Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 133000 October 2, 2001

PATRICIA NATCHER, petitioner,

vs.
HON. COURT OFAPPEALS AND THE HEIR OF GRACIANO DEL ROSARIO
LETICIA DEL ROSARIO, EMILIA DEL RESORIO MANANGAN,
ROSALINDA FUENTES LLANA, RODOLFO FUENTES, ALBERTO
FUENTES, EVELYN DEL ROSARIO, and EDUARDO DEL
ROSARIO, respondent..

BUENA, J.:

May a Regional Trial Court, acting as a court of general jurisdiction in an

action for reconveyance annulment of title with damages, adjudicate matters
relating to the settlement of the estate of a deceased person particularly on
questions as to advancement of property made by the decedent to any of the
heirs?

Sought to be reversed in this petition for review on certiorari under Rule 45 is

the decision1 of public respondent Court of Appeals, the decretal portion of
which declares:

"Wherefore in view of the foregoing considerations, judgment appealed

from is reversed and set aside and another one entered annulling the
Deed of Sale executed by Graciano Del Rosario in favor of defendant-
appellee Patricia Natcher, and ordering the Register of Deeds to Cancel
TCT No. 186059 and reinstate TCT No. 107443 without prejudice to the
filing of a special proceeding for the settlement of the estate of Graciano
Del Rosario in a proper court. No costs.

"So ordered."
Spouses Graciano del Rosario and Graciana Esguerra were registered
owners of a parcel of land with an area of 9,322 square meters located in
Manila and covered by Transfer Certificate of Title No. 11889. Upon the death
of Graciana in 1951, Graciano, together with his six children, namely: Bayani,
Ricardo, Rafael, Leticia, Emiliana and Nieves, entered into an extrajudicial
settlement of Graciana's estate on 09 February 1954 adjudicating and dividing
among themselves the real property subject of TCT No. 11889. Under the
agreement, Graciano received 8/14 share while each of the six children
received 1/14 share of the said property. Accordingly, TCT No. 11889 was
cancelled, and in lieu thereof, TCT No. 35980 was issued in the name of
Graciano and the Six children. 1wphi1.nt

Further, on 09 February 1954, said heirs executed and forged an "Agreement

of Consolidation-Subdivision of Real Property with Waiver of Rights" where
they subdivided among themselves the parcel of land covered by TCT No.
35980 into several lots. Graciano then donated to his children, share and
share alike, a portion of his interest in the land amounting to 4,849.38 square
meters leaving only 447.60 square meters registered under Graciano's name,
as covered by TCT No. 35988. Subsequently, the land subject of TCT No.
35988 was further subdivided into two separate lots where the first lot with a
land area of 80.90 square meter was registered under TCT No. 107442 and
the second lot with a land area of 396.70 square meters was registered under
TCT No. 107443. Eventually, Graciano sold the first lot2 to a third person but
retained ownership over the second lot.3

On 20 March 1980, Graciano married herein petitioner Patricia Natcher.

During their marriage, Graciano sold the land covered by TCT No. 107443 to
his wife Patricia as a result of which TCT No. 1860594 was issued in the latter's
name. On 07 October 1985,Graciano died leaving his second wife Patricia and
his six children by his first marriage, as heirs.

In a complaint5 filed in Civil Case No. 71075 before the Regional Trial Court of
Manila, Branch 55, herein private respondents alleged that upon Graciano's
death, petitioner Natcher, through the employment of fraud, misrepresentation
and forgery, acquired TCT No. 107443, by making it appear that Graciano
executed a Deed of Sale dated 25 June 19876 in favor herein petitioner
resulting in the cancellation of TCT No. 107443 and the issuance of TCT no.
186059 in the name of Patricia Natcher. Similarly, herein private respondents
alleged in said complaint that as a consequence of such fraudulent sale, their
legitimes have been impaired.

In her answer7 dated 19 August 1994, herein petitioner Natcher averred that
she was legally married to Graciano in 20 March 1980 and thus, under the law,
she was likewise considered a compulsory heir of the latter. Petitioner further
alleged that during Graciano's lifetime, Graciano already distributed, in
advance, properties to his children, hence, herein private respondents may not
anymore claim against Graciano's estate or against herein petitioner's
property.

After trial, the Regional Trial Court of Manila, Branch 55, rendered a decision
dated 26 January 1996 holding:8

"1) The deed of sale executed by the late Graciano del Rosario in favor of
Patricia Natcher is prohibited by law and thus a complete nullity. There
being no evidence that a separation of property was agreed upon in the
marriage settlements or that there has been decreed a judicial separation
of property between them, the spouses are prohibited from entering (into)
a contract of sale;

"2) The deed as sale cannot be likewise regarded as a valid donation as

it was equally prohibited by law under Article 133 of the New Civil Code;

"3) Although the deed of sale cannot be regarded as such or as a

donation, it may however be regarded as an extension of advance
inheritance of Patricia Natcher being a compulsory heir of the deceased."

On appeal, the Court of Appeals reversed and set aside the lower court's
decision ratiocinating, inter alia:

"It is the probate court that has exclusive jurisdiction to make a just and
legal distribution of the estate. The court a quo, trying an ordinary action
for reconveyance / annulment of title, went beyond its jurisdiction when it
 performed the acts proper only in a special proceeding for the settlement
of estate of a deceased person. XXX

"X X X Thus the court a quo erred in regarding the subject property as
advance inheritance. What the court should have done was merely to
rule on the validity of (the) sale and leave the issue on advancement to
be resolved in a separate proceeding instituted for that purpose. XXX"

Aggrieved, herein petitioner seeks refuge under our protective mantle through
the expediency of Rule 45 of the Rules of Court and assails the appellate
court's decision "for being contrary to law and the facts of the case."

We concur with the Court of Appeals and find no merit in the instant petition.

Section 3, Rule 1 of the 1997 Rules of Civil Procedure defines civil action and
special proceedings, in this wise:

"XXX a) A civil action is one by which a party sues another for the
enforcement or protection of a right, or the prevention or redress of a
wrong.

"A civil action may either be ordinary or special. Both are government by
the rules for ordinary civil actions, subject to specific rules prescribed for
a special civil action.

"XXX

"c) A special proceeding is a remedy by which a party seeks to establish

a status, a right or a particular fact."

As could be gleaned from the foregoing, there lies a marked distinction

between an action and a special proceeding. An action is a formal demand of
one's right in a court of justice in the manner prescribed by the court or by the
law. It is the method of applying legal remedies according to definite
established rules. The term "special proceeding" may be defined as an
application or proceeding to establish the status or right of a party, or a
particular fact. Usually, in special proceedings, no formal pleadings are
required unless the statute expressly so provides. In special proceedings, the
remedy is granted generally upon an application or motion."9

Citing American Jurisprudence, a noted authority in Remedial Law expounds

further:

"It may accordingly be stated generally that actions include those

proceedings which are instituted and prosecuted according to the
ordinary rules and provisions relating to actions at law or suits in equity,
and that special proceedings include those proceedings which are not
ordinary in this sense, but is instituted and prosecuted according to some
special mode as in the case of proceedings commenced without
summons and prosecuted without regular pleadings, which are
characteristics of ordinary actions. XXX A special proceeding must
therefore be in the nature of a distinct and independent proceeding for
particular relief, such as may be instituted independently of a pending
action, by petition or motion upon notice."10

Applying these principles, an action for reconveyance and annulment of title

with damages is a civil action, whereas matters relating to settlement of the
estate of a deceased person such as advancement of property made by the
decedent, partake of the nature of a special proceeding, which concomitantly
requires the application of specific rules as provided for in the Rules of Court.

Clearly, matters which involve settlement and distribution of the estate of the
decedent fall within the exclusive province of the probate court in the exercise
of its limited jurisdiction.

Thus, under Section 2, Rule 90 of the Rules of Court, questions as to

advancement made or alleged to have been made by the deceased to any
heir may be heard and determined by the court having jurisdiction of the
estate proceedings; and the final order of the court thereon shall be binding
on the person raising the questions and on the heir.

While it may be true that the Rules used the word "may", it is nevertheless
clear that the same provision11contemplates a probate court when it speaks of
the "court having jurisdiction of the estate proceedings".
Corollarily, the Regional Trial Court in the instant case, acting in its general
jurisdiction, is devoid of authority to render an adjudication and resolve the
issue of advancement of the real property in favor of herein petitioner Natcher,
inasmuch as Civil Case No. 471075 for reconveyance and annulment of title
with damages is not, to our mind, the proper vehicle to thresh out said
question. Moreover, under the present circumstances, the RTC of Manila,
Branch 55 was not properly constituted as a probate court so as to validly
pass upon the question of advancement made by the decedent Graciano Del
Rosario to his wife, herein petitioner Natcher.

At this point, the appellate court's disquisition is elucidating:

"Before a court can make a partition and distribution of the estate of a

deceased, it must first settle the estate in a special proceeding instituted
for the purpose. In the case at hand, the court a quo determined the
respective legitimes of the plaintiffs-appellants and assigned the subject
property owned by the estate of the deceased to defendant-appellee
without observing the proper proceedings provided (for) by the Rules of
Court. From the aforecited discussions, it is clear that trial courts trying
an ordinary action cannot resolve to perform acts pertaining to a special
proceeding because it is subject to specific prescribed rules. Thus, the
court a quo erred in regarding the subject property as an advance
inheritance."12

In resolving the case at bench, this Court is not unaware of our

pronouncement in Coca vs. Borromeo13 and Mendoza vs. Teh14 that whether
a particular matter should be resolved by the Regional Trial Court (then Court
of First Instance) in the exercise of its general jurisdiction or its limited probate
jurisdiction is not a jurisdictional issue but a mere question of procedure. In
essence, it is procedural question involving a mode of practice "which may be
waived".15

Notwithstanding, we do not see any waiver on the part of herein private

respondents inasmuch as the six children of the decedent even assailed the
authority of the trail court, acting in its general jurisdiction, to rule on this
specific issue of advancement made by the decedent to petitioner.
Analogously, in a train of decisions, this Court has consistently enunciated the
long standing principle that although generally, a probate court may not decide
a question of title or ownership, yet if the interested parties are all heirs, or the
question is one of collation or advancement, or the parties consent to the
assumption of jurisdiction by the probate court and the rights of third parties
are not impaired, then the probate court is competent to decide the question of
ownership.16

Similarly in Mendoza vs. Teh, we had occasion to hold:

"In the present suit, no settlement of estate is involved, but merely an

allegation seeking appointment as estate administratrix which does not
necessarily involve settlement of estate that would have invited the
exercise of the limited jurisdiction of a probate court.17 (emphasis
supplied)

Of equal importance is that before any conclusion about the legal share due to
a compulsory heir may be reached, it is necessary that certain steps be taken
first.18 The net estate of the decedent must be ascertained, by deducting all
payable obligations and charges from the value of the property owned by the
deceased at the time of his death; then, all donations subject to collation would
be added to it. With the partible estate thus determined, the legitime of the
compulsory heir or heirs can be established; and only thereafter can it be
ascertained whether or not a donation had prejudiced the legitimes. 19

A perusal of the records, specifically the antecedents and proceedings in the

present case, reveals that the trial court failed to observe established rules of
procedure governing the settlement of the estate of Graciano Del Rosario.
This Court sees no cogent reason to sanction the non-observance of these
well-entrenched rules and hereby holds that under the prevailing
circumstances, a probate court, in the exercise of its limited jurisdiction, is
indeed the best forum to ventilate and adjudge the issue of advancement as
well as other related matters involving the settlement of Graciano Del
Rosario's estate. 1wphi1.nt
WHEREFORE, premises considered, the assailed decision of the Court of
Appeals is hereby AFFIRMED and the instant petition is DISMISSED for lack
of merit.

SO ORDERED.

Bellosillo, Mendoza, Quisumbing, De Leon, Jr., Davide, Jr., JJ., concur.

[G.R. No. 109373. March 27, 1998]

PACIFIC BANKING CORPORATION EMPLOYEES ORGANIZATION, PAULA S.

PAUG, and its officers and members, petitioners, vs. THE
HONORABLE COURT OF APPEALS and VITALIANO N. NAAGAS II, as
Liquidator of Pacific Banking Corporation, respondents.

[G.R. No. 112991. March 27, 1998]

THE PRESIDENT OF THE PHILIPPINE DEPOSIT INSURANCE CORPORATION, as
Liquidator of the Pacific Banking Corporation, petitioner, vs. COURT OF
APPEALS, HON. JUDGE REGINO T. VERIDIANO II, DEPUTY SHERIFF
RAMON ENRIQUEZ and ANG ENG JOO, ANG KEONG LAN and E.J ANG
INTL. LTD., represented by their Attorney-in-fact, GONZALO C.
SY, respondents.

RESOLUTION

MENDOZA, J.:

For consideration are (1) petitioner's Omnibus Motion in G.R. No. 112991 seeking
reconsideration of the Court's resolution dated October 9, 1995, which denied the
reconsideration of the decision in this case promulgated on March 20, 1995, and the
resolution of October 13, 1995 which absolved the branch clerk of court of the RTC of
Manila, Branch 31, of charges of wrongdoing; and (2) the manifestation and motions for
clarification filed by the Land Bank of the Philippines (LBP) concerning the request of
petitioner in G.R. No. 112991 for the transfer of the funds of the Pacific Banking
Corporation (PaBC) to its other account in another branch of LBP and the alleged
garnishment of the funds of PaBC deposited in LBP in favor of the Bureau of Internal
Revenue.

The antecedent facts are as follows:

On March 20, 1995, the Court rendered a decision holding that a petition for liquidation
under Sec. 29 of the Central Bank Act, R.A.No. 265[1] is a special proceeding and ,
therefore, the rules prescribing a period of 30 days for appealing and requiring a record on
appeal apply. Accordingly, the appeal in G.R. No. 109373 was held to have been duly
perfected but the appeal in G.R. No. 112991 had not been perfected because of
petitioner's failure to file a record on appeal.

Petitioner in G.R. No. 112991 moved for a reconsideration of the aforesaid decision but
the Court denied his motion in its resolution of October 9, 1995 on the following grounds
(1) the clerks of the RTC and the Court of Appeals certified that no record on appeal had
been filed; (2) the branch clerk denied that the signature on the alleged copy of the record
on appeal was his; (3) counsel for private respondents and his clerk denied in their
respective affidavits that they had been served a copy of the record on appeal; (4) the
identity of the person who allegedly received the record on appeal filed in the trial court
and whose initials appear on the first page of the alleged copy of the said record had
never been established; and (5) the copy of the record on appeal allegedly filed did not
bear the stamp of the RTC showing due receipt thereof.
In the resolution of October 13, 1995, the Court held Judge Regino Veridiano II, Deputy
Sheriff Carmelo Cachero and private respondent's counsel, Atty. Marino Eslao, guilty of
indirect contempt for executing the decision of the trial court despite the temporary
restraining order issued by this Court. The Court, however, found no basis of holding
branch clerk Antonio Valencia Jr. guilty of any wrongdoing in certifying that petitioner failed
to file a record on appeal.

On November 6, 1995, petitioner then filed the Omnibus Motion in question seeking to (1)
reopen the case and/or consider the resolution of October 9, 1995 which denied his
motion for reconsideration, and (2) reconsider the October 13, 1995 resolution absolving
the branch clerk of the trial court from contempt charges.

In his omnibus motion, petitioner insists that he filed a record on appeal. As proof, he
presents a photocopy of the record on appeal allegedly received by the branch clerk of the
trial court bearing the handwritten notation "Received, 10-15-92, 3:45 PM" and the alleged
initials of the said clerk. Petitioner explains that the record on appeal does not have the
RTC stamp "Received" because the trial court does not use a stamp but receipt of
pleadings is acknowledged simply by nothing this fact by hand. Petitioner submitted
certain pleadings filed in the trial court which were acknowledged by the branch clerk in
the same way he allegedly acknowledged by the branch clerk in the same way he
allegedly acknowledged receipt of petitioner's record on appeal. These are the notice of
appeal filed by petitioner on October 14, 1992 (Annex E, Omnibus Motion), Motion to
Strike Out the Notice of Appeal with Motion for Issuance of Writ of Execution filed by the
private respondents (Annex G) and Comment filed by another claimant (Solid Bank) dated
May 26, 1995 (Annex H).

In addition, petitioner claims that the certifications by the clerks of the RTC and the Court
of Appeals that no record on appeal was filed are unreliable, that his record on appeal was
suppressed from the records of the case, and that the certification of the Court of Appeals
that no record on appeal was filed therein was to be expected because the record on
appeal was filed with the RTC and not with the Court of Appeals.

Commenting, private respondents contend that the Omnibus Motion is actually a second
motion for reconsideration which is not allowed by the rules since the issues raised therein
had been fully considered and passed upon by the Court and that there is no compelling
reason to grant the motion. They maintain that petitioner's appeal was not perfected
because of the non-filing of a record on appeal. Branch Clerk of court Antonio Valencia, on
the other hand, maintains that "no record on appeal was filed and therefore none could be
found in the expediente (records of the case)." He claims that the record on appeal
allegedly filed in the trial court could not have been unlawfully removed from the records
because all pleadings received by the court are immediately attached to the records.He
denies that the signature appearing on the alleged record on appeal was his.

Because of the serious ness of the petitioner's allegation that its record on appeal had
been suppressed, the Court on December 11, 1996, referred the question to the Office of
the Court Administrator (OCA) for investigation, report and recommendation.

On June 18, 1997, the OCA submitted its report and recommendation, the pertinent
portions of which state:[2]

In the formal investigation conducted (please see attached transcript) it was

disclosed that Atty. Antonio Valencia Jr. was appointed as the Clerk of Court V on
June 18, 1992 and officially assumed office on July 1, 1992.

As the Clerk of Court of RTC, Branch 31, it is his duty to exercise control and
supervision over the personnel of the said court; examines records of all cases filed
and calendared; issues court processes, prepares drafts of orders and other
matters which are assigned by the Judge Regino Verediano.

In their sala each personnel have their respective duties , from receipt of pleadings
that are being filed to their safekeeping. In no case is anyone allowed to interfere
with the duties of each personnel except under extreme urgency. Thus, receiving of
pleadings is normally entrusted to the receiving clerk and no one else. It is, as
claimed by Atty. Valencia, only in the absence of the said receiving clerk that other
employees are authorized to receive pleadings.

For his part, Atty. Valencia claims that he rarely receives pleadings since before it
reaches his table, the same are already duly received. Besides, it is not one of his
duties to receive pleadings.

With respect to the alleged receipt of the record on appeal by their office,
specifically to him, Atty. Valencia vehemently denied having received the
same. First, because the stroke of the alphabet indicating his initials is very
different and so with the dates, secondly, if it was actually received it could have
been brought to attention of the late Judge Verediano who thereafter would have
made a notation of the same, like all other pleadings received in their office or
simply instruct the preparation of an order if necessary and lastly, it would have
been included in their court calendar as there was a notice of hearing attached
thereto.

In the court's calendar dated October 23, 1992, Sp. Proc. No. 35313 was never
scheduled for hearing. Under normal circumstances, if there was notice of hearing
 it would be outrightly included in the court's calendar for October 23, 1992 as
requested.

To substantiate the aforesaid allegations Atty. Valencia submitted copies of

pleadings filed relative to the subject case bearing the notation of then Judge
Verediano and the Court's calendar for October 22 and 23, 1992.

In addition, he pointed out that if the Notice of Appeal (Record on Appeal) was
actually filed in their sala, why was it raised for the first time only in PDIC's Motion
for Reconsideration. This according to him is suspicious. He even insinuated that
nobody could have done this (meaning inserted the notice of appeal [record on
appeal] in their pleadings) except the interested lawyer/s.

Moreover, Atty. Valencia vouches for the honesty and integrity of his staff, and if
there be a need for the examination of their signatures they would be very willing to
go for a specimen signature examination only to clear his/their names.

The office of the undersigned believes the claim of Atty. Valencia that no Notice of
Appeal [Record on Appeal] was filed at RTC Branch 31, Manila. As a CPA/lawyer,
he was very well aware of his duties and responsibilities as a Branch Clerk of
Court. This is evidenced by the fact that in his more than five (5) years stay as a
Branch Clerk of Court, no single administrative complaint has ever been lodged
against him, be it a harassment suit or otherwise.

Moreover, if it has been actually filed it would not have passed unnoticed by then
Judge Verediano who had to approve the same.

The undersigned is in accord with the claim of Atty. Valencia as presented by him to
Atty. Cunanan of this Office that indeed no record on appeal was filed by the
counsels of PDIC in the subject case, thus no administrative action should be taken
against him. (Memorandum dated June 5, 1997, pp. 1-2; Rollo, p. 538-539)

On July 23, 1997, after considering the report and it appearing that the investigation
conducted by the OCA was limited to hearing the evidence of the branch clerk of court and
his witnesses, the required the OCA to hear the evidence of petitioner that he had filed a
record on appeal but it was suppressed and, after considering that totality of the evidence
presented, to determine liability for any wrongful act committed, and to submit its findings
and recommendations.

On January 27, 1998, the OCA submitted its report and recommendation on the
additional investigation it conducted from which it appears that hearings were held on
three dates; the parties, through their counsel, were duly notified of the same; and that at
the first scheduled hearing on October 7, 1997, only Atty. Marino E. Eslao, counsel for
private respondent, appeared. In order to expidite the proceedings, he was allowed to
present documentary evidence without prejudice to the right of the petitioner to comment
thereon. During the hearing on November 5, 1997, the parties agreed to file position
papers after the testimony of branch clerk Atty. Valencia. On November 6, 1997, the
respective testimonies of Atty. Valencia and Atty. Pablo Romero, the sole witness for
petitioner, were taken. In his report dated December 1, 1997,[3] Senior Deputy Court
Administrator Reynaldo L. Suarez summarized the evidence presented by the parties and
his findings on the same, to wit:

Atty. Pablo Romero, Manager of R&L Litigation Center, PDIC testifies that he was
the one who prepared the subject Record on Appeal. He likewise confirmed the
fact that the President of the PDIC, Mr. Ernest Leung, Atty. Rosalinda Casiguran
and he then went to see Judge Veridiano and was informed by Atty. Valencia that
he cannot find a copy of the Record on Appeal which was allegedly filed. He
cannot recall if Atty. Valencia ever demanded from him a copy of said record (pp.
28-29, TSN dated November 6, 1997). No other relevant information were given by
Atty. Romero.

Atty. Antonio Valencia, Branch Clerk of Court, RTC, Branch 31, Manila, was invited
to testify as to whether a Record on Appeal was actually filed before their court and
the same was duly received by him. He was examined by the parties, principally
the counsel for PDIC.

In his testimony, Atty. Valencia, reiterated his previous stand that he never saw a
copy of the Record on Appeal and he was positive that indeed there was no
Record on Appeal having been filed in his court. Counsel of PDIC however
insinuated that record on appeal might have been filed but the same was
misplaced. Atty. Valencia assured that "this is very remote". (TSN, p. 8, November
6, 1997).

He even stressed that when he was made earlier to comment on whether or not a
record on appeal was actually filed, he checked and double checked the original
records, inquired from the employees of RTC, Manila including the Judge whether
they have knowledge of any record on appeal which was filed in their sala but all
answered in the negative. (pp. 21 & 22, TSN, Nov. 6, 1997).

Moreover, he also firmly denied having received the alleged copy of the record on
appeal which was presented to him for identification during his direct testimony
since the signatures appearing therein are totally different from his actual signature
(pp. 23, TSN, November 6, 1997).
It is to be noted that the alleged duplicate original copy of the Notice of Appeal
[Record on Appeal] which is supposed to be with the counsels of PDIC was not
presented as evidence. In fact when the counsel of PDIC Atty. Romero was asked
if the PDIC employee who allegedly filed the Record on Appeal could testify he
answered in the negative and claimed that the said employee is already in Riyadh,
Saudi Arabia. No evidence was likewise presented to prove the same. No effort
was exerted by PDIC to prove the authenticity of the signature of Clerk of Court
Valencia appearing in PDIC's copy of the Record on Appeal.

It is also worthy to note that other than the bare testimony of Atty. Romero, no other
evidence were presented by petitioner PDIC to substantiate their claim that a
Record on Appeal was filed at the RTC of Manila and the same was duly received
by Atty. Valencia. The testimony was not even corroborated.

Be that as it may this Office still has to determine as to whether a Record on

Appeal was actually filed at the court a quo.

A review of the record impels a rejection of the petitioner's claim that a Record on
Appeal was filed.

The private respondent was able to present proof which are affirmative,
unequivocal convincing, and consistent. In fact the testimony alone of Atty.
Valencia which was a reiteration of his previous testimonies were very clear,
concise, and moreover consistent. For the record Atty. Valencia is viewed by the
undersigned who personally conducted the investigation as a plain, sincere and
honest man who, not having been shown of any reason to be bias or to favor any
party, had no reason to deliberately tell a falsehood relative to his official
functions. The fact therefore that he submitted himself to an investigatin twice and
in different occassions shows his determination to vindicate his honor by proving
the integrity of the records of his office.

From all indications and as the records of the case will show NO RECORD ON
APPEAL was actually filed in the court a quo.

Apparently, RTC, Branch 31, Manila has an effective records management

(system) and it is improbable to have missed one important document (RECORD
ON APPEAL). In the absence of any convincing proof to the contrary, the regularity
of official function must be upheld.
 Far from the assertions of the petitioner we conclude that there was no Record on
Appeal actually filed. (Memorandum dated December 11, 1997, pp. 3-5; Rollo, pp.
557-559)

The findings of the OCA are well taken.

In civil cases, the burden of proof is on the party who would be defeated if no evidence
is given on the either side. Plaintiff must therefore establish his case by a preponderance
of evidence, i.e. evidence as a whole which is superior to that of the defendant. [4] In other
words, the party who alleges a fact has the burden of proving it. [5] In this case, petitioner,
as the party claiming affirmative relief from this Court by contending that he had filed a
record on appeal in the trial court, must discharge the burden of convincingly proving his
claim.[6] As found by the OCA, however, the evidence of the respondents even outweighs
that of petitioner. Private respondents presented proof which are affirmative, unequivocal,
convincing, and consistent that no record on appel had been filed. As the OCA noted,
petitioner not only failed to present the PDIC employee who allegedly filed on the record
appeal in the trial court but more importantly, he failed to prove the authenticity of the
alleged signature of Branch Clerk Antonio Valencia appearing in his copy of the record on
appeal.

The firm and consistent denial of the branch clerk that he was the one who received
the record on appeal and acknowledged its filing was disputed by petitioner. But
petitioner's witness, Atty. Romero, who allegedly prepared the said record did not file it in
the trial court. Nor did he have any personal knowledge of the actual filing of the record on
appeal in the trial court. According to Atty. Romero, the PDIC employee who allegedly filed
the record on appeal in the trial court could not testify because the said employee was
already in Riyadh, Saudi Arabia. This allegation is not persuasive since no evidence was
presented to prove the same.[7]

Even the documentary evidence submitted by petitioner to prove the authenticity of the
signature of the branch clerk on the alleged duplicate original copy of the record on
appeal[8] is not convincing. The signature and notation on the alleged duplicate original
copy of the record on appeal do not match the actual signature and handwriting of the
branch clerk as shown in the pleadings submitted by petitioner himself, namely, the notice
of appeal filed by petitioner (Annex E, Omnibus Motion), motion to strike out notice of
appeal filed by private respondents (Annex G) and comment filed by another claimant
(Annex H). The branch clerk's alleged signature and notation are markedly different from
his signature and handwriting appearing in the submitted documentary evidence. [9]For one,
the branch clerk's initial "AV" appear "HV" in the alleged duplicate original copy of the
record. In addition, numeral "5" was written with a rounded stroke instead of a sharp
one. Clearly, petitioner failed to discharge the required burden of proof. Hence, petitioner's
assertion that he had filed a record on appeal is not worthy of belief.

As regards petitioner's prayer that the Court reconsider its resolution of October 13,
1995 absolving the branch clerk of court of charges of wrongdoing, suffice it to state here
that no ground exists to impute bad faith on the part of the branch clerk. Good faith is
presumed and the complainant has the burden of proving any wrongdoing.[10] Petitioner
simply failed to prove that the branch clerk either suppressed the record on appeal
allegedly filed by petitioner did not file the said record. The Court cannot find the
branch clerk guilty of any wrongdoing in certifying that petitioner failed to file a record on
appeal in the trial court in the face of petitioner's failure to adduce convincing proof that
such a record was in fact filed therein.

Also for consideration are two (2) manifestations and motions for clarification filed by
the Land Bank of the Philippines (LBP). In its Manifestation/Motion dated May 20, 1996,
LBP alleges that on or about March 24, 1995, petitioner's deposit accounts in LBP were
garnished by Sheriff Carmelo Cachero in favor of private respondents pursuant to the writ
of execution issued by RTC Branch 31, Manila acting as the liquidation court; that on April
10, 1995, it received from petitioner a copy of the April 7, 1995 order of this Court directing
the parties to maintain the status quo in the case; that on November 20, 1995, the Court
issued another resolution directing the parties to maintain the status quo until further
orders; and that on April 1, 1996, it received as request from the petitioner to transfer the
garnished funds to a different account maintained by petitioner in another branch of
LBP. LBP seeks clarification whether or not the garnishment of petitioner's deposit
accounts on March 24, 1995 is null and void considering the status quo orders issued by
the Court. It further inquires whether or not it may acquiesce to petitioner's request to
transfer the garnished funds to petitioner's other account in another branch of LBP.[11] In its
Manifestation dated October 7, 1996, on the other hand, LBP alleges that on September
9, 1996, it received from Sheriff Adolfo Garcia a notice of garnishment over the same
deposit accounts of petitioner implementing the writ of execution issued also by the RTC,
Branch 31, Manila, but for another claimant, the Bureau of Internal Revenue (BIR); that on
September 25, 1996, it wrote Sheriff Garcia informing him that the accounts sought to be
garnished were already garnished pursuant to the processes of the same court for another
claimant (herein private respondents); that on September 27, 1996, it received a letter
from petitioner urging it to effect the immediate release of the garnished funds to the BIR
and that on October 2, 1996, it received from Sheriff Garcia the order to deliver to him the
garnished amount of P179,971,860.13. LBP manifests that it is holding in abeyance action
on the order to Sheriff Garcia and the letter of petitioner until the incidents in this case are
finally resolved by this Court.[12]
 These are matters largely relating to the execution of the decision of the trial court. As
far as this Court is concerned, its decision is now final and it no longer has any jurisdiction
to pass upon these incidents, not to mention the fact that the manifestation filed by LBP
are in the nature of consultation by one not a party to this case.

WHEREFORE, the Court RESOLVED to DENY petitioner's Omnibus Motion for lack of
merit. The manifestations and motions dated May 20, 1996 and October 7, 1996 by the
Land Bank of the Philippines are NOTED.

SO ORDERED.

Regalado, (Chairman), Melo, Puno, and Martinez, JJ., concur.

 Republic of the Philippines
Supreme Court
Manila

THIRD DIVISION

ALAN JOSEPH A. SHEKER, G.R. No. 157912

Petitioner,
Present:

YNARES-SANTIAGO, J.,
- versus - Chairperson,
AUSTRIA-MARTINEZ,
CHICO-NAZARIO,
NACHURA, and
ESTATE OF ALICE O. SHEKER, REYES, JJ.
VICTORIA S. MEDINA-
Administratrix, Promulgated:
Respondent. December 13, 2007
x------------------------------------------------x

DECISION

AUSTRIA-MARTINEZ, J.:

This resolves the Petition for Review on Certiorari seeking the reversal of the Order[1] of
the Regional Trial Court of Iligan City, Branch 6 (RTC) dated January 15, 2003 and its
Omnibus Order dated April 9, 2003.

The undisputed facts are as follows.

The RTC admitted to probate the holographic will of Alice O. Sheker and thereafter issued an
order for all the creditors to file their respective claims against the estate. In compliance
therewith, petitioner filed on October 7, 2002 a contingent claim for agent's commission due
him amounting to approximately P206,250.00 in the event of the sale of certain parcels of land
belonging to the estate, and the amount of P275,000.00, as reimbursement for expenses incurred
and/or to be incurred by petitioner in the course of negotiating the sale of said realties.

The executrix of the Estate of Alice O. Sheker (respondent) moved for the dismissal of said
money claim against the estate on the grounds that (1) the requisite docket fee, as prescribed in
Section 7(a), Rule 141 of the Rules of Court, had not been paid; (2) petitioner failed to attach a
certification against non-forum shopping; and (3) petitioner failed to attach a written
explanation why the money claim was not filed and served personally.

On January 15, 2003, the RTC issued the assailed Order dismissing without prejudice the
money claim based on the grounds advanced by respondent. Petitioner's motion for
reconsideration was denied per Omnibus Order dated April 9, 2003.

Petitioner then filed the present petition for review on certiorari, raising the following
questions:

(a) must a contingent claim filed in the probate proceeding contain a certification against non-
forum shopping, failing which such claim should be dismissed?

(b) must a contingent claim filed against an estate in a probate proceeding be dismissed for
failing to pay the docket fees at the time of its filing thereat?

(c) must a contingent claim filed in a probate proceeding be dismissed because of its failure to
contain a written explanation on the service and filing by registered mail?[2]
 Petitioner maintains that the RTC erred in strictly applying to a probate proceeding the
rules requiring a certification of non-forum shopping, a written explanation for non-personal
filing, and the payment of docket fees upon filing of the claim. He insists that Section 2, Rule
72 of the Rules of Court provides that rules in ordinary actions are applicable to special
proceedings only in a suppletory manner.

The Court gave due course to the petition for review on certiorari although directly filed
with this Court, pursuant to Section 2(c), Rule 41 of the Rules of Court.[3]

The petition is imbued with merit.

However, it must be emphasized that petitioner's contention that rules in ordinary actions are
only supplementary to rules in special proceedings is not entirely correct.

Section 2, Rule 72, Part II of the same Rules of Court provides:

Sec. 2. Applicability of rules of Civil Actions. - In the absence of special provisions, the
rules provided for in ordinary actions shall be, as far as practicable, applicable in special
proceedings.

Stated differently, special provisions under Part II of the Rules of Court govern special
proceedings; but in the absence of special provisions, the rules provided for in Part I of the
Rules governing ordinary civil actions shall be applicable to special proceedings, as far as
practicable.

The word practicable is defined as: possible to practice or perform; capable of being put
into practice, done or accomplished.[4] This means that in the absence of special provisions,
rules in ordinary actions may be applied in special proceedings as much as possible and where
doing so would not pose an obstacle to said proceedings. Nowhere in the Rules of Court does it
categorically say that rules in ordinary actions are inapplicable or merely suppletory to special
proceedings. Provisions of the Rules of Court requiring a certification of non-forum
shopping for complaints and initiatory pleadings, a written explanation for non-personal
service and filing, and the payment of filing fees for money claims against an estate would not
in any way obstruct probate proceedings, thus, they are applicable to special proceedings such
as the settlement of the estate of a deceased person as in the present case.

Thus, the principal question in the present case is: did the RTC err in dismissing
petitioner's contingent money claim against respondent estate for failure of petitioner to attach
to his motion a certification against non-forum shopping?

The Court rules in the affirmative.

The certification of non-forum shopping is required only for complaints and other
initiatory pleadings. The RTC erred in ruling that a contingent money claim against the estate
of a decedent is an initiatory pleading. In the present case, the whole probate proceeding was
initiated upon the filing of the petition for allowance of the decedent's will. Under Sections
1 and 5, Rule 86 of the Rules of Court, after granting letters of testamentary or of
administration, all persons having money claims against the decedent are mandated to file or
notify the court and the estate administrator of their respective money claims; otherwise, they
would be barred, subject to certain exceptions.[5]

Such being the case, a money claim against an estate is more akin to a motion for creditors'
claims to be recognized and taken into consideration in the proper disposition of the properties
of the estate. In Arquiza v. Court of Appeals,[6] the Court explained thus:
 x x x The office of a motion is not to initiate new litigation, but to bring a material but
incidental matter arising in the progress of the case in which the motion is filed. A motion
is not an independent right or remedy, but is confined to incidental matters in the progress of a
cause. It relates to some question that is collateral to the main object of the action and is
connected with and dependent upon the principal remedy.[7] (Emphasis supplied)

A money claim is only an incidental matter in the main action for the settlement of the
decedent's estate; more so if the claim is contingent since the claimant cannot even institute a
separate action for a mere contingent claim. Hence, herein petitioner's contingent money
claim, not being an initiatory pleading, does not require a certification against non-forum
shopping.

On the issue of filing fees, the Court ruled in Pascual v. Court of Appeals,[8] that the trial court
has jurisdiction to act on a money claim (attorney's fees) against an estate for services rendered
by a lawyer to the administratrix to assist her in fulfilling her duties to the estate even without
payment of separate docket fees because the filing fees shall constitute a lien on the judgment
pursuant to Section 2, Rule 141 of the Rules of Court, or the trial court may order the payment
of such filing fees within a reasonable time.[9] After all, the trial court had already assumed
jurisdiction over the action for settlement of the estate. Clearly, therefore, non-payment of filing
fees for a money claim against the estate is not one of the grounds for dismissing a money claim
against the estate.

With regard to the requirement of a written explanation, Maceda v. De

Guzman Vda. de Macatangay[10] is squarely in point. Therein, the Court held thus:

In Solar Team Entertainment, Inc. v. Ricafort, this Court, passing upon Section 11 of Rule 13 of
the Rules of Court, held that a court has the discretion to consider a pleading or paper as not filed
if said rule is not complied with.
Personal service and filing are preferred for obvious reasons. Plainly, such should expedite action or
resolution on a pleading, motion or other paper; and conversely, minimize, if not eliminate, delays likely
to be incurred if service or filing is done by mail, considering the inefficiency of the postal service.
Likewise, personal service will do away with the practice of some lawyers who, wanting to appear clever,
resort to the following less than ethical practices: (1) serving or filing pleadings by mail to catch opposing
counsel off-guard, thus leaving the latter with little or no time to prepare, for instance, responsive
 pleadings or an opposition; or (2) upon receiving notice from the post office that the registered mail
containing the pleading of or other paper from the adverse party may be claimed, unduly procrastinating
before claiming the parcel, or, worse, not claiming it at all, thereby causing undue delay in the disposition
of such pleading or other papers.

If only to underscore the mandatory nature of this innovation to our set of adjective rules requiring
personal service whenever practicable, Section 11 of Rule 13 then gives the court the discretion to
consider a pleading or paper as not filed if the other modes of service or filing were not resorted to
and no written explanation was made as to why personal service was not done in the first place. The
exercise of discretion must, necessarily consider the practicability of personal service, for Section 11
itself begins with the clause whenever practicable.

We thus take this opportunity to clarify that under Section 11, Rule 13 of the 1997 Rules of Civil
Procedure, personal service and filing is the general rule, and resort to other modes of service and filing,
the exception.Henceforth, whenever personal service or filing is practicable, in the light of the
circumstances of time, place and person, personal service or filing is mandatory. Only when personal
service or filing is not practicable may resort to other modes be had, which must then be accompanied by
a written explanation as to why personal service or filing was not practicable to begin with. In adjudging
the plausibility of an explanation, a court shall likewise consider the importance of the subject matter of
the case or the issues involved therein, and the prima facie merit of the pleading sought to be expunged
for violation of Section 11. (Emphasis and italics supplied)

In Musa v. Amor, this Court, on noting the impracticality of personal service, exercised its
discretion and liberally applied Section 11 of Rule 13:

As [Section 11, Rule 13 of the Rules of Court] requires, service and filing of pleadings
must be done personally whenever practicable. The court notes that in the present case,
personal service would not be practicable. Considering the distance between the
Court of Appeals and Donsol, Sorsogon where the petition was posted, clearly, service
by registered mail [sic] would have entailed considerable time, effort and expense. A
written explanation why service was not done personally might have been
superfluous. In any case, as the rule is so worded with the use of may, signifying
permissiveness, a violation thereof gives the court discretion whether or not to
consider the paper as not filed. While it is true that procedural rules are necessary to
secure an orderly and speedy administration of justice, rigid application of Section
11, Rule 13 may be relaxed in this case in the interest of substantial justice . (Emphasis
and italics supplied)

In the case at bar, the address of respondents counsel is Lopez, Quezon, while petitioner
Sonias counsels is Lucena City. Lopez, Quezon is 83 kilometers away from Lucena City. Such
distance makes personal service impracticable. As in Musa v. Amor, a written explanation why
service was not done personally might have been superfluous.

As this Court held in Tan v. Court of Appeals, liberal construction of a rule of procedure has been
allowed where, among other cases, the injustice to the adverse party is not commensurate with
the degree of his thoughtlessness in not complying with the procedure prescribed. [11] (Emphasis
supplied)

In the present case, petitioner holds office in Salcedo Village, Makati City, while counsel for
respondent and the RTC which rendered the assailed orders are both in Iligan City. The lower
court should have taken judicial notice of the great distance between said cities and realized that
it is indeed not practicable to serve and file the money claim personally. Thus,
following Medina v. Court of Appeals,[12] the failure of petitioner to submit a written explanation
why service has not been done personally, may be considered as superfluous and the RTC
should have exercised its discretion under Section 11, Rule 13, not to dismiss the money claim
of petitioner, in the interest of substantial justice.

The ruling spirit of the probate law is the speedy settlement of estates of deceased persons
for the benefit of creditors and those entitled to residue by way of inheritance or legacy after the
debts and expenses of administration have been paid.[13] The ultimate purpose for the rule on
money claims was further explained in Union Bank of the Phil. v. Santibaez,[14]thus:

The filing of a money claim against the decedents estate in the probate court is mandatory. As we
held in the vintage case of Py Eng Chong v. Herrera:

x x x This requirement is for the purpose of protecting the estate of the deceased by informing the
executor or administrator of the claims against it, thus enabling him to examine each claim and to
determine whether it is a proper one which should be allowed. The plain and obvious design of the rule is
the speedy settlement of the affairs of the deceased and the early delivery of the property to
the distributees, legatees, or heirs. The law strictly requires the prompt presentation and disposition
of the claims against the decedent's estate in order to settle the affairs of the estate as soon as
possible, pay off its debts and distribute the residue.[15] (Emphasis supplied)

The RTC should have relaxed and liberally construed the procedural rule on the requirement of
a written explanation for non-personal service, again in the interest of substantial justice.

WHEREFORE, the petition is GRANTED. The Orders of the Regional Trial Court
of Iligan City, Branch 6 dated January 15, 2003 and April 9, 2003, respectively,
are REVERSED and SET ASIDE. The Regional Trial Court of Iligan City, Branch 6, is
hereby DIRECTED to give due course and take appropriate action on petitioner's money claim
in accordance with Rule 82 of the Rules of Court.
No pronouncement as to costs.

SO ORDERED.

MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice
G.R. No. L-33172 October 18, 1979

ERNESTO CEASE, CECILIA CEASE, MARION CEASE, TERESA CEASE-

LACEBAL and the F.L. CEASE PLANTATION CO., INC. as Trustee of
properties of the defunct TIAONG MILLING & PLANTATION
CO., petitioners,
vs.
HONORABLE COURT OF APPEALS, (Special Seventh Division), HON.
MANOLO L. MADDELA, Presiding Judge, Court of First Instance of
Quezon, BENJAMIN CEASE and FLORENCE CEASE, respondents.

GUERRERO, J:

Appeal by certiorari from the decision of the Court of Appeals in CA-G.R. No.
45474, entitled "Ernesto Cease, et al. vs. Hon. Manolo L. Maddela, Judge of
the Court of First Instance of Quezon, et al." 1 which dismissed the petition for certiorari,
mandamus, and prohibition instituted by the petitioners against the respondent judge and the private respondents.

The antecedents of the case, as found by the appellate court, are as follows:

IT RESULTING: That the antecedents are not difficult to understand;

sometime in June 1908, one Forrest L. Cease common predecessor
in interest of the parties together with five (5) other American
citizens organized the Tiaong Milling and Plantation Company and
in the course of its corporate existence the company acquired
various properties but at the same time all the other original
incorporators were bought out by Forrest L. Cease together with his
children namely Ernest, Cecilia, Teresita, Benjamin, Florence and
one Bonifacia Tirante also considered a member of the family; the
charter of the company lapsed in June 1958; but whether there
were steps to liquidate it, the record is silent; on 13 August 1959,
Forrest L. Cease died and by extrajudicial partition of his shares,
among the children, this was disposed of on 19 October 1959; it
was here where the trouble among them came to arise because it
would appear that Benjamin and Florence wanted an actual division
while the other children wanted reincorporation; and proceeding on
that, these other children Ernesto, Teresita and Cecilia and
aforementioned other stockholder Bonifacia Tirante proceeded to
incorporate themselves into the F.L. Cease Plantation Company and
registered it with the Securities and Exchange Commission on 9
December, 1959; apparently in view of that, Benjamin and Florence
for their part initiated a Special Proceeding No. 3893 of the Court of
First Instance of Tayabas for the settlement of the estate of Forest
L. Cease on 21 April, 1960 and one month afterwards on 19 May
1960 they filed Civil Case No. 6326 against Ernesto, Teresita and
Cecilia Cease together with Bonifacia Tirante asking that the Tiaong
Milling and Plantation Corporation be declared Identical to F.L.
Cease and that its properties be divided among his children as his
intestate heirs; this Civil Case was resisted by aforestated
defendants and notwithstanding efforts of the plaintiffs to have the
properties placed under receivership, they were not able to succeed
because defendants filed a bond to remain as they have remained
in possession; after that and already, during the pendency of Civil
Case No. 6326 specifically on 21 May, 1961 apparently on the eve
of the expiry of the three (3) year period provided by the law for the
liquidation of corporations, the board of liquidators of Tiaong Milling
executed an assignment and conveyance of properties and trust
agreement in favor of F.L. Cease Plantation Co. Inc. as trustee of
the Tiaong Milling and Plantation Co. so Chat upon motion of the
plaintiffs trial Judge ordered that this alleged trustee be also
included as party defendant; now this being the situation, it will be
remembered that there were thus two (2) proceedings pending in
the Court of First Instance of Quezon namely Civil Case No. 6326
and Special Proceeding No. 3893 but both of these were assigned
to the Honorable Respondent Judge Manolo L. Maddela p. 43 and
the case was finally heard and submitted upon stipulation of facts
pp, 34-110, rollo; and trial Judge by decision dated 27 December
1969 held for the plaintiffs Benjamin and Florence, the decision
containing the following dispositive part:

VIEWED IN THE LIGHT OF ALL THE FOREGOING,

judgment is hereby rendered in favor of plaintiffs and
against the defendants declaring that:

1) The assets or properties of the defunct Tiaong Milling

and Plantation Company now appearing under the name
of F.L. Cease Plantation Company as Trustee, is the
estate also of the deceased Forrest L. Cease and
ordered divided, share and share alike, among his six
children the plaintiffs and the defendants in accordance
with Rule 69, Rules of Court;

2) The Resolution to Sell dated October 12, 1959 and the

Transfer and Conveyance with Trust Agreement is hereby
set aside as improper and illegal for the purposes and
effect that it was intended and, therefore, null and void;

3) That F.L. Cease Plantation Company is removed as

'Trustee for interest against the estate and essential to
the protection of plaintiffs' rights and is hereby ordered to
deliver and convey all the properties and assets of the
defunct Tiaong Milling now under its name, custody and
control to whomsoever be appointed as Receiver -
disqualifying and of the parties herein - the latter to act
accordingly upon proper assumption of office; and

4) Special Proceedings No. 3893 for administration is

terminated and dismissed; the instant case to proceed
but on issues of damages only and for such action
inherently essential for partition.

SO ORDERED.

Lucena City, December 27, 1969., pp. 122-a-123, rollo.

upon receipt of that, defendants there filled a notice of appeal p.
129, rollo together with an appeal bond and a record on appeal but
the plaintiffs moved to dismiss the appeal on the ground that the
judgment was in fact interlocutory and not appealable p. 168 rollo
and this position of defendants was sustained by trial Judge, His
Honor ruling that

IN VIEW OF THE FOREGOING, the appeal interposed

by plaintiffs is hereby dismissed as premature and the
Record on Appeal is necessarily disapproved as improper
at this stage of the proceedings.

SO ORDERED.

Lucena City, April 27, 1970.

and so it was said defendants brought the matter first to the

Supreme Court, on mandamus on 20 May, 1970 to compel the
appeal and certiorari and prohibition to annul the order of 27 April,
1970 on the ground that the decision was "patently erroneous" p.
16, rollo; but the Supreme Court remanded the case to this Court of
Appeals by resolution of 27 May 1970, p. 173, and this Court of
Appeals on 1 July 1970 p. 175 dismissed the petition so far as the
mandamus was concerned taking the view that the decision sought
to be appealed dated 27 December, 1969 was interlocutory and not
appealable but on motion for reconsideration of petitioners and
since there was possible merit so far as its prayer for certiorari and
prohibition was concerned, by resolution of the Court on 19 August,
1970, p. 232, the petition was permitted to go ahead in that
capacity; and it is the position of petitioners that the decision of 27
December, 1969 as well as the order of 27 April, 1970 suffered of
certain fatal defects, which respondents deny and on their part raise
the preliminary point that this Court of Appeals has no authority to
give relief to petitioners because not

in aid of its appellate jurisdiction,

 and that the questions presented cannot be raised for the first time
before this Court of Appeals;

Respondent Court of Appeals in its decision promulgated December 9, 1970

dismissed the petition with costs against petitioners, hence the present petition
to this Court on the following assignment of errors:

THE COURT OF APPEALS ERRED -

I. IN SANCTIONING THE WRONGFUL EXERCISE OF JURISDICTION

BEYOND THE LIMITS OF AUTHORITY CONFERRED BY LAW UPON THE
LOWER COURT, WHEN IT PROCEEDED TO HEAR, ADJUDGE AND
ADJUDICATE -

(a) Special Proceedings No. 3893 for the settlement of the Estate of
Forrest L. Cease, simultaneously and concurrently with -

(b) Civil Case No. 6326, wherein the lower Court ordered Partition
under Rule 69, Rules of Court -

THE ISSUE OF LEGAL OWNERSHIP OF THE PROPERTIES COMMONLY

INVOLVED IN BOTH ACTIONS HAVING BEEN RAISED AT THE OUTSET BY
THE TIAONG MILLING AND PLANTATION COMPANY, AS THE
REGISTERED OWNER OF SUCH PROPERTIES UNDER ACT 496.

II. IN AFFIRMING - UNSUPPORTED BY ANY EVIDENCE WHATSOEVER

NOR CITATION OF ANY LAW TO JUSTIFY - THE UNWARRANTED
CONCLUSION THAT SUBJECT PROPERTIES, FOUND BY THE LOWER
COURT AND THE COURT OF APPEALS AS ACTUALLY REGISTERED IN
THE NAME OF PETITIONER CORPORATION AND/OR ITS PREDECESSOR
IN INTEREST, THE TIAONG MILLING AND PLANTATION COMPANY,
DURING ALL THE 50 YEARS OF ITS CORPORATE EXISTENCE "ARE ALSO
PROPERTIES OF THE ESTATE OF FOREST L. CEASE."

III. IN AFFIRMING THE ARBITRARY CONCLUSION OF THE LOWER

COURT THAT ITS DECISION OF DECEMBER 27,1969 IS AN
"INTERLUCUTORY DECISION." IN DISMISSED NG THE PETITION FOR
WRIT OF MANDAMUS, AND IN AFFIRMING THE MANIFESTLY UNJUST
JUDGMENT RENDERED WHICH CONTRADICTS THE FINDINGS OF
ULTIMATE FACTS THEREIN CONTAINED.

During the period that ensued after the filing in this Court of the respective
briefs and the subsequent submission of the case for decision, some incidents
had transpired, the summary of which may be stated as follows:

1. Separate from this present appeal, petitioners filed a petition for certiorari
and prohibition in this Court, docketed as G.R. No. L-35629 (Ernesto Cease,
et al. vs. Hon. Manolo L. Maddela, et al.) which challenged the order of
respondent judge dated September 27, 1972 appointing his Branch Clerk of
Court, Mr. Eleno M. Joyas, as receiver of the properties subject of the
appealed civil case, which order, petitioners saw as a virtual execution of the
lower court's judgment (p. 92, rollo). In Our resolution of November 13, 1972,
issued in G.R. No. L-35629, the petition was denied since respondent judge
merely appointed an auxilliary receiver for the preservation of the properties as
well as for the protection of the interests of all parties in Civil Case No. 6326;
but at the same time, We expressed Our displeasure in the appointment of the
branch clerk of court or any other court personnel for that matter as receiver.
(p. 102, rollo).

2. Meanwhile, sensing that the appointed receiver was making some attempts
to take possession of the properties, petitioners filed in this present appeal an
urgent petition to restrain proceedings in the lower court. We resolved the
petition on January 29, 1975 by issuing a corresponding temporary restraining
order enjoining the court a quo from implementing its decision of December
27, 1969, more particularly, the taking over by a receiver of the properties
subject of the litigation, and private respondents Benjamin and Florence
Cease from proceeding or taking any action on the matter until further orders
from this Court (pp. 99-100, rollo). Private respondents filed a motion for
reconsideration of Our resolution of January 29, 1975. After weighing the
arguments of the parties and taking note of Our resolution in G.R. No. L-35629
which upheld the appointment of a receiver, We issued another resolution
dated April 11, 1975 lifting effective immediately Our previous temporary
restraining order which enforced the earlier resolution of January 29, 1975 (pp.
140-141, rollo).

3. On February 6, 1976, private respondents filed an urgent petition to restrain

proceedings below in view of the precipitate replacement of the court
appointed receiver Mayor Francisco Escueta (vice Mr. Eleno M. Joyas) and
the appointment of Mr. Guillermo Lagrosa on the eve of respondent Judge
Maddela's retirement (p. 166, rollo). The urgent petition was denied in Our
resolution of February 18, 1976 (p. 176, rollo).

4. Several attempts at a compromise agreement failed to materialize. A

Tentative Compromise Agreement dated July 30, 1975 was presented to the
Court on August 6, 1976 for the signature of the parties, but respondents
"unceremoniously" repudiated the same by leaving the courtroom without the
permission of the court (Court of First Instance of Quezon, Branch 11) as a
result of which respondents and their counsel were cited for contempt (p. 195,
197, rollo) that respondents' reason for the repudiation appears to be
petitioners' failure to render an audited account of their administration covering
the period from May 31, 1961 up to January 29, 1974, plus the inclusion of a
provision on waiver and relinquishment by respondents of whatever rights that
may have accrued to their favor by virtue of the lower court's decision and the
affirmative decision of the appellate court.

We go now to the alleged errors committed by the respondent Court of

Appeals.

As can be gleaned from petitioners' brief and the petition itself, two contentions
underlie the first assigned error. First, petitioners argue that there was an
irregular and arbitrarte termination and dismissal of the special proceedings for
judicial administration simultaneously ordered in the lower court . s decision in
Civil Case No. 6326 adjudicating the partition of the estate, without
categorically, reasoning the opposition to the petition for administration
Second, that the issue of ownership had been raised in the lower court when
Tiaong Milling asserted title over the properties registered in its corporate
name adverse to Forrest L. Cease or his estate, and that the said issue was
erroneously disposed of by the trial court in the partition proceedings when it
concluded that the assets or properties of the defunct company is also the
estate of the deceased proprietor.

The propriety of the dismissal and termination of the special proceedings for
judicial administration must be affirmed in spite of its rendition in another
related case in view of the established jurisprudence which favors partition
when judicial administration become, unnecessary. As observed by the Court
of Appeals, the dismissal at first glance is wrong, for the reason that what was
actually heard was Civil Case No. 6326. The technical consistency, however, it
is far less importance than the reason behind the doctrinal rule against placing
an estate under administration. Judicial rulings consistently hold the view that
where partition is possible, either judicial or extrajudicial, the estate should not
be burdened with an administration proceeding without good and compelling
reason. When the estate has no creditors or pending obligations to be paid,
the beneficiaries in interest are not bound to submit the property to judicial
administration which is always long and costly, or to apply for the appointment
of an administrator by the court, especially when judicial administration is
unnecessary and superfluous. Thus -

When a person dies without leaving pending obligations to be paid,

his heirs, whether of age or not, are bound to submit the property to
a judicial administration, which is always long and costly, or to apply
for the appointment of an administrator by the court. It has been
uniformly held that in such case the judicial administration and the
appointment of an administrator are superfluous and unnecessary
proceedings (Ilustre vs. Alaras Frondosa, 17 Phil., 321; Malahacan
vs. Ignacio, 19 Phil, 434; Bondad vs. Bondad, 34 Phil., 232;
Baldemor vs. Malangyaon, 34 Phil., 367; Fule vs. Fule, 46 Phil.,
317). Syllabus, Intestate estate of the deceased Luz Garcia. Pablo
G. Utulo vs. Leona Pasion Viuda de Garcia, 66 Phil. 302.

Where the estate has no debts, recourse may be had to an

administration proceeding only if the heirs have good reasons for
not resorting to an action for partition. Where partition is possible,
either in or out of court, the estate should not be burdened with an
 administration proceeding without good and compelling reasons.
(Intestate Estate of Mercado vs. Magtibay, 96 Phil. 383)

In the records of this case, We find no indication of any indebtedness of the

estate. No creditor has come up to charge the estate within the two-year
period after the death of Forrest L. Cease, hence, the presumption under
Section 1, Rule 74 that the estate is free from creditors must apply. Neither
has the status of the parties as legal heirs, much less that of respondents,
been raised as an issue. Besides, extant in the records is the stipulation of the
parties to submit the pleadings and contents of the administration proceedings
for the cognizance of the trial judge in adjudicating the civil case for partition
(Respondents' Brief, p, 20, rollo). As respondents observe, the parties in both
cases are the same, so are the properties involved; that actual division is the
primary objective in both actions; the theory and defense of the respective
parties are likewise common; and that both cases have been assigned to the
same respondent judge. We feel that the unifying effect of the foregoing
circumstances invites the wholesome exception to the structures of procedural
rule, thus allowing, instead, room for judicial flexibility. Respondent judge's
dismissal of the administration proceedings then, is a judicious move,
appreciable in today's need for effective and speedy administration of justice.
There being ample reason to support the dismissal of the special proceedings
in this appealed case, We cannot see in the records any compelling reason
why it may not be dismissed just the same even if considered in a separate
action. This is inevitably certain specially when the subject property has
already been found appropriate for partition, thus reducing the petition for
administration to a mere unnecessary solicitation.

The second point raised by petitioners in their first assigned error is equally
untenable. In effect, petitioners argue that the action for partition should not
have prospered in view of the repudiation of the co-ownership by Tiaong
Milling and Plantation Company when, as early in the trial court, it already
asserted ownership and corporate title over the properties adverse to the right
of ownership of Forrest L. Cease or his estate. We are not unmindful of the
doctrine relied upon by petitioners in Rodriguez vs. Ravilan, 17 Phil. 63
wherein this Court held that in an action for partition, it is assumed that the
parties by whom it is prosecuted are all co-owners or co-proprietors of the
property to be divided, and that the question of common ownership is not to be
argued, not the fact as to whether the intended parties are or are not the
owners of the property in question, but only as to how and in what manner and
proportion the said property of common ownership shall be distributed among
the interested parties by order of the Court. Consistent with this dictum, it has
been field that if any party to a suit for partition denies the pro-
indiviso character of the estate whose partition is sought, and claims instead,
exclusive title thereto the action becomes one for recovery of property
cognizable in the courts of ordinary jurisdiction. 2

Petitioners' argument has only theoretical persuasion, to say the least, rather
apparent than real. It must be remembered that when Tiaong Milling adduced
its defense and raised the issue of ownership, its corporate existence already
terminated through the expiration of its charter. It is clear in Section 77 of Act
No. 1459 (Corporation Law) that upon the expiration of the charter period, the
corporation ceases to exist and is dissolved ipso facto except for purposes
connected with the winding up and liquidation. The provision allows a three
year, period from expiration of the charter within which the entity gradually
settles and closes its affairs, disposes and convey its property and to divide its
capital stock, but not for the purpose of continuing the business for which it
was established. At this terminal stage of its existence, Tiaong Milling may no
longer persist to maintain adverse title and ownership of the corporate assets
as against the prospective distributees when at this time it merely holds the
property in trust, its assertion of ownership is not only a legal contradiction, but
more so, to allow it to maintain adverse interest would certainly thwart the very
purpose of liquidation and the final distribute loll of the assets to the proper,
parties.

We agree with the Court of Appeals in its reasoning that substance is more
important than form when it sustained the dismissal of Special Proceedings
No. 3893, thus -

a) As to the dismissal of Special Proceedings No. 3893, of course,

at first glance, this was wrong, for the reason that the case trial had
been heard was Civil Case No. 6326; but what should not be
overlooked either is Chat respondent Judge was the same Judge
that had before him in his own sala, said Special Proceedings No.
3893, p. 43 rollo, and the parties to the present Civil Case No. 6326
had themselves asked respondent Judge to take judicial notice of
the same and its contents page 34, rollo; it is not difficult to see that
when respondent Judge in par. 4 of the dispositive part of his
decision complained of, ordered that,

4) Special Proceedings No. 3893 for administration is

terminated and dismissed; the instant case to proceed
but on issues of damages only and for such action
inherently essential or partition. p. 123, rollo,

in truth and in fact, His Honor was issuing that order also within Civil
Case No. 632 but in connection with Special Proceedings No.
389:3: for substance is more important Chan form, the contending
par ties in both proceedings being exactly the same, but not only
this, let it not be forgotten that when His Honor dismissed Special
Proceedings No. 3893, that dismissal precisely was a dismissal that
petitioners herein had themselves sought and solicited from
respondent Judge as petitioners themselves are in their present
petition pp. 5-6, rollo; this Court must find difficulty in reconciling
petitioners' attack with the fact that it was they themselves that had
insisted on that dismissal; on the principle that not he who is favored
but he who is hurt by a judicial order is he only who should be heard
to complain and especially since extraordinary legal remedies are
remedies in extermies granted to parties ' who have been the
victims not merely of errors but of grave wrongs, and it cannot be
seen how one who got what he had asked could be heard to claim
that he had been the victim of a wrong, petitioners should not now
complain of an order they had themselves asked in order to attack
such an order afterwards; if at all, perhaps, third parties, creditors,
the Bureau of Internal Revenue, might have been prejudiced, and
could have had the personality to attack that dismissal of Special
Proceedings No. 3893, but not petitioners herein, and it is not now
 for this Court of Appeals to protect said third persons who have not
come to the Court below or sought to intervene herein;

On the second assigned error, petitioners argue that no evidence has been
found to support the conclusion that the registered properties of Tiaong Milling
are also properties of the estate of Forrest L. Cease; that on the contrary, said
properties are registered under Act No. 496 in the name of Tiaong Milling as
lawful owner and possessor for the last 50 years of its corporate existence.

We do not agree. In reposing ownership to the estate of Forrest L. Cease, the

trial court indeed found strong support, one that is based on a well-entrenched
principle of law. In sustaining respondents' theory of "merger of Forrest L.
Cease and The Tiaong Milling as one personality", or that "the company is only
the business conduit and alter ego of the deceased Forrest L. Cease and the
registered properties of Tiaong Milling are actually properties of Forrest L.
Cease and should be divided equally, share and share alike among his six
children, ... ", the trial court did aptly apply the familiar exception to the general
rule by disregarding the legal fiction of distinct and separate corporate
personality and regarding the corporation and the individual member one and
the same. In shredding the fictitious corporate veil, the trial judge narrated the
undisputed factual premise, thus:

While the records showed that originally its incorporators were

aliens, friends or third-parties in relation of one to another, in the
course of its existence, it developed into a close family corporation.
The Board of Directors and stockholders belong to one family the
head of which Forrest L. Cease always retained the majority stocks
and hence the control and management of its affairs. In fact, during
the reconstruction of its records in 1947 before the Security and
Exchange Commission only 9 nominal shares out of 300 appears in
the name of his 3 eldest children then and another person close to
them. It is likewise noteworthy to observe that as his children
increase or perhaps become of age, he continued distributing his
shares among them adding Florence, Teresa and Marion until at the
time of his death only 190 were left to his name. Definitely, only the
members of his family benefited from the Corporation.
 The accounts of the corporation and therefore its operation, as well
as that of the family appears to be indistinguishable and apparently
joined together. As admitted by the defendants (Manifestation of
Compliance with Order of March 7, 1963 [Exhibit "21"] the
corporation 'never' had any account with any banking institution or if
any account was carried in a bank on its behalf, it was in the name
of Mr. Forrest L. Cease. In brief, the operation of the Corporation is
merged with those of the majority stockholders, the latter using the
former as his instrumentality and for the exclusive benefits of all his
family. From the foregoing indication, therefore, there is truth in
plaintiff's allegation that the corporation is only a business conduit of
his father and an extension of his personality, they are one and the
same thing. Thus, the assets of the corporation are also the estate
of Forrest L. Cease, the father of the parties herein who are all
legitimate children of full blood.

A rich store of jurisprudence has established the rule known as the doctrine of
disregarding or piercing the veil of corporate fiction. Generally, a corporation is
invested by law with a personality separate and distinct from that of the
persons composing it as well as from that of any other legal entity to which it
may be related. By virtue of this attribute, a corporation may not, generally, be
made to answer for acts or liabilities of its stockholders or those of the legal
entities to which it may be connected, and vice versa. This separate and
distinct personality is, however, merely a fiction created by law for
convenience and to promote the ends of justice (Laguna Transportation
Company vs. Social Security System, L-14606, April 28, 1960; La Campana
Coffee Factory, Inc. vs. Kaisahan ng mga Manggagawa sa La Campana, L-
5677, May 25, 1953). For this reason, it may not be used or invoked for ends
subversive of the policy and purpose behind its creation (Emiliano Cano
Enterprises, Inc. vs. CIR, L-20502, Feb. 26, 1965) or which could not have
been intended by law to which it owes its being McConnel vs. Court of
Appeals, L- 10510, March 17, 1961, 1 SCRA 722). This is particularly true
where the fiction is used to defeat public convenience, justify wrong, protect
fraud, defend crime (Yutivo Sons Hardware Company vs. Court of Tax
Appeals, L-13203, Jan. 28, 1961, 1 SCRA 160), confuse legitimate legal or
judicial issues (R. F. Sugay & Co. vs. Reyes, L-20451, Dec. 28, 1964),
perpetrate deception or otherwise circumvent the law (Gregorio Araneta, Inc.
vs. reason de Paterno, L-2886, Aug. 22, 1952, 49 O.G. 721). This is likewise
true where the corporate entity is being used as an alter ego, adjunct, or
business conduit for the sole benefit of the stockholders or of another
corporate entity (McConnel vs. Court of Appeals, supra; Commissioner of
Internal Revenue vs. Norton Harrison Co., L-7618, Aug. 31, 1964).

In any of these cases, the notion of corporate entity will be pierced or

disregarded, and the corporation will be treated merely as an association of
persons or, where there are two corporations, they will be merged as one, the
one being merely regarded as part or the instrumentality of the otter (Koppel
[Phil.] Inc. vs. Yatco, 77 Phil. 496, Yutivo Sons Hardware Company vs. Court
of Tax Appeals, supra).

So must the case at bar add to this jurisprudence. An indubitable deduction

from the findings of the trial court cannot but lead to the conclusion that the
business of the corporation is largely, if not wholly, the personal venture of
Forrest L. Cease. There is not even a shadow of a showing that his children
were subscribers or purchasers of the stocks they own. Their participation as
nominal shareholders emanated solely from Forrest L. Cease's gratuitous dole
out of his own shares to the benefit of his children and ultimately his family.

Were we sustain the theory of petitioners that the trial court acted in excess of
jurisdiction or abuse of discretion amounting to lack of jurisdiction in deciding
Civil Case No. 6326 as a case for partition when the defendant therein, Tiaong
Milling and Plantation Company, Inc. as registered owner asserted ownership
of the assets and properties involved in the litigation, which theory must
necessarily be based on the assumption that said assets and properties of
Tiaong Milling and Plantation Company, Inc. now appearing under the name of
F. L. Cease Plantation Company as Trustee are distinct and separate from the
estate of Forrest L. Cease to which petitioners and respondents as legal heirs
of said Forrest L. Cease are equally entitled share and share alike, then that
legal fiction of separate corporate personality shall have been used to delay
and ultimately deprive and defraud the respondents of their successional
rights to the estate of their deceased father. For Tiaong Milling and Plantation
Company shall have been able to extend its corporate existence beyond the
period of its charter which lapsed in June, 1958 under the guise and cover of
F. L, Cease Plantation Company, Inc. as Trustee which would be against the
law, and as Trustee shall have been able to use the assets and properties for
the benefit of the petitioners, to the great prejudice and defraudation. of private
respondents. Hence, it becomes necessary and imperative to pierce that
corporate veil.

Under the third assigned error, petitioners claim that the decision of the lower
court in the partition case is not interlocutory but rather final for it consists of
final and determinative dispositions of the contentions of the parties. We find
no merit in petitioners' stand.

Under the 1961 pronouncement and ruling of the Supreme Court in Vda. de
Zaldarriaga vs. Enriquez, 1 SCRA 1188 (and the sequel case of Vda. de
Zaldarriaga vs. Zaldarriaga, 2 SCRA 356), the lower court's dismissal of
petitioners' proposed appeal from its December 27, 1969 judgment as affirmed
by the Court of Appeals on the ground of prematurity in that the judgment was
not final but interlocutory was in order. As was said in said case:

It is true that in Africa vs. Africa, 42 Phil. 934 and other cases it was
held - contrary to the rule laid down in Ron vs. Mojica, 8 Phil.
328; Rodriguez vs. Ravilan, 17 Phil. 63 - that in a partition case
where defendant relies on the defense of exclusive ownership, the
action becomes one for title and the decision or order directing
partition is final, but the ruling to this effect has been expressly
reversed in the Fuentebella case which, in our opinion, expresses
the correct view, considering that a decision or order directing
partition is not final because it leaves something more to be done in
the trial court for the complete disposition of the case, namely, the
appointment of commissioners, the proceedings to be had before
them, the submission of their report which, according to law, must
be set for hearing. In fact, it is only after said hearing that the court
may render a final judgment finally disposing of the action (Rule 71,
section 7, Rules of Court). (1 SCRA at page 1193).
It should be noted, however, that the said ruling in Zaldarriaga as based
on Fuentebella vs. Carrascoso, XIV Lawyers Journal 305 (May 27, 1942), has
been expressly abandoned by the Court in Miranda vs. Court of Appeals, 71
SCRA 295; 331-333 (June 18, 1976) wherein Mr. Justice Teehankee, speaking
for the Court, laid down the following doctrine:

The Court, however, deems it proper for the guidance of the bench
and bar to now declare as is clearly indicated from the compelling
reasons and considerations hereinabove stated:

- that the Court considers the better rule to be that stated in H. E.

Heacock Co. vs. American Trading Co., to wit, that where the
primary purpose of a case is to ascertain and determine who
between plaintiff and defendant is the true owner and entitled to the
exclusive use of the disputed property, "the judgment . . . rendered
by the lower court [is] a judgment on the merits as to those
questions, and [that] the order of the court for an accounting was
based upon, and is incidental to the judgment on the merits. That is
to say, that the judgment . . . [is] a final judgment ... that in this kind
of a case an accounting is a mere incident to the judgment; that
an appeal lies from the rendition of the judgment as rendered ... "(as
is widely held by a great number of judges and members of the bar,
as shown by the cases so decided and filed and still pending with
the Court) for the fundamental reasons therein stated that "this is
more in harmony with the administration of justice and the spirit and
intent of the [Rules]. If on appeal the judgment of the lower court is
affirmed, it would not in the least work an injustice to any of the legal
rights of [appellee]. On the other hand, if for any reason this court
should reverse the judgment of the lower court, the accounting
would be a waste of time and money, and might work a material
injury to the [appellant]; and

- that accordingly, the contrary ruling in Fuentebella vs.

Carrascoso which expressly reversed the Heacock case and a line
of similar decisions and ruled that such a decision for recovery of
property with accounting "is not final but merely interlocutory and
therefore not appealable" and subsequent cases adhering to the
same must be now in turn abandoned and set aside.

Fuentebella adopted instead the opposite line of conflicting

decisions mostly in partition proceedings and exemplified by Ron
vs. Mojica 8 Phil. 928 (under the old Code of Civil Procedure) that
an order for partition of real property is not final and appealable until
after the actual partition of the property as reported by the court
appointed commissioners and approved by the court in
its judgment accepting the report. lt must be especially noted that
such rule governing partitions is now so expressly provided and
spelled out in Rule 69 of the Rules of Court, with special reference
to Sections 1, 2, 3, 6, 7 and 11, to wit, that there must first be a
preliminar, order for partition of the real estate (section 2) and where
the parties-co-owners cannot agree, the court appointed
commissioners make a plan of actual partition which must first be
passed upon and accepted by the trial court and embodied in a
judgment to be rendered by it (sections 6 and 11). In partition cases,
it must be further borne in mind that Rule 69, section 1 refers to "a
person having the right to compel the partition of real estate," so
that the general rule of partition that an appeal will not lie until the
partition or distribution proceedings are terminated will not apply
where appellant claims exclusive ownership of the whole property
and denies the adverse party's right to any partition, as was the
ruling in Villanueva vs. Capistrano and Africa vs .Africa, supra,
Fuentebellas express rehearsal of these cases must likewise be
deemed now also abandoned in view of the Court's expressed
preference for the rationale of the Heacock case.

The Court's considered opinion is that imperative considerations

of public policy and of sound practice in the courts and adherence to
the constitutional mandate of simplified, just, speedy and
inexpensive determination of every action call for considering such
judgments for recovery of property with accounting as
final judgments which are duly appealable (and would therefore
 become final and executory if not appealed within the reglementary
period) with the accounting as a mere incident of the judgment to be
rendered during the course of the appeal as provided in Rule 39,
section 4 or to be implemented at the execution stage upon final
affirmance on appeal of the judgment (as in Court of Industrial
Relations unfair labor practice cases ordering the reinstatement of
the worker with accounting, computation and payment of his
backwages less earnings elsewhere during his layoff) and that the
only reason given in Fuentebelia for the contrary ruling, viz, "the
general harm that would follow from throwing the door open to
multiplicity of appeals in a single case" of lesser import and
consequence. (Emphasis copied).

The miranda ruling has since then been applied as the new rule by a
unanimous Court in Valdez vs. Bagasao, 82 SCRA 22 (March 8, 1978).

If there were a valid genuine claim of Exclusive ownership of the inherited

properties on the part of petitioners to respondents' action for partition, then
under the Miranda ruling, petitioners would be sustained, for as expressly held
therein " the general rule of partition that an appeal will not lie until the partition
or distribution proceedings are terminated will not apply where appellant
claims exclusive ownership of the whole property and denies the adverse
party's right to any partition."

But this question has now been rendered moot and academic for the very
issue of exclusive ownership claimed by petitioners to deny and defeat
respondents' right to partition - which is the very core of their rejected appeal -
has been squarely resolved herein against them, as if the appeal had been
given due course. The Court has herein expressly sustained the trial court's
findings, as affirmed by the Court of Appeals, that the assets or properties of
the defunct company constitute the estate of the deceased proprietor (supra at
page 7) and the defunct company's assertion of ownership of the properties is
a legal contradiction and would but thwart the liquidation and final distribution
and partition of the properties among the parties hereof as children of their
deceased father Forrest L. Cease. There is therefore no further hindrance to
effect the partition of the properties among the parties in implementation of the
appealed judgment.

One last consideration. Parties are brothers and sisters, legal heirs of their
deceased father, Forrest L. Cease. By all rights in law and jurisprudence, each
is entitled to share and share alike in the estate, which the trial court correctly
ordained and sustained by the appellate court. Almost 20 years have lapsed
since the filing of Special Proceedings No. 3893 for the administration of the
Estate of Forrest L. Cease and Civil Case No. 6326 for liquidation and partition
of the assets of the defunct Tiaong Milling and Plantation Co., Inc. A
succession of receivers were appointed by the court to take, keep in
possession, preserve and manage properties of the corporation which at one
time showed an income of P386,152.90 and expenses of P308,405.01 for the
period covering January 1, 1960 to August 31, 1967 as per Summary of
Operations of Commissioner for Finance appointed by the Court (Brief for
Respondents, p. 38). In the meantime, ejectment cases were filed by and
against the heirs in connection with the properties involved, aggravating the
already strained relations of the parties. A prudent and practical realization of
these circumstances ought and must constrain the parties to give each one his
due in law and with fairness and dispatch that their basic rights be enjoyed.
And by remanding this case to the court a quo for the actual partition of the
properties, the substantial rights of everyone of the heirs have not been
impaired, for in fact, they have been preserved and maintained.

WHEREFORE, IN VIEW OF THE FOREGOING, the judgment appealed from

is hereby AFFIRMED with costs against the petitioners.

SO ORDERED.

Teehankee, Actg. C.J., (Chairman), Makasiar, Fernandez, De Castro and

Melencio-Herrera, JJ., concur.

#Footnotes

1 Special Seventh Division; Gatmaitan, J., ponente; Perez, J.,

concurring in the result; Reyes, A., J., concurring.
 2 See Martin, Rules of Court, Vol. 111, 308 (1973) citing the cases
of Africa v. Africa, 42 Phil. 902; Bargayo v. Camumot, 40 Phil. 856;
Rodriguez v. Ravilan, 17 Phil. 63; De Castro vs. Echarri, 20 Phil. 23;
Ferrer vs. Inchausti, 38 Phil. 905, Reyes vs. Cordero, 46 Phil. 658;
Villanueva vs. Capistrano, 49 Phil. 460; Hilario vs. Dilla, et al., CA-
G.R. No. 5266-R, Feb. 28, 1951.

G.R. No. L-81147 June 20, 1989

VICTORIA BRINGAS PEREIRA, petitioner,

vs.
THE HONORABLE COURT OF APPEALS and RITA PEREIRA
NAGAC, respondents.

Benjamin J. Quitoriano for petitioner.

Linzag-Arcilla & Associates Law Offices for private respondent.

GANCAYCO, J.:

Is a judicial administration proceeding necessary when the decedent dies

intestate without leaving any debts? May the probate court appoint the
surviving sister of the deceased as the administratrix of the estate of the
deceased instead of the surviving spouse? These are the main questions
which need to be resolved in this case.

Andres de Guzman Pereira, an employee of the Philippine Air Lines, passed

away on January 3, 1983 at Bacoor, Cavite without a will. He was survived by
his legitimate spouse of ten months, the herein petitioner Victoria Bringas
Pereira, and his sister Rita Pereira Nagac, the herein private respondent.

On March 1, 1983, private respondent instituted before Branch 19 of the

Regional Trial Court of Bacoor, Cavite, Special Proceeding No. RTC-BSP-83-4
for the issuance of letters of administration in her favor pertaining to the estate
of the deceased Andres de Guzman Pereira. 1 In her verified petition, private respondent alleged
the following: that she and Victoria Bringas Pereira are the only surviving heirs of the deceased; that the deceased left no
will; that there are no creditors of the deceased; that the deceased left several properties, namely: death benefits from the
Philippine Air Lines (PAL), the PAL Employees Association (PALEA), the PAL Employees Savings and Loan Association,
Inc. (PESALA) and the Social Security System (SSS), as well as savings deposits with the Philippine National Bank (PNB)
and the Philippine Commercial and Industrial Bank (PCIB), and a 300 square meter lot located at Barangay Pamplona,
Las Pinas, Rizal and finally, that the spouse of the deceased (herein petitioner) had been working in London as an
auxiliary nurse and as such one-half of her salary forms part of the estate of the deceased.

On March 23,1983, petitioner filed her opposition and motion to dismiss the
petition of private respondent 2alleging that there exists no estate of the deceased for purposes of
administration and praying in the alternative, that if an estate does exist, the letters of administration relating to the said
estate be issued in her favor as the surviving spouse.

In its resolution dated March 28, 1985, the Regional Trial Court, appointed
private respondent Rita Pereira Nagac administratrix of the intestate estate of
Andres de Guzman Pereira upon a bond posted by her in the amount of
Pl,000.00. The trial court ordered her to take custody of all the real and
personal properties of the deceased and to file an inventory thereof within
three months after receipt of the order. 3

Not satisfied with the resolution of the lower court, petitioner brought the case
to the Court of Appeals. The appellate court affirmed the appointment of
private respondent as administratrix in its decision dated December 15, 1987. 4

Hence, this petition for review on certiorari where petitioner raises the
following issues: (1) Whether or not there exists an estate of the deceased
Andres de Guzman Pereira for purposes of administration; (2) Whether or not
a judicial administration proceeding is necessary where there are no debts left
by the decedent; and, (3) Who has the better right to be appointed as
administratrix of the estate of the deceased, the surviving spouse Victoria
Bringas Pereira or the surviving sister Rita Pereira Nagac?
Anent the first issue, petitioner contends that there exists no estate of the
deceased for purposes of administration for the following reasons: firstly, the
death benefits from PAL, PALEA, PESALA and the SSS belong exclusively to
her, being the sole beneficiary and in support of this claim she submitted letter-
replies from these institutions showing that she is the exclusive beneficiary of
said death benefits; secondly, the savings deposits in the name of her
deceased husband with the PNB and the PCIB had been used to defray the
funeral expenses as supported by several receipts; and, finally, the only real
property of the deceased has been extrajudicially settled between the
petitioner and the private respondent as the only surviving heirs of the
deceased.

Private respondent, on the other hand, argues that it is not for petitioner to
decide what properties form part of the estate of the deceased and to
appropriate them for herself. She points out that this function is vested in the
court in charge of the intestate proceedings.

Petitioner asks this Court to declare that the properties specified do not belong
to the estate of the deceased on the basis of her bare allegations as
aforestated and a handful of documents. Inasmuch as this Court is not a trier
of facts, We cannot order an unqualified and final exclusion or non-exclusion
of the property involved from the estate of the deceased. 5

The resolution of this issue is better left to the probate court before which the
administration proceedings are pending. The trial court is in the best position
to receive evidence on the discordant contentions of the parties as to the
assets of the decedent's estate, the valuations thereof and the rights of the
transferees of some of the assets, if any. 6 The function of resolving whether or not a certain
property should be included in the inventory or list of properties to be administered by the administrator is one clearly
within the competence of the probate court. However, the court's determination is only provisional in character, not
7
conclusive, and is subject to the final decision in a separate action which may be instituted by the parties.

Assuming, however, that there exist assets of the deceased Andres de

Guzman Pereira for purposes of administration, We nonetheless find the
administration proceedings instituted by private respondent to be unnecessary
as contended by petitioner for the reasons herein below discussed.
The general rule is that when a person dies leaving property, the same should
be judicially administered and the competent court should appoint a qualified
administrator, in the order established in Section 6, Rule 78, in case the
deceased left no will, or in case he had left one, should he fail to name an
executor therein. 8 An exception to this rule is established in Section 1 of Rule 74. 9 Under this exception, when
all the heirs are of lawful age and there are no debts due from the estate, they may agree in writing to partition the
property without instituting the judicial administration or applying for the appointment of an administrator.

Section 1, Rule 74 of the Revised Rules of Court, however, does not preclude
the heirs from instituting administration proceedings, even if the estate has no
debts or obligations, if they do not desire to resort for good reasons to an
ordinary action for partition. While Section 1 allows the heirs to divide the
estate among themselves as they may see fit, or to resort to an ordinary action
for partition, the said provision does not compel them to do so if they have
good reasons to take a different course of action. 10 It should be noted that recourse to an
administration proceeding even if the estate has no debts is sanctioned only if the heirs have good reasons for not
resorting to an action for partition. Where partition is possible, either in or out of court, the estate should not be burdened
11
with an administration proceeding without good and compelling reasons.

Thus, it has been repeatedly held that when a person dies without leaving
pending obligations to be paid, his heirs, whether of age or not, are not bound
to submit the property to a judicial administration, which is always long and
costly, or to apply for the appointment of an administrator by the Court. It has
been uniformly held that in such case the judicial administration and the
appointment of an administrator are superfluous and unnecessary
proceedings . 12

Now, what constitutes "good reason" to warrant a judicial administration of the

estate of a deceased when the heirs are all of legal age and there are no
creditors will depend on the circumstances of each case.

In one case, 13 We said:

Again the petitioner argues that only when the heirs do not have any
dispute as to the bulk of the hereditary estate but only in the manner
of partition does section 1, Rule 74 of the Rules of Court apply and
that in this case the parties are at loggerheads as to the corpus of
the hereditary estate because respondents succeeded in
 sequestering some assets of the intestate. The argument is
unconvincing, because, as the respondent judge has indicated,
questions as to what property belonged to the deceased (and
therefore to the heirs) may properly be ventilated in the partition
proceedings, especially where such property is in the hands of one
heir.

In another case, We held that if the reason for seeking an appointment as

administrator is merely to avoid a multiplicity of suits since the heir seeking
such appointment wants to ask for the annulment of certain transfers of
property, that same objective could be achieved in an action for partition and
the trial court is not justified in issuing letters of administration. 14 In still another case,
We did not find so powerful a reason the argument that the appointment of the husband, a usufructuary forced heir of his
deceased wife, as judicial administrator is necessary in order for him to have legal capacity to appear in the intestate
proceedings of his wife's deceased mother, since he may just adduce proof of his being a forced heir in the intestate
15
proceedings of the latter.

We see no reason not to apply this doctrine to the case at bar. There are only
two surviving heirs, a wife of ten months and a sister, both of age. The parties
admit that there are no debts of the deceased to be paid. What is at once
apparent is that these two heirs are not in good terms. The only conceivable
reason why private respondent seeks appointment as administratrix is for her
to obtain possession of the alleged properties of the deceased for her own
purposes, since these properties are presently in the hands of petitioner who
supposedly disposed of them fraudulently. We are of the opinion that this is not
a compelling reason which will necessitate a judicial administration of the
estate of the deceased. To subject the estate of Andres de Guzman Pereira,
which does not appear to be substantial especially since the only real property
left has been extrajudicially settled, to an administration proceeding for no
useful purpose would only unnecessarily expose it to the risk of being wasted
or squandered. In most instances of a similar nature, 16 the claims of both parties as to the
properties left by the deceased may be properly ventilated in simple partition proceedings where the creditors, should
there be any, are protected in any event.

We, therefore, hold that the court below before which the administration
proceedings are pending was not justified in issuing letters of administration,
there being no good reason for burdening the estate of the deceased Andres
de Guzman Pereira with the costs and expenses of an administration
proceeding.

With the foregoing ruling, it is unnecessary for us to delve into the issue of
who, as between the surviving spouse Victoria Bringas Pereira and the sister
Rita Pereira Nagac, should be preferred to be appointed as administratrix.

WHEREFORE, the letters of administration issued by the Regional Trial Court

of Bacoor to Rita Pereira Nagac are hereby revoked and the administration
proceeding dismissed without prejudice to the right of private respondent to
commence a new action for partition of the property left by Andres de Guzman
Pereira. No costs.

SO ORDERED.

Narvasa, Cruz, Grio-Aquino and Medialdea, JJ., concur.

[G.R. No. 155555. August 16, 2005]

ISABEL P. PORTUGAL and JOSE DOUGLAS PORTUGAL JR., petitioners, vs.
LEONILA PORTUGAL-BELTRAN, respondent.

DECISION

CARPIO MORALES, J.:

Petitioners Isabel P. Portugal and her son, Jose Douglas Portugal Jr., assail the
September 24, 2002 Decision of the Court of Appeals affirming that of the Regional Trial
[1]

Court (RTC) of Caloocan City, Branch 124 which dismissed, after trial, their complaint
[2]

for annulment of title for failure to state a cause of action and lack of jurisdiction.

From the records of the case are gathered the following material allegations claims
of the parties which they sought to prove by testimonial and documentary evidence during
the trial of the case:

On November 25, 1942, Jose Q. Portugal (Portugal) married Paz Lazo. [3]

On May 22, 1948, Portugal married petitioner Isabel de la Puerta. [4]

On September 13, 1949, petitioner Isabel gave birth to a boy whom she named Jose
Douglas Portugal Jr., her herein co-petitioner. [5]

On April 11, 1950, Paz gave birth to a girl, Aleli, later baptized as Leonila Perpetua
[6]

Aleli Portugal, herein respondent. [7]

On May 16, 1968, Portugal and his four (4) siblings executed a Deed of Extra-Judicial
Partition and Waiver of Rights over the estate of their father, Mariano Portugal, who died
[8]

intestate on November 2, 1964. In the deed, Portugals siblings waived their rights,
[9]

interests, and participation over a 155 sq. m. parcel of land located in Caloocan in his
favor.
[10]

On January 2, 1970, the Registry of Deeds for Caloocan City issued Transfer
Certificate of Title (TCT) No. 34292 covering the Caloocan parcel of land in the name of
Jose Q. Portugal, married to Paz C. Lazo. [11]

On February 18, 1984, Paz died.

On April 21, 1985, Portugal died intestate.

On February 15, 1988, respondent executed an Affidavit of Adjudication by Sole Heir

of Estate of Deceased Person adjudicating to herself the Caloocan parcel of land. TCT
[12]

No. 34292/T-172 in Portugals name was subsequently cancelled and in its stead TCT No.
[13]
159813 was issued by the Registry of Deeds for Caloocan City on March 9, 1988 in the
[14]

name of respondent, Leonila Portugal-Beltran, married to Merardo M. Beltran, Jr.

Later getting wind of the death in 1985 of Portugal and still later of the 1988 transfer by
respondent of the title to the Caloocan property in her name, petitioners filed before the
RTC of Caloocan City on July 23, 1996 a complaint against respondent for annulment of
[15]

the Affidavit of Adjudication executed by her and the transfer certificate of title issued in
her name.

In their complaint, petitioners alleged that respondent is not related whatsoever to the
deceased Portugal, hence, not entitled to inherit the Caloocan parcel of land and that she
perjured herself when she made false representations in her Affidavit of Adjudication.

Petitioners accordingly prayed that respondents Affidavit of Adjudication and the TCT
in her name be declared void and that the Registry of Deeds for Caloocan be ordered to
cancel the TCT in respondents name and to issue in its stead a new one in their
(petitioners) name, and that actual, moral and exemplary damages and attorneys fees and
litigation expenses be awarded to them.

Following respondents filing of her answer, the trial court issued a Pre-Trial Order
chronicling, among other things, the issues as follows:

a. Which of the two (2) marriages contracted by the deceased Jose Q. Portugal Sr., is valid?

b. Which of the plaintiff . . . Jose Portugal Jr. and defendant Leonila P. Beltran is the legal heir of
the deceased Jose Q. Portugal Sr.?

c. Whether or not TCT No. 159813 was issued in due course and can still be contested by plaintiffs.

d. Whether or not plaintiffs are entitled to their claims under the complaint. (Underscoring
[16]

supplied)

After trial, the trial court, by Decision of January 18, 2001, after giving an account of
[17]

the testimonies of the parties and their witnesses and of their documentary
evidence, without resolving the issues defined during pre-trial, dismissed the case for lack
of cause of action on the ground that petitioners status and right as putative heirs had
not been established before a probate (sic) court, and lack of jurisdiction over the case,
citing Heirs of Guido and Isabel Yaptinchay v. Del Rosario. [18]

In relying on Heirs of Guido and Isabel Yaptinchay, the trial court held:

The Heirs of Yaptinchay case arose from facts not dissimilar to the case at bar.
 xxx

In the instant case, plaintiffs presented a Marriage Contract, a Certificate of Live Birth, pictures
(sic) and testimonial evidence to establish their right as heirs of the decedent. Thus, the preliminary
act of having a status and right to the estate of the decedent, was sought to be determined herein.
However, the establishment of a status, a right, or a particular fact is remedied through a
special proceeding (Sec. 3(c), Rule 1, 1997 Rules of Court), not an ordinary civil action whereby a
party sues another for the enforcement or protection of a right, or the protection or redress of a
wrong (ibid, a). The operative term in the former is to establish, while in the latter, it is to enforce, a
right. Their status and right as putative heirs of the decedent not having been established, as yet, the
Complaint failed to state a cause of action.

The court, not being a probate (sic) court, is without jurisdiction to rule on plaintiffs cause to
establish their status and right herein. Plaintiffs do not have the personality to sue (Secs. 1 and 2,
Rule 3, in relation to Secs. 1 and 2, Rule 2, supra). (Italics in the original; emphasis and
[19]

underscoring supplied).

Petitioners thereupon appealed to the Court of Appeals, questioning the trial

courts ratio decedendi in dismissing the case as diametrically opposed to this Courts
following ruling in Cario v. Cario, viz:
[20]

Under Article 40 of the Family Code, the absolute nullity of a previous marriage may be invoked
for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage
void. Meaning, where the absolute nullity of a previous marriage is sought to be invoked for
purposes of contracting a second marriage, the sole basis acceptable in law, for said projected
marriage to be free from legal infirmity, is a final judgment declaring the previous void. (Domingo
v. Court of Appeals, 226 SCRA 572, 579 [1993]) However, for purposes other than remarriage, no
judicial action is necessary to declare a marriage an absolute nullity. For other purposes, such as but
not limited to the determination of heirship, legitimacy or illegitimacy of a child, settlement of
estate, dissolution of property regime, or a criminal case for that matter, the court may pass upon
the validity of marriage even after the death of the parties thereto, and even in a suit not directly
instituted to question the validity of said marriage, so long as it is essential to the determination
of the case. (Nial, et al. v. Bayadog, GR No. 13378, March 14, 2000). In such cases, evidence must
be adduced, testimonial or documentary, to prove the existence of grounds rendering such a
previous marriage an absolute nullity. These need not be limited solely to an earlier final judgment
of a court declaring such previous marriage void. (Domingo v. Court of Appeals, supra) (Emphasis
and underscoring supplied).

Conceding that the ruling in Cario was promulgated (in 2001) subsequent to that
of Heirs of Guido and Isabel Yaptinchay (in 1999), the appellate court found Cario to be
inapplicable, however, to the case in this wise:
To be borne in mind is the fact that the main issue in the Cario case was the validity of the two
marriages contracted by the deceased SPO4 Santiago Cario, whose death benefits was the bone of
contention between the two women both named Susan (viz., Susan Nicdao Cario and Susan Yee
Cario) both of whom he married. It is not disputed in said case that SPO4 S. Cario contracted two
marriages with said two women during his lifetime, and the only question was: which of these two
marriages was validly celebrated? The award of the death benefits of the deceased Cario was thus,
merely an incident to the question of which of the two marriages was valid. Upon the other hand,
the case at bench is of a different milieu. The main issue here is
the annulment of title to property. The only undisputed fact in this case is that the deceased Jose
Portugal, during his lifetime, owned a parcel of land covered by Transfer Certificate of Title (TCT)
No. T-34292. However, here come two contending parties, herein plaintiffs-appellants and
defendant-appellee, both now insisting to be the legal heir(s) of the decedent. x x x. The status and
rights of the parties herein have not, therefore, been definitively established, as yet. x x x.
Necessarily and naturally, such questions as to such status or right must be properly ventilated in an
appropriate special proceeding, not in an ordinary civil action, whereunder a party sues another for
the enforcement or protection of a right, or the protection or redress of a wrong. The institution of
an ordinary civil suit for that purpose in the present case is thus impermissible. For it is axiomatic
that what the law prohibits or forbids directly, it cannot permit or allow indirectly. To permit, or
allow, a declaration of heirship, or the establishment of the legitimacy or illegitimacy of a child to
be determined in an ordinary civil action, not in an appropriate special proceeding brought for that
purpose, is thus to impinge upon this axiom. x x x (Emphasis in the original, underscoring
[21]

supplied).

The appellate court, by Decision of September 24, 2002, thus affirmed the trial courts
[22]

dismissal of the case.

Hence, the present Petition for Review on Certiorari, faulting the appellate court to
[23]

have erred when

I.

. . . it affirmed the RTC decision dismissing the initiatory complaint as it failed to state a cause of
action.

II.

. . . (i) it applied the ruling in Heirs of Guido [and Isabel] Yaptingchay despite the existence of a
later and contrary ruling in Cario, and (ii) when the Honorable CA and the lower court failed to
render judgment based on the evidence presented relative to the issues raised during pre-trial, . .
. (Emphasis and underscoring supplied).
[24]

Petitioners thus prayed as follows:

WHEREFORE, it is respectfully prayed of this Honorable Supreme Court that the questioned CA
decision be reversed, and a new one entered in accordance with the prayers set forth in the instant
complaint based on the above disquisition and evidence adduced by petitioners in the court a quo.

IN THE ALTERNATIVE, should the Honorable Supreme Court find that the pronouncements
in Cario apply, a decision be entered remanding to the court a quo the determination of the issues
of which of the two marriages is valid, and the determination of heirship and legitimacy of Jose Jr.
and Leonila preparatory to the determination of the annulment of title issued in the name of
Leonila.

Other relief and remedy just and equitable in the premises are likewise prayed for. (Underscoring
[25]

supplied).

Petitioners, in the main, argue that the appellate court misapplied Heirs of Guido and
Isabel Yaptinchay and in effect encouraged multiplicity of suits which is discouraged by
this Court as a reading of Cario shows; that Cario allows courts to pass on the
determination of heirship and the legitimacy or illegitimacy of a child so long as it is
necessary to the determination of the case; and that contrary to the appellate courts
ruling, they had established their status as compulsory heirs.

In the main, the issue in the present petition is whether petitioners have to institute a
special proceeding to determine their status as heirs before they can pursue the case for
annulment of respondents Affidavit of Adjudication and of the TCT issued in her name.

In the above-cited case of Heirs of Guido and Isabel Yaptinchay, the therein [26]

petitioners executed on March 17, 1994 an extrajudicial settlement of the estate of the
deceased Guido and Isabel Yaptinchay, owners-claimants of the two lots mentioned
therein. They later discovered on August 26, 1994 that a portion, if not all, of the two lots
had been titled in the name of the therein respondent Golden Bay Realty and
Development Corporation which in turn sold portions thereof to the therein individual
respondents. The therein petitioners Heirs thus filed a complaint for annulment of titles.
The therein respondents moved to dismiss the case for failure of the therein petitioners
to, inter alia, state a cause of action and prove their status as heirs. The trial court granted
the motion to dismiss in this wise:

But the plaintiffs who claimed to be the legal heirs of the said Guido and Isabel Yaptinchay have
not shown any proof or even a semblance of itexcept the allegations that they are the legal heirs of
the aforementioned Yaptinchaysthat they have been declared the legal heirs of the deceased couple.
Now, the determination of who are the legal heirs of the deceased couple must be made in the
proper special proceedings in court, and not in an ordinary suit for reconveyance of property. This
must take precedence over the action for reconveyance . . . (Italics in the original; underscoring
[27]

supplied).

On petition for certiorari by the Heirs, this Court, albeit holding that the petition was an
improper recourse, found that the trial court did not commit grave abuse of discretion in
dismissing the case. Citing Litam et al. v. Rivera and Solivio v. Court of Appeals, this
[28] [29]

Court held that the declaration of heirship can be made only in a special proceeding
inasmuch as the petitioners here are seeking the establishment of a status or right.

In the above-cited case of Litam, Gregorio Dy Tam instituted a special proceeding for
[30]

issuance of letters of administration before the then Court of First Instance (CFI) of Rizal,
alleging in his petition that he is the son of Rafael Litam who died in Manila on January 10,
1951 and is survived by him and his therein named seven (7) siblings who are children of
the decedent by his marriage to Sia Khin celebrated in China in 1911; that the decedent
contracted in 1922 in the Philippines another marriage with Marcosa Rivera; and that the
decedent left neither a will nor debt. Dy Tam thus prayed for the issuance of letters of
administration to Marcosa Rivera, the surviving spouse of the decedent. The CFI granted
the petition and issued letters of administration to, on Marcosas request, her nephew
Arminio Rivera.

While the special proceeding was pending, Dy Tam and his purported siblings filed a
civil case before the same court, against the estate of Rafael Litam administrator Arminio
Rivera and Remedios R. Espiritu, duly appointed guardian of Marcosa. In their complaint,
Dy Tam and his purported siblings substantially reproduced the allegations made in his
petition in the special proceeding, with the addition of a list of properties allegedly acquired
during the marriage of the decedent and Marcosa.

Finding the issue raised in the civil case to be identical to some unresolved incidents in
the special proceeding, both were jointly heard by the trial court, following which it
rendered a decision in the civil case dismissing it, declaring, inter alia, that the plaintiffs Dy
Tam et al. are not the children of the decedent whose only surviving heir is Marcosa.

On appeal to this Court by Dy Tam et al., one of the two issues raised for
determination was whether they are the legitimate children of Rafael Litam.

This Court, holding that the issue hinged on whether Rafael Litam and Sia Khin were
married in 1911, and whether Rafael Litam is the father of appellants Dy Tam et al., found
substantially correct the trial courts findings of fact and its conclusion that, among other
things, the birth certificates of Dy Tam et al. do not establish the identity of the deceased
Rafael Litam and the persons named therein as father [and] it does not appear in the said
certificates of birth that Rafael Litam had in any manner intervened in the preparation and
filing thereof; and that [t]he other documentary evidence presented by [them] [is] entirely
immaterial and highly insufficient to prove the alleged marriage between the deceased
Rafael Litam and Sia Khin and [their] alleged status . . . as children of said decedent.

This Court went on to opine in Litam, however, that the lower court should not have
declared, in the decision appealed from, that Marcosa is the only heir of the decedent,
for such declaration is improper in the [civil case], it being within the exclusive competence
of the court in [the] [s]pecial [p]roceeding.

In Solivio, also cited in Heirs of Guido and Isabel Yaptinchay, there was a special
[31]

proceeding for the settlement of the estate of the deceased, who was a soltero, filed
before the RTC of Iloilo. In the special proceeding, Branch 23 of said court declared as
sole heir Celedonia Solivio, the decedents maternal aunt-half sister of his mother.
Concordia Javellana-Villanueva, the decedents paternal aunt-sister of his father, moved to
reconsider the courts order declaring Celedonia Solivio as sole heir of the decedent, she
claiming that she too was an heir. The court denied the motion on the ground of tardiness.
Instead of appealing the denial of her motion, Concordia filed a civil case against
Celedonia before the same RTC, for partition, recovery of possession, ownership and
damages. The civil case was raffled to Branch 26 of the RTC, which rendered judgment in
favor of Concordia. On appeal by Celedonia, the appellate court affirmed the said
judgment.

On petition for review filed before this Court by Celedonia who posed, among other
issues, whether Branch 26 of the RTC of Iloilo had jurisdiction to entertain [the civil action]
for partition and recovery of Concordia Villanuevas share of the estate of [the
deceased] while the [estate] proceedings . . . were still pending . . . in Branch 23 of the
same court, this Court held that [i]n the interest of orderly procedure and to avoid
confusing and conflicting dispositions of a decedents estate, a court should not
interfere with [estate] proceedings pending in a co-equal court, citing Guilas v. CFI
Judge of Pampanga. [32]

This Court, however, in Solivio, upon [c]onsidering that the estate proceedings are still
pending, but nonetheless [therein private respondent-Concordia Villanueva] had lost her
right to have herself declared as co-heir in said proceedings, opted to proceed to discuss
the merits of her claim in the interest of justice, and declared her an heir of the
decedent.

In Guilas cited in Solivio, a project of partition between an adopted daughter, the

[33]

therein petitioner Juanita Lopez Guilas (Juanita), and her adoptive father was approved in
the proceedings for the settlement of the testate estate of the decedent-adoptive mother,
following which the probate court directed that the records of the case be archived.
 Juanita subsequently filed a civil action against her adoptive father to annul the project
of partition on the ground of lesion, preterition and fraud, and prayed that her adoptive
father immediately deliver to her the two lots allocated to her in the project of partition. She
subsequently filed a motion in the testate estate proceedings for her adoptive father
to deliver to her, among other things, the same two lots allotted to her.

After conducting pre-trial in the civil case, the trial court, noting the parties agreement
to suspend action or resolution on Juanitas motion in the testate estate proceedings for
the delivery to her of the two lots alloted to her until after her complaint in the civil case
had been decided, set said case for trial.

Juanita later filed in the civil case a motion to set aside the order setting it for trial on
the ground that in the amended complaint she, in the meantime, filed, she acknowledged
the partial legality and validity of the project of partition insofar as she was allotted the two
lots, the delivery of which she was seeking. She thus posited in her motion to set aside the
April 27, 1966 order setting the civil case for hearing that there was no longer a prejudicial
question to her motion in the testate estate proceedings for the delivery to her of the
actual possession of the two lots. The trial court, by order of April 27, 1966, denied the
motion.

Juanita thereupon assailed the April 27, 1966 order before this Court.

The probate courts approval of the project of partition and directive that the records of
the case be sent to the archives notwithstanding, this Court held that the testate estate
proceedings had not been legally terminated as Juanitas share under the project of
partition had not been delivered to her. Explained this Court:

As long as the order of the distribution of the estate has not been complied with, the probate
proceedings cannot be deemed closed and terminated (Siguiong vs. Tecson, supra.); because a
judicial partition is not final and conclusive and does not prevent the heir from bringing an action to
obtain his share, provided the prescriptive period therefor has not elapse (Mari vs. Bonilla, 83 Phil.,
137). The better practice, however, for the heir who has not received his share, is to demand his
share through a proper motion in the same probate or administration proceedings, or for re-
opening of the probate or administrative proceedings if it had already been closed, and not
through an independent action, which would be tried by another court or Judge which may
thus reverse a decision or order of the probate o[r] intestate court already final and
executed and re-shuffle properties long ago distributed and disposed of (Ramos vs. Ortuzar, 89
Phil. 730, 741-742; Timbol vs. Cano, supra,; Jingco vs. Daluz, L-5107, April 24, 1953, 92 Phil.
1082; Roman Catholic vs. Agustines, L-14710, March 29, 1960, 107 Phil., 455, 460-461).
(Emphasis and underscoring supplied).
[34]
This Court thus set aside the assailed April 27, 1966 order of the trial court setting the civil
case for hearing, but allowed the civil case to continue because it involves no longer the
two lots adjudicated to Juanita.

The common doctrine in Litam, Solivio and Guilas in which the adverse parties are
putative heirs to the estate of a decedent or parties to the special proceedings for its
settlement is that if the special proceedings are pending, or if there are no special
proceedings filed but there is, under the circumstances of the case, a need to file one,
then the determination of, among other issues, heirship should be raised and settled in
said special proceedings. Where special proceedings had been instituted but had been
finally closed and terminated, however, or if a putative heir has lost the right to have
himself declared in the special proceedings as co-heir and he can no longer ask for its re-
opening, then an ordinary civil action can be filed for his declaration as heir in order to
bring about the annulment of the partition or distribution or adjudication of a property or
properties belonging to the estate of the deceased.

In the case at bar, respondent, believing rightly or wrongly that she was the sole heir to
Portugals estate, executed on February 15, 1988 the questioned Affidavit of Adjudication
[35]

under the second sentence of Rule 74, Section 1 of the Revised Rules of Court. Said [36]

rule is an exception to the general rule that when a person dies leaving a property, it
should be judicially administered and the competent court should appoint a qualified
administrator, in the order established in Sec. 6, Rule 78 in case the deceased left no will,
or in case he did, he failed to name an executor therein. [37]

Petitioners claim, however, to be the exclusive heirs of Portugal. A probate or intestate

court, no doubt, has jurisdiction to declare who are the heirs of a deceased.

It appearing, however, that in the present case the only property of the intestate estate
of Portugal is the Caloocan parcel of land, to still subject it, under the circumstances of
[38]

the case, to a special proceeding which could be long, hence, not expeditious, just to
establish the status of petitioners as heirs is not only impractical; it is burdensome to the
estate with the costs and expenses of an administration proceeding. And it is superfluous
in light of the fact that the parties to the civil case subject of the present case, could and
had already in fact presented evidence before the trial court which assumed jurisdiction
over the case upon the issues it defined during pre-trial.

In fine, under the circumstances of the present case, there being no compelling reason
to still subject Portugals estate to administration proceedings since a determination of
petitioners status as heirs could be achieved in the civil case filed by petitioners, the trial
[39]

court should proceed to evaluate the evidence presented by the parties during the trial
and render a decision thereon upon the issues it defined during pre-trial, which bear
repeating, to wit:

1. Which of the two (2) marriages contracted by the deceased Jose Q. Portugal, is valid;

2. Which of the plaintiff, Jose Portugal Jr. and defendant Leonila P. Beltran is the legal heir of
the deceased Jose Q. Portugal (Sr.);

3. Whether or not TCT No. 159813 was issued in due course and can still be contested by
plaintiffs;

4. Whether or not plaintiffs are entitled to their claim under the complaint. [40]

WHEREFORE, the petition is hereby GRANTED. The assailed September 24, 2002
Decision of the Court of Appeals is hereby SET ASIDE.

Let the records of the case be REMANDED to the trial court, Branch 124 of the
Regional Trial Court of Caloocan City, for it to evaluate the evidence presented by the
parties and render a decision on the above-enumerated issues defined during the pre-trial.

No costs.

SO ORDERED.

Panganiban, (Chairman), Sandoval-Gutierrez, Corona, and Garcia, JJ., concur.

 [G.R. No. 115181. March 31, 2000]

MARIA SOCORRO AVELINO, petitioner, vs. COURT OF APPEALS, ANGELINA

AVELINO, SHARON AVELINO, ANTONIO AVELINO, JR., TRACY AVELINO, PATRICK
MICHAEL AVELINO and MARK ANTHONY AVELINO, respondents. Sdaa miso

RESOLUTION

QUISUMBING, J.:

Before us is a petition for review on certiorari of the Decision of the Court of Appeals dated February
16, 1994 in CA-G.R. SP No. 31574 as well as its Resolution dated April 28, 1994 denying petitioner's
Motion for Reconsideration. The assailed Decision affirmed the Order of the Regional Trial Court of
Quezon City, Branch 78, in Sp. Proc. No. Q-91-10441 converting petitioner's petition for the issuance
of letters of administration to an action for judicial partition.

Petitioner Maria Socorro Avelino is a daughter and compulsory heir of the late Antonio Avelino, Sr.,
and his first wife private respondent Angelina Avelino.

The other private respondents, Sharon, Antonio Jr., Tracy, Patrick and Mark Anthony all surnamed
Avelino are likewise compulsory heirs of Avelino, Sr. Sharon, an American, is the second wife of
Avelino, Sr. The other private respondents are siblings of petitioner Ma. Socorro.

The records reveal that on October 24, 1991, Ma. Socorro filed before the Regional Trial Court of
Quezon City, Branch 78, docketed as SP Proc. No. Q-91-10441, a petition for the issuance of letters
of administration of the estate of Antonio Avelino, Sr., who died intestate on April 10, 1989. She asked
that she be appointed the administrator of the estate.

On December 3, 1992, Angelina, and the siblings filed their opposition by filing a motion to convert
the said judicial proceedings to an action for judicial partition which petitioner duly opposed.

On February 16, 1993, public respondent judge issued the assailed Order which reads:

"Acting on the Motion to Convert Proceedings to Action for Judicial Partition, considering
that the petitioner is the only heir not amenable to a simple partition, and all the other
 compulsory heirs manifested their desire for an expeditious settlement of the estate of
the deceased Antonio Avelino, Sr., the same is granted.

"WHEREFORE, the petition is converted into judicial partition of the estate of deceased
Antonio Avelino, Sr. The parties are directed to submit a complete inventory of all the
real and personal properties left by the deceased. Set the hearing of the judicial partition
on APRIL 13, 1993, at 8:30 o'clock in the morning. Notify all the parties and their
counsel of this assignment.

"SO ORDERED." [1]

On March 17, 1993, petitioner filed a motion for reconsideration which was denied in an Order dated
June 16, 1993.

On July 23, 1993, Ma. Socorro filed before the Court of Appeals, a petition for certiorari, prohibition,
and mandamus alleging grave abuse of discretion amounting to lack or excess of jurisdiction on the
part of the trial court, in granting private respondents' motion to convert the judicial proceeding for the
issuance of letters of administration to an action for judicial partition. Her petition was docketed as
CA-G.R. SP No. 31574. Sdaad

On February 18, 1994, the respondent appellate court rendered the assailed decision, stating that the
"petition is DENIED DUE COURSE" and accordingly dismissed." [2]

On March 1, 1994, petitioner duly moved for reconsideration, but it was denied on April 28, 1994.

Hence, this petition. Petitioner assigns the following errors:

THE COURT OF APPEALS ERRED IN UPHOLDING THE LOWER COURT'S FINDING

THAT PARTITION IS PROPER UNDER THE PREMISES.

ADMINISTRATION SHOULD BE THE PROPER REMEDY PENDING THE

DETERMINATION OF THE CHARACTER AND EXTENT OF THE DECEDENT'S
ESTATE. [3]

For resolution, we find that given the circumstances in this case, the sole issue here is whether
respondent appellate court committed an error of law and gravely abused its discretion in upholding
the trial court's finding that a partition is proper.

Petitioner submits that: First, no partition of the estate is possible in the instant case as no
determination has yet been made of the character and extent of the decedent's estate. She points to
the Court's ruling in Arcilles v. Montejo, 26 SCRA 197 (1969), where we held that when the existence
of other properties of the decedent is a matter still to be reckoned with, administration proceedings
are the proper mode of resolving the same. In addition, petitioner contends that the estate is in
[4]

danger of being depleted for want of an administrator to manage and attend to it.
Second, petitioner insists that the Rules of Court does not provide for conversion of a motion for the
issuance of letters of administration to an action for judicial partition. The conversion of the motion
was, thus, procedurally inappropriate and should be struck down for lack of legal basis.

When a person dies intestate, or, if testate, failed to name an executor in his will or the executor so
named is incompetent, or refuses the trust, or fails to furnish the bond required by the Rules of Court,
then the decedent's estate shall be judicially administered and the competent court shall appoint a
qualified administrator in the order established in Section 6 of Rule 78. The exceptions to this rule
[5]

are found in Sections 1 and 2 of Rule 74 which provide:

[6]

"SECTION 1. Extrajudicial settlement by agreement between heirs. - If the decedent left

no will and no debts and the heirs are all of age or the minors are represented by their
judicial or legal representatives duly authorized for the purpose, the parties may, without
securing letters of administration, divide the estate among themselves as they see fit by
means of a public instrument filed in the office of the register of deeds, and should they
disagree, they may do so in an ordinary action of partition.. Scs daad

"SEC. 2. Summary settlement of estates of small value.- Whenever the gross value of
the estate of a deceased person, whether he died testate or intestate, does not exceed
ten thousand pesos, and that fact if made to appear to the Regional Trial Court having
jurisdiction of the estate by the petition of an interested person and upon hearing, which
shall be held not less than one (1) month nor more than three (3) months from the date
of the last publication of a notice which shall be published once a week for three (3)
consecutive weeks in a newspaper of general circulation in the province, and after such
other notice to interested persons as the court may direct, the court may proceed
summarily, without the appointment of an executor or administrator, and without delay,
to grant, if proper, allowance of the will, if any there be, to determine who are the
persons legally entitled to participate in the estate and to apportion and divide it among
them after the payment of such debts of the estate as the court shall then find to be due;
and such persons, in their own right, if they are lawful age and legal capacity, or by their
guardians or trustees legally appointed and qualified, if otherwise, shall thereupon be
entitled to receive and enter into the possession of the portions of the estate so
awarded to them respectively. The court shall make such order as may be just
respecting the costs of the proceedings, and all orders and judgments made or
rendered in the course thereof shall be recorded in the office of the clerk, and the order
of partition or award, if it involves real estate, shall be recorded in the proper register's
office."

The heirs succeed immediately to all of the rights and properties of the deceased at the moment of
the latter's death. Section 1, Rule 74 of the Rules of Court, allows heirs to divide the estate among
[7]

themselves without need of delay and risks of being dissipated. When a person dies without leaving
pending obligations, his heirs, are not required to submit the property for judicial administration, nor
apply for the appointment of an administrator by the court. [8]
We note that the Court of Appeals found that in this case "the decedent left no debts and the heirs
and legatees are all of age." With this finding, it is our view that Section 1, Rule 74 of the Rules of
[9]

Court should apply.

In a last-ditch effort to justify the need for an administrator, petitioner insists that there is nothing to
partition yet, as the nature and character of the estate have yet to be determined. We find, however,
that a complete inventory of the estate may be done during the partition proceedings, especially since
the estate has no debts. Hence, the Court of Appeals committed no reversible error when it ruled that
the lower court did not err in converting petitioner's action for letters of administration into an action
for judicial partition. Sup rema

Nor can we sustain petitioner's argument that the order of the trial court converting an action for
letters of administration to one for judicial partition has no basis in the Rules of Court, hence
procedurally infirm. The basis for the trial court's order is Section 1, Rule 74 of the Rules of Court. It
provides that in cases where the heirs disagree as to the partition of the estate and no extrajudicial
settlement is possible, then an ordinary action for partition may be resorted to, as in this case. We
have held that where the more expeditious remedy of partition is available to the heirs, then the heirs
or the majority of them may not be compelled to submit to administration proceedings. The trial
[10]

court appropriately converted petitioner's action for letters of administration into a suit for judicial
partition, upon motion of the private respondents. No reversible error may be attributed to the Court of
Appeals when it found the trial court's action procedurally in order.

WHEREFORE, the petition is DENIED for lack of merit, and the assailed decision and resolution of
the Court of Appeals is CA-G.R. SP No. 31574 are AFFIRMED. Costs against petitioner.

SO ORDERED.

Bellosillo, (Chairman), Mendoza, Buena, and De Leon, Jr., JJ., concur. Juris

G.R. No. L-40502 November 29, 1976

VIRGINIA GARCIA FULE, and HONORABLE SEVERO A. MALVAR,

Presiding Judge, Court of First Instance of Laguna, Branch
Vl, petitioners,
vs.
THE HONORABLE COURT OF APPEALS, * PRECIOSA B. GARCIA and
AGUSTINA B. GARCIA, respondents.

G.R. No. L-42670 November 29, 1976

VIRGINIA GARCIA FULE, petitioner,

vs.
HONORABLE ERNANI C. PAO, Presiding Judge of Court of First
Instance of Rizal, Quezon City, Branch XVIII, and PRECIOSA B. GARCIA,
respondents.

Francisco Carreon for petitioners.

Augusto G. Gatmaytan for private respondents.

MARTIN, J.:

These two interrelated cases bring to Us the question of what the word
"resides" in Section 1, Rule 73 of the Revised Rules Of Court, referring to
the situs of the settlement of the estate of deceased persons, means.
Additionally, the rule in the appointment of a special administrator is
sought to be reviewed.

On May 2, 1973, Virginia G. Fule filed with the Court of First Instance of
Laguna, at Calamba, presided over by Judge Severo A. Malvar, a petition
for letters of administration, docketed as Sp. Proc. No. 27-C, alleging,
inter alia, "that on April 26, 1973, Amado G. Garcia, a property owner of
Calamba, Laguna, died intestate in the City of Manila, leaving real estate
and personal properties in Calamba, Laguna, and in other places, within
the jurisdiction of the Honorable Court." At the same time, she moved
ex parte for her appointment as special administratrix over the estate. On
even date, May 2, 1973, Judge Malvar granted the motion.

A motion for reconsideration was filed by Preciosa B. Garcia on May 8,

1973, contending that the order appointing Virginia G. Fule as special
administratrix was issued without jurisdiction, since no notice of the
petition for letters of administration has been served upon all persons
interested in the estate; there has been no delay or cause for delay in the
proceedings for the appointment of a regular administrator as the
surviving spouse of Amado G. Garcia, she should be preferred in the
appointment of a special administratrix; and, Virginia G. Fule is a debtor
of the estate of Amado G. Garcia. Preciosa B. Garcia, therefore, prayed
that she be appointed special administratrix of the estate, in lieu of
Virginia G. Fule, and as regular administratrix after due hearing.

While this reconsideration motion was pending resolution before the

Court, Preciosa B. Garcia filed on May 29, 1973 a motion to remove
Virginia G. Fule as special administratrix alleging, besides the
jurisdictional ground raised in the motion for reconsideration of May 8,
1973 that her appointment was obtained through erroneous, misleading
and/or incomplete misrepresentations; that Virginia G. Fule has adverse
interest against the estate; and that she has shown herself unsuitable as
administratrix and as officer of the court.

In the meantime, the notice of hearing of the petition for letters of

administration filed by Virginia G. Fule with the Court of First Instance of
Calamba, Laguna, was published on May 17, 24, and 31, 1973, in
the Bayanihan, a weekly publication of general circulation in Southern
Luzon.

On June 6, 1973, Preciosa B. Garcia received a "Supplemental Petition

for the Appointment of Regular Administrator ' filed by Virginia G. Fule.
This supplemental petition modified the original petition in four aspects:
(1) the allegation that during the lifetime of the deceased Amado G.
Garcia, he was elected as Constitutional Delegate for the First District of
Laguna and his last place of residence was at Calamba, Laguna; (2) the
deletion of the names of Preciosa B. Garcia and Agustina Garcia as legal
heirs of Amado G. Garcia; (3) the allegation that Carolina Carpio, who
was simply listed as heir in the original petition, is the surviving spouse
of Amado G. Garcia and that she has expressly renounced her
preferential right to the administration of the estate in favor of Virginia G.
Fule; and (4) that Virginia G. Fule be appointed as the regular
administratrix. The admission of this supplemental petition was opposed
by Preciosa B. Garcia for the reason, among others, that it attempts to
confer jurisdiction on the Court of First Instance of Laguna, of which the
court was not possessed at the beginning because the original petition
was deficient.
On July 19, 1973, Preciosa B. Garcia filed an opposition to the original
and supplemental petitions for letters of administration, raising the
issues of jurisdiction, venue, lack of interest of Virginia G. Fule in the
estate of Amado G. Garcia, and disqualification of Virginia G Fule as
special administratrix.

An omnibus motion was filed by Virginia G. Fule on August 20, 1973,

praying for authority to take possession of properties of the decedent
allegedly in the hands of third persons as well as to secure cash
advances from the Calamba Sugar Planters Cooperative Marketing
Association, Inc. Preciosa B. Garcia opposed the motion, calling
attention to the limitation made by Judge Malvar on the power of the
special administratrix, viz., "to making an inventory of the personal and
real properties making up the state of the deceased."

However, by July 2, 1973, Judge Malvar and already issued an order,

received by Preciosa B. Garcia only on July 31, 1973, denying the motion
of Preciosa B. Garcia to reconsider the order of May 2, 1973, appointing
Virginia G. Fule as special administratrix, and admitting the
supplementation petition of May 18,1973.

On August 31, 1973, Preciosa B. Garcia moved to dismiss the petition,

because (1) jurisdiction over the petition or over the parties in interest
has not been acquired by the court; (2) venue was improperly laid; and
(3) Virginia G. Fule is not a party in interest as she is not entitled to
inherit from the deceased Amado G. Garcia.

On September 28, 1973, Preciosa B. Garcia filed a supplemental motion

to substitute Virginia G. Fule as special administratrix, reasoning that the
said Virginia G. Fule admitted before before the court that she is a full-
blooded sister of Pablo G. Alcalde, an illegitimate son of Andrea Alcalde,
with whom the deceased Amado G. Garcia has no relation.

Three motions were filed by Preciosa B. Garcia on November 14, 1973,

one, to enjoin the special administratrix from taking possession of
properties in the hands of third persons which have not been determined
as belonging to Amado G. Garcia; another, to remove the special
administratrix for acting outside her authority and against the interest of
the estate; and still another, filed in behalf of the minor Agustina B.
Garcia, to dismiss the petition for want of cause of action, jurisdiction,
and improper venue.

On November 28, 1973, Judge Malvar resolved the pending omnibus

motion of Virgina G. Fule and the motion to dismiss filed by Preciosa B.
Garcia. Resolving the motion to dismiss, Judge Malvar ruled that the
powers of the special administratrix are those provided for in Section 2,
Rule 80 of the Rules of Court, 1 subject only to the previous qualification made by the court that
the administration of the properties subject of the marketing agreement with the Canlubang Sugar Planters
Cooperative Marketing Association should remain with the latter; and that the special administratrix had already
been authorized in a previous order of August 20, 1973 to take custody and possession of all papers and
certificates of title and personal effects of the decedent with the Canlubang Sugar Planters Cooperative
Marketing Association, Inc. Ramon Mercado, of the Canlubang Sugar Planters Cooperative Marketing
Association, Inc., was ordered to deliver to Preciosa B. Garcia all certificates of title in her name without any
qualifying words like "married to Amado Garcia" does not appear. Regarding the motion to dismiss, Judge
Malvar ruled that the issue of jurisdiction had already been resolved in the order of July 2, 1973, denying
Preciosa B. Garcia's motion to reconsider the appointment of Virginia G. Fule and admitting the supplemental
petition, the failure of Virginia G. Fule to allege in her original petition for letters of administration in the place of
residence of the decedent at the time of his death was cured. Judge Malvar further held that Preciosa B. Garcia
had submitted to the jurisdiction of the court and had waived her objections thereto by praying to be appointed
as special and regular administratrix of the estate.

An omnibus motion was filed by Preciosa B. Garcia on December 27,

1973 to clarify or reconsider the foregoing order of Judge Malvar, in view
of previous court order limiting the authority of the special administratrix
to the making of an inventory. Preciosa B. Garcia also asked for the
resolution of her motion to dismiss the petitions for lack of cause of
action, and also that filed in behalf of Agustina B. Garcia. Resolution of
her motions to substitute and remove the special administratrix was
likewise prayed for.

On December 19, 1973, Judge Malvar issued two separate orders, the
first, denying Preciosa B. Garcia's motions to substitute and remove the
special administratrix, and the second, holding that the power allowed
the special administratrix enables her to conduct and submit an
inventory of the assets of the estate.
On January 7, 1974, Preciosa B. Garcia moved for reconsideration of the
foregoing orders of November 28, 1973 and December 19, 1973, insofar
as they sustained or failed to rule on the issues raised by her: (a) legal
standing (cause of action) of Virginia G. Fule; (b) venue; (c) jurisdiction;
(d) appointment, qualification and removal of special administratrix; and
(e) delivery to the special administratrix of checks and papers and
effects in the office of the Calamba Sugar Planters Cooperative
Marketing Association, Inc.

On March 27, 1973, Judge Malvar issued the first questioned order
denying Preciosa B. Garcia's motion for reconsideration of January 7,
1974. On July 19, 1974, Judge Malvar issued the other three questioned
orders: one, directing Ramon Mercado, of the Calamba Sugar Planters
Cooperative Marketing Association, Inc., to furnish Virginia G. Fule, as
special administratrix, copy of the statement of accounts and final
liquidation of sugar pool, as well as to deliver to her the corresponding
amount due the estate; another, directing Preciosa B. Garcia to deliver to
Virginia G. Fule two motor vehicles presumably belonging to the estate;
and another, directing Ramon Mercado to deliver to the court all
certificates of title in his possession in the name of Preciosa B. Garcia,
whether qualified with the word "single" or "married to Amado Garcia."

During the hearing of the various incidents of this case (Sp. Proc. 27-C)
before Judge Malvar, 2 Virginia G. Fule presented the death certificate of Amado G. Garcia showing
that his residence at the time of his death was Quezon City. On her part, Preciosa B. Garcia presented the
residence certificate of the decedent for 1973 showing that three months before his death his residence was in
Quezon City. Virginia G. Fule also testified that Amado G. Garcia was residing in Calamba, Laguna at the time of
his death, and that he was a delegate to the 1971 Constitutional Convention for the first district of Laguna.

On July 26, 1974, Preciosa B. Garcia and Agustina B. Garcia commenced

a special action for certiorari and/or prohibition and preliminary
injunction before the Court of Appeals, docketed as CA-G.R. No. 03221-
SP. primarily to annul the proceedings before Judge Malvar in Sp. Proc.
No. 27-C of the Court of First Instance of Laguna, or, in the alternative, to
vacate the questioned four orders of that court, viz., one dated March 27,
1974, denying their motion for reconsideration of the order denying their
motion to dismiss the criminal and supplemental petitions on the issue,
among others, of jurisdiction, and the three others, all dated July 19,
1974, directing the delivery of certain properties to the special
administratrix, Virginia G. Fule, and to the court.

On January 30, 1975, the Court of Appeals rendered judgment annulling

the proceedings before Judge Severo A. Malvar in Sp. Proc. 27-C of the
Court of First Instance of Calamba, Laguna, for lack of jurisdiction.

Denied of their motion for reconsideration on March 31, 1975, Virginia G.

Fule forthwith elevated the matter to Us on appeal by certiorari. The case
was docketed as G.R. No. L-40502.

However, even before Virginia G. Fule could receive the decision of the
Court of Appeals, Preciosa B. Garcia had already filed on February 1,
1975 a petition for letters of administration before the Court of First
Instance of Rizal, Quezon City Branch, docketed as Sp. Proc. No. Q-
19738, over the same intestate estate of Amado G. Garcia. On February
10, 1975, Preciosa B. Garcia urgently moved for her appointment as
special administratrix of the estate. Judge Vicente G. Ericta granted the
motion and appointed Preciosa B. Garcia as special administratrix upon
a bond of P30,000.00. Preciosa B. Garcia qualified and assumed the
office.

For the first time, on February 14, 1975, Preciosa B. Garcia informed
Judge Ericta of the pendency of Sp. Proc. No. 27-C before Judge Malvar
of the Court of First Instance of Laguna, and the annulment of the
proceedings therein by the Court of Appeals on January 30, 1975. She
manifested, however, her willingness to withdraw Sp. Proc. Q-19738
should the decision of the Court of Appeals annulling the proceedings
before the Court of First Instance of Laguna in Sp. Proc. No. 27-C have
not yet become final, it being the subject of a motion for reconsideration.

On March 10, 1973, Judge Ericta ordered the suspension of the

proceedings before his court until Preciosa B. Garcia inform the court of
the final outcome of the case pending before the Court of Appeals. This
notwithstanding, Preciosa B. Garcia filed on December 11, 1975, an
"Urgent Petition for Authority to Pay Estate Obligations."

On December 13, 1975, Virginia G. Fule filed a "Special Appearance to

Question Venue and Jurisdiction" reiterating the grounds stated in the
previous special appearance of March 3, 1975, and calling attention that
the decision of the Court of Appeals and its resolution denying the
motion for reconsideration had been appealed to this Court; that the
parties had already filed their respective briefs; and that the case is still
pending before the Court.

On December 17, 1975, Judge Ernani Cruz Pano, who succeeded Judge
Ericta, issued an order granting Preciosa B. Garcia's "Urgent Petition for
Authority to Pay Estate Obligations" in that the payments were for the
benefit of the estate and that there hangs a cloud of doubt on the validity
of the proceedings in Sp. Proc. No. 27-C of the Court of First Instance of
Laguna.

A compliance of this Order was filed by Preciosa B. Garcia on January

12,1976.

On February 4,1974, VIRGINIA G. FULE instituted G.R. No. L-42670, a

petition for certiorari with temporary restraining order, to annul the
proceedings in Sp. Proc. No. Q-19738 and to restrain Judge Ernani Cruz
Pao from further acting in the case. A restraining order was issued on
February 9, 1976.

We dismiss the appeal in G.R. No. L-40502 and the petition for certiorari
in G.R. No. L-42670 for the reasons and considerations hereinafter
stated.

1. Section 1, Rule 73 of the Revised Rules of Court provides: "If the

decedent is an inhabitant of the Philippines at the time of his death,
whether a citizen or an alien, his will shall be proved, or letters of
administration granted, and his estate settled, in the Court of First
Instance in the province in which he resides at the time of his death, and
if he is an inhabitant of a foreign country, the Court of First Instance of
any province in which he had estate. The court first taking cognizance of
the settlement of the estate of a decedent, shall exercise jurisdiction to
the exclusion of all other courts. The jurisdiction assumed by a court, so
far as it depends on the place of residence of the decedent, or of the
location of his estate, shall not be contested in a suit or proceeding,
except in an appeal from that court, in the original case, or when the
want of jurisdiction appears on the record." With particular regard to
letters of administration, Section 2, Rule 79 of the Revised Rules of Court
demands that the petition therefor should affirmatively show the
existence of jurisdiction to make the appointment sought, and should
allege all the necessary facts, such as death, the name and last
residence of the decedent, the existence, and situs if need be, of assets,
intestacy, where this is relied upon, and the right of the person who
seeks administration, as next of kin, creditor, or otherwise, to be
appointed. The fact of death of the intestate and his last residence within
the country are foundation facts upon which all subsequent proceedings
in the administration of the estate rest, and that if the intestate was not
an inhabitant of the state at the time of his death, and left no assets in
the state, no jurisdiction is conferred on the court to grant letters of
administration. 3

The aforequoted Section 1, Rule 73 (formerly Rule 75, Section 1),

specifically the clause "so far as it depends on the place of residence of
the decedent, or of the location of the estate," is in reality a matter of
venue, as the caption of the Rule indicates: "Settlement of Estate of
Deceased Persons. Venue and Processes. 4 It could not have been intended to define the
jurisdiction over the subject matter, because such legal provision is contained in a law of procedure dealing
merely with procedural matters. Procedure is one thing; jurisdiction over the subject matter is another. The
power or authority of the court over the subject matter "existed and was fixed before procedure in a given cause
began." That power or authority is not altered or changed by procedure, which simply directs the manner in
which the power or authority shall be fully and justly exercised. There are cases though that if the power is not
exercised conformably with the provisions of the procedural law, purely, the court attempting to exercise it loses
the power to exercise it legally. However, this does not amount to a loss of jurisdiction over the subject matter.
Rather, it means that the court may thereby lose jurisdiction over the person or that the judgment may thereby be
rendered defective for lack of something essential to sustain it. The appearance of this provision in the
procedural law at once raises a strong presumption that it has nothing to do with the jurisdiction of the court
5
over the subject matter. In plain words, it is just a matter of method, of convenience to the parties.
The Judiciary Act of 1948, as amended, confers upon Courts of First
Instance jurisdiction over all probate cases independently of the place of
residence of the deceased. Because of the existence of numerous Courts
of First Instance in the country, the Rules of Court, however, purposedly
fixes the venue or the place where each case shall be brought. A fortiori,
the place of residence of the deceased in settlement of estates, probate
of will, and issuance of letters of administration does not constitute an
element of jurisdiction over the subject matter. It is merely constitutive of
venue. And it is upon this reason that the Revised Rules of Court
properly considers the province where the estate of a deceased person
shall be settled as "venue." 6

2. But, the far-ranging question is this: What does the term "resides"
mean? Does it refer to the actual residence or domicile of the decedent
at the time of his death? We lay down the doctrinal rule that the term
"resides" connotes ex vi termini "actual residence" as distinguished
from "legal residence or domicile." This term "resides," like, the terms
"residing" and "residence," is elastic and should be interpreted in the
light of the object or purpose of the statute or rule in which it is
employed. 7 In the application of venue statutes and rules Section 1, Rule 73 of the Revised Rules of
Court is of such nature residence rather than domicile is the significant factor. Even where the statute uses the
word "domicile" still it is construed as meaning residence and not domicile in the technical sense. Some cases
make a distinction between the terms "residence" and "domicile" but as generally used in statutes fixing venue,
8
the terms are synonymous, and convey the same meaning as the term "inhabitant." In other words, "resides"
should be viewed or understood in its popular sense, meaning, the personal, actual or physical habitation of a
person, actual residence or place of abode. It signifies physical presence in a place and actual stay thereat. In
this popular sense, the term means merely residence, that is, personal residence, not legal residence or
9
domicile. Residence simply requires bodily presence as an inhabitant in a given place, while domicile requires
10
bodily presence in that place and also an intention to make it one's domicile. No particular length of time of
11
residence is required though; however, the residence must be more than temporary.

3. Divergent claims are maintained by Virginia G. Fule and Preciosa B.

Garcia on the residence of the deceased Amado G. Garcia at the time of
his death. In her original petition for letters of administration before the
Court of First Instance of Calamba, Laguna, Virginia G. Fule measely
stated "(t)hat on April 26,1973, Amado G. Garcia, a property owner of
Calamba, Laguna, died intestate in the City of Manila, leaving real estate
and personal properties in Calamba, Laguna, and in other places within
the jurisdiction of this Honorable Court." Preciosa B. Garcia assailed the
petition for failure to satisfy the jurisdictional requirement and improper
laying of venue. For her, the quoted statement avers no domicile or
residence of the deceased Amado G. Garcia. To say that as "property
owner of Calamba, Laguna," he also resides in Calamba, Laguna, is,
according to her, non sequitur. On the contrary, Preciosa B. Garcia
claims that, as appearing in his death certificate presented by Virginia G.
Fule herself before the Calamba court and in other papers, the last
residence of Amado G. Garcia was at 11 Carmel Avenue, Carmel
Subdivision, Quezon City. Parenthetically, in her amended petition,
Virginia G. Fule categorically alleged that Amado G. Garcia's "last place
of residence was at Calamba, Laguna."

On this issue, We rule that the last place of residence of the deceased
Amado G. Garcia was at 11 Carmel Avenue, Carmel Subdivision, Quezon
City, and not at Calamba, Laguna. A death certificate is admissible to
prove the residence of the decedent at the time of his death. 12 As it is, the
death certificate of Amado G. Garcia, which was presented in evidence by Virginia G. Fule herself and also by
Preciosa B. Garcia, shows that his last place of residence was at 11 Carmel Avenue, Carmel Subdivision, Quezon
City. Aside from this, the deceased's residence certificate for 1973 obtained three months before his death; the
Marketing Agreement and Power of Attorney dated November 12, 1971 turning over the administration of his two
parcels of sugar land to the Calamba Sugar Planters Cooperative Marketing Association, Inc.; the Deed of
Donation dated January 8, 1973, transferring part of his interest in certain parcels of land in Calamba, Laguna to
Agustina B. Garcia; and certificates of titles covering parcels of land in Calamba, Laguna, show in bold
documents that Amado G. Garcia's last place of residence was at Quezon City. Withal, the conclusion becomes
imperative that the venue for Virginia C. Fule's petition for letters of administration was improperly laid in the
Court of First Instance of Calamba, Laguna. Nevertheless, the long-settled rule is that objection to improper
venue is subject to waiver. Section 4, Rule 4 of the Revised Rules of Court states: "When improper venue is not
objected to in a motion to dismiss, it is deemed waived." In the case before Us the Court of Appeals had reason
to hold that in asking to substitute Virginia G. Fule as special administratrix, Preciosa B. Garcia did not
necessarily waive her objection to the jurisdiction or venue assumed by the Court of First Instance of Calamba,
Laguna, but availed of a mere practical resort to alternative remedy to assert her rights as surviving spouse,
while insisting on the enforcement of the Rule fixing the proper venue of the proceedings at the last residence of
the decedent.

4. Preciosa B. Garcia's challenge to Virginia G. Fule's appointment as

special administratrix is another issue of perplexity. Preciosa B. Garcia
claims preference to the appointment as surviving spouse. Section 1 of
Rule 80 provides that "(w)hen there is delay in granting letters
testamentary or of administration by any cause including an appeal from
the allowance or disallowance of a will, the court may appoint a special
administrator to take possession and charge of the estate of the
deceased until the questions causing the delay are decided and
executors or administrators appointed. 13 Formerly, the appointment of a special
administrator was only proper when the allowance or disallowance of a will is under appeal. The new Rules,
however, broadened the basis for appointment and such appointment is now allowed when there is delay in
granting letters testamentary or administration by any cause e.g., parties cannot agree among
14
themselves. Nevertheless, the discretion to appoint a special administrator or not lies in the probate
15
court. That, however, is no authority for the judge to become partial, or to make his personal likes and dislikes
prevail over, or his passions to rule, his judgment. Exercise of that discretion must be based on reason, equity,
justice and legal principle. There is no reason why the same fundamental and legal principles governing the
choice of a regular administrator should not be taken into account in the appointment of a special
16
administrator. Nothing is wrong for the judge to consider the order of preference in the appointment of a
regular administrator in appointing a special administrator. After all, the consideration that overrides all others in
17
this respect is the beneficial interest of the appointee in the estate of the decedent. Under the law, the widow
would have the right of succession over a portion of the exclusive property of the decedent, besides her share in
the conjugal partnership. For such reason, she would have as such, if not more, interest in administering the
entire estate correctly than any other next of kin. The good or bad administration of a property may affect rather
18
the fruits than the naked ownership of a property.

Virginia G. Fule, however, disputes the status of Preciosa B. Garcia as

the widow of the late Amado G. Garcia. With equal force, Preciosa B.
Garcia maintains that Virginia G. Fule has no relation whatsoever with
Amado G. Garcia, or that, she is a mere illegitimate sister of the latter,
incapable of any successional rights. 19 On this point, We rule that Preciosa B. Garcia
is prima facie entitled to the appointment of special administratrix. It needs be emphasized that in the issuance of
20
such appointment, which is but temporary and subsists only until a regular administrator is appointed, the
appointing court does not determine who are entitled to share in the estate of the decedent but who is entitled to
the administration. The issue of heirship is one to be determined in the decree of distribution, and the findings of
21
the court on the relationship of the parties in the administration as to be the basis of distribution. The
preference of Preciosa B. Garcia is with sufficient reason. In a Donation Inter Vivos executed by the deceased
Amado G. Garcia on January 8, 1973 in favor of Agustina B. Garcia, he indicated therein that he is married to
22
Preciosa B. Garcia. In his certificate of candidacy for the office of Delegate to the Constitutional Convention for
the First District of Laguna filed on September 1, 1970, he wrote therein the name of Preciosa B. Banaticla as his
23
spouse. Faced with these documents and the presumption that a man and a woman deporting themselves as
husband and wife have entered into a lawful contract of marriage, Preciosa B. Garcia can be reasonably believed
24
to be the surviving spouse of the late Amado G. Garcia. Semper praesumitur pro matrimonio.

5. Under these circumstances and the doctrine laid down in Cuenco vs.
Court of Appeals, 25 this Court under its supervisory authority over all inferior courts may properly
decree that venue in the instant case was properly assumed by and transferred to Quezon City and that it is in
the interest of justice and avoidance of needless delay that the Quezon City court's exercise of jurisdiction over
the settlement of the estate of the deceased Amado G. Garcia and the appointment of special administratrix over
the latter's estate be approved and authorized and the Court of First Instance of Laguna be disauthorized from
continuing with the case and instead be required to transfer all the records thereof to the Court of First Instance
of Quezon City for the continuation of the proceedings.
6. Accordingly, the Order of Judge Ernani Cruz Pano of December 17,
1975, granting the "Urgent Petition for Authority to Pay Estate
Obligations" filed by Preciosa B. Garcia in Sp. Proc. No. Q-19738, subject
matter of G.R. No. L-42670, and ordering the Canlubang Sugar Estate to
deliver to her as special administratrix the sum of P48,874.70 for
payment of the sum of estate obligations is hereby upheld.

IN VIEW OF THE FOREGOING, the petitions of petitioner Virginia Garcia

Fule in G.R. No. L-40502 and in G.R. No. L42670 are hereby denied, with
costs against petitioner.

SO ORDERED.

Teehankee (Chairman), Makasiar, Aquino and Concepcion, Jr., JJ.,

concur.

Muoz Palma, J., took no part.

EMILIA FIGURACION-GERILLA, G.R. No. 154322
Petitioner,
Present:
PUNO, J., Chairperson,
SANDOVAL-GUTIERREZ,
- v e r s u s - CORONA,
AZCUNA and
GARCIA, JJ.

CAROLINA VDA. DE FIGURACION,*

ELENA FIGURACION-ANCHETA,*
HILARIA A. FIGURACION, FELIPA
FIGURACION-MANUEL, QUINTIN
FIGURACION and
MARY FIGURACION-GINEZ,
Respondents. Promulgated:

August 22, 2006

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

CORONA, J.:

In this petition for review on certiorari, [1] petitioner Emilia Figuracion-Gerilla challenges the
decision[2] and resolution[3] of the Court of Appeals (CA) affirming the decision of the Regional Trial
Court (RTC) of Urdaneta City, Pangasinan, Branch 49, which dismissed her complaint for partition.
The properties involved are two parcels of land which belonged to her late
father, Leandro Figuracion.

The facts of the case follow.[4]

Spouses Leandro and respondent Carolina Figuracion (now both deceased) had six children:
petitioner and respondents Elena Figuracion-Ancheta (now
deceased), HilariaFiguracion, Felipa Figuracion-Manuel, Quintin Figuracion and Mary Figuracion-
Ginez.

On August 23, 1955, Leandro executed a deed of quitclaim over his real properties in favor of his
six children. When he died in 1958, he left behind two parcels of land: (1) Lot 2299 of the
Cadastral Survey of Urdaneta consisting of 7,547 square meters with Transfer Certificate of Title
(TCT) No. 4221-P in the name of Leandro Figuracion, married to Carolina Adviento and (2) Lot 705
of the Cadastral Survey of Urdaneta with an area of 2,900 sq. m. with TCT No. 4220-P also in the
name of Leandro Figuracion, married to Carolina Adviento.Leandro had inherited both lots from
his deceased parents,[5] as evidenced by Original Certificate of Title (OCT) Nos. 16731 and 16610,
respectively, issued by the Register of Deeds of the Province of Pangasinan.

Leandro sold a portion of Lot 2299 to Lazaro Adviento, as a result of which TCT No. 4221-P was
cancelled and TCT No. 101331 was issued to Lazaro Adviento, married to Rosenda Sagueped as
owner of the 162 sq. m. and Leandro Figuracion, married to Carolina Adviento as owner of 7,385
sq. m. This lot continued to be in the name of Leandro in Tax Declaration No. 616 for the year
1985.

What gave rise to the complaint for partition, however, was a dispute between petitioner and her
sister, respondent Mary, over the eastern half of Lot 707 of the Cadastral Survey
of Urdaneta with an area of 3,164 sq. m.

Lot 707 belonged to Eulalio Adviento, as evidenced by OCT No. 15867 issued on February 9,
1916. When Adviento died, his two daughters, Agripina Adviento (his daughter by his first wife)
and respondent Carolina (his daughter by his second wife), succeeded him to it. On November
28, 1961, Agripina executed a quitclaim in favor of petitioner over the one-half eastern portion of
Lot 707. Agripina died on July 28, 1963, single and without any issue. Before her half-sisters
death, however, respondent Carolina adjudicated unto herself, via affidavit under Rule 74 of the
Rules of Court, the entire Lot 707 which she later sold to respondents Felipa and Hilaria. The
latter two immediately had OCT No. 15867 cancelled, on December 11, 1962. A new title, TCT
No. 42244, was then issued in the names of Felipa and Hilaria for Lot 707.

In February 1971, petitioner and her family went to the United States where they stayed for ten
years. Returning in 1981,[6] she built a house made of strong materials on the eastern half-portion
of Lot 707. She continued paying her share of the realty taxes thereon.
It was sometime later that this dispute erupted. Petitioner sought the extrajudicial partition of all
properties held in common by her and respondents. On May 23, 1994, petitioner filed a
complaint in the RTC of Urdaneta City, Branch 49, for partition, annulment of
documents, reconveyance, quieting of title and damages against respondents, praying, among
others, for: (1) the partition of Lots 2299 and 705; (2) the nullification of the affidavit of self-
adjudication executed by respondent Carolina over Lot 707, the deed of absolute sale in favor of
respondents Felipa and Hilaria, and TCT No. 42244; (3) a declaration that petitioner was the
owner of one-half of Lot 707 and (4) damages. The case was docketed as Civil Case No. U-5826.

On the other hand, respondents took the position that Leandros estate should first undergo
settlement proceedings before partition among the heirs could take place. And they claimed that
an accounting of expenses chargeable to the estate was necessary for such settlement.

On June 26, 1997,[7] the RTC[8] rendered judgment nullifying Carolinas affidavit of self-adjudication
and deed of absolute sale of Lot 707. It also declared Lots 2299 and 705 as exclusive properties
of Leandro Figuracion and therefore part of his estate. The RTC, however, dismissed the
complaint for partition, reconveyance and damages on the ground that it could not grant
the reliefs prayed for by petitioner without any (prior) settlement proceedings wherein the
transfer of title of the properties should first be effected.
On appeal, the CA upheld the dismissal of petitioners action for partition for being
premature. The CA reversed the decision, however, with respect to the nullification of the self-
adjudication and the deed of sale. Upholding the validity of the affidavit of self-adjudication and
deed of sale as to Carolinas one-half pro-indiviso share, it instead partitioned Lot 707.
Dissatisfied, respondents elevated the CA decision to this Court in G.R. No. 151334,
entitled Carolina vda. de Figuracion, et al. v. Emilia Figuracion-Gerilla.[9]

The issue for our consideration is whether or not there needs to be a prior settlement
of Leandros intestate estate (that is, an accounting of the income of Lots 2299 and 705, the
payment of expenses, liabilities and taxes, plus compliance with other legal requirements, etc.)
before the properties can be partitioned or distributed.

Respondents claim that: (1) the properties constituting Leandros estate cannot be partitioned
before his estate is settled and (2) there should be an accounting before anything else,
considering that they (respondents) had to spend for the maintenance of the
deceased Leandro Figuracion and his wife in their final years, which support was supposed to
come from the income of the properties. Among other things, respondents apparently wanted
petitioner to share in the expenses incurred for the care of their parents during the ten years she
stayed in the United States, before she could get her part of the estate while petitioner
apparently wanted her gross share, without first contributing to the expenses.

In any event, there appears to be a complication with respect to the partition of Lot 705. The
records refer to a case entitled Figuracion, et al. v. Alejo currently pending in the CA.The records,
however, give no clue or information regarding what exactly this case is all about. Whatever the
issues may be, suffice it to say that partition is premature when ownership of the lot is still in
dispute.[10]

Petitioner faces a different problem with respect to Lot 2299. Section 1, Rule 69 of the Rules of
Court provides:

SECTION 1. Complaint in action for partition of real estate. A person having the right to compel
the partition of real estate may do so as provided in this Rule, setting forth in his complaint the
nature and extent of his title and an adequate description of the real estate of which partition is
demanded and joining as defendants all other persons interested in the property.

The right to an inheritance is transmitted immediately to the heirs by operation of law, at the
moment of death of the decedent. There is no doubt that, as one of the heirs
of LeandroFiguracion, petitioner has a legal interest in Lot 2299. But can she compel partition at
this stage?
There are two ways by which partition can take place under Rule 69: by agreement under Section
2[11] and through commissioners when such agreement cannot be reached, under Sections 3 to 6.
[12]

Neither method specifies a procedure for determining expenses chargeable to the decedents
estate. While Section 8 of Rule 69 provides that there shall be an accounting of the real propertys
income (rentals and profits) in the course of an action for partition, [13] there is no provision for the
accounting of expenses for which property belonging to the decedents estate may be
answerable, such as funeral expenses, inheritance taxes and similar expenses enumerated under
Section 1, Rule 90 of the Rules of Court.
In a situation where there remains an issue as to the expenses chargeable to the estate, partition
is inappropriate. While petitioner points out that the estate is allegedly without any debt and she
and respondents are Leandro Figuracions only legal heirs, she does not dispute the finding of the
CA that certain expenses including those related to her fathers final illness and burial have not
been properly settled.[14] Thus, the heirs (petitioner and respondents) have to submit their fathers
estate to settlement because the determination of these expenses cannot be done in an action
for partition.

In estate settlement proceedings, there is a proper procedure for the accounting of all expenses
for which the estate must answer. If it is any consolation at all to petitioner, the heirs
or distributees of the properties may take possession thereof even before the settlement of
accounts, as long as they first file a bond conditioned on the payment of the estates obligations.
[15]

WHEREFORE, the petition is hereby DENIED. The Court of Appeals decision and resolution in
CA-G.R. CV No. 58290 are AFFIRMED in so far as the issue of the partition of Lots 2299 and 705
is concerned.
But with respect to Lot 707, we make no ruling on the validity of
Carolina vda. de Figuracions affidavit of self-adjudication and deed of sale in favor
of Felipa and Hilaria Figuracionin view of the fact that Carolina vda. de Figuracion, et al.
v. Emilia Figuracion-Gerilla (G.R. No. 151334) is still pending in this Division.

Costs against petitioner.

SO ORDERED.

RENATO C. CORONA
Associate Justice

[G.R. No. 129163. April 22, 2003]

VOLTAIRE ARBOLARIO, LUCENA ARBOLARIO TA-ALA, FE ARBOLARIO,

EXALTACION ARBOLARIO, CARLOS ARBOLARIO, and Spouses ROSALITA
RODRIGUEZ and CARLITO SALHAY, petitioners, vs. COURT OF APPEALS,
IRENE COLINCO, RUTH COLINCO, ORPHA COLINCO and GOLDELINA
COLINCO, respondents.

DECISION
PANGANIBAN, J.:

Once a valid marriage is established, it is deemed to continue until proof that it has been legally
ended is presented. Thus, the mere cohabitation of the husband with another woman will not give rise
to a presumption of legitimacy in favor of the children born of the second union, until and unless there
be convincing proof that the first marriage had been lawfully terminated; and the second, lawfully
entered into.

The Case

Before us is a Petition for Review under Rule 45 of the Rules of Court, challenging the February
[1]

28, 1995 Decision and the March 5, 1997 Resolution of the Court of Appeals (CA) in CA-GR No.
[2] [3]

38583. The assailed Decision disposed as follows:

WHEREFORE, premises considered, the judgment appealed from is hereby REVERSED and a
new one is accordingly entered

(a) in Civil Case No. 385, DISMISSING the complaint and [counter-claim];
(b) in Civil Case No. 367, ORDERING the defendant spouses to vacate the premises occupied
within Lot 323, Ilog Cadastre, registered under T.C.T. No. 140081 in favor of Irene Colinco, Ruth
Colinco, Orpha Colinco and Goldelina Colinco. [4]

On the other hand, the assailed Resolution denied reconsideration: [5]

The Facts

The facts of the case are summarized by the CA as follows:

The original owners of the controverted lot, spouses Anselmo Baloyo and Macaria Lirazan had five
(5) children, namely: (1) Agueda Colinco, (2) Catalina Baloyo, (3) Eduardo Baloyo, (4) Gaudencia
Baloyo, and (5) Julian Baloyo. All of the above-named persons are now dead.

The first child, Agueda Colinco, was survived by her two children, namely, Antonio Colinco and
[respondent] Irene Colinco. Antonio Colinco predeceased his three daughters, herein [respondents],
Ruth, Orpha, and Goldelina, all surnamed Colinco.

The second child, Catalina Baloyo, was married to Juan Arbolario. Their union was blessed with
the birth of only one child, Purificacion Arbolario, who, in 1985, died a spinster and without issue.

Records disclose moreover that decedent Purificacions father, Juan Arbolario, consorted with
another woman by the name of Francisca Malvas. From this cohabitation was born the [petitioners],
viz, Voltaire Arbolario, Lucena Arbolario Taala, Fe Arbolario, Exaltacion Arbolario, and Carlos
Arbolario (referred to hereinafter as Arbolarios). It is significant to note, at this juncture, that all the
foregoing [petitioners] were born well before the year 1951.

In 1946, it appears that the third child, Eduardo Baloyo, sold his entire interest in Lot 323 to his
sister, Agueda Baloyo Colinco, by virtue of a notarized document acknowledged before Notary
Public Deogracias Riego.

In 1951, a notarized declaration of heirship was executed by and between Agueda, Catalina,
Gaudencia, and their brothers Eduardo and Julian, who extrajudicially declared themselves to be
the only heirs of the late spouses Anselmo Baloyo and Macaria Lirazan. The fourth child,
Gaudencia Baloyo, conveyed her interest in the said lot in favor of her two nieces, Irene Colinco to
one-half (1/2) and Purificacion Arbolario to the other half.

And as far as Julian Baloyo -- the fifth and last child --was concerned, records could only show that
he was married to a certain Margarita Palma; and that he died, presumably after 1951 without any
issue.

Purificacion Arbolario was then allowed to take possession of a portion of the disputed parcel until
her death sometime in 1984 or 1985.

It was under the foregoing set of facts that [respondents] Irene Colinco, Ruth Colinco, Orpha
Colinco, and Goldelina Colinco, believing themselves to be the only surviving heirs of Anselmo
Baloyo and Macaria Lirazan, executed a Declaration of Heirship and Partition Agreement, dated
May 8, 1987 where they adjudicated upon themselves their proportionate or ideal shares in O.C.T.
No. 16361, viz: Irene Colinco, to one-half (1/2); while the surviving daughters of her (Irenes) late
brother Antonio, namely Ruth, Orpha, and Goldelina Colinco, to share in equal, ideal proportions to
the remaining half (1/2). This forthwith brought about the cancellation of O.C.T. No. 16361, and
the issuance of T.C.T. No. T-140018 in their names and conformably with the aforesaid distribution.

On October 2, 1987, the Colincos filed Civil Case No. 367 against Spouses Rosalita Rodriguez
Salhay and Carlito Salhay, seeking to recover possession of a portion of the aforesaid lot occupied
by [respondent] spouses (Salhays hereinafter) since 1970.

The Salhays alleged in their defense that they have been the lawful lessees of the late Purificacion
Arbolario since 1971 up to 1978; and that said spouses allegedly purchased the disputed portion of
Lot No. 323 from the deceased lessor sometime in [September] 1978.

Meanwhile, or on May 9, 1988 -- before Civil Case No. 367 was heard and tried on the merits --
Voltaire M. Arbolario, Fe Arbolario, Lucena Arbolario Ta-ala, Exaltacion Arbolario, Carlos
Arbolario (Arbolarios, collectively) and spouses Carlito Salhay and Rosalita Rodriguez Salhay (the
same defendants in Civil Case No. 367), filed Civil Case No. 385 [f]or Cancellation of Title with
Damages, against the plaintiffs in Civil Case No. 367. The Arbolarios, joined by the Salhays,
contend that the Declaration of Heirship and Partition Agreement executed by the Colincos was
defective and thus voidable as they (Arbolarios) were excluded therein. The Arbolarios claim that
they succeeded intestate to the inheritance of their alleged half-sister, Purificacion Arbolario; and,
as forced heirs, they should be included in the distribution of the aforesaid lot.
[6]

Ruling of the Trial Court

After a full-blown trial on the consolidated cases, the Regional Trial Court (RTC) of Kabankalan,
Negros Occidental (Branch 61) rendered its judgment, the dispositive portion of which reads thus:
[7]

WHEREFORE, premises considered, judgment is hereby rendered in favor of the [Arbolarios] and
against the [Colincos] in Civil Case No. 385 --

1) Declaring that the Declaration of Heirship and Partition Agreement, dated May 8, 1987,
executed by Irene, Ruth, Orpha and Goldelina, all surnamed Colinco, as null and void and of no
effect insofar as the share of Purificacion Arbolario in Lot No. 323 is concerned[;]

2) Ordering the Register of Deeds of Negros Occidental to cancel Transfer Certificate of Title No.
T-140018 and issue a new one in the names of Voltaire Arbolario, Lucena Arbolario Ta-ala, Carlos
Arbolario, Fe Arbolario and Exaltacion Arbolario, 3/8 share or One thousand Six Hundred Forty
Three Point Five (1,643.5) square meters, and the remaining 5/8 share or One Thousand Seventy
Two Point Five (1,072.5) square meters in the names of Irene Colinco, Ruth Colinco, Orpha
Colinco and Goldelina Colingco or other heirs, if any[;]

3) Ordering the [Respondents] Irene, Ruth, Orpha and Goldelina, all surnamed Colinco, to pay
jointly and severally to [Petitioners] Voltaire M. Arbolario, et al., the sum of Ten Thousand Pesos
(P10,000.00) as moral damages, Five Thousand Pesos (P5,000.00) as attorneys fees and the x x x
sum of One Thousand Pesos (P1,500.00) as appearance fees; and

in Civil Case No. 367 --

1) Ordering the dismissal of [respondents] complaint and the [petitioners] counter-claim for lack of
legal basis.

In both cases --

1) Ordering the Colincos to pay costs. [8]

The trial court held that the Arbolarios were the brothers and the sisters of the deceased
Purificacion Arbolario, while the Colincos were her cousins and nieces. Pursuant to Article 1009 of the
Civil Code, the Colincos could not inherit from her, because she had half-brothers and half-
sisters. Their 1987 Declaration of Heirship and Partition Agreement was made in bad faith, because
they knew all along the existence of, and their relationship with, the Arbolarios. The Salhays, on the
other hand, had no document to prove their acquisition and possession of a portion of the disputed
lot.

Ruling of the Court of Appeals

On appeal, the CA rejected the contention of petitioners that the cohabitation of their father with
their natural mother, Francisca Malvas, was by virtue of a valid marriage. The appellate court
observed that the Arbolarios had all been born before the death of Catalina Baloyo, as shown by the
Deed of Declaration of Heirship, which she had executed in 1951. No evidence was ever presented
showing that her conjugal union with Juan Arbolario had been judicially annulled or lawfully ended
before that year. Because it was also in 1951 when Juan Arbolario cohabited with Francisca Malvas,
their union was presumably extramarital. Consequently, their children are illegitimate half-brothers
and half-sisters of Purificacion, the daughter of Juan and Catalina.
Illegitimate children are barred by Article 992 of the Civil Code from inheriting intestate from the
legitimate children and relatives of their father or mother. As the illegitimate siblings of the late
Purificacion Arbolario, petitioners cannot conveniently undermine the legal limitations by insisting that
they were treated as half-brothers and half-sisters by the deceased.
On the other hand, there is no impediment for respondents to declare themselves as the sole and
forced heirs of Anselmo Baloyo and Macaria Lirazan. Moreover, there is no clear and reliable
evidence to support the allegation of the Salhays that they purchased from the decedent, Purificacion
Arbolario, the lot that they have been occupying since 1970.
Hence, this Petition. [9]

Issues

In their Memorandum, petitioners raise the following issues for our consideration:
I
The Honorable Court of Appeals committed grave and serious error in considering the Arbolarios
illegitimate children and not entitled to inherit from their half-sister Purificacion Arbolario.

II

The Honorable Court of Appeals committed grave and serious error in considering the purchase of
the property by Rosela Rodriguez and subsequent acquisition by Petitioners Rosalita Rodriguez and
Carlito Salhay improper.

III

The Honorable Court of Appeals committed grave and serious error in deciding that the court a quo
had no right to distribute the said property.[10]

In other words, petitioners are questioning the CA pronouncements on (1) the illegitimacy of their
relationship with Purificacion; (2) the validity of the Salhays purchase of a portion of the disputed lot;
and (3) the impropriety of the RTC Order partitioning that lot.

This Courts Ruling

The Petition has no merit.

First Issue:
Illegitimacy of Petitioners

Petitioners contend that their illegitimacy is a far-fetched and scurrilous claim that is not
supported by the evidence on record. They maintain that the CA declared them illegitimate on the
unproven allegation that Catalina Baloyo had signed the Declaration of Heirship in 1951. They aver
that this 1951 Declaration does not contain her signature, and that she died in 1903:

Que Agueda Baloyo, Catalina Baloyo y Eduardo Baloyo murieron ab intestate en Ilog, Negros
Occ.; la primera fallecio en 11 de Noviembre de 1940, la segunda murio el ano 1903 y el ultimo en
28 de Marzo de 1947 x x x. [11]

We are not persuaded.

We begin our ruling with the general principle that the Supreme Court is not a trier of facts.
However, where the trial court and the CA arrived at different factual findings, a review of the
[12]

evidence on record may become necessary. [13]

Petitioners, in effect, are asking us to evaluate the 1951 Declaration of Heirship, deduce that
Catalina Baloyo had long been dead before it was ever executed, and conclude that the Arbolarios
are legitimate half-brothers and half-sisters of Juan and Catalinas only daughter, Purificacion. What
we see, on the other hand, is a series of non sequiturs.
First, a review of the 1951 Declaration reveals that the year of Catalinas death was
intercalated. The first two numbers (1 and 9) and the last digit (3) are legible; but the third digit has
been written over to make it look like a 0. Further, the paragraph quoted by petitioners should show a
chronological progression in the heirs years of death: Agueda died in 1940 and Eduardo in
1947. Hence, if Catalina had indeed died in 1903, why then was her name written after Aguedas and
not before it? Moreover, the document, being in Spanish, requires an official translation. We cannot
readily accept the English translation proffered by petitioners, since respondents did not agree to its
correctness. Besides, it consisted of only a paragraph of the whole document.
Second, there is no solid basis for the argument of petitioners that Juan Arbolarios marriage to
Francisca Malvas was valid, supposedly because Catalina Baloyo was already dead when they were
born. It does not follow that just because his first wife has died, a man is already conclusively married
to the woman who bore his children. A marriage certificate or other generally accepted proof is
necessary to establish the marriage as an undisputable fact.
Third, clear and substantial evidence is required to support the claim of petitioners that they were
preterited from the 1951 Declaration of Heirship. The RTC Decision merely declared that they were
half-brothers and half-sisters of Purificacion, while respondents were her cousins and nieces
(collateral relatives). It made no pronouncement as to whether they were her legitimate or illegitimate
siblings. We quote the appellate court:

x x x. Therefore, in the absence of any fact that would show that conjugal union of Juan Arbolario
and Catalina Baloyo had been judicially annulled before 1951, or before Juan Arbolario cohabited
with Francisca Malvas, it would only be reasonable to conclude that the foregoing union which
resulted in the birth of the [Arbolarios] was extra-marital. And consequently, x x x Voltaire
Arbolario, et al., are illegitimate children of Juan Arbolario.

There is no presumption of legitimacy or illegitimacy in this jurisdiction (Article 261, New Civil
Code); and whoever alleges the legitimacy or illegitimacy of a child born after the dissolution of a
prior marriage or the separation of the spouses must introduce such evidence to prove his or her
allegation (Ibid.; Sec. 4, Rule 131, New Rules on Evidence). It is the x x x Arbolarios, claiming
to be born under a validly contracted subsequent marriage, who must show proof of their
legitimacy. But this, they have miserably failed to do. [14]

Paternity or filiation, or the lack of it, is a relationship that must be judicially established. It [15]

stands to reason that children born within wedlock are legitimate. Petitioners, however, failed to
[16]

prove the fact (or even the presumption) of marriage between their parents, Juan Arbolario and
Francisca Malvas; hence, they cannot invoke a presumption of legitimacy in their favor.
As it is, we have to follow the settled rule that the CAs factual findings cannot be set aside,
because they are supported by the evidence on record. As held by the appellate court, without proof
[17]

that Catalina died in 1903, her marriage to Juan is presumed to have continued. Even where there is
actual severance of the filial companionship between spouses, their marriage subsists, and either
spouses cohabitation with any third party cannot be presumed to be between husband and wife. [18]

Second Issue:
Evidence of Purchase

Petitioners contend that the CA committed a serious error when it disregarded the testimony that
the Salhays had purchased the portion of the lot they had been occupying since 1970. This issue,
according to them, was not even raised by respondents in the latters appeal to the CA.
We disagree. Although the sale was not expressly assigned as an error in their Brief, respondents
(as petitioners in the CA) still assailed the existence of the sale when they argued thus:
As to the spouses Carlito Salhay and Rosalita R. Salhay, they could not present any written contract
to support their claim to having purchased a portion of Lot 323 where their house stands. Rosalita
R. Salhay on the witness stand testified under oath that she has no contract of sale in her favor
because it was her mother, Rosela Rodriguez who had purchased the land, but she was not able to
produce any evidence of such sale in favor of her mother. She declared that she has never paid land
taxes for the land.
[19]

Hence, they prayed for the reversal of the appealed RTC Decision in toto. The CA, on the other
hand, categorically ruled that no clear and reliable evidence had been introduced to prove such bare
[allegation] that a portion of the disputed lot had ever been purchased by the Salhays. Besides, no
favorable supporting evidence was cited by petitioners in their Memorandum. Thus, we find no reason
to overturn the CAs factual finding on this point.

Third Issue:
Partition

Petitioners also contend that the Court of Appeals overstepped its bounds when it ruled that since
respondents did not raise the issue of partition on appeal, the RTC had no jurisdiction to divide the
disputed lot. The CA held, however, that the partition of the property had not been contemplated by
the parties, because respondents merely sought recovery of possession of the parcel held by the
Salhays, while petitioners sought the annulment of the Deed of Partition respondents had entered
into.
We agree with the appellate court. The purpose of partition is to put an end to co-ownership. It
seeks a severance of the individual interests of co-owners, vesting in each of them a sole estate in a
specific property and a right to enjoy the allotted estate without supervision or interference.
[20]

Petitioners in this case were unable to establish any right to partition, because they had failed to
establish that they were legitimate half-brothers and half-sisters of the deceased
Purificacion.Questions as to the determination of the heirs of a decedent, the proof of filiation, and the
determination of the estate of a decedent and claims thereto should be brought up before the proper
probate court or in special proceedings instituted for the purpose. Such issues cannot be adjudicated
in an ordinary civil action for the recovery of ownership and possession. [21]

WHEREFORE, the Petition is DENIED, and the appealed Decision AFFIRMED. Costs against
petitioners.
SO ORDERED.
Puno, (Chairman), Sandoval-Gutierrez, Corona and Carpio-Morales, JJ., concur.
FELIX AZUELA, G.R. No. 122880
Petitioner,
Present:

QUISUMBING, J.,
Chairperson,
- versus - CARPIO,
CARPIO MORALES, and
TINGA, JJ.
COURT OF APPEALS,
GERALDA AIDA CASTILLO Promulgated:
substituted by ERNESTO G.
CASTILLO, April 12, 2006
Respondents.
x----------------------------------------------------------------------------x

DECISION

TINGA, J.:

The core of this petition is a highly defective notarial will, purportedly

executed by Eugenia E. Igsolo (decedent), who died on 16 December
1982 at the age of 80. In refusing to give legal recognition to the due
execution of this document, the Court is provided the opportunity to
assert a few important doctrinal rules in the execution of notarial wills,
all self-evident in view of Articles 805 and 806 of the Civil Code.
 A will whose attestation clause does not contain the
number of pages on which the will is written is fatally
defective. A will whose attestation clause is not signed by the
instrumental witnesses is fatally defective. And perhaps most
importantly, a will which does not contain an acknowledgment,
but a mere jurat, is fatally defective. Any one of these defects
is sufficient to deny probate. A notarial will with all three
defects is just aching for judicial rejection.

There is a distinct and consequential reason the Civil Code provides a

comprehensive catalog of imperatives for the proper execution of a
notarial will. Full and faithful compliance with all the detailed requisites
under Article 805 of the Code leave little room for doubt as to the
validity in the due execution of the notarial will. Article 806 likewise
imposes another safeguard to the validity of notarial wills that they be
acknowledged before a notary public by the testator and the
witnesses. A notarial will executed with indifference to these two codal
provisions opens itself to nagging questions as to its legitimacy.

The case stems from a petition for probate filed on 10 April 1984 with
the Regional Trial Court (RTC) of Manila. The petition filed by petitioner
Felix Azuela sought to admit to probate the notarial will of Eugenia E.
Igsolo, which was notarized on 10 June 1981. Petitioner is the son of
the cousin of the decedent.

The will, consisting of two (2) pages and written in the vernacular
Pilipino, read in full:
HULING HABILIN NI EUGENIA E. IGSOLO

SA NGALAN NG MAYKAPAL, AMEN:

AKO, si EUGENIA E. IGSOLO, nakatira sa 500 San Diego St., Sampaloc,

Manila, pitongput siyam (79) na gulang, nasa hustong pagi-isip, pag-
unawa at memoria ay nag-
hahayag na ito na ang aking huling habilin at testamento,
at binabali wala ko lahat ang naunang ginawang habilin o testamento:

Una-Hinihiling ko na ako ay mailibing sa Sementerio del Norte, La Loma

sang-ayong sa kaugalian at patakaran ng simbahang katoliko at ang ta
ga-pag-ingat (Executor) ng habiling ito ay magtatayo ng bantayog upa
ng silbing ala-ala sa akin ng aking pamilya at kaibigan;

Pangalawa-Aking ipinagkakaloob at isinasalin ang lahat ng karapatan s

a aking pamangkin na si Felix Azuela, na siyang nag-alaga sa akin
sa mahabang panahon, yaong mga bahay na nakatirik sa lote numero
28, Block 24
at nakapangalan sa Pechaten Korporasyon, ganoon din ibinibigay ko an
g lahat ng karapatan sa bahay na nakatirik sa inoopahan kong lote, nu
mero43, Block 24 na pag-
aari ng Pechaten Corporation. Ipinagkakaloob kong buong buo ang laha
t ng karapatan sa bahay at lupa na nasa 500 San Diego St., Lot 42,
Block 24, Sampaloc, Manila kay Felix Azuela
at ang pagkakaloob kong ito ay walang pasubalit at kondiciones;

Pangatlo- Na ninunumbrahan ko si VART PAGUE

na siyang nagpapatupad ng huling habiling ito at kagustuhan ko rin na
hindi na kailanman siyang mag-lagak ng piyansiya.

Aking nilagdaan ang Huling Habilin na ito dito sa Maynila ika 10 ng Hun
yo, 1981.

(Sgd.)
EUGENIA E. IGSOLO
(Tagapagmana)

PATUNAY NG MGA SAKSI

Ang kasulatang ito,

na binubuo ng ____ dahon pati ang huling dahong ito,
na ipinahayag sa amin ni Eugenia E.
Igsolo, tagapagmana na siya niyang Huling Habilin, ngayon ika-10 ngH
unyo 1981,
ay nilagdaan ng nasabing tagapagmana sa ilalim ng kasulatang naban
ggit at sa kaliwang panig ng lahat at bawat dahon,
sa harap ng lahat at bawat sa amin,
at kami namangmga saksi ay lumagda sa harap ng nasabing tagapag
mana at sa harap ng lahat at bawat isa sa amin,
sa ilalim ng nasabing kasulatan at
sa kaliwang panig ng lahat at bawat dahon ngkasulatan ito.
 EUGENIA E. IGSOLO
address: 500 San Diego St.
Sampaloc, Manila Res. Cert. No. A-7717-37
Issued at Manila on March 10, 1981.

QUIRINO AGRAVA
address: 1228-Int. 3, Kahilum
Pandacan, Manila Res. Cert. No. A-458365
Issued at Manila on Jan. 21, 1981

LAMBERTO C. LEAO
address: Avenue 2, Blcok 7,
Lot 61, San Gabriel, G.MA., Cavite Res.
Cert. No. A-768277 issued at Carmona, Cavite
on Feb. 7, 1981

JUANITO ESTRERA
address: City Court Compound,
City of Manila Res. Cert. No. A574829
Issued at Manila on March 2, 1981.

Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10,

1981 dito sa Lungsod ng Maynila.

(Sgd.)
PETRONIO Y. BAUTISTA
Doc. No. 1232 ; NOTARIO PUBLIKO
Page No. 86 ; Until Dec. 31, 1981
Book No. 43 ; PTR-152041-1/2/81-Manila
Series of 1981 TAN # 1437-977-8[1]

The three named witnesses to the will affixed their signatures on the left-
hand margin of both pages of the will, but not at the bottom of the
attestation clause.

The probate petition adverted to only two (2) heirs, legatees and
devisees of the decedent, namely: petitioner himself, and one Irene
Lynn Igsolo, who was alleged to have resided abroad. Petitioner prayed
that the will be allowed, and that letters testamentary be issued to the
designated executor, Vart Prague.
The petition was opposed by Geralda Aida Castillo (Geralda Castillo),
who represented herself as the attorney-in-fact of the 12 legitimate
heirs of the decedent.[2] Geralda Castillo claimed that the will is a
forgery, and that the true purpose of its emergence was so it could be
utilized as a defense in several court cases filed by oppositor against
petitioner, particularly for forcible entry and usurpation of real
property, all centering on petitioners right to occupy the properties of
the decedent.[3] It also asserted that contrary to the representations of
petitioner, the decedent was actually survived by 12 legitimate heirs,
namely her grandchildren, who were then residing abroad. Per records,
it was subsequently alleged that decedent was the widow of Bonifacio
Igsolo, who died in 1965,[4] and the mother of a legitimate child,
Asuncion E. Igsolo, who predeceased her mother by three (3) months. [5]

Oppositor Geralda Castillo also argued that the will was not
executed and attested to in accordance with law. She pointed out that
decedents signature did not appear on the second page of the will, and
the will was not properly acknowledged. These twin arguments are
among the central matters to this petition.

After due trial, the RTC admitted the will to probate, in an Order
dated 10 August 1992.[6] The RTC favorably took into account the
testimony of the three (3) witnesses to the will, Quirino Agrava,
Lamberto Leano, and Juanito Estrada. The RTC also called to fore the
modern tendency in respect to the formalities in the execution of a will
x x x with the end in view of giving the testator more freedom in
expressing his last wishes;[7] and from this perspective, rebutted
oppositors arguments that the will was not properly executed and
attested to in accordance with law.
After a careful examination of the will and consideration of the
testimonies of the subscribing and attesting witnesses, and having in
mind the modern tendency in respect to the formalities in the
execution of a will, i.e., the liberalization of the interpretation of the law
on the formal requirements of a will with the end in view of giving the
testator more freedom in expressing his last wishes, this Court is
persuaded to rule that the will in question is authentic and had been
executed by the testatrix in accordance with law.

On the issue of lack of acknowledgement, this Court has noted

that at the end of the will after the signature of the testatrix, the
following statement is made under the sub-title, Patunay Ng Mga Saksi:
 Ang kasulatang ito,
na binubuo ng _____ dahon pati ang huling dahong ito,
na ipinahayag sa amin ni Eugenia N.
Igsolo, tagapagmana na siya niyang Huling Habilin, ngayong
ika-10 ng Hunyo 1981,
ay nilagdaan ng nasabing tagapagmana sa ilalim ng kasulat
ang nabanggit at
sa kaliwang panig ng lahat at bawat dahon,
sa harap ng lahat at bawat sa amin,
at kami namang mga saksi ay lumagda sa harap ng nasabin
g tagapagmana at sa harap ng lahat at bawat isa sa amin,
sa ilalim ng nasabing kasulatan at
sa kaliwang panig ng lahat at bawat dahon ng kasulatan ito.

The aforequoted declaration comprises the attestation clause and

the acknowledgement and is considered by this Court as a substantial
compliance with the requirements of the law.

On the oppositors contention that the attestation clause was not

signed by the subscribing witnesses at the bottom thereof, this Court is
of the view that the signing by the subscribing witnesses on the left
margin of the second page of the will containing the attestation clause
and acknowledgment, instead of at the bottom thereof, substantially
satisfies the purpose of identification and attestation of the will.

With regard to the oppositors argument that the will was not
numbered correlatively in letters placed on upper part of each page
and that the attestation did not state the number of pages thereof, it is
worthy to note that the will is composed of only two pages. The first
page contains the entire text of the testamentary dispositions, and the
second page contains the last portion of the attestation clause and
acknowledgement. Such being so, the defects are not of a serious
nature as to invalidate the will. For the same reason, the failure of the
testatrix to affix her signature on the left margin of the second page,
which contains only the last portion of the attestation clause and
acknowledgment is not a fatal defect.

As regards the oppositors assertion that the signature of the

testatrix on the will is a forgery, the testimonies of the three
subscribing witnesses to the will are convincing enough to establish
the genuineness of the signature of the testatrix and the due execution
of the will.[8]
The Order was appealed to the Court of Appeals by Ernesto Castillo,
who had substituted his since deceased mother-in-law, Geralda
Castillo. In a Decision dated 17 August 1995, the Court of Appeals
reversed the trial court and ordered the dismissal of the petition for
probate.[9] The Court of Appeals noted that the attestation clause failed
to state the number of pages used in the will, thus rendering the will
void and undeserving of probate.[10]

Hence, the present petition.

Petitioner argues that the requirement under Article 805 of the

Civil Code that the number of pages used in a notarial will be stated in
the attestation clause is merely directory, rather than mandatory, and
thus susceptible to what he termed as the substantial compliance rule.
[11]

The solution to this case calls for the application of Articles 805 and
806 of the Civil Code, which we replicate in full.

Art. 805. Every will, other than a holographic will, must be

subscribed at the end thereof by the testator himself or by the
testator's name written by some other person in his presence, and by
his express direction, and attested and subscribed by three or more
credible witnesses in the presence of the testator and of 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 the 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.

Art. 806. Every will must be acknowledged before a notary public

by the testator and the witnesses. The notary public shall not be
required to retain a copy of the will, or file another with the office of
the Clerk of Court.

The appellate court, in its Decision, considered only one defect, the
failure of the attestation clause to state the number of pages of the
will. But an examination of the will itself reveals several more
deficiencies.

As admitted by petitioner himself, the attestation clause fails to state

the number of pages of the will. [12] There was an incomplete attempt to
comply with this requisite, a space having been allotted for the
insertion of the number of pages in the attestation clause. Yet the
blank was never filled in; hence, the requisite was left uncomplied with.

The Court of Appeals pounced on this defect in reversing the trial

court, citing in the process Uy Coque v. Navas L. Sioca [13] and In re: Will
of Andrada.[14] In Uy Coque, the Court noted that among the defects of
the will in question was the failure of the attestation clause to state the
number of pages contained in the will. [15] In ruling that the will could
not be admitted to probate, the Court made the following consideration
which remains highly relevant to this day: The purpose of requiring the
number of sheets to be stated in the attestation clause is obvious; the
document might easily be so prepared that the removal of a
sheet would completely change the testamentary dispositions
of the will and in the absence of a statement of the total
number of sheets such removal might be effected by taking
out the sheet and changing the numbers at the top of the
following sheets or pages. If, on the other hand, the total number of
sheets is stated in the attestation clause the falsification of the
document will involve the inserting of new pages and the forging of the
signatures of the testator and witnesses in the margin, a matter
attended with much greater difficulty.[16]

The case of In re Will of Andrada concerned a will the attestation

clause of which failed to state the number of sheets or pages used.
This consideration alone was sufficient for the Court to declare
unanim[ity] upon the point that the defect pointed out in the attesting
clause is fatal.[17] It was further observed that it cannot be denied that
the x x x requirement affords additional security against the danger
that the will may be tampered with; and as the Legislature has seen fit
to prescribe this requirement, it must be considered material. [18]

Against these cited cases, petitioner cites Singson v.

[19] [20]
Florentino and Taboada v. Hon. Rosal, wherein the Court allowed
probate to the wills concerned therein despite the fact that the
attestation clause did not state the number of pages of the will. Yet the
appellate court itself considered the import of these two cases, and
made the following distinction which petitioner is unable to rebut, and
which we adopt with approval:

Even a cursory examination of the Will (Exhibit D), will readily

show that the attestation does not state the number of pages used
upon which the will is written. Hence, the Will is void and undeserving
of probate.

We are not impervious of the Decisions of the Supreme Court in Manuel

Singson versus Emilia Florentino, et al., 92 Phil. 161 and Apolonio
[Taboada] versus Hon. Avelino Rosal, et al., 118 SCRA 195, to the effect
that a will may still be valid even if the attestation does not contain the
number of pages used upon which the Will is written. However, the
Decisions of the Supreme Court are not applicable in the
aforementioned appeal at bench. This is so because, in the case
of Manuel Singson versus Emilia Florentino, et al., supra, although the
attestation in the subject Will did not state the number of pages used
in the will, however, the same was found in the last part of the body of
the Will:

xxx

The law referred to is article 618 of the Code of Civil Procedure, as

amended by Act No. 2645, which requires that the
attestation clause shall state the number of pages or sheets
upon which the will is written, which requirement has been
held to be mandatory as an effective safeguard against the
possibility of interpolation or omission of some of the pages
of the will to the prejudice of the heirs to whom the property
is intended to be bequeathed (In re Will of Andrada, 42 Phil.
180; Uy Coque vs. Navas L. Sioca, 43 Phil., 405; Gumban vs.
Gorcho, 50 Phil. 30; Quinto vs. Morata, 54 Phil.
 481; Echevarria vs. Sarmiento, 66 Phil.
611). The ratio decidendi of these cases seems to be that
the attestation clause must contain a statement of the
number of sheets or pages composing the will and that if
this is missing or is omitted, it will have the effect of
invalidating the will if the deficiency cannot be supplied, not
by evidence aliunde, but by a consideration or examination
of the will itself. But here the situation is different. While the
attestation clause does not state the number of sheets or
pages upon which the will is written, however, the last part
of the body of the will contains a statement that it is
composed of eight pages, which circumstance in our opinion
takes this case out of the rigid rule of construction and
places it within the realm of similar cases where a broad
and more liberal view has been adopted to prevent the will
of the testator from being defeated by purely technical
considerations. (page 165-165, supra) (Underscoring
supplied)

In Apolonio Tabaoda versus Hon. Avelino Rosal, et al. supra, the notarial
acknowledgement in the Will states the number of pages used in the:

xxx

We have examined the will in question and noticed that the attestation
clause failed to state the number of pages used in writing
the will. This would have been a fatal defect were it not for
the fact that, in this case, it is discernible from the entire
will that it is really and actually composed of only two pages
duly signed by the testatrix and her instrumental
witnesses. As earlier stated, the first page which contains
the entirety of the testamentary dispositions is signed by
the testatrix at the end or at the bottom while the
instrumental witnesses signed at the left margin. The other
page which is marked as Pagina dos comprises the
attestation clause and the acknowledgment. The
acknowledgment itself states that this Last Will and
Testament consists of two pages including this page (pages
200-201, supra) (Underscoring supplied).
 However, in the appeal at bench, the number of pages used in the will
is not stated in any part of the Will. The will does not even contain any
notarial acknowledgment wherein the number of pages of the will
should be stated.[21]

Both Uy Coque and Andrada were decided prior to the enactment

of the Civil Code in 1950, at a time when the statutory provision
governing the formal requirement of wills was Section

618 of the Code of Civil Procedure. [22] Reliance on these cases remains
apropos, considering that the requirement that the attestation state
the number of pages of the will is extant from Section 618. [23] However,
the enactment of the Civil Code in 1950 did put in force a rule of
interpretation of the requirements of wills, at least insofar as the
attestation clause is concerned, that may vary from the philosophy
that governed these two cases. Article 809 of the Civil Code states: In
the absence of bad faith, forgery, or fraud, or undue and improper
pressure and influence, defects and imperfections in the form of
attestation or in the language used therein shall not render the will
invalid if it is proved that the will was in fact executed and attested in
substantial compliance with all the requirements of article 805.

In the same vein, petitioner cites the report of the Civil Code
Commission, which stated that the underlying and fundamental
objective permeating the provisions on the [law] on [wills] in this
project consists in the [liberalization] of the manner of their execution
with the end in view of giving the testator more [freedom] in
[expressing] his last wishes. This objective is in accord with the
[modern tendency] in respect to the formalities in the execution of
wills.[24] However, petitioner conveniently omits the qualification
offered by the Code Commission in the very same paragraph he cites
from their report, that such liberalization be but with sufficient
safeguards and restrictions to prevent the commission of fraud and the
exercise of undue and improper pressure and influence upon the
testator.[25]

Caneda v. Court of Appeals[26] features an extensive discussion

made by Justice Regalado, speaking for the Court on the conflicting
views on the manner of interpretation of the legal formalities required
in the execution of the attestation clause in wills. [27] Uy
Coque and Andrada are cited therein, along with several other cases,
as examples of the application of the rule of strict construction.
[28]
However, the Code Commission opted to recommend a more liberal
construction through the substantial compliance rule under Article 809.
A cautionary note was struck though by Justice J.B.L. Reyes as to how
Article 809 should be applied:

x x x The rule must be limited to disregarding those defects that

can be supplied by an examination of the will itself: whether all the
pages are consecutively numbered; whether the signatures appear in
each and every page; whether the subscribing witnesses are three or
the will was notarized. All these are facts that the will itself can reveal,
and defects or even omissions concerning them in the attestation
clause can be safely disregarded. But the total number of pages,
and whether all persons required to sign did so in the presence
of each other must substantially appear in the attestation
clause, being the only check against perjury in the probate
proceedings.[29] (Emphasis supplied.)

The Court of Appeals did cite these comments by Justice J.B.L.

Reyes in its assailed decision, considering that the failure to state the
number of pages of the will in the attestation clause is one of the
defects which cannot be simply disregarded. In Caneda itself, the Court
refused to allow the probate of a will whose attestation clause failed to
state that the witnesses subscribed their respective signatures to the
will in the presence of the testator and of each other, [30] the other
omission cited by Justice J.B.L. Reyes which to his estimation cannot be
lightly disregarded.

Caneda suggested: [I]t may thus be stated that the rule, as it now
stands, is that omission which can be supplied by an examination of
the will itself, without the need of resorting to extrinsic evidence, will
not be fatal and, correspondingly, would not obstruct the allowance to
probate of the will being assailed. However, those omissions which
cannot be supplied except by evidence aliunde would result in the
invalidation of the attestation clause and ultimately, of the will itself.
[31]
Thus, a failure by the attestation clause to state that the testator
signed every page can be liberally construed, since that fact can be
checked by a visual examination; while a failure by the attestation
clause to state that the witnesses signed in one anothers presence
should be considered a fatal flaw since the attestation is the only
textual guarantee of compliance.[32]

The failure of the attestation clause to state the number of pages

on which the will was written remains a fatal flaw, despite Article 809.
The purpose of the law in requiring the clause to state the number of
pages on which the will is written is to safeguard against possible
interpolation or omission of one or some of its pages and to prevent
any increase or decrease in the pages.[33] The failure to state the
number of pages equates with the absence of an averment on the part
of the instrumental witnesses as to how many pages consisted the will,
the execution of which they had ostensibly just witnessed and
subscribed to. Following Caneda, there is substantial compliance with
this requirement if the will states elsewhere in it how many pages it is
comprised of, as was the situation in Singson and Taboada. However,
in this case, there could have been no substantial compliance with the
requirements under Article 805 since there is no statement in the
attestation clause or anywhere in the will itself as to the number of
pages which comprise the will.

At the same time, Article 809 should not deviate from the need to
comply with the formal requirements as enumerated under Article 805.
Whatever the inclinations of the members of the Code Commission in
incorporating Article 805, the fact remains that they saw fit to
prescribe substantially the same formal requisites as enumerated in
Section 618 of the Code of Civil Procedure, convinced that these
remained effective safeguards against the forgery or intercalation of
notarial wills.[34] Compliance with these requirements, however
picayune in impression, affords the public a high degree of comfort
that the testator himself or herself had decided to convey
property post mortem in the manner established in the will. [35] The
transcendent legislative intent, even as expressed in the cited
comments of the Code Commission, is for the fruition of the
testators incontestable desires, and not for the indulgent
admission of wills to probate.

The Court could thus end here and affirm the Court of Appeals.
However, an examination of the will itself reveals a couple of even
more critical defects that should necessarily lead to its rejection.
 For one, the attestation clause was not signed by the
instrumental witnesses. While the signatures of the instrumental
witnesses appear on the left-hand margin of the will, they do not
appear at the bottom of the attestation clause which after all consists
of their averments before the notary public.

Cagro v. Cagro[36] is material on this point. As in this case, the

signatures of the three witnesses to the will do not appear at the
bottom of the attestation clause, although the page containing the
same is signed by the witnesses on the left-hand margin. [37] While three
(3) Justices[38] considered the signature requirement had been
substantially complied with, a majority of six (6), speaking through
Chief Justice Paras, ruled that the attestation clause had not been duly
signed, rendering the will fatally defective.

There is no question that the signatures of the three witnesses to the

will do not appear at the bottom of the attestation clause, although the
page containing the same is signed by the witnesses on the left-hand
margin.

We are of the opinion that the position taken by the appellant is

correct. The attestation clause is "a memorandum of the facts
attending the execution of the will" required by law to be made by the
attesting witnesses, and it must necessarily bear their signatures. An
unsigned attestation clause cannot be considered as an act of the
witnesses, since the omission of their signatures at the bottom thereof
negatives their participation.

The petitioner and appellee contends that signatures of the three

witnesses on the left-hand margin conform substantially to the law and
may be deemed as their signatures to the attestation clause. This is
untenable, because said signatures are in compliance with the legal
mandate that the will be signed on the left-hand margin of all its
pages. If an attestation clause not signed by the three witnesses at the
bottom thereof, be admitted as sufficient, it would be easy to add such
clause to a will on a subsequent occasion and in the absence of the
testator and any or all of the witnesses.[39]

The Court today reiterates the continued efficacy of Cagro. Article

805 particularly segregates the requirement that the instrumental
witnesses sign each page of the will, from the requisite that the will be
attested and subscribed by [the instrumental witnesses]. The
respective intents behind these two classes of signature are distinct
from each other. The signatures on the left-hand corner of every page
signify, among others, that the witnesses are aware that the page they
are signing forms part of the will. On the other hand, the signatures to
the attestation clause establish that the witnesses are referring to the
statements contained in the attestation clause itself. Indeed, the
attestation clause is separate and apart from the disposition of the
will. An unsigned attestation clause results in an unattested will. Even
if the instrumental witnesses signed the left-hand margin of the page
containing the unsigned attestation clause, such signatures cannot
demonstrate these witnesses undertakings in the clause, since the
signatures that do appear on the page were directed towards a wholly
different avowal.

The Court may be more charitably disposed had the witnesses in

this case signed the attestation clause itself, but not the left-hand
margin of the page containing such clause. Without diminishing the
value of the instrumental witnesses signatures on each and every
page, the fact must be noted that it is the attestation clause which
contains the utterances reduced into writing of the testamentary
witnesses themselves. 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 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 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.

Thus, the subject will cannot be considered to have been validly

attested to by the instrumental witnesses, as they failed to sign the
attestation clause.

Yet, there is another fatal defect to the will on which the denial of
this petition should also hinge. The requirement under Article 806 that
every will must be acknowledged before a notary public by the testator
and the witnesses has also not been complied with. The importance of
this requirement is highlighted by the fact that it had been segregated
from the other requirements under Article 805 and entrusted into a
separate provision, Article 806. The non-observance of Article 806 in
this case is equally as critical as the other cited flaws in compliance
with Article 805, and should be treated as of equivalent import.
 In lieu of an acknowledgment, the notary public, Petronio Y.
Bautista, wrote Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10
(sic), 1981 dito sa Lungsod ngMaynila.[40] By no manner of
contemplation can those words be construed as an acknowledgment.
An acknowledgment is the act of one who has executed a deed in
going before some competent officer or court and declaring it to be his
act or deed.[41] It involves an extra step undertaken whereby the signor
actually declares to the notary that the executor of a document has
attested to the notary that the same is his/her own free act and deed.

It might be possible to construe the averment as a jurat, even

though it does not hew to the usual language thereof. A jurat is that
part of an affidavit where the notary certifies that before him/her, the
document was subscribed and sworn to by the executor. [42] Ordinarily,
the language of the jurat should avow that the document was
subscribed and sworn before the notary public, while in this case, the
notary public averred that he himself signed and notarized the
document. Possibly though, the word ninotario or notarized
encompasses the signing of and swearing in of the executors of the
document, which in this case would involve the decedent and the
instrumental witnesses.

Yet even if we consider what was affixed by the notary public as

a jurat, the will would nonetheless remain invalid, as the express
requirement of Article 806 is that the will be acknowledged, and not
merely subscribed and sworn to. The will does not present any textual
proof, much less one under oath, that the decedent and the
instrumental witnesses executed or signed the will as their own free
act or deed. The acknowledgment made in a will provides for another
all-important legal safeguard against spurious wills or those made
beyond the free consent of the testator. An acknowledgement is not an
empty meaningless act.[43] The acknowledgment coerces the testator
and the instrumental witnesses to declare before an officer of the law
that they had executed and subscribed to the will as their own free act
or deed. Such declaration is under oath and under pain of perjury, thus
allowing for the criminal prosecution of persons who participate in the
execution of spurious wills, or those executed without the free consent
of the testator. It also provides a further degree of assurance that the
testator is of certain mindset in making the testamentary dispositions
to those persons he/she had designated in the will.
 It may not have been said before, but we can assert the rule, self-
evident as it is under Article 806. A notarial will that is not
acknowledged before a notary public by the testator and the
witnesses is fatally defective, even if it is subscribed and
sworn to before a notary public.

There are two other requirements under Article 805 which were
not fully satisfied by the will in question. We need not
discuss them at length, as they are no longer material to the

disposition of this case. The provision requires that the testator and the
instrumental witnesses sign each and every page of the will on the left
margin, except the last; and that all the pages shall be numbered
correlatively in letters placed on the upper part of each page. In this
case, the decedent, unlike the witnesses, failed to sign both pages of
the will on the left margin, her only signature appearing at the so-
called logical end[44] of the will on its first page. Also, the will itself is
not numbered correlatively in letters on each page, but instead
numbered with Arabic numerals. There is a line of thought that has
disabused the notion that these two requirements be construed as
mandatory.[45]Taken in isolation, these omissions, by themselves, may
not be sufficient to deny probate to a will. Yet even as these omissions
are not decisive to the adjudication of this case, they need not be
dwelt on, though indicative as they may be of a general lack of due
regard for the requirements under Article 805 by whoever executed the
will.

All told, the string of mortal defects which the will in question
suffers from makes the probate denial inexorable.

WHEREFORE, the petition is DENIED. Costs against petitioner.

SO ORDERED.

DANTE O. TINGA Associate Justice

WE CONCUR:

CYNTHIA C. ALABAN, G.R. No. 156021

FRANCIS COLLADO, JOSE
P. COLLADO, JUDITH Present:
PROVIDO, CLARITA PROVIDO,
ALFREDO PROVIDO, MANUEL PUNO, J.,
PROVIDO, JR., LORNA DINA Chairman,
E. PROVIDO, SEVERO ARENGA, AUSTRIA-MARTINEZ,
JR., SERGIO ARENGA, EDUARDO CALLEJO, SR.,
ARENGA, CAROL ARENGA, RUTH TINGA, and
BABASA, NORMA HIJASTRO, CHICO-NAZARIO, JJ.
DOLORES M. FLORES, ANTONIO
MARIN, JR., JOSE MARIN, SR., and
MATHILDE MARIN, Promulgated:
Petitioners,
September 23, 2005

- versus -

COURT OF APPEALS and

FRANCISCO H. PROVIDO,
Respondents.
x-------------------------------------------------------------------x

DECISION

TINGA, J.:

This is a petition for review of the Resolutions[1] of the

[2]
Court of Appeals (CA) in CA-G.R. SP No. 69221, dismissing petitioners petition for annulment of
judgment.

On 8 November 2000, respondent Francisco Provido (respondent) filed a petition, docketed as SP

Proc. No. 00-135, for the probate of the Last Will and Testament[3] of the late Soledad Provido
Elevencionado (decedent), who died on 26 October 2000 in Janiuay, Iloilo. [4] Respondent alleged
that he was the heir of the decedent and the executor of her will. On 30 May 2001, the Regional
Trial Court (RTC), Branch 68, in P.D. Monfort North, Dumangas, Iloilo, rendered its Decision,
[5]
allowing the probate of the will of the decedent and directing the issuance of letters
testamentary to respondent.[6]

More than four (4) months later, or on 4 October 2001, herein petitioners filed a motion for the
reopening of the probate proceedings.[7] Likewise, they filed an opposition to the allowance of the
will of the decedent, as well as the issuance of letters testamentary to respondent, [8] claiming
that they are the intestate heirs of the decedent. Petitioners claimed that the RTC did not acquire
jurisdiction over the petition due to non-payment of the correct docket fees, defective
publication, and lack of notice to the other heirs. Moreover, they alleged that the will could not
have been probated because: (1) the signature of the decedent was forged; (2) the will was not
executed in accordance with law, that is, the witnesses failed to sign below the attestation
clause; (3) the decedent lacked testamentary capacity to execute and publish a will; (4) the will
was executed by force and under duress and improper pressure; (5) the decedent had no
intention to make a will at the time of affixing of her signature; and (6) she did not know the
properties to be disposed of, having included in the will properties which no longer belonged to
her. Petitioners prayed that the letters testamentary issued to respondent be withdrawn and the
estate of the decedent disposed of under intestate succession. [9]

On 11 January 2002, the RTC issued an Order[10] denying petitioners motion for being
unmeritorious. Resolving the issue of jurisdiction, the RTC held that petitioners were deemed
notified of the hearing by publication and that the deficiency in the payment of docket fees is not
a ground for the outright dismissal of the petition. It merely required respondent to pay the
deficiency.[11] Moreover, the RTCs Decision was already final and executory even before
petitioners filing of the motion to reopen.[12]

Petitioners thereafter filed a petition [13] with an application for preliminary injunction with the CA,
seeking the annulment of the RTCs Decision dated 30 May 2001 and Order dated 11 January
2002. They claimed that after the death of the decedent, petitioners, together with respondent,
held several conferences to discuss the matter of dividing the estate of the decedent, with
respondent agreeing to a one-sixth (1/6) portion as his share. Petitioners allegedly drafted a
compromise agreement to implement the division of the estate. Despite receipt of the
agreement, respondent refused to sign and return the same. Petitioners opined that respondent
feigned interest in participating in the compromise agreement so that they would not suspect his
intention to secure the probate of the will.[14] They claimed that they learnt of the probate
proceedings only in July of 2001, as a result of which they filed their motion to reopen the
proceedings and admit their opposition to the probate of the will only on 4 October 2001. They
argued that the RTC Decision should be annulled and set aside on the ground of extrinsic fraud
and lack of jurisdiction on the part of the RTC. [15]

In its Resolution[16] promulgated on 28 February 2002, the CA dismissed the petition. It found that
there was no showing that petitioners failed to avail of or resort to the ordinary remedies of new
trial, appeal, petition for relief from judgment, or other appropriate remedies through no fault of
their own.[17] Moreover, the CA declared as baseless petitioners claim that the proceedings in the
RTC was attended by extrinsic fraud. Neither was there any showing that they availed of this
ground in a motion for new trial or petition for relief from judgment in the RTC, the CA added.
[18]
Petitioners sought reconsideration of the Resolution, but the same was denied by the CA for
lack of merit.[19]

Petitioners now come to this Court, asserting that the CA committed grave abuse of discretion
amounting to lack of jurisdiction when it dismissed their petition for the alleged failure to show
that they have not availed of or resorted to the remedies of new trial, appeal, petition for relief
from judgment or other remedies through no fault of their own, and held that petitioners were
not denied their day in court during the proceedings before the RTC. [20] In addition, they assert
that this Court has yet to decide a case involving Rule 47 of the Rules of Court and, therefore, the
instant petition should be given due course for the guidance of the bench and bar. [21]

For his part, respondent claims that petitioners were in a position to avail of the remedies
provided in Rules 37 and 38, as they in fact did when they filed a motion for new trial.
[22]
Moreover, they could have resorted to a petition for relief from judgment since they learned of
the RTCs judgment only three and a half months after its promulgation. [23] Respondent likewise
maintains that no extrinsic fraud exists to warrant the annulment of the RTCs Decision, since
there was no showing that they were denied their day in court. Petitioners were not made parties
to the probate proceedings because the decedent did not institute them as her heirs. [24] Besides,
assuming arguendo that petitioners are heirs of the decedent, lack of notice to them is not a
fatal defect since personal notice upon the heirs is a matter of procedural convenience and not a
jurisdictional requisite.[25] Finally, respondent charges petitioners of forumshopping, since the
latter have a pending suit involving the same issues as those in SP No. 00-135, that is SP No.
1181[26] filed before Branch 23, RTC of General Santos City and subsequently pending on appeal
before the CA in CA-G.R. No.74924. [27]

It appears that one of the petitioners herein, Dolores M. Flores (Flores), who is a niece of the
decedent, filed a petition for letters of administration with the RTC of General Santos City,
claiming that the decedent died intestate without any issue, survived by five groups of collateral
heirs. Flores, armed with a Special Power of Attorney from most of the other petitioners, prayed
for her appointment as administratrix of the estate of the decedent. The RTC dismissed the
petition on the ground of lack of jurisdiction, stating that the probate court in Janiuay, Iloilo has
jurisdiction since the venue for a petition for the settlement of the estate of a decedent is the
place where the decedent died. This is also in accordance with the rule that the first court
acquiring jurisdiction shall continue hearing the case to the exclusion of other courts, the RTC
added.[28] On 9 January 2002, Flores filed a Notice of Appeal [29] and on 28 January 2002, the case
was ordered forwarded to the CA.[30]

Petitioners maintain that they were not made parties to the case in which the decision sought to
be annulled was rendered and, thus, they could not have availed of the ordinary remedies of new
trial, appeal, petition for relief from judgment and other appropriate remedies, contrary to the
ruling of the CA. They aver that respondents offer of a false compromise and his failure to notify
them of the probate of the will constitute extrinsic fraud that necessitates the annulment of the
RTCs judgment.[31]

The petition is devoid of merit.

Section 37 of the Rules of Court allows an aggrieved party to file a motion for new trial on the
ground of fraud, accident, mistake, or excusable negligence. The same

Rule permits the filing of a motion for reconsideration on the grounds of excessive award of
damages, insufficiency of evidence to justify the decision or final order, or that the decision or
final order is contrary to law.[32] Both motions should be filed within the period for taking an
appeal, or fifteen (15) days from notice of the judgment or final order.

Meanwhile, a petition for relief from judgment under Section 3 of Rule 38 is resorted to when a
judgment or final order is entered, or any other proceeding is thereafter taken, against a party in
any court through fraud, accident, mistake, or excusable negligence. Said party may file a
petition in the same court and in the same case to set aside the judgment, order or proceeding.
It must be filed within sixty (60) days after the petitioner learns of the judgment and within six
(6) months after entry thereof.[33]

A motion for new trial or reconsideration and a petition for relief from judgment are remedies
available only to parties in the proceedings where the assailed

judgment is rendered.[34] In fact, it has been held that a person who was never a party to the
case, or even summoned to appear therein, cannot avail of a petition for relief from judgment. [35]

However, petitioners in this case are mistaken in asserting that they are not or have not become
parties to the probate proceedings.

Under the Rules of Court, any executor, devisee, or legatee named in a will, or any other person
interested in the estate may, at any time after the death of the testator, petition the court having
jurisdiction to have the will allowed. [36] Notice of the time and place for proving the will must be
published for three (3) consecutive weeks, in a newspaper of general circulation in the province,
[37]
as well as furnished to the designated or other known heirs, legatees, and devisees of the
testator.[38] Thus, it has been held that a proceeding for the probate of a will is one in rem, such
that with the corresponding publication of the petition the court's jurisdiction extends to all
persons interested in said will or in the settlement of the estate of the decedent. [39]

Publication is notice to the whole world that the proceeding has for its object to bar indefinitely
all who might be minded to make an objection of any sort against the right sought to be
established. It is the publication of such notice that brings in the whole world as a party in the
case and vests the court with jurisdiction to hear and decide it. [40] Thus, even though petitioners
were not mentioned in the petition for probate, they eventually became parties thereto as a
consequence of the publication of the notice of hearing.

As parties to the probate proceedings, petitioners could have validly availed of the remedies of
motion for new trial or reconsideration and petition for relief from judgment. In fact, petitioners
filed a motion to reopen, which is essentially a motion for new trial, with petitioners praying for
the reopening of the case and the setting of further proceedings. However, the motion was
denied for having been filed out of time, long after the Decision became final and executory.
Conceding that petitioners became aware of the Decision after it had become final, they could
have still filed a petition for relief from judgment after the denial of their motion to reopen.
Petitioners claim that they learned of the Decision only on 4 October 2001, or almost four (4)
months from the time the Decision had attained finality. But they failed to avail of the remedy.

For failure to make use without sufficient justification of the said remedies available to them,
petitioners could no longer resort to a petition for annulment of judgment; otherwise, they would
benefit from their own inaction or negligence. [41]

Even casting aside the procedural requisite, the petition for annulment of judgment must still fail
for failure to comply with the substantive requisites, as the appellate court ruled.

An action for annulment of judgment is a remedy in law independent of the case where the
judgment sought to be annulled was rendered. [42] The purpose of such action is to have the final
and executory judgment set aside so that there will be a renewal of litigation. It is resorted to in
cases where the ordinary remedies of new trial, appeal, petition for relief from judgment, or other
appropriate remedies are no longer available through no fault of the petitioner, [43] and is based
on only two grounds: extrinsic fraud, and lack of jurisdiction or denial of due process. [44] A person
need not be a party to the judgment sought to be annulled, and it is only essential that he can
prove his allegation that the judgment was obtained by the use of fraud and collusion and he
would be adversely affected thereby. [45]

An action to annul a final judgment on the ground of fraud lies only if the fraud is extrinsic or
collateral in character.[46] Fraud is regarded as extrinsic where it prevents a party from having a
trial or from presenting his entire case to the court, or where it operates upon matters pertaining
not to the judgment itself but to the manner in which it is procured. The overriding consideration
when extrinsic fraud is alleged is that the fraudulent scheme of the prevailing litigant prevented
a party from having his day in court.[47]

To sustain their allegation of extrinsic fraud, petitioners assert that as a result of respondents
deliberate omission or concealment of their names, ages and residences as the other heirs of the
decedent in his petition for allowance of the will, they were not notified of the proceedings, and
thus they were denied their day in court. In addition, they claim that respondents offer of a false
compromise even before the filing of the petition prevented them from appearing and opposing
the petition for probate.

The Court is not convinced.

According to the Rules, notice is required to be personally given to known heirs, legatees, and
devisees of the testator.[48] A perusal of the will shows that respondent was instituted as the sole
heir of the decedent. Petitioners, as nephews and nieces of the decedent, are neither compulsory
nor testate heirs[49] who are entitled to be notified of the probate proceedings under the Rules.
Respondent had no legal obligation to mention petitioners in the petition for probate, or to
personally notify them of the same.

Besides, assuming arguendo that petitioners are entitled to be so notified, the purported
infirmity is cured by the publication of the notice. After all, personal notice upon the heirs is a
matter of procedural convenience and not a jurisdictional requisite. [50]

The non-inclusion of petitioners names in the petition and the alleged failure to personally notify
them of the proceedings do not constitute extrinsic fraud. Petitioners were not denied their day
in court, as they were not prevented from participating in the proceedings and presenting their
case before the probate court.

One other vital point is the issue of forum-shopping against petitioners. Forum-shopping consists
of filing multiple suits in different courts, either simultaneously or successively, involving the
same parties, to ask the courts to rule on the same or related causes and/or to grant the same or
substantially same reliefs,[51] on the supposition that one or the other court would make a
favorable disposition.[52] Obviously, the parties in the instant case, as well as in the appealed
case before the CA, are the same. Both cases deal with the existence and validity of the alleged
will of the decedent, with petitioners anchoring their cause on the state of intestacy. In the
probate proceedings, petitioners position has always been that the decedent left no will and if
she did, the will does not comply with the requisites of a valid will. Indeed, that position is the
bedrock of their present petition. Of course, respondent maintains the contrary stance. On the
other hand, in the petition for letters of administration, petitioner Flores prayed for her
appointment as administratrix of the

estate on the theory that the decedent died intestate. The petition was dismissed on the ground
of lack of jurisdiction, and it is this order of dismissal which is the subject of review in CA-G.R. No.
74924. Clearly, therefore, there is forum-shopping.

Moreover, petitioners failed to inform the Court of the said pending case in their certification
against forum- shopping. Neither have they done so at any time thereafter. The Court notes that
even in the petition for annulment of judgment, petitioners failed to inform the CA of the
pendency of their appeal in CA-G.R. No. 74924, even though the notice of appeal was filed way
before the petition for annulment of judgment was instituted.

WHEREFORE, the petition is DENIED. Costs against petitioners.

SO ORDERED.
DANTE O. TINGA Associate Justice

WE CONCUR:

REYNATO S. PUNO
Associate Justice
Chairman

G.R. No. L-32636 March 17, 1930

In the matter Estate of Edward Randolph Hix, deceased.

A.W. FLUEMER, petitioner-appellant,
vs.
ANNIE COUSHING HIX, oppositor-appellee.

C.A. Sobral for appellant.

Harvey & O' Brien and Gibbs & McDonough for appellee.

MALCOLM, J.:

The special administrator of the estate of Edward Randolph Hix appeals from
a decision of Judge of First Instance Tuason denying the probate of the
document alleged to by the last will and testament of the deceased. Appellee
is not authorized to carry on this appeal. We think, however, that the appellant,
who appears to have been the moving party in these proceedings, was a
"person interested in the allowance or disallowance of a will by a Court of First
Instance," and so should be permitted to appeal to the Supreme Court from
the disallowance of the will (Code of Civil Procedure, sec. 781, as amended;
Villanueva vs. De Leon [1925], 42 Phil., 780).
It is theory of the petitioner that the alleged will was executed in Elkins, West
Virginia, on November 3, 1925, by Hix who had his residence in that
jurisdiction, and that the laws of West Verginia Code, Annotated, by Hogg,
Charles E., vol. 2, 1914, p. 1690, and as certified to by the Director of the
National Library. But this was far from a compliance with the law. The laws of a
foreign jurisdiction do not prove themselves in our courts. the courts of the
Philippine Islands are not authorized to take American Union. Such laws must
be proved as facts. (In re Estate of Johnson [1918], 39 Phil., 156.) Here the
requirements of the law were not met. There was no was printed or published
under the authority of the State of West Virginia, as provided in section 300 of
the Code of Civil Procedure. Nor was the extract from the law attested by the
certificate of the officer having charge of the original, under the sale of the
State of West Virginia, as provided in section 301 of the Code of Civil
Procedure. No evidence was introduced to show that the extract from the laws
of West Virginia was in force at the time the alleged will was executed.

In addition, the due execution of the will was not established. The only
evidence on this point is to be found in the testimony of the petitioner. Aside
from this, there was nothing to indicate that the will was acknowledged by the
testator in the presence of two competent witnesses, of that these witnesses
subscribed the will in the presence of the testator and of each other as the law
of West Virginia seems to require. On the supposition that the witnesses to the
will reside without the Philippine Islands, it would then the duty of the petitioner
to prove execution by some other means (Code of Civil Procedure, sec. 633.)

It was also necessary for the petitioner to prove that the testator had his
domicile in West Virginia and not establish this fact consisted of the recitals in
the CATHY will and the testimony of the petitioner. Also in beginning
administration proceedings orginally in the Philippine Islands, the petitioner
violated his own theory by attempting to have the principal administration in
the Philippine Islands.

While the appeal pending submission in this court, the attorney for the
appellant presented an unverified petition asking the court to accept as part of
the evidence the documents attached to the petition. One of these documents
discloses that a paper writing purporting to be the was presented for probate
on June 8, 1929, to the clerk of Randolph Country, State of West Virginia, in
vacation, and was duly proven by the oaths of Dana Wamsley and Joseph L.
MAdden, the subscribing witnesses thereto , and ordered to be recorded and
filed. It was shown by another document that, in vacation, on June 8, 1929, the
clerk of court of Randolph Country, West Virginia, appointed Claude W.
Maxwell as administrator, cum testamento annexo, of the estate of Edward
Randolph Hix, deceased. In this connection, it is to be noted that the
application for the probate of the will in the Philippines was filed on February
20, 1929, while the proceedings in West Virginia appear to have been initiated
on June 8, 1929. These facts are strongly indicative of an intention to make
the Philippines the principal administration and West Virginia the ancillary
administration. However this may be, no attempt has been made to comply
with Civil Procedure, for no hearing on the question of the allowance of a will
said to have been proved and allowed in West Virginia has been requested.
There is no showing that the deceased left any property at any place other
than the Philippine Islands and no contention that he left any in West Virginia.

Reference has been made by the parties to a divorce purported to have been
awarded Edward Randolph Hix from Annie Cousins Hix on October 8, 1925, in
the State of West specific pronouncements on the validity or validity of this
alleged divorce.

For all of the foregoing, the judgment appealed from will be affirmed, with the
costs of this instance against the appellant.

Villamor, Ostrand, Johns, Romualdez and Villa-Real, JJ., concur.

G.R. No. 139868 June 8, 2006

ALONZO Q. ANCHETA, Petitioner,

vs.
CANDELARIA GUERSEY-DALAYGON, Respondent.

DECISION

AUSTRIA-MARTINEZ, J.:

Spouses Audrey ONeill (Audrey) and W. Richard Guersey (Richard) were

American citizens who have resided in the Philippines for 30 years. They have
an adopted daughter, Kyle Guersey Hill (Kyle). On July 29, 1979, Audrey died,
leaving a will. In it, she bequeathed her entire estate to Richard, who was also
designated as executor.1 The will was admitted to probate before the Orphans
Court of Baltimore, Maryland, U.S.A, which named James N. Phillips as
executor due to Richards renunciation of his appointment.2 The court also
named Atty. Alonzo Q. Ancheta (petitioner) of the Quasha Asperilla Ancheta
Pena & Nolasco Law Offices as ancillary administrator.3

In 1981, Richard married Candelaria Guersey-Dalaygon (respondent) with

whom he has two children, namely, Kimberly and Kevin.

On October 12, 1982, Audreys will was also admitted to probate by the then
Court of First Instance of Rizal, Branch 25, Seventh Judicial District, Pasig, in
Special Proceeding No. 9625.4 As administrator of Audreys estate in the
Philippines, petitioner filed an inventory and appraisal of the following
properties: (1) Audreys conjugal share in real estate with improvements
located at 28 Pili Avenue, Forbes Park, Makati, Metro Manila, valued
at P764,865.00 (Makati property); (2) a current account in Audreys name with
a cash balance of P12,417.97; and (3) 64,444 shares of stock in A/G Interiors,
Inc. worth P64,444.00.5

On July 20, 1984, Richard died, leaving a will, wherein he bequeathed his
entire estate to respondent, save for his rights and interests over the A/G
Interiors, Inc. shares, which he left to Kyle.6 The will was also admitted to
probate by the Orphans Court of Ann Arundel, Maryland, U.S.A, and James N.
Phillips was likewise appointed as executor, who in turn, designated Atty.
William Quasha or any member of the Quasha Asperilla Ancheta Pena &
Nolasco Law Offices, as ancillary administrator.

Richards will was then submitted for probate before the Regional Trial Court of
Makati, Branch 138, docketed as Special Proceeding No. M-888.7 Atty.
Quasha was appointed as ancillary administrator on July 24, 1986.8

On October 19, 1987, petitioner filed in Special Proceeding No. 9625, a motion
to declare Richard and Kyle as heirs of Audrey.9 Petitioner also filed on
October 23, 1987, a project of partition of Audreys estate, with Richard being
apportioned the undivided interest in the Makati property, 48.333 shares in
A/G Interiors, Inc., and P9,313.48 from the Citibank current account; and Kyle,
the undivided interest in the Makati property, 16,111 shares in A/G Interiors,
Inc., and P3,104.49 in cash.10

The motion and project of partition was granted and approved by the trial court
in its Order dated February 12, 1988.11 The trial court also issued an Order on
April 7, 1988, directing the Register of Deeds of Makati to cancel TCT No.
69792 in the name of Richard and to issue a new title in the joint names of the
Estate of W. Richard Guersey ( undivided interest) and Kyle ( undivided
interest); directing the Secretary of A/G Interiors, Inc. to transfer 48.333 shares
to the Estate of W. Richard Guersey and 16.111 shares to Kyle; and directing
the Citibank to release the amount of P12,417.97 to the ancillary administrator
for distribution to the heirs.12

Consequently, the Register of Deeds of Makati issued on June 23, 1988, TCT
No. 155823 in the names of the Estate of W. Richard Guersey and Kyle.13

Meanwhile, the ancillary administrator in Special Proceeding No. M-888 also

filed a project of partition wherein 2/5of Richards undivided interest in the
Makati property was allocated to respondent, while 3/5 thereof were allocated to
Richards three children. This was opposed by respondent on the ground that
under the law of the State of Maryland, "a legacy passes to the legatee the
entire interest of the testator in the property subject of the
legacy."14 Since Richard left his entire estate to respondent, except for his
rights and interests over the A/G Interiors, Inc, shares, then his entire
undivided interest in the Makati property should be given to respondent.

The trial court found merit in respondents opposition, and in its Order dated
December 6, 1991, disapproved the project of partition insofar as it affects the
Makati property. The trial court also adjudicated Richards entire undivided
interest in the Makati property to respondent.15

On October 20, 1993, respondent filed with the Court of Appeals (CA) an
amended complaint for the annulment of the trial courts Orders dated
February 12, 1988 and April 7, 1988, issued in Special Proceeding No.
9625.16Respondent contended that petitioner willfully breached his fiduciary
duty when he disregarded the laws of the State of Maryland on the distribution
of Audreys estate in accordance with her will. Respondent argued that since
Audrey devised her entire estate to Richard, then the Makati property should
be wholly adjudicated to him, and not merely thereof, and since Richard left
his entire estate, except for his rights and interests over the A/G Interiors, Inc.,
to respondent, then the entire Makati property should now pertain to
respondent.

Petitioner filed his Answer denying respondents allegations. Petitioner

contended that he acted in good faith in submitting the project of partition
before the trial court in Special Proceeding No. 9625, as he had no knowledge
of the State of Marylands laws on testate and intestate succession. Petitioner
alleged that he believed that it is to the "best interests of the surviving children
that Philippine law be applied as they would receive their just shares."
Petitioner also alleged that the orders sought to be annulled are already final
and executory, and cannot be set aside.

On March 18, 1999, the CA rendered the assailed Decision annulling the trial
courts Orders dated February 12, 1988 and April 7, 1988, in Special
Proceeding No. 9625.17 The dispositive portion of the assailed Decision
provides:

WHEREFORE, the assailed Orders of February 12, 1998 and April 7, 1988 are
hereby ANNULLED and, in lieu thereof, a new one is entered ordering:

(a) The adjudication of the entire estate of Audrey ONeill Guersey in

favor of the estate of W. Richard Guersey; and

(b) The cancellation of Transfer Certificate of Title No. 15583 of the

Makati City Registry and the issuance of a new title in the name of the
estate of W. Richard Guersey.

SO ORDERED.18

Petitioner filed a motion for reconsideration, but this was denied by the CA per
Resolution dated August 27, 1999.19
Hence, the herein petition for review on certiorari under Rule 45 of the Rules
of Court alleging that the CA gravely erred in not holding that:

A) THE ORDERS OF 12 FEBRUARY 1988 AND 07 APRIL 1988 IN

SPECIAL PROCEEDINGS NO. 9625 "IN THE MATTER OF THE
PETITION FOR PROBATE OF THE WILL OF THE DECEASED
AUDREY GUERSEY, ALONZO Q. ANCHETA, ANCILLARY
ADMINISTRATOR", ARE VALID AND BINDING AND HAVE LONG
BECOME FINAL AND HAVE BEEN FULLY IMPLEMENTED AND
EXECUTED AND CAN NO LONGER BE ANNULLED.

B) THE ANCILLARY ADMINISTRATOR HAVING ACTED IN GOOD

FAITH, DID NOT COMMIT FRAUD, EITHER EXTRINSIC OR
INTRINSIC, IN THE PERFORMANCE OF HIS DUTIES AS ANCILLARY
ADMINISTRATOR OF AUDREY ONEIL GUERSEYS ESTATE IN THE
PHILIPPINES, AND THAT NO FRAUD, EITHER EXTRINSIC OR
INTRINSIC, WAS EMPLOYED BY [HIM] IN PROCURING SAID
ORDERS.20

Petitioner reiterates his arguments before the CA that the Orders dated
February 12, 1988 and April 7, 1988 can no longer be annulled because it is a
final judgment, which is "conclusive upon the administration as to all matters
involved in such judgment or order, and will determine for all time and in all
courts, as far as the parties to the proceedings are concerned, all matters
therein determined," and the same has already been executed.21

Petitioner also contends that that he acted in good faith in performing his
duties as an ancillary administrator. He maintains that at the time of the filing
of the project of partition, he was not aware of the relevant laws of the State of
Maryland, such that the partition was made in accordance with Philippine laws.
Petitioner also imputes knowledge on the part of respondent with regard to the
terms of Aubreys will, stating that as early as 1984, he already apprised
respondent of the contents of the will and how the estate will be divided. 22

Respondent argues that petitioners breach of his fiduciary duty as ancillary

administrator of Aubreys estate amounted to extrinsic fraud. According to
respondent, petitioner was duty-bound to follow the express terms of Aubreys
will, and his denial of knowledge of the laws of Maryland cannot stand
because petitioner is a senior partner in a prestigious law firm and it was his
duty to know the relevant laws.

Respondent also states that she was not able to file any opposition to the
project of partition because she was not a party thereto and she learned of the
provision of Aubreys will bequeathing entirely her estate to Richard only after
Atty. Ancheta filed a project of partition in Special Proceeding No. M-888 for
the settlement of Richards estate.

A decree of distribution of the estate of a deceased person vests the title to the
land of the estate in the distributees, which, if erroneous may be corrected by
a timely appeal. Once it becomes final, its binding effect is like any other
judgment in rem.23 However, in exceptional cases, a final decree of distribution
of the estate may be set aside for lack of jurisdiction or fraud.24 Further, in
Ramon v. Ortuzar,25 the Court ruled that a party interested in a probate
proceeding may have a final liquidation set aside when he is left out by reason
of circumstances beyond his control or through mistake or inadvertence not
imputable to negligence.26

The petition for annulment was filed before the CA on October 20, 1993,
before the issuance of the 1997 Rules of Civil Procedure; hence, the
applicable law is Batas Pambansa Blg. 129 (B.P. 129) or the Judiciary
Reorganization Act of 1980. An annulment of judgment filed under B.P. 129
may be based on the ground that a judgment is void for want of jurisdiction or
that the judgment was obtained by extrinsic fraud.27 For fraud to become a
basis for annulment of judgment, it has to be extrinsic or actual, 28 and must be
brought within four years from the discovery of the fraud.29

In the present case, respondent alleged extrinsic fraud as basis for the
annulment of the RTC Orders dated February 12, 1988 and April 7, 1988. The
CA found merit in respondents cause and found that petitioners failure to
follow the terms of Audreys will, despite the latters declaration of good faith,
amounted to extrinsic fraud. The CA ruled that under Article 16 of the Civil
Code, it is the national law of the decedent that is applicable, hence, petitioner
should have distributed Aubreys estate in accordance with the terms of her
will. The CA also found that petitioner was prompted to distribute Audreys
estate in accordance with Philippine laws in order to equally benefit Audrey
and Richard Guerseys adopted daughter, Kyle Guersey Hill.

Petitioner contends that respondents cause of action had already prescribed

because as early as 1984, respondent was already well aware of the terms of
Audreys will,30 and the complaint was filed only in 1993. Respondent, on the
other hand, justified her lack of immediate action by saying that she had no
opportunity to question petitioners acts since she was not a party to Special
Proceeding No. 9625, and it was only after Atty. Ancheta filed the project of
partition in Special Proceeding No. M-888, reducing her inheritance in the
estate of Richard that she was prompted to seek another counsel to protect
her interest.31

It should be pointed out that the prescriptive period for annulment of judgment
based on extrinsic fraud commences to run from the discovery of the fraud
or fraudulent act/s. Respondents knowledge of the terms of Audreys will is
immaterial in this case since it is not the fraud complained of. Rather, it is
petitioners failure to introduce in evidence the pertinent law of the State of
Maryland that is the fraudulent act, or in this case, omission, alleged to have
been committed against respondent, and therefore, the four-year period
should be counted from the time of respondents discovery thereof.

Records bear the fact that the filing of the project of partition of Richards
estate, the opposition thereto, and the order of the trial court disallowing the
project of partition in Special Proceeding No. M-888 were all done in
1991.32 Respondent cannot be faulted for letting the assailed orders to lapse
into finality since it was only through Special Proceeding No. M-888 that she
came to comprehend the ramifications of petitioners acts. Obviously,
respondent had no other recourse under the circumstances but to file the
annulment case. Since the action for annulment was filed in 1993, clearly, the
same has not yet prescribed.
Fraud takes on different shapes and faces. In Cosmic Lumber Corporation v.
Court of Appeals,33 the Court stated that "man in his ingenuity and fertile
imagination will always contrive new schemes to fool the unwary."

There is extrinsic fraud within the meaning of Sec. 9 par. (2), of B.P. Blg. 129,
where it is one the effect of which prevents a party from hearing a trial, or real
contest, or from presenting all of his case to the court, or where it operates
upon matters, not pertaining to the judgment itself, but to the manner in which
it was procured so that there is not a fair submission of the controversy. In
other words, extrinsic fraud refers to any fraudulent act of the prevailing party
in the litigation which is committed outside of the trial of the case, whereby the
defeated party has been prevented from exhibiting fully his side of the case by
fraud or deception practiced on him by his opponent. Fraud is extrinsic where
the unsuccessful party has been prevented from exhibiting fully his case, by
fraud or deception practiced on him by his opponent, as by keeping him away
from court, a false promise of a compromise; or where the defendant never
had any knowledge of the suit, being kept in ignorance by the acts of the
plaintiff; or where an attorney fraudulently or without authority connives at his
defeat; these and similar cases which show that there has never been a real
contest in the trial or hearing of the case are reasons for which a new suit may
be sustained to set aside and annul the former judgment and open the case
for a new and fair hearing.34

The overriding consideration when extrinsic fraud is alleged is that the

fraudulent scheme of the prevailing litigant prevented a party from having his
day in court.35

Petitioner is the ancillary administrator of Audreys estate. As such, he

occupies a position of the highest trust and confidence, and he is required to
exercise reasonable diligence and act in entire good faith in the performance
of that trust. Although he is not a guarantor or insurer of the safety of the
estate nor is he expected to be infallible, yet the same degree of prudence,
care and judgment which a person of a fair average capacity and ability
exercises in similar transactions of his own, serves as the standard by which
his conduct is to be judged.36
Petitioners failure to proficiently manage the distribution of Audreys estate
according to the terms of her will and as dictated by the applicable law
amounted to extrinsic fraud. Hence the CA Decision annulling the RTC Orders
dated February 12, 1988 and April 7, 1988, must be upheld.

It is undisputed that Audrey Guersey was an American citizen domiciled in

Maryland, U.S.A. During the reprobate of her will in Special Proceeding No.
9625, it was shown, among others, that at the time of Audreys death, she was
residing in the Philippines but is domiciled in Maryland, U.S.A.; her Last Will
and Testament dated August 18, 1972 was executed and probated before the
Orphans Court in Baltimore, Maryland, U.S.A., which was duly authenticated
and certified by the Register of Wills of Baltimore City and attested by the
Chief Judge of said court; the will was admitted by the Orphans Court of
Baltimore City on September 7, 1979; and the will was authenticated by the
Secretary of State of Maryland and the Vice Consul of the Philippine Embassy.

Being a foreign national, the intrinsic validity of Audreys will, especially with
regard as to who are her heirs, is governed by her national law, i.e., the law of
the State of Maryland, as provided in Article 16 of the Civil Code, to wit:

Art. 16. Real property as well as personal property is subject to the law of the
country where it is situated.

However, intestate and testamentary succession, both with respect to

the order of succession and to the amount of successional rights and to
the intrinsic validity of testamentary provisions, shall be regulated by the
national law of the person whose succession is under consideration,
whatever may be the nature of the property and regardless of the country
wherein said property may be found. (Emphasis supplied)

Article 1039 of the Civil Code further provides that "capacity to succeed is
governed by the law of the nation of the decedent."

As a corollary rule, Section 4, Rule 77 of the Rules of Court on Allowance of

Will Proved Outside the Philippines and Administration of Estate Thereunder,
states:
SEC. 4. Estate, how administered.When a will is thus allowed, the court
shall grant letters testamentary, or letters of administration with the will
annexed, and such letters testamentary or of administration, shall extend to all
the estate of the testator in the Philippines. Such estate, after the payment
of just debts and expenses of administration, shall be disposed of
according to such will, so far as such will may operate upon it; and the
residue, if any, shall be disposed of as is provided by law in cases of estates in
the Philippines belonging to persons who are inhabitants of another state or
country. (Emphasis supplied)

While foreign laws do not prove themselves in our jurisdiction and our courts
are not authorized to take judicial notice of them;37 however, petitioner, as
ancillary administrator of Audreys estate, was duty-bound to introduce in
evidence the pertinent law of the State of Maryland.38

Petitioner admitted that he failed to introduce in evidence the law of the State
of Maryland on Estates and Trusts, and merely relied on the presumption that
such law is the same as the Philippine law on wills and succession. Thus, the
trial court peremptorily applied Philippine laws and totally disregarded the
terms of Audreys will. The obvious result was that there was no fair
submission of the case before the trial court or a judicious appreciation of the
evidence presented.

Petitioner insists that his application of Philippine laws was made in good faith.
The Court cannot accept petitioners protestation. How can petitioner honestly
presume that Philippine laws apply when as early as the reprobate of Audreys
will before the trial court in 1982, it was already brought to fore that Audrey
was a U.S. citizen, domiciled in the State of Maryland. As asserted by
respondent, petitioner is a senior partner in a prestigious law firm, with a "big
legal staff and a large library."39 He had all the legal resources to determine the
applicable law. It was incumbent upon him to exercise his functions as
ancillary administrator with reasonable diligence, and to discharge the trust
reposed on him faithfully. Unfortunately, petitioner failed to perform his
fiduciary duties.
Moreover, whether his omission was intentional or not, the fact remains that
the trial court failed to consider said law when it issued the assailed RTC
Orders dated February 12, 1988 and April 7, 1988, declaring Richard and Kyle
as Audreys heirs, and distributing Audreys estate according to the project of
partition submitted by petitioner. This eventually prejudiced respondent and
deprived her of her full successional right to the Makati property.

In GSIS v. Bengson Commercial Bldgs., Inc.,40 the Court held that when the
rule that the negligence or mistake of counsel binds the client deserts its
proper office as an aid to justice and becomes a great hindrance and chief
enemy, its rigors must be relaxed to admit exceptions thereto and to prevent a
miscarriage of justice, and the court has the power to except a particular case
from the operation of the rule whenever the purposes of justice require it.

The CA aptly noted that petitioner was remiss in his responsibilities as

ancillary administrator of Audreys estate. The CA likewise observed that the
distribution made by petitioner was prompted by his concern over Kyle, whom
petitioner believed should equally benefit from the Makati property. The CA
correctly stated, which the Court adopts, thus:

In claiming good faith in the performance of his duties and responsibilities,

defendant Alonzo H. Ancheta invokes the principle which presumes the law of
the forum to be the same as the foreign law (Beam vs. Yatco, 82 Phil. 30, 38)
in the absence of evidence adduced to prove the latter law (Slade Perkins vs.
Perkins, 57 Phil. 205, 210). In defending his actions in the light of the
foregoing principle, however, it appears that the defendant lost sight of the fact
that his primary responsibility as ancillary administrator was to distribute the
subject estate in accordance with the will of Audrey ONeill Guersey.
Considering the principle established under Article 16 of the Civil Code of the
Philippines, as well as the citizenship and the avowed domicile of the
decedent, it goes without saying that the defendant was also duty-bound to
prove the pertinent laws of Maryland on the matter.

The record reveals, however, that no clear effort was made to prove the
national law of Audrey ONeill Guersey during the proceedings before the court
a quo. While there is claim of good faith in distributing the subject estate in
accordance with the Philippine laws, the defendant appears to put his
actuations in a different light as indicated in a portion of his direct examination,
to wit:

xxx

It would seem, therefore, that the eventual distribution of the estate of Audrey
ONeill Guersey was prompted by defendant Alonzo H. Anchetas concern that
the subject realty equally benefit the plaintiffs adopted daughter Kyle Guersey.

Well-intentioned though it may be, defendant Alonzo H. Anchetas action

appears to have breached his duties and responsibilities as ancillary
administrator of the subject estate. While such breach of duty admittedly
cannot be considered extrinsic fraud under ordinary circumstances, the
fiduciary nature of the said defendants position, as well as the resultant
frustration of the decedents last will, combine to create a circumstance
that is tantamount to extrinsic fraud. Defendant Alonzo H. Anchetas
omission to prove the national laws of the decedent and to follow the latters
last will, in sum, resulted in the procurement of the subject orders without a fair
submission of the real issues involved in the case.41 (Emphasis supplied)

This is not a simple case of error of judgment or grave abuse of discretion, but
a total disregard of the law as a result of petitioners abject failure to discharge
his fiduciary duties. It does not rest upon petitioners pleasure as to which law
should be made applicable under the circumstances. His onus is clear.
Respondent was thus excluded from enjoying full rights to the Makati property
through no fault or negligence of her own, as petitioners omission was beyond
her control. She was in no position to analyze the legal implications of
petitioners omission and it was belatedly that she realized the adverse
consequence of the same. The end result was a miscarriage of justice. In
cases like this, the courts have the legal and moral duty to provide judicial aid
to parties who are deprived of their rights.42

The trial court in its Order dated December 6, 1991 in Special Proceeding No.
M-888 noted the law of the State of Maryland on Estates and Trusts, as
follows:
Under Section 1-301, Title 3, Sub-Title 3 of the Annotated Code of the Public
General Laws of Maryland on Estates and Trusts, "all property of a decedent
shall be subject to the estate of decedents law, and upon his death shall pass
directly to the personal representative, who shall hold the legal title for
administration and distribution," while Section 4-408 expressly provides that
"unless a contrary intent is expressly indicated in the will, a legacy passes to
the legatee the entire interest of the testator in the property which is the
subject of the legacy". Section 7-101, Title 7, Sub-Title 1, on the other hand,
declares that "a personal representative is a fiduciary" and as such he is
"under the general duty to settle and distribute the estate of the decedent in
accordance with the terms of the will and the estate of decedents law as
expeditiously and with as little sacrifice of value as is reasonable under the
circumstances".43

In her will, Audrey devised to Richard her entire estate, consisting of the
following: (1) Audreys conjugal share in the Makati property; (2) the cash
amount of P12,417.97; and (3) 64,444 shares of stock in A/G Interiors, Inc.
worth P64,444.00. All these properties passed on to Richard upon Audreys
death. Meanwhile, Richard, in his will, bequeathed his entire estate to
respondent, except for his rights and interests over the A/G Interiors, Inc.
shares, which he left to Kyle. When Richard subsequently died, the entire
Makati property should have then passed on to respondent. This, of course,
assumes the proposition that the law of the State of Maryland which allows "a
legacy to pass to the legatee the entire estate of the testator in the property
which is the subject of the legacy," was sufficiently proven in Special
Proceeding No. 9625. Nevertheless, the Court may take judicial notice thereof
in view of the ruling in Bohanan v. Bohanan.44 Therein, the Court took judicial
notice of the law of Nevada despite failure to prove the same. The Court held,
viz.:

We have, however, consulted the records of the case in the court below and
we have found that during the hearing on October 4, 1954 of the motion of
Magdalena C. Bohanan for withdrawal of P20,000 as her share, the foreign
law, especially Section 9905, Compiled Nevada Laws, was introduced in
evidence by appellants' (herein) counsel as Exhibit "2" (See pp. 77-79, Vol. II,
and t.s.n. pp. 24-44, Records, Court of First Instance). Again said law was
presented by the counsel for the executor and admitted by the Court as Exhibit
"B" during the hearing of the case on January 23, 1950 before Judge Rafael
Amparo (see Records, Court of First Instance, Vol. 1).

In addition, the other appellants, children of the testator, do not dispute the
above-quoted provision of the laws of the State of Nevada. Under all the
above circumstances, we are constrained to hold that the pertinent law of
Nevada, especially Section 9905 of the Compiled Nevada Laws of 1925, can
be taken judicial notice of by us, without proof of such law having been offered
at the hearing of the project of partition.

In this case, given that the pertinent law of the State of Maryland has been
brought to record before the CA, and the trial court in Special Proceeding No.
M-888 appropriately took note of the same in disapproving the proposed
project of partition of Richards estate, not to mention that petitioner or any
other interested person for that matter, does not dispute the existence or
validity of said law, then Audreys and Richards estate should be distributed
according to their respective wills, and not according to the project of partition
submitted by petitioner. Consequently, the entire Makati property belongs to
respondent.

Decades ago, Justice Moreland, in his dissenting opinion in Santos v.

Manarang,45 wrote:

A will is the testator speaking after death. Its provisions have substantially the
same force and effect in the probate court as if the testator stood before the
court in full life making the declarations by word of mouth as they appear in the
will. That was the special purpose of the law in the creation of the instrument
known as the last will and testament. Men wished to speak after they were
dead and the law, by the creation of that instrument, permitted them to do so x
x x All doubts must be resolved in favor of the testator's having meant just
what he said.
Honorable as it seems, petitioners motive in equitably distributing Audreys
estate cannot prevail over Audreys and Richards wishes. As stated in Bellis v.
Bellis:46

x x x whatever public policy or good customs may be involved in our system of

legitimes, Congress has not intended to extend the same to the succession of
foreign nationals. For it has specifically chosen to leave, inter alia, the amount
of successional rights, to the decedent's national Law. Specific provisions must
prevail over general ones.47

Before concluding, the Court notes the fact that Audrey and Richard Guersey
were American citizens who owned real property in the Philippines, although
records do not show when and how the Guerseys acquired the Makati
property.

Under Article XIII, Sections 1 and 4 of the 1935 Constitution, the privilege to
acquire and exploit lands of the public domain, and other natural resources of
the Philippines, and to operate public utilities, were reserved to Filipinos and
entities owned or controlled by them. In Republic v. Quasha,48 the Court
clarified that the Parity Rights Amendment of 1946, which re-opened to
American citizens and business enterprises the right in the acquisition of lands
of the public domain, the disposition, exploitation, development and utilization
of natural resources of the Philippines, does not include the acquisition or
exploitation of private agricultural lands. The prohibition against acquisition of
private lands by aliens was carried on to the 1973 Constitution under Article
XIV, Section 14, with the exception of private lands acquired by hereditary
succession and when the transfer was made to a former natural-born citizen,
as provided in Section 15, Article XIV. As it now stands, Article XII, Sections 7
and 8 of the 1986 Constitution explicitly prohibits non-Filipinos from acquiring
or holding title to private lands or to lands of the public domain, except only by
way of legal succession or if the acquisition was made by a former natural-
born citizen.

In any case, the Court has also ruled that if land is invalidly transferred to an
alien who subsequently becomes a citizen or transfers it to a citizen, the flaw
in the original transaction is considered cured and the title of the transferee is
rendered valid.49 In this case, since the Makati property had already passed on
to respondent who is a Filipino, then whatever flaw, if any, that attended the
acquisition by the Guerseys of the Makati property is now inconsequential, as
the objective of the constitutional provision to keep our lands in Filipino hands
has been achieved.

WHEREFORE, the petition is denied. The Decision dated March 18, 1999 and
the Resolution dated August 27, 1999 of the Court of Appeals are AFFIRMED.

Petitioner is ADMONISHED to be more circumspect in the performance of his

duties as an official of the court.

No pronouncement as to costs.

SO ORDERED.

MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice

WE CONCUR:

ARTEMIO V. PANGANIBAN
Chief Justice
Chairperson