Spec Pro FULL TEXTS

RULE 76: 1-8

1. Fran vs Salas 25 June 1992

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. L-53546 June 25, 1992

THE HEIRS OF THE LATE JESUS FRAN and CARMEN MEJIA RODRIGUEZ, petitioners,
vs.
HON. BERNARDO LL. SALAS, CONCEPCION MEJIA ESPINA and MARIA MEJIA GANDIONGCO, respondents.

DAVIDE, JR., J.:

This is a petition for certiorari and prohibition under Rule 65 of the Revised Rules of Court, with prayer for a writ of preliminary injunction, to
annul and set aside, for having been issued without jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction, the
following Orders of the respondent Judge in Special Proceedings No. 3309-R of Branch VIII of the then Court of First Instance (now Regional
Trial Court) of Cebu entitled "In The Matter of the Petition for Probate of the Last Will and Testament of Remedios Mejia Vda. de Tiosejo:"

1. The Order of 26 February 1980 setting for hearing private respondents' Omnibus Motion for Reconsideration 1 which
was filed six (6) years, ten (10) months and eighteen (18) days after the probate judgment was rendered and six (6)
years and twenty-one (21) days after the testate proceedings was declared closed and terminated; and

2. The Order of 2 June 1980 finding the signature of the testatrix in the last will and testament to be a forgery and (a)
declaring the testatrix as having died intestate; (b) declaring the testamentary dispositions in said last will and
testament as null and void; (c) setting aside the order dated 10 September 1973 declaring the testate proceedings
closed and terminated; (d) revoking the appointment of Jesus Fran as executor while appointing respondent
Concepcion M. Espina as administratrix; and (e) ordering the conversion of the proceedings to one of intestacy. 2 This
Order effectively annulled and set aside the probate judgment of 13 November 1972.

Petitioners would also have this Court nullify all other actions of respondent Judge in said Sp. Proc. No. 3309-R; restore
the status quo therein prior to the issuance of the foregoing orders; and permanently enjoin respondent Judge from reopening
said proceedings.

The following facts are not controverted:

Remedios M. Vda. de Tiosejo, a widow, died on 10 July 1972 in Cebu City with neither descendants nor ascendants; she left real and
personal properties located in Cebu City, Ormoc City and Puerto Bello, Merida, Leyte. Earlier, on 23 April 1972, she executed a last will and
testament 3 wherein she bequeathed to her collateral relatives (brothers, sisters, nephews and nieces) all her properties, and designated
Rosario Tan or, upon the latter's death, Jesus Fran, as executor to serve without bond. Instrumental witnesses to the will were Nazario
Pacquiao, Alcio Demerre and Primo Miro.

On 15 July 1972, Jesus Fran filed a petition with the Court of First instance of Cebu for the probate of Remedios' last will and
testament. 4 The case was raffled to the original Branch VIII thereof which was then presided over by Judge Antonio D. Cinco. The petition
alleged that Rosario Tan is not physically well and, therefore, will not be assuming the position of administratrix. Tan signed a waiver in favor
of Jesus Fran on the third page of the said petition. The probate court issued an order setting the petition for hearing on 18 September 1972.
Meanwhile, on 31 July 1972, the court appointed petitioner Jesus Fran as special administrator.

On 10 August 1972, the private respondents, who are sisters of the deceased, filed a manifestation 5 alleging that they needed time to study
the petition because some heirs who are entitled to receive their respective shares have been intentionally omitted therein, and praying that
they be given ample time to file their opposition, after which the hearing be reset to another date.
Private respondents did not file any opposition. Instead, they filed on 18 September 1972 a "Withdrawal of Opposition to the Allowance of
Probate (sic) of the Will" wherein they expressly manifested, with their "full knowledge and consent that . . . they have no objection of (sic)
the allowance of the . . . will of the late Remedios Mejia Vda. de Tiosejo," and that they have "no objection to the issuance of letters
testamentary in favor of petitioner, Dr. Jesus Fran." 6

No other party filed an opposition. The petition thus became uncontested.

During the initial hearing, petitioner Fran introduced the requisite evidence to establish the jurisdictional facts.

Upon a determination that the court had duly acquired jurisdiction over the uncontested petition for probate, Judge Cinco issued in open
court an order directing counsel for petitioner to present evidence proving the authenticity and due execution of the will before the Clerk of
Court who was, accordingly, so authorized to receive the same.

The reception of evidence by the Clerk of Court immediately followed. Petitioner Fran's first witness was Atty. Nazario R. Pacquiao, one at
the subscribing witnesses to the will. The original of the will, marked as Exhibit "F", and its English translation, marked as Exhibit "F-
Translation", were submitted to the Clerk of Court. 7 Petitioner Fran was the second and also the last witness. He enumerated the names of
the surviving heirs of the deceased.

On 13 November 1972, the probate court rendered a decision admitting to probate the will of the testatrix, Remedios Mejia Vda. de Tiosejo,
and appointing petitioner Fran as executor thereof. 8 The dispositive portion of the decision reads:

WHEREFORE, in view of all the foregoing, judgment is hereby rendered declaring the last will and testament of the
deceased Remedios Mejia Vda. de Tiosejo marked as Exhibit F as admitted to probate. Dr. Jesus Fran is hereby
appointed as executor of the will. Let letters testamentary be issued in favor of Dr. Jesus Fran. The special
administrator's bond put up by Dr. Jesus Fran as special administrator duly approved by this Court shall serve and be
considered as the executor's bond considering that the special administrator and executor are one and the same
person.

The requisite notice to creditors was issued, but despite the expiration of the period therein fixed, no claim was presented against the estate.

On 4 January 1973, petitioner Fran filed an Inventory of the Estate; 9 copies thereof were furnished each of the private respondents.

Subsequently, a Project of Partition based on the dispositions made in the will and signed by all the devisees and legatees, with the
exception of Luis Fran, Remedios C. Mejia and respondent Concepcion M. Espina, was submitted by the executor for the court's
approval. 10 Said legatees and devisees submitted certifications wherein they admit receipt of a copy of the Project of Partition together with
the notice of hearing, and state that they had no objection to its approval. 11

The notice of hearing referred to in these certifications is the 6 August 1973 notice issued by the Clerk of Court setting the hearing on the
Project of Partition for 29 August 1973. 12

After the hearing on the Project of Partition, the court issued its Order of 10 September 1973 13 approving the same, declaring the parties
therein as the only heirs entitled to the estate of Remedios Mejia Vda. de Tiosejo, directing the administrator to deliver to the said parties
their respective shares and decreeing the proceedings closed. The dispositive portion thereof reads:

WHEREFORE, the signers (sic) to the project of partition are declared the only, heirs entitled to the estate; the project
of partition submitted is ordered approved and the administrator is ordered to deliver to each one of them their
respective aliquot parts as distributed in the said project of partition. It is understood that if there are expenses incurred
or to be incurred as expenses of partition, Section 3 of Rule 90 shall be followed.

Let this proceedings be now declared closed.

SO ORDERED.

Thereafter, the aforesaid Branch VIII of the Court of First Instance of Cebu was converted to a Juvenile and Domestic Relations Court. On
November 1978, by virtue of Presidential Decree No. 1439, Branch XVII (Davao City) of the Court of First Instance of Cebu, presided over by
herein respondent Judge, was officially transferred to Cebu City and renumbered as Branch VIII.

On 1 October 1979, private respondents filed with the new Branch VIII an Omnibus Motion for Reconsideration of the probate judgment of 13
November 1972 and the Order of partition of 10 September 1973, in said motion, they ask the court to declare the proceedings still open and
admit their opposition to the allowance of the will, 14 which they filed on 1 October 1979. They allege that: (a) they were not furnished with a
copy of the will; (b) the will is a forgery; (c) they were not notified of any resolution or order on their manifestation requesting time within
which to file their opposition, or of the order authorizing the clerk of court to receive the evidence for the petitioner, or of the order closing the
proceedings; (d) the reception of evidence by the clerk of court was void per the ruling in Lim Tanhu vs. Ramolete; 15 (e) the project of
partition contains no notice of hearing and they were not notified thereof; (f) the petitioner signed the project of partition as administrator and
not as executor, thereby proving that the decedent died intestate; (g) the petitioner did not submit any accounting as required by law; and (h)
the petitioner never distributed the estate to the devisees and legatees.

In a detailed opposition 16 to the above Omnibus Motion for Reconsideration, petitioner Fran refuted all the protestations of private
respondents. Among other reasons, he stresses therein that: (a) private respondents are in estoppel to question the will because they filed
their Withdrawal Of Opposition To The Allowance of Will which states that after thoroughly studying the petition, to which was attached a
copy of the English translation of the will, they have no objection to its allowance; the order directing the clerk of court to receive the evidence
was dictated in open court in the presence of private respondents; private respondent Maria M. Gandiongco signed the Project of Partition
and private respondent Concepcion M. Espina submitted a certification stating therein that she received the notice of hearing therefor and
has no objection to its approval; (b) except for some properties, either covered by a usufruct under the will or agreed upon by the parties to
be held in common by reason of its special circumstance, there was an actual distribution of the estate in accordance with the Project of
Partition; insofar as private respondents are concerned, they not only received their respective shares, they even purchased the shares of
the other devisees. To top it all, private respondents' children, namely Rodrigo M. Gandiongco, Jr. and Victor Espina, mortgaged their
respective shares in favor of a bank

Notwithstanding petitioners' objections, respondent Judge issued on 26 February 1980 an Order setting for hearing the said Omnibus Motion
for Reconsideration on 8 April 1980 so that "the witnesses and the exhibits (may be) properly ventilated." 17

On 25 March 1980, petitioners filed a Motion to Dismiss the Omnibus and to Reconsider the 26 February 1980 Order setting it for hearing on
17 April 1980, 18 but the respondent Judge prematurely denied it for lack of merit in his Order of 31 March 1980. 19

Consequently, on 8 April 1980, the instant petition was filed challenging the jurisdiction of the lower court in taking cognizance of the
Omnibus Motion for Reconsideration considering that the probate judgment and the order approving the Project of Partition and terminating
the proceedings had long become final and had in fact been executed. Private respondents had long lost their right to appeal therefrom. The
Omnibus Motion for Reconsideration cannot likewise be treated as a petition for relief from judgment for under Rule 38 of the Revised Rules
of Court, the same must be filed within sixty (60) days from receipt of notice of the judgment/order and within six (6) months from the date of
said judgment. Therefore, this remedy can no longer be availed of.

On 8 April 1980, the date the instant petition was filed, respondent Judge proceeded with the hearing of the Omnibus Motion for
Reconsideration. He received the testimonies of private respondents and one Romeo O. Varena, an alleged handwriting expert from the
Philippine Constabulary, who averred that the signature of the testatrix on the will is a forgery. The respondent Judge likewise issued an
Order on the same date stating that unless he received a restraining order from this Court within twenty (20) days therefrom, he will reopen
Sp. Proc. No. 3309-R.

On 14 April 1980, petitioners filed a Supplemental Petition asking this Court to restrain respondent Judge from reopening the case. 20

In their voluminous Comments and Opposition to the petition and Supplemental Petition, 21 private respondents not only amplify in great
detail the grounds raised in their Omnibus Motion for Reconsideration, they also squarely raise for the first time the following issues.

(a) The probate court never acquired jurisdiction over the case since petitioner Jesus Fran failed to submit to the court
the original of the will.

(b) They were deprived of the opportunity to examine the will as petitioner Jesus Fran did not attach it to the petition;
what was attached was only the English translation of the will.

(c) Even assuming that the probate judge could validly delegate the reception of evidence to the Clerk of Court, the
proceeding before the latter would still be void as he failed to take an oath of office before entering upon his duties as
commissioner and failed to render a report on the matters submitted to him.

(d) Respondent Maria M. Vda. de Gandiongco was defrauded into (sic) signing the Project of Partition and respondent
Concepcion M. Espina, her certification, when they were misled by petitioner Fran into believing that the Agreement of
Petition to be submitted to the court is the Extra Judicial Partition they signed on 7 May 1973.

(e) Petitioner Fran is guilty of fraud in urdervaluing the estate of the late Remedios M. Vda. de Tiosejo by reporting
properties worth only P400,000.00 when in truth and in fact the estate has an aggregate value of P2,094,333.00.

In the Resolution dated 2 June 1980, We issued a restraining order enjoining respondent Judge from reopening Sp. Proc. No. 3309-R. 22

However, on the same date, before the restraining order was served on him; respondent Judge issued the impugned order declaring the
testamentary dispositions of the will void, finding the signature of the late Remedios M. Vda. de Tiosejo to be a forgery, decreeing the
reopening of Sp. Proc. No. 3309-R and converting the same into an intestate proceeding. 23

Hence, on 6 June 1980, petitioners filed their Second Supplemental Petition 24 asking this Court to declare as null and void the Order of 2
June 1980 and, pending such declaration, to restrain respondent Judge from enforcing the same. Private respondents filed their Comment
and Opposition to the Second Supplemental Petition on 9 July 1980.
Thereafter, as mandated in the resolution of 30 June 1980, 25 this Court gave due course to this case and required the parties to file their
respective Memoranda, which private respondents complied with on 16 August 1980; 26 petitioners filed theirs on 27 August
1980. 27 Consequently, the parties continued to file several pleadings reiterating substantially the same allegations and arguments earlier
submitted to this Court.

On 22 March 1984, counsel for petitioners filed a manifestation informing this Court of the death of petitioner Fran on 29 February 1984 and
enumerating therein his surviving heirs. On 2 April 1984, this Court resolved to have said heirs substitute him in this case.

Over a year later, respondent Maria M. Vda. de Gandiongco filed an affidavit, 28 sworn to before the acting Clerk of Court of the Regional
Trial Court in Cebu City, disclosing the following material facts: (a) she signed the Omnibus Motion for Reconsideration dated 1 October 1979
without knowing or reading the contents thereof; (b) she saw the will of the late Remedios M. Vda. de Tiosejo written in the Cebuano dialect
after the same was executed by the latter; the said will bearing the authentic signature of Remedios was the very one presented to the
probate court by petitioner's counsel; (c) she received the notice of hearing of the petition for probate and because she was convinced that
the signature of the testatrix was genuine, she, together with Concepcion M. Espina, withdrew her opposition; (d) she received her share of
the estate of the late Remedios M. Vda. de Tiosejo which was distributed in accordance with the provisions of the latter's will; and (e) she did
not authorize Atty. Numeriano Estenzo or other lawyers to present a motion to this Court after 25 February 1981 when Estenzo withdrew as
counsel for private respondents. She then asks this Court to consider as withdrawn her Opposition to the Allowance of the Will, her
participation in the Omnibus Motion for Reconsideration and her Opposition to this petition.

Due to this development, We required private respondent Concepcion M. Espina to comment on the affidavit of private respondent Maria M.
Vda. de Gandiongco.

On 17 August 1985, private respondents filed a joint manifestation 29 wherein they claim that Maria M. Vda. de Gandiongco does not
remember, executing the affidavit. A few weeks before the affidavit was filed, particularly on 17 June 1985, Maria M. Vda. de Gandiongco
was confined in the hospital; she could not recall having signed, during this period, any affidavit or recognized her sisters and other relatives.

On 19 September 1985, respondent Maria M. Vda. de Gandiongco, through special counsel, filed a Manifestation/Motion with a second
Affidavit attached thereto30 confessing that she signed the Joint Manifestation dated 16 August 1985 "without knowing or being informed of
its contents, and only upon Mrs. Concepcion Espina's request." She reiterated her desire to withdraw from the Omnibus Motion for
Reconsideration filed in Sp. Proc. No, 3309-R as well as from the instant petition.

Despite the valiant attempt of private respondent Concepcion M. Espina to influence and control the action of Maria Gandiongco, there is
nothing in the records that would cast any doubt on the irrevocability of the latter's decision to withdraw her participation in the Omnibus
Motion for Reconsideration and Opposition to this case. That decision, however, is not a ground for dropping her as a private respondent as
the respondent Judge had already issued the abovementioned Order of 2 June 1980.

The petition and the supplemental petitions are impressed with merit.

We do not hesitate to rule that the respondent Judge committed grave abuse of discretion amounting to lack of jurisdiction when he granted
the Omnibus Motion for Reconsideration and thereafter set aside the probate judgment of 13 November 1972 in Sp. Proc. No. 3309-R,
declared the subject will of the testatrix a forgery, nullified the testamentary dispositions therein and ordered the conversion of the testate
proceedings into one of intestacy.

It is not disputed that private respondents filed on the day of the initial hearing of the petition their "Withdrawal of Opposition To Allowance of
Probate (sic) Will" wherein they unequivocally state that they have no objection to the allowance of the will. For all legal intents and
purposes, they became proponents of the same.

After the probate court rendered its decision on 13 November 1972, and there having been no claim presented despite publication of notice
to creditors, petitioner Fran submitted a Project of Partition which private respondent Maria M. Vda. de Gandiongco voluntarily signed and to
which private respondent Espina expressed her conformity through a certification filed with the probate court. Assuming for the sake of
argument that private respondents did not receive a formal notice of the decision as they claim in their Omnibus Motion for Reconsideration,
these acts nevertheless constitute indubitable proof of their prior actual knowledge of the same. A formal notice would have been an idle
ceremony. In testate proceedings, a decision logically precedes the project of partition, which is normally an implementation of the will and is
among the last operative acts to terminate the proceedings. If private respondents did not have actual knowledge of the decision, they should
have desisted from performing the above acts and instead demanded from petitioner Fran the fulfillment of his alleged promise to show them
the will. The same conclusion refutes and defeats the plea that they were not notified of the order authorizing the Clerk of Court to receive
the evidence and that the Clerk of Court did not notify them of the date of the reception of evidence. Besides, such plea must fail because
private respondents were present when the court dictated the said order.

Neither do We give any weight to the contention that the reception of evidence by the Clerk of Court is null and void per the doctrine laid,
down in Lim Tanhu vs. Ramolete. 31 In the first place, Lim Tanhu was decided on 29 August 1975, nearly four (4) years after the probate
court authorized the Clerk of Court to receive the evidence for the petitioner in this case. A month prior to Lim Tanhu, or on 30 July 1975, this
Court, in Laluan vs. Malpaya, 32 recognized and upheld the practice of delegating the reception of evidence to Clerks of Court. Thus:

No provision of law or principle of public policy prohibits a court from authorizing its clerk of court to receive the
evidence of a party litigant. After all, the reception of evidence by the clerk of court constitutes but a ministerial task —
the taking down of the testimony of the witnesses and the marking of the pieces of documentary evidence, if any,
 adduced by the party present. This task of receiving evidence precludes, on the part of the clerk of court the exercise of
judicial discretion usually called for when the other party who is present objects to questions propounded and to the
admission of the documentary evidence proffered. 33 More importantly, the duty to render judgment on the merits of
the case still rests with the judge who is obliged to personally and directly prepare the decision based upon the
evidence reported. 34

But where the proceedings before the clerk of court and the concomitant result thereof, i.e., the judgment rendered by
the court based on the evidence presented in such limited proceedings, prejudice the substantial rights of the
aggrieved party, then there exists, sufficient justification to grant the latter complete opportunity to thresh out his case in
court. 35

Monserrate vs. Court of Appeals, 36 decided on 29 September 1989, reiterated this rule. Lim Tanhu then cannot be used as authority to
nullify the order of the probate court authorizing the Clerk of Court to receive the evidence for the rule is settled that "when a doctrine of this
Court is overruled and a different view is adopted, the new doctrine should be applied prospectively, and should not apply to parties who had
relied on the old doctrine and acted on the faith thereof." 37 It may also be emphasized in this connection that Lim Tanhu did not live long; it
was subsequently overruled in Gochangco vs. Court of First Instance of Negros Occidental, 38 wherein this Court, en banc, through Justice,
now Chief Justice, Andres R. Narvasa, in reference to what the trial court termed as "the doctrinal rule laid down in the recent case of Lim
Tan Hu (sic) vs. Ramolete," ruled:

Now, that declaration does not reflect long observed and established judicial practice with respect to default cases. It is
not quite consistent, too, with the several explicitly authorized instances under the Rules where the function of receiving
evidence and even of making recommendatory findings of facts on the basis thereof may be delegated to
commissioners, inclusive of the Clerk of Court. These instances are set out in Rule 33, . . . ; Rule 67 and 69, . . . ; Rule
86, . . . ; Rule 136, . . . . In all these instances, the competence of the clerk of court is assumed. Indeed, there would
seem, to be sure, nothing intrinsically wrong in allowing presentation of evidence ex parte before a Clerk of Court. Such
a procedure certainly does not foreclose relief to the party adversely affected who, for valid cause and upon
appropriate and seasonable application, may bring about the undoing thereof or the elimination of prejudice thereby
caused to him; and it is, after all, the Court itself which is duty bound and has the ultimate responsibility to pass upon
the evidence received in this manner, discarding in the process such proofs as are incompetent and then declare what
facts have thereby been established. In considering and analyzing the evidence preparatory to rendition of judgment on
the merits, it may not unreasonably be assumed that any serious error in the ex-parte presentation of evidence,
prejudicial to any absent party, will be detected and duly remedied by the Court, and/or may always, in any event, be
drawn to its attention by any interested party.

xxx xxx xxx

It was therefore error for the Court a quo to have declared the judgment by default to be fatally flawed by the fact that
the plaintiff's evidence had been received not by the Judge himself but by the clerk of court.

The alternative claim that the proceedings before the Clerk of Court were likewise void because said official did not take an oath is likewise
untenable. The Clerk of Court acted as such when he performed the delegated task of receiving evidence. It was not necessary for him to
take an oath for that purpose; he was bound by his oath of office as a Clerk of Court. Private respondents are obviously of the impression
that by the delegation of the reception of evidence to the Clerk of Court, the latter became a commissioner as defined under Rule 33 of the
Rules of Court entitled Trial by Commissioner. This is not correct; as this Court said in Laluan:

The provisions of Rule 33 of the Rules of Court invoked by both parties properly relate to the reference by a court of
any or all of the issues in a case to a person so commissioned to act or report thereon. These provisions explicitly spell
out the rules governing the conduct of the court, the commissioner, and the parties before, during, and after the
reference proceedings. Compliance with these rules of conduct becomes imperative only when the court formally
orders a reference of the case to a commissioner. Strictly speaking then, the provisions of Rule 33 find no application to
the case at bar where the court a quo merely directed the clerk of court to take down the testimony of the witnesses
presented and to mark the documentary evidence proferred on a date previously set for hearing.

Belatedly realizing the absence of substance of the above grounds, private respondents now claim in their Comments to the Petition and the
Supplemental Petition that the trial court never acquired jurisdiction over the petition because only the English translation of the will — and
not a copy of the same — was attached to the petition; the will was not even submitted to the court for their examination within twenty (20)
days after the death of the testatrix; and that there was fraud in the procurement of the probate judgment principally because they were not
given any chance to examine the signature of the testatrix and were misled into signing the withdrawal of their opposition on the assurance
of petitioner Fran and their sister, Rosario M. Tan, that the will would be shown to them during the trial. These two grounds easily serve as
the bases for the postulation that the decision is null and void and so, therefore, their omnibus motion became all the more timely and proper.

The contentions do not impress this Court.

In Santos vs. Castillo 39 and Salazar vs. Court of First Instance of Laguna, 40 decided six (6) months apart in 1937, this Court already ruled
that it is not necessary that the original of the will be attached to the petition. In the first, it ruled: "The original of said document [the will] must
be presented or sufficient reasons given to justify the nonpresentation of said original and the acceptance of the copy or duplicate
thereof." 41 In the second case, this Court was more emphatic in holding that:
 The law is silent as to the specific manner of bringing the jurisdictional allegations before the court, but practice and
jurisprudence have established that they should be made in the form of an application and filed with the original of the
will attached thereto. It has been the practice in some courts to permit attachment of a mere copy of the will to the
application, without prejudice to producing the original thereof at the hearing or when the court so requires. This
precaution has been adopted by some attorneys to forestall its disappearance, which has taken place in certain
cases. 42

That the annexing of the original will to the petition is not a jurisdictional requirement is clearly evident in Section 1, Rule 76 of the Rules of
Court which allows the filing of a petition for probate by the person named therein regardless of whether or not he is in possession of the will,
or the same is lost or destroyed. The section reads in full as follows:

Sec. 1. Who may petition for the allowance of will. — Any executor, devisee, or legatee named in a will, or any other
person interested in the estate, may, at any time after the death of the testator, petition the court having jurisdiction to
have the will allowed, whether the same be in his possession or not, or is lost or destroyed.

In the instant case, a copy of the original will and its English translation were attached to the petition as Annex "A" and Annex "A-1",
respectively, and made integral parts of the same. It is to be presumed that upon the filing of the petition the Clerk of Court, or his duly
authorized subordinate, examined the petition and found that the annexes mentioned were in fact attached thereto. If they were not, the
petition cannot be said to have been properly presented and the Clerk of Court would not have accepted it for docketing. Under Section 6,
Rule 136 of the Rules of Court, the Clerk of Court shall receive and file all pleadings and other papers properly presented, endorsing on each
such paper the time when it was filed. The presumption of regularity in the performance of official duty militates against private respondents'
claim that Annex "A" of the petition was not in fact attached thereto.

The certification of the Assistant Clerk of Court issued on 8 April

1980, 43 or SIX (6) months after the filing of the motion for reconsideration, to the effect that as per examination of the records of Sp. Proc.
No. 3309-R, "the copy of the Will mentioned in the petition as Annex "A" is not found to be attached as of this date in the said petition; only
the English Translation of said Will is attached thereof (sic) as Annex "A-1" does not even save the day for private respondents. It is not
conclusive because it fails to state the fact that as hereafter shown, the pages of the records which correspond to the four (4) pages of Annex
"A" were missing or were detached therefrom. As emphatically asserted by the petitioners in their Reply to the Comments of private
respondents, 44 duly supported by a certification of the former Clerk of Court of the original Branch VIII of the court below, 45 and which
private respondents merely generally denied in their motion for reconsideration with comments and opposition to consolidated reply, 46 the
four-page xerox copy of will, marked as Annex "A" of the petition, became, as properly marked by the personnel of the original Branch VIII of
the court below upon the filing of the petition, pages 5, 6, 7 and 8 while the translation thereof, marked as Annex "A-1", became pages 9, 10,
11 and 12 of the records. The markings were done in long hand. The records of the case were thereafter sent to the Clerk of Court, 14th
Judicial District, Cebu City on 9 February 1978. These records, now in the possession of the respondent Judge, show that said pages 5, 6, 7
and 8 in long are missing. As a consequence thereof, petitioners filed with the Executive Judge of the court below an administrative
complaint.

It is not likewise disputed that the original of the will was submitted in evidence and marked as Exhibit "F". It forms part of the records of the
special proceedings — a fact which private respondents admit in their Omnibus Motion for Reconsideration, thus:

9. That an examination of the alleged will of our deceased sister has revealed that the signatures at the left hand
margin of Exhibit "F", are written by (sic) different person than the signature appearing at the bottom of said alleged will
. . . 47

The availability of the will since 18 September 1972 for their examination renders completely baseless the private respondents' claim of fraud
on petitioner Fran's part in securing the withdrawal of their opposition to the probate of the will. If indeed such withdrawal was conditioned
upon Fran's promise that the private respondents would be shown the will during the trial, why weren't the appropriate steps taken by the
latter to confront Fran about this promise before certifications of conformity to the project of partition were filed?

Granting for the sake of argument that the non-fulfillment of said promise constitutes fraud, such fraud is not of the kind which provides
sufficient justification for a motion for reconsideration or a petition for relief from judgment under Rule 37 and Rule 38, respectively, of the
Rules of Court, or even a separate action for annulment of judgment. It is settled that for fraud to be invested with, sufficiency, it must be
extrinsic or collateral to the matters involved in the issues raised during the trial which resulted in such judgment. 48

In Our jurisdiction, the following courses of action are open to an aggrieved party to set aside or attack the validity of a final judgment:

(1) Petition for relief under Rule 38 of the Rules of Court which must be filed within sixty (60) days after learning of the
decision, but not more than six (6) months after such decision is entered;

(2) By direct action, via a special civil action for certiorari, or by collateral attack, assuming that the decision is void for
want of jurisdiction;

(3) By an independent civil action under Article 1114 of the Civil Code, assuming that the decision was obtained through
fraud and Rule 38 can not be applied. 49
It is not difficult to see that private respondents had lost their right to file a petition for relief from judgment, it appearing that their omnibus
motion for reconsideration was filed exactly six (6) years, ten (10) months and twenty-two (22) days after the rendition of the decision, and six
(6) years, one (1) month and thirteen (13) days after the court issued the order approving the Project of Partition, to which they voluntarily
expressed their conformity through their respective certifications, and closing the testate proceedings.

Private respondents did not avail of the other two (2) modes of attack.

The probate judgment of 13 November 1972, long final and undisturbed by any attempt to unsettle it, had inevitably passed beyond the
reach of the court below to annul or set the same aside, by mere motion, on the ground that the will is a forgery. Settled is the rule that the
decree of probate is conclusive with respect to the due execution of the will and it cannot be impugned on any of the grounds authorized by
law, except that of fraud, in any separate or independent action or proceeding. 50 We wish also to advert to the related doctrine which holds
that final judgments are entitled to respect and should not be disturbed; otherwise, there would be a wavering of trust in the courts. 51 In Lee
Bun Ting vs. Aligaen, 52 this Court had the occasion to state the rationale of this doctrine, thus:

Reasons of public policy, judicial orderliness, economy and judicial time and the interests of litigants, as well as the
peace and order of society, all require that stability be accorded the solemn and final judgments of the courts or
tribunals of competent jurisdiction.

This is so even if the decision is incorrect 53 or, in criminal cases, the penalty imposed is erroneous. 54

Equally baseless and unmeritorious is private respondents' contention that the order approving the Project of Partition and closing the
proceedings is null and void because the Project of Partition did not contain a notice of hearing and that they were not notified of the hearing
thereon. In truth, in her own certification 55 dated 5 September 1973, private respondent Concepcion M. Espina admitted that she "received
a copy of the Project of Partition and the Notice of Hearing in the above-entitled proceeding, and that she has no objection to the approval of
the said Project of Partition." The notice of hearing she referred to is the Notice of Hearing For Approval of Project of Partition issued on 6
August 1973 by the Clerk of Court. 56 Private respondent Espina was lying through her teeth when she claimed otherwise.

The non-distribution of the estate, which is vigorously denied by the petitioners, is not a ground for the re-opening of the testate proceedings.
A seasonable motion for execution should have been filed. In De Jesus vs.
Daza, 57 this Court ruled that if the executor or administrator has possession of the share to be delivered, the probate court would have
jurisdiction within the same estate proceeding to order him to transfer that possession to the person entitled thereto. This is authorized under
Section 1, Rule 90 of the Rules of Court. However, if no motion for execution is filed within the reglementary period, a separate action for the
recovery of the shares would be in order. As We see it, the attack of 10 September 1973 on the Order was just a clever ploy to give
asemblance of strength and substance to the Omnibus Motion for Reconsideration by depicting therein a probate court committing a series
of fatal, substantive and procedural blunders, which We find to be imaginary, if not deliberately fabricated.

WHEREFORE, the instant petition and supplemental petitions are GRANTED. The Order of respondent Judge of 2 June 1980 and all other
orders issued by him in Sp. Proc. No. 3309-R, as well as all other proceedings had therein in connection with or in relation to the Omnibus
Motion for Reconsideration, are hereby ANNULLED and SET ASIDE.

The restraining order issued on 2 June 1980 is hereby made PERMANENT.

Costs against private respondent Concepcion M. Espina.

SO ORDERED.

Gutierrez, Jr., Bidin and Romero, JJ., concur.

Feliciano, J., took no part.

Footnotes

1 Rollo, 13.

2 Rollo, 475-486.

3 Id., 370-373.

4 Rollo, 14-16.

5 Id., 18-19.
6 Rollo, 20.

7 Xerox copies thereof are on pages 370-373 and 388-391 of Rollo.

8 Rollo, 394-403.

9 Annex "J" to Consolidated Reply to Respondents' Comment, etc.; Id., 410-415.

10 Id., 21-26.

11 Rollo, 27; 29. More specifically, private respondent Concepcion Espina's certification, dated 5 September 1973,
reads: "The undersigned, legatee and heir of the deceased Remedios Mejia vda. de Tiosejo, hereby certify (sic) that
she received a copy of the Project of Partition and the Notice of Hearing in the above-entitled proceeding, and that she
has no objection to the approval of the said Project of Partition.

12 Annex "H" to Consolidated Reply to Respondents' Comment, etc.; Id., 406.

13 Id., 28-29.

14 Rollo, 30-36.

15 66 SCRA 425 [1975].

16 Rollo, 37-50.

17 Rollo, 13.

18 Id., 51-78.

19 Id., 81.

20 Rollo, 87-95.

21 Id., 119-157; 240-290.

22 Rollo, 320.

23 Id., 474-486.

24 Id., 459-472.

25 Rollo, 449.

26 Id., 779-971.

27 Id., 985-1027.

28 Id., 1369-1370, with the English translation at 1371-1372.

29 Rollo, 1375-1376.

30 Rollo. 1425-1430.

31 Supra.

32 65 SCRA 494 [1975].

33 Citing Wack Wack Golf and Country Club, Inc. vs. Court of Appeals, 106 Phil. 501 [1959].
 34 Citing The Province of Pangasinan vs. Palisoc, 6 SCRA 299 [1962].

35 At pages 499-500.

36 178 SCRA 153. [1989].

37 People vs. Jabinal, 55 SCRA 607 [1974].

38 157 SCRA 40 [1988].

39 64 Phil. 211 [1937].

40 64 Phil. 785 [1937].

41 Underscoring supplied for emphasis.

42 Underscoring supplied for emphasis.

43 Annex "1" of Comments; Rollo, 158.

44 Rollo, 255, et seq.

45 Annex "C" of the Reply.

46 Rollo, op. cit., 624, et seq.

47 Rollo, 31-32.

48 Anuran vs. Aquino, 38 Phil. 29 [1918]; Garchitorena vs. Sotelo, 74 Phil. 25 [1942]; Ramos vs. Albano, 92 Phil. 834
[1953].

49 Anuran vs. Aquino, supra.; Banco Español-Filipino vs. Palanca, 37 Phil. 921 [1918]; Garchitorena vs. Sotelo, supra.;
Santiago vs. Ceniza, 5 SCRA 494 [1962].

50 Manahan vs. Manahan, 58 Phil. 448, 451 [1933], citing several cases.

51 Yuseco vs. Court of Appeals, 68 SCRA 484 [1975]; San Juan vs. Cuento, 160 SCRA 277 [1988].

52 76 SCRA 416 [1977], see also Turqueza vs. Hernando, 97 SCRA 483 [1980].

53 Balais vs. Balais, 159 SCRA 37 [1988]; San Juan vs. Cuento, supra.

54 Castillo vs. Donato, 137 SCRA 210 [1985]; Icao vs. Apalisok, 180 SCRA 680 [1989].

55 Annex "F" of Petition; Rollo, 27.

56 Id., 501.

57 77 Phil. 152 [1946]; see also Torres vs. Encarnacion, 89 Phil. 678 [1951].

2. Rodriguez vs Borja GR No. L-21933

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-21993 June 21, 1966

ANGELA RODRIGUEZ, MARIA RODRIGUEZ, ET AL., petitioners,

vs.
HON. JUAN DE BORJA, as Judge of the Court of First Instance of Bulacan, Branch III,
ANATOLIA PANGILINAN and ADELAIDA JACALAN, respondents.

Lorenzo Somulong for petitioners.

Torres and Torres for respondents.

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

Petitioners Angela, Maria, Abelardo and Antonio, surnamed Rodriguez, petition this Court for a writ
of certiorari and prohibition to the Court of First Instance of Bulacan, for its refusal to grant their
motion to dismiss its Special Proceeding No. 1331, which said Court is alleged to have taken
cognizance of without jurisdiction.

The facts and issues are succinctly narrated in the order of the respondent court, dated June 13,
1963 (Petition, Annex 0), in this wise:

It is alleged in the motion to dismiss filed by Angela, Maria, Abelardo and Antonio Rodriguez,
through counsel, that this Court "has no jurisdiction to try the above-entitled case in view of
the pendency of another action for the settlement of the estate of the deceased Rev. Fr.
Celestino Rodriguez in the Court of First Instance of Rizal, namely, Sp. Proceedings No.
3907 entitled 'In the matter of the Intestate Estate of the deceased Rev. Fr. Celestino
Rodriguez which was filed ahead of the instant case".

The records show that Fr. Celestino Rodriguez died on February 12, 1963 in the City of
Manila; that on March 4, 1963, Apolonia Pangilinan and Adelaida Jacalan delivered to the
Clerk of Court of Bulacan a purported last will and testament of Fr. Rodriguez; that on March
8, 1963, Maria Rodriguez and Angela Rodriguez, through counsel filed a petition for leave of
court to allow them to examine the alleged will; that on March 11, 1963 before the Court
could act on the petition, the same was withdrawn; that on March 12, 1963, aforementioned
petitioners filed before the Court of First Instance of Rizal a petition for the settlement of the
intestate estate of Fr. Rodriguez alleging, among other things, that Fr. Rodriguez was a
resident of Parañaque, Rizal, and died without leaving a will and praying that Maria
Rodriguez be appointed as Special Administratrix of the estate; and that on March 12, 1963
Apolonia Pangilinan and Adelaida Jacalan filed a petition in this Court for the probation of the
will delivered by them on March 4, 1963. It was stipulated by the parties that Fr. Rodriguez
was born in Parañaque, Rizal; that he was Parish priest of the Catholic Church of Hagonoy,
Bulacan, from the year 1930 up to the time of his death in 1963; that he was buried in
Parañaque, and that he left real properties in Rizal, Cavite, Quezon City and Bulacan.
 The movants contend that since the intestate proceedings in the Court of First Instance of
Rizal was filed at 8:00 A.M. on March 12, 1963 while the petition for probate was filed in the
Court of First Instance of Bulacan at 11:00 A.M. on the same date, the latter Court has no
jurisdiction to entertain the petition for probate, citing as authority in support thereof the case
of Ongsingco Vda. de Borja vs. Tan and De Borja, G.R. No. 7792, July 27, 1955.

The petitioners Pangilinan and Jacalan, on the other hand, take the stand that the Court of
First Instance of Bulacan acquired jurisdiction over the case upon delivery by them of the will
to the Clerk of Court on March 4, 1963, and that the case in this Court therefore has
precedence over the case filed in Rizal on March 12, 1963.

The Court of First Instance, as previously stated denied the motion to dismiss on the ground that a
difference of a few hours did not entitle one proceeding to preference over the other; that, as early
as March 7, movants were aware of the existence of the purported will of Father Rodriguez,
deposited in the Court of Bulacan, since they filed a petition to examine the same, and that movants
clearly filed the intestate proceedings in Rizal "for no other purpose than to prevent this Court (of
Bulacan) from exercising jurisdiction over the probate proceedings". Reconsideration having been
denied, movants, now petitioners, came to this Court, relying principally on Rule 73, section 1 of the
Rules of Court, and invoking our ruling in Ongsingco vs. Tan and De Borja, L-7792, July 27, 1955.

SECTION 1. Where estate of deceased persons settled. — If the decedent is an inhabitant of

the Philippines at the time of his death, whether a citizen or an alien, his will shall be proved,
or letters of administration granted, and his estate settled, in the Court of First Instance in the
province in which he resides at the time of his death, and if he is an inhabitant of a foreign
country, the Court of First Instance of any province 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, as 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.

We find this recourse to be untenable. The jurisdiction of the Court of First Instance of Bulacan
became vested upon the delivery thereto of the will of the late Father Rodriguez on March 4, 1963,
even if no petition for its allowance was filed until later, because upon the will being deposited the
court could, motu proprio, have taken steps to fix the time and place for proving the will, and issued
the corresponding notices conformably to what is prescribed by section 3, Rule 76, of the Revised
Rules of Court (Section 3, Rule 77, of the old Rules):

SEC. 3. Court to appoint time for proving will. Notice thereof to be published. — When a will
is delivered to, or a petition for the allowance of a will is filed in, the Court having jurisdiction,
such Court shall fix a time and place for proving the will when all concerned may appear to
contest the allowance thereof, and shall cause notice of such time and place to be published
three (3) weeks successively, previous to the time appointed, in a newspaper of general
circulation in the province.

But no newspaper publication shall be made where the petition for probate has been filed by
the testator himself.

The use of the disjunctive in the words "when a will is delivered to OR a petition for the allowance of
a will is filed" plainly indicates that the court may act upon the mere deposit therein of a decedent's
testament, even if no petition for its allowance is as yet filed. Where the petition for probate is made
after the deposit of the will, the petition is deemed to relate back to the time when the will was
delivered. Since the testament of Fr. Rodriguez was submitted and delivered to the Court of Bulacan
on March 4, while petitioners initiated intestate proceedings in the Court of First Instance of Rizal
only on March 12, eight days later, the precedence and exclusive jurisdiction of the Bulacan court is
incontestable. 1äwphï1.ñët

But, petitioners object, section 3 of revised Rule 76 (old Rule 77) speaks of a will being delivered to
"the Court having jurisdiction," and in the case at bar the Bulacan court did not have it because the
decedent was domiciled in Rizal province. We can not disregard Fr. Rodriguez's 33 years of
residence as parish priest in Hagonoy, Bulacan (1930-1963); but even if we do so, and consider that
he retained throughout some animus revertendi to the place of his birth in Parañaque, Rizal, that
detail would not imply that the Bulacan court lacked jurisdiction. As ruled in previous decisions, the
power to settle decedents' estates is conferred by law upon all courts of first instance, and the
domicile of the testator only affects the venue but not the jurisdiction of the Court (In re Kaw Singco,
74 Phil. 239; Reyes vs. Diaz, 73 Phil. 484; Bernabe vs. Vergara, 73 Phil. 676). Neither party denies
that the late Fr. Rodriguez is deceased, or that he left personal property in Hagonoy, province of
Bulacan (t.s.n. p. 46, hearing of June 11, 1963, Annex "H", Petition, Rec., p. 48). That is sufficient in
the case before us.

In the Kaw Singco case (ante) this Court ruled that:

"... If we consider such question of residence as one affecting the jurisdiction of the trial court
over the subject-matter, the effect shall be that the whole proceedings including all decisions
on the different incidents which have arisen in court will have to be annulled and the same
case will have to be commenced anew before another court of the same rank in another
province. That this is of mischievous effect in the prompt administration of justice is too
obvious to require comment. (Cf. Tanunchuan vs. Dy Buncio & Co., G.R. No. 48206,
December 31, 1942). Furthermore, section 600 of Act No. 190, providing that the estate of a
deceased person shall be settled in the province where he had last resided, could not have
been intended as defining the jurisdiction of the probate court over the subject matter,
because such legal provision is contained in a law of procedure dealing merely with
procedural matters, and, as we have said time and again, procedure is one thing and
jurisdiction over the subject matter is another. (Attorney General vs. Manila Railroad
Company, 20 Phil. 523.) The law of jurisdiction — Act No. 136, Section 56, No. 5 — confers
upon Courts of First Instance jurisdiction over all probate cases independently of the place of
residence of the deceased.1 Since, however, there are many Courts of First Instance in the
Philippines, the Law of Procedure, Act No. 190, section 600, fixes the venue or the place
where each case shall be brought. Thus, the place of residence of the deceased is not an
element of jurisdiction over the subject matter but merely of venue. And it is upon this ground
that in the new Rules of Court the province where the estate of a deceased person shall be
settled is properly called "venue" (Rule 75, section 1.) Motion for reconsideration is denied.

The estate proceedings having been initiated in the Bulacan Court of First Instance ahead of any
other, that court is entitled to assume jurisdiction to the exclusion of all other courts, even if it were a
case of wrong venue by express provisions of Rule 73 (old Rule 75) of the Rules of Court, since the
same enjoins that:

The Court first taking cognizance of the settlement of the estate of a decedent shall exercise
jurisdiction to the exclusion of all other courts. (Sec. 1)

This disposition presupposes that two or more courts have been asked to take cognizance of the
settlement of the estate. Of them only one could be of proper venue, yet the rule grants precedence
to that Court whose jurisdiction is first invoked, without taking venue into account.
There are two other reasons that militate against the success of petitioners. One is that their
commencing intestate proceedings in Rizal, after they learned of the delivery of the decedent's will to
the Court of Bulacan, was in bad faith, patently done with a view to divesting the latter court of the
precedence awarded it by the Rules. Certainly the order of priority established in Rule 73 (old Rule
75) was not designed to convert the settlement of decedent's estates into a race between applicants,
with the administration of the properties as the price for the fleetest.

The other reason is that, in our system of civil law, intestate succession is only subsidiary or
subordinate to the testate, since intestacy only takes place in the absence of a valid operative will.
Says Article 960 of the Civil Code of the Philippines:

ART. 960. Legal or intestate succession takes place:

(1) If a person dies without a will, or with a void will, or one which has subsequently lost its
validity;

(2) When the will does not institute an heir to, or dispose of all the property belonging to the
testator. In such case, legal succession shall take place only with respect to the property in
which the testator has not disposed;

(3) If the suspensive condition attached to the institution of heir does not happen or is not
fulfilled, or if the heir dies before the testator, or repudiates the inheritance, there being no
substitution, and no right of accretion takes place;

(4) When the heir instituted is incapable of succeeding, except in cases provided in this
Code.

Therefore, as ruled in Castro, et al. vs. Martinez, 10 Phil. 307, "only after final decision as to the
nullity of testate succession could an intestate succession be instituted in the form of pre-established
action". The institution of intestacy proceedings in Rizal may not thus proceed while the probate of
the purported will of Father Rodriguez is pending.

We rule that the Bulacan Court of First Instance was entitled to priority in the settlement of the estate
in question, and that in refusing to dismiss the probate. proceedings, said court did not commit any
abuse of discretion. It is the proceedings in the Rizal Court that should be discontinued.

Wherefore, the writ of certiorari applied for is denied. Costs against petitioners Rodriguez.

Concepcion, C.J., Barrera, Dizon, Regala, Makalintal, Bengzon, J.P., Zaldivar and Sanchez, JJ.,
concur.

Footnotes

1
Now section 44, subpar. (e) of the Judiciary Act (R.A. No. 296).

The Lawphil Project - Arellano Law Foundation

3. Arnaz vs Galing May 28, 1988-Case Not Found

4. Nuguid vs Nuguid 17 SCRA 445

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-23445 June 23, 1966

REMEDIOS NUGUID, petitioner and appellant,

vs.
FELIX NUGUID and PAZ SALONGA NUGUID, oppositors and appellees.

Custodio O. Partade for petitioner and appellant.

Beltran, Beltran and Beltran for oppositors and appellees.

SANCHEZ, J.:

Rosario Nuguid, a resident of Quezon City, died on December 30, 1962, single, without
descendants, legitimate or illegitimate. Surviving her were her legitimate parents, Felix Nuguid and
Paz Salonga Nuguid, and six (6) brothers and sisters, namely: Alfredo, Federico, Remedios,
Conrado, Lourdes and Alberto, all surnamed Nuguid.

On May 18, 1963, petitioner Remedios Nuguid filed in the Court of First Instance of Rizal a
holographic will allegedly executed by Rosario Nuguid on November 17, 1951, some 11 years before
her demise. Petitioner prayed that said will be admitted to probate and that letters of administration
with the will annexed be issued to her.

On June 25, 1963, Felix Nuguid and Paz Salonga Nuguid, concededly the legitimate father and
mother of the deceased Rosario Nuguid, entered their opposition to the probate of her will. Ground
therefor, inter alia, is that by the institution of petitioner Remedios Nuguid as universal heir of the
deceased, oppositors — who are compulsory heirs of the deceased in the direct ascending line —
were illegally preterited and that in consequence the institution is void.

On August 29, 1963, before a hearing was had on the petition for probate and objection thereto,
oppositors moved to dismiss on the ground of absolute preterition.

On September 6, 1963, petitioner registered her opposition to the motion to dismiss. 1äwphï1.ñët

The court's order of November 8, 1963, held that "the will in question is a complete nullity and will
perforce create intestacy of the estate of the deceased Rosario Nuguid" and dismissed the petition
without costs.

A motion to reconsider having been thwarted below, petitioner came to this Court on appeal.
1. Right at the outset, a procedural aspect has engaged our attention. The case is for the probate of
a will. The court's area of inquiry is limited — to an examination of, and resolution on,
the extrinsic validity of the will. The due execution thereof, the testatrix's testamentary capacity, and
the compliance with the requisites or solemnities by law prescribed, are the questions solely to be
presented, and to be acted upon, by the court. Said court at this stage of the proceedings — is not
called upon to rule on the intrinsic validity or efficacy of the provisions of the will, the legality of any
devise or legacy therein.1

A peculiar situation is here thrust upon us. The parties shunted aside the question of whether or not
the will should be allowed probate. For them, the meat of the case is the intrinsic validity of the will.
Normally, this comes only after the court has declared that the will has been duly authenticated. 2 But
petitioner and oppositors, in the court below and here on appeal, travelled on the issue of law, to wit:
Is the will intrinsically a nullity?

We pause to reflect. If the case were to be remanded for probate of the will, nothing will be gained.
On the contrary, this litigation will be protracted. And for aught that appears in the record, in the
event of probate or if the court rejects the will, probability exists that the case will come up once
again before us on the same issue of the intrinsic validity or nullity of the will. Result: waste of time,
effort, expense, plus added anxiety. These are the practical considerations that induce us to a belief
that we might as well meet head-on the issue of the validity of the provisions of the will in
question.3 After all, there exists a justiciable controversy crying for solution.

2. Petitioner's sole assignment of error challenges the correctness of the conclusion below that the
will is a complete nullity. This exacts from us a study of the disputed will and the applicable statute.

Reproduced hereunder is the will:

Nov. 17, 1951

I, ROSARIO NUGUID, being of sound and disposing mind and memory, having amassed a certain
amount of property, do hereby give, devise, and bequeath all of the property which I may have when
I die to my beloved sister Remedios Nuguid, age 34, residing with me at 38-B Iriga, Q.C. In witness
whereof, I have signed my name this seventh day of November, nineteen hundred and fifty-one.

(Sgd.) Illegible

T/ ROSARIO NUGUID

The statute we are called upon to apply in Article 854 of the Civil Code which, in part, provides:

ART. 854. The preterition or omission of one, some, or all of the compulsory heirs in the
direct line, whether living at the time of the execution of the will or born after the death of the
testator, shall annul the institution of heir; but the devises and legacies shall be valid insofar
as they are not inofficious. ...

Except for inconsequential variation in terms, the foregoing is a reproduction of Article 814 of the
Civil Code of Spain of 1889, which is similarly herein copied, thus —

Art. 814. The preterition of one or all of the forced heirs in the direct line, whether living at the
time of the execution of the will or born after the death of the testator, shall void the institution
 of heir; but the legacies and betterments4 shall be valid, in so far as they are not
inofficious. ...

A comprehensive understanding of the term preterition employed in the law becomes a necessity.
On this point Manresa comments:

La pretericion consiste en omitar al heredero en el testamento. O no se le nombra siquiera o

aun nombrandole como padre, hijo, etc., no se le instituya heredero ni se le deshereda
expresamente ni se le asigna parte alguna de los bienes, resultando privado de un modo
tacito de su derecho a legitima.

Para que exista pretericion, con arreglo al articulo 814, basta que en el testamento omita el
testador a uno cualquiera de aquellos a quienes por su muerte corresponda la herencia
forzosa.

Se necesita, pues, a) Que la omision se refiera a un heredero forzoso. b) Que la omision sea
completa; que el heredero forzoso nada reciba en el testamento.

It may now appear trite bat nonetheless helpful in giving us a clear perspective of the problem before
us, to have on hand a clear-cut definition of the word annul:

To "annul" means to abrogate, to make void ... In re Morrow's Estate, 54 A. 342, 343, 204
Pa. 484.6

The word "annul" as used in statute requiring court to annul alimony provisions of divorce
decree upon wife's remarriage means to reduce to nothing; to annihilate; obliterate; blot out;
to make void or of no effect; to nullify; to abolish. N.J.S.A. 2:50 — 38 (now N.J.S. 2A:34-35).
Madden vs. Madden, 40 A. 2d 611, 614, 136 N..J Eq. 132. 7

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

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

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

En cuanto a la institucion de heredero, se anula. Lo que se anula deja de existir, en todo o

en parte? No se añade limitacion alguna, como en el articulo 851, en el que se expresa que
se anulara la institucion de heredero en cuanto prejudique a la legitima del deseheredado
Debe, pues, entenderse que la anulacion es completa o total, y que este articulo como
especial en el caso que le motiva rige con preferencia al 817. 10

The same view is expressed by Sanchez Roman: —

 La consecuencia de la anulacion o nulidad de la institucion de heredero por pretericion de
uno, varios o todos los forzosos en linea recta, es la apertura de la sucesion intestada total o
parcial. Sera total, cuando el testador que comete la pretericion, hubiese dispuesto de todos
los bienes por titulo universal de herencia en favor de los herederos instituidos, cuya
institucion se anula, porque asi lo exige la generalidad del precepto legal del art. 814, al
determinar, como efecto de la pretericion, el de que "anulara la institucion de heredero." ... 11

Really, as we analyze the word annul employed in the statute, there is no escaping the conclusion
that the universal institution of petitioner to the entire inheritance results in totally abrogating the will.
Because, the nullification of such institution of universal heir — without any other testamentary
disposition in the will — amounts to a declaration that nothing at all was written. Carefully worded
and in clear terms, Article 854 offers no leeway for inferential interpretation. Giving it an expansive
meaning will tear up by the roots the fabric of the statute. On this point, Sanchez Roman cites the
"Memoria annual del Tribunal Supreme, correspondiente a 1908", which in our opinion expresses
the rule of interpretation, viz:

... El art. 814, que preceptua en tales casos de pretericion la nulidad de la institucion de
heredero, no consiente interpretacion alguna favorable a la persona instituida en el sentido
antes expuesto aun cuando parezca, y en algun caso pudiera ser, mas o menos equitativa,
porque una nulidad no significa en Derecho sino la suposicion de que el hecho o el acto no
se ha realizado, debiendo por lo tanto procederse sobre tal base o supuesto, y
consiguientemente, en un testamento donde falte la institucion, es obligado llamar a los
herederos forzosos en todo caso, como habria que llamar a los de otra clase, cuando el
testador no hubiese distribudo todos sus bienes en legados, siendo tanto mas obligada esta
consecuencia legal cuanto que, en materia de testamentos, sabido es, segun tiene
declarado la jurisprudencia, con repeticion, que no basta que sea conocida la voluntad de
quien testa si esta voluntad no aparece en la forma y en las condiciones que la ley ha
exigido para que sea valido y eficaz, por lo que constituiria una interpretacion arbitraria,
dentro del derecho positivo, reputar como legatario a un heredero cuya institucion fuese
anulada con pretexto de que esto se acomodaba mejor a la voluntad del testador, pues aun
cuando asi fuese, sera esto razon para modificar la ley, pero no autoriza a una interpretacion
contraria a sus terminos y a los principios que informan la testamentifaccion, pues no porque
parezca mejor una cosa en el terreno del Derecho constituyente, hay razon para convereste
juicio en regla de interpretacion, desvirtuando y anulando por este procedimiento lo que el
legislador quiere establecer. 12

3. We should not be led astray by the statement in Article 854 that, annullment notwithstanding, "the
devises and legacies shall be valid insofar as they are not inofficious". Legacies and devises merit
consideration only when they are so expressly given as such in a will. Nothing in Article 854
suggests that the mere institution of a universal heir in a will — void because of preterition — would
give the heir so instituted a share in the inheritance. As to him, the will is inexistent. There must be,
in addition to such institution, a testamentary disposition granting him bequests or legacies apart and
separate from the nullified institution of heir. Sanchez Roman, speaking of the two component parts
of Article 814, now 854, states that preterition annuls the institution of the heir "totalmente por la
pretericion"; but added (in reference to legacies and bequests) "pero subsistiendo ... todas aquellas
otras disposiciones que no se refieren a la institucion de heredero ... . 13 As Manresa puts it,
annulment throws open to intestate succession the entire inheritance including "la porcion libre (que)
no hubiese dispuesto en virtud de legado, mejora o donacion. 14

As aforesaid, there is no other provision in the will before us except the institution of petitioner as
universal heir. That institution, by itself, is null and void. And, intestate succession ensues.
4. Petitioner's mainstay is that the present is "a case of ineffective disinheritance rather than one of
preterition". 15From this, petitioner draws the conclusion that Article 854 "does not apply to the case
at bar". This argument fails to appreciate the distinction between pretention and disinheritance.

Preterition "consists in the omission in the testator's will of the forced heirs or anyone of them, either
because they are not mentioned therein, or, though mentioned, they are neither instituted as heirs
nor are expressly disinherited." 16 Disinheritance, in turn, "is a testamentary disposition depriving any
compulsory heir of his share in the legitime for a cause authorized by law. " 17 In Manresa's own
words: "La privacion expresa de la legitima constituye la desheredacion. La privacion tacita de la
misma se denomina pretericion." 18 Sanchez Roman emphasizes the distinction by stating that
disinheritance "es siempre voluntaria"; preterition, upon the other hand, is presumed to be
"involuntaria". 19 Express as disinheritance should be, the same must be supported by a legal cause
specified in the will itself. 20

The will here does not explicitly disinherit the testatrix's parents, the forced heirs. It simply omits their
names altogether. Said will rather than be labeled ineffective disinheritance is clearly one in which
the said forced heirs suffer from preterition.

On top of this is the fact that the effects flowing from preterition are totally different from those of
disinheritance. Preterition under Article 854 of the Civil Code, we repeat, "shall annul the institution
of heir". This annulment is in toto, unless in the will there are, in addition, testamentary dispositions
in the form of devises or legacies. In ineffective disinheritance under Article 918 of the same Code,
such disinheritance shall also "annul the institution of heirs", put only "insofar as it may prejudice the
person disinherited", which last phrase was omitted in the case of preterition. 21 Better stated yet, in
disinheritance the nullity is limited to that portion of the estate of which the disinherited heirs have
been illegally deprived. Manresa's expressive language, in commenting on the rights of the
preterited heirs in the case of preterition on the one hand and legal disinheritance on the other, runs
thus: "Preteridos, adquiren el derecho a todo; desheredados, solo les corresponde un tercio o dos
tercios, 22 el caso. 23

5. Petitioner insists that the compulsory heirs ineffectively disinherited are entitled to receive their
legitimes, but that the institution of heir "is not invalidated," although the inheritance of the heir so
instituted is reduced to the extent of said legitimes. 24

This is best answered by a reference to the opinion of Mr. Chief Justice Moran in the Neri case
heretofore cited, viz:

But the theory is advanced that the bequest made by universal title in favor of the children by
the second marriage should be treated as legado and mejora and, accordingly, it must not be
entirely annulled but merely reduced. This theory, if adopted, will result in a complete
abrogation of Articles 814 and 851 of the Civil Code. If every case of institution of heirs may
be made to fall into the concept of legacies and betterments reducing the bequest
accordingly, then the provisions of Articles 814 and 851 regarding total or partial nullity of the
institution, would. be absolutely meaningless and will never have any application at all. And
the remaining provisions contained in said article concerning the reduction of inofficious
legacies or betterments would be a surplusage because they would be absorbed by Article
817. Thus, instead of construing, we would be destroying integral provisions of the Civil
Code.

The destructive effect of the theory thus advanced is due mainly to a failure to distinguish
institution of heirs from legacies and betterments, and a general from a special provision.
With reference to article 814, which is the only provision material to the disposition of this
 case, it must be observed that the institution of heirs is therein dealt with as a thing separate
and distinct from legacies or betterments. And they are separate and distinct not only
because they are distinctly and separately treated in said article but because they are in
themselves different. Institution of heirs is a bequest by universal title of property that is
undetermined. Legacy refers to specific property bequeathed by a particular or special
title. ... But again an institution of heirs cannot be taken as a legacy. 25

The disputed order, we observe, declares the will in question "a complete nullity". Article 854 of the
Civil Code in turn merely nullifies "the institution of heir". Considering, however, that the will before
us solely provides for the institution of petitioner as universal heir, and nothing more, the result is the
same. The entire will is null.

Upon the view we take of this case, the order of November 8, 1963 under review is hereby affirmed.
No costs allowed. So ordered.

Concepcion, C.J., Reyes, J.B.L., Barrera, Dizon, Regala, Makalintal, Bengzon, J.P. and Zaldivar, JJ.,
concur.

Footnotes

Castañeda vs. Alemany, 3 Phil. 426, 428; Pimentel vs. Palanca, etc., et al., 5 Phil. 436, 440-
1

441; Limjuco vs. Ganara, 11 Phil. 393, 394-395; Montañano vs. Suesa, 14 Phil. 676, 679;
Riera vs. Palmorali, et al., 40 Phil. 105, 116; In re Estate of Johnson, 39 Phil. 156, 174;
Palacios vs. Palacios, 58 O.G. No. 2, 220, 221; Teotico vs. Del Val, etc., L-18753, March 26,
1965.

2
Section 13, Rule 76 of the Rules of Court.

3
Section 2, Rule 1, Rules of Court. Case, et al. vs. Jugo, et al., 77 Phil. 517, 522.

Betterments are eliminated in the present Civil Code. II Padilla, Civil Code Annotated, p.
4

1077.

5
VI Manresa, Commentarios al Codigo Civil Español, 7th Edition, (1951), p. 424.

6
Words & Phrases, Vol. 3A, Permanent Ed., p. 3.

7
Id., p. 4.

8
Black's Law Dictionary, 4th ed., p. 117.

9
Manresa, id., p. 426.

10
Manresa, id., pp. 431-432.

11
VI Sanchez Roman, Estudios de Derecho Civil, 2nd Edition, Volumen 2.o, p. 1140.

12
VI Sanchez Roman, id., p. 1138. This is also cited in the Neri case, 74 Phil. 192-193.
 Justice J.B.L. Reyes and Judge R.C. Puno, in their work entitled "An Outline of
Philippine Civil Law", 1956 ed., Vol. III, p. 8; citing Gil vs. Murciano, L-3362, March 1,
1951, likewise opined that "the right to make a will is statutory, not a natural right, and
must be subordinate to law and public policy".

13
Sanchez Roman, id., p. 1141.

14
Manresa, id., p. 434.

15
Petitioner's brief, p. 15.

16
Neri, et al. vs. Akutin, et al., supra, 72 Phil., at p. 325.

17
Justice J.B.L. Reyes and Judge R.C. Puno, id., p. 106.

Manresa, id., p. 424. Justice Reyes and Judge Puno, id., 107, speaking of the requisites of
18

a valid disinheritance, confirm the theory that disinheritance "must be express (not implied)
(Art. 918 ; otherwise there is preterition".

19
Sanchez Roman, id., p. 1131.

20
Arts. 915, 916, Civil Code; II Padilla, Civil Code Annotated, pp. 750-752.

21
III Tolentino, Civil Code of the Philippines, 1961 Edition, p. 172.

22
Now one-half, Articles 888 and 889, Civil Code.

23
Manresa, id., p. 430.

24
Petitioner's brief, p. 13.

25
Neri, et al. vs. Akutin, et al., 74 Phil. pp. 191-192.

Arts. 817 and 851, Civil Code of Spain of 1889, referred to in the opinion above, are
now Arts. 907 and 918 of the present Civil Code.

5. Balanay vs Martinez 64 SCRA 452

Republic of the Philippines

SUPREME COURT
Manila

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

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

Roberto M. Sarenas for petitioner.

Jose B. Guyo for private respondents.

AQUINO, J.:

Felix Balanay, Jr. appealed by certiorari from the order of the Court of First Instance of Davao dated
February 28, 1974, declaring illegal and void the will of his mother, Leodegaria Julian, converting the
testate proceeding into an intestate proceeding and ordering the issuance of the corresponding
notice to creditors (Special Case No. 1808). The antecedents of the appeal are as follows:

Leodegaria Julian, a native of Sta. Maria, Ilocos Sur, died on February 12, 1973 in Davao City at the
age of sixty-seven. She was survived by her husband, Felix Balanay, Sr., and by their six legitimate
children named Felix Balanay, Jr., Avelina B. Antonio, Beatriz B. Solamo, Carolina B. Manguiob,
Delia B. Lanaban and Emilia B. Pabaonon.

Felix J. Balanay, Jr. filed in the lower court a petition dated February 27, 1973 for the probate of his
mother's notarial will dated September 5, 1970 which is written in English. In that will Leodegaria
Julian declared (a) that she was the owner of the "southern half of nine conjugal lots (par. II); (b) that
she was the absolute owner of two parcels of land which she inherited from her father (par. III), and
(c) that it was her desire that her properties should not be divided among her heirs during her
husband's lifetime and that their legitimes should be satisfied out of the fruits of her properties (Par.
IV).

Then, in paragraph V of the will she stated that after her husband's death (he was eighty-two years
old in 1973) her paraphernal lands and all the conjugal lands (which she described as "my
properties") should be divided and distributed in the manner set forth in that part of her will. She
devised and partitioned the conjugal lands as if they were all owned by her. She disposed of in the
will her husband's one half share of the conjugal assets. *

Felix Balanay, Sr. and Avelina B. Antonio opposed the probate of the will on the grounds of lack of testamentary capacity, undue influence,
preterition of the husband and alleged improper partition of the conjugal estate. The oppositors claimed that Felix Balanay, Jr. should collate
certain properties which he had received from the testatrix.

Felix Balanay, Jr., in his reply to the opposition, attached thereto an affidavit of Felix Balanay, Sr.
dated April 18, 1973 wherein he withdrew his opposition to the probate of the will and affirmed that
he was interested in its probate. On the same date Felix Balanay, Sr. signed an instrument captioned
"Conformation (sic) of Division and Renunciation of Hereditary Rights" wherein he manifested that
out of respect for his wife's will he "waived and renounced' his hereditary rights in her estate in favor
of their six children. In that same instrument he confirmed the agreement, which he and his wife had
perfected before her death, that their conjugal properties would be partitioned in the manner
indicated in her will.
Avelina B. Antonio, an oppositor, in her rejoinder contended that the affidavit and "conformation" of
Felix Balanay, Sr. were void. The lower court in its order of June 18, 1973 "denied" the opposition
and reset for hearing the probate of the will. It gave effect to the affidavit and conformity of Felix
Balanay, Sr. In an order dated August 28, 1973 it appointed its branch clerk of court as special
administrator of the decedent's estate.

Mrs. Antonio moved for the reconsideration of the lower court's order of June 18, 1973 on the
grounds (a) that the testatrix illegally claimed that she was the owner of the southern half of the
conjugal lots and (b) that she could not partition the conjugal estate by allocating portions of the nine
lots to her children. Felix Balanay, Jr., through his counsel, Hermenegildo Cabreros, opposed that
motion. The lower court denied it in its order of October 15, 1973.

In the meanwhile, another lawyer appeared in the case. David O. Montaña, Sr., claiming to be the
lawyer of petitioner Felix Balanay, Jr. (his counsel of record was Atty. Cabreros), filed a motion dated
September 25, 1973 for "leave of court to withdraw probate of alleged will of Leodegaria Julian and
requesting authority to proceed by intestate estate proceeding." In that motion Montaña claimed to
be the lawyer not only of the petitioner but also of Felix Balanay, Sr., Beatriz B. Solamo, Carolina B.
Manguiob and Emilia B. Pabaonon.

Montaña in his motion assailed the provision of the will which partitioned the conjugal assets or
allegedly effected a compromise of future legitimes. He prayed that the probate of the will be
withdrawn and that the proceeding be converted into an intestate proceeding. In another motion of
the same date he asked that the corresponding notice to creditors be issued.

Avelina B. Antonio and Delia B. Lanaban, through Atty. Jose B. Guyo, in their comments dated
October 15, 1973 manifested their conformity with the motion for the issuance of a notice to
creditors. They prayed that the will be declared void for being contrary to law and that an intestacy
be declared.

The lower court, acting on the motions of Atty. Montaña, assumed that the issuance of a notice to
creditors was in order since the parties had agreed on that point. It adopted the view of Attys.
Montaña and Guyo that the will was void. So, in its order of February 28, 1974 it dismissed the
petition for the probate, converted the testate proceeding into an intestate proceeding, ordered the
issuance of a notice to creditors and set the intestate proceeding for hearing on April 1 and 2, 1974.
The lower court did not abrogate its prior orders of June 18 and October 15, 1973. The notice to
creditors was issued on April 1, 1974 and published on May 2, 9 and 16 in the Davao Star in spite of
petitioner's motion of April 17, 1974 that its publication be held in abeyance.

Felix Balanay, Jr., through a new counsel, Roberto M. Sarenas, in a verified motion dated April 15,
1974, asked for the reconsideration of the lower court's order of February 28, 1974 on the ground
that Atty. Montaña had no authority to withdraw the petition for the allowance of the will. Attached to
the motion was a copy of a letter dated March 27, 1974 addressed to Atty. Montaña and signed by
Felix Balanay, Jr., Beatriz V. Solamo, Carolina B. Manguiob and Emilia B. Pabaonon, wherein they
terminated Montaña's services and informed him that his withdrawal of the petition for the probate of
the will was without their consent and was contrary to their repeated reminder to him that their
mother's will was "very sacred" to them.

Avelina B. Antonio and Delia B. Lanaban opposed the motion for reconsideration. The lower court
denied the motion in its order of June 29, 1974. It clarified that it declared the will void on the basis of
its own independent assessment of its provisions and not because of Atty. Montaña's arguments.
The basic issue is whether the probate court erred in passing upon the intrinsic validity of the will,
before ruling on its allowance or formal validity, and in declaring it void.

We are of the opinion that in view of certain unusual provisions of the will, which are of dubious
legality, and because of the motion to withdraw the petition for probate (which the lower court
assumed to have been filed with the petitioner's authorization), the trial court acted correctly in
passing upon the will's intrinsic validity even before its formal validity had been established. The
probate of a will might become an idle ceremony if on its face it appears to be intrinsically void.
Where practical considerations demand that the intrinsic validity of the will be passed upon, even
before it is probated, the court should meet the issue (Nuguid vs. Nuguid, 64 O.G. 1527, 17 SCRA
449. Compare with Sumilang vs. Ramagosa, L-23135, December 26, 1967, 21 SCRA 1369; Cacho
vs. Udan, L-19996, April 30, 1965, 13 SCRA 693). 1äwphï1.ñët

But the probate court erred in declaring, in its order of February 28, 1974 that the will was void and
in converting the testate proceeding into an intestate proceeding notwithstanding the fact that in its
order of June 18, 1973 , it gave effect to the surviving husband's conformity to the will and to his
renunciation of his hereditary rights which presumably included his one-half share of the conjugal
estate.

The rule is that "the invalidity of one of several dispositions contained in a will does not result in the
invalidity of the other dispositions, unless it is to be presumed that the testator would not have made
such other dispositions if the first invalid disposition had not been made" (Art. 792, Civil Code).
"Where some of the provisions of a will are valid and others invalid, the valid parts will be upheld if
they can be separated from the invalid without defeating the intention of the testator or interfering
with the general testamentary scheme, or doing injustice to the beneficiaries" (95 C.J.S. 873).

The statement of the testatrix that she owned the "southern half of the conjugal lands is contrary to
law because, although she was a coowner thereof, her share was inchoate and proindiviso (Art. 143,
Civil Code; Madrigal and Paterno vs. Rafferty and Concepcion, 38 Phil. 414). But That illegal
declaration does not nullify the entire will. It may be disregarded.

The provision of the will that the properties of the testatrix should not be divided among her heirs
during her husband's lifetime but should be kept intact and that the legitimes should be paid in cash
is contrary to article 1080 of the Civil Code which reads:

ART. 1080. Should a person make a partition of his estate by an act inter vivos, or by
will, such partition shall be respected, insofar as it does not prejudice the legitime of
the compulsory heirs.

A parent who, in the interest of his or her family, to keep any agricultural, industrial, or
manufacturing enterprise intact, may avail himself of the right granted him in this
article, by ordering that the legitime of the other children to whom the property is not
assigned be paid in cash. (1056a)

The testatrix in her will made a partition of the entire conjugal estate among her six children (her
husband had renounced his hereditary rights and his one-half conjugal share). She did not assign
the whole estate to one or more children as envisaged in article 1080. Hence, she had no right to
require that the legitimes be paid in cash. On the other hand, her estate may remain undivided only
for a period of twenty years. So, the provision that the estate should not be divided during her
husband's lifetime would at most be effective only for twenty years from the date of her death unless
there are compelling reasons for terminating the coownership (Art. 1083, Civil Code).
Felix Balanay, Sr. could validly renounce his hereditary rights and his one-half share of the conjugal
partnership (Arts. 179[1] and 1041, Civil Code) but insofar as said renunciation partakes of a
donation of his hereditary rights and his one-half share in the conjugal estate (Art. 1060[1] Civil
Code), it should be subject to the limitations prescribed in articles 750 and 752 of the Civil Code. A
portion of the estate should be adjudicated to the widower for his support and maintenance. Or at
least his legitime should be respected.

Subject to the foregoing observations and the rules on collation, the will is intrinsically valid and the
partition therein may be given effect if it does not prejudice the creditors and impair the legitimes.
The distribution and partition would become effective upon the death of Felix Balanay, Sr. In the
meantime, the net income should be equitably divided among the children and the surviving spouse.

It should be stressed that by reason of the surviving husband's conformity to his wife's will and his
renunciation of his hereditary rights, his one-half conjugal share became a part of his deceased
wife's estate. His conformity had the effect of validating the partition made in paragraph V of the will
without prejudice, of course, to the rights of the creditors and the legitimes of the compulsory heirs.

Article 793 of the Civil Code provides that "property acquired after the making of a will shall only
pass thereby, as if the testator had it at the time of making the will, should it expressly appear by the
will that such was his intention". Under article 930 of the Civil Code "the legacy or devise of a thing
belonging to another person is void, if the testator erroneously believed that the thing pertained to
him. But if the thing bequeathed, though not belonging to the testator when he made the will,
afterwards becomes his, by whatever title, the disposition shall take effect."

In the instant case there is no doubt that the testatrix and her husband intended to partition the
conjugal estate in the manner set forth in paragraph V of her will. It is true that she could dispose of
by will only her half of the conjugal estate (Art. 170, Civil Code) but since the husband, after the
dissolution of the conjugal partnership, had assented to her testamentary partition of the conjugal
estate, such partition has become valid, assuming that the will may be probated.

The instant case is different from the Nuguid case, supra, where the testatrix instituted as heir her
sister and preterited her parents. Her will was intrinsically void because it preterited her compulsory
heirs in the direct line. Article 854 of the Civil Code provides that "the preterition or omission of one,
some, or all of the compulsory heirs in the direct line, whether living at the time of the execution of
the will or born after the death of the testator, shall annul the institution of heir; but the devises and
legacies, shall be valid insofar as they are not inofficious." Since the preterition of the parents
annulled the institution of the sister of the testatrix and there were no legacies and devises, total
intestacy resulted (.Art. 960[2], Civil Code).1äwphï1.ñët

In the instant case, the preterited heir was the surviving spouse. His preterition did not produce
intestacy. Moreover, he signified his conformity to his wife's will and renounced his hereditary rights. .

It results that the lower court erred in not proceeding with the probate of the will as contemplated in
its uncancelled order of June 18, 1973. Save in an extreme case where the will on its face is
intrinsically void, it is the probate court's duty to pass first upon the formal validity of the will.
Generally, the probate of the will is mandatory (Art. 838, Civil Code; Guevara vs. Guevara, 74 Phil.
479 and 98 Phil. 249; Fernandez vs. Dimagiba, L-23638, October 12, 1967, 21 SCRA 428).

As aptly stated by Mr. Justice Barredo, "the very existence of a purported testament is in itself prima
facie proof that the supposed testator has willed that his estate should be distributed in the manner
therein provided, and it is incumbent upon the state that, if legally tenable, such desire be given
effect independent of the attitude of the parties affected thereby" (Resolution, Vda. de Precilla vs.
Narciso, L-27200, August 18, 1972, 46 SCRA 538, 565).

To give effect to the intention and wishes of the testatrix is the first and principal law in the matter of
testaments (Dizon-Rivera vs. Dizon, L-24561, June 30, 1970, 33 SCRA 554, 561). Testacy is
preferable to intestacy. An interpretation that will render a testamentary disposition operative takes
precedence over a construction that will nullify a provision of the will (Arts. 788 and 791, Civil Code).

Testacy is favored. Doubts are resolved in favor of testacy especially where the will evinces an
intention on the part of the testator to dispose of practically his whole estate. So compelling is the
principle that intestacy should be avoided and that the wishes of the testator should prevail that
sometimes the language of the will can be varied for the purpose of giving it effect (Austria vs.
Reyes, L-23079, February 27, 1970, 31 SCRA 754, 762).

As far as is legally possible, the expressed desire of the testator must be followed and the
dispositions of the properties in his will should be upheld (Estorque vs. Estorque, L-19573, June 30,
1970, 33 SCRA 540, 546).

The law has a tender regard for the wishes of the testator as expressed in his will because any
disposition therein is better than that which the law can make (Castro vs. Bustos, L-25913, February
28, 1969, 27 SCRA 327, 341).

Two other errors of the lower court may be noticed. It erred in issuing a notice to creditors although
no executor or regular administrator has been appointed. The record reveals that it appointed a
special administrator. A notice to creditors is not in order if only a special administrator has been
appointed. Section 1, Rule 86 of the Rules of Court, in providing that "immediately after granting
letters of testamentary or of administration, the court shall issue a notice requiring all persons having
money claims against the decedent to file them in the office of the clerk of said court" clearly
contemplates the appointment of an executor or regular administrator and not that of a special
administrator.

It is the executor or regular administrator who is supposed to oppose the claims against the estate
and to pay such claims when duly allowed (See. 10, Rule 86 and sec. 1, Rule 88, Rules of Court).

We also take this occasion to point out that the probate court's appointment of its branch clerk of
court as special administrator (p. 30, Rollo) is not a salutary practice because it might engender the
suspicion that the probate Judge and his clerk of court are in cahoots in milking the decedent's
estate. Should the branch clerk of court commit any abuse or devastavit in the course of his
administration, the probate Judge might find it difficult to hold him to a strict accountability. A court
employee should devote his official time to his official duties and should not have as a sideline the
administration of a decedent's estate.

WHEREFORE, the lower court's orders of February 28, and June 29, 1974 are set aside and its
order of June 18, 1973, setting for hearing the petition for probate, is affirmed. The lower court is
directed to conduct further proceedings in Special Case No. 1808 in consonance with this opinion.
Costs, against the private respondents.

SO ORDERED.

Fernando (Chairman), Barredo, Antonio and Concepcion, Jr., JJ., concur.

Footnotes

* The pertinent provisions of the will are as follows:

"II. That I am the absolute owner of the southern half of the following conjugal
properties which I acquired during my married life with my husband, Felix Balanay,
Sr., namely: (Here follows an enumeration of nine lots). 1äwphï1.ñët

"III. I am the absolute owner of the following paraphernal properties which I inherited
from my deceased father, Cecilio Julian, namely: (Here follows a description of two
lots).

"IV. It is my desire and I direct that in the interest of my family, my properties shall not
be divided among my heirs during the lifetime of my husband, Felix Balanay, Sr. but
should be kept intact. The respective legitimes of my husband and my children
should be paid in cash out of the proceeds of sale of the produce and rents derived
from said properties.

"V. After the death of my husband, Felix Balanay, Sr., my properties shall be divided
and distributed in the manner as follows:" (Here follows a partition of the nine
conjugal lots and the two paraphernal lots. The testatrix divided among her six
children not only her two paraphernal lots, one of which she devised to Emilia
Pabaonon and the other lot to Felix Balanay, Jr., but also the nine conjugal lots. She
did not restrict the partition to her one-half conjugal share but included her husband's
one-half share.).

6. Nepomuceno vs CA 137 SCRA 445

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-62952 October 9, 1985

SOFIA J. NEPOMUCENO, petitioner,

vs.
THE HONORABLE COURT OF APPEALS, RUFINA GOMEZ, OSCAR JUGO ANG, CARMELITA
JUGO, respondents.

GUTIERREZ, JR., J.:

This is a petition for certiorari to set aside that portion of the decision of the respondent Court of
Appeals (now intermediate Appellate Court) dated June 3, 1982, as amended by the resolution
dated August 10, 1982, declaring as null and void the devise in favor of the petitioner and the
resolution dated December 28, 1982 denying petitioner's motion for reconsideration.

Martin Jugo died on July 16, 1974 in Malabon, Rizal. He left a last Will and Testament duly signed by
him at the end of the Will on page three and on the left margin of pages 1, 2 and 4 thereof in the
presence of Celestina Alejandro, Myrna C. Cortez, and Leandro Leano, who in turn, affixed their
signatures below the attestation clause and on the left margin of pages 1, 2 and 4 of the Will in the
presence of the testator and of each other and the Notary Public. The Will was acknowledged before
the Notary Public Romeo Escareal by the testator and his three attesting witnesses.

In the said Will, the testator named and appointed herein petitioner Sofia J. Nepomuceno as his sole
and only executor of his estate. It is clearly stated in the Will that the testator was legally married to a
certain Rufina Gomez by whom he had two legitimate children, Oscar and Carmelita, but since 1952,
he had been estranged from his lawfully wedded wife and had been living with petitioner as husband
and wife. In fact, on December 5, 1952, the testator Martin Jugo and the petitioner herein, Sofia J.
Nepomuceno were married in Victoria, Tarlac before the Justice of the Peace. The testator devised
to his forced heirs, namely, his legal wife Rufina Gomez and his children Oscar and Carmelita his
entire estate and the free portion thereof to herein petitioner. The Will reads in part:

Art. III. That I have the following legal heirs, namely: my aforementioned legal wife,
Rufina Gomez, and our son, Oscar, and daughter Carmelita, both surnamed Jugo,
whom I declare and admit to be legally and properly entitled to inherit from me; that
while I have been estranged from my above-named wife for so many years, I cannot
deny that I was legally married to her or that we have been separated up to the
present for reasons and justifications known fully well by them:

Art. IV. That since 1952, 1 have been living, as man and wife with one Sofia J.
Nepomuceno, whom I declare and avow to be entitled to my love and affection, for all
the things which she has done for me, now and in the past; that while Sofia J.
Nepomuceno has with my full knowledge and consent, did comport and represent
myself as her own husband, in truth and in fact, as well as in the eyes of the law, I
could not bind her to me in the holy bonds of matrimony because of my
aforementioned previous marriage;

On August 21, 1974, the petitioner filed a petition for the probate of the last Will and Testament of the
deceased Martin Jugo in the Court of First Instance of Rizal, Branch XXXIV, Caloocan City and
asked for the issuance to her of letters testamentary.

On May 13, 1975, the legal wife of the testator, Rufina Gomez and her children filed an opposition
alleging inter alia that the execution of the Will was procured by undue and improper influence on the
part of the petitioner; that at the time of the execution of the Will, the testator was already very sick
and that petitioner having admitted her living in concubinage with the testator, she is wanting in
integrity and thus, letters testamentary should not be issued to her.

On January 6, 1976, the lower court denied the probate of the Will on the ground that as the testator
admitted in his Will to cohabiting with the petitioner from December 1952 until his death on July 16,
1974, the Will's admission to probate will be an Idle exercise because on the face of the Will, the
invalidity of its intrinsic provisions is evident.

The petitioner appealed to the respondent-appellate court.

On June 2, 1982, the respondent court set aside the decision of the Court of First Instance of Rizal
denying the probate of the will. The respondent court declared the Will to be valid except that the
devise in favor of the petitioner is null and void pursuant to Article 739 in relation with Article 1028 of
the Civil Code of the Philippines. The dispositive portion of the decision reads:

WHEREFORE, the decision a quo is hereby set aside, the will in question declared
valid except the devise in favor of the appellant which is declared null and void. The
properties so devised are instead passed on in intestacy to the appellant in equal
shares, without pronouncement as to cost.

On June 15, 1982, oppositors Rufina Gomez and her children filed a "Motion for Correction of
Clerical Error" praying that the word "appellant" in the last sentence of the dispositive portion of the
decision be changed to "appellees" so as to read: "The properties so devised are instead passed on
intestacy to the appellees in equal shares, without pronouncement as to costs." The motion was
granted by the respondent court on August 10, 1982.

On August 23, 1982, the petitioner filed a motion for reconsideration. This was denied by the
respondent court in a resolution dated December 28, 1982.

The main issue raised by the petitioner is whether or not the respondent court acted in excess of its
jurisdiction when after declaring the last Will and Testament of the deceased Martin Jugo validly
drawn, it went on to pass upon the intrinsic validity of the testamentary provision in favor of herein
petitioner.

The petitioner submits that the validity of the testamentary provision in her favor cannot be passed
upon and decided in the probate proceedings but in some other proceedings because the only
purpose of the probate of a Will is to establish conclusively as against everyone that a Will was
executed with the formalities required by law and that the testator has the mental capacity to execute
the same. The petitioner further contends that even if the provisions of paragraph 1 of Article 739 of
the Civil Code of the Philippines were applicable, the declaration of its nullity could only be made by
the proper court in a separate action brought by the legal wife for the specific purpose of obtaining a
declaration of the nullity of the testamentary provision in the Will in favor of the person with whom
the testator was allegedly guilty of adultery or concubinage.

The respondents on the other hand contend that the fact that the last Will and Testament itself
expressly admits indubitably on its face the meretricious relationship between the testator and the
petitioner and the fact that petitioner herself initiated the presentation of evidence on her alleged
ignorance of the true civil status of the testator, which led private respondents to present contrary
evidence, merits the application of the doctrine enunciated in Nuguid v. Felix Nuguid, et al. (17 SCRA
449) and Felix Balanay, Jr. v. Hon. Antonio Martinez, et al. (G.R. No. L- 39247, June 27, 1975).
Respondents also submit that the admission of the testator of the illicit relationship between him and
the petitioner put in issue the legality of the devise. We agree with the respondents.

The respondent court acted within its jurisdiction when after declaring the Will to be validly drawn, it
went on to pass upon the intrinsic validity of the Will and declared the devise in favor of the petitioner
null and void.

The general rule is that in probate proceedings, the court's area of inquiry is limited to an
examination and resolution of the extrinsic validity of the Will. The rule is expressed thus:

xxx xxx xxx

 ... It is elementary that a probate decree finally and definitively settles all questions
concerning capacity of the testator and the proper execution and witnessing of his
last Will and testament, irrespective of whether its provisions are valid and
enforceable or otherwise. (Fernandez v. Dimagiba, 21 SCRA 428)

The petition below being for the probate of a Will, the court's area of inquiry is limited
to the extrinsic validity thereof. The testators testamentary capacity and the
compliance with the formal requisites or solemnities prescribed by law are the only
questions presented for the resolution of the court. Any inquiry into
the intrinsic validity or efficacy of the provisions of the will or the legality of any devise
or legacy is premature.

xxx xxx xxx

True or not, the alleged sale is no ground for the dismissal of the petition for probate.
Probate is one thing; the validity of the testamentary provisions is another. The first
decides the execution of the document and the testamentary capacity of the testator;
the second relates to descent and distribution (Sumilang v. Ramagosa, 21 SCRA
1369)

xxx xxx xxx

To establish conclusively as against everyone, and once for all, the facts that a will
was executed with the formalities required by law and that the testator was in a
condition to make a will, is the only purpose of the proceedings under the new code
for the probate of a will. (Sec. 625). The judgment in such proceedings determines
and can determine nothing more. In them the court has no power to pass upon the
validity of any provisions made in the will. It can not decide, for example, that a
certain legacy is void and another one valid. ... (Castaneda v. Alemany, 3 Phil. 426)

The rule, however, is not inflexible and absolute. Given exceptional circumstances, the probate court
is not powerless to do what the situation constrains it to do and pass upon certain provisions of the
Will.

In Nuguid v. Nuguid (17 SCRA 449) cited by the trial court, the testator instituted the petitioner as
universal heir and completely preterited her surviving forced heirs. A will of this nature, no matter
how valid it may appear extrinsically, would be null and void. Separate or latter proceedings to
determine the intrinsic validity of the testamentary provisions would be superfluous.

Even before establishing the formal validity of the will, the Court in Balanay .Jr. v. Martinez (64 SCRA
452) passed upon the validity of its intrinsic provisions.

Invoking "practical considerations", we stated:

The basic issue is whether the probate court erred in passing upon the intrinsic
validity of the will, before ruling on its allowance or formal validity, and in declaring it
void.

We are of the opinion that in view of certain unusual provisions of the will, which are
of dubious legality, and because of the motion to withdraw the petition for probate
(which the lower court assumed to have been filed with the petitioner's authorization)
 the trial court acted correctly in passing upon the will's intrinsic validity even before
its formal validity had been established. The probate of a will might become an Idle
ceremony if on its face it appears to be intrinsically void. Where practical
considerations demand that the intrinsic validity of the will be passed upon, even
before it is probated, the court should meet the issue (Nuguid v. Nuguid, 64 O.G.
1527, 17 SCRA 449. Compare with Sumilang vs. Ramagosa L-23135, December 26,
1967, 21 SCRA 1369; Cacho v. Udan L-19996, April 30, 1965, 13 SCRA 693).

There appears to be no more dispute at this time over the extrinsic validity of the Will. Both parties
are agreed that the Will of Martin Jugo was executed with all the formalities required by law and that
the testator had the mental capacity to execute his Will. The petitioner states that she completely
agrees with the respondent court when in resolving the question of whether or not the probate court
correctly denied the probate of Martin Jugo's last Will and Testament, it ruled:

This being so, the will is declared validly drawn. (Page 4, Decision, Annex A of
Petition.)

On the other hand the respondents pray for the affirmance of the Court of Appeals' decision in toto.

The only issue, therefore, is the jurisdiction of the respondent court to declare the testamentary
provision in favor of the petitioner as null and void.

We sustain the respondent court's jurisdiction. As stated in Nuguid v. Nuguid, (supra):

We pause to reflect. If the case were to be remanded for probate of the will, nothing
will be gained. On the contrary, this litigation will be protracted. And for aught that
appears in the record, in the record, in the event of probate or if the court rejects the
will, probability exists that the case will come up once again before us on the same
issue of the intrinsic validity or nullity of the will. Result, waste of time, effort,
expense, plus added anxiety. These are the practical considerations that induce us to
a belief that we might as well meet head-on the issue of the validity of the provisions
of the will in question. (Section 2, Rule 1, Rules of Court. Case, et al. v. Jugo, et al.,
77 Phil. 517, 522). After all, there exists a justiciable controversy crying for solution.

We see no useful purpose that would be served if we remand the nullified provision to the proper
court in a separate action for that purpose simply because, in the probate of a will, the court does not
ordinarily look into the intrinsic validity of its provisions.

Article 739 of the Civil Code provides:

The following donations shall be void:

(1) Those made between persons who were guilty of adultery or concubinage at the
time of the donation;

(2) Those made between persons found guilty of the same criminal offense, in
consideration thereof;

(3) Those made to a public officer or his wife, descendants and ascendants, by
reason of his office.
 In the case referred to in No. 1, the action for declaration of nullity may be brought by
the spouse of the donor or donee; and the guilt of the donor and donee may be
proved by preponderance of evidence in the same action.

Article 1028 of the Civil Code provides:

The prohibitions mentioned in Article 739, concerning donations inter vivos shall
apply to testamentary provisions.

In Article III of the disputed Will, executed on August 15, 1968, or almost six years before the
testator's death on July 16, 1974, Martin Jugo stated that respondent Rufina Gomez was his legal
wife from whom he had been estranged "for so many years." He also declared that respondents
Carmelita Jugo and Oscar Jugo were his legitimate children. In Article IV, he stated that he had been
living as man and wife with the petitioner since 1952. Testator Jugo declared that the petitioner was
entitled to his love and affection. He stated that Nepomuceno represented Jugo as her own husband
but "in truth and in fact, as well as in the eyes of the law, I could not bind her to me in the holy bonds
of matrimony because of my aforementioned previous marriage.

There is no question from the records about the fact of a prior existing marriage when Martin Jugo
executed his Will. There is also no dispute that the petitioner and Mr. Jugo lived together in an
ostensible marital relationship for 22 years until his death.

It is also a fact that on December 2, 1952, Martin Jugo and Sofia J. Nepomuceno contracted a
marriage before the Justice of the Peace of Victoria, Tarlac. The man was then 51 years old while
the woman was 48. Nepomuceno now contends that she acted in good faith for 22 years in the belief
that she was legally married to the testator.

The records do not sustain a finding of innocence or good faith. As argued by the private
respondents:

First. The last will and testament itself expressly admits indubitably on its face the
meretricious relationship between the testator and petitioner, the devisee.

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

ignorance of the true civil status of the testator, which led private respondents to
present contrary evidence.

In short, the parties themselves dueled on the intrinsic validity of the legacy given in
the will to petitioner by the deceased testator at the start of the proceedings.

Whether or not petitioner knew that testator Martin Jugo, the man he had lived with
as man and wife, as already married, was an important and specific issue brought by
the parties before the trial court, and passed upon by the Court of Appeals.

Instead of limiting herself to proving the extrinsic validity of the will, it was petitioner
who opted to present evidence on her alleged good faith in marrying the testator.
(Testimony of Petitioner, TSN of August 1, 1982, pp. 56-57 and pp. 62-64).

Private respondents, naturally, presented evidence that would refute the testimony of
petitioner on the point.
Sebastian Jugo, younger brother of the deceased testator, testified at length on the
meretricious relationship of his brother and petitioner. (TSN of August 18,1975).

Clearly, the good faith of petitioner was by option of the parties made a decisive
issue right at the inception of the case.

Confronted by the situation, the trial court had to make a ruling on the question.

When the court a quo held that the testator Martin Jugo and petitioner 'were deemed
guilty of adultery or concubinage', it was a finding that petitioner was not the innocent
woman she pretended to be.

xxx xxx xxx

3. If a review of the evidence must be made nonetheless, then private respondents

respectfully offer the following analysis:

FIRST: The secrecy of the marriage of petitioner with the deceased testator in a town
in Tarlac where neither she nor the testator ever resided. If there was nothing to hide
from, why the concealment' ? Of course, it maybe argued that the marriage of the
deceased with private respondent Rufina Gomez was likewise done in secrecy. But it
should be remembered that Rufina Gomez was already in the family way at that time
and it would seem that the parents of Martin Jugo were not in favor of the marriage
so much so that an action in court was brought concerning the marriage. (Testimony
of Sebastian Jugo, TSN of August 18, 1975, pp. 29-30)

SECOND: Petitioner was a sweetheart of the deceased testator when they were still
both single. That would be in 1922 as Martin Jugo married respondent Rufina Gomez
on November 29, 1923 (Exh. 3). Petitioner married the testator only on December 5,
1952. There was a space of about 30 years in between. During those 30 years, could
it be believed that she did not even wonder why Martin Jugo did not marry her nor
contact her anymore after November, 1923 - facts that should impel her to ask her
groom before she married him in secrecy, especially so when she was already about
50 years old at the time of marriage.

THIRD: The fact that petitioner broke off from Martin Jugo in 1923 is by itself
conclusive demonstration that she new that the man she had openly lived for 22
years as man and wife was a married man with already two children.

FOURTH: Having admitted that she knew the children of respondent Rufina Gomez,
is it possible that she would not have asked Martin Jugo whether or not they were his
illegitimate or legitimate children and by whom? That is un-Filipino.

FIFTH: Having often gone to Pasig to the residence of the parents of the deceased
testator, is it possible that she would not have known that the mother of private
respondent Oscar Jugo and Carmelita Jugo was respondent Rufina Gomez,
considering that the houses of the parents of Martin Jugo (where he had lived for
many years) and that of respondent Rufina Gomez were just a few meters away?

Such pretentions of petitioner Sofia Nepomuceno are unbelievable. They are, to say
the least, inherently improbable, for they are against the experience in common life
 and the ordinary instincts and promptings of human nature that a woman would not
bother at all to ask the man she was going to marry whether or not he was already
married to another, knowing that her groom had children. It would be a story that
would strain human credulity to the limit if petitioner did not know that Martin Jugo
was already a married man in view of the irrefutable fact that it was precisely his
marriage to respondent Rufina Gomez that led petitioner to break off with the
deceased during their younger years.

Moreover, the prohibition in Article 739 of the Civil Code is against the making of a donation between
persons who are living in adultery or concubinage. It is the donation which becomes void. The giver
cannot give even assuming that the recipient may receive. The very wordings of the Will invalidate
the legacy because the testator admitted he was disposing the properties to a person with whom he
had been living in concubinage.

WHEREFORE, the petition is DISMISSED for lack of merit. The decision of the Court of Appeals,
now Intermediate Appellate Court, is AFFIRMED. No costs.

SO ORDERED.

Teehankee (Chairman), Melencio-Herrera, Plana, Relova, De la Fuente and Patajo, JJ., concur.

The Lawphil Project - Arellano Law Foundation

7. Gallanosa vs Arcangel 21 June 1978

SECOND DIVISION

[G.R. No. L-29300. June 21, 1978.]

PEDRO D. H. GALLANOSA, CORAZON GRECIA-GALLONOSA and ADOLFO FORTAJADA, the deceased

Pedro Gallanosa being substituted by his legal heirs, namely, his above-named widow and his
children, ISIDRO GALLANOSA and LEDY GALLANOSA, and grandchildren named IMELDA TECLA
GALLANOSA and ROSARIO BRIGIDA GALLANOSA, children of the late SIKATUNA GALLANOSA. son
of Pedro D.H. GALLONOSA, Petitioners, v. HON. UBALDO Y. ARCANGEL, Judge of Branch I of the
Court of First Instance of Sorsogon and FLORENTINO G. HITOSIS, CASIANO G. HITOSIS,
TEOTIMO G. HITOSIS, VICTORIO G. HITOSIS, EMILIA G. HITOSIS VDA. DE CRUZ, JOAQUIN R.
HITOSIS VDA. DE CRUZ, JOAQUIN R. HITOSIS, FLORENTINO R. HITOSIS, VIRGINIA R. HITOSIS,
DEBORAH R. HITOSIS, EDILBERTO R. HITOSIS, LEONOR R. HITOSIS, NORMA R. HITOSIS-
VILLANUEVA, LEONCIO R. HITOSIS, minors ANGEL R. HITOSIS and RODOLFO R. HITOSIS,
represented by their legal guardian and mother LOURDES RELUCIO VDA. DE HITOSIS, PETRONA
HITOSIS-BALBIDO, MODESTO HITOSIS-GACILO, CLETO HITOSIS, AGUSTIN HITOSIS-FORTES,
TOMASA HITOSIS-BANARES VDA. DE BORRAS, CONRADA HITOSIS-BANARES FRANCHE,
RESTITUTO HITOSIS-BANARES, DAMIAN HITOSIS-BANARES, FIDEL HITOSIS-BANARES, SUSANA
HITOSIS-BANARES RODRIGUEZ, JOSE HITOSIS, LOLITA HITOSIS-BANEGA, minors MILAGROS
HITOSIS-BANEGA, ALICIA HITOSIS-BANEGA AND ELISA HITOSIS-BANEGA, represented by their
legal guardian and father ERNESTO BANEGA, FELICITAS HITOSIS-PENAFLOR, GENOVEVA
HITOSIS-ADRIATICO, MANUEL HITOSIS, PEDRO HITOSIS, LIBRATA HITOSIS-BALMES, JUANITA
HITOSIS-GABITO VDA. DE GABAS, MAURA HITOSIS-GABITO VDA. DE GANOLA and LEONA
HITOSIS-GABITO GAMBOA, Respondents.

Haile Frivaldo, for Petitioners.

 Joaquin R. Hitosis for Private Respondents.

SYNOPSIS

After the will of Florentino Hitosis was duly probated and the project of partition among his testamentary
heirs was approved by the court, the legal heirs who appealed neither from the decree of probate nor from
the order of partition and distribution instituted an action for the recovery of 61 parcels of land adjudicated
under the probated will. The action was dismissed on ground of res judicata. Again, the legal heirs did not
appeal, but in 1967, fifteen years after the said dismissal and twenty-eight years after the probate of the
will, they filed another action in the same court for the "annulment" of the will and for the recovery of the 61
parcels of land. Respondent judge dismissed the action but thereafter granted plaintiffs’ motion for
reconsideration and set aside the dismissed order.

On petition for certiorari, the Supreme Court held that the trial court committed grave abuse of discretion in
reconsidering its order of dismissal and ignoring the decrees of probate and distribution as well as the order
of dismissal of the civil case for recovery of the 61 parcels of land, which are the same as the instant case,
and which therefore constitute bars by former judgment.

Impugned order set aside and order of dismissal affirmed

SYLLABUS

1. CERTIORARI; GRAVE ABUSE OF DISCRETION. — It is grave abuse of discretion for a court not to dismiss
an action for the "annulment" of a probated will and for recovery of parcels already adjudicated under said
will, filed 28 years after the decrees of probate and distribution had become final, and 15 years after an
order of the same court dismissing a civil action for the recovery of the same parcels of land now again
being sought to be recovered.

2. SPECIAL PROCEEDINGS; PROBATE OF WILLS MANDATORY. — In order that a will may take effect, it has
to be probated, legalized or allowed in the proper testamentary proceeding. The probate of the will is
mandatory.

3. ID.; ID.; TESTAMENTARY PROCEEDING DIFFERENT FROM ORDINARY ACTION; NO ACTION FOR
"ANNULMENT" OF WILL. — The testamentary proceeding is a special proceeding for the settlement of the
testator’s estate. A special proceeding is distinct and different from an ordinary action. Our procedural law
does not sanction an action for the "annulment" of a will.

4. JUDGMENTS; EFFECT THEREOF; PROBATE OF WILLS; RES JUDICATA. — A final decree in respect to the
probate of a will is conclusive as to the due execution or formal validity of the will, meaning that the testator
was of sound and disposing mind at the time when he executed the will and was not acting under duress,
menace, fraud, or undue influence; that the will was signed by him in the presence of the required number
of witnesses; and that the will is genuine and is not a forgery. These facts cannot again be questioned in a
subsequent proceeding, not even in a criminal action for the forgery of the will.

5. SPECIAL PROCEEDINGS; TESTATE PROCEEDINGS ARE IN REM; DECREE OF ADJUDICATION. — A decree

of adjudication rendered by the trial court in the testate proceeding for the settlement of the estate of
having been rendered in a proceeding in rem, is binding upon the whole world.

6. JUDGMENTS IN PERSONAM; EFFECT THEREOF; RES JUDICATA. — An order of dismissal rendered by a

court of competent jurisdiction after an adjudication on the merits is a judgment in personam which
constitute res judicata.

7. JUDGMENTS; FINALITY IS FUNDAMENTAL. — It is a fundamental concept in the organization of every

jural system, a principle of public policy, that, at the risk of occasional errors, judgments of courts should
become final at some definite date fixed by law. Interest rei publicae ut finis sit litum. The very object for
which the courts were constituted was to put an end to controversies.

8. FINAL JUDGMENTS; GROUNDS FOR RELIEF. — After the period for seeking relief from a final order or
judgment under Rule 38 of the Rules of Court has expired, a final judgment or order can be set aside only
on the grounds of (a) lack of jurisdiction or lack of due process of law or (b) that the judgment was obtained
by means of extrinsic or collateral fraud. In the latter case, the period for annulling the judgment is four
years from the discovery of the fraud.

9. CONTRACTS; VOID CONTRACTS; DECLARATION OF NULLITY IMPRESCRIPTIBLE; ARTICLE 1410, NEW

CIVIL CODE APPLICABLE TO WILLS. — The rule in article 1410 of the Civil Code, that "the action of defense
for the declaration of the inexistence of a contract does not prescribe", applies to wills.

DECISION

AQUINO, J.:

In this special civil action of certiorari, filed on July 29, 1968, the petitioners seek to annul the orders of
respondent Judge dated May 3 and June 17, 1968, wherein he reconsidered his order of January 10, 1968,
dismissing, on the ground of prescription, the complaint in Civil Case No. 2233 of the Court of First Instance
of Sorsogon.

The case involves the sixty-one parcels of land in Sorsogon left by Florentino Hitosis, with an estimated
value of P50,000, and claims for damages exceeding one million pesos. The undisputed facts are as
follows:
chanrob1es virtual 1aw library

1. Florentino Hitosis executed a will in the Bicol dialect on June 19, 1938 when he was eighty years old. He
died on May 26, 1939 at Irosin, Sorsogon. A childless widower, he as survived by his brother, Leon Hitosis.
His other brothers, named Juan Tito (Juancito), Leoncio (Aloncio) and Apolonio and only sister, Teodora,
were all dead.

2. On June 24, 1939 a petition for the probate of his will was filed in the Court of First Instance of Sorsogon
(Special Proceeding No. 3171). The notice of hearing was duly published In that will. Florentino bequeathed
his one-half share in the conjugal estate to his second wife, Tecla Dollentas, and, should Tecla predecease
him, as was the case, his one-half share would be assigned to the spouses Pedro Gallanosa and Corazon
Grecia, the reason being that Pedro, Tecla’s son by her first marriage, grew up under the care of Florentino:
he had treated Pedro as his foster child, and Pedro has rendered services to Florentino and Tecla. Florentino
likewise bequeathed his separate properties consisting of three parcels of abaca land and parcel of riceland
to his protege (sasacuyang ataman) Adolfo Fortajada, a minor.

3. Opposition to the probate of the will was registered by the testator’s legal heirs, namely, his surviving
brother, Leon, and his nephews and nieces. After a hearing, wherein the oppositors did not present any
evidence in support of their opposition, Judge Pablo S. Rivera, in his decision of October 27, 1939, admitted
the will to probate and appointed Gallanosa as executor. Judge Rivera specifically found that the testator
executed his last will "gozando de buena salud y facultades mentales y no obrando en virtud de amenaza,
fraude o influencia indebida."

4. On October 24, 1941, the testamentary heirs, the Gallanosa spouses and Adolfo Fortajada, submitted a
project of partition covering sixty-one parcels of land located in various parts of Sorsogon, large cattle and
several pieces of personal property which were distributed in accordance with Florentino’s will. The heirs
assumed the obligations of the estate amounting to P7,129.27 in the portion of P2,376.42 for Adolfo
Fortajada and P4,752.85 for the Gallanosa spouses. The project of partition was approved by Judge Doroteo
Amador in his order of March 13, 1943, thus confirming the heirs’ possession of their respective shares. The
testator’s legal heirs did not appeal from the decree of probate and from the order of partition and
distribution.

5. On February 20, 1952, Leon Hitosis and the heirs of Florentino’s deceased brothers and sisters instituted
an action in the Court of First Instance of Sorsogon against Pedro Gallanosa for the recovery of the said
sixty-one parcels of land. They alleged that they, by themselves or through their predecessors-in-interest,
had been in continuous possession of those lands en concepto de dueño and that Gallanosa entered those
lands in 1951 and asserted ownership over the lands. They prayed that they be declared the owners of the
lands and that they be restored to the possession thereof. They also claimed damages (Civil Case No. 696).
6. Gallanosa moved to dismiss the above complaint for lack of cause of action and on the ground of bar by
the prior judgment in the probate proceeding, Judge Anatolio C. Mañalac dismissed the complaint on the
ground of res judicata in his order of August 14, 1952 wherein he said: jgc:chanrobles.com.ph

"It also appears that the plaintiffs and or their predecessors-in-interest had intervened in the testate
proceedings in Civil Case No. 3171 of this Court for the purpose of contesting the probate of the will of (the)
late Florentino Hitosis; and had their opposition prospered and the will denied of probate, the proceedings
would have been converted into one of intestacy (Art. 960 Civil Code) and the settlement of the estate of
the said deceased would have been made in accordance with the provisions of law governing legal or
intestate succession . . ., in which case the said plaintiffs, as the nearest of kin or legal heirs of said
Florentino Hitosis, would have succeeded to the ownership and possession of the 61 parcels of land in
question forming part of his estate (art. 1003, Civil Code).

"However, the decision of the Court was adverse to them, when it dismissed their opposition and ordered
the probate of his will. From this decision (Annex K). legalizing the said will, the oppositors did not file any
appeal within the period fixed by law, despite the fact that they were duly notified thereof, so that the said
decision had become final and it now constitutes a bar to any action that the plaintiffs may institute for the
purpose of seeking a redetermination of their right to inherit the properties of the late Florentino Hitosis.

"In other words, the said decision of this Court in Civil Case (Special Proceeding) No. 3171, in which the
herein plaintiffs or their predecessors-in-interest had intervened as parties oppositors, constitutes a final
judicial determination of the issue that the said plaintiffs, as ordinary heirs, have no legal rights to succeed
to any of the properties of the late Florentino Hitosis; consequently, their present claim to the ownership
and possession of the 61 parcels of land in question is without any legal merit or basis." cralaw virtua1aw library

7. The plaintiffs did not appeal from that order of dismissal which should have set the matter at rest. But the
same plaintiffs or oppositors to the probate of the will, and their heirs, with a persistence befitting a more
meritorious case, filed on September 21, 1967, or fifteen years after the dismissal of Civil Case No. 696 and
twenty-eight years after the probate of the will, another action in the same court against the Gallanosa
spouses and Adolfo Fortajada for the "annulment" of the will of Florentino Hitosis and for the recovery of the
same sixty-one parcels of land. They prayed for the appointment of a receiver.

8. As basis of their complaint, they alleged that the Gallanosa spouses, through fraud and deceit, caused the
execution and simulation of the document purporting to be the last will and testament of Florentino Hitosis.
While in their 1952 complaint the same plaintiffs alleged that they were in possession of the lands in
question, in their 1967 complaint they admitted that since 1939, or from the death of Florentino Hitosis, the
defendants (now the petitioners) have been in possession of the disputed lands (Par. XIV of the complaint,
p. 70, Rollo in Civil Case No. 555, Gubat Branch, which was transferred to Branch I in Sorsogon town where
Special Proceeding No. 3171 and Civil Case No. 696 were decided and which was re-docketed as Civil Case
No. 2233).

9. As already stated, that 1967 complaint, upon motion of the defendants, now the petitioners, was
dismissed by respondent Judge. The plaintiffs filed a motion for reconsideration Respondent Judge granted it
and set aside the order of dismissal. He denied defendants’ motion for the reconsideration of his order
setting aside that dismissal order.

The petitioners or the defendants below contend in this certiorari case that the lower court has no
jurisdiction to set aside the 1939 decree of probate and the 1952 order of dismissal in Civil Case No. 696
and that it acted with grave abuse of discretion in not dismissing private respondents’ 1967 complaint. cralawnad

The issue is whether, under the facts set forth above, the private respondents have a cause of action for the
"annulment" of the will of Florentino Hitosis and for the recovery of the sixty-one parcels of land adjudicated
under that will to the petitioners.

We hold that the lower court committed a grave abuse of discretion in reconsideration its order of dismissal
and in ignoring the 1939 testamentary case and the 1952 Civil Case No. 696 which is the same as the
instant 1967 case.

A rudimentary knowledge of substantive law and procedure is sufficient for an ordinary lawyer to conclude
upon a causal perusal of the 1967 complaint that it is baseless and unwarranted.

What the plaintiffs seek is the "annulment" of a last will and testament duly probated in 1939 by the lower
court itself. The proceeding is coupled with an action to recover the lands adjudicated to the defendants by
the same court in 1943 by virtue of the probated will, which action is a resuscitation of the complaint of the
same parties that the same court dismissed in 1952.

It is evident from the allegations of the complaint and from defendants’ motion to dismiss that plaintiffs’
1967 action is barred by res judicata a double-barrelled defense, and by prescription, acquisitive and
extinctive, or by what are known in the jus civile and the jus gentium as usucapio, longi temporis possesio
and praescriptio (See Ramos v. Ramos, L-19872, December 3, 1974, 61 SCRA 284).

Our procedural law does not sanction an action for the "annulment" of a will. In order that a will may take
effect, it has to be probated, legalized or allowed in the proper testamentary proceeding. The probate of the
will is mandatory (Art. 838, Civil Code, sec. 1, Rule 75, formerly sec. 1, Rule 76, Rules of Court; Guevara v.
Guevara, 74 Phil. 479; Guevara v. Guevara, 98 Phil. 249).

The testamentary proceeding is a special proceeding for the settlement of the testator’s estate. A special
proceeding is distinct and different from an ordinary action (Secs. 1 and 2, Rule 2 and sec. 1, Rule 72, Rules
of Court).

We say that the defense of res judicata, as a ground for the dismissal of plaintiffs’ 1967 complaint, is a two-
pronged defense because (1) the 1939 and 1943 decrees of probate and distribution in Special Proceeding
No. 3171 and (2) the 1952 order of dismissal in Civil Case No. 696 of the lower court constitute bars by
former judgment. Rule 39 of the Rules of Court provides: jgc:chanrobles.com.ph

"SEC. 49. Effect of judgments. — The effect of a judgment or final order rendered by a court or judge of the
Philippines, having jurisdiction to pronounce the judgment or order, may be as follows: jgc:chanrobles.com.ph

"(a) In case of a judgment or order against a specific thing, or in respect to the probate of a will or the
administration of the estate of a deceased person, or in respect to the personal political, or legal condition or
status of a particular person or his relationship to another, the judgment or order is conclusive upon the title
to the thing, the will or administration, or the condition, status or relationship of the person; however, the
probate of a will or granting of letters of administration shall only be prima facie evidence of the death of the
testator or intestate;

"(b) In other cases the judgment or order is, with respect to the matter directly adjudged or as to any other
matter that could have been raised in relation thereto, conclusive between the parties and their successors
in interest by title subsequent to the commencement of the action or special proceeding, litigating of the
same thing and under the same title and in the same capacity;

"(c) In any other litigation between the same parties or their successors in interest, that only is deemed to
have been adjudged in a former judgment which appears upon its face to have been so adjudged, or which
was actually and necessarily included therein or necessary thereto." cralaw virtua1aw library

The 1939 decree of probate is conclusive as to the due execution or formal validity of the will (Sec. 625, Act
190; sec. 1, Rule 76, now sec. 1, Rule 75, Rules of Court; Last par. of art. 838, Civil Code).

That means that the testator was of sound and disposing mind at the time when he executed the will and
was not acting under duress, menace, fraud, or undue influence; that the will was signed by him in the
presence of the required number of witnesses, and that the will is genuine and is not a forgery. Accordingly,
these facts cannot again be questioned in a subsequent proceeding, not even in a criminal action for the
forgery of the will. (3 Moran’s Comments on the Rules of Court, 1970 Edition, p. 395; Manahan v. Manahan,
58 Phil, 448).chanrobles virtual lawlibrary

After the finality of the allowance of a will, the issue as to the voluntariness of its execution cannot be raised
anymore (Santos v. De Buenaventura, L-22797, September 22, 1966, 18 SCRA 47).

In Austria v. Ventenilla, 21 Phil. 180, a "petition for annulment of a will" was not entertained after the
decree of probate had become final. That case is summarized as follows: jgc:chanrobles.com.ph

"Wills; Probate; Alleged Fraudulent Will; Appeal. — V. died. His will was admitted to probate without
objection. No appeal was taken from said order. It was admitted that due and legal notice had been given to
all parties. Fifteen months after the date of said order, a motion was presented in the lower court to have
said will declared null and void, for the reason that fraud had been practiced upon the deceased in the
making of his will.

"Held: That under section 625 of Act No. 190, the only time given parties who are displeased with the order
admitting to probate a will, for an appeal is the time given for appeals in ordinary actions; but without
deciding whether or not an order admitting a will to probate will be opened for fraud, after the time allowed
for an appeal has expired, when no appeal is taken from an order probating a will, the heirs can not, in
subsequent litigation in the same proceedings, raise questions relating to its due execution. The probate of a
will is conclusive as to its due execution and as to the testamentary capacity of the testator." (See Austria v.
Heirs of Ventenilla, 99 Phil. 1069).

On the other hand, the 1943 decree of adjudication rendered by the trial court in the testate proceeding for
the settlement of the estate of Florentino Hitosis, having been rendered in a proceeding in rem, is under the
above quoted section 49(a), binding upon the whole world (Manalo v. Paredes, 47 Phil. 938; In re Estate of
Johnson, 39 Phil. 156; De la Cerna v. Potot, 120 Phil. 1361, 1364; McMaster v. Hentry Reissmann & Co., 68
Phil. 142).

It is not only the 1939 probate proceeding that can be interposed as res judicata with respect to private
respondents complaint. The 1952 order of dismissal rendered by Judge Mañalac in Civil Case No. 696, a
judgment in personam, was an adjudication on the merits (Sec. 4, Rule 30, old Rules of Court). It
constitutes a bar by former judgment under the aforequoted section 49(b). (Anticamara v. Ong, L-29689,
April 14, 1978).

The plaintiffs or private respondents did not even bother to ask for the annulment of the testamentary
proceeding and the proceeding in Civil Case No. 696. Obviously, they realized that the final adjudications in
those cases have the binding force of res judicata and that there is no ground, nor is it timely, to ask for the
nullification of the final orders and judgments in those two cases. chanroblesvirtualawlibrary

It is a fundamental concept in the organization of every jural system, a principle of public policy, that, at the
risk of occasional errors, judgments of courts should become final at some definite date fixed by law.
Interest rei publicae ut finis sit litum. The very object for which the courts were constituted was to put an
end to controversies. (Dy Cay v. Crossfield and O’ Brien, 38 Phil. 521; Peñalosa v. Tuason, 22 Phil. 303; De
la Cerna v. Potot, supra).

After the period for seeking relief from a final order or judgment under Rule 38 of the Rules of Court has
expired, a final judgment or order can be set aside only on the grounds of (a) lack of jurisdiction or lack of
due process of law or (b) that the judgment was obtained by means of extrinsic or collateral fraud. In the
latter case, the period for annulling the judgment is four years from the discovery of the fraud (2 Moran’s
Comments on the Rules of Court, 1970 Edition, pp. 245-246 Mauricio v. Villanueva, 106 Phil. 1159).

To hurdle over the obstacle of prescription, the trial court, naively adopting the theory of plaintiffs’ counsel,
held that the action for the recovery of the lands had not prescribed because the rule in article 1410 of the
Civil Code, that "the action of defense for the declaration of the inexistence of a contract does not
prescribe", applies to wills.

That ruling is a glaring error Article 1410 cannot possibly apply to last wills and testaments. The trial court
and plaintiffs’ counsel relied upon the case of Dingle v. Guillermo, 48 O.G. 4410, allegedly decided by this
Court, which cited the ruling in Tipton v. Velasco, 6 Phil. 67, that mere lapse of time cannot give efficacy to
void contracts, a ruling elevated to the category of a codal provision in article 1410. The Dingle case was
decided by the Court of Appeals. Even the trial court did not take pains to verify the misrepresentation of
plaintiffs’ counsel that the Dingle case was decided by this Court. An elementary knowledge of civil law could
have alerted the trial court to the egregious error of plaintiffs’ counsel in arguing that article 1410 applies to
wills.

WHEREFORE, the lower court’s orders of May 3 and June 17, 1968 are reversed and set aside and its order
of dismissal dated January 10, 1968 is affirmed. Costs against the private respondents.

SO ORDERED.

Fernando, (Chairman), Barredo, Antonio and Santos, JJ., concur.

Concepcion Jr., J., is on leave.

8. Leviste vs CA 30 January 1989

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-29184 January 30, 1989

BENEDICTO LEVISTE, petitioner,

vs.
THE COURT OF APPEALS, HON. JUDGE LUIS B. REYES, COURT OF FIRST INSTANCE OF
MANILA, ROSA DEL ROSARIO, RITA BANU, CARMEN DE GUZMAN-MARQUEZ, JESUS R. DE
GUZMAN, RAMON R. DE GUZMAN, JACINTO R. DE GUZMAN and ANTONIO R. DE
GUZMAN, respondents.

Benedicto Leviste for and in his own behalf.

Gatchalian, Ignacio & Associates for respondents de Guzman.

GRIÑO-AQUINO, J.:

The issue in this case is whether or not an attorney who was engaged on a contingent fee basis
may, in order to collect his fees, prosecute an appeal despite his client's refusal to appeal the
decision of the trial court.

On September 7, 1963, the petitioner, a practicing attorney, entered into a written agreement with
the private respondent Rosa del Rosario to appear as her counsel in a petition for probate of the
holographic will of the late Maxima C. Reselva. Under the will, a piece of real property at Sales
Street, Quiapo, Manila, was bequeathed to Del Rosario. It was agreed that petitioner's contigent fee
would be thirty-five per cent (35%) of the property that Rosa may receive upon the probate of the will
(Annex "A", p. 59, Rollo).

In accordance with their agreement, Leviste performed the following services as Del Rosario's
counsel:

(1) Thoroughly researched and studied the law on probate and succession;

(2) Looked for and interviewed witnesses, and took their affidavits;

(3) Filed the petition for. probate is Special Proceeding No. 58325;

(4) Made the proper publications;

(5) Presented at the trial the following witnesses:

a) Eleuterio de Jesus
 b) Lucita de Jesus

c) Purita L. Llanes

d) Rita Banu

e) Jesus Lulod.

On August 20, 1965, Leviste received a letter from Ms. Del Rosario, informing him that she was
terminating his services as her counsel due to "conflicting interest." This consisted, according to the
letter, in petitioner's moral obligation to protect the interest of his brother-in-law, Gaudencio M.
Llanes, whom Del Rosario and the other parties in the probate proceeding intended to eject as
lessee of the property which was bequeathed to Del Rosario under the will (Annex "B", p. 60, Rollo).

On September 20, 1965, petitioner filed a "Motion to Intervene to Protect His Rights to Fees for
Professional Services." (Annex "B", p. 60, Rollo.)

In an order dated November 12, 1965 the trial court denied his motion on the ground that he had
"not filed a claim for attorney's fees nor recorded his attorney's lien." (p. 3, Rollo.)

On November 23, 1965, petitioner filed a "Formal Statement of Claim for Attorney's Fees and
Recording of Attorney's Lien,' which was noted in the court's order of December 20, 1965 (Annexes
"D" and "E", pp. 63 & 64, Rollo).

Although the order denying his motion to intervene had become final, petitioner continued to receive
copies of the court's orders, as well the pleadings of the other parties in the case. He also continued
to file pleadings. The case was submitted for decision without the respondents' evidence.

On November 23, 1966, Del Rosario and Rita Banu, the special administratrix-legatee, filed a
"Motion To Withdraw Petition for Probate" alleging that Del Rosario waived her rights to the devise in
her favor and agreed that the De Guzman brothers and sisters who opposed her petition for probate,
shall inherit all the properties left by the decedent. (Annex "F", p. 65, Rollo.)

In an order of April 13, 1967 the trial court denied the motion to withdraw the petition for being
contrary to public policy (Annex "G", pp. 66-67, Rollo).

Nonetheless, on August 28, 1967, the court disallowed the will, holding that the legal requirements
for its validity were not satisfied as only two witnesses testified that the will and the testatrix's
signature were in the handwriting of Maxima Reselva.

The petitioner filed an appeal bond, notice of appeal, and record on appeal. The private respondents
filed a motion to dismiss the appeal on the ground that petitioner was not a party in interest.

The petitioner opposed the motion to dismiss his appeal, claiming that he has a direct and material
interest in the decision sought to be reviewed. He also asked that he be substituted as party-
petitioner, in lieu of his former client, Ms. Del Rosario.

On March 28, 1968, the trial judge dismissed the appeal and denied petitioner's motion for
substitution.
The petitioner filed in the Court of Appeals a petition for mandamus (CA-G.R. No. 41248) praying
that the trial court be ordered to give due course to his appeal and to grant his motion for
substitution.

On May 22, 1968, the Court of Appeals dismissed the petition for being insufficient in form and
substance as the petitioner did not appear to be the proper party to appeal the decision in Special
Proceeding No. 58325 (Annex 1, p. 77, Rollo).

Upon the denial of his motion for reconsideration, petitioner appealed by certiorari to this Court,
assigning the following errors against the Court of Appeals' resolution:

1. The Court of Appeals erred in finding that the petitioner appears not to be the
proper party to appeal the decision in Sp. Proc. No. 58325 of the Court of First
Instance of Manila.

2. Assuming the petitioner's right of appeal is doubtful, the Court of Appeals erred in
dismissing his petition for mandamus; and

3. The Court of Appeals erred in not reversing the decision in Sp. Proc. No. 58325
denying the probate of the holographic will of the late Maxima C. Reselva, said
decision being patently erroneous.

Under his first assignment of error, petitioner argues that by virtue of his contract of services with Del
Rosario, he is a creditor of the latter, and that under Article 1052 of the Civil Code which provides:

ART. 1052. If the heir repudiates the inheritance to the prejudice of his own creditors,
the latter may petition the court to authorize them to accept it in the name of the heir.

The acceptance shall benefit the creditors only to an extent sufficient to cover the
amount of their credits. The excess, should there be any, shall in no case pertain to
the renouncer, but shall be adjudicated to the persons to whom, in accordance with
the rules established in this Code, it may belong.

he has a right to accept for his client Del Rosario to the extent of 35% thereof the devise in her favor
(which she in effect repudiated) to protect his contigent attorney's fees.

The argument is devoid of merit. Article 1052 of the Civil Code does not apply to this case. That legal
provision protects the creditor of a repudiating heir. Petitioner is not a creditor of Rosa del Rosario.
The payment of his fees is contingent and dependent upon the successful probate of the holographic
will. Since the petition for probate was dismissed by the lower court, the contingency did not occur.
Attorney Leviste is not entitled to his fee.

Furthermore, Article 1052 presupposes that the obligor is an heir. Rosa del Rosario is not a legal heir
of the late Maxima C. Reselva. Upon the dismissal of her petition for probate of the decedent's will,
she lost her right to inherit any part of the latter's estate. There is nothing for the petitioner to accept
in her name.

This Court had ruled in the case of Recto vs. Harden, 100 Phil. 1427, that "the contract (for
contingent attorney's fees) neither gives, nor purports to give, to the appellee (lawyer) any right
whatsoever, personal or real, in and to her (Mrs. Harden's) aforesaid share in the conjugal
partnership. The amount thereof is simply a basis for the computation of said fees."
The Court of Appeals did not err in dismissing the petition for mandamus, for while it is true that, as
contended by the petitioner, public policy favors the probate of a will, it does not necessarily follow
that every will that is presented for probate, should be allowed. The law lays down procedures which
should be observed and requisites that should be satisfied before a will may be probated. Those
procedures and requirements were not followed in this case resulting in the disallowance of the will.
There being no valid will, the motion to withdraw the probate petition was inconsequential.

Petitioner was not a party to the probate proceeding in the lower court. He had no direct interest in
the probate of the will. His only interest in the estate is an indirect interest as former counsel for a
prospective heir. In Paras vs. Narciso, 35 Phil. 244, We had occassion to rule that one who is only
indirectly interested in a will may not interfere in its probate. Thus:

... the reason for the rule excluding strangers from contesting the will, is not that
thereby the court maybe prevented from learning facts which would justify or
necessitate a denial of probate, but rather that the courts and the litigants should not
be molested by the intervention in the proceedings of persons with no interest in the
estate which would entitle them to be heard with relation thereto. (Paras vs. Narciso,
35 Phil. 244, 246.)

Similary, in Morente vs. Firmalino, 40 O.G. 21st Supp. 1, We held:

We are of the opinion that the lower court did not err in holding that notice of an
attorney's lien did not entitle the attorney-appellant to subrogate himself in lieu of his
client. It only gives him the right to collect a certain amount for his services in case
his client is awarded a certain sum by the court.

WHEREFORE, the petition for certiorari is denied for lack of merit. Costs against the petitioner.

SO ORDERED.

Narvasa, Cruz, Gancayco and Medialdea, JJ, concur.