely related orders are the following quoted portions of the said
August 3, 1979 Order of respondent Judge Untalan:

In assailing the aforesaid Order of July 16, 1981, the following arguments
are raised in the present special civil action for certiorari.

xxx xxx xxx

The first argument is stated as follows:

... The extrajudicial partition of the 63 parcels made after the filing of the
petition for the probate of the Will, and before said Will was probated, is a
NULLITY, considering that as already decided by this Court in the case of
Ernesto M. Guevara, vs. Rosario Guevara et al., Vol. 74 Phil. Reports, there
can be no valid partition among the heirs till after the Will had been
probated. ... 9
The above argument is obviously flawed and misleading for the simple
reason that the aforementioned partition was made in the civil case for
partition of the estate of Paz Escarella, which is distinct from, and
independent of, the special proceedings for the probate of the will of
Rosendo Ralla.
Verily, the rule is that there can be no valid partition among the heirs till
after the will has been probated. This, of course, presupposes that the
properties to be partitioned are the same properties embraced in the win.
Thus the rule invoked is inapplicable in this instance where there are two
separate cases (Civil Case No. 2023 for partition, and Special Proceedings
No. 564 originally for the probate of a will), each involving the estate of a
different person (Paz Escarella and Rosendo Ralla, respectively) comprising
dissimilar properties.
In his second and third arguments, 10 the petitioner claims that the Order
of August 3, 1979 mentioned earlier could no longer be validly reversed by
the court two years after it was issued. Thus, it is alleged that by flipflopping, Judge Untalan committed a grave abuse of discretion.
An examination of the August 3, 1979 Order would reveal that the same
resolved a number of divergent issues (ten as enumerated) 11 springing
from four separate special proceedings,12 all of which were pending in
Branch I of the then Court of First Instance of Albay; accordingly, there are
at least nine 13 specific directives contained therein. However, a distinction
must be made between those directives that partake of final orders and the
other directives that are in the nature of inter-locutory orders.

2. The 149 parcels referred to in our elucidation on issue No. 2 as well as

the 63 lots also mentioned therein all of which may be summed up to 212
parcels, except those already validly disposed, conveyed, or transferred to
third persons, should be submitted, at least provisionally, to the probate or
testate proceedings. Hence, the Motion to exclusion the 149 parcels filed on
June 2, 1979, by petitioner intervenor Pablo Ralla thru counsel in Special
Proceeding 1106 and the motion for exclusion filed by the heirs of Pedro
Ralla thru counsel in Special Proceedings 564 and 1106 are hereby Denied;
(Emphasis supplied.)
3. The Project of partition, for purposes of these proceedings, is hereby
stripped of its judicial recognition; 14

xxx xxx xxx

As regards the abovequoted paragraph 2, this Court finds that the same is
interlocutory in character because it did not decide the action with finality
and left substantial proceedings still to be had.15 The foregoing order of
inclusion of the subject parcels of land was a mere incident that arose in
the settlement of the estate of Rosendo Ralla. It is elementary that
interlocutory orders, prior to the rendition of the final judgment, are, at any
time, subject to such corrections or amendments as the court may deem
proper. Thus, in issuing the questioned Order dated July 16,1981, which
reversed the aforementioned interlocutory order and upheld the project of
partition, respondent Judge Untalan acted well within his jurisdiction and
without grave abuse of discretion.
There is, however, a more important reason why we do not find any grave
abuse of discretion in the issuance of the questioned Order dated July
16,1981. Consider the following undisputed facts: the properties involved in
the present petition were the subject of the project of partition signed by
both the petitioner, Pablo Ralla, and Pedro Ralla in Civil Case No. 2023; the
lower court approved the said project of partition on December 19, 1967;
subsequently, Pablo and Pedro Ralla jointly manifested that they had
already received "the ownership and possession of the respective parcels of
land adjudicated to them in the said project of partition," 16 and upon their

SPECPRO| RULE 75| 41

motion Judge Ezekiel Grageda declared the partition case closed and
terminated in its Order of December 29, 1967; there was no appeal made
from this decision within the reglementary period to do so, consequently, it
attained finality.

Costs against the petitioner.

SO ORDERED.

Furthermore, the Court had occasion to rule that

Where a partition had not only been approved and thus become a judgment
of the court, but distribution of the estate in pursuance of such partition
had fully been carried out, and the heirs had received the property assigned
to them, they are precluded from subsequently attacking its validity or any
part of it. 17
Likewise:
Where a piece of land has been included in a partition, and there is no
allegation that the inclusion was effected through improper means or
without the petitioners' knowledge, the partition barred any further
litigation on said title and operated to bring the property under the control
and jurisdiction of the court for proper disposition according to the tenor of
the partition . . . They can not attack the partition collaterally, as they are
trying to do in this case. 18 (Emphasis supplied.)
Based on the foregoing pronouncements, the Order of August 3, 1979
setting aside the project of Partition was clearly erroneous. Realizing this
and the fact that it was not yet too late for him to correct his mistake,
respondent Judge Untalan issued the questioned Order of July 16, 1981.
In fine, the partition in Civil Case No. 2023 is valid and binding upon the
petitioner and Pedro Ralla, as well as upon their heirs, especially as this was
accompanied by delivery of possession to them of their respective shares in
the inheritance from their mother, the late Paz Escarella. They are duty
bound to respect the division agreed upon by them and embodied in the
document of partition.
Thus, the petitioner could no longer question the exclusion of the lands
subject of the partition from the proceedings for the settlement of the
estate of Rosendo Ralla. Could it be that the petitioner's keen interest in
including these lands in the estate proceedings is directly related to the fact
that his son-in-law is the administrator of the said estate of Rosendo Ralla?
WHEREFORE, the petition is hereby DISMISSED.

G.R. No. 176943

October 17, 2008

DANILO ALUAD, LEONORA ALUAD, DIVINA ALUAD, PROSPERO

ALUAD,
and
CONNIE
ALUAD, petitioners,
vs.
ZENAIDO ALUAD, respondent.
DECISION
CARPIO MORALES, J.:
Petitioners mother, Maria Aluad (Maria), and respondent Zenaido Aluad
were raised by the childless spouses Matilde Aluad (Matilde) and Crispin
Aluad (Crispin).
Crispin was the owner of six lots identified as Lot Nos. 674, 675, 676, 677,
680, and 682 of the Pilar Cadastre, Capiz. After Crispin died, his wife
Matilde adjudicated the lots to herself.1
On November 14, 1981, Matilde executed a document entitled "Deed of
Donation of Real Property Inter Vivos" 2(Deed of Donation) in favor of

SPECPRO| RULE 75| 42

petitioners mother Maria3 covering all the six lots which Matilde inherited
from her husband Crispin. The Deed of Donation provided:
That, for and in consideration of the love and affection of the DONOR
[Matilde] for the DONEE [Maria], the latter being adopted and hav[ing]
been brought up by the former the DONOR, by these presents, transfer and
convey, BY WAY OF DONATION, unto the DONEE the property abovedescribed, to become effective upon the death of the DONOR, but in
the event that the DONEE should die before the DONOR, the present
donation shall be deemed rescinded and [of] no further force and
effect; Provided, however, that anytime during the lifetime of the DONOR or
anyone of them who should survive, they could use[,] encumber or even
dispose of any or even all of the parcels of land herein donated.4 (Emphasis
and underscoring supplied)
On September 30, 1986, Original Certificates of Title over Lot Nos. 674 and
676 were issued in Matildes name.
On August 26, 1991, Matilde sold Lot No. 676 to respondent by a Deed of
Absolute Sale of Real Property.5
Subsequently or on January 14, 1992, Matilde executed a last will and
testament,6 devising Lot Nos. 675, 677, 682, and 680 to Maria, and her
"remaining properties" including Lot No. 674 to respondent.
Matilde died on January 25, 1994, while Maria died on September 24 of the
same year.7

To the complaint respondent alleged in his Answer.10

That Lot 674 is owned by the defendant as this lot was adjudicated to him
in the Last Will and Testament of Matilde Aluad x x x while Lot 676 was
purchased by him from Matilde Aluad. These two lots are in his possession
as true owners thereof.11 (Underscoring supplied)
Petitioners later filed a Motion for Leave to Amend Complaint Already Filed
to Conform to Evidence12 to which it annexed an Amended
Complaint13 which cited the donation of the six lots via Deed of Donation in
favor of their mother Maria. Branch 15 of the RTC granted the motion and
admitted the Amended Complaint.14
Respondent filed an Amended Answer 15 contending, inter alia, that the Deed
of Donation is forged and falsified and petitioners change of theory showed
that "said document was not existing at the time they filed their complaint
and was concocted by them after realizing that their false claim that their
mother was the only daughter of Matild[e] Aluad cannot in anyway be
established by them";16 and that if ever said document does exist, the same
was already revoked by Matilde "when [she] exercised all acts of dominion
over said properties until she sold Lot 676 to defendant and until her death
with respect to the other lots without any opposition from Maria Aluad." 17
The trial court, by Decision 18 of September 20, 1996, held that Matilde
could not have transmitted any right over Lot Nos. 674 and 676 to
respondent, she having previously alienated them to Maria via the Deed of
Donation. Thus it disposed:

On August 21, 1995, Marias heirs-herein petitioners filed before the

Regional Trial Court (RTC) of Roxas City a Complaint, 8 for declaration and
recovery of ownership and possession of Lot Nos. 674 and 676, and
damages against respondent, alleging:

WHEREFORE, in view of the foregoing, judgment is hereby rendered:

That in 1978, plaintiff[s] possessed the two (2) parcels of land abovedescribed until January 1991 when defendant entered and possessed the
two (2) parcels of land claiming as the adopted son of Crispin Aluad who
refused to give back possession until Matilde Aluad died in [1994] and then
retained the possession thereof up to and until the present time, thus,
depriving the plaintiffs of the enjoyment of said parcels of land x x x;

2. Ordering the defendant to deliver the possession of the subject lots to

the plaintiffs;

That after the death of Matilde R. Aluad, the plaintiffs succeeded by

inheritance by right of representation from their deceased mother, Maria
Aluad who is the sole and only daughter of Matilde Aluad[.] 9

1. Declaring the plaintiffs as the rightful owners of the subject Lots Nos.
674 and 676, Pilar Cadastre;

3. Ordering the defendant to pay the plaintiffs:

a. Thirty thousand pesos (P30,000.00) as attorneys fees;
b. Twenty thousand pesos (P20,000.00), representing the income from
subject Lot 676, a year from 1991 up to the time said lot is delivered to the
plaintiffs, together with the interest thereof at the legal rate until fully paid;

SPECPRO| RULE 75| 43

c. Ten thousand pesos (P10,000.00), representing the income from the

subject Lot No. 674, a year from 1991 up to the time said lot is delivered to
the plaintiffs, plus legal interest thereof at the legal rate until fully paid; and
d. The costs of the suit.
Defendants counterclaim is ordered dismissed for lack of merit.
SO ORDERED.19
On petitioners motion, the trial court directed the issuance of a writ of
execution pending appeal.20 Possession of the subject lots appears to have
in fact been taken by petitioners.
By Decision21 of August 10, 2006, the Court of Appeals reversed the trial
courts decision, it holding that the Deed of Donation was actually a
donation mortis causa, not inter vivos, and as such it had to, but did not,
comply with the formalities of a will. Thus, it found that the Deed of
Donation was witnessed by only two witnesses and had no attestation
clause which is not in accordance with Article 805 of the Civil Code,
reading:
Art. 805. Every will, other than a holographic will, must be subscribed at
the end thereof by the testator himself or by the testators name written by
some other person in his presence, and by his express direction, and
attested and subscribed by three or more credible witnesses in the
presence of the testator and of one another.
The testator or the person requested by him to write his name and the
instrumental witnesses of the will shall, also sign, as aforesaid, each and
every page thereof, except the last on the left margin and all the pages
shall be numbered correlatively in letters placed on the upper part of each
page.
The attestation shall state the number of pages used upon which the will is
written, and the fact that that testator signed the will and every page
thereof, or caused some other person to write his name, under his express
direction, in the presence of the instrumental witnesses, and that the latter
witnessed and signed the will and all the pages thereof in the presence of
the testator, and of one another.
If the attestation clause is in a language not known to the witnesses, it shall
be interpreted to them.

While the appellate court declared respondent as the rightful owner of Lot
No. 676, it did not so declare with respect to Lot No. 674, as Matildes last
will and testament had not yet been probated. Thus the Court of Appeals
disposed:
WHEREFORE, finding the instant petition worthy of merit, the same is
hereby GRANTED and the Decision of the Regional Trial Court of Roxas
City, Branch 15, dated 20 September 1996, in Civil Case No. V-6686 for
declaration of ownership, recovery of ownership and possession, and
damages is REVERSED and SET ASIDE.
A new one is entered in its stead declaring defendant-appellant as the
lawful owner of Lot [No.] 676of the Pilar Cadastre. Accordingly, plaintiffsappellees are directed to return the possession of the said lot to the
defendant-appellant.
Moreover, plaintiffs-appellees are ordered to pay P40,000.00 to defendantappellant as attorneys fees and litigation expenses.
Costs against plaintiffs-appellees.
SO ORDERED.22 (Emphasis in the original; underscoring supplied)
Their Motion for Reconsideration 23 having been denied,24 petitioners filed the
present Petition for Review,25contending that the Court of Appeals erred
I
X X X WHEN IT REVERSED THE DECISION OF THE COURT BELOW (RTC,
Branch 15, Roxas City) HOLDING THAT THE DEED OF DONATION INTER
VIVOS IN FAVOR OF PETITIONERS MOTHER IS IN FACT A DONATION
MORTIS CAUSA.
II
X X X WHEN IT RULED THAT RESPONDENT IS THE RIGHTFUL OWNER OF
LOT NO. 676 AS LOT BUYER ON THE BASIS OF A DEED OF SALE EXECUTED
BY THE DONOR WHO HAD NO MORE RIGHT TO SELL THE SAME.
III
X X X WHEN IT FAILED TO DECLARE PETITIONERS THE RIGHTFUL OWNER
OF LOT NO. 674 AFTER HAVING RULED WHEN IT HELD THAT RESPONDENT
CANNOT BE DECLARED OWNER THEREOF.

SPECPRO| RULE 75| 44

IV
X X X WHEN IT HELD THAT THE ISSUANCE OF A WRIT OF EXECUTION
PENDING APPEAL IS IN VIOLATION OF PARAGRAPH (a) SECTION 2, RULE
39, OF THE RULES OF COURT (AND ORDERING PETITIONERS TO RETURN
POSSESSION OF LOT 676 TO RESPONDENT) AND ORDERING PETITIONERS
TO PAY ATTORNEYS FEES AND COST[S] OF SUIT.26
As did the appellate court, the Court finds the donation to petitioners
mother one of mortis causa, it having the following characteristics:
(1) It conveys no title or ownership to the transferee before the death of
the transferor; or what amounts to the same thing, that the transferor
should retain the ownership (full or naked) and control of the property while
alive;
(2) That before the death of the transferor, the transfer should be
revocable by the transferor at will, ad nutum; but revocability may be
provided for indirectly by means of a reserved power in the donor to
dispose of the properties conveyed; and
(3) That the transfer should be void if the transferor should survive the
transferee.27 (Emphasis and underscoring supplied)
The phrase in the earlier-quoted Deed of Donation "to become effective
upon the death of the DONOR" admits of no other interpretation than to
mean that Matilde did not intend to transfer the ownership of the six lots to
petitioners mother during her (Matildes) lifetime. 28
The statement in the Deed of Donation reading "anytime during the
lifetime of the DONOR or anyone of them who should survive, they
could use, encumber or even dispose of any or even all the parcels
of land herein donated"29 means that Matilde retained ownership of the
lots and reserved in her the right to dispose them. For the right to dispose
of a thing without other limitations than those established by law is an
attribute of ownership.30 The phrase in the Deed of Donation "or anyone of
them who should survive" is of course out of sync. For the Deed of Donation
clearly stated that it would take effect upon the death of the donor, hence,
said phrase could only have referred to the donor Matilde. Petitioners
themselves concede that such phrase does not refer to the donee, thus:
x x x [I]t is well to point out that the last provision (sentence) in the
disputed paragraph should only refer to Matilde Aluad, the donor, because

she was the only surviving spouse at the time the donation was
executed on 14 November 1981, as her husband Crispin Aluad [] had
long been dead as early as 1975.31
The trial court, in holding that the donation was inter vivos, reasoned:
x x x The donation in question is subject to a resolutory term or period
when the donor provides in the aforequoted provisions, "but in the event
that the DONEE should die before the DONOR, the present donation shall be
deemed rescinded and [of] no further force and effect". When the donor
provides that should the "DONEE" xxx die before the DONOR, the present
donation shall be deemed rescinded and [of] no further force and effect"
the logical construction thereof is that after the execution of the subject
donation, the same became effective immediately and shall be "deemed
rescinded and [of] no further force and effect" upon the arrival of a
resolutory term or period, i.e., the death of the donee which shall occur
before that of the donor. Understandably, the arrival of this resolutory term
or period cannot rescind and render of no further force and effect a
donation which has never become effective, because, certainly what
donation is there to be rescinded and rendered of no further force and
effect upon the arrival of said resolutory term or period if there was no
donation which was already effective at the time when the donee died?
32
(Underscoring supplied)
A similar ratio in a case had been brushed aside by this Court, however,
thus:
x x x [P]etitioners contend that the stipulation on rescission in case
petitioners [donee] die ahead of [donor] Cabatingan is a resolutory
condition that confirms the nature of the donation as inter vivos.
Petitioners arguments are bereft of merit.33
xxxx
x x x The herein subject deeds expressly provide that the donation shall be
rescinded in case [donees] the petitioners predecease [the donor] Conchita
Cabatingan. As stated in Reyes v. Mosqueda, one of the decisive
characteristics of a donation mortis causa is that the transfer should be
considered void if the donor should survive the donee. This is exactly what
Cabatingan provided for in her donations. If she really intended that the
donation should take effect during her lifetime and that the ownership of
the properties donated to the donee or independently of, and not by reason

SPECPRO| RULE 75| 45

of her death, she would not have expressed such proviso in the subject
deeds.34 (Underscoring supplied)
As the Court of Appeals observed, "x x x [t]hat the donation is mortis
causa is fortified by Matildes acts of possession as she continued to pay the
taxes for the said properties which remained under her name; appropriated
the produce; and applied for free patents for which OCTs were issued under
her name."35
The donation being then mortis causa, the formalities of a will should have
been observed36 but they were not, as it was witnessed by only two, not
three or more witnesses following Article 805 of the Civil Code. 37

Furthermore, the witnesses did not acknowledge the will before the notary
public,40 which is not in accordance with the requirement of Article 806 of
the Civil Code that every will must be acknowledged before a notary public
by the testator and the witnesses.
More. The requirement that all the pages of the will must be numbered
correlatively in letters placed on the upper part of each page was not also
followed.41

The Deed of Donation which is, as already discussed, one of mortis causa,
not having followed the formalities of a will, it is void and transmitted no
right to petitioners mother. But even assuming arguendo that the
formalities were observed, since it was not probated, no right to Lot Nos.
Further, the witnesses did not even sign the attestation clause 38 the 674 and 676 was transmitted to Maria. 42 Matilde thus validly disposed of Lot
execution of which clause is a requirement separate from the subscription No. 674 to respondent by her last will and testament, subject of course to
of the will and the affixing of signatures on the left-hand margins of the the qualification that her (Matildes) will must be probated. With respect to
pages of the will. So the Court has emphasized:
Lot No. 676, the same had, as mentioned earlier, been sold by Matilde to
respondent on August 26, 1991.
x x x Article 805 particularly segregates the requirement that the
instrumental witnesses sign each page of the will from the requisite that the Petitioners nevertheless argue that assuming that the donation of Lot No.
will be "attested and subscribed by [the instrumental witnesses]. The 674 in favor of their mother is indeed mortis causa, hence, Matilde could
respective intents behind these two classes of signature[s] are distinct from devise it to respondent, the lot should nevertheless have been awarded to
each other. The signatures on the left-hand corner of every page signify, them because they had acquired it by acquisitive prescription, they having
among others, that the witnesses are aware that the page they are signing been in continuous, uninterrupted, adverse, open, and public possession of
forms part of the will. On the other hand, the signatures to the attestation it in good faith and in the concept of an owner since 1978. 43
clause establish that the witnesses are referring to the statements
contained in the attestation clause itself. Indeed, the attestation clause is Petitioners failed to raise the issue of acquisitive prescription before the
separate and apart from the disposition of the will. An unsigned lower courts, however, they having laid their claim on the basis of
attestation clause results in an unattested will. Even if the inheritance from their mother. As a general rule, points of law, theories, and
instrumental witnesses signed the left-hand margin of the page containing issues not brought to the attention of the trial court cannot be raised for the
the unsigned attestation clause, such signatures cannot demonstrate these first time on appeal.44 For a contrary rule would be unfair to the adverse
witnesses undertakings in the clause, since the signatures that do appear party who would have no opportunity to present further evidence material
on the page were directed towards a wholly different avowal.
to the new theory, which it could have done had it been aware of it at the
time of the hearing before the trial court.45
x x x It is the witnesses, and not the testator, who are required under
Article 805 to state the number of pages used upon which the will is WHEREFORE, the petition is DENIED.
written; the fact that the testator had signed the will and every page
thereof; and that they witnessed and signed the will and all the pages SO ORDERED.
thereof in the presence of the testator and of one another. The only proof in
the will that the witnesses have stated these elemental facts would be their
signatures on the attestation clause.39 (Emphasis and underscoring
supplied)

SPECPRO| RULE 75| 46

G.R. No. 176831

January 15, 2010

UY
vs.
NIXON LEE, Respondent.

KIAO

ENG, Petitioner,

DECISION
NACHURA, J.:
Before the Court is a petition for review on certiorari under Rule 45 of the
Rules of Court, assailing the August 23, 2006 Amended Decision 1 of the
Court of Appeals (CA) in CA-G.R. SP No. 91725 and the February 23, 2007
Resolution,2 denying the motion for reconsideration thereof.
The relevant facts and proceedings follow.
Alleging that his father passed away on June 22, 1992 in Manila and left a
holographic will, which is now in the custody of petitioner Uy Kiao Eng, his
mother, respondent Nixon Lee filed, on May 28, 2001, a petition for
mandamus with damages, docketed as Civil Case No. 01100939, before the
Regional Trial Court (RTC) of Manila, to compel petitioner to produce the will
so that probate proceedings for the allowance thereof could be instituted.
Allegedly, respondent had already requested his mother to settle and
liquidate the patriarchs estate and to deliver to the legal heirs their
respective inheritance, but petitioner refused to do so without any
justifiable reason.3

SPECPRO| RULE 75| 47

In her answer with counterclaim, petitioner traversed the allegations in the

complaint and posited that the same be dismissed for failure to state a
cause of action, for lack of cause of action, and for non-compliance with a
condition precedent for the filing thereof. Petitioner denied that she was in
custody of the original holographic will and that she knew of its
whereabouts. She, moreover, asserted that photocopies of the will were
given to respondent and to his siblings. As a matter of fact, respondent was
able to introduce, as an exhibit, a copy of the will in Civil Case No. 224-V00 before the RTC of Valenzuela City. Petitioner further contended that
respondent should have first exerted earnest efforts to amicably settle the
controversy with her before he filed the suit. 4
The RTC heard the case. After the presentation and formal offer of
respondents evidence, petitioner demurred, contending that her son failed
to prove that she had in her custody the original holographic will.
Importantly, she asserted that the pieces of documentary evidence
presented, aside from being hearsay, were all immaterial and irrelevant to
the issue involved in the petitionthey did not prove or disprove that she
unlawfully neglected the performance of an act which the law specifically
enjoined as a duty resulting from an office, trust or station, for the court to
issue the writ of mandamus.5
The RTC, at first, denied the demurrer to evidence. 6 In its February 4, 2005
Order,7 however, it granted the same on petitioners motion for
reconsideration. Respondents motion for reconsideration of this latter order
was denied on September 20, 2005.8 Hence, the petition was dismissed.
Aggrieved, respondent sought review from the appellate court. On April 26,
2006, the CA initially denied the appeal for lack of merit. It ruled that the
writ of mandamus would issue only in instances when no other remedy
would be available and sufficient to afford redress. Under Rule 76, in an
action for the settlement of the estate of his deceased father, respondent
could ask for the presentation or production and for the approval or probate
of the holographic will. The CA further ruled that respondent, in the
proceedings before the trial court, failed to present sufficient evidence to
prove that his mother had in her custody the original copy of the
will.91avvphi1
Respondent moved for reconsideration. The appellate court, in the assailed
August 23, 2006 Amended Decision,10 granted the motion, set aside its
earlier ruling, issued the writ, and ordered the production of the will and the
payment of attorneys fees. It ruled this time that respondent was able to

show by testimonial evidence that his mother had in her possession the
holographic will.
Dissatisfied with this turn of events, petitioner filed a motion for
reconsideration. The appellate court denied this motion in the further
assailed February 23, 2007 Resolution.11
Left with no other recourse, petitioner brought the matter before this Court,
contending in the main that the petition for mandamus is not the proper
remedy and that the testimonial evidence used by the appellate court as
basis for its ruling is inadmissible.12
The Court cannot sustain the CAs issuance of the writ.
The first paragraph of Section 3 of Rule 65 of the Rules of Court pertinently
provides that
SEC. 3. Petition for mandamus.When any tribunal, corporation, board,
officer or person unlawfully neglects the performance of an act which the
law specifically enjoins as a duty resulting from an office, trust, or station,
or unlawfully excludes another from the use and enjoyment of a right or
office to which such other is entitled, and there is no other plain, speedy
and adequate remedy in the ordinary course of law, the person aggrieved
thereby may file a verified petition in the proper court, alleging the facts
with certainty and praying that judgment be rendered commanding the
respondent, immediately or at some other time to be specified by the court,
to do the act required to be done to protect the rights of the petitioner, and
to pay the damages sustained by the petitioner by reason of the wrongful
acts of the respondent.13
Mandamus is a command issuing from a court of law of competent
jurisdiction, in the name of the state or the sovereign, directed to some
inferior court, tribunal, or board, or to some corporation or person requiring
the performance of a particular duty therein specified, which duty results
from the official station of the party to whom the writ is directed or from
operation of law.14 This definition recognizes the public character of the
remedy, and clearly excludes the idea that it may be resorted to for the
purpose of enforcing the performance of duties in which the public has no
interest.15 The writ is a proper recourse for citizens who seek to enforce a
public right and to compel the performance of a public duty, most especially
when the public right involved is mandated by the Constitution. 16 As the
quoted provision instructs, mandamus will lie if the tribunal, corporation,

SPECPRO| RULE 75| 48

board, officer, or person unlawfully neglects the performance of an act

which the law enjoins as a duty resulting from an office, trust or station. 17

In the instant case, the Court, without unnecessarily ascertaining whether

the obligation involved herethe production of the original holographic will
is in the nature of a public or a private duty, rules that the remedy of
The writ of mandamus, however, will not issue to compel an official to do mandamus cannot be availed of by respondent Lee because there lies
anything which is not his duty to do or which it is his duty not to do, or to another plain, speedy and adequate remedy in the ordinary course of law.
give to the applicant anything to which he is not entitled by law. 18 Nor will Let it be noted that respondent has a photocopy of the will and that he
mandamus issue to enforce a right which is in substantial dispute or as to seeks the production of the original for purposes of probate. The Rules of
which a substantial doubt exists, although objection raising a mere Court, however, does not prevent him from instituting probate proceedings
technical question will be disregarded if the right is clear and the case is for the allowance of the will whether the same is in his possession or not.
meritorious.19 As a rule, mandamus will not lie in the absence of any of the Rule 76, Section 1 relevantly provides:
following grounds: [a] that the court, officer, board, or person against
whom the action is taken unlawfully neglected the performance of an act Section 1. Who may petition for the allowance of will.Any executor,
which the law specifically enjoins as a duty resulting from office, trust, or devisee, or legatee named in a will, or any other person interested in the
station; or [b] that such court, officer, board, or person has unlawfully estate, may, at any time, after the death of the testator, petition the court
excluded petitioner/relator from the use and enjoyment of a right or office having jurisdiction to have the will allowed, whether the same be in his
to which he is entitled.20 On the part of the relator, it is essential to the possession or not, or is lost or destroyed.
issuance of a writ of mandamus that he should have a clear legal right to
the thing demanded and it must be the imperative duty of respondent to An adequate remedy is further provided by Rule 75, Sections 2 to 5, for the
production of the original holographic will. Thus
perform the act required.21
Recognized further in this jurisdiction is the principle that mandamus
cannot be used to enforce contractual obligations. 22 Generally, mandamus
will not lie to enforce purely private contract rights, and will not lie against
an individual unless some obligation in the nature of a public or quasi-public
duty is imposed.23 The writ is not appropriate to enforce a private right
against an individual.24 The writ of mandamus lies to enforce the execution
of an act, when, otherwise, justice would be obstructed; and, regularly,
issues only in cases relating to the public and to the government; hence, it
is called a prerogative writ. 25 To preserve its prerogative character,
mandamus is not used for the redress of private wrongs, but only in
matters relating to the public.26
Moreover, an important principle followed in the issuance of the writ is that
there should be no plain, speedy and adequate remedy in the ordinary
course of law other than the remedy of mandamus being invoked. 27 In other
words, mandamus can be issued only in cases where the usual modes of
procedure and forms of remedy are powerless to afford relief. 28 Although
classified as a legal remedy, mandamus is equitable in its nature and its
issuance is generally controlled by equitable principles. 29 Indeed, the grant
of the writ of mandamus lies in the sound discretion of the court.

SEC. 2. Custodian of will to deliver.The person who has custody of a will

shall, within twenty (20) days after he knows of the death of the testator,
deliver the will to the court having jurisdiction, or to the executor named in
the will.
SEC. 3. Executor to present will and accept or refuse trust.A person
named as executor in a will shall within twenty (20) days after he knows of
the death of the testator, or within twenty (20) days after he knows that he
is named executor if he obtained such knowledge after the death of the
testator, present such will to the court having jurisdiction, unless the will
has reached the court in any other manner, and shall, within such period,
signify to the court in writing his acceptance of the trust or his refusal to
accept it.
SEC. 4. Custodian and executor subject to fine for neglect.A person who
neglects any of the duties required in the two last preceding sections
without excuse satisfactory to the court shall be fined not exceeding two
thousand pesos.
SEC. 5. Person retaining will may be committed.A person having custody
of a will after the death of the testator who neglects without reasonable
cause to deliver the same, when ordered so to do, to the court having

SPECPRO| RULE 75| 49

jurisdiction, may be committed to prison and there kept until he delivers

the will.30
There being a plain, speedy and adequate remedy in the ordinary course of
law for the production of the subject will, the remedy of mandamus cannot
be availed of. Suffice it to state that respondent Lee lacks a cause of action
in his petition. Thus, the Court grants the demurrer.
WHEREFORE, premises considered, the petition for review on certiorari is
GRANTED. The August 23, 2006 Amended Decision and the February 23,
2007 Resolution of the Court of Appeals in CA-G.R. SP No. 91725 are
REVERSED and SET ASIDE. Civil Case No. 01100939 before the Regional
Trial Court of Manila is DISMISSED.
SO ORDERED.
G.R. Nos. 140371-72

November 27, 2006

DY YIENG SEANGIO, BARBARA D. SEANGIO and VIRGINIA D.

SEANGIO, Petitioners,
vs.
HON. AMOR A. REYES, in her capacity as Presiding Judge, Regional
Trial Court, National Capital Judicial Region, Branch 21, Manila,
ALFREDO D. SEANGIO, ALBERTO D. SEANGIO, ELISA D. SEANGIOSANTOS, VICTOR D. SEANGIO, ALFONSO D. SEANGIO, SHIRLEY D.
SEANGIO-LIM,
BETTY
D.
SEANGIO-OBAS
and
JAMES
D.
SEANGIO, Respondents.
DECISION
AZCUNA, J.:
This is a petition for certiorari1 with application for the issuance of a writ of
preliminary injunction and/or temporary restraining order seeking the
nullification of the orders, dated August 10, 1999 and October 14, 1999, of
the Regional Trial Court of Manila, Branch 21 (the RTC), dismissing the
petition for probate on the ground of preterition, in the consolidated cases,
docketed as SP. Proc. No. 98-90870 and SP. Proc. No. 99-93396, and
entitled, "In the Matter of the Intestate Estate of Segundo C. Seangio v.
Alfredo D. Seangio, et al." and "In the Matter of the Probate of the Will of
Segundo C. Seangio v. Dy Yieng Seangio, Barbara D. Seangio and Virginia
Seangio."
The facts of the cases are as follows:

SPECPRO| RULE 75| 50

On September 21, 1988, private respondents filed a petition for the

settlement of the intestate estate of the late Segundo Seangio, docketed as
Sp. Proc. No. 9890870 of the RTC, and praying for the appointment of
private respondent Elisa D. SeangioSantos as special administrator and
guardian ad litem of petitioner Dy Yieng Seangio.

Labis kong ikinasama ng loob ko ang gamit ni Alfredo ng akin pagalan para
makapagutang na kuarta siya at kanya asawa na si Merna de los Reyes sa
China Bangking Corporation na millon pesos at hindi ng babayad at hindi ng
babayad ito ay nagdulot sa aking ng malaking kahihiya sa mga may-ari at
stockholders ng China Banking.

Petitioners Dy Yieng, Barbara and Virginia, all surnamed Seangio, opposed

the petition. They contended that: 1) Dy Yieng is still very healthy and in
full command of her faculties; 2) the deceased Segundo executed a general
power of attorney in favor of Virginia giving her the power to manage and
exercise control and supervision over his business in the Philippines; 3)
Virginia is the most competent and qualified to serve as the administrator
of the estate of Segundo because she is a certified public accountant; and,
4) Segundo left a holographic will, dated September 20, 1995, disinheriting
one of the private respondents, Alfredo Seangio, for cause. In view of the
purported holographic will, petitioners averred that in the event the
decedent is found to have left a will, the intestate proceedings are to be
automatically suspended and replaced by the proceedings for the probate of
the will.

At ikinagalit ko pa rin ang pagkuha ni Alfredo at ng kanyang asawa na mga

custome[r] ng Travel Center of the Philippines na pinagasiwaan ko at ng
anak ko si Virginia.

On April 7, 1999, a petition for the probate of the holographic will of

Segundo, docketed as SP. Proc. No. 9993396, was filed by petitioners
before the RTC. They likewise reiterated that the probate proceedings
should take precedence over SP. Proc. No. 9890870 because testate
proceedings take precedence and enjoy priority over intestate proceedings. 2

Nilagdaan sa harap namin

The document that petitioners refer to as Segundos holographic will is

quoted, as follows:

Unang Saksi ikalawang saksi

Kasulatan sa pag-aalis ng mana

Tantunin ng sinuman
Ako si Segundo Seangio Filipino may asawa naninirahan sa 465-A Flores
St., Ermita, Manila at nagtatalay ng maiwanag na pag-iisip at disposisyon
ay tahasan at hayagang inaalisan ko ng lahat at anumang mana ang
paganay kong anak na si Alfredo Seangio dahil siya ay naging lapastangan
sa akin at isan beses siya ng sasalita ng masama harapan ko at mga
kapatid niya na si Virginia Seangio labis kong kinasama ng loob ko at
sasabe rin ni Alfredo sa akin na ako nasa ibabaw gayon gunit daratin ang
araw na ako nasa ilalim siya at siya nasa ibabaw.

Dito ako nagalit din kaya gayon ayoko na bilanin si Alfredo ng anak ko at
hayanan kong inaalisan ng lahat at anoman mana na si Alfredo at si Alfredo
Seangio ay hindi ko siya anak at hindi siya makoha mana.
Nila[g]daan ko ngayon ika 20 ng Setyembre 1995 sa longsod ng Manila sa
harap ng tatlong saksi. 3
(signed)
Segundo Seangio

(signed)
Dy Yieng Seangio (signed)

(signed)
ikatlong saksi
On May 29, 1999, upon petitioners motion, SP. Proc. No. 9890870 and SP.
Proc. No. 9993396 were consolidated.4
On July 1, 1999, private respondents moved for the dismissal of the
probate proceedings5 primarily on the ground that the document purporting
to be the holographic will of Segundo does not contain any disposition of
the estate of the deceased and thus does not meet the definition of a will
under Article 783 of the Civil Code. According to private respondents, the
will only shows an alleged act of disinheritance by the decedent of his
eldest son, Alfredo, and nothing else; that all other compulsory heirs were
not named nor instituted as heir, devisee or legatee, hence, there is

SPECPRO| RULE 75| 51

preterition which would result to intestacy. Such being the case, private
respondents maintained that while procedurally the court is called upon to
rule only on the extrinsic validity of the will, it is not barred from delving
into the intrinsic validity of the same, and ordering the dismissal of the
petition for probate when on the face of the will it is clear that it contains no
testamentary disposition of the property of the decedent.
Petitioners filed their opposition to the motion to dismiss contending that:
1) generally, the authority of the probate court is limited only to a
determination of the extrinsic validity of the will; 2) private respondents
question the intrinsic and not the extrinsic validity of the will; 3)
disinheritance constitutes a disposition of the estate of a decedent; and, 4)
the rule on preterition does not apply because Segundos will does not
constitute a universal heir or heirs to the exclusion of one or more
compulsory heirs.6
On August 10, 1999, the RTC issued its assailed order, dismissing the
petition for probate proceedings:
A perusal of the document termed as "will" by oppositors/petitioners Dy
Yieng Seangio, et al., clearly shows that there is preterition, as the only
heirs mentioned thereat are Alfredo and Virginia. [T]he other heirs being
omitted, Article 854 of the New Civil Code thus applies. However, insofar as
the widow Dy Yieng Seangio is concerned, Article 854 does not apply, she
not being a compulsory heir in the direct line.
As such, this Court is bound to dismiss this petition, for to do otherwise
would amount to an abuse of discretion. The Supreme Court in the case of
Acain v. Intermediate Appellate Court [155 SCRA 100 (1987)] has made its
position clear: "for respondents to have tolerated the probate of the will
and allowed the case to progress when, on its face, the will appears to be
intrinsically void would have been an exercise in futility. It would have
meant a waste of time, effort, expense, plus added futility. The trial court
could have denied its probate outright or could have passed upon the
intrinsic validity of the testamentary provisions before the extrinsic validity
of the will was resolved (underscoring supplied).
WHEREFORE, premises considered, the Motion to Suspend Proceedings is
hereby DENIED for lack of merit. Special Proceedings No. 9993396 is
hereby DISMISSED without pronouncement as to costs.
SO ORDERED.7

Petitioners motion for reconsideration was denied by the RTC in its order
dated October 14, 1999.
Petitioners contend that:
THE RESPONDENT JUDGE ACTED IN EXCESS OF HER JURISDICTION OR
WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION AND DECIDED A QUESTION OF LAW NOT IN ACCORD WITH
LAW AND JURISPRUDENCE IN ISSUING THE QUESTIONED ORDERS, DATED
10 AUGUST 1999 AND 14 OCTOBER 1999 (ATTACHMENTS "A" AND "B"
HEREOF) CONSIDERING THAT:
I
THE RESPONDENT JUDGE, WITHOUT EVEN COMPLYING WITH SECTIONS 3
AND 4 OF RULE 76 OF THE RULES OF COURT ON THE PROPER PROCEDURE
FOR SETTING THE CASE FOR INITIAL HEARING FOR THE ESTABLISHMENT
OF THE JURISDICTIONAL FACTS, DISMISSED THE TESTATE CASE ON THE
ALLEGED GROUND THAT THE TESTATORS WILL IS VOID ALLEGEDLY
BECAUSE OF THE EXISTENCE OF PRETERITION, WHICH GOES INTO THE
INTRINSIC VALIDITY OF THE WILL, DESPITE THE FACT THAT IT IS A
SETTLED RULE THAT THE AUTHORITY OF PROBATE COURTS IS LIMITED
ONLY TO A DETERMINATION OF THE EXTRINSIC VALIDITY OF THE WILL,
I.E., THE DUE EXECUTION THEREOF, THE TESTATORS TESTAMENTARY
CAPACITY AND THE COMPLIANCE WITH THE REQUISITES OR SOLEMNITIES
PRESCRIBED BY LAW;
II
EVEN ASSUMING ARGUENDO THAT THE RESPONDENT
AUTHORITY TO RULE UPON THE INTRINSIC VALIDITY OF
TESTATOR, IT IS INDUBITABLE FROM THE FACE OF THE
THAT NO PRETERITON EXISTS AND THAT THE
INTRINSICALLY AND EXTRINSICALLY VALID; AND,

JUDGE HAS THE

THE WILL OF THE
TESTATORS WILL
WILL IS BOTH

III
RESPONDENT JUDGE WAS DUTY BOUND TO SUSPEND THE PROCEEDINGS
IN THE INTESTATE CASE CONSIDERING THAT IT IS A SETTLED RULE THAT
TESTATE
PROCEEDINGS
TAKE
PRECEDENCE
OVER
INTESTATE
PROCEEDINGS.
Petitioners argue, as follows:

SPECPRO| RULE 75| 52

First, respondent judge did not comply with Sections 3 and 4 of Rule 76 of
the Rules of Court which respectively mandate the court to: a) fix the time
and place for proving the will when all concerned may appear to contest the
allowance thereof, and cause notice of such time and place to be published
three weeks successively previous to the appointed time in a newspaper of
general circulation; and, b) cause the mailing of said notice to the heirs,
legatees and devisees of the testator Segundo;
Second, the holographic will does not contain any institution of an heir, but
rather, as its title clearly states, Kasulatan ng Pag-Aalis ng Mana, simply
contains a disinheritance of a compulsory heir. Thus, there is no preterition
in the decedents will and the holographic will on its face is not intrinsically
void;
Third, the testator intended all his compulsory heirs, petitioners and private
respondents alike, with the sole exception of Alfredo, to inherit his estate.
None of the compulsory heirs in the direct line of Segundo were preterited
in the holographic will since there was no institution of an heir;
Fourth, inasmuch as it clearly appears from the face of the holographic will
that it is both intrinsically and extrinsically valid, respondent judge was
mandated to proceed with the hearing of the testate case; and,
Lastly, the continuation of the proceedings in the intestate case will work
injustice to petitioners, and will render nugatory the disinheritance of
Alfredo.
The purported holographic will of Segundo that was presented by
petitioners was dated, signed and written by him in his own handwriting.
Except on the ground of preterition, private respondents did not raise any
issue as regards the authenticity of the document.

his son, Alfredo, and that the matter presents a sufficient cause for the
disinheritance of a child or descendant under Article 919 of the Civil Code:
Article 919. The following shall be sufficient causes for the disinheritance of
children and descendants, legitimate as well as illegitimate:
(1) When a child or descendant has been found guilty of an attempt against
the life of the testator, his or her spouse, descendants, or ascendants;
(2) When a child or descendant has accused the testator of a crime for
which the law prescribes imprisonment for six years or more, if the
accusation has been found groundless;
(3) When a child or descendant has been convicted of adultery or
concubinage with the spouse of the testator;
(4) When a child or descendant by fraud, violence, intimidation, or undue
influence causes the testator to make a will or to change one already made;
(5) A refusal without justifiable cause to support the parents or ascendant
who disinherit such child or descendant;
(6) Maltreatment of the testator by word or deed, by the child or
descendant;8
(7) When a child or descendant leads a dishonorable or disgraceful life;
(8) Conviction of a crime which carries with it the penalty of civil
interdiction.
Now, the critical issue to be determined is whether the document executed
by Segundo can be considered as a holographic will.

The document, entitled Kasulatan ng Pag-Aalis ng Mana, unmistakably

showed Segundos intention of excluding his eldest son, Alfredo, as an heir
to his estate for the reasons that he cited therein. In effect, Alfredo was
disinherited by Segundo.

A holographic will, as provided under Article 810 of the Civil Code, must be
entirely written, dated, and signed by the hand of the testator himself. It is
subject to no other form, and may be made in or out of the Philippines, and
need not be witnessed.

For disinheritance to be valid, Article 916 of the Civil Code requires that the
same must be effected through a will wherein the legal cause therefor shall
be specified. With regard to the reasons for the disinheritance that were
stated by Segundo in his document, the Court believes that the incidents,
taken as a whole, can be considered a form of maltreatment of Segundo by

Segundos document, although it may initially come across as a mere

disinheritance instrument, conforms to the formalities of a holographic will
prescribed by law. It is written, dated and signed by the hand of Segundo
himself. An intent to dispose mortis causa[9] can be clearly deduced from
the terms of the instrument, and while it does not make an affirmative
disposition of the latters property, the disinheritance of Alfredo,

SPECPRO| RULE 75| 53

nonetheless, is an act of disposition in itself. In other words, the

disinheritance results in the disposition of the property of the testator
Segundo in favor of those who would succeed in the absence of Alfredo. 10
Moreover, it is a fundamental principle that the intent or the will of the
testator, expressed in the form and within the limits prescribed by law,
must be recognized as the supreme law in succession. All rules of
construction are designed to ascertain and give effect to that intention. It is
only when the intention of the testator is contrary to law, morals, or public
policy that it cannot be given effect.11
Holographic wills, therefore, being usually prepared by one who is not
learned in the law, as illustrated in the present case, should be construed
more liberally than the ones drawn by an expert, taking into account the
circumstances surrounding the execution of the instrument and the
intention of the testator.12 In this regard, the Court is convinced that the
document, even if captioned as Kasulatan ng Pag-Aalis ng Mana, was
intended by Segundo to be his last testamentary act and was executed by
him in accordance with law in the form of a holographic will. Unless the will
is probated,13 the disinheritance cannot be given effect.14
With regard to the issue on preterition,15 the Court believes that the
compulsory heirs in the direct line were not preterited in the will. It was, in
the Courts opinion, Segundos last expression to bequeath his estate to all
his compulsory heirs, with the sole exception of Alfredo. Also, Segundo did
not institute an heir16 to the exclusion of his other compulsory heirs. The
mere mention of the name of one of the petitioners, Virginia, in the
document did not operate to institute her as the universal heir. Her name
was included plainly as a witness to the altercation between Segundo and
his son, Alfredo.1wphi1
Considering that the questioned document is Segundos holographic will,
and that the law favors testacy over intestacy, the probate of the will
cannot be dispensed with. Article 838 of the Civil Code provides that no will
shall pass either real or personal property unless it is proved and allowed in
accordance with the Rules of Court. Thus, unless the will is probated, the
right of a person to dispose of his property may be rendered nugatory.17
In view of the foregoing, the trial court, therefore, should have allowed the
holographic will to be probated. It is settled that testate proceedings for the
settlement of the estate of the decedent take precedence over intestate
proceedings for the same purpose.18

WHEREFORE, the petition is GRANTED. The Orders of the Regional Trial

Court of Manila, Branch 21, dated August 10, 1999 and October 14, 1999,
are set aside. Respondent judge is directed to reinstate and hear SP Proc.
No. 99-93396 for the allowance of the holographic will of Segundo Seangio.
The intestate case or SP. Proc. No. 98-90870 is hereby suspended until the
termination of the aforesaid testate proceedings.
No costs.
SO ORDERED.
G.R. No. L-19060

May 29, 1964

IGNACIO GERONA, MARIA CONCEPCION GERONA, FRANCISCO

GERONA
and
DELFIN
GERONA,petitioners,
vs.
CARMEN DE GUZMAN, JOSE DE GUZMAN, CLEMENTE DE GUZMAN,
FRANCISCO DE GUZMAN, RUSTICA DE GUZMAN, PACITA DE
GUZMAN and VICTORIA DE GUZMANrespondents.
Manuel
J.
Serapio
D. F. Castro and Associates for respondents.

for

petitioners.

CONCEPCION, J.:
Appeal by certiorari from a decision of the Court of Appeals, affirming that
of the Court of First Instance of Bulacan.
In the complaint, filed with the latter court on September 4, 1958,
petitioners herein, namely, Ignacio, Maria Concepcion, Francisco and Delfin,
all surnamed Gerona, alleged that they are the legitimate children of
Domingo Gerona and Placida de Guzman; that the latter, who died on
August 9, 1941 was a legitimate daughter of Marcelo de Guzman and his
first wife, Teodora de la Cruz; that after the death of his first wife, Marcelo
de Guzman married Camila Ramos, who begot him several children,
namely, respondents Carmen, Jose, Clemente, Francisco, Rustica, Pacita
and Victoria, all surnamed De Guzman; that Marcelo de Guzman died on
September 11, 1945; that subsequently, or on May 6, 1948, respondents
executed a deed of "extra-judicial settlement of the estate of the deceased
Marcelo de Guzman", fraudulently misrepresenting therein that they were
the only surviving heirs of the deceased Marcelo de Guzman, although they
well knew that petitioners were, also, his forced heirs; that respondents had
thereby succeeded fraudulently in causing the transfer certificates of title to

SPECPRO| RULE 75| 54

seven (7) parcels of land, issued in the name of said deceased, to be

cancelled and new transfer certificates of title to be issued in their own
name, in the proportion of 1/7th individual interest for each; that such
fraud was discovered by the petitioners only the year before the institution
of the case; that petitioners forthwith demanded from respondents their
(petitioners) share in said properties, to the extent of 1/8th interest
thereon; and that the respondents refused to heed said demand, thereby
causing damages to the petitioners. Accordingly, the latter prayed that
judgment be rendered nullifying said deed of extra-judicial settlement,
insofar as it deprives them of their participation of 1/18th of the properties
in litigation; ordering the respondents to reconvey to petitioners their
aforementioned share in said properties; ordering the register of deeds to
cancel the transfer certificates of title secured by respondents as above
stated and to issue new certificates of title in the name of both the
petitioners and the respondents in the proportion of 1/8th for the former
and 7/8th for the latter; ordering the respondents to render accounts of the
income of said properties and to deliver to petitioners their lawful share
therein; and sentencing respondents to pay damages and attorney's fees.
In their answer, respondents maintained that petitioners' mother, the
deceased Placida de Guzman, was not entitled to share in the estate of
Marcelo de Guzman, she being merely a spurious child of the latter, and
that petitioners' action is barred by the statute of limitations.
After appropriate proceedings, the trial court rendered a decision finding
that petitioners' mother was a legitimate child, by first marriage, of Marcelo
de Guzman; that the properties described in the complaint belonged to the
conjugal partnership of Marcelo de Guzman and his second wife, Camila
Ramos; and that petitioners' action has already prescribed, and,
accordingly, dismissing the complaint without costs. On appeal taken by the
petitioners, this decision as affirmed by the Court of Appeals, with costs
against them.
Petitioners maintain that since they and respondents are co-heirs of the
deceased Marcelo de Guzman, the present action for partition of the latter's
estate is not subject to the statute of limitations of action; that, if affected
by said statute, the period of four (4) years therein prescribed did not begin
to run until actual discovery of the fraud perpetrated by respondents,
which, it is claimed, took place in 1956 or 1957; and that accordingly, said
period had not expired when the present action was commenced on
November 4, 1958.

Petitioners' contention is untenable. Although, as a general rule, an action

for partition among co-heirs does not prescribe, this is true only as long as
the defendants do not hold the property in question under an adverse title
(Cordova vs. Cordova, L-9936, January 14, 1948). The statute of limitations
operates as in other cases, from the moment such adverse title is asserted
by the possessor of the property (Ramos vs. Ramos, 45 Phil. 362; Bargayo
v. Camumot, 40 Phil. 857; Castro v. Echarri, 20 Phil. 23).
When respondents executed the aforementioned deed of extra-judicial
settlement stating therein that they are the sole heirs of the late Marcelo de
Guzman, and secured new transfer certificates of title in their own name,
they thereby excluded the petitioners from the estate of the deceased, and,
consequently, set up a title adverse to them. And this is why petitioners
have brought this action for the annulment of said deed upon the ground
that the same is tainted with fraud. 1wph1.t
Although, there are some decisions to the contrary (Jacinto v. Mendoza, L12540, February 28, 1959; Cuison v. Fernandez, L-11764, January 31,
1959; Maribiles v. Quinto, L-10408, October 18, 1956; and Sevilla v. De los
Angeles, L-7745, November 18, 1955), it is already settled in this
jurisdiction that an action for reconveyance of real property based upon a
constructive or implied trust, resulting from fraud, may be barred by the
statute of limitations (Candelaria v. Romero, L-12149, September 30, 1960;
Alzona v. Capunita, L-10220, February 28, 1962).
Inasmuch as petitioners seek to annul the aforementioned deed of "extrajudicial settlement" upon the ground of fraud in the execution thereof, the
action therefor may be filed within four (4) years from the discovery of the
fraud (Mauricio v. Villanueva, L-11072, September 24, 1959). Such
discovery is deemed to have taken place, in the case at bar, on June 25,
1948, when said instrument was filed with the Register of Deeds and new
certificates of title were issued in the name of respondents exclusively, for
the registration of the deed of extra-judicial settlement constitute
constructive notice to the whole world (Diaz v. Gorricho, L-11229, March
29, 1958; Avecilla v. Yatco, L-11578, May 14, 1958; J.M. Tuason & Co., Inc.
v. Magdangal, L-15539, January 30, 1962; Lopez v. Gonzaga, L-18788,
January 31, 1964).
As correctly stated in the decision of the trial court:
In the light of the foregoing it must, therefore, be held that plaintiffs
learned at least constructively, of the alleged fraud committed against them

SPECPRO| RULE 75| 55

by defendants on 25 June 1948 when the deed of extra-judicial settlement

of the estate of the deceased Marcelo de Guzman was registered in the
registry of deeds of Bulacan, Plaintiffs' complaint in this case was not filed
until 4 November 1958, or more than 10 years thereafter. Plaintiff Ignacio
Gerona became of age on 3 March 1948. He is deemed to have discovered
defendants' fraud on 25 June 1948 and had, therefore, only 4 years from
the said date within which to file this action. Plaintiff Maria Concepcion
Gerona became of age on 8 December 1949 or after the registration of the
deed of extra-judicial settlement. She also had only the remainder of the
period of 4 years from December 1949 within which to commence her
action. Plaintiff Francisco Gerona became of age only on 9 January 1952 so
that he was still a minor when he gained knowledge (even if only
constructive) of the deed of extra-judicial settlement on 25 June 1948.
Likewise, plaintiff Delfin Gerona became of legal age on 5 August 1954, so
that he was also still a minor at the time he gained knowledge (although
constructive) of the deed of extra-judicial settlement on 25 June 1948.
Francisco Gerona and Delfin Gerona had, therefore, two years after the
removal of their disability within which to commence their action (Section
45, paragraph 3, in relation to Section 43, Act 190), that is, January 29,
1952, with respect to Francisco, and 5 August 1954, with respect to Delfin.
WHEREFORE, the decision of the Court of Appeals is hereby affirmed, with
costs against petitioners herein. It is so ordered.

G.R. No. L-46410 October 30, 1981

ERNESTO BALBIN, JOSE ORIA, MAURICIO NARAG, ROSA STA. MA.
SYTAMCO, BASILIO SYTAMCO, LEOCADIO SYTAMCO, AMADO V.
REYES, LYDIA V. REYES and APOLINARIO REYES, petitioners,
vs.
PEDRO C. MEDALLA and JOSEFINA MEDALLA and LINO BARBOSA,
Judge of the Court of First Instance of Mamburao, Occidental
Mindoro, respondents.

DE CASTRO, J.:
Petition for certiorari for the review of the decision of the Court of First
Instance of Occidental Mindoro, Branch I, the dispositive portion of which
reads:
WHEREFORE, judgment is hereby rendered as follows:
1. that the lands in controversy be, as they are hereby declared as the
private properties of the plaintiffs with the right of immediate possession;
2. that the Free Patents Nos. HV-85975, RV-86191, HV-85977, HV-85976,
HV-85978, HV-85974, EV-85432, EV-94632 and EV- 58631, and the
corresponding Original Certification of Titles Nos. P-3088, P-3089, P-3087,
P-4010, P-4011, P-3084, P-919, P-4060 and P-920 be, as they are hereby
declared null and void and therefor should be cancelled;
3. that defendants, ERNESTO BALBIN the HRS. of MAURICIO NARAG and
JOSE ORINA shall pay the plaintiffs as damages, the sum of TWO HUNDRED
(P200.00 PESOS per hectare possessed and cultivated by them from the
year 1963 until the possession of the property in question has been duly
surrendered to the plaintiffs, with interest at the rate of 6% per annum,

SPECPRO| RULE 75| 56

from the date of this decision, and because said defendants must have paid
the corresponding land taxes due them from the said date (1963),
whatever amounts paid by them from said date to the present should
correspondingly be deducted from the total amount of damages herein
awarded to plaintiffs; however, defendants, ROSA STA. MA. SYTAMCO,
BASILIO SYTAMCO, LEOCADIO SYTAMCO, AMADO V. REYES, LYDIA REYES
and APOLINARIO REYES, shall not pay any amount to plaintiffs as damages
as they are not in actual possession and cultivation of the area respectively
claimed by them and
4. that the defendants shall further pay the amount of ?2,000.00 as
attorney's fees and cost of the suit.
The following facts, quoting from private respondents' brief, are not
disputed:
Private respondents on June 19, 1962, purchased from the heirs of Juan
Ladao, a large parcel of agricultural land situated at Sitios of Bacong,
Tambunakan and Ibunan, Barrio Balansay Mamburao, Occidental, Mindoro.
Said respondents on June 14, 1963, filed an application for registration of
title of the said parcel of land. They utilized as evidence of ownership, the
Deed of Sale executed in their favor by the heirs of the late Juan Ladao
(Exhibit "F" thereof) the Informacion Posesoria issued in the name of Juan
Ladao Exhibit "H" in the LRC Case) together with the tax declaration and
tax receipts for said land covering the period from May 26, 1904, to
January 27, 1962 (Exhibits I to I-28 of said LRC Case) the private
respondents, after the sale, declared it for taxation purposes (Exhibits G
and G-1) of said LRC Case), and have continuously been paying the
corresponding taxes up to the present; the application for registration of
title aforesaid was opposed by petitioners on the ground that they were
previously issued Original Certificates of title thru either Homestead or Free
Patent grants. Petitioner Rosa Sta. Maria Sytamco was issued Original
Certificate of Title No. P-3088 (Exhibit "1" on June 26, 1963, under
Homestead Patent No. HV-85975; Basilio Sytamco was issued Original
Certificate of Title No. P-3089 (Exhibit "2" on June 26, 1963, under
Homestead Patent No. HV-86191; Leocadio Sytamco was issued Original
Certificate of Title No. P-3087 (Exhibit "3" on June 26, 1963, under
Homestead Patent No. HV-85977; Lydia Reyes was issued Original
Certificate of Title No. P- 4010 (Exhibit "4" on September 30, 1963), under
Homestead Patent No. HV-85978; Amado Reyes was issued Original
Certificate of Title No. P-4011 (Exhibit "5" on September 30, 1963), under
Homestead Patent No. V-85976; Apolinario Reyes was issued Original

Certificate of Title No. P-3084 (Exhibit "6") on June 18, 1963, under
Homestead Patent No. V-85974; Ernesto Balbin was issued Original
Certificate of Title No. P-919 (Exhibit "7"), under Free Patent No. V-58633;
Mauricio Narag was issued Original Certificate of Title No. P-4060 (Exhibit
118") on October 14, 1959, under Free Patent No. V-94632-1 Jose Orina
was issued Original Certificate of Title No. P-920 (Exhibit "9") on April 3,
1957 under Free Patent No. V-58631. 1
It appears that before the filing of the present action for reconveyance and
annulment of titles on August 30, 1973, land registration proceedings had
been instituted by private respondents covering the same lands involved in
the aforesaid action. Petitioners herein filed opposition to the application,
but because of the reservation of private respondents to file a separate
action for the cancellation of the original certificates of title issued to
petitioners herein, the land registration court abstained from ruling on the
petitioners' opposition.
In the pre-trial of the ordinary action from which the present petition
stemmed, the following stipulation of facts 2was entered into:
1. That the parcels of land subject matter of the instant case are Identified
as Lot Nos. 979, 980, 981, 982, 983, 984, 1013, 1016 and 1006, as shown
in plans Ap-10864 and Ap-10866; that these lots enumerated are embraced
in Pls-21, Mamburao Public Subdivision;
2. That the herein petitioners were among the oppositors in Land
Registration Case No. N-44, filed before the court (CFI Occidental Mindoro,
Branch I, Mamburao, Occidental Mindoro) on June 14,1963 by spouses
Pedro C. Medalla and Josefina O. Medalla;
3. That the opposition of petitioners is based on the ground that the
aforesaid lots respectively titled in their names are included in the land
subject matter of the Land Registration Case No. N-44;
4. That in the Decision rendered by the court in Land Registration Case No.
N-44 dated May 7, 1969 giving due course to the applicants' petition for
registration of title, the opposition of the petitioners were not resolved in
view of the reservation made by the applicants to file appropriate actions
for the cancellation of petitioners' homestead or patent titles.
5. That the land subject matter of the instant case are titled in the name of
petitioners and included in plans AP-10864 and Ap-10866, which plans were
submitted as evidence in the said Land Registration Case No. N-44, and

SPECPRO| RULE 75| 57

that the basis of herein respondents' claim in the instant case is the
possessory information title of Juan Ladao, registered on May 25, 1895
before the Register of Deeds of the Province of Occidental Mindoro.
Petitioners made the following assignment of errors:

I. That the respondent judge of the court a quo erred in holding the validity
of the possessory information title of Juan Ladao, consequently, erroneously
holding that the parcels of land covered by certificate of titles of petitioners
are private properties of private respondents.
II. That respondent judge of the court a quo erred in holding that private
respondents' cause of action has not prescribed.
III. The respondent judge of the court a quo erred in holding that private
respondents have personality and capacity to institute the action,
considering that the land in controversy were public lands at the time of
issuance of respective patents and titles of petitioners.
IV. The respondent judge of the court a quo erred in holding that the lower
court has jurisdiction over the nature and cause of action of private
respondents.
The first question to be resolved relates to the validity of the possessory
information title of Juan Ladao as raised in the first assignment of error
because petitioners' title to the land based on their respective homestead or
free patents is valid or not, depending on whether the land so disposed of
under the Public Land Act has not yet been segregated from the public
domain and passed into private ownership at the time of the issuance of the
patents. 4
As found uncontroverted by the lower court, there exists an Information
Posesoria in the name of Juan Ladao from whom private respondents
Medalla bought the land. It is also an admitted fact, at least impliedly, same
being not denied in petitioners' answer to the complaint, that
the Informacion Posesoria was registered on May 25, 1896. What
petitioners assail is the validity of the registration which they claim to have
been done beyond the period of one year from April 17, 1894 to April 17,
1895, as allegedly required by the Royal Decree of February 13, 1894
otherwise known as the Maura Law. The provision invoked by petitioners is
Article 21 of the aforementioned decree which reads:

Art. 21. A term of one year, without grace, is granted in order to perfect the
information referred to in Articles 19 and 20.
After the expiration of this period, the right of the cultivators and
possessors to obtain a gratuitous title shall be extinguished; the full
ownership of the land shag be restored to the State, or in a proper case to
the community of neighbors, and the said possessors and cultivators or
their predecessors in interest by a universal title shall only be entitled to
the right of redemption, if the land had been sold within the five years
subsequent to the lapse of the period.
The possessors not included within the provisions of this Chapter shall only
acquire for some time the ownership of the alienable lands of the royal
patrimony, in accordance with the common law.
It is the petitioners' contention that pursuant to the aforecited provision, all
grants of Spanish titles to lands including possessory information titles must
be registered within a period of one (1) year to be counted from April 17,
1894 until April 17, 1895, in accordance with Article 80 of the rules and
regulations implementing said Royal Decree of February 13, 1894; that this
requirement of the law finds support in the cases of Baltazar vs. Insular
Government, 40 Phil. 267 and Romero v. Director of Lands, 39 Phil. 814
from which petitioners quoted the following.
All such titles covered by possessory information title during the Spanish
Regime and not registeredwithin the non-extendible period of one year as
provided for in the Maura Law or the Royal Decree of February 13, 1894, it
reverts to the State or in a proper case to the public domain. (Emphasis
supplied).
Petitioners further contend that inasmuch as the possessory information
title of respondents, in the name of the late Juan Ladao, was registered
only on May 25, 1895 or 38 days from the last day of the one-year period
as provided in the Maura Law, the same was patently nun and void, and the
land covered by said possessory information title reverted to the State or to
the public domain of the government.
Petitioners' contention is without merit. Examining closely the two cases
invoked by petitioners, nowhere in said cases can be found the aforecited
passages quoted by the petitioners. These cases did not even speak
of registration as a requisite for the validity of possessory information title

SPECPRO| RULE 75| 58

obtained for purposes of Royal Decree of February 13, 1894 or the Maura
Law. What was actually stated in the two aforecited cases are the following

Regulations for the execution of the same decree. The requisites to be

fulfilled and steps to be taken are as follows:

A possessory information proceeding instituted in accordance with the

provisions of the Mortgage Law in force on July 14, 1893 neither constitutes
nor is clothed with the character of a gratuitous title to property, referred to
in Section 19 of the Royal Decree of February 13, 1894, which provides that
in order that an information may be valid for the purpose of the said Royal
Decree and produce the effects of a title of ownership, it is indispensable
what it be instituted within the unextended period of one year fixed in
sections 19 and 20 of the said Royal Decree (Aguinaldo de Romero vs.
Director of Land 39 Phil. 814).

1. The holder of the land must prove possession or cultivation of the land
under the conditions presented by Article 19 of the said decree.

The time within which advantage could be taken of the Maura Law expired
on April 17, 1895. Almeida obtained dominion over 526 hectares of lands
on June 9, 1895. The possessory information for 815 hectares was issued
to Almeida on December 14, 1896 Almeida was thus not in possession until
after the expiration of the period specified by the Maura Law for the
issuance of possessory titles and his possessory information was of even a
later date and made to cover a large excess of land. Under these
conditions, the possessory information could not even furnish, as in other
cases, prima facie evidence of the fact that at the time of the execution the
claimant was in possession, which it would be possible to convert into
ownership by uninterrupted possession for the statutory period. (Baltazar
vs. Insular Government 40 Phil. 267).
From the foregoing, it is made clear that what was required is merely the
institution of a possessory information proceeding within the one-year
period as provided in the Royal Decree of February 13, 1894 or the Maura
Law. This fact is bolstered by the commentaries of Prof. Francisco Venture
in his book Land Titles and Deeds, a book widely used by law practitioners
and in the law schools. 5 Thus
A distinction should be made between the informacion posesoria issued in
accordance with Articles 390, 391, and 392 of the Spanish Mortgage Law in
connection with Articles 19, 20 and 21 of the Royal Decree of February 13,
1894 and the informacion posesoria issued in accordance with Articles 390,
391 and 392 of said law without regard to the aforementioned decree. The
former was the basis of a gratuitous title of ownership which was issued
upon application of the grantee and the possessory title provided he
complied with the requisites prescribed by Articles 19 and 21 of the
aforesaid decree and Articles 81 and 82 of the Chapter IV of the

2. The holder of the land had to institute the possessory information

proceeding within one year from the date (April 1 7, 1894) of the
publication of the Royal Decree of February 13, 1894 (Article 21, Royal
Decree of February 13, 1894) (Emphasis supplied).
3. After obtaining the informacion posesoria, the holder of the land had to
file a petition with the General Director of Civil Administration, attaching
thereto a certified copy of the informacion posesoria asking for the issuance
in his name of a gratuitous title of ownership. If the said office was satisfied
that the applicant fulfilled the conditions prescribed by the law, a gratuitous
title of ownership was issued to him. Such title oftentimes called
composicion gratuita was to be registered in the Registry of Property of the
province where the land was located. ... (pp. 30-31).
Even Section 21 of the Maura Law invoked by petitioners themselves does
not speak of registration, but merely perfection of information title, which,
as already discuss may be done by instituting possessory information
proceedings within the said one-year period fixed by the aforementioned
Royal Decree of February 13, 1894, possibly ending in the registration of
the title, depending on the evidence presented.
In the case at bar, it is admitted and uncontroverted that there exists
an informacion posesoria registered on May 25, 1895 in the name of Juan
Ladao. This registration of the informacion posesoria must have followed as
the result or outcome of a possessory information proceeding instituted by
the late Juan Ladao in accordance with Section 19 of the said Royal Decree
of February 13, 1894, and commenced within the one year period, pursuant
to Section 21 of the same decree. Otherwise, if this were not so, no
registration of the said informacion posesoriamight have been effected in
the Registry of Deeds of the Province of Occidental Mindoro, for if the
registration thereof on May 25, 1895 was violative of the decree, for being
beyond the one-year period from April 17, 1894 to April 17, 1895, the
Register of Deeds would certainly not have performed an illegal act.
Moreover, registration of title usually follows a specified proceeding. The
registration is the act of a government official and may not be controlled by

SPECPRO| RULE 75| 59

the private party applying for registration of his title. What is under his
control is the commencement or the institution of the prescribed proceeding
for the perfection of his title for which he may be penalized for tardiness of
compliance. The institution of the proper proceeding is clearly what is
required to be done within the one-year period by the party seeking to
perfect his title, not the registration thereof, if found legally warranted. By
its nature, therefore, registration may not necessarily be within the same
one-year period. If the required proceedings are instituted, as they have to
be before the corresponding title may be issued and registered, the
registration may be possible of accomplishment only after the one-year
period, considering the number of proceedings that might have been
instituted within the non-extendible period of one year. This is what
apparently happened in the instant case with the proceeding to perfect the
title commenced within the one-year period, but the registration of the
possessory information title done thereafter, or on May 25, 1895, after the
prescribed proceeding which is naturally featured with the requisite notice
and hearing. 6
The next question relates to the issue of prescription as raised in the
second assignment of error.
It is the contention of petitioners that the present action for reconveyance
has already prescribed. They developed this theory in their Reply to
Rejoinder 7 to Motion to Dismiss, as follows:
Even granting for the sake of argument that plaintiffs' possessory
information title is valid and effective, the cause of action for reconveyance
had already prescribed because such action can only be instituted within
four (4) years after discovery of the alleged fraud. (Sec. 55, Act 496; Vera
vs. Vera, 47 O.G. 5060; Tayao vs. Robles, 7 4 Phil. 114) I t will be noted
from plaintiffs' complaint that the patent of Ernesto Balbin and Jose Orina
were issued on December 6, 1956 so that if any action for reconveyance at
all could be instituted against the two defendants, the same should be
instituted before or during the period of four years or up to 6 December,
1960. According to the complaint, the patents of Rosa Sta. Ma. Sytamco,
Basilio Sytamco and Leocadio Sytamco were issued on 17 April 1959, so
that if any action for reconveyance can lie against them, the same should
be instituted within four years or up to 17 April, 1963. In so far as the free
patent of Amado V. Reyes, Lydia Reyes and Apolinario Reyes, it appears
that said patents were issued on 3 March, 1959, so that if any action for
reconveyance should be filed, it should be on or before March 3, 1963. And
lastly, the patent of Mauricio Narag was issued on 14 October, 1959, so that

if any action for reconveyance should be instituted, the same should be filed
on or before October 14, 1963.
Plaintiffs' complaint was filed only on August 30, 1973, or more than 14
years had already elapsed from the date of the issuance of the respective
titles of the defendants. Consequently, the action for reconveyance of land
titled in the names of defendants had already prescribed.
An action for reconveyance of real property resulting from fraud may be
barred by the statute of limitations, which requires that the action shall be
filed within four (4) years from the discovery of the fraud. Such discovery is
deemed to have taken place when the petitioners herein were issued
original certificate of title through either homestead or free patent grants,
for the registration of said patents constitute constructive notice to the
whole world. 8
In the case at bar, the latest patent was issued on October 14, 1959. There
is, therefore, merit in petitioner's contention that "if any action for
reconveyance should be commenced, the same should be filed on or before
October 14, 1963. But private respondents' complaint for reconveyance and
annulment of titles with damages was filed only on August 30, 1973, or
more than 14 years had already elapsed from the date of the issuance of
the respective titles of the defendants. Consequently, the action for
reconveyance of land titled in the names of defendants (petitioners herein)
had already prescribed."
Even from the viewpoint of acquisitive prescription, petitioners have
acquired title to the nine lots in question by virtue of possession in concept
of an owner. Petitioners herein were given either free patent or homestead
patent, and original certificates of title in their names issued to them, the
latest on October 14, 1959. Said public land patents must have been issued
after the land authorities had found out, after proper investigation, that
petitioners were in actual possession of the nine lots in question,
particularly in the case of the free patents. If petitioners were in actual
possession of the nine lots, then the heirs of Ladao and the Medalla spouses
were never in actual possession of the said lots. If the Medalla spouses
were not in actual possession of the nine lots, the alleged possessory
information would not justify the registration of the said nine lots in the
names of the Medallas.
A possessory information has to be confirmed in a land registration
proceeding, as required in Section 19 of Act No. 496. "A possessory

SPECPRO| RULE 75| 60

information alone, without a showing of actual, public and adverse

possession of the land under claim of ownership, for a sufficient period of
time, in accordance with the law, is ineffective as a mode of acquiring title
under Act No. 496." 9 Although converted into a title of absolute ownership,
an informacion posesoria may still be lost by prescription. 10
On the other hand, the Torrens Titles issued to the petitioners on the basis
of the homestead patents and free patents obtained by them had become
indefeasible. 11
It would result from what has been said on the two main assignments of
errors that petitioners herein have a better right to the land in question
than the Medalla spouses.
WHEREFORE, the judgment appealed from should be reversed and the
complaint of the Medallas should be, as it is hereby dismissed with costs
against appellees.
SO ORDERED.

G.R. No. L-36850 September 23, 1982

ROSARIO
PEREZ,
FRANCISCA,
JOSE,
ROSA,
TRINIDAD,
ENCARNACION, LEONCIA, JUAN TOMAS, ANASTACIO, MOISES and
MANUEL
all
surnamed
ARClLLAS, plaintiffs-appellants.
vs.
PILAR ONG CHUA, RUFINA ONG CHUA, JUSTINO ONG CHUA,
ALFONSO ONG CHUA JR., BENITA ONG CHUA, ROSA ONG CHUA,
ASUNCION ONG CHUA, FRANCISCO ONG CHUA, and TERESITA ONG
CHUA,defendant-appellees.

ESCOLIN, J.:
Appeal from the decision of the Court of First Instance of Zamboanga,
dismissing the appellants' complaint for reconveyance on grounds of
prescription and laches.
This appeal was originally brought to the Court of Appeals, but was certified
to this Court because only questions of law are raised therein.
The following facts are not disputed:
On April 13, 1928, Francisco Arcillas and his wife Rosario Perez executed a
deed of mortgage in favor of Nanon L. Worcester over twenty-three (23)
parcels of land located in Zamboanga City, registered in the names of the
spouses Arcallas, to secure their loan of US $13,500.00. Under the
contract, the loan was payable in installments to the creditor-mortgagee for
a period of five years, "the first installment thereof to be paid on or before

SPECPRO| RULE 75| 61

three (3) months after the date of this instrument and the remaining
installments in regular quarterly intervals thereafter." 1
For violation of the aforestated stipulation, an action for foreclosure of
mortgage was instituted sometime in 1930 by Mrs. Worcester against the
spouses Arcillas in the Court of First Instance of Zamboanga. During the
pendency of the action, or on May 4, 1930, Francisco Arcillas died. He was
survived by the plaintiffs herein, namely: his widow Rosario Perez, and their
children Francisco, Jose, Rosa, Trinidad, Encarnacion, Leoncia, Juan, Tomas,
Anastacio, Moises and Manuel, all surnamed Arcillas.
As no notice of death of defendant Francisco Arcillas was filed with the
court, the trial Judge proceeded with the case without substitution of the
deceased by his legal representative or heirs. On August 23, 1930, a
judgment was rendered in favor of the mortgagee. A writ of execution was
thereafter issued, and in the ensuing auction sale conducted on September
19, 1930, the properties encumbered were sold to Mrs. Worcester as
highest bidder. On October 6, 1930, the court issued the corresponding
order of confirmation of sale; and upon registration of the sheriff's
certificate of sale and the order of confirmation on November 24, 1930, the
certificates of title of the spouses Arcillas were cancelled and, in lieu
thereof, transfer certificates of title were issued in the name of Mrs.
Worcester.
Two days later, Mrs. Worcester sold the said lands to Enrique Ong Chua,
who obtained new certificates of title in his name, and possessed the said
properties as owner. Upon Enrique's demise, the lands in question passed to
his heirs: Pilar, Rufina, Justino Alfonso, Benita, Rosa, Asuncion, Francisco
and Teresita, all surnamed Ong Chua, who have been in continuous, open
and adverse possession of these lands up to the present time.
Thirty-eight years thereafter, or on October 14, 1968, Rosario Perez and her
children filed the instant action in the Court of First Instance of Zamboanga
against the Ong Chuas for annulment of their certificates of title and for
reconveyance, and accounting of the fruits of, the twenty-three parcels of
land in question. The complaint mainly alleged

That the Honorable Judge at the time, Nanon L. Worcester and Enrique Ong
Chua, predecessor-in-interest of the herein defendants, by conspiring
together and mutually helping one another, were guilty of fraud and/or
committed mistake in transferring and acquiring these properties, to the
damage and prejudice of the herein plaintiffs, thereby creating an implied
trust for the benefit of the latter. 2
As heretofore stated, the court a quo, sustaining the appellees' defenses of
prescription and laches, ultimately dismissed the complaint.
We find no error committed by the trial court in dismissing the complaint.
The appellants' cause of action to cancel the certificates of title in question
accrued from 1930, the year of the recording of the sheriff's deed and the
issuance of the certificates of title. Thirty-eight years had thus elapsed
before appellants instituted the present action on October 14, 1968. The
continuous and public assertion of title by the appellees and their
predecessor-in-interest during this period of time was more than sufficient
to extinguish the appellants' action. The period of extinctive prescription
under Chapter III of the Code of Civil Procedure, the law in force at the
time, was only ten years.
Appellants contend, however, that the judgment rendered by the court in
the foreclosure proceedings in 1930 was erroneous because no proper
substitution was made of Francisco Arcillas, one of the defendants who died
during the pendency of the action; and since the certificates of title
obtained by Mrs. Worcester under said erroneous judgment were subject to
an implied trust, which is continuing and subsisting, the appellants' action
for reconveyance cannot prescribe because prescription does not run
against their predecessor's title registered under Act 496.
Appellants' thesis overlooks the settled doctrine in this jurisdiction that an
action to enforce an implied trust may be barred not only by prescription for
10 years 3 but also by laches. 4 Implied trusts and express trusts are
distinguishable. An express trust, which is created by the intention of the
parties, disables the trustee from acquiring for his own benefit a property
committed to his custody or management at least while he does not
openly repudiate the trust and makes such repudiation known to the
beneficiary. Upon the other hand, in a constructive trust, which is
exclusively created by law, laches constitutes the bar to an action to
enforce the trust, and repudiation is not required, unless there is
concealment of the facts giving rise to the trust. 5 Thus, in Mejia de Lucas
vs. Gampoa 6 this Court held that while a person may not acquire title to a

SPECPRO| RULE 75| 62

registered property through continuing adverse possession in derogation of

the title of the original registered owner, nevertheless, such owner or his
heirs, by their inaction and neglect over a long period of time, may lose the
right to recover the possession of the property and the title thereto from
the defendants.
In Go Chi Gun, et al. vs. Co Cho et al. 7, this Court spelled out the four
elements of the equitable defense of laches, to wit: (1) conduct on the part
of the defendant, or of one under whom he claims, giving rise to the
situation of which complaint is made and for which the complainant seeks
remedy; (2) delay in asserting the complainant's rights, the complainant
having had knowledge or notice of the defendants' conduct and having been
afforded an opportunity to institute a suit; (3) lack of knowledge or notice
on the part of the defendant that the complainant would assert the right on
which he bases his suit; and (4) injury or prejudice to the defendant in the
events relief is accorded to the complainant, or the suit is not held to be
barred.
In the case at bar, these four elements are present. As pointed out, Mrs.
Worcester, after having acquired the property at public auction and having
obtained the certificates of title in her name, sold on November 26, 1930
the properties in question to Enrique Ong Chua, the appellees'
predecessors-in-interest. Appellants allowed almost four decades to lapse
before taking any remedial action. Because of their passivity and inaction
during this entire period, appellees were made to feel secure in their belief
that their late father had rightly acquired the lands in question and that no
action would be filed against them. They were thus induced to spend time,
effort and money in cultivating the land, paying the taxes, and introducing
improvements therein. Undoubtedly, they would be prejudiced if the instant
action for reconveyance is not barred. It is the established principle in this
jurisdiction that inaction and neglect of a party to assert a right can convert
what otherwise could be a valid claim into a stale demand.
WHEREFORE, the order appealed from is hereby affirmed, with costs
against the appellants.
SO ORDERED.

G.R. No. L-56340 June 24, 1983

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

PLANA, J.:
I. FACTS:
This is a case of hereditary succession.
Alvaro Pastor, Sr. (PASTOR, SR.), a Spanish subject, died in Cebu City on
June 5, 1966, survived by his Spanish wife Sofia Bossio (who also died on
October 21, 1966), their two legitimate children Alvaro Pastor, Jr. (PASTOR,
JR.) and Sofia Pastor de Midgely (SOFIA), and an illegitimate child, not
natural, by the name of Lewellyn Barlito Quemada QUEMADA PASTOR, JR.

SPECPRO| RULE 75| 63

is a Philippine citizen, having been naturalized in 1936. SOFIA is a Spanish

subject. QUEMADA is a Filipino by his mother's citizenship.
On November 13, 1970, QUEMADA filed a petition for the probate and
allowance of an alleged holographic will of PASTOR, SR. with the Court of
First Instance of Cebu, Branch I (PROBATE COURT), docketed as SP No.
3128-R. The will contained only one testamentary disposition: a legacy in
favor of QUEMADA consisting of 30% of PASTOR, SR.'s 42% share in the
operation by Atlas Consolidated Mining and Development Corporation
(ATLAS) of some mining claims in Pina-Barot, Cebu.
On November 21, 1970, the PROBATE COURT, upon motion of QUEMADA
and after an ex parte hearing, appointed him special administrator of the
entire estate of PASTOR, SR., whether or not covered or affected by the
holographic will. He assumed office as such on December 4, 1970 after
filing a bond of P 5,000.00.
On December 7, 1970, QUEMADA as special administrator, instituted
against PASTOR, JR. and his wife an action for reconveyance of alleged
properties of the estate, which included the properties subject of the legacy
and which were in the names of the spouses PASTOR, JR. and his wife,
Maria Elena Achaval de Pastor, who claimed to be the owners thereof in
their own rights, and not by inheritance. The action, docketed as Civil Case
No. 274-R, was filed with the Court of First Instance of Cebu, Branch IX.
On February 2, 1971, PASTOR, JR. and his sister SOFIA filed their
opposition to the petition for probate and the order appointing QUEMADA as
special administrator.
On December 5, 1972, the PROBATE COURT issued an order allowing the
will to probate. Appealed to the Court of Appeals in CA-G.R. No. 52961- R,
the order was affirmed in a decision dated May 9, 1977. On petition for
review, the Supreme Court in G.R. No. L-46645 dismissed the petition in a
minute resolution dated November 1, 1977 and remanded the same to the
PROBATE COURT after denying reconsideration on January 11, 1978.
For two years after remand of the case to the PROBATE COURT, QUEMADA
filed pleading after pleading asking for payment of his legacy and seizure of
the properties subject of said legacy. PASTOR, JR. and SOFIA opposed
these pleadings on the ground of pendency of the reconveyance suit with
another branch of the Cebu Court of First Instance. All pleadings remained
unacted upon by the PROBATE COURT.

On March 5, 1980, the PROBATE COURT set the hearing on the intrinsic
validity of the will for March 25, 1980, but upon objection of PASTOR, JR.
and SOFIA on the e ground of pendency of the reconveyance suit, no
hearing was held on March 25. Instead, the PROBATE COURT required the
parties to submit their respective position papers as to how much
inheritance QUEMADA was entitled to receive under the wig. Pursuant
thereto, PASTOR. JR. and SOFIA submitted their Memorandum of
authorities dated April 10, which in effect showed that determination of how
much QUEMADA should receive was still premature. QUEMADA submitted
his Position paper dated April 20, 1980. ATLAS, upon order of the Court,
submitted a sworn statement of royalties paid to the Pastor Group of tsn
from June 1966 (when Pastor, Sr. died) to February 1980. The statement
revealed that of the mining claims being operated by ATLAS, 60% pertained
to the Pastor Group distributed as follows:
1. A. Pastor, Jr. ...................................40.5%
2. E. Pelaez, Sr. ...................................15.0%
3. B. Quemada .......................................4.5%
On August 20, 1980, while the reconveyance suit was still being litigated in
Branch IX of the Court of First Instance of Cebu, the PROBATE COURT
issued the now assailed Order of Execution and Garnishment, resolving the
question of ownership of the royalties payable by ATLAS and ruling in effect
that the legacy to QUEMADA was not inofficious. [There was absolutely no
statement or claim in the Order that the Probate Order of December 5,
1972 had previously resolved the issue of ownership of the mining rights of
royalties thereon, nor the intrinsic validity of the holographic will.]
The order of August 20, 1980 found that as per the holographic will and a
written acknowledgment of PASTOR, JR. dated June 17, 1962, of the above
60% interest in the mining claims belonging to the Pastor Group, 42%
belonged to PASTOR, SR. and only 33% belonged to PASTOR, JR. The
remaining 25% belonged to E. Pelaez, also of the Pastor Group. The
PROBATE COURT thus directed ATLAS to remit directly to QUEMADA the
42% royalties due decedent's estate, of which QUEMADA was authorized to
retain 75% for himself as legatee and to deposit 25% with a reputable
banking institution for payment of the estate taxes and other obligations of
the estate. The 33% share of PASTOR, JR. and/or his assignees was
ordered garnished to answer for the accumulated legacy of QUEMADA from

SPECPRO| RULE 75| 64

the time of PASTOR, SR.'s death, which amounted to over two million
pesos.
The order being "immediately executory", QUEMADA succeeded in obtaining
a Writ of Execution and Garnishment on September 4, 1980, and in serving
the same on ATLAS on the same day. Notified of the Order on September 6,
1980, the oppositors sought reconsideration thereof on the same date
primarily on the ground that the PROBATE COURT gravely abused its
discretion when it resolved the question of ownership of the royalties and
ordered the payment of QUEMADA's legacy after prematurely passing upon
the intrinsic validity of the will. In the meantime, the PROBATE COURT
ordered suspension of payment of all royalties due PASTOR, JR. and/or his
assignees until after resolution of oppositors' motion for reconsideration.
Before the Motion for Reconsideration could be resolved, however, PASTOR,
JR., this time joined by his wife Ma. ELENA ACHAVAL DE PASTOR, filed with
the Court of Appeals a Petition for certiorari and Prohibition with a prayer
for writ of preliminary injunction (CA-G.R. No. SP- 11373-R). They assailed
the Order dated August 20, 1980 and the writ of execution and
garnishment issued pursuant thereto. The petition was denied on November
18, 1980 on the grounds (1) that its filing was premature because the
Motion for Reconsideration of the questioned Order was still pending
determination by the PROBATE COURT; and (2) that although "the rule that
a motion for reconsideration is prerequisite for an action for certiorari is
never an absolute rule," the Order assailed is "legally valid. "
On December 9, 1980, PASTOR, JR. and his wife moved for reconsideration
of the Court of Appeal's decision of November 18, 1980, calling the
attention of the appellate court to another order of the Probate Court dated
November 11, 1980 (i.e., while their petition for certiorari was pending
decision in the appellate court), by which the oppositors' motion for
reconsideration of the Probate Court's Order of August 20, 1980 was
denied. [The November 11 Order declared that the questions of intrinsic
validity of the will and of ownership over the mining claims (not the
royalties alone) had been finally adjudicated by the final and executory
Order of December 5, 1972, as affirmed by the Court of Appeals and the
Supreme Court, thereby rendering moot and academic the suit for
reconveyance then pending in the Court of First Instance of Cebu, Branch
IX. It clarified that only the 33% share of PASTOR, JR. in the royalties (less
than 7.5% share which he had assigned to QUEMADA before PASTOR, SR.
died) was to be garnished and that as regards PASTOR, SR.'s 42% share,
what was ordered was just the transfer of its possession to the custody of

the PROBATE COURT through the special administrator. Further, the Order
granted QUEMADA 6% interest on his unpaid legacy from August 1980 until
fully paid.] Nonetheless, the Court of Appeals denied reconsideration.
Hence, this Petition for Review by certiorari with prayer for a writ of pre y
injunction, assailing the decision of the Court of Appeals dated November
18, 1980 as well as the orders of the Probate Court dated August 20, 1980,
November 11, 1980 and December 17, 1980, Med by petitioners on March
26, 1981, followed by a Supplemental Petition with Urgent Prayer for
Restraining Order.
In April 1981, the Court (First Division) issued a writ of preliminary
injunction, the lifting of which was denied in the Resolution of the same
Division dated October 18, 1982, although the bond of petitioners was
increased from P50,000.00 to P100,000.00.
Between December 21, 1981 and October 12, 1982, private respondent
filed seven successive motions for early resolution. Five of these motions
expressly prayed for the resolution of the question as to whether or not the
petition should be given due course.
On October 18, 1982, the Court (First Division) adopted a resolution stating
that "the petition in fact and in effect was given due course when this case
was heard on the merits on September 7, (should be October 21, 1981)
and concise memoranda in amplification of their oral arguments on the
merits of the case were filed by the parties pursuant to the resolution of
October 21, 1981 . . . " and denied in a resolution dated December 13,
1982, private respondent's "Omnibus motion to set aside resolution dated
October 18, 1982 and to submit the matter of due course to the present
membership of the Division; and to reassign the case to another ponente."
Upon Motion for Reconsideration of the October 18, 1982 and December 13,
1982 Resolutions, the Court en banc resolved to CONFIRM the questioned
resolutions insofar as hey resolved that the petition in fact and in effect had
been given due course.
II. ISSUES:
Assailed by the petitioners in these proceedings is the validity of the Order
of execution and garnishment dated August 20, 1980 as well as the Orders
subsequently issued allegedly to implement the Probate Order of December
5, 1972, to wit: the Order of November 11, 1980 declaring that the Probate
Order of 1972 indeed resolved the issues of ownership and intrinsic validity

SPECPRO| RULE 75| 65

of the will, and reiterating the Order of Execution dated August 20, 1980;
and the Order of December 17, 1980 reducing to P2,251,516.74 the
amount payable to QUEMADA representing the royalties he should have
received from the death of PASTOR, SR. in 1966 up to February 1980.
The Probate Order itself, insofar as it merely allowed the holographic will in
probate, is not questioned. But petitioners denounce the Probate Court for
having acted beyond its jurisdiction or with grave abuse of discretion when
it issued the assailed Orders. Their argument runs this way: Before the
provisions of the holographic win can be implemented, the questions of
ownership of the mining properties and the intrinsic validity of the
holographic will must first be resolved with finality. Now, contrary to the
position taken by the Probate Court in 1980 i.e., almost eight years after
the probate of the will in 1972 the Probate Order did not resolve the two
said issues. Therefore, the Probate Order could not have resolved and
actually did not decide QUEMADA's entitlement to the legacy. This being so,
the Orders for the payment of the legacy in alleged implementation of the
Probate Order of 1972 are unwarranted for lack of basis.
Closely related to the foregoing is the issue raised by QUEMADA The
Probate Order of 1972 having become final and executory, how can its
implementation (payment of legacy) be restrained? Of course, the question
assumes that QUEMADA's entitlement to the legacy was finally adjudged in
the Probate Order.

(a) In a special proceeding for the probate of a will, the issue by and large
is restricted to the extrinsic validity of the will, i.e., whether the testator,
being of sound mind, freely executed the will in accordance with the
formalities prescribed by law. (Rules of Court, Rule 75, Section 1; Rule 76,
Section 9.) As a rule, the question of ownership is an extraneous matter
which the Probate Court cannot resolve with finality. Thus, for the purpose
of determining whether a certain property should or should not be included
in the inventory of estate properties, the Probate Court may pass upon the
title thereto, but such determination is provisional, not conclusive, and is
subject to the final decision in a separate action to resolve title. [3 Moran,
Comments on the Rules of Court (1980 ed.), p. 458; Valero Vda. de
Rodriguez vs. Court of Appeals, 91 SCRA 540.]
(b) The rule is that execution of a judgment must conform to that decreed
in the dispositive part of the decision. (Philippine-American Insurance Co.
vs. Honorable Flores, 97 SCRA 811.) However, in case of ambiguity or
uncertainty, the body of the decision may be scanned for guidance in
construing the judgment. (Heirs of Presto vs. Galang, 78 SCRA 534; Fabular
vs. Court of Appeals, 119 SCRA 329; Robles vs. Timario. 107 Phil. 809.)
The Order sought to be executed by the assailed Order of execution is the
Probate Order of December 5, 1972 which allegedly resolved the question
of ownership of the disputed mining properties. The said Probate Order
enumerated the issues before the Probate Court, thus:

On the merits, therefore, the basic issue is whether the Probate Order of
December 5, 1972 resolved with finality the questions of ownership and
intrinsic validity. A negative finding will necessarily render moot and
academic the other issues raised by the parties, such as the jurisdiction of
the Probate Court to conclusively resolve title to property, and the
constitutionality and repercussions of a ruling that the mining properties in
dispute, although in the name of PASTOR, JR. and his wife, really belonged
to the decedent despite the latter's constitutional disqualification as an
alien.

Unmistakably, there are three aspects in these proceedings: (1) the probate
of the holographic will (2) the intestate estate aspect; and (3) the
administration proceedings for the purported estate of the decedent in the
Philippines.

On the procedural aspect, placed in issue is the propriety of certiorari as a

means to assail the validity of the order of execution and the implementing
writ.

Specifically placed in issue with respect to the probate proceedings are: (a)
whether or not the holographic will (Exhibit "J") has lost its efficacy as the
last will and testament upon the death of Alvaro Pastor, Sr. on June 5,
1966, in Cebu City, Philippines; (b) Whether or not the said will has been
executed with all the formalities required by law; and (c) Did the late
presentation of the holographic will affect the validity of the same?

III. DISCUSSION:
1. Issue of Ownership

In its broad and total perspective the whole proceedings are being
impugned by the oppositors on jurisdictional grounds, i.e., that the fact of
the decedent's residence and existence of properties in the Philippines have
not been established.

SPECPRO| RULE 75| 66

Issues In the Administration Proceedings are as follows: (1) Was the exparte appointment of the petitioner as special administrator valid and
proper? (2) Is there any indispensable necessity for the estate of the
decedent to be placed under administration? (3) Whether or not petition is
qualified to be a special administrator of the estate; and (4) Whether or not
the properties listed in the inventory (submitted by the special
administrator but not approved by the Probate Court) are to be excluded.
Then came what purports to be the dispositive portion:
Upon the foregoing premises, this Court rules on and resolves some of the
problems and issues presented in these proceedings, as follows:
(a) The Court has acquired jurisdiction over the probate proceedings as
it hereby allows and approves the so-called holographic will of testator
Alvaro Pastor, Sr., executed on July 31, 1961 with respect to its extrinsic
validity, the same having been duly authenticated pursuant to the requisites
or solemnities prescribed by law. Let, therefore, a certificate of its
allowance be prepared by the Branch Clerk of this Court to be signed by
this Presiding Judge, and attested by the seal of the Court, and thereafter
attached to the will, and the will and certificate filed and recorded by the
clerk. Let attested copies of the will and of the certificate of allowance
thereof be sent to Atlas Consolidated Mining & Development Corporation,
Goodrich Bldg., Cebu City, and the Register of Deeds of Cebu or of Toledo
City, as the case may be, for recording.
(b) There was a delay in the granting of the letters testamentary or of
administration for as a matter of fact, no regular executor and/or
administrator has been appointed up to this time and - the appointment of
a special administrator was, and still is, justified under the circumstances to
take possession and charge of the estate of the deceased in the Philippines
(particularly in Cebu) until the problems causing the delay are decided and
the regular executor and/or administrator appointed.
(c) There is a necessity and propriety of a special administrator and later
on an executor and/or administrator in these proceedings, in spite of this
Court's declaration that the oppositors are the forced heirs and the
petitioner is merely vested with the character of a voluntary heir to the
extent of the bounty given to him (under) the will insofar as the same will
not prejudice the legitimes of the oppositor for the following reasons:

1. To submit a complete inventory of the estate of the decedent-testator

Alvaro Pastor, Sr.
2. To administer and to continue to put to prolific utilization of the
properties of the decedent;
3. To keep and maintain the houses and other structures and belonging to
the estate, since the forced heirs are residing in Spain, and prepare them
for delivery to the heirs in good order after partition and when directed by
the Court, but only after the payment of estate and inheritance taxes;
(d) Subject to the outcome of the suit for reconveyance of ownership and
possession of real and personal properties in Civil Case No. 274-T before
Branch IX of the Court of First Instance of Cebu, the intestate estate
administration aspect must proceed, unless, however, it is duly proven by
the oppositors that debts of the decedent have already been paid, that
there had been an extrajudicial partition or summary one between the
forced heirs, that the legacy to be given and delivered to the petitioner
does not exceed the free portion of the estate of the testator, that the
respective shares of the forced heirs have been fairly apportioned,
distributed and delivered to the two forced heirs of Alvaro Pastor, Sr., after
deducting the property willed to the petitioner, and the estate and
inheritance taxes have already been paid to the Government thru the
Bureau of Internal Revenue.
The suitability and propriety of allowing petitioner to remain as special
administrator or administrator of the other properties of the estate of the
decedent, which properties are not directly or indirectly affected by the
provisions of the holographic will (such as bank deposits, land in Mactan
etc.), will be resolved in another order as separate incident, considering
that this order should have been properly issued solely as a resolution on
the issue of whether or not to allow and approve the aforestated will.
(Emphasis supplied.)
Nowhere in the dispositive portion is there a declaration of ownership of
specific properties. On the contrary, it is manifest therein that ownership
was not resolved. For it confined itself to the question of extrinsic validity of
the win, and the need for and propriety of appointing a special
administrator. Thus it allowed and approved the holographic win "with
respect to its extrinsic validity, the same having been duly authenticated
pursuant to the requisites or solemnities prescribed by law." It declared
that the intestate estate administration aspect must proceed " subject to

SPECPRO| RULE 75| 67

the outcome of the suit for reconveyance of ownership and possession of

real and personal properties in Civil Case 274-T before Branch IX of the CFI
of Cebu." [Parenthetically, although the statement refers only to the
"intestate" aspect, it defies understanding how ownership by the estate of
some
properties
could be
deemed finally resolved for purposes
of testate administration, but not so for intestate purposes. Can the estate
be the owner of a property for testate but not for intestate purposes?] Then
again, the Probate Order (while indeed it does not direct the
implementation of the legacy) conditionally stated that the intestate
administration aspect must proceed "unless . . . it is proven . . . that the
legacy to be given and delivered to the petitioner does not exceed the free
portion of the estate of the testator," which clearly implies that the issue of
impairment of legitime (an aspect of intrinsic validity) was in fact not
resolved. Finally, the Probate Order did not rule on the propriety of allowing
QUEMADA to remain as special administrator of estate properties not
covered by the holographic will, "considering that this (Probate) Order
should have been properly issued solely as a resolution on the issue of
whether or not to allow and approve the aforestated will. "
(c) That the Probate Order did not resolve the question of ownership of the
properties listed in the estate inventory was appropriate, considering that
the issue of ownership was the very subject of controversy in the
reconveyance suit that was still pending in Branch IX of the Court of First
Instance of Cebu.
(d) What, therefore, the Court of Appeals and, in effect, the Supreme Court
affirmed en toto when they reviewed the Probable Order were only the
matters properly adjudged in the said Order.
(e) In an attempt to justify the issuance of the Order of execution dated
August 20, 1980, the Probate Court in its Order of November 11, 1980
explained that the basis for its conclusion that the question of ownership
had been formally resolved by the Probate Order of 1972 are the findings in
the latter Order that (1) during the lifetime of the decedent, he was
receiving royalties from ATLAS; (2) he had resided in the Philippines since
pre-war days and was engaged in the mine prospecting business since 1937
particularly in the City of Toledo; and (3) PASTOR, JR. was only acting as
dummy for his father because the latter was a Spaniard.
Based on the premises laid, the conclusion is obviously far-fetched.

(f) It was, therefore, error for the assailed implementing Orders to conclude
that the Probate Order adjudged with finality the question of ownership of
the mining properties and royalties, and that, premised on this conclusion,
the dispositive portion of the said Probate Order directed the special
administrator to pay the legacy in dispute.
2. Issue of Intrinsic Validity of the Holographic Will (a) When PASTOR, SR. died in 1966, he was survived by his wife, aside
from his two legitimate children and one illegitimate son. There is therefore
a need to liquidate the conjugal partnership and set apart the share of
PASTOR, SR.'s wife in the conjugal partnership preparatory to the
administration and liquidation of the estate of PASTOR, SR. which will
include, among others, the determination of the extent of the statutory
usufructuary right of his wife until her death. * When the disputed Probate
order was issued on December 5, 1972, there had been no liquidation of
the community properties of PASTOR, SR. and his wife.
(b) So, also, as of the same date, there had been no prior definitive
determination of the assets of the estate of PASTOR, SR. There was an
inventory of his properties presumably prepared by the special
administrator, but it does not appear that it was ever the subject of a
hearing or that it was judicially approved. The reconveyance or recovery of
properties allegedly owned but not in the name of PASTOR, SR. was still
being litigated in another court.
(c) There was no appropriate determination, much less payment, of the
debts of the decedent and his estate. Indeed, it was only in the Probate
Order of December 5, 1972 where the Probate Court ordered that... a notice be issued and published pursuant to the provisions of Rule 86 of
the Rules of Court, requiring all persons having money claims against the
decedent to file them in the office of the Branch Clerk of this Court."
(d) Nor had the estate tax been determined and paid, or at least provided
for, as of December 5, 1972.
(e) The net assets of the estate not having been determined, the legitime of
the forced heirs in concrete figures could not be ascertained.
(f) All the foregoing deficiencies considered, it was not possible to
determine whether the legacy of QUEMADA - a fixed share in a specific

SPECPRO| RULE 75| 68

property rather than an aliquot part of the entire net estate of the deceased
- would produce an impairment of the legitime of the compulsory heirs.

estate tax before delivery to any beneficiary of his distributive share of the
estate (Section 107 [c])

(g) Finally, there actually was no determination of the intrinsic validity of

the will in other respects. It was obviously for this reason that as late as
March 5, 1980 - more than 7 years after the Probate Order was issued the
Probate Court scheduled on March 25, 1980 a hearing on
the intrinsic validity of the will.

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

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

Sec. 6. Court to fix contributive shares where devisees, legatees, or heirs

have been in possession. Where devisees, legatees, or heirs have
entered into possession of portions of the estate before the debts and
expenses have been settled and paid and have become liable to contribute
for the payment of such debts and expenses, the court having jurisdiction
of the estate may, by order for that purpose, after hearing, settle the
amount of their several liabilities, and order how much and in what manner
each person shall contribute, and may issue execution as circumstances
require.
The above provision clearly authorizes execution to enforce payment
of debts of estate. A legacy is not a debt of the estate; indeed, legatees are
among those against whom execution is authorized to be issued.
... there is merit in the petitioners' contention that the probate court
generally cannot issue a writ of execution. It is not supposed to issue a writ
of execution because its orders usually refer to the adjudication of claims
against the estate which the executor or administrator may satisfy without
the necessity of resorting to a writ of execution. The probate court, as such,
does not render any judgment enforceable by execution.
The circumstances that the Rules of Court expressly specifies that the
probate court may issue execution (a) to satisfy (debts of the estate out of)
the contributive shares of devisees, legatees and heirs in possession of the
decedent's assets (Sec. 6. Rule 88), (b) to enforce payment of the
expenses of partition (Sec. 3, Rule 90), and (c) to satisfy the costs when a
person is cited for examination in probate proceedings (Sec. 13, Rule 142)
may mean, under the rule of inclusion unius est exclusion alterius, that
those are the only instances when it can issue a writ of execution. (Vda. de
Valera vs. Ofilada, 59 SCRA 96, 108.)
(d) It is within a court's competence to order the execution of a final
judgment; but to order the execution of a final order (which is not even
meant to be executed) by reading into it terms that are not there and in
utter disregard of existing rules and law, is manifest grave abuse of
discretion tantamount to lack of jurisdiction. Consequently, the rule that

SPECPRO| RULE 75| 69

certiorari may not be invoked to defeat the right of a prevailing party to the
execution of a valid and final judgment, is inapplicable. For when an order
of execution is issued with grave abuse of discretion or is at variance with
the judgment sought to be enforced (PVTA vs. Honorable Gonzales, 92
SCRA 172), certiorari will lie to abate the order of execution.

particularly the Orders dated November 11, 1980 and December 17, 1980,
are hereby set aside; and this case is remanded to the appropriate Regional
Trial Court for proper proceedings, subject to the judgment to be rendered
in Civil Case No. 274-R.
SO ORDERED.

(e) Aside from the propriety of resorting to certiorari to assail an order of

execution which varies the terms of the judgment sought to be executed or
does not find support in the dispositive part of the latter, there are
circumstances in the instant case which justify the remedy applied for.
Petitioner MA. ELENA ACHAVAL DE PASTOR, wife of PASTOR, JR., is the
holder in her own right of three mining claims which are one of the objects
of conflicting claims of ownership. She is not an heir of PASTOR, SR. and
was not a party to the probate proceedings. Therefore, she could not appeal
from the Order of execution issued by the Probate Court. On the other
hand, after the issuance of the execution order, the urgency of the relief
she and her co-petitioner husband seek in the petition for certiorari states
against requiring her to go through the cumbersome procedure of asking
for leave to intervene in the probate proceedings to enable her, if leave is
granted, to appeal from the challenged order of execution which has
ordered the immediate transfer and/or garnishment of the royalties derived
from mineral properties of which she is the duly registered owner and/or
grantee together with her husband. She could not have intervened before
the issuance of the assailed orders because she had no valid ground to
intervene. The matter of ownership over the properties subject of the
execution was then still being litigated in another court in a reconveyance
suit filed by the special administrator of the estate of PASTOR, SR.
Likewise, at the time petitioner PASTOR, JR. Med the petition for certiorari
with the Court of Appeals, appeal was not available to him since his motion
for reconsideration of the execution order was still pending resolution by
the Probate Court. But in the face of actual garnishment of their major
source of income, petitioners could no longer wait for the resolution of their
motion for reconsideration. They needed prompt relief from the injurious
effects of the execution order. Under the circumstances, recourse to
certiorari was the feasible remedy.
WHEREFORE, the decision of the Court of Appeals in CA G.R. No. SP-11373R is reversed. The Order of execution issued by the probate Court dated
August 20, 1980, as well as all the Orders issued subsequent thereto in
alleged implementation of the Probate Order dated December 5, 1972,

G.R. No. 74695 September 14, 1993

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

BELLOSILLO, J.:
Before us is an appeal from the Decision dated 11 April 1986 1 of
Civil Cases Division of the then Intermediate Appellate Court, now
Appeals, which affirmed the Order dated 27 June 1983 2 of the
Trial Court of Sta. Cruz, Laguna, admitting to probate the last
testament 3 with codicil 4 of the late Brigido Alvarado.

the First
Court of
Regional
will and

On 5 November 1977, the 79-year old Brigido Alvarado executed a notarial

will entitled "Huling Habilin" wherein he disinherited an illegitimate son
(petitioner) and expressly revoked a previously executed holographic will at

SPECPRO| RULE 75| 70

the time awaiting probate before Branch 4 of the Regional Trial Court of sta.
Cruz, Laguna.
As testified to by the three instrumental witnesses, the notary public and by
private respondent who were present at the execution, the testator did not
read the final draft of the will himself. Instead, private respondent, as the
lawyer who drafted the eight-paged document, read the same aloud in the
presence of the testator, the three instrumental witnesses and the notary
public. The latter four followed the reading with their own respective copies
previously furnished them.
Meanwhile, Brigido's holographic will was subsequently admitted to probate
on 9 December 1977. On the 29th day of the same month, a codicil entitled
"Kasulatan ng Pagbabago sa Ilang Pagpapasiya na Nasasaad sa Huling
Habilin na may Petsa Nobiembre 5, 1977 ni Brigido Alvarado" was executed
changing some dispositions in the notarial will to generate cash for the
testator's eye operation. Brigido was then suffering from glaucoma. But the
disinheritance and revocatory clauses were unchanged. As in the case of
the notarial will, the testator did not personally read the final draft of the
codicil. Instead, it was private respondent who read it aloud in his presence
and in the presence of the three instrumental witnesses (same as those of
the notarial will) and the notary public who followed the reading using their
own copies.
A petition for the probate of the notarial will and codicil was filed upon the
testator's death on 3 January 1979 by private respondent as executor with
the Court of First Instance, now Regional Trial Court, of Siniloan,
Laguna. 5Petitioner, in turn, filed an Opposition on the following grounds:
that the will sought to be probated was not executed and attested as
required by law; that the testator was insane or otherwise mentally
incapacitated to make a will at the time of its execution due to senility and
old age; that the will was executed under duress, or influence of fear and
threats; that it was procured by undue and improper pressure and influence
on the part of the beneficiary who stands to get the lion's share of the
testator's estate; and lastly, that the signature of the testator was procured
by fraud or trick.
When the oppositor (petitioner) failed to substantiate the grounds relied
upon in the Opposition, a Probate Order was issued on 27 June 1983 from
which an appeal was made to respondent court. The main thrust of the
appeal was that the deceased was blind within the meaning of the law at
the time his "Huling Habilin" and the codicil attached thereto was executed;

that since the reading required by Art. 808 of the Civil Code was admittedly
not complied with, probate of the deceased's last will and codicil should
have been denied.
On 11 April 1986, the Court of Appeals rendered the decision under review
with the following findings: that Brigido Alvarado was not blind at the time
his last will and codicil were executed; that assuming his blindness, the
reading requirement of Art. 808 was substantially complied with when both
documents were read aloud to the testator with each of the three
instrumental witnesses and the notary public following the reading with
their respective copies of the instruments. The appellate court then
concluded that although Art. 808 was not followed to the letter, there was
substantial compliance since its purpose of making known to the testator
the contents of the drafted will was served.
The issues now before us can be stated thus: Was Brigido Alvarado blind for
purpose of Art, 808 at the time his "Huling Habilin" and its codicil were
executed? If so, was the double-reading requirement of said article
complied with?
Regarding the first issue, there is no dispute on the following facts: Brigido
Alvarado was not totally blind at the time the will and codicil were executed.
However, his vision on both eyes was only of "counting fingers at three (3)
feet" by reason of the glaucoma which he had been suffering from for
several years and even prior to his first consultation with an eye specialist
on
14 December 1977.
The point of dispute is whether the foregoing circumstances would qualify
Brigido as a "blind" testator under Art. 808 which reads:
Art. 808. If the testator is blind, the will shall be read to him twice; once,
by one of the subscribing witnesses, and again, by the notary public before
whom the will is acknowledged.
Petitioner contends that although his father was not totally blind when the
will and codicil were executed, he can be so considered within the scope of
the term as it is used in Art. 808. To support his stand, petitioner presented
before the trial court a medical certificate issued by Dr. Salvador R.
Salceda, Director of the Institute of Opthalmology (Philippine Eye Research
Institute), 6 the contents of which were interpreted in layman's terms by Dr.
Ruperto Roasa, whose expertise was admitted by private respondent. 7 Dr.

SPECPRO| RULE 75| 71

Roasa explained that although the testator could visualize fingers at three
(3) feet, he could no longer read either printed or handwritten matters as of
14 December 1977, the day of his first consultation. 8
On the other hand, the Court of Appeals, contrary to the medical testimony,
held that the testator could still read on the day the will and the codicil
were executed but chose not to do so because of "poor eyesight." 9 Since
the testator was still capable of reading at that time, the court a
quo concluded that Art. 808 need not be complied with.
We agree with petitioner in this respect.
Regardless of respondent's staunch contention that the testator was still
capable of reading at the time his will and codicil were prepared, the fact
remains and this was testified to by his witnesses, that Brigido did not do so
because of his "poor," 10 "defective," 11 or "blurred" 12 vision making it
necessary for private respondent to do the actual reading for him.
The following pronouncement in Garcia vs. Vasquez 13 provides an insight
into the scope of the term "blindness" as used in Art. 808, to wit:
The rationale behind the requirement of reading the will to the testator if he
is blind or incapable of reading the will himself (as when he is illiterate), is
to make the provisions thereof known to him, so that he may be able to
object if they are not in accordance with his wishes . . .
Clear from the foregoing is that Art. 808 applies not only to blind testators
but also to those who, for one reason or another, are "incapable of reading
the(ir) will(s)." Since Brigido Alvarado was incapable of reading the final
drafts of his will and codicil on the separate occasions of their execution due
to his "poor," "defective," or "blurred" vision, there can be no other course
for us but to conclude that Brigido Alvarado comes within the scope of the
term "blind" as it is used in Art. 808. Unless the contents were read to him,
he had no way of ascertaining whether or not the lawyer who drafted the
will and codicil did so confortably with his instructions. Hence, to consider
his will as validly executed and entitled to probate, it is essential that we
ascertain whether Art. 808 had been complied with.
Article 808 requires that in case of testators like Brigido Alvarado, the will
shall be read twice; once, by one of the instrumental witnesses and, again,
by the notary public before whom the will was acknowledged. The purpose
is to make known to the incapacitated testator the contents of the

document before signing and to give him an opportunity to object if

anything is contrary to his instructions.
That Art. 808 was not followed strictly is beyond cavil. Instead of the notary
public and an instrumental witness, it was the lawyer (private respondent)
who drafted the eight-paged will and the five-paged codicil who read the
same aloud to the testator, and read them only once, not twice as Art. 808
requires.
Private respondent however insists that there was substantial compliance
and that the single reading suffices for purposes of the law. On the other
hand, petitioner maintains that the only valid compliance or compliance to
the letter and since it is admitted that neither the notary public nor an
instrumental witness read the contents of the will and codicil to Brigido,
probate of the latter's will and codicil should have been disallowed.
We sustain private respondent's stand and necessarily, the petition must be
denied.
This Court has held in a number of occasions that substantial compliance is
acceptable where the purpose of the law has been satisfied, the reason
being that the solemnities surrounding the execution of wills are intended
to protect the testator from all kinds of fraud and trickery but are never
intended to be so rigid and inflexible as to destroy the testamentary
privilege. 14
In the case at bar, private respondent read the testator's will and codicil
aloud in the presence of the testator, his three instrumental witnesses, and
the notary public. Prior and subsequent thereto, the testator affirmed, upon
being asked, that the contents read corresponded with his instructions.
Only then did the signing and acknowledgement take place. There is no
evidence, and petitioner does not so allege, that the contents of the will and
codicil were not sufficiently made known and communicated to the testator.
On the contrary, with respect to the "Huling Habilin," the day of the
execution was not the first time that Brigido had affirmed the truth and
authenticity of the contents of the draft. The uncontradicted testimony of
Atty. Rino is that Brigido Alvarado already acknowledged that the will was
drafted in accordance with his expressed wishes even prior to 5 November
1977 when Atty. Rino went to the testator's residence precisely for the
purpose of securing his conformity to the draft. 15

SPECPRO| RULE 75| 72

Moreover, it was not only Atty. Rino who read the documents on
5 November and 29 December 1977. The notary public and the three
instrumental witnesses likewise read the will and codicil, albeit silently.
Afterwards, Atty. Nonia de la Pena (the notary public) and Dr. Crescente O.
Evidente (one of the three instrumental witnesses and the testator's
physician) asked the testator whether the contents of the document were of
his own free will. Brigido answered in the affirmative. 16 With four persons
following the reading word for word with their own copies, it can be safely
concluded that the testator was reasonably assured that what was read to
him (those which he affirmed were in accordance with his instructions),
were the terms actually appearing on the typewritten documents. This is
especially true when we consider the fact that the three instrumental
witnesses were persons known to the testator, one being his physician (Dr.
Evidente) and another (Potenciano C. Ranieses) being known to him since
childhood.
The spirit behind the law was served though the letter was not. Although
there should be strict compliance with the substantial requirements of the
law in order to insure the authenticity of the will, the formal imperfections
should be brushed aside when they do not affect its purpose and which,
when taken into account, may only defeat the testator's will. 17
As a final word to convince petitioner of the propriety of the trial court's
Probate Order and its affirmance by the Court of Appeals, we quote the
following pronouncement in Abangan v. Abangan, 18 to wit:
The object of the solemnities surrounding the execution of wills is to close
the door against bad faith and fraud, to avoid the substitution of wills and
testaments and to guaranty their truth and authenticity. Therefore the laws

on the subject should be interpreted in such a way as to attain these

primordial ends. But, on the other hand, also one must not lose sight of the
fact that it is not the object of the law to restrain and curtail the exercise of
the right to make a will. So when an interpretation already given assures
such ends, any other interpretation whatsoever, that adds nothing but
demands more requisites entirely unnecessary, useless and frustrative of
the testator's will, must be disregarded (emphasis supplied).
Brigido Alvarado had expressed his last wishes in clear and unmistakable
terms in his "Huling Habilin" and the codicil attached thereto. We are
unwilling to cast these aside fro the mere reason that a legal requirement
intended for his protection was not followed strictly when such compliance
had been rendered unnecessary by the fact that the purpose of the
law, i.e., to make known to the incapacitated testator the contents of the
draft of his will, had already been accomplished. To reiterate, substantial
compliance suffices where the purpose has been served.
WHEREFORE, the petition is DENIED and the assailed Decision of
respondent Court of Appeals dated 11 April 1986 is AFFIRMED. Considering
the length of time that this case has remained pending, this decision is
immediately executory. Costs against petitioner.
SO ORDERED.