G.R. No. L-40502 November 29, 1976 incomplete misrepresentations; that Virginia G.
incomplete misrepresentations; that Virginia G. Fule has adverse interest against the
VIRGINIA GARCIA FULE, and HONORABLE SEVERO A. MALVAR, Presiding Judge, Court
of First Instance of Laguna, Branch Vl, petitioners,
vs.
THE HONORABLE COURT OF APPEALS, * PRECIOSA B. GARCIA and AGUSTINA B.
GARCIA, respondents.
G.R. No. L-42670 November 29, 1976
VIRGINIA GARCIA FULE, petitioner,
vs.
HONORABLE ERNANI C. PAÑO, Presiding Judge of Court of First Instance of Rizal,
Quezon City, Branch XVIII, and PRECIOSA B. GARCIA, respondents.
Francisco Carreon for petitioners.
Augusto G. Gatmaytan for private respondents.
MARTIN, J.:
These two interrelated cases bring to Us the question of what the word "resides" in
Section 1, Rule 73 of the Revised Rules Of Court, referring to the situs of the settlement
of the estate of deceased persons, means. Additionally, the rule in the appointment of a
special administrator is sought to be reviewed.
On May 2, 1973, Virginia G. Fule filed with the Court of First Instance of Laguna, at
Calamba, presided over by Judge Severo A. Malvar, a petition for letters of
administration, docketed as Sp. Proc. No. 27-C, alleging, inter alia, "that on April 26, 1973,
Amado G. Garcia, a property owner of Calamba, Laguna, died intestate in the City of
Manila, leaving real estate and personal properties in Calamba, Laguna, and in other
places, within the jurisdiction of the Honorable Court." At the same time, she moved
ex parte for her appointment as special administratrix over the estate. On even date, May
2, 1973, Judge Malvar granted the motion.
A motion for reconsideration was filed by Preciosa B. Garcia on May 8, 1973, contending
that the order appointing Virginia G. Fule as special administratrix was issued without
jurisdiction, since no notice of the petition for letters of administration has been served
upon all persons interested in the estate; there has been no delay or cause for delay in
the proceedings for the appointment of a regular administrator as the surviving spouse of
Amado G. Garcia, she should be preferred in the appointment of a special administratrix;
and, Virginia G. Fule is a debtor of the estate of Amado G. Garcia. Preciosa B. Garcia,
therefore, prayed that she be appointed special administratrix of the estate, in lieu of
Virginia G. Fule, and as regular administratrix after due hearing.
While this reconsideration motion was pending resolution before the Court, Preciosa B.
Garcia filed on May 29, 1973 a motion to remove Virginia G. Fule as special administratrix
alleging, besides the jurisdictional ground raised in the motion for reconsideration of May
8, 1973 that her appointment was obtained through erroneous, misleading and/or
estate; and that she has shown herself unsuitable as administratrix and as officer of the
court.
In the meantime, the notice of hearing of the petition for letters of administration filed by
Virginia G. Fule with the Court of First Instance of Calamba, Laguna, was published on
May 17, 24, and 31, 1973, in the Bayanihan, a weekly publication of general circulation in
Southern Luzon.
On June 6, 1973, Preciosa B. Garcia received a "Supplemental Petition for the
Appointment of Regular Administrator ' filed by Virginia G. Fule. This supplemental
petition modified the original petition in four aspects: (1) the allegation that during the
lifetime of the deceased Amado G. Garcia, he was elected as Constitutional Delegate for
the First District of Laguna and his last place of residence was at Calamba, Laguna; (2)
the deletion of the names of Preciosa B. Garcia and Agustina Garcia as legal heirs of
Amado G. Garcia; (3) the allegation that Carolina Carpio, who was simply listed as heir in
the original petition, is the surviving spouse of Amado G. Garcia and that she has
expressly renounced her preferential right to the administration of the estate in favor of
Virginia G. Fule; and (4) that Virginia G. Fule be appointed as the regular administratrix.
The admission of this supplemental petition was opposed by Preciosa B. Garcia for the
reason, among others, that it attempts to confer jurisdiction on the Court of First Instance
of Laguna, of which the court was not possessed at the beginning because the original
petition was deficient.
On July 19, 1973, Preciosa B. Garcia filed an opposition to the original and supplemental
petitions for letters of administration, raising the issues of jurisdiction, venue, lack of
interest of Virginia G. Fule in the estate of Amado G. Garcia, and disqualification of
Virginia G Fule as special administratrix.
An omnibus motion was filed by Virginia G. Fule on August 20, 1973, praying for authority
to take possession of properties of the decedent allegedly in the hands of third persons
as well as to secure cash advances from the Calamba Sugar Planters Cooperative
Marketing Association, Inc. Preciosa B. Garcia opposed the motion, calling attention to
the limitation made by Judge Malvar on the power of the special administratrix, viz., "to
making an inventory of the personal and real properties making up the state of the
deceased."
However, by July 2, 1973, Judge Malvar and already issued an order, received by
Preciosa B. Garcia only on July 31, 1973, denying the motion of Preciosa B. Garcia to
reconsider the order of May 2, 1973, appointing Virginia G. Fule as special administratrix,
and admitting the supplementation petition of May 18,1973.
On August 31, 1973, Preciosa B. Garcia moved to dismiss the petition, because (1)
jurisdiction over the petition or over the parties in interest has not been acquired by the
court; (2) venue was improperly laid; and (3) Virginia G. Fule is not a party in interest as
she is not entitled to inherit from the deceased Amado G. Garcia.
On September 28, 1973, Preciosa B. Garcia filed a supplemental motion to substitute
Virginia G. Fule as special administratrix, reasoning that the said Virginia G. Fule
admitted before before the court that she is a full-blooded sister of Pablo G. Alcalde, an
illegitimate son of Andrea Alcalde, with whom the deceased Amado G. Garcia has no
relation.
Three motions were filed by Preciosa B. Garcia on November 14, 1973, one, to enjoin the
special administratrix from taking possession of properties in the hands of third persons
which have not been determined as belonging to Amado G. Garcia; another, to remove
the special administratrix for acting outside her authority and against the interest of the
estate; and still another, filed in behalf of the minor Agustina B. Garcia, to dismiss the
petition for want of cause of action, jurisdiction, and improper venue.
On November 28, 1973, Judge Malvar resolved the pending omnibus motion of Virgina G.
Fule and the motion to dismiss filed by Preciosa B. Garcia. Resolving the motion to
dismiss, Judge Malvar ruled that the powers of the special administratrix are those
provided for in Section 2, Rule 80 of the Rules of Court, 1subject only to the previous
qualification made by the court that the administration of the properties subject of the
marketing agreement with the Canlubang Sugar Planters Cooperative Marketing
Association should remain with the latter; and that the special administratrix had already
been authorized in a previous order of August 20, 1973 to take custody and possession of
all papers and certificates of title and personal effects of the decedent with the Canlubang
Sugar Planters Cooperative Marketing Association, Inc. Ramon Mercado, of the
Canlubang Sugar Planters Cooperative Marketing Association, Inc., was ordered to
deliver to Preciosa B. Garcia all certificates of title in her name without any qualifying
words like "married to Amado Garcia" does not appear. Regarding the motion to dismiss,
Judge Malvar ruled that the issue of jurisdiction had already been resolved in the order of
July 2, 1973, denying Preciosa B. Garcia's motion to reconsider the appointment of
Virginia G. Fule and admitting the supplemental petition, the failure of Virginia G. Fule to
allege in her original petition for letters of administration in the place of residence of the
decedent at the time of his death was cured. Judge Malvar further held that Preciosa B.
Garcia had submitted to the jurisdiction of the court and had waived her objections
thereto by praying to be appointed as special and regular administratrix of the estate.
An omnibus motion was filed by Preciosa B. Garcia on December 27, 1973 to clarify or
reconsider the foregoing order of Judge Malvar, in view of previous court order limiting
the authority of the special administratrix to the making of an inventory. Preciosa B.
Garcia also asked for the resolution of her motion to dismiss the petitions for lack of
cause of action, and also that filed in behalf of Agustina B. Garcia. Resolution of her
motions to substitute and remove the special administratrix was likewise prayed for.
On December 19, 1973, Judge Malvar issued two separate orders, the first, denying
Preciosa B. Garcia's motions to substitute and remove the special administratrix, and the
second, holding that the power allowed the special administratrix enables her to conduct
and submit an inventory of the assets of the estate.
On January 7, 1974, Preciosa B. Garcia moved for reconsideration of the foregoing orders
of November 28, 1973 and December 19, 1973, insofar as they sustained or failed to rule
on the issues raised by her: (a) legal standing (cause of action) of Virginia G. Fule; (b)
venue; (c) jurisdiction; (d) appointment, qualification and removal of special
administratrix; and (e) delivery to the special administratrix of checks and papers and
effects in the office of the Calamba Sugar Planters Cooperative Marketing Association,
Inc.
On March 27, 1973, Judge Malvar issued the first questioned order denying Preciosa B.
Garcia's motion for reconsideration of January 7, 1974. On July 19, 1974, Judge Malvar
issued the other three questioned orders: one, directing Ramon Mercado, of the Calamba
Sugar Planters Cooperative Marketing Association, Inc., to furnish Virginia G. Fule, as
special administratrix, copy of the statement of accounts and final liquidation of sugar
pool, as well as to deliver to her the corresponding amount due the estate; another,
directing Preciosa B. Garcia to deliver to Virginia G. Fule two motor vehicles presumably
belonging to the estate; and another, directing Ramon Mercado to deliver to the court all
certificates of title in his possession in the name of Preciosa B. Garcia, whether qualified
with the word "single" or "married to Amado Garcia."
During the hearing of the various incidents of this case (Sp. Proc. 27-C) before Judge
Malvar, 2 Virginia G. Fule presented the death certificate of Amado G. Garcia showing that
his residence at the time of his death was Quezon City. On her part, Preciosa B. Garcia
presented the residence certificate of the decedent for 1973 showing that three months
before his death his residence was in Quezon City. Virginia G. Fule also testified that
Amado G. Garcia was residing in Calamba, Laguna at the time of his death, and that he
was a delegate to the 1971 Constitutional Convention for the first district of Laguna.
On July 26, 1974, Preciosa B. Garcia and Agustina B. Garcia commenced a special action
for certiorari and/or prohibition and preliminary injunction before the Court of Appeals,
docketed as CA-G.R. No. 03221-SP. primarily to annul the proceedings before Judge
Malvar in Sp. Proc. No. 27-C of the Court of First Instance of Laguna, or, in the alternative,
to vacate the questioned four orders of that court, viz., one dated March 27, 1974, denying
their motion for reconsideration of the order denying their motion to dismiss the criminal
and supplemental petitions on the issue, among others, of jurisdiction, and the three
others, all dated July 19, 1974, directing the delivery of certain properties to the special
administratrix, Virginia G. Fule, and to the court.
On January 30, 1975, the Court of Appeals rendered judgment annulling the proceedings
before Judge Severo A. Malvar in Sp. Proc. 27-C of the Court of First Instance of Calamba,
Laguna, for lack of jurisdiction.
Denied of their motion for reconsideration on March 31, 1975, Virginia G. Fule forthwith
elevated the matter to Us on appeal by certiorari. The case was docketed as G.R. No. L-
40502.
However, even before Virginia G. Fule could receive the decision of the Court of Appeals,
Preciosa B. Garcia had already filed on February 1, 1975 a petition for letters of
administration before the Court of First Instance of Rizal, Quezon City Branch, docketed
as Sp. Proc. No. Q-19738, over the same intestate estate of Amado G. Garcia. On February
10, 1975, Preciosa B. Garcia urgently moved for her appointment as special administratrix
of the estate. Judge Vicente G. Ericta granted the motion and appointed Preciosa B.
Garcia as special administratrix upon a bond of P30,000.00. Preciosa B. Garcia qualified
and assumed the office.
For the first time, on February 14, 1975, Preciosa B. Garcia informed Judge Ericta of the
pendency of Sp. Proc. No. 27-C before Judge Malvar of the Court of First Instance of
Laguna, and the annulment of the proceedings therein by the Court of Appeals on
January 30, 1975. She manifested, however, her willingness to withdraw Sp. Proc. Q-
19738 should the decision of the Court of Appeals annulling the proceedings before the
Court of First Instance of Laguna in Sp. Proc. No. 27-C have not yet become final, it being
the subject of a motion for reconsideration.
On March 10, 1973, Judge Ericta ordered the suspension of the proceedings before his
court until Preciosa B. Garcia inform the court of the final outcome of the case pending
before the Court of Appeals. This notwithstanding, Preciosa B. Garcia filed on December
11, 1975, an "Urgent Petition for Authority to Pay Estate Obligations."
On December 13, 1975, Virginia G. Fule filed a "Special Appearance to Question Venue
and Jurisdiction" reiterating the grounds stated in the previous special appearance of
March 3, 1975, and calling attention that the decision of the Court of Appeals and its
resolution denying the motion for reconsideration had been appealed to this Court; that
the parties had already filed their respective briefs; and that the case is still pending
before the Court.
On December 17, 1975, Judge Ernani Cruz Pano, who succeeded Judge Ericta, issued an
order granting Preciosa B. Garcia's "Urgent Petition for Authority to Pay Estate
Obligations" in that the payments were for the benefit of the estate and that there hangs a
cloud of doubt on the validity of the proceedings in Sp. Proc. No. 27-C of the Court of
First Instance of Laguna.
A compliance of this Order was filed by Preciosa B. Garcia on January 12,1976.
On February 4,1974, VIRGINIA G. FULE instituted G.R. No. L-42670, a petition for certiorari
with temporary restraining order, to annul the proceedings in Sp. Proc. No. Q-19738 and
to restrain Judge Ernani Cruz Paño from further acting in the case. A restraining order
was issued on February 9, 1976.
We dismiss the appeal in G.R. No. L-40502 and the petition for certiorari in G.R. No. L-
42670 for the reasons and considerations hereinafter stated.
1. Section 1, Rule 73 of the Revised Rules of Court provides: "If the decedent is an
inhabitant of the Philippines at the time of his death, whether a citizen or an alien, his will
shall be proved, or letters of administration granted, and his estate settled, in the Court of
First Instance in the province in which he resides at the time of his death, and if he is an
inhabitant of a foreign country, the Court of First Instance of any province in which he
had estate. The court first taking cognizance of the settlement of the estate of a decedent,
shall exercise jurisdiction to the exclusion of all other courts. The jurisdiction assumed
by a court, so far as it depends on the place of residence of the decedent, or of the
location of his estate, shall not be contested in a suit or proceeding, except in an appeal
from that court, in the original case, or when the want of jurisdiction appears on the
record." With particular regard to letters of administration, Section 2, Rule 79 of the
Revised Rules of Court demands that the petition therefor should affirmatively show the
existence of jurisdiction to make the appointment sought, and should allege all the
necessary facts, such as death, the name and last residence of the decedent, the
existence, and situs if need be, of assets, intestacy, where this is relied upon, and the
right of the person who seeks administration, as next of kin, creditor, or otherwise, to be
appointed. The fact of death of the intestate and his last residence within the country are
foundation facts upon which all subsequent proceedings in the administration of the
estate rest, and that if the intestate was not an inhabitant of the state at the time of his
death, and left no assets in the state, no jurisdiction is conferred on the court to grant
letters of administration. 3
The aforequoted Section 1, Rule 73 (formerly Rule 75, Section 1), specifically the clause "so far
as it depends on the place of residence of the decedent, or of the location of the estate," is in
reality a matter of venue, as the caption of the Rule indicates: "Settlement of Estate of Deceased
Persons. Venue and Processes. 4 It could not have been intended to define the jurisdiction over
the subject matter, because such legal provision is contained in a law of procedure dealing
merely with procedural matters. Procedure is one thing; jurisdiction over the subject matter is
another. The power or authority of the court over the subject matter "existed and was fixed
before procedure in a given cause began." That power or authority is not altered or changed by
procedure, which simply directs the manner in which the power or authority shall be fully and
justly exercised. There are cases though that if the power is not exercised conformably with the
provisions of the procedural law, purely, the court attempting to exercise it loses the power to
exercise it legally. However, this does not amount to a loss of jurisdiction over the subject
matter. Rather, it means that the court may thereby lose jurisdiction over the person or that the
judgment may thereby be rendered defective for lack of something essential to sustain it. The
appearance of this provision in the procedural law at once raises a strong presumption that it
has nothing to do with the jurisdiction of the court over the subject matter. In plain words, it is just
a matter of method, of convenience to the parties. 5
The Judiciary Act of 1948, as amended, confers upon Courts of First Instance jurisdiction over
all probate cases independently of the place of residence of the deceased. Because of the
existence of numerous Courts of First Instance in the country, the Rules of Court, however,
purposedly fixes the venue or the place where each case shall be brought. A fortiori, the place of
residence of the deceased in settlement of estates, probate of will, and issuance of letters of
administration does not constitute an element of jurisdiction over the subject matter. It is merely
constitutive of venue. And it is upon this reason that the Revised Rules of Court properly
considers the province where the estate of a deceased person shall be settled as "venue." 6
2. But, the far-ranging question is this: What does the term "resides" mean? Does it refer to the
actual residence or domicile of the decedent at the time of his death? We lay down the doctrinal
rule that the term "resides" connotes ex vi termini "actual residence" as distinguished from "legal
residence or domicile." This term "resides," like, the terms "residing" and "residence," is elastic
and should be interpreted in the light of the object or purpose of the statute or rule in which it is
employed. 7 In the application of venue statutes and rules — Section 1, Rule 73 of the Revised
Rules of Court is of such nature — residence rather than domicile is the significant factor. Even
where the statute uses the word "domicile" still it is construed as meaning residence and not
domicile in the technical sense. Some cases make a distinction between the terms "residence"
and "domicile" but as generally used in statutes fixing venue, the terms are synonymous, and
convey the same meaning as the term "inhabitant." 8 In other words, "resides" should be viewed
or understood in its popular sense, meaning, the personal, actual or physical habitation of a
person, actual residence or place of abode. It signifies physical presence in a place and actual
stay thereat. In this popular sense, the term means merely residence, that is, personal
residence, not legal residence or domicile. 9Residence simply requires bodily presence as
an inhabitant in a given place, while domicile requires bodily presence in that place and also an
intention to make it one's domicile. 10 No particular length of time of residence is required though;
however, the residence must be more than temporary. 11
3. Divergent claims are maintained by Virginia G. Fule and Preciosa B. Garcia on the residence
of the deceased Amado G. Garcia at the time of his death. In her original petition for letters of
administration before the Court of First Instance of Calamba, Laguna, Virginia G. Fule measely
stated "(t)hat on April 26,1973, Amado G. Garcia, a property owner of Calamba, Laguna, died
intestate in the City of Manila, leaving real estate and personal properties in Calamba, Laguna,
and in other places within the jurisdiction of this Honorable Court." Preciosa B. Garcia assailed
the petition for failure to satisfy the jurisdictional requirement and improper laying of venue. For
her, the quoted statement avers no domicile or residence of the deceased Amado G. Garcia. To
say that as "property owner of Calamba, Laguna," he also resides in Calamba, Laguna, is,
according to her, non sequitur. On the contrary, Preciosa B. Garcia claims that, as appearing in
his death certificate presented by Virginia G. Fule herself before the Calamba court and in other
papers, the last residence of Amado G. Garcia was at 11 Carmel Avenue, Carmel Subdivision,
Quezon City. Parenthetically, in her amended petition, Virginia G. Fule categorically alleged that
Amado G. Garcia's "last place of residence was at Calamba, Laguna."
On this issue, We rule that the last place of residence of the deceased Amado G. Garcia was at
11 Carmel Avenue, Carmel Subdivision, Quezon City, and not at Calamba, Laguna. A death
certificate is admissible to prove the residence of the decedent at the time of his death. 12 As it
is, the death certificate of Amado G. Garcia, which was presented in evidence by Virginia G.
Fule herself and also by Preciosa B. Garcia, shows that his last place of residence was at 11
Carmel Avenue, Carmel Subdivision, Quezon City. Aside from this, the deceased's residence
certificate for 1973 obtained three months before his death; the Marketing Agreement and Power
of Attorney dated November 12, 1971 turning over the administration of his two parcels of sugar
land to the Calamba Sugar Planters Cooperative Marketing Association, Inc.; the Deed of
Donation dated January 8, 1973, transferring part of his interest in certain parcels of land in
Calamba, Laguna to Agustina B. Garcia; and certificates of titles covering parcels of land in
Calamba, Laguna, show in bold documents that Amado G. Garcia's last place of residence was
at Quezon City. Withal, the conclusion becomes imperative that the venue for Virginia C. Fule's
petition for letters of administration was improperly laid in the Court of First Instance of Calamba,
Laguna. Nevertheless, the long-settled rule is that objection to improper venue is subject to
waiver. Section 4, Rule 4 of the Revised Rules of Court states: "When improper venue is not
objected to in a motion to dismiss, it is deemed waived." In the case before Us the Court of
Appeals had reason to hold that in asking to substitute Virginia G. Fule as special administratrix,
Preciosa B. Garcia did not necessarily waive her objection to the jurisdiction or venue assumed
by the Court of First Instance of Calamba, Laguna, but availed of a mere practical resort to
alternative remedy to assert her rights as surviving spouse, while insisting on the enforcement of
the Rule fixing the proper venue of the proceedings at the last residence of the decedent.
4. Preciosa B. Garcia's challenge to Virginia G. Fule's appointment as special administratrix is
another issue of perplexity. Preciosa B. Garcia claims preference to the appointment as
surviving spouse. Section 1 of Rule 80 provides that "(w)hen there is delay in granting letters
testamentary or of administration by any cause including an appeal from the allowance or
disallowance of a will, the court may appoint a special administrator to take possession and
charge of the estate of the deceased until the questions causing the delay are decided and
executors or administrators appointed. 13 Formerly, the appointment of a special administrator
was only proper when the allowance or disallowance of a will is under appeal. The new Rules,
however, broadened the basis for appointment and such appointment is now allowed when there
is delay in granting letters testamentary or administration by any cause e.g., parties cannot
agree among themselves. 14 Nevertheless, the discretion to appoint a special administrator or
not lies in the probate court. 15 That, however, is no authority for the judge to become partial, or
to make his personal likes and dislikes prevail over, or his passions to rule, his judgment.
Exercise of that discretion must be based on reason, equity, justice and legal principle. There is
no reason why the same fundamental and legal principles governing the choice of a regular
administrator should not be taken into account in the appointment of a special
administrator. 16 Nothing is wrong for the judge to consider the order of preference in the
appointment of a regular administrator in appointing a special administrator. After all, the
consideration that overrides all others in this respect is the beneficial interest of the appointee in
the estate of the decedent. 17 Under the law, the widow would have the right of succession over
a portion of the exclusive property of the decedent, besides her share in the conjugal
partnership. For such reason, she would have as such, if not more, interest in administering the
entire estate correctly than any other next of kin. The good or bad administration of a property
may affect rather the fruits than the naked ownership of a property. 18
Virginia G. Fule, however, disputes the status of Preciosa B. Garcia as the widow of the late
Amado G. Garcia. With equal force, Preciosa B. Garcia maintains that Virginia G. Fule has no
relation whatsoever with Amado G. Garcia, or that, she is a mere illegitimate sister of the latter,
incapable of any successional rights. 19 On this point, We rule that Preciosa B. Garcia is prima
facie entitled to the appointment of special administratrix. It needs be emphasized that in the
issuance of such appointment, which is but temporary and subsists only until a regular
administrator is appointed, 20 the appointing court does not determine who are entitled to share
in the estate of the decedent but who is entitled to the administration. The issue of heirship is
one to be determined in the decree of distribution, and the findings of the court on the
relationship of the parties in the administration as to be the basis of distribution. 21The
preference of Preciosa B. Garcia is with sufficient reason. In a Donation Inter Vivos executed by
the deceased Amado G. Garcia on January 8, 1973 in favor of Agustina B. Garcia, he indicated
therein that he is married to Preciosa B. Garcia. 22 In his certificate of candidacy for the office of
Delegate to the Constitutional Convention for the First District of Laguna filed on September 1,
1970, he wrote therein the name of Preciosa B. Banaticla as his spouse. 23 Faced with these
documents and the presumption that a man and a woman deporting themselves as husband and
wife have entered into a lawful contract of marriage, Preciosa B. Garcia can be reasonably
believed to be the surviving spouse of the late Amado G. Garcia. Semper praesumitur pro
matrimonio. 24
5. Under these circumstances and the doctrine laid down in Cuenco vs. Court of Appeals, 25 this
Court under its supervisory authority over all inferior courts may properly decree that venue in
the instant case was properly assumed by and transferred to Quezon City and that it is in the
interest of justice and avoidance of needless delay that the Quezon City court's exercise of
jurisdiction over the settlement of the estate of the deceased Amado G. Garcia and the
appointment of special administratrix over the latter's estate be approved and authorized and the
Court of First Instance of Laguna be disauthorized from continuing with the case and instead be
required to transfer all the records thereof to the Court of First Instance of Quezon City for the
continuation of the proceedings.
6. Accordingly, the Order of Judge Ernani Cruz Pano of December 17, 1975, granting the
"Urgent Petition for Authority to Pay Estate Obligations" filed by Preciosa B. Garcia in Sp. Proc.
No. Q-19738, subject matter of G.R. No. L-42670, and ordering the Canlubang Sugar Estate to
deliver to her as special administratrix the sum of P48,874.70 for payment of the sum of estate
obligations is hereby upheld.
IN VIEW OF THE FOREGOING, the petitions of petitioner Virginia Garcia Fule in G.R. No. L-
40502 and in G.R. No. L42670 are hereby denied, with costs against petitioner.
SO ORDERED.
G.R. No. L-8409 December 28, 1956
In the Matter of the Intestate of the deceased Andres Eusebio. EUGENIO
EUSEBIO, petitioner-appellee,
vs.
AMANDA EUSEBIO, JUAN EUSEBIO, DELFIN EUSEBIO, VICENTE EUSEBIO, and CARLOS
EUSEBIO,oppositors-appellants.
Francisco M. Ramos and Valeriano Silva for appellee.
Filemon Cajator for appellants.
CONCEPCION, J.:
This case instituted on November 16, 1953, when Eugenio Eusebio filed with the Court of First
Instance of Rizal, a petition for his appointment as administrator of the estate of his father,
Andres Eusebio, who died on November 28, 1952, residing, according to said petition, in the City
of Quezon. On December 4, 1953, Amanda, Virginia, Juan, Delfin, Vicente and Carlos, all
surnamed Eusebio, objected to said petition, stating that they are illegitimate children of the
deceased and that the latter was domiciled in San Fernando, Pampanga, and praying, therefore,
that the case be dismissed upon the ground that venue had been improperly filed. By an order,
dated March 10, 1954, said court overruled this objection and granted said petition. Hence, the
case is before us on appeal taken, from said order, by Amanda Eusebio, and her
aforementioned sister and brothers.
The appeal hinges on the situs of the residence of Andres Eusebio on November 28, 1952, for
Rule 75, section 1, of the Rules of Court, provides:
Where estate of deceased persons settled. — If the decedent is an inhabitant of the Philippines
at the time of his death, whether a citizens or an alien, his will shall be proved, or letters of
administration granted, and his estate, in the Court of First Instance in the province in which he
resides at the time of his death, and if he is an inhabitant of a foreign country, the Court of First
Instance of any province in which he had estate. The court first taking cognizance of the
settlement of the estate of a decedent, shall exercise jurisdiction to the exclusion of all other
courts. The jurisdiction assumed by a court, so far as it depends on the place of residence of the
decedent, or of the location of his estate, shall not be contested in a suit or proceeding, except in
an appeal from that court, in the original case, or when the want of jurisdiction appears on the
record.
It is not disputed that up to, at least, October 29, 1952, Andres Eusebio was, and had always
been, domiciled in San Fernando, Pampanga, where he had his home, as well as some other
properties. Inasmuch as his heart was in bad condition and his son, Dr. Jesus Eusebio, who
treated him, resided at No. 41 P. Florentino St., Quezon City, on October 29, 1952, Andres
Eusebio bought a house and lot at 889-A España Extention, in said City (Exhibit 2). While
transferring his belongings to this house, soon thereafter, the decedent suffered a stroke
(probably heart failure), for which reason Dr. Eusebio took him to his (Dr. Eusebio's)
aforementioned residence, where the decedent remained until he was brought to the UST
Hospital, in the City of Manila, sometimes before November 26, 1952. On this date, he
contracted marriage in articulo mortis with his common law wife, Concepcion Villanueva, in said
hospital. Two (2) days later, he died therein of "acute left ventricular failure secondary to
hypertensive heart disease", at the age of seventy-four (74) years (Exhibit A). Consequently, he
never stayed or even slept in said house at España Extention.
It being apparent from the foregoing that the domicile of origin of the decedent was San
Fernando, Pampanga, where he resided for over seventy (70) years, the presumption is that he
retained such domicile, and, hence, residence, in the absence of satisfactory proof to the
contrary, for it is well-settled that "a domicile once acquired is retained until a new domicile is
gained" (Minor, Conflict of Laws, p.70; Restatement of the Law on Conflict of Laws, p. 47; In re
Estate of Johnson, 192 Iowa, 78). Under the circumstances surrounding the case at bar, if
Andres Eusebio established another domicile, it must have been one of choice, for which the
following conditions are essential, namely: (1) capacity to choose and freedom of choice; (2)
physical presence at the place chosen; and (3) intention to stay therein permanently (Minor,
Conflict of Laws, pp. 109-110; Googrich, Conflict of Laws, p. 169; Velilla vs. Posadas, 62 Phil.,
624; Zuellig vs. Republic of the Philippines, 46 Off. Gaz. Suppl. No. 11, p. 220). Admittedly, the
decedent was juridically capable of choosing a domicile and had been in Quezon City several
days prior to his demise. Thus, the issue narrows down to whether he intended to stay in that
place permanently.
There is no direct evidence of such intent. Neither does the decedent appears to have
manifested his wish to live indefinitely in said city. His son, petitioner-appellee, who took the
witness stand, did not testify thereon, despite the allegation, in his answer to the aforemention,
opposition of the appellants herein, that "the deceased (had) decided to reside . . . for the rest of
his life, in Quezon City". Moreover, said appellee did not introduce the testimony of his legitimate
full brother and son of the decedent, Dr. Jesus Eusebio, upon whose advice, presumably, the
house and lot at No. 889-A España Extention was purchased, and who, therefore, might have
cast some light on his (decedent's) purpose in buying said property. This notwithstanding, the
lower court held that the decedent's intent to stay permanently in Quezon City is "manifest" from
the acquisition of said property and the transfer of his belonging thereto. This conclusion is
untenable.lawphil.net
The aforementioned house and lot were bought by the decedent because he had been adviced
to do so "due to his illness", in the very words of herein appellee. It is not improbable — in fact,
its is very likely — that said advice was given and followed in order that the patient could be near
his doctor and have a more effective treatment. It is well settled that "domicile is not commonly
changed by presence in a place merely for one's own health", even if coupled with "knowledge
that one will never again be able, on account of illness, to return home." (The Conflict of Laws,
by Beale, Vol. I, pp. 172-173; see, also, Shenton vs. Abbott, Md., 15., A. 2d. 906;
U.S. vs. Knight, D. C. Mont., 291 Fed. 129).
Again, the decedent did not part with, or alienate, his house in San Fernando, Pampanga.
Moreover, some of his children, who used to live with him in San Fernando, Pampanga,
remained in that municipality. Then, again, in the deed Exhibit 2, by virtue of which said property
at No. 889-A España Extention, Quezon City, was conveyed to him, on October 29, 1952,
or less than a month before his death, the decedent gave San Fernando, Pampanga, as his
residence. Similarly, the "A" and "B" residence certificates used by the decedent in
aknowledging said Exhibit 2, before a notary public, was issued in San Fernando, Pampanga.
Lastly, the marriage contract Exhibit 1, signed by the deceased when he was married, in articulo
mortis, to Concepcion Villanueva, at the UST Hospital, on November 26, 1952, or two (2) days
prior to his demise, stated that his residence is San Fernando, Pampanga. It is worthy of notice
that Alfonso Eusebio, one of the legitimate full brothers of the herein appellee, was a witness to
said wedding, thus indicating that the children of the deceased by his first marriage, including
said appellee, were represented on that occasion and would have objected to said statement
about his residence, if it were false. Consequently, apart from appellee's failure to prove
satisfactory that the decedent had decided to establish his home in Quezon City, the acts of the
latter, shortly and immediately before his death, prove the contrary. At any rate, the presumption
in favor of the retention of the old domicile 1— which is particularly strong when the domicile is
one of the origin 2as San Fernando, Pampanga, evidently was, as regards said decedent — has
not been offset by the evidence of record.
The lower court, however, rejected said Exhibits 1 and 2, upon being offered in evidence, and
refused to entertain the same in the order appealed from. The reason therefor are deducible
from its resolution in rejecting said documents during the hearing of the incident at bar. The court
then held:
Exihibits "1" and "2" are rejecting but the same may be attached to the records for whatever
action oppositors may want to take later on because until now the personality of the oppositors
has not been established whether or not they have a right to intervene in this case, and the
Court cannot pass upon this question as the oppositors refuse to submit to the jurisdiction of this
Court and they maintain that these proceedings should be dismissed. (P. 10, t. s. n.)
In short, the lower court believed that said documents should not be admitted in evidence before
appellants had established their "personality" to intervene in the case, referring seemingly to
their filiation. When appellants, however, sought, during said hearing, to establish their relation
with the deceased, as his alleged illegitimate children, His Honor, the trial Judge sustained
appellee's objection thereto stating:
Your stand until now is to question the jurisdiction of this Court, and it seems that you are now
trying to prove the status of your client; you are leading so that. The main point here is your
contention that the deceased was never a resident of Quezon City and that is why I allowed you
to cross-examine. If you are trying to establish the status of the oppositors, I will sustain the
objection, unless you want to submit to the jurisdiction of the Court. This is not yet the time to
declare who are persons who should inherit. (p. 1, t. s. n.)
Thus, the lower court refused to consider appellant's evidence on the domicile of the decedent,
because of their alleged lack of "personality", but, when tried to establish such "personality", they
were barred from doing so on account of the question of venue raised by him. We find ourselves
unable to sanction either the foregoing procedure adopted by the lower court or the inference it
drew from the circumstances surrounding the case.
To begin with, His Honor, the trial Judge had taken inconsistent positions. While, on the one
hand, he declared that appellants could not be permitted to introduce evidence on the residence
of the decedent, for they contested the jurisdiction of court, on the other hand, he held, in the
order appealed from, that, by cross-examining the appellee, said appellants had submitted
themselves to the authority of the court.
What is more, this conclusion is refuted by the record. At the beginning of the hearing, in the
lower court, appellants' counsel announced that he would take part therein "only to question the
jurisdiction, for the purpose of dismissing this proceeding," (p. 2, t.s.n.). During the cross-
examination of petitioner herein, said counsel tried to elicit the relation between the decedent
and the appellants. As, the appellee objected thereto, the court said, addressing appellants'
counsel: "Your stand until now is to question the jurisdiction of the court. . . . It you are trying to
establish the status of the oppositors, I will sustain the objection, unless you want to submit to
the jurisdiction of the court" (p. 7, t.s.n.). Thereupon, appellants' counsel refused to do so,
stating: "I will insist on my stand." Then, too, at the conclusion of the hearing, the court rejected
Exhibits 1 and 2, for the reason that appellants "refuse to submit to the jurisdiction of this
court and they maintain that these proceedings should be dismissed." Thus, appellants specially
made of record that they were not submitting themselves to the jurisdiction of the court, except
for the purpose only of assailing the same, and the court felt that appellants were not giving up
their stand, which was, and is, a fact.
At any rate, appellants were entitled to establish facts tending to prove, not only their right to
object to appellee's petition, but, also, that venue had been laid improperly. Such facts were: (a)
their alleged relationship with the decedent, 3 which, if true, entitle them to proceed him under
the Civil Code of the Philippines; and (b) his alleged residence is Pampanga. In other words, the
lower court should have admitted Exhibits 1 and 2 in evidence and given thereto the proper
effect, in connection with the issue under consideration.
Appellee, however, asks: "What will happen if this case be dismissed in the Court of First
Instance of Quezon City on the ground of lack of jurisdiction or improper venue?" In this
connection, it appears that on November 14, 1953, the Clerk of the Court of First Instance of
Pampanga received a petition of appellants herein, dated November 4, 1953, for the settlement
of the "Intestate Estate of the late Don Andres Eusebio". Attached to said petition was petition
for the docketing thereof free charge, pursuant to Rule 3, section 22, of the Rules of Court. The
latter petition was granted by an order dated November 16, 1953, which was received by the
cashier of said court on November 17, 1953, on which date the case was docketed as Special
Proceedings No. 957. On December 14, 1953, Jesus, Eugenio, Amando and Alfonso, all
surnamed Eusebio (the children of the decedent by first marriage, including petitioner herein),
moved for the dismissal of said proceedings, owing to the pendency of the present case, before
the Court of First Instance of Rizal, since November 16, 1953. This motion was granted in an
order dated December 21, 1953, relying upon the above Rule 75, section 1, of the Rules of
Court, pursuant to which "the court first taking cognizance of the settlement of the estate of a
decedent, shall exercise jurisdiction to the exclusion of all other courts."
Although said order is now final, it cannot affect the outcome of the case at bar. Said order did
not pass upon the question of domicile or residence of the decedent. Moreover, in granting the
court first taking cognizance of the case exclusive jurisdiction over the same, said provision of
the Rules of Court evidently refers to cases triable before two or more courts
with concurrent jurisdiction. It could not possibly have intended to deprive a competent court of
the authority vested therein by law, merely because a similar case had been previously filed
before a court to which jurisdiction is denied by law, for the same would then be defeated by the
will of one of the parties. More specially, said provision refers mainly to non-resident decedents
who have properties in several provinces in the Philippines, for the settlement of their respective
estates may undertaken before the court of first instance of either one of said provinces, not only
because said courts then have concurrent jurisdiction — and, hence, the one first taking
cognizance of the case shall exclude the other courts — but, also, because the statement to this
effect in said section 1 of Rule 75 of the Rules of the Court immediately follows the last part of
the next preceding sentence, which deals with non-resident decedents, whose estate may
settled the court of first instance of any province in which they have properties.lawphil.net
In view, however, of the last sentence of said section, providing that:
. . . The jurisdiction assumed by a court, so far as it depends on the place of residence of the
decedent, or of the location of his estate, shall not be contested in a suit or proceedings, except
in an appeal from that court, in the original case, or when the want of jurisdiction appears on the
record.

if proceedings for the settlement of the estate of a deceased resident are instituted in two or
more courts, and the question of venue is raised before the same, the court in which the first
case was filed shall have exclusive jurisdiction to decide said issue, and we so held in the case
of Taciana Vda. De Borja vs. Tan, L-7792 (July 27, 1955). Should it be decided, in the
proceedings before the said court, that venue had been improperly laid, the case pending
therein should be dismissed and the corresponding proceedings may, thereafter, be initiated in
the proper court.

In conclusion, we find that the decedent was, at the time of his death, domiciled in San
Fernando, Pampanga; that the Court of First Instance of Rizal had no authority, therefore, to
appoint an administrator of the estate of the deceased, the venue having been laid improperly;
and that it should, accordingly, have sustained appellants' opposition and dismissed appellee's
petition.

Wherefore, the order appealed from is hereby reversed and appellee's petition is dismissed, with
costs against the appellee. It is so ordered.
G.R. No. 128314 May 29, 2002
RODOLFO V. JAO, petitioner,
vs.
COURT OF APPEALS and PERICO V. JAO, respondents.
YNARES-SANTIAGO, J.:
Rodolfo and Perico Jao were the only sons of the spouses Ignacio Jao Tayag and Andrea V.
Jao, who died intestate in 1988 and 1989, respectively. The decedents left real estate, cash,
shares of stock and other personal properties.
On April 17, 1991, Perico instituted a petition for issuance of letters of administration before the
Regional Trial Court of Quezon City, Branch 99, over the estate of his parents, docketed as
Special Proceedings No. Q-91-8507.1Pending the appointment of a regular administrator, Perico
moved that he be appointed as special administrator. He alleged that his brother, Rodolfo, was
gradually dissipating the assets of the estate. More particularly, Rodolfo was receiving rentals
from real properties without rendering any accounting, and forcibly opening vaults belonging to
their deceased parents and disposing of the cash and valuables therein.
Rodolfo moved for the dismissal of the petition on the ground of improper venue.2 He argued
that the deceased spouses did not reside in Quezon City either during their lifetime or at the time
of their deaths. The decedent’s actual residence was in Angeles City, Pampanga, where his late
mother used to run and operate a bakery. As the health of his parents deteriorated due to old
age, they stayed in Rodolfo’s residence at 61 Scout Gandia Street, Quezon City, solely for the
purpose of obtaining medical treatment and hospitalization. Rodolfo submitted documentary
evidence previously executed by the decedents, consisting of income tax returns, voter’s
affidavits, statements of assets and liabilities, real estate tax payments, motor vehicle
registration and passports, all indicating that their permanent residence was in Angeles City,
Pampanga.1âwphi1.nêt
In his opposition,3 Perico countered that their deceased parents actually resided in Rodolfo’s
house in Quezon City at the time of their deaths. As a matter of fact, it was conclusively declared
in their death certificates that their last residence before they died was at 61 Scout Gandia
Street, Quezon City.4 Rodolfo himself even supplied the entry appearing on the death certificate
of their mother, Andrea, and affixed his own signature on the said document.
Rodolfo filed a rejoinder, stating that he gave the information regarding the decedents’ residence
on the death certificates in good faith and through honest mistake. He gave his residence only
as reference, considering that their parents were treated in their late years at the Medical City
General Hospital in Mandaluyong, Metro Manila. Their stay in his house was merely transitory, in
the same way that they were taken at different times for the same purpose to Perico’s residence
at Legaspi Towers in Roxas Boulevard. The death certificates could not, therefore, be deemed
conclusive evidence of the decedents’ residence in light of the other documents showing
otherwise.5
The court required the parties to submit their respective nominees for the position. 6 Both failed to
comply, whereupon the trial court ordered that the petition be archived.7
Subsequently, Perico moved that the intestate proceedings be revived.8 After the parties
submitted the names of their respective nominees, the trial court designated Justice Carlos L.
Sundiam as special administrator of the estate of Ignacio Jao Tayag and Andrea Jao. 9
On April 6, 1994, the motion to dismiss filed by petitioner Rodolfo was denied, to wit:
A mere perusal of the death certificates of the spouses issued separately in 1988 and 1989,
respectively, confirm the fact that Quezon City was the last place of residence of the decedents.
Surprisingly, the entries appearing on the death certificate of Andrea V. Jao were supplied by
movant, Rodolfo V. Jao, whose signature appears in said document. Movant, therefore, cannot
disown his own representation by taking an inconsistent position other than his own admission.
xxx xxx xxx.
WHEREFORE, in view of the foregoing consideration, this court DENIES for lack of merit
movant’s motion to dismiss.
SO ORDERED.10
Rodolfo filed a petition for certiorari with the Court of Appeals, which was docketed as CA-G.R.
SP No. 35908. On December 11, 1996, the Court of Appeals rendered the assailed decision, the
dispositive portion of which reads:
WHEREFORE, no error, much less any grave abuse of discretion of the court a quo having been
shown, the petition for certiorari is hereby DISMISSED. The questioned order of the respondent
Judge is affirmed in toto.
SO ORDERED.11
Rodolfo’s motion for reconsideration was denied by the Court of Appeals in the assailed
resolution dated February 17, 1997.12 Hence, this petition for review, anchored on the following
grounds:
I
RESPONDENT COURT HAD DECIDED A QUESTION OF SUBSTANCE IN A WAY NOT IN
ACCORD WITH THE LAW AND IS DIRECTLY CONTRADICTORY TO THE APPLICABLE
DECISION ALREADY RENDERED BY THIS HONORABLE COURT.
II
RESPONDENT COURT ERRED IN DISREGARDING THE RULING OF THIS HONORABLE
COURT IN THE CASE OF EUSEBIO VS. EUSEBIO, 100 PHILS. 593, WHICH CLEARLY
INTERPRETED WHAT IS MEANT BY RESIDENCE IN SEC. 1 OF RULE 73 OF THE RULES
OF COURT.
III
RESPONDENT COURT ERRED IN HOLDING THAT PHYSICAL PRESENCE IN A PLACE AT
THE TIME OF DEATH IS DETERMINATIVE OF DECEDENT’S RESIDENCE RATHER THAN
THE INTENTION OF THE DECEDENTS TO ESTABLISH THEIR PERMANENT RESIDENCE IN
ANOTHER PLACE.
IV
RESPONDENT COURT ERRED IN APPLYING BY ANALOGY THE RESIDENCE
CONTEMPLATED IN SEC. 2 OF RULE 4 FOR THE PURPOSE OF SERVING SUMMONS TO
A DEFENDANT IN A PERSONAL ACTION TO THE RESIDENCE CONTEMPLATED IN SEC. 1
OF RULE 73 FOR THE PURPOSE OF DETERMINING VENUE IN THE SETTLEMENT OF THE
ESTATE OF A DECEASED.
V
RESPONDENT COURT ERRED IN GIVING MORE WEIGHT TO THE ENTRY OF PETITIONER
AND PRIVATE RESPONDENT IN THE RESPECTIVE DEATH CERTIFICATES OF THE
DECEDENTS RATHER THAN THE OVERWHELMING EVIDENCE SHOWING THE CLEAR
INTENTION OF THE DECEDENTS TO ESTABLISH THEIR PERMANENT RESIDENCE IN
ANGELES CITY.
VI
RESPONDENT COURT ERRED IN APPLYING THE PRINCIPLE OF ESTOPPEL AS AGAINST
PETITIONER WHICH CAN NOT BE MORE PERSUASIVE THAN THE CLEAR INTENTION OF
THE DECEDENTS THEMSELVES TO ESTABLISH PERMANENT RESIDENCE IN ANGELES
CITY.
VII
RESPONDENT COURT ERRED IN DISMISSING THE PETITION FOR CERTIORARI DESPITE
THE CLEAR ABUSE OF DISCRETION ON THE PART OF THE TRIAL COURT IN INSISTING
TO TAKE COGNIZANCE OF SP. PROCEEDING NO. Q-91-8507.13
The main issue before us is: where should the settlement proceedings be had --- in Pampanga,
where the decedents had their permanent residence, or in Quezon City, where they actually
stayed before their demise?
Rule 73, Section 1 of the Rules of Court states:
Where estate of deceased persons be settled. – If the decedent is an inhabitant of the
Philippines at the time of his death, whether a citizen or an alien, his will shall be proved,
or letters of administration granted, and his estate settled, in the Court of First Instance in the
province in which he resides at the time of his death, and if he is an inhabitant of a foreign
country, the Court of First Instance of any province in which he had estate. The court first taking
cognizance of the settlement of the estate of a decedent shall exercise jurisdiction to the
exclusion of all other courts. The jurisdiction assumed by a court, so far as it depends on the
place of residence of the decedent, or of the location of his estate, shall not be contested in a
suit or proceeding, except in an appeal from that court, in the original case, or when the want of
jurisdiction appears on the record. (underscoring ours)
Clearly, the estate of an inhabitant of the Philippines shall be settled or letters of administration
granted in the proper court located in the province where the decedent resides at the time of his
death.
Petitioner Rodolfo invokes our ruling in the case of Eusebio v. Eusebio, et al.,14 where we held
that the situs of settlement proceedings shall be the place where the decedent had his
permanent residence or domicile at the time of death. In determining residence at the time of
death, the following factors must be considered, namely, the decedent had: (a) capacity to
choose and freedom of choice; (b) physical presence at the place chosen; and (c) intention to
stay therein permanently.15 While it appears that the decedents in this case chose to be
physically present in Quezon City for medical convenience, petitioner avers that they never
adopted Quezon City as their permanent residence.1âwphi1.nêt
The contention lacks merit.
The facts in Eusebio were different from those in the case at bar. The decedent therein, Andres
Eusebio, passed away while in the process of transferring his personal belongings to a house in
Quezon City. He was then suffering from a heart ailment and was advised by his doctor/son to
purchase a Quezon City residence, which was nearer to his doctor. While he was able to acquire
a house in Quezon City, Eusebio died even before he could move therein. In said case, we ruled
that Eusebio retained his domicile --- and hence, residence --- in San Fernando, Pampanga. It
cannot be said that Eusebio changed his residence because, strictly speaking, his physical
presence in Quezon City was just temporary.
In the case at bar, there is substantial proof that the decedents have transferred to petitioner’s
Quezon City residence. Petitioner failed to sufficiently refute respondent’s assertion that their
elderly parents stayed in his house for some three to four years before they died in the late
1980s.
Furthermore, the decedents’ respective death certificates state that they were both residents of
Quezon City at the time of their demise. Significantly, it was petitioner himself who filled up his
late mother’s death certificate. To our mind, this unqualifiedly shows that at that time, at least,
petitioner recognized his deceased mother’s residence to be Quezon City. Moreover, petitioner
failed to contest the entry in Ignacio’s death certificate, accomplished a year earlier by
respondent.
The recitals in the death certificates, which are admissible in evidence, were thus properly
considered and presumed to be correct by the court a quo. We agree with the appellate court’s
observation that since the death certificates were accomplished even before petitioner and
respondent quarreled over their inheritance, they may be relied upon to reflect the true situation
at the time of their parents’ death.
The death certificates thus prevailed as proofs of the decedents’ residence at the time of
death, over the numerous documentary evidence presented by petitioner. To be sure, the
documents presented by petitioner pertained not toresidence at the time of death, as required
by the Rules of Court, but to permanent residence or domicile. In Garcia-Fule v. Court of
Appeals,16 we held:
xxx xxx xxx the term "resides" connotes ex vi termini "actual residence" as distinguished from
"legal residence or domicile." This term "resides", like the terms "residing" and "residence", is
elastic and should be interpreted in the light of the object or purpose of the statute or rule in
which it is employed. In the application of venue statutes and rules – Section 1, Rule 73 of the
Revised Rules of Court is of such nature – residence rather than domicile is the significant
factor. Even where the statute uses the word "domicile" still it is construed as meaning residence
and not domicile in the technical sense. Some cases make a distinction between the terms
"residence" and "domicile" but as generally used in statutes fixing venue, the terms are
synonymous, and convey the same meaning as the term "inhabitant." In other words, "resides"
should be viewed or understood in its popular sense, meaning, the personal, actual or physical
habitation of a person, actual residence or place of abode. It signifies physical presence in a
place and actual stay thereat. In this popular sense, the term means merely residence, that is,
personal residence, not legal residence or domicile. Residence simply requires bodily presence
as an inhabitant in a given place, while domicile requires bodily presence in that place and also
an intention to make it one’s domicile. No particular length of time of residence is required
though; however, the residence must be more than temporary.17

Both the settlement court and the Court of Appeals found that the decedents have been living
with petitioner at the time of their deaths and for some time prior thereto. We find this conclusion
to be substantiated by the evidence on record. A close perusal of the challenged decision shows
that, contrary to petitioner’s assertion, the court below considered not only the decedents’
physical presence in Quezon City, but also other factors indicating that the decedents’ stay
therein was more than temporary. In the absence of any substantial showing that the lower
courts’ factual findings stemmed from an erroneous apprehension of the evidence presented,
the same must be held to be conclusive and binding upon this Court.

Petitioner strains to differentiate between the venue provisions found in Rule 4, Section 2, 18 on
ordinary civil actions, and Rule 73, Section 1, which applies specifically to settlement
proceedings. He argues that while venue in the former understandably refers to actual physical
residence for the purpose of serving summons, it is the permanent residence of the decedent
which is significant in Rule 73, Section 1. Petitioner insists that venue for the settlement of
estates can only refer to permanent residence or domicile because it is the place where the
records of the properties are kept and where most of the decedents’ properties are located.

Petitioner’s argument fails to persuade.

It does not necessarily follow that the records of a person’s properties are kept in the place
where he permanently resides. Neither can it be presumed that a person’s properties can be
found mostly in the place where he establishes his domicile. It may be that he has his domicile in
a place different from that where he keeps his records, or where he maintains extensive
personal and business interests. No generalizations can thus be formulated on the matter, as
the question of where to keep records or retain properties is entirely dependent upon an
individual’s choice and peculiarities.

At any rate, petitioner is obviously splitting straws when he differentiates between venue in
ordinary civil actions and venue in special proceedings. In Raymond v. Court of
Appeals19 and Bejer v. Court of Appeals,20 we ruled that venue for ordinary civil actions and that
for special proceedings have one and the same meaning. As thus defined, "residence", in the
context of venue provisions, means nothing more than a person’s actual residence or place of
abode, provided he resides therein with continuity and consistency.21 All told, the lower court and
the Court of Appeals correctly held that venue for the settlement of the decedents’ intestate
estate was properly laid in the Quezon City court.

WHEREFORE, in view of the foregoing, the petition is DENIED, and the decision of the Court of
Appeals in CA-G.R. SP No. 35908 is AFFIRMED.

SO ORDERED.
G.R. No. L-22761 May 31, 1969
ROSE BUSH MALIG and JOE, THOMAS, and JOHN all surnamed BUSH, represented in
this suit by their attorney-in-fact, ROSE BUSH MALIG, plaintiffs-appellants,
vs.
MARIA SANTOS BUSH, defendant-appellee.
Dewey G. Soriano for plaintiffs-appellants.
Feria, Feria, Lugtu and La'O for defendant-appellee.
MAKALINTAL, J.:
This is an appeal by the plaintiffs from two orders of the Court of First Instance of Manila in Civil
Case No. 51639, the first dismissing the complaint and the second denying the motion to
reconsider the order of dismissal.
On September 19, 1962 the plaintiffs filed the complaint, alleging that they were the
acknowledged natural children and the only heirs in the direct line of the deceased John T.
Bush, having been born of the common-law relationship of their father with Apolonia Perez from
1923 up to August, 1941; that said John T. Bush and Apolonia Perez, during the conception of
the plaintiffs, were not suffering from any disability to marry each other; that they lived with their
alleged father during his lifetime and were considered and treated by. him as his acknowledge
natural children; that said John T. Bush, at the time of his death, left several real and personal
properties; that the defendant, by falsely alleging that she was the legal wife of the deceased
was able to secure her appointment as administratrix of the estate of the deceased in Testate
Proceedings No. 29932 of the Court of First Instance of Manila; that she submitted to the court
for approval a project of partition, purporting to show that the deceased left a will whereby he
bequeathed his estate to three persons, namely: Maria Santos Bush, Anita S. Bush and Anna
Berger; that the defendant then knew that the plaintiffs were the acknowledged natural children
of the deceased; and that they discovered the fraud and misrepresentation perpetrated by the
defendant only in July, 1962. They prayed that the project of partition be annulled; that the
defendant be ordered to submit a complete inventory and accounting of all the properties left by
the deceased and another project of partition adjudicating to the plaintiffs their legal participation
in the said estate and/or in the event that the defendant had disposed of all or part of the estate,
that she be ordered to pay them the market value thereof; and that the defendant be ordered to
pay for the value of the fruits received, damages and attorney's fees.
The defendant moved to dismiss, alleging lack of cause of action, res judicata and statute of
limitations. The plaintiffs opposed and the defendant filed a reply to the opposition. On January
10, 1963 the lower court denied the motion, "it appearing that the grounds upon which said
motion is based are not indubitable." In time, the defendant filed her answer specifically denying
all the material averments of the complaint and invoking laches, res judicata and statute of
limitations as affirmative defenses.
After the issues were joined the case was set for hearing, but on the date thereof the hearing
was postponed upon the defendant's manifestation that she would file a written motion to
dismiss. The motion, when filed, challenged the jurisdiction of the court, stating that since the
action was one to annul a project of partition duly approved by the probate court it was that court
alone which could take cognizance of the case, citing Rule 75, Section 1, of the Rules of Court.
On October 31, 1963 the lower court granted the motion and dismissed the complaint, not on the
ground relied upon by the defendant but because the action had prescribed. The plaintiffs
moved to reconsider but were turned down; hence, this appeal.
The procedural question posed by appellants is: May the lower court dismiss an action on a
ground not alleged in the motion to dismiss?
It must be remembered that the first motion to dismiss, alleging lack of cause of action, res
judicata and statute of limitations, was denied because those grounds did not appear to the court
to be indubitable. The second motion reiterated none of those grounds and raised only the
question of jurisdiction. In dismissing the complaint upon a ground not relied upon, the lower
court in effect did so motu proprio, without offering the plaintiffs a chance to argue the point. In
fact the court did not even state in its order why in its opinion the action had prescribed, and why
in effect, without any evidence or new arguments on the question, it reversed its previous ruling
that the ground of prescription was not indubitable.
In Manila Herald Publishing Co., Inc. vs. Ramos, et al., 88 Phil. 94, it was held:
Section 1 of Rule 8 enumerates the grounds upon which an action may be dismissed, and it
specifically ordains that a motion to this end be filed. In the light of this express requirement we
do not believe that the court had power to dismiss the case without the requisite motion duly
presented. The fact that the parties filed memoranda upon the court's indication or order in
which they discussed the proposition that the action was unnecessary and was improperly
brought outside and independently of the case for libel did not supply the deficiency. Rule 30 of
the Rules of Court provides for the cases in which an action may be dismissed, and the inclusion
of those therein provided excludes any other, under the familiar maxims, inclusio unius est
exclusivo ulterius. The only instance in which, according to said Rules, the court may dismiss
upon the court's own motion an action is, when the 'plaintiff fails to appear at the time of the trial
or to prosecute his action for an unreasonable length of time or to comply with the Rules or any
order of the court.
The foregoing ruling is applicable in this case, because although a motion to dismiss had been
presented defendant the resolution of the court granting the same was based upon a ground not
alleged in said motion. But assuming that the lower court could properly consider the question of
prescription anew, the same still did not appear to be indubitable on the face of the allegations in
the complaint. The defendant cites Article 137 of the Civil Code, which provides that an action
for acknowledgment of natural children may be commenced only during the lifetime of the
putative parents, except in two instances not obtaining in this case, and that the present action
was commenced after the death of the putative father of the plaintiffs. The said provision is not
of indubitable application, since the plaintiffs do not seek acknowledgment but allege as a matter
of fact that they "are the acknowledged natural children and the only heirs in the direct line of the
late John T. Bush." Whether or not this allegation is true will, of course, depend upon the
evidence to be presented at the trial.
The defendant insists in this instance on the jurisdictional ground posed in her motion to dismiss,
citing Rule 75, Section 1, of the Rules of Court formerly in force (now Rule 73, Section 1), which
says:
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 in which he had estate. The court first taking
cognizance of the settlement of the estate of a decedent, shall exercise jurisdiction to the
exclusion of all other courts. The jurisdiction assumed by a court, so far as it depends on the
place of residence of the decedent, or of the location of his estate, shall not be contested in a
suit or proceeding, except in an appeal from that court, in the original case, or when the want of
jurisdiction appears on the record.lawphi1.ñet

It will be noted that the foregoing rule fixes jurisdiction for purposes of the special proceeding for
the settlement of the estate of a deceased person, "so far as it depends on the place of
residence of the decedent, or of the location of his estate." The matter really concerns venue, as
the caption of Rule cited indicates, and in order to preclude different courts which may properly
assume jurisdiction from doing so, the Rule specifies 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."

In the final analysis this action is not necessarily one to annul the partition already made and
approved by the probate court, and to reopen the estate proceeding so that a new partition may
be made, but for recovery by the plaintiffs of the portion of their alleged inheritance of which,
through fraud, they have been deprived.

Without prejudice to whatever defenses may be available to the defendant, this Court believes
that the plaintiffs' cause should not be foreclosed without a hearing on the merits.

WHEREFORE, the orders appealed from are set aside and the case remanded for further
proceedings. Costs against the defendant-appellee in this instance.
G.R. No. 129505 January 31, 2000
OCTAVIO S. MALOLES II, petitioner,
vs.
PACITA DE LOS REYES PHILLIPS, respondent.
-----------------------------
G.R. No. 133359 January 31, 2000
OCTAVIO S. MALOLES II, petitioner,
vs.
COURT OF APPEALS, HON. FERNANDO V. GOROSPE, JR., in his Official Capacity as
Presiding Judge of RTC-Makati, Branch 61, and PACITA PHILLIPS as the alleged
executrix of the alleged will of the late Dr. Arturo de Santos, respondents.
MENDOZA, J.:
These are petitions for review on certiorari of the decisions of the Thirteenth and the Special
Eighth Divisions of the Court of Appeals which ruled that petitioner has no right to intervene in
the settlement of the estate of Dr. Arturo de Santos. The cases were consolidated considering
that they involve the same parties and some of the issues raised are the same.
The facts which gave rise to these two petitions are as follows:
On July 20, 1995, Dr. Arturo de Santos, Filipino and a resident of Makati City, filed a petition for
probate of his will1 in the Regional Trial Court, Branch 61, Makati, docketed as Sp. Proc. No. M-
4223. In his petition, Dr. De Santos alleged that he had no compulsory heirs; that he had named
in his will as sole legatee and devisee the Arturo de Santos Foundation, Inc.; that he disposed
by his will his properties with an approximate value of not less than P2,000,000.00; and that
copies of said will were in the custody of the named executrix, private respondent Pacita de los
Reyes Phillips. A copy of the will2 was annexed to the petition for probate.
On February 16, 1996, Judge Fernando V. Gorospe, Jr. of RTC-Makati, Branch 61 issued an
order granting the petition and allowing the will. The order reads:
On 03 August 1995, the Court issued an Order setting the hearing of the petition on 12
September 1995, at 8:30 o'clock in the morning, copies of which were served to Arturo de
Santos Foundation, Inc. and Ms. Pacita de los Reyes Phillips (Officer's Return, dated 04
September 1995 attached to the records). When the case was called for hearing on the date set,
no oppositor appeared nor any written opposition was ever filed and on motion of petitioner, he
was allowed to adduce his evidence in support of the petition.
Petitioner personally appeared before this Court and was placed on the witness stand and was
directly examined by the Court through "free wheeling" questions and answers to give this Court
a basis to determine the state of mind of the petitioner when he executed the subject will. After
the examination, the Court is convinced that petitioner is of sound and disposing mind and not
acting on duress, menace and undue influence or fraud, and that petitioner signed his Last Will
and Testament on his own free and voluntary will and that he was neither forced nor influenced
by any other person in signing it.
Furthermore, it appears from the petition and the evidence adduced that petitioner in his lifetime,
executed his Last Will and Testament (Exhs. "A", "A-1", "A-2", "A-4", "A-5") at his residence
situated at 9 Bauhinia corner Intsia Streets, Forbes Park, Makati City; said Last Will and
Testament was signed in the presence of his three (3) witnesses, namely, to wit: Dr. Elpidio
Valencia (Exhs. "A-6", "A-7", "A-8", "A-16", "A-16-A"), Atty. Edward J. Berenguer (Exhs. "A-3",
"A-3-A", "A-9", "A-10", & "A-11"), and Atty. Victoria C. delos Reyes (Exhs. "A-12", "A-13", "A-14",
"A-17", & "A-18"), who in turn, in the presence of the testator and in the presence of each and all
of the witnesses signed the said Last Will and Testament and duly notarized before Notary
Public Anna Melissa L. Rosario (Exh. "A-15"); on the actual execution of the Last Will and
Testament, pictures were taken (Exhs. "B" to "B-3").
Petitioner has no compulsory heirs and Arturo de Santos Foundation, Inc., with address at No. 9
Bauhinia corner Intsia Streets, Forbes Park, Makati City has been named as sole legatee and
devisee of petitioner's properties, real and personal, approximately valued at not less than P2
million, Ms. Pacita de los Reyes Phillips was designated as executor and to serve as such
without a bond.1âwphi1.nêt
From the foregoing facts, the Court finds that the petitioner has substantially established the
material allegations contained in his petition. The Last Will and Testament having been executed
and attested as required by law; that testator at the time of the execution of the will was of sane
mind and/or not mentally incapable to make a Will; nor was it executed under duress or under
the influence of fear or threats; that it was in writing and executed in the language known and
understood by the testator duly subscribed thereof and attested and subscribed by three (3)
credible witnesses in the presence of the testator and of another; that the testator and all the
attesting witnesses signed the Last Will and Testament freely and voluntarily and that the
testator has intended that the instrument should be his Will at the time of affixing his signature
thereto.
WHEREFORE, as prayed for by the petitioner (testator himself) the petition for the allowance of
the Last Will and Testament of Arturo de Santos is hereby APPROVED and ALLOWED.
Shortly after the probate of his will, Dr. De Santos died on February 26, 1996.
On April 3, 1996, petitioner Octavio S. Maloles II filed a motion for intervention claiming that, as
the only child of Alicia de Santos (testator's sister) and Octavio L. Maloles, Sr., he was the sole
full-blooded nephew and nearest of kin of Dr. De Santos. He likewise alleged that he was a
creditor of the testator. Petitioner thus prayed for the reconsideration of the order allowing the
will and the issuance of letters of administration in his name.
On the other hand, private respondent Pacita de los Reyes Phillips, the designated executrix of
the will, filed a motion for the issuance of letters testamentary with Branch 61. Later, however,
private respondent moved to withdraw her motion. This was granted, while petitioner was
required to file a memorandum of authorities in support of his claim that said court (Branch 61)
still had jurisdiction to allow his intervention.3
Petitioner filed his memorandum of authorities on May 13, 1996. On the other hand, private
respondent, who earlier withdrew her motion for the issuance of letters testamentary in Branch
61, refiled a petition for the same purpose with the Regional Trial Court, Makati, which was
docketed as Sp. Proc. No. M-4343 and assigned to Branch 65.
Upon private respondent's motion, Judge Salvador Abad Santos of Branch 65 issued an order,
dated June 28, 1996, appointing her as special administrator of Dr. De Santos's estate.
On July 29, 1996, petitioner sought to intervene in Sp. Proc. No. M-4343 and to set aside the
appointment of private respondent as special administrator. He reiterated that he was the sole
and full blooded nephew and nearest of kin of the testator; that he came to know of the
existence of Sp. Proc. No. M-4343 only by accident; that the probate proceedings in Sp. Proc.
No. M-4223 before Branch 61 of the same court was still pending; that private respondent
misdeclared the true worth of the testator's estate; that private respondent was not fit to be the
special administrator of the estate; and that petitioner should be given letters of administration
for the estate of Dr. De Santos.
On August 28, 1996, Judge Abad Santos ordered the transfer of Sp. Proc. No. M-4343 to
Branch 61, on the ground that "[it] is related to the case before Judge Gorospe of RTC Branch
61 . . ."
It appears, however, that in Sp. Proc. No. M-4223, Judge Gorospe had denied on August 26,
1996 petitioner's motion for intervention. Petitioner brought this matter to the Court of Appeals
which, in a decision4 promulgated on February 13, 1998, upheld the denial of petitioner's motion
for intervention.
Meanwhile, Judge Gorospe issued an order, dated September 4, 1996, returning the records of
Sp. Proc. No. M-4343 to Branch 65 on the ground that there was a pending case involving the
Estate of Decedent Arturo de Santos pending before said court. The order reads:
Acting on the ORDER dated 28 August 1996 of Branch 65, this Court, transferring this case to
this Branch 61 on the ground that this case is related with a case before this Court, let this case
be returned to Branch 65 with the information that there is no related case involving the ESTATE
OF DECEDENT ARTURO DE SANTOS pending before this Branch.
There is, however, a case filed by ARTURO DE SANTOS, as petitioner under Rule 76 of the
Rules of Court for the Allowance of his will during his lifetime docketed as SP. PROC. NO. M-
4223 which was already decided on 16 February 1996 and has become final.
It is noted on records of Case No. M-4223 that after it became final, herein Petitioner Pacita de
los Reyes Phillips filed a MOTION FOR THE ISSUANCE OF LETTERS TESTAMENTARY,
which was subsequently withdrawn after this Court, during the hearing, already ruled that the
motion could not be admitted as the subject matter involves a separate case under Rule 78 of
the Rules of Court, and movant withdrew her motion and filed this case (No. 4343).
Octavio de Santos Maloles [II] filed a MOTION FOR INTERVENTION before Case No. M-4223
and this motion was already DENIED in the order (Branch 61) of 26 August 1996 likewise for the
same grounds that the matter is for a separate case to be filed under Rule 78 of the Rules of
Court and cannot be included in this case filed under Rule 76 of the Rules of Court.
It is further noted that it is a matter of policy that consolidation of cases must be approved by the
Presiding Judges of the affected Branches.
Initially, in his decision dated September 23, 1996,5 Judge Abad Santos appeared firm in his
position that " . . . it would be improper for (Branch 65) to hear and resolve the petition (Sp. Proc.
No. M-4343)," considering that the probate proceedings were commenced with Branch 61. He
thus ordered the transfer of the records back to the latter branch. However, he later recalled his
decision and took cognizance of the case "to expedite the proceedings." Thus, in his Order,
dated October 21, 1996, he stated:
Considering the refusal of the Hon. Fernando V. Gorospe, Jr. of Branch 61 to continue hearing
this case notwithstanding the fact that said branch began the probate proceedings of the estate
of the deceased and must therefore continue to exercise its jurisdiction to the exclusion of all
others, until the entire estate of the testator had been partitioned and distributed as per Order
dated 23 September 1996, this branch (Regional Trial Court Branch 65) shall take cognizance of
the petition if only to expedite the proceedings, and under the concept that the Regional Trial
Court of Makati City is but one court.
Furnish a copy of this order to the Office of the Chief justice and the Office of the Court
Administrator, of the Supreme Court; the Hon. Fernando V. Gorospe, Jr.; Pacita De Los Reyes
Phillips, Petitioner; and Octavio de Santos Maloles, Intervenor.
On November 4, 1996, Judge Abad Santos granted petitioner's motion for intervention. Private
respondent moved for a reconsideration but her motion was denied by the trial court. She then
filed a petition for certiorari in the Court of Appeals which, on February 26, 1997, rendered a
decision6 setting aside the trial court's order on the ground that petitioner had not shown any
right or interest to intervene in Sp. Proc. No. M-4343.
Hence, these petitions which raise the following issues:
1. Whether or not the Honorable Regional Trial Court — Makati, Branch 61 has lost jurisdiction
to proceed with the probate proceedings upon its issuance of an order allowing the will of Dr.
Arturo de Santos.
2. Whether or not the Honorable (Regional Trial Court — Makati, Branch 65) acquired
jurisdiction over the petition for issuance of letters testamentary filed by (private) respondent.
3. Whether or not the petitioner, being a creditor of the late Dr. Arturo de Santos, has a right to
intervene and oppose the petition for issuance of letters testamentary filed by the respondent.
4. Whether or not (private) respondent is guilty of forum shopping in filing her petition for
issuance of letters testamentary with the Regional Trial Court — Makati, Branch 65 knowing fully
well that the probate proceedings involving the same restate estate of the decedent is still
pending with the Regional Trial Court — Makati, Branch 61.
First. Petitioner contends that the probate proceedings in Branch 61 of RTC-Makati did not
terminate upon the issuance of the order allowing the will of Dr. De Santos. Citing the cases
of Santiesteban v. Santiesteban7 and Tagle v. Manalo,8 he argues that the proceedings must
continue until the estate is fully distributed to the lawful heirs, devisees, and legatees of the
testator, pursuant to Rule 73, §1 of the Rules of Court. Consequently, petitioner contends that
Branch 65 could not lawfully act upon private respondent's petition for issuance of letters
testamentary.
The contention has no merit.
In cases for the probate of wills, it is well-settled that the authority of the court is limited to
ascertaining the extrinsic validity of the will, i.e., whether the testator, being of sound mind, freely
executed the will in accordance with the formalities prescribed by law. 9
Ordinarily, probate proceedings are instituted only after the death of the testator, so much so
that, after approving and allowing the will, the court proceeds to issue letters testamentary and
settle the estate of the testator. The cases cited by petitioner are of such nature. In fact, in most
jurisdictions, courts cannot entertain a petition for probate of the will of a living testator under the
principle of ambulatory nature of wills.10
However, Art. 838 of the Civil Code authorizes the filing of a petition for probate of the will filed
by the testator himself. It provides:
CIVIL CODE, ART. 838. No will shall pass either real or personal property unless it is proved
and allowed in accordance with the Rules of Court.
The testator himself may, during his lifetime, petition the court having jurisdiction for the
allowance of his will. In such case, the pertinent provisions of the Rules of Court for the
allowance of wills after the testator's death shall govern.
The Supreme Court shall formulate such additional Rules of Court as may be necessary for the
allowance of wills on petition of the testator.
Subject to the right of appeal, the allowance of the will, either during the lifetime of the testator or
after his death, shall be conclusive as to its due execution.
Rule 76, §1 likewise provides:
Sec. 1. Who may petition for the allowance of will. — Any executor, devisee, or legatee named
in a will, or any other person interested in the estate, may, at any time after the death of the
testator, petition the court having jurisdiction to have the will allowed, whether the same be in his
possession or not, or is lost or destroyed.
The testator himself may, during his lifetime, petition in the court for the allowance of his will.
The rationale for allowing the probate of wills during the lifetime of testator has been explained
by the Code Commission thus:
Most of the cases that reach the courts involve either the testamentary capacity of the testator or
the formalities adopted in the execution of wills. There are relatively few cases concerning the
intrinsic validity of testamentary dispositions. It is far easier for the courts to determine the
mental condition of a testator during his lifetime than after his death. Fraud, intimidation and
undue influence are minimized. Furthermore, if a will does not comply with the requirements
prescribed by law, the same may be corrected at once. The probate during the testator's life,
therefore, will lessen the number of contest upon wills. Once a will is probated during the lifetime
of the testator, the only questions that may remain for the courts to decide after the testator's
death will refer to the intrinsic validity of the testamentary dispositions. It is possible, of course,
that even when the testator himself asks for the allowance of the will, he may be acting under
duress or undue influence, but these are rare cases.
After a will has been probated during the lifetime of the testator, it does not necessarily mean
that he cannot alter or revoke the same before his death. Should he make a new will, it would
also be allowable on his petition, and if he should die before he has had a chance to present
such petition, the ordinary probate proceeding after the testator's death would be in order. 11
Thus, after the allowance of the will of Dr. De Santos on February 16, 1996, there was nothing
else for Branch 61 to do except to issue a certificate of allowance of the will pursuant to Rule 73,
§12 of the Rules of Court. There is, therefore, no basis for the ruling of Judge Abad Santos of
Branch 65 of RTC-Makati that —
Branch 61 of the Regional Trial Court of Makati having begun the probate proceedings of the
estate of the deceased, it continues and shall continue to exercise said jurisdiction to the
exclusion of all others. It should be noted that probate proceedings do not cease upon the
allowance or disallowance of a will but continues up to such time that the entire estate of the
testator had been partitioned and distributed.
The fact that the will was allowed during the lifetime of the testator meant merely that the
partition and distribution of the estate was to be suspended until the latter's death. In other
words, the petitioner, instead of filing a new petition for the issuance of letters testamentary,
should have simply filed a manifestation for the same purpose in the probate court.12
Petitioner, who defends the order of Branch 65 allowing him to intervene, cites Rule 73, §1
which states:
Where estate of deceased persons settled. — If the decedent is an inhabitant of the Philippines
at the time of his death, whether a citizen or an alien, his will shall be proved, or letters of
administration granted, and his estate settled, in the Court of First Instance in the province in
which he resides at the time of his death, and if he is an inhabitant of a foreign country, the Court
of First Instance of any province in which he had estate. The court first taking cognizance of the
settlement of the estate of a decedent, shall exercise jurisdiction to the exclusion of all other
courts. The jurisdiction assumed by a court, so far as it depends on the place of residence of the
decedent, or of the location of his estate, shall not be contested in a suit or proceeding, except in
an appeal from that court, in the original case, or when the want of jurisdiction appears on the
record.
The above rule, however, actually provides for the venue of actions for the settlement of the
estate of deceased persons. In Garcia Fule v. Court of Appeals, it was held:13
The aforequoted Section 1, Rule 73 (formerly Rule 75, Section 1), specifically the clause "so far
as it depends on the place of residence of the decedent, or of the location of the state," is in
reality a matter of venue, as the caption of the Rule indicates: "Settlement of Estate of Deceased
Persons. Venue and Processes." It could not have been intended to define the jurisdiction over
the subject matter, because such legal provision is contained in a law of procedure dealing
merely with procedural matters. Procedure is one thing, jurisdiction over the subject matter is
another. The power or authority of the court over the subject matter "existed was fixed before
procedure in a given cause began." That power or authority is not altered or changed by
procedure, which simply directs the manner in which the power or authority shall be fully and
justly exercised. There are cases though that if the power is not exercised conformably with the
provisions of the procedural law, purely, the court attempting to exercise it loses the power to
exercise it legally. However, this does not amount to a loss of jurisdiction over the subject
matter. Rather, it means that the court may thereby lose jurisdiction over the person or that the
judgment may thereby be rendered defective for lack of something essential to sustain it. The
appearance of this provision in the procedural law at once raises a strong presumption that it
has nothing to do with the jurisdiction of the court over the subject matter. In plain words, it is just
a matter of method, of convenience to the parties.
Indeed, the jurisdiction over probate proceedings and settlement of estates with approximate
value of over P100,000.00 (outside Metro Manila) or P200,000.00 (in Metro Manila) belongs to
the regional trial courts under B.P. Blg. 129, as amended. The different branches comprising
each court in one judicial region do not possess jurisdictions independent of and incompatible
with each other.14
It is noteworthy that, although Rule 73, §1 applies insofar as the venue of the petition for probate
of the will of Dr. De Santos is concerned, it does not bar other branches of the same court from
taking cognizance of the settlement of the estate of the testator after his death. As held in the
leading case of Bacalso v. Ramolote:15
The various branches of the Court of First Instance of Cebu under the Fourteenth Judicial
District, are a coordinate and co-equal courts, and the totality of which is only one Court of First
Instance. The jurisdiction is vested in the court, not in the judges. And when a case is filed in one
branch, jurisdiction over the case does not attach to the branch or judge alone, to the exclusion
of the other branches. Trial may be held or proceedings continue by and before another branch
or judge. It is for this reason that Section 57 of the Judiciary Act expressly grants to the
Secretary of Justice, the administrative right or power to apportion the cases among the different
branches, both for the convenience of the parties and for the coordination of the work by the
different branches of the same court. The apportionment and distribution of cases does not
involve a grant or limitation of jurisdiction, the jurisdiction attaches and continues to be vested in
the Court of First Instance of the province, and the trials may be held by any branch or judge of
the court.
Necessarily, therefore, Branch 65 of the RTC of Makati City has jurisdiction over Sp. Proc. No.
M-4343.
Second. Petitioner claims the right to intervene in and oppose the petition for issuance of letters
testamentary filed by private respondent. He argues that, as the nearest next of kin and creditor
of the testator, his interest in the matter is material and direct. In ruling that petitioner has no
right to intervene in the proceedings before Branch 65 of RTC-Makati City, the Court of Appeals
held:
The private respondent herein is not an heir or legatee under the will of the decedent Arturo de
Santos. Neither is he a compulsory heir of the latter. As the only and nearest collateral relative of
the decedent, he can inherit from the latter only in case of intestacy. Since the decedent has left
a will which has already been probated and disposes of all his properties the private respondent
can inherit only if the said will is annulled. His interest in the decedent's estate is, therefore, not
direct or immediate.
His claim to being a creditor of the estate is a belated one, having been raised for the first time
only in his reply to the opposition to his motion to intervene, and, as far as the records show, not
supported by evidence.
. . . . [T]he opposition must come from one with a direct interest in the estate or the will, and the
private respondent has none. Moreover, the ground cited in the private respondent's opposition,
that the petitioner has deliberately misdeclared the truth worth and value of the estate, is not
relevant to the question of her competency to act as executor. Section 2, Rule 76 of the Rules of
Court requires only an allegation of the probable value and character of the property of the
estate. The true value can be determined later on in the course of the settlement of the estate.16
Rule 79, §1 provides:
Opposition to issuance of letters testamentary. Simultaneous petition for administration. — Any
person interested in a will may state in writing the grounds why letters testamentary should not
issue to the persons named therein as executors, or any of them, and the court, after hearing
upon notice, shall pass upon the sufficiency of such grounds. A petition may, at the same time,
be filed for letters of administration with the will annexed.
Under this provision, it has been held that an "interested person" is one who would be benefited
by the estate, such as an heir, or one who has a claim against the estate, such as a creditor, and
whose interest is material and direct, not merely incidental or contingent. 17
Even if petitioner is the nearest next of kin of Dr. De Santos, he cannot be considered an "heir"
of the testator. It is a fundamental rule of testamentary succession that one who has no
compulsory or forced heirs may dispose of his entire estate by will. Thus, Art. 842 of the Civil
Code provides:
One who has no compulsory heirs may dispose by will of all his estate or any part of it in favor of
any person having capacity to succeed.
One who has compulsory heirs may dispose of his estate provided he does not contravene the
provisions of this Code with regard to the legitimate of said heirs.
Compulsory heirs are limited to the testator's —
(1) Legitimate children and descendants, with respect to their legitimate parents and
ascendants;
(2) In default of the foregoing, legitimate parents and ascendants, with respect to their legitimate
children and descendants;
(3) The widow or widower;
(4) Acknowledged natural children, and natural children by legal fiction;
(5) Other illegitimate children referred to in Article 287 of the Civil Code. 18
Petitioner, as nephew of the testator, is not a compulsory heir who may have been preterited in
the testator's will.
Nor does he have any right to intervene in the settlement proceedings based on his allegation
that he is a creditor of the deceased. Since the testator instituted or named an executor in his
will, it is incumbent upon the Court to respect the desires of the testator. As we stated in Ozaeta
v. Pecson:19
The choice of his executor is a precious prerogative of a testator, a necessary concomitant of his
right to dispose of his property in the manner he wishes. It is natural that the testator should
desire to appoint one of his confidence, one who can be trusted to carry out his wishes in the
disposal of his estate. The curtailment of this right may be considered a curtailment of the right
to dispose.

Only if the appointed executor is incompetent, refuses the trust, or fails to give bond may the
court appoint other persons to administer the estate.20 None of these circumstances is present in
this case.

Third. Petitioner contends that private respondent is guilty of forum shopping when she filed the
petition for issuance of letters testamentary (Sp. Proc. No. M-4343) while the probate
proceedings (Sp. Proc. No. M-4223) were still pending. According to petitioner, there is identity
of parties, rights asserted, and reliefs prayed for in the two actions which are founded on the
same facts, and a judgment in either will result in res judicata in the other.

This contention has no merit. As stated earlier, the petition for probate was filed by Dr. De
Santos, the testator, solely for the purpose of authenticating his will. Upon the allowance of his
will, the proceedings were terminated.1âwphi1.nêt

On the other hand, the petition for issuance of letters testamentary was filed by private
respondent, as executor of the estate of Dr. De Santos, for the purpose of securing authority
from the Court to administer the estate and put into effect the will of the testator. The estate
settlement proceedings commenced by the filing of the petition terminates upon the distribution
and delivery of the legacies and devises to the persons named in the will. Clearly, there is no
identity between the two petitions, nor was the latter filed during the pendency of the former.
There was, consequently, no forum shopping.

WHEREFORE, the petition is DENIED and the decisions of the Court of Appeals are hereby
AFFIRMED.

SO ORDERED.
G.R. Nos. L-21938-39 May 29, 1970
VICENTE URIARTE, petitioner,
vs.
THE COURT OF FIRST INSTANCE OF NEGROS OCCIDENTAL (12th Judicial District) THE
COURT OF FIRST INSTANCE OF MANILA, BRANCH IV, JUAN URIARTE ZAMACONA and
HIGINIO URIARTE, respondents.
Norberto J. Quisumbing for petitioner.
Tañada, Teehankee & Carreon for respondents.
DIZON, J.:
On October 3, 1963 petitioner Vicente Uriarte filed an original petition for certiorari — docketed
as G.R. L-21938 — against the respondents Juan Uriarte Zamacona, Higinio Uriarte, and the
Courts of First Instance of Negros Occidental and of Manila, Branch IV, who will be referred to
hereinafter as the Negros Court and the Manila Court, respectively — praying:
... that after due proceedings judgment be rendered annulling the orders of 19 April 1963 (Annex
'H') and 11 July 1963 (Annex 'I') of respondent Negros court dismissing the first instituted
Special Proceeding No. 6344, supra, and the order of 1 July 1963 (Annex 'K') of respondent
Manila court denying petitioner's omnibus motion to intervene and to dismiss the later-instituted
Special Proceeding No. 51396, supra, both special proceedings pertaining to the settlement of
the same estate of the same deceased, and consequently annulling all proceedings had in
Special Proceeding No. 51396; supra, of the respondent Manila court as all taken without
jurisdiction.
For the preservation of the rights of the parties pending these proceedings, petitioner prays for
the issuance of a writ of preliminary injunction enjoining respondents Manila court, Juan Uriarte
Zamacona and Higinio Uriarte from proceeding with Special Proceeding No. 51396, supra, until
further orders of this Court.
Reasons in support of said petition are stated therein as follows:
6. Respondent Negros court erred in dismissing its Special Proceeding No. 6344, supra, and
failing to declare itself 'the court first taking cognizance of the settlement of the estate of' the
deceased Don Juan Uriarte y Goite as prescribed in Rule 75 section 1 of the Rules of Court.
Respondent Manila court erred in failing to dismiss its Special Proceeding No. 51396, supra,
notwithstanding proof of prior filing of Special Proceeding No. 6344, supra, in the Negros court.
The writ of preliminary injunction prayed for was granted and issued by this Court on October 24,
1963.
On April 22, 1964 petitioner filed against the same respondents a pleading entitled
SUPPLEMENTAL PETITION FOR MANDAMUS — docketed in this Court as G.R. No. L-21939
— praying, for the reasons therein stated, that judgment be rendered annulling the orders issued
by the Negros Court on December 7, 1963 and February 26, 1964, the first disapproving his
record on appeal and the second denying his motion for reconsideration, and further
commanding said court to approve his record on appeal and to give due course to his appeal.
On July 15, 1964 We issued a resolution deferring action on this Supplemental Petition until the
original action for certiorari (G.R. L-21938) is taken up on the merits.
On October 21, 1963 the respondents in G.R. L-21938 filed their answer traversing petitioner's
contention that the respondent courts had committed grave abuse of discretion in relation to the
matters alleged in the petition for certiorari.
It appears that on November 6, 1961 petitioner filed with the Negros Court a petition for the
settlement of the estate of the late Don Juan Uriarte y Goite (Special Proceeding No. 6344)
alleging therein, inter alia, that, as a natural son of the latter, he was his sole heir, and that,
during the lifetime of said decedent, petitioner had instituted Civil Case No. 6142 in the same
Court for his compulsory acknowledgment as such natural son. Upon petitioner's motion the
Negros Court appointed the Philippine National Bank as special administrator on November 13,
1961 and two days later it set the date for the hearing of the petition and ordered that the
requisite notices be published in accordance with law. The record discloses, however, that, for
one reason or another, the Philippine, National Bank never actually qualified as special
administrator.
On December 19, 1961, Higinio Uriarte, one of the two private respondents herein, filed an
opposition to the above-mentioned petition alleging that he was a nephew of the deceased Juan
Uriarte y Goite who had "executed a Last Will and Testament in Spain, a duly authenticated
copy whereof has been requested and which shall be submitted to this Honorable Court upon
receipt thereof," and further questioning petitioner's capacity and interest to commence the
intestate proceeding.
On August 28, 1962, Juan Uriarte Zamacona, the other private respondent, commenced Special
Proceeding No. 51396 in the Manila Court for the probate of a document alleged to be the last
will of the deceased Juan Uriarte y Goite, and on the same date he filed in Special Proceeding
No. 6344 of the Negros Court a motion to dismiss the same on the following grounds: (1) that, as
the deceased Juan Uriarte y Goite had left a last will, there was no legal basis to proceed with
said intestate proceedings, and (2) that petitioner Vicente Uriarte had no legal personality and
interest to initiate said intestate proceedings, he not being an acknowledged natural son of the
decedent. A copy of the Petition for Probate and of the alleged Will were attached to the Motion
to Dismiss.
Petitioner opposed the aforesaid motion to dismiss contending that, as the Negros Court was
first to take cognizance of the settlement of the estate of the deceased Juan Uriarte y Goite, it
had acquired exclusive jurisdiction over same pursuant to Rule 75, Section 1 of the Rules of
Court.
On April 19, 1963, the Negros Court sustained Juan Uriarte Zamacona's motion to dismiss and
dismissed the Special Proceeding No. 6344 pending before it. His motion for reconsideration of
said order having been denied on July 27, 1963, petitioner proceeded to file his notice of appeal,
appeal bond and record on appeal for the purpose of appealing from said orders to this court on
questions of law. The administrator with the will annexed appointed by the Manila Court in
Special Proceeding No. 51396 objected to the approval of the record on appeal, and under date
of December 7, 1963 the Negros Court issued the following order:
Oppositor prays that the record on appeal filed by the petitioner on July 27, 1963, be dismissed
for having been filed out of time and for being incomplete. In the meantime, before the said
record on appeal was approved by this Court, the petitioner filed a petition for certiorari before
the Supreme Court entitled Vicente Uriarte, Petitioner, vs. Court of First Instance of Negros
Occidental, et al., G.R. No. L-21938, bringing this case squarely before the Supreme Court on
questions of law which is tantamount to petitioner's abandoning his appeal from this Court.
WHEREFORE, in order to give way to the certiorari, the record on appeal filed by the petitioner
is hereby disapproved.
In view of the above-quoted order, petitioner filed the supplemental petition for mandamus
mentioned heretofore.
On April 15, 1963 Vicente Uriarte filed an Omnibus Motion in Special Proceeding No. 51396
pending in the Manila Court, asking for leave to intervene therein; for the dismissal of the petition
and the annulment of the proceedings had in said special proceeding. This motion was denied
by said court in its order of July 1 of the same year.
It is admitted that, as alleged in the basic petition filed in Special Proceeding No. 6344 of the
Negros Court, Vicente Uriarte filed in the same court, during the lifetime of Juan Uriarte y Goite,
Civil Case No. 6142 to obtain judgment for his compulsory acknowledgment as his natural child.
Clearly inferrable from this is that at the time he filed the action, as well as when he commenced
the aforesaid special proceeding, he had not yet been acknowledged as natural son of Juan
Uriarte y Goite. Up to this time, no final judgment to that effect appears to have been rendered.
The record further discloses that the special proceeding before the Negros Court has not gone
farther than the appointment of a special administrator in the person of the Philippine National
Bank who, as stated heretofore, failed to qualify.
On the other hand, it is not disputed that, after proper proceedings were had in Special
Proceeding No. 51396, the Manila Court admitted to probate the document submitted to, it as
the last will of Juan Uriarte y Goite, the petition for probate appearing not to have been
contested. It appears further that, as stated heretofore, the order issued by the Manila Court on
July 1, 1963 denied petitioner. Vicente Uriarte's Omnibus Motion for Intervention, Dismissal of
Petition and Annulment of said proceedings.
Likewise, it is not denied that to the motion to dismiss the special proceeding pending before the
Negros Court filed by Higinio Uriarte were attached a copy of the alleged last will of Juan Uriarte
y Goite and of the petition filed with the Manila Court for its probate. It is clear, therefore, that
almost from the start of Special Proceeding No. 6344, the Negros Court and petitioner Vicente
Uriarte knew of the existence of the aforesaid last will and of the proceedings for its probate.
The principal legal questions raised in the petition for certiorari are (a) whether or not the Negros
Court erred in dismissing Special Proceeding No. 6644, on the one hand, and on the other, (b)
whether the Manila Court similarly erred in not dismissing Special Proceeding No. 51396
notwithstanding proof of the prior filing of Special Proceeding No. 6344 in the Negros Court.
Under the Judiciary Act of 1948 [Section 44, paragraph (e)], Courts of First Instance have
original exclusive jurisdiction over "all matters of probate," that is, over special proceedings for
the settlement of the estate of deceased persons — whether they died testate or intestate. While
their jurisdiction over such subject matter is beyond question, the matter of venue, or the
particular Court of First Instance where the special proceeding should be commenced, is
regulated by former Rule 75, Section 1 of the Rules of Court, now Section 1, Rule 73 of the
Revised Rules of Court, which provides that the estate of a decedent inhabitant of the
Philippines at the time of his death, whether a citizen or an alien, shall be in the court of first
instance in the province in which he resided at the time of his death, and if he is an inhabitant of
a foreign country, the court of first instance of any province in which he had estate. Accordingly,
when the estate to be settled is that of a non-resident alien — like the deceased Juan Uriarte y
Goite — the Courts of First Instance in provinces where the deceased left any property have
concurrent jurisdiction to take cognizance of the proper special proceeding for the settlement of
his estate. In the case before Us, these Courts of First Instance are the Negros and the Manila
Courts — province and city where the deceased Juan Uriarte y Goite left considerable
properties. From this premise petitioner argues that, as the Negros Court had first taken
cognizance of the special proceeding for the settlement of the estate of said decedent (Special
Proceeding No. 6344), the Manila Court no longer had jurisdiction to take cognizance of Special
Proceeding No. 51396 intended to settle the estate of the same decedent in accordance with his
alleged will, and that consequently, the first court erred in dismissing Special Proceeding No.
6344, while the second court similarly erred in not dismissing Special Proceeding No. 51396.
It can not be denied that a special proceeding intended to effect the distribution of the estate of a
deceased person, whether in accordance with the law on intestate succession or in accordance
with his will, is a "probate matter" or a proceeding for the settlement of his estate. It is equally
true, however, that in accordance with settled jurisprudence in this jurisdiction, testate
proceedings, for the settlement of the estate of a deceased person take precedence over
intestate proceedings for the same purpose. Thus it has been held repeatedly that, if in the
course of intestate proceedings pending before a court of first instance it is found it hat the
decedent had left a last will, proceedings for the probate of the latter should replace the intestate
proceedings even if at that stage an administrator had already been appointed, the latter being
required to render final account and turn over the estate in his possession to the executor
subsequently appointed. This, however, is understood to be without prejudice that should the
alleged last will be rejected or is disapproved, the proceeding shall continue as an intestacy. As
already adverted to, this is a clear indication that proceedings for the probate of a will enjoy
priority over intestate proceedings.
Upon the facts before Us the question arises as to whether Juan Uriarte Zamacona should have
filed the petition for the probate of the last will of Juan Uriarte y Goite with the Negros Court —
particularly in Special Proceeding No. 6344 — or was entitled to commence the corresponding
separate proceedings, as he did, in the Manila Court.
The following considerations and the facts of record would seem to support the view that he
should have submitted said will for probate to the Negros Court, either in a separate special
proceeding or in an appropriate motion for said purpose filed in the already pending Special
Proceeding No. 6344. In the first place, it is not in accord with public policy and the orderly and
inexpensive administration of justice to unnecessarily multiply litigation, especially if several
courts would be involved. This, in effect, was the result of the submission of the will aforesaid to
the Manila Court. In the second place, when respondent Higinio Uriarte filed an opposition to
Vicente Uriarte's petition for the issuance of letters of administration, he had already informed
the Negros Court that the deceased Juan Uriarte y Goite had left a will in Spain, of which a copy
had been requested for submission to said court; and when the other respondent, Juan Uriarte
Zamacona, filed his motion to dismiss Special Proceeding No. 6344, he had submitted to the
Negros Court a copy of the alleged will of the decedent, from which fact it may be inferred that,
like Higinio Uriarte, he knew before filing the petition for probate with the Manila Court that there
was already a special proceeding pending in the Negros Court for the settlement of the estate of
the same deceased person. As far as Higinio Uriarte is concerned, it seems quite clear that in
his opposition to petitioner's petition in Special Proceeding No. 6344, he had expressly promised Coming now to the supplemental petition for mandamus (G.R. No. L-21939), We are of the
to submit said will for probate to the Negros Court. opinion, and so hold, that in view of the conclusions heretofore stated, the same has become
moot and academic. If the said supplemental petition is successful, it will only result in
But the fact is that instead of the aforesaid will being presented for probate to the Negros Court, compelling the Negros Court to give due course to the appeal that petitioner was taking from the
Juan Uriarte Zamacona filed the petition for the purpose with the Manila Court. We can not orders of said court dated December 7, 1963 and February 26, 1964, the first being the order of
accept petitioner's contention in this regard that the latter court had no jurisdiction to consider said court dismissing Special Proceeding No. 6344, and the second being an order denying
said petition, albeit we say that it was not the proper venue therefor. petitioner's motion for the reconsideration of said order of dismissal. Said orders being, as a
result of what has been said heretofore beyond petitioner's power to contest, the conclusion can
It is well settled in this jurisdiction that wrong venue is merely a waiveable procedural defect, not be other than that the intended appeal would serve no useful purpose, or, worse still, would
and, in the light of the circumstances obtaining in the instant case, we are of the opinion, and so enable petitioner to circumvent our ruling that he can no longer question the validity of said
hold, that petitioner has waived the right to raise such objection or is precluded from doing so by orders.
laches. It is enough to consider in this connection that petitioner knew of the existence of a will
executed by Juan Uriarte y Goite since December 19, 1961 when Higinio Uriarte filed his IN VIEW OF THE FOREGOING CONSIDERATIONS, judgment is hereby rendered denying the
opposition to the initial petition filed in Special Proceeding No. 6344; that petitioner likewise was writs prayed for and, as a result, the petition for certiorari filed in G.R. No. L-21938, as well as
served with notice of the existence (presence) of the alleged last will in the Philippines and of the the supplemental petition for mandamus docketed as G.R. No. L-21939, are hereby dismissed.
filing of the petition for its probate with the Manila Court since August 28, 1962 when Juan The writ of preliminary injunction heretofore issued is set aside. With costs against petitioner.
Uriarte Zamacona filed a motion for the dismissal of Special Proceeding No. 6344. All these
notwithstanding, it was only on April 15, 1963 that he filed with the Manila Court in Special
Proceeding No. 51396 an Omnibus motion asking for leave to intervene and for the dismissal
and annulment of all the proceedings had therein up to that date; thus enabling the Manila Court
not only to appoint an administrator with the will annexed but also to admit said will to probate
more than five months earlier, or more specifically, on October 31, 1962. To allow him now to
assail the exercise of jurisdiction over the probate of the will by the Manila Court and the validity
of all the proceedings had in Special Proceeding No. 51396 would put a premium on his
negligence. Moreover, it must be remembered that this Court is not inclined to annul
proceedings regularly had in a lower court even if the latter was not the proper venue therefor, if
the net result would be to have the same proceedings repeated in some other court of similar
jurisdiction; more so in a case like the present where the objection against said proceedings is
raised too late.

In his order of April 19, 1963 dismissing Special Proceeding No. 6344, Judge Fernandez of the
Negros Court said that he was "not inclined to sustain the contention of the petitioner that
inasmuch as the herein petitioner has instituted Civil Case No. 6142 for compulsory
acknowledgment by the decedent such action justifies the institution by him of this proceedings.
If the petitioner is to be consistent with the authorities cited by him in support of his contention,
the proper thing for him to do would be to intervene in the testate estate proceedings entitled
Special Proceedings No. 51396 in the Court of First Instance of Manila instead of maintaining an
independent action, for indeed his supposed interest in the estate of the decedent is of his
doubtful character pending the final decision of the action for compulsory acknowledgment."

We believe in connection with the above matter that petitioner is entitled to prosecute Civil Case
No. 6142 until it is finally determined, or intervene in Special Proceeding No. 51396 of the Manila
Court, if it is still open, or to ask for its reopening if it has already been closed, so as to be able to
submit for determination the question of his acknowledgment as natural child of the deceased
testator, said court having, in its capacity as a probate court, jurisdiction to declare who are the
heirs of the deceased testator and whether or not a particular party is or should be declared his
acknowledged natural child (II Moran on Rules of Court, 1957 Ed., p. 476; Conde vs. Abaya, 13
Phil. 249; Severino vs. Severino, 44 Phil. 343; Lopez vs. Lopez, 68 Phil. 227, and Jimoga-on vs.
Belmonte, 47 O. G. 1119).
G.R. No. 75773 April 17, 1990
TOMAS JIMENEZ, VISITACION JIMENEZ, DIGNO JIMENEZ, ANTONIO JIMENEZ, AMADEO
JIMENEZ, MODESTO JIMENEZ and VIRGINIA JIMENEZ, petitioners,
vs.
HONORABLE INTERMEDIATE APPELLATE COURT, HON. AMANDA VALERA-CABIGAO,
in her capacity as Presiding Judge, Regional Trial Court, Branch XXXVII, Lingayen,
Pangasinan, LEONARDO JIMENEZ, JR. and CORAZON JIMENEZ, respondents.
Simplicio M. Sevilleja for petitioners.
Bitty S. Viliran for private respondents.
Leonardo B. Jimenez, Jr. for respondents.
FERNAN, CJ.:
This is a petition for review on certiorari seeking to reverse and set aside the decision 1 of the
Court of Appeals dated May 29, 1986 which dismissed the petition
for certiorari and mandamus in AC-G.R. No. 06578 entitled "Tomas Jimenez, et. al. vs. Hon.
Amanda Valera-Cabigao."
The facts are as follows:
The marriage of Leonardo (Lino) Jimenez and Consolacion Ungson produced four (4) children,
namely: Alberto, Leonardo, Sr., Alejandra and Angeles. During the existence of the marriage,
Lino Jimenez acquired five (5) parcels of land in Salomague, Bugallon, Pangasinan.
After the death of Consolacion Ungson, Lino married Genoveva Caolboy with whom he begot
the seven petitioners herein: Tomas, Visitacion, Digno, Antonio, Amadeo, Modesto and Virginia,
all surnamed Jimenez. Lino Jimenez died on August 11, 1951 while Genoveva Caolboy died on
November 21, 1978.
Thereafter, in April 1979, Virginia Jimenez filed a petition before the Court of First Instance of
Pangasinan, Branch V, docketed as Special Proceedings No. 5346, praying to be appointed as
administratrix of the properties of the deceased spouses Lino and Genoveva. Enumerated in her
petition were the supposed heirs of the deceased spouses which included herein co-petitioners
and the four children of Lino Jimenez by Consolacion Ungson, his previous wife. 2
In October, 1979, herein private respondent Leonardo Jimenez, Jr., son of Leonardo Jimenez,
Sr., filed a motion for the exclusion of his father's name and those of Alberto, Alejandra, and
Angeles from the petition, inasmuch as they are children of the union of Lino Jimenez and
Consolacion Ungson and not of Lino Jimenez and Genoveva Caolboy and because they have
already received their inheritance consisting of five (5) parcels of lands in Salomague, Bugallon,
Pangasinan.3
On March 23, 1981, petitioner Virginia Jimenez was appointed administrator of the Intestate
Estate of Lino Jimenez and Genoveva Caolboy.4 On May 21, 1981, she filed an inventory of the
estate of the spouses Lino Jimenez and Genoveva Caolboy wherein she included the five (5)
parcels of land in Salomague, Bugallon, Pangasinan. As a consequence, Leonardo Jimenez, Jr.
moved for the exclusion of these properties from the inventory on the ground that these had
already been adjudicated to Leonardo Sr., Alberto, Alejandra and Angeles by their deceased
father Lino Jimenez. Private respondent Leonardo Jimenez, Jr. presented testimonial and
documentary evidence in support of his motion while petitioner Virginia Jimenez, other than
cross-examining the witnesses of Leonardo, presented no evidence of her own, oral or
documentary.
On September 29, 1981, the probate court ordered the exclusion of the five (5) parcels of land
from the inventory on the basis of the evidence of private respondent Leonardo Jimenez, Jr.
which consisted among others of: (1) Tax Declaration showing that the subject properties were
acquired during the conjugal partnership of Lino Jimenez and Consolacion Ungson; and, (2) a
Deed of Sale dated May 12, 1964 wherein Genoveva Caolboy stated, that the subject properties
had been adjudicated by Lino Jimenez to his children by a previous marriage, namely: Alberto,
Leonardo, Alejandra and Angeles.5 The motion for reconsideration of said order was denied on
January 26, 1982.6
Petitioner Virginia Jimenez then went to the Court of Appeals on a petition for certiorari and
prohibition, docketed thereat as CA-G.R. No. SP-13916, seeking the annulment of the order
dated September 29, 1981 as well as the order of January 26, 1982. On November 18, 1982,
the Court of Appeals dismissed the petition because (1) Genoveva Caolboy, petitioners' mother,
had admitted that the subject parcels of land had been adjudicated to the children of the
previous nuptial; (2) the subject properties could not have been acquired during the marriage of
Lino Jimenez to Genoveva Caolboy because they were already titled in the name of Lino
Jimenez even prior to 1921, long before Lino's marriage to Genoveva in 1940; (3) the claim of
Virginia Jimenez was barred by prescription because it was only in 1981 when they questioned
the adjudication of the subject properties, more than ten (10) years after Genoveva had admitted
such adjudication in a public document in 1964; and, (4) petitioner Virginia Jimenez was guilty of
laches. This decision became final and executory.7
Two (2) years after, petitioners filed an amended complaint dated December 10, 1984 before the
Regional Trial Court of Pangasinan, Branch XXXVII, docketed thereat as Civil Case No. 16111,
to recover possession/ownership of the subject five (5) parcels of land as part of the estate of
Lino Jimenez and Genoveva Caolboy and to order private respondents to render an accounting
of the produce therefrom. Private respondents moved for the dismissal of the complaint on the
grounds that the action was barred by prior judgment in CA-G.R. No. SP-13916 dated November
18, 1982 and by prescription and laches. However, petitioners opposed the motion to dismiss
contending that (1) the action was not barred by prior judgment because the probate court had
no jurisdiction to determine with finality the question of ownership of the lots which must be
ventilated in a separate action; and, (2) the action instituted in 1981 was not barred by
prescription or laches because private respondents' forcible acquisition of the subject properties
occurred only after the death of petitioners' mother, Genoveva Caolboy in 1978.
On February 13, 1985, the trial court resolved to dismiss the complaint on the ground of res
judicata. 8 On May 31, 1985, petitioners' motion for reconsideration of the resolution was denied.
As earlier intimated, the petition for certiorari and mandamus filed by petitioners before the
appellate court was likewise denied due course and dismissed in a decision dated May 29,
1986.9
Hence, this recourse.
The issue in this case is whether in a settlement proceeding (testate or intestate) the lower court
has jurisdiction to settle questions of ownership and whether res judicata exists as to bar
petitioners' present action for the recovery of possession and ownership of the five (5) parcels of
land. In the negative, is the present action for reconveyance barred by prescription and/or
laches?
We reverse. Petitioners' present action for recovery of possession and ownership is
appropriately filed because as a general rule, a probate court can only pass upon questions of
title provisionally. Since the probate, court's findings are not conclusive being prima facie, 10 a
separate proceeding is necessary to establish the ownership of the five (5) parcels of land. 11
There are a number of factual issues raised by petitioners before the lower court which cannot
be resolved without the presentation of evidence at a full-blown trial and which make the
grounds for dismissal dubitable. Among others, the alleged admission made by petitioners'
mother in the deed of sale is vehemently denied, as well as the fact itself of adjudication, there
being no showing that the conjugal partnership of Lino Jimenez and Consolacion Ungson had
been liquidated nor that a judicial or extra-judicial settlement of the estate of Lino Jimenez was
undertaken whereby such adjudication could have been effected.
The grounds stated in the motion to dismiss not being indubitable, the trial court committed
grave abuse of discretion in dismissing the complaint in Civil Case No. 16111.

The patent reason is the probate court's limited jurisdiction and the principle that questions of WHEREFORE, the questioned decision of the respondent appellate court is hereby
title or ownership, which result in inclusion or exclusion from the inventory of the property, can REVERSED. Civil Case No. 16111 is reinstated and the Regional Trial Court of Pangasinan,
only be settled in a separate action. 12 Branch XXXVII is directed to proceed in said case with dispatch.

All that the said court could do as regards said properties is determine whether they should or SO ORDERED.
should not be included in the inventory or list of properties to be administered by the
administrator. If there is a dispute as to the ownership, then the opposing parties and the
administrator have to resort to an ordinary action for a final determination of the conflicting
claims of title because the probate court cannot do so. 13

The provisional character of the inclusion in the inventory of a contested property was again
reiterated in the following cases: Pio Barreto Realty Development, Inc. vs. Court of
Appeals, 14 Junquera vs. Borromeo, 15 Borromeo vs. Canonoy, 16 Recto vs. de la Rosa. 17 It has
also been held that in a special proceeding for the probate of a will, the question of ownership is
an extraneous matter which the probate court cannot resolve with finality. 18 This pronouncement
no doubt applies with equal force to an intestate proceeding as in the case at bar.

Res judicata 19 does not exist because of the difference in the causes of actions. Specifically in
S.P. No. 5346, the action was for the settlement of the intestate estate of Lino Jimenez and
Genoveva Caolboy while Civil Case No. 16111 was an action for the recovery of possession and
ownership of the five (5) parcels of land. Moreover, while admittedly, the Court of First Instance
of Pangasinan, Branch V in S.P. No. 5346 had jurisdiction, the same was merely limited
jurisdiction. Any pronouncement by said court as to title is not conclusive and could still be
attacked in a separate proceeding. Civil Case No. 16111, on the other hand. was lodged before
the Regional Trial Court of Pangasinan, Branch XXXVII in the exercise of the court's general
jurisdiction. It was, in fact, such "separate or ordinary proceedings" contemplated by the rules for
a final determination of the issue of ownership of the disputed properties. To repeat, since the
determination of the question of title to the subject properties in S.P. 5346 was merely
provisional, petitioners are not barred from instituting the appropriate action in Civil Case No.
16111.

Indeed, the grounds relied upon by private respondents in their motion to dismiss do not appear
to be indubitable.1âwphi1Res judicata has been shown here to be unavailable and the other
grounds of prescription and laches pleaded by private respondents are seriously disputed. The
allegation in the complaint is that the heirs of Leonardo Jimenez, Sr. (referring to private
respondents,) forcibly intruded into and took possession of the disputed properties only in 1978,
after the death of Genoveva Caolboy. Since the action for reconveyance was instituted in 1984,
it would appear that the same has not yet prescribed or otherwise barred by laches.
G.R. No. 120880 June 5, 1997
FERDINAND R. MARCOS II, petitioner,
vs.
COURT OF APPEALS, THE COMMISSIONER OF THE BUREAU OF INTERNAL REVENUE
and HERMINIA D. DE GUZMAN, respondents.
TORRES, JR., J.:
In this Petition for Review on Certiorari, Government action is once again assailed as precipitate
and unfair, suffering the basic and oftly implored requisites of due process of law. Specifically,
the petition assails the Decision 1of the Court of Appeals dated November 29, 1994 in CA-G.R.
SP No. 31363, where the said court held:
In view of all the foregoing, we rule that the deficiency income tax assessments and estate tax
assessment, are already final and (u)nappealable-and-the subsequent levy of real properties is a
tax remedy resorted to by the government, sanctioned by Section 213 and 218 of the National
Internal Revenue Code. This summary tax remedy is distinct and separate from the other tax
remedies (such as Judicial Civil actions and Criminal actions), and is not affected or precluded
by the pendency of any other tax remedies instituted by the government.
WHEREFORE, premises considered, judgment is hereby rendered DISMISSING the petition
for certiorari with prayer for Restraining Order and Injunction.
No pronouncements as to costs. SO ORDERED.
More than seven years since the demise of the late Ferdinand E. Marcos, the former President
of the Republic of the Philippines, the matter of the settlement of his estate, and its dues to the
government in estate taxes, are still unresolved, the latter issue being now before this Court for
resolution. Specifically, petitioner Ferdinand R. Marcos II, the eldest son of the decedent,
questions the actuations of the respondent Commissioner of Internal Revenue in assessing, and
collecting through the summary remedy of Levy on Real Properties, estate and income tax
delinquencies upon the estate and properties of his father, despite the pendency of the
proceedings on probate of the will of the late president, which is docketed as Sp. Proc. No.
10279 in the Regional Trial Court of Pasig, Branch 156.
Petitioner had filed with the respondent Court of Appeals a Petition for Certiorari and Prohibition
with an application for writ of preliminary injunction and/or temporary restraining order on June
28, 1993, seeking to —
I. Annul and set aside the Notices of Levy on real property dated February 22, 1993 and May 20,
1993, issued by respondent Commissioner of Internal Revenue;
II. Annul and set aside the Notices of Sale dated May 26, 1993;
III. Enjoin the Head Revenue Executive Assistant Director II (Collection Service), from
proceeding with the Auction of the real properties covered by Notices of Sale.
After the parties had pleaded their case, the Court of Appeals rendered its Decision 2 on
November 29, 1994, ruling that the deficiency assessments for estate and income tax made
upon the petitioner and the estate of the deceased President Marcos have already become final
and unappealable, and may thus be enforced by the summary remedy of levying upon the
properties of the late President, as was done by the respondent Commissioner of Internal
Revenue.
WHEREFORE, premises considered judgment is hereby rendered DISMISSING the petition
for Certiorari with prayer for Restraining Order and Injunction.
No pronouncements as to cost. SO ORDERED.
Unperturbed, petitioner is now before us assailing the validity of the appellate court's decision,
assigning the following as errors:
A. RESPONDENT COURT MANIFESTLY ERRED IN RULING THAT THE SUMMARY TAX
REMEDIES RESORTED TO BY THE GOVERNMENT ARE NOT AFFECTED AND
PRECLUDED BY THE PENDENCY OF THE SPECIAL PROCEEDING FOR THE ALLOWANCE
OF THE LATE PRESIDENT'S ALLEGED WILL. TO THE CONTRARY, THIS PROBATE
PROCEEDING PRECISELY PLACED ALL PROPERTIES WHICH FORM PART OF THE LATE
PRESIDENT'S ESTATE IN CUSTODIA LEGIS OF THE PROBATE COURT TO THE
EXCLUSION OF ALL OTHER COURTS AND ADMINISTRATIVE AGENCIES.
B. RESPONDENT COURT ARBITRARILY ERRED IN SWEEPINGLY DECIDING THAT SINCE
THE TAX ASSESSMENTS OF PETITIONER AND HIS PARENTS HAD ALREADY BECOME
FINAL AND UNAPPEALABLE, THERE WAS NO NEED TO GO INTO THE MERITS OF THE
GROUNDS CITED IN THE PETITION. INDEPENDENT OF WHETHER THE TAX
ASSESSMENTS HAD ALREADY BECOME FINAL, HOWEVER, PETITIONER HAS THE
RIGHT TO QUESTION THE UNLAWFUL MANNER AND METHOD IN WHICH TAX
COLLECTION IS SOUGHT TO BE ENFORCED BY RESPONDENTS COMMISSIONER AND
DE GUZMAN. THUS, RESPONDENT COURT SHOULD HAVE FAVORABLY CONSIDERED
THE MERITS OF THE FOLLOWING GROUNDS IN THE PETITION:
(1) The Notices of Levy on Real Property were issued beyond the period provided in the
Revenue Memorandum Circular No. 38-68.
(2) [a] The numerous pending court cases questioning the late President's ownership or
interests in several properties (both personal and real) make the total value of his estate, and the
consequent estate tax due, incapable of exact pecuniary determination at this time. Thus,
respondents' assessment of the estate tax and their issuance of the Notices of Levy and Sale
are premature, confiscatory and oppressive.
[b] Petitioner, as one of the late President's compulsory heirs, was never notified, much less
served with copies of the Notices of Levy, contrary to the mandate of Section 213 of the NIRC.
As such, petitioner was never given an opportunity to contest the Notices in violation of his right
to due process of law.
C. ON ACCOUNT OF THE CLEAR MERIT OF THE PETITION, RESPONDENT COURT
MANIFESTLY ERRED IN RULING THAT IT HAD NO POWER TO GRANT INJUNCTIVE
RELIEF TO PETITIONER. SECTION 219 OF THE NIRC NOTWITHSTANDING, COURTS
POSSESS THE POWER TO ISSUE A WRIT OF PRELIMINARY INJUNCTION TO RESTRAIN
RESPONDENTS COMMISSIONER'S AND DE GUZMAN'S ARBITRARY METHOD OF
COLLECTING THE ALLEGED DEFICIENCY ESTATE AND INCOME TAXES BY MEANS OF
LEVY.
The facts as found by the appellate court are undisputed, and are hereby adopted:
On September 29, 1989, former President Ferdinand Marcos died in Honolulu, Hawaii, USA.
On June 27, 1990, a Special Tax Audit Team was created to conduct investigations and
examinations of the tax liabilities and obligations of the late president, as well as that of his
family, associates and "cronies". Said audit team concluded its investigation with a
Memorandum dated July 26, 1991. The investigation disclosed that the Marcoses failed to file a
written notice of the death of the decedent, an estate tax returns [sic], as well as several income
tax returns covering the years 1982 to 1986, — all in violation of the National Internal Revenue
Code (NIRC).
Subsequently, criminal charges were filed against Mrs. Imelda R. Marcos before the Regional
Trial of Quezon City for violations of Sections 82, 83 and 84 (has penalized under Sections 253
and 254 in relation to Section 252 — a & b) of the National Internal Revenue Code (NIRC).
The Commissioner of Internal Revenue thereby caused the preparation and filing of the Estate
Tax Return for the estate of the late president, the Income Tax Returns of the Spouses Marcos
for the years 1985 to 1986, and the Income Tax Returns of petitioner Ferdinand "Bongbong"
Marcos II for the years 1982 to 1985.
On July 26, 1991, the BIR issued the following: (1) Deficiency estate tax assessment no. FAC-2-
89-91-002464 (against the estate of the late president Ferdinand Marcos in the amount of
P23,293,607,638.00 Pesos); (2) Deficiency income tax assessment no. FAC-1-85-91-002452
and Deficiency income tax assessment no. FAC-1-86-91-002451 (against the Spouses
Ferdinand and Imelda Marcos in the amounts of P149,551.70 and P184,009,737.40
representing deficiency income tax for the years 1985 and 1986); (3) Deficiency income tax
assessment nos. FAC-1-82-91-002460 to FAC-1-85-91-002463 (against petitioner Ferdinand
"Bongbong" Marcos II in the amounts of P258.70 pesos; P9,386.40 Pesos; P4,388.30 Pesos;
and P6,376.60 Pesos representing his deficiency income taxes for the years 1982 to 1985).
The Commissioner of Internal Revenue avers that copies of the deficiency estate and income
tax assessments were all personally and constructively served on August 26, 1991 and
September 12, 1991 upon Mrs. Imelda Marcos (through her caretaker Mr. Martinez) at her last
known address at No. 204 Ortega St., San Juan, M.M. (Annexes "D" and "E" of the Petition).
Likewise, copies of the deficiency tax assessments issued against petitioner Ferdinand
"Bongbong" Marcos II were also personally and constructively served upon him (through his
caretaker) on September 12, 1991, at his last known address at Don Mariano Marcos St. corner
P. Guevarra St., San Juan, M.M. (Annexes "J" and "J-1" of the Petition). Thereafter, Formal
Assessment notices were served on October 20, 1992, upon Mrs. Marcos c/o petitioner, at his
office, House of Representatives, Batasan Pambansa, Quezon City. Moreover, a notice to
Taxpayer inviting Mrs. Marcos (or her duly authorized representative or counsel), to a
conference, was furnished the counsel of Mrs. Marcos, Dean Antonio Coronel — but to no avail.
The deficiency tax assessments were not protested administratively, by Mrs. Marcos and the
other heirs of the late president, within 30 days from service of said assessments.
On February 22, 1993, the BIR Commissioner issued twenty-two notices of levy on real property
against certain parcels of land owned by the Marcoses — to satisfy the alleged estate tax and
deficiency income taxes of Spouses Marcos.
On May 20, 1993, four more Notices of Levy on real property were issued for the purpose of
satisfying the deficiency income taxes.
On May 26, 1993, additional four (4) notices of Levy on real property were again issued. The
foregoing tax remedies were resorted to pursuant to Sections 205 and 213 of the National
Internal Revenue Code (NIRC).
In response to a letter dated March 12, 1993 sent by Atty. Loreto Ata (counsel of herein
petitioner) calling the attention of the BIR and requesting that they be duly notified of any action
taken by the BIR affecting the interest of their client Ferdinand "Bongbong" Marcos II, as well as
the interest of the late president — copies of the aforesaid notices were, served on April 7, 1993
and on June 10, 1993, upon Mrs. Imelda Marcos, the petitioner, and their counsel of record, "De
Borja, Medialdea, Ata, Bello, Guevarra and Serapio Law Office".
Notices of sale at public auction were posted on May 26, 1993, at the lobby of the City Hall of
Tacloban City. The public auction for the sale of the eleven (11) parcels of land took place on
July 5, 1993. There being no bidder, the lots were declared forfeited in favor of the government.
On June 25, 1993, petitioner Ferdinand "Bongbong" Marcos II filed the instant petition
for certiorari and prohibition under Rule 65 of the Rules of Court, with prayer for temporary
restraining order and/or writ of preliminary injunction.
It has been repeatedly observed, and not without merit, that the enforcement of tax laws and the
collection of taxes, is of paramount importance for the sustenance of government. Taxes are the
lifeblood of the government and should be collected without unnecessary hindrance. However,
such collection should be made in accordance with law as any arbitrariness will negate the very
reason for government itself. It is therefore necessary to reconcile the apparently conflicting
interests of the authorities and the taxpayers so that the real purpose of taxation, which is the
promotion of the common good, may be achieved. 3
Whether or not the proper avenues of assessment and collection of the said tax obligations were
taken by the respondent Bureau is now the subject of the Court's inquiry.
Petitioner posits that notices of levy, notices of sale, and subsequent sale of properties of the
late President Marcos effected by the BIR are null and void for disregarding the established
procedure for the enforcement of taxes due upon the estate of the deceased. The case
of Domingo vs. Garlitos 4 is specifically cited to bolster the argument that "the ordinary procedure
by which to settle claims of indebtedness against the estate of a deceased, person, as in an
inheritance (estate) tax, is for the claimant to present a claim before the probate court so that
said court may order the administrator to pay the amount therefor." This remedy is allegedly,
exclusive, and cannot be effected through any other means.
Petitioner goes further, submitting that the probate court is not precluded from denying a request
by the government for the immediate payment of taxes, and should order the payment of the
same only within the period fixed by the probate court for the payment of all the debts of the
decedent. In this regard, petitioner cites the case of Collector of Internal Revenue vs. The
Administratrix of the Estate of Echarri (67 Phil 502), where it was held that:
The case of Pineda vs. Court of First Instance of Tayabas and Collector of Internal Revenue (52
Phil 803), relied upon by the petitioner-appellant is good authority on the proposition that the
court having control over the administration proceedings has jurisdiction to entertain the claim
presented by the government for taxes due and to order the administrator to pay the tax should it
find that the assessment was proper, and that the tax was legal, due and collectible. And the rule
laid down in that case must be understood in relation to the case of Collector of Customs
vs. Haygood, supra., as to the procedure to be followed in a given case by the government to
effectuate the collection of the tax. Categorically stated, where during the pendency of judicial
administration over the estate of a deceased person a claim for taxes is presented by the
government, the court has the authority to order payment by the administrator; but, in the same
way that it has authority to order payment or satisfaction, it also has the negative authority to
deny the same. While there are cases where courts are required to perform certain duties
mandatory and ministerial in character, the function of the court in a case of the present
character is not one of them; and here, the court cannot be an organism endowed with latitude
of judgment in one direction, and converted into a mere mechanical contrivance in another
direction.
On the other hand, it is argued by the BIR, that the state's authority to collect internal revenue
taxes is paramount. Thus, the pendency of probate proceedings over the estate of the deceased
does not preclude the assessment and collection, through summary remedies, of estate taxes
over the same. According to the respondent, claims for payment of estate and income taxes due
and assessed after the death of the decedent need not be presented in the form of a claim
against the estate. These can and should be paid immediately. The probate court is not the
government agency to decide whether an estate is liable for payment of estate of income taxes.
Well-settled is the rule that the probate court is a court with special and limited jurisdiction.
Concededly, the authority of the Regional Trial Court, sitting, albeit with limited jurisdiction, as a
probate court over estate of deceased individual, is not a trifling thing. The court's jurisdiction,
once invoked, and made effective, cannot be treated with indifference nor should it be ignored
with impunity by the very parties invoking its authority.
In testament to this, it has been held that it is within the jurisdiction of the probate court to
approve the sale of properties of a deceased person by his prospective heirs before final
adjudication; 5 to determine who are the heirs of the decedent; 6 the recognition of a natural
child; 7 the status of a woman claiming to be the legal wife of the decedent; 8 the legality of
disinheritance of an heir by the testator; 9 and to pass upon the validity of a waiver of hereditary
rights. 10
The pivotal question the court is tasked to resolve refers to the authority of the Bureau of Internal
Revenue to collect by the summary remedy of levying upon, and sale of real properties of the
decedent, estate tax deficiencies, without the cognition and authority of the court sitting in
probate over the supposed will of the deceased.
The nature of the process of estate tax collection has been described as follows:
Strictly speaking, the assessment of an inheritance tax does not directly involve the
administration of a decedent's estate, although it may be viewed as an incident to the complete
settlement of an estate, and, under some statutes, it is made the duty of the probate court to
make the amount of the inheritance tax a part of the final decree of distribution of the estate. It is
not against the property of decedent, nor is it a claim against the estate as such, but it is against
the interest or property right which the heir, legatee, devisee, etc., has in the property formerly
held by decedent. Further, under some statutes, it has been held that it is not a suit or
controversy between the parties, nor is it an adversary proceeding between the state and the
person who owes the tax on the inheritance. However, under other statutes it has been held that
the hearing and determination of the cash value of the assets and the determination of the tax
are adversary proceedings. The proceeding has been held to be necessarily a proceeding in
rem. 11
In the Philippine experience, the enforcement and collection of estate tax, is executive in
character, as the legislature has seen it fit to ascribe this task to the Bureau of Internal Revenue.
Section 3 of the National Internal Revenue Code attests to this:
Sec. 3. Powers and duties of the Bureau. — The powers and duties of the Bureau of Internal
Revenue shall comprehend the assessment and collection of all national internal revenue taxes,
fees, and charges, and the enforcement of all forfeitures, penalties, and fines connected
therewith, including the execution of judgments in all cases decided in its favor by the Court of
Tax Appeals and the ordinary courts. Said Bureau shall also give effect to and administer the
supervisory and police power conferred to it by this Code or other laws.
Thus, it was in Vera vs. Fernandez 12 that the court recognized the liberal treatment of claims for
taxes charged against the estate of the decedent. Such taxes, we said, were exempted from the
application of the statute of non-claims, and this is justified by the necessity of government
funding, immortalized in the maxim that taxes are the lifeblood of the government. Vectigalia
nervi sunt rei publicae — taxes are the sinews of the state.
Taxes assessed against the estate of a deceased person, after administration is opened, need
not be submitted to the committee on claims in the ordinary course of administration. In the
exercise of its control over the administrator, the court may direct the payment of such taxes
upon motion showing that the taxes have been assessed against the estate.
Such liberal treatment of internal revenue taxes in the probate proceedings extends so far, even
to allowing the enforcement of tax obligations against the heirs of the decedent, even after
distribution of the estate's properties.
Claims for taxes, whether assessed before or after the death of the deceased, can be collected
from the heirs even after the distribution of the properties of the decedent. They are exempted
from the application of the statute of non-claims. The heirs shall be liable therefor, in proportion
to their share in the inheritance. 13
Thus, the Government has two ways of collecting the taxes in question. One, by going after all
the heirs and collecting from each one of them the amount of the tax proportionate to the
inheritance received. Another remedy, pursuant to the lien created by Section 315 of the Tax
Code upon all property and rights to property belong to the taxpayer for unpaid income tax, is by
subjecting said property of the estate which is in the hands of an heir or transferee to the
payment of the tax due the estate. (Commissioner of Internal Revenue vs. Pineda, 21 SCRA
105, September 15, 1967.)
From the foregoing, it is discernible that the approval of the court, sitting in probate, or as a
settlement tribunal over the deceased is not a mandatory requirement in the collection of estate
taxes. It cannot therefore be argued that the Tax Bureau erred in proceeding with the levying
and sale of the properties allegedly owned by the late President, on the ground that it was
required to seek first the probate court's sanction. There is nothing in the Tax Code, and in the
pertinent remedial laws that implies the necessity of the probate or estate settlement court's
approval of the state's claim for estate taxes, before the same can be enforced and collected.
On the contrary, under Section 87 of the NIRC, it is the probate or settlement court which is
bidden not to authorize the executor or judicial administrator of the decedent's estate to deliver
any distributive share to any party interested in the estate, unless it is shown a Certification by
the Commissioner of Internal Revenue that the estate taxes have been paid. This provision
disproves the petitioner's contention that it is the probate court which approves the assessment
and collection of the estate tax.
If there is any issue as to the validity of the BIR's decision to assess the estate taxes, this should
have been pursued through the proper administrative and judicial avenues provided for by law.
Section 229 of the NIRC tells us how:
Sec. 229. Protesting of assessment. — When the Commissioner of Internal Revenue or his duly
authorized representative finds that proper taxes should be assessed, he shall first notify the
taxpayer of his findings. Within a period to be prescribed by implementing regulations, the
taxpayer shall be required to respond to said notice. If the taxpayer fails to respond, the
Commissioner shall issue an assessment based on his findings.
Such assessment may be protested administratively by filing a request for reconsideration or
reinvestigation in such form and manner as may be prescribed by implementing regulations
within (30) days from receipt of the assessment; otherwise, the assessment shall become final
and unappealable.
If the protest is denied in whole or in part, the individual, association or corporation adversely
affected by the decision on the protest may appeal to the Court of Tax Appeals within thirty (30)
days from receipt of said decision; otherwise, the decision shall become final, executory and
demandable. (As inserted by P.D. 1773)
Apart from failing to file the required estate tax return within the time required for the filing of the
same, petitioner, and the other heirs never questioned the assessments served upon them,
allowing the same to lapse into finality, and prompting the BIR to collect the said taxes by levying
upon the properties left by President Marcos.
Petitioner submits, however, that "while the assessment of taxes may have been validly
undertaken by the Government, collection thereof may have been done in violation of the law.
Thus, the manner and method in which the latter is enforced may be questioned separately, and
irrespective of the finality of the former, because the Government does not have the unbridled
discretion to enforce collection without regard to the clear provision of law." 14
Petitioner specifically points out that applying Memorandum Circular No. 38-68, implementing
Sections 318 and 324 of the old tax code (Republic Act 5203), the BIR's Notices of Levy on the
Marcos properties, were issued beyond the allowed period, and are therefore null and void:
. . . the Notices of Levy on Real Property (Annexes O to NN of Annex C of this Petition) in
satisfaction of said assessments were still issued by respondents well beyond the period
mandated in Revenue Memorandum Circular No. 38-68. These Notices of Levy were issued
only on 22 February 1993 and 20 May 1993 when at least seventeen (17) months had already
lapsed from the last service of tax assessment on 12 September 1991. As no notices of distraint
of personal property were first issued by respondents, the latter should have complied with
Revenue Memorandum Circular No. 38-68 and issued these Notices of Levy not earlier than
three (3) months nor later than six (6) months from 12 September 1991. In accordance with the
Circular, respondents only had until 12 March 1992 (the last day of the sixth month) within which
to issue these Notices of Levy. The Notices of Levy, having been issued beyond the period
allowed by law, are thus void and of no effect. 15
We hold otherwise. The Notices of Levy upon real property were issued within the prescriptive
period and in accordance with the provisions of the present Tax Code. The deficiency tax
assessment, having already become final, executory, and demandable, the same can now be
collected through the summary remedy of distraint or levy pursuant to Section 205 of the NIRC.
The applicable provision in regard to the prescriptive period for the assessment and collection of
tax deficiency in this instance is Article 223 of the NIRC, which pertinently provides:
Sec. 223. Exceptions as to a period of limitation of assessment and collection of taxes. — (a) In
the case of a false or fraudulent return with intent to evade tax or of a failure to file a return, the
tax may be assessed, or a proceeding in court for the collection of such tax may be begun
without assessment, at any time within ten (10) years after the discovery of the falsity, fraud, or
omission: Provided, That, in a fraud assessment which has become final and executory, the fact
of fraud shall be judicially taken cognizance of in the civil or criminal action for the collection
thereof.
xxx xxx xxx
(c) Any internal revenue tax which has been assessed within the period of limitation above
prescribed, may be collected by distraint or levy or by a proceeding in court within three years
following the assessment of the tax.
xxx xxx xxx
The omission to file an estate tax return, and the subsequent failure to contest or appeal the
assessment made by the BIR is fatal to the petitioner's cause, as under the above-cited
provision, in case of failure to file a return, the tax may be assessed at any time within ten years
after the omission, and any tax so assessed may be collected by levy upon real property within
three years following the assessment of the tax. Since the estate tax assessment had become
final and unappealable by the petitioner's default as regards protesting the validity of the said
assessment, there is now no reason why the BIR cannot continue with the collection of the said
tax. Any objection against the assessment should have been pursued following the avenue
paved in Section 229 of the NIRC on protests on assessments of internal revenue taxes.
Petitioner further argues that "the numerous pending court cases questioning the late president's
ownership or interests in several properties (both real and personal) make the total value of his
estate, and the consequent estate tax due, incapable of exact pecuniary determination at this
time. Thus, respondents' assessment of the estate tax and their issuance of the Notices of Levy
and sale are premature and oppressive." He points out the pendency of Sandiganbayan Civil
Case Nos. 0001-0034 and 0141, which were filed by the government to question the ownership
and interests of the late President in real and personal properties located within and outside the
Philippines. Petitioner, however, omits to allege whether the properties levied upon by the BIR in
the collection of estate taxes upon the decedent's estate were among those involved in the said
cases pending in the Sandiganbayan. Indeed, the court is at a loss as to how these cases are
relevant to the matter at issue. The mere fact that the decedent has pending cases involving ill-
gotten wealth does not affect the enforcement of tax assessments over the properties
indubitably included in his estate.
Petitioner also expresses his reservation as to the propriety of the BIR's total assessment of
P23,292,607,638.00, stating that this amount deviates from the findings of the Department of
Justice's Panel of Prosecutors as per its resolution of 20 September 1991. Allegedly, this is clear
evidence of the uncertainty on the part of the Government as to the total value of the estate of
the late President.
This is, to our mind, the petitioner's last ditch effort to assail the assessment of estate tax which
had already become final and unappealable.
It is not the Department of Justice which is the government agency tasked to determine the
amount of taxes due upon the subject estate, but the Bureau of Internal Revenue, 16 whose
determinations and assessments are presumed correct and made in good faith. 17 The taxpayer
has the duty of proving otherwise. In the absence of proof of any irregularities in the
performance of official duties, an assessment will not be disturbed. Even an assessment based
on estimates is prima facie valid and lawful where it does not appear to have been arrived at
arbitrarily or capriciously. The burden of proof is upon the complaining party to show clearly that
the assessment is erroneous. Failure to present proof of error in the assessment will justify the
judicial affirmance of said assessment. 18 In this instance, petitioner has not pointed out one
single provision in the Memorandum of the Special Audit Team which gave rise to the
questioned assessment, which bears a trace of falsity. Indeed, the petitioner's attack on the
assessment bears mainly on the alleged improbable and unconscionable amount of the taxes
charged. But mere rhetoric cannot supply the basis for the charge of impropriety of the
assessments made.
Moreover, these objections to the assessments should have been raised, considering the ample
remedies afforded the taxpayer by the Tax Code, with the Bureau of Internal Revenue and the
Court of Tax Appeals, as described earlier, and cannot be raised now via Petition for Certiorari,
under the pretext of grave abuse of discretion. The course of action taken by the petitioner
reflects his disregard or even repugnance of the established institutions for governance in the
scheme of a well-ordered society. The subject tax assessments having become final, executory
and enforceable, the same can no longer be contested by means of a disguised protest. In the
main, Certiorari may not be used as a substitute for a lost appeal or remedy. 19 This judicial
policy becomes more pronounced in view of the absence of sufficient attack against the
actuations of government.
On the matter of sufficiency of service of Notices of Assessment to the petitioner, we find the
respondent appellate court's pronouncements sound and resilient to petitioner's attacks.
Anent grounds 3(b) and (B) — both alleging/claiming lack of notice — We find, after considering
the facts and circumstances, as well as evidences, that there was sufficient, constructive and/or
actual notice of assessments, levy and sale, sent to herein petitioner Ferdinand "Bongbong"
Marcos as well as to his mother Mrs. Imelda Marcos.
Even if we are to rule out the notices of assessments personally given to the caretaker of Mrs.
Marcos at the latter's last known address, on August 26, 1991 and September 12, 1991, as well
as the notices of assessment personally given to the caretaker of petitioner also at his last
known address on September 12, 1991 — the subsequent notices given thereafter could no
longer be ignored as they were sent at a time when petitioner was already here in the
Philippines, and at a place where said notices would surely be called to petitioner's attention,
and received by responsible persons of sufficient age and discretion.
Thus, on October 20, 1992, formal assessment notices were served upon Mrs. Marcos c/o the
petitioner, at his office, House of Representatives, Batasan Pambansa, Q.C. (Annexes "A", "A-
1", "A-2", "A-3"; pp. 207-210, Comment/Memorandum of OSG). Moreover, a notice to taxpayer
dated October 8, 1992 inviting Mrs. Marcos to a conference relative to her tax liabilities, was
furnished the counsel of Mrs. Marcos — Dean Antonio Coronel (Annex "B", p. 211, ibid).
Thereafter, copies of Notices were also served upon Mrs. Imelda Marcos, the petitioner and their
counsel "De Borja, Medialdea, Ata, Bello, Guevarra and Serapio Law Office", on April 7, 1993
and June 10, 1993. Despite all of these Notices, petitioner never lifted a finger to protest the
assessments, (upon which the Levy and sale of properties were based), nor appealed the same
to the Court of Tax Appeals.
There being sufficient service of Notices to herein petitioner (and his mother) and it appearing
that petitioner continuously ignored said Notices despite several opportunities given him to file a
protest and to thereafter appeal to the Court of Tax Appeals, — the tax assessments subject of
this case, upon which the levy and sale of properties were based, could no longer be contested
(directly or indirectly) via this instant petition for certiorari. 20
Petitioner argues that all the questioned Notices of Levy, however, must be nullified for having
been issued without validly serving copies thereof to the petitioner. As a mandatory heir of the
decedent, petitioner avers that he has an interest in the subject estate, and notices of levy upon
its properties should have been served upon him.
We do not agree. In the case of notices of levy issued to satisfy the delinquent estate tax, the
delinquent taxpayer is the Estate of the decedent, and not necessarily, and exclusively, the
petitioner as heir of the deceased. In the same vein, in the matter of income tax delinquency of
the late president and his spouse, petitioner is not the taxpayer liable. Thus, it follows that
service of notices of levy in satisfaction of these tax delinquencies upon the petitioner is not
required by law, as under Section 213 of the NIRC, which pertinently states:
xxx xxx xxx
. . . Levy shall be effected by writing upon said certificate a description of the property upon
which levy is made. At the same time, written notice of the levy shall be mailed to or served upon
the Register of Deeds of the province or city where the property is located and upon the
delinquent taxpayer, or if he be absent from the Philippines, to his agent or the manager of the
business in respect to which the liability arose, or if there be none, to the occupant of the
property in question.
xxx xxx xxx
The foregoing notwithstanding, the record shows that notices of warrants of distraint and levy of
sale were furnished the counsel of petitioner on April 7, 1993, and June 10, 1993, and the
petitioner himself on April 12, 1993 at his office at the Batasang Pambansa. 21 We cannot
therefore, countenance petitioner's insistence that he was denied due process. Where there was
an opportunity to raise objections to government action, and such opportunity was disregarded,
for no justifiable reason, the party claiming oppression then becomes the oppressor of the
orderly functions of government. He who comes to court must come with clean hands.
Otherwise, he not only taints his name, but ridicules the very structure of established authority.
IN VIEW WHEREOF, the Court RESOLVED to DENY the present petition. The Decision of the
Court of Appeals dated November 29, 1994 is hereby AFFIRMED in all respects.SO ORDERED.
G.R. No. 134100 September 29, 2000
PURITA ALIPIO, petitioner,
vs.
COURT OF APPEALS and ROMEO G. JARING, represented by his Attorney-In-Fact
RAMON G. JARING,respondents.
DECISION
MENDOZA, J.:
The question for decision in this case is whether a creditor can sue the surviving spouse for the
collection of a debt which is owed by the conjugal partnership of gains, or whether such claim
must be filed in proceedings for the settlement of the estate of the decedent. The trial court and
the Court of Appeals ruled in the affirmative. We reverse.
The facts are as follows:
Respondent Romeo Jaring1 was the lessee of a 14.5 hectare fishpond in Barito, Mabuco,
Hermosa, Bataan. The lease was for a period of five years ending on September 12, 1990. On
June 19, 1987, he subleased the fishpond, for the remaining period of his lease, to the spouses
Placido and Purita Alipio and the spouses Bienvenido and Remedios Manuel. The stipulated
amount of rent was ₱485,600.00, payable in two installments of ₱300,000.00 and ₱185,600.00,
with the second installment falling due on June 30, 1989. Each of the four sublessees signed the
contract.
The first installment was duly paid, but of the second installment, the sublessees only satisfied a
portion thereof, leaving an unpaid balance of ₱50,600.00. Despite due demand, the sublessees
failed to comply with their obligation, so that, on October 13, 1989, private respondent sued the
Alipio and Manuel spouses for the collection of the said amount before the Regional Trial Court,
Branch 5, Dinalupihan, Bataan. In the alternative, he prayed for the rescission of the sublease
contract should the defendants fail to pay the balance.
Petitioner Purita Alipio moved to dismiss the case on the ground that her husband, Placido
Alipio, had passed away on December 1, 1988.2 She based her action on Rule 3, §21 of the
1964 Rules of Court which then provided that "when the action is for recovery of money, debt or
interest thereon, and the defendant dies before final judgment in the Court of First Instance, it
shall be dismissed to be prosecuted in the manner especially provided in these rules." This
provision has been amended so that now Rule 3, §20 of the 1997 Rules of Civil Procedure
provides:
When the action is for the recovery of money arising from contract, express or implied, and the
defendant dies before entry of final judgment in the court in which the action was pending at the
time of such death, it shall not be dismissed but shall instead be allowed to continue until entry
of final judgment. A favorable judgment obtained by the plaintiff therein shall be enforced in the
manner especially provided in these Rules for prosecuting claims against the estate of a
deceased person.
The trial court denied petitioner's motion on the ground that since petitioner was herself a party
to the sublease contract, she could be independently impleaded in the suit together with the
Manuel spouses and that the death of her husband merely resulted in his exclusion from the
case.3 The Manuel spouses failed to file their answer. For this reason, they were declared in
default.
On February 26, 1991, the lower court rendered judgment after trial, ordering petitioner and the
Manuel spouses to pay private respondent the unpaid balance of ₱50,600.00 plus attorney's
fees in the amount of ₱10,000.00 and the costs of the suit.
Petitioner appealed to the Court of Appeals on the ground that the trial court erred in denying her
motion to dismiss. In its decision4 rendered on July 10, 1997, the appellate court dismissed her
appeal. It held:
The rule that an action for recovery of money, debt or interest thereon must be dismissed when
the defendant dies before final judgment in the regional trial court, does not apply where there
are other defendants against whom the action should be maintained. This is the teaching
of Climaco v. Siy Uy, wherein the Supreme Court held:
Upon the facts alleged in the complaint, it is clear that Climaco had a cause of action against the
persons named as defendants therein. It was, however, a cause of action for the recovery of
damages, that is, a sum of money, and the corresponding action is, unfortunately, one that does
not survive upon the death of the defendant, in accordance with the provisions of Section 21,
Rule 3 of the Rules of Court.
xxx xxx xxx
However, the deceased Siy Uy was not the only defendant, Manuel Co was also named
defendant in the complaint. Obviously, therefore, the order appealed from is erroneous insofar
as it dismissed the case against Co. (Underlining added)
Moreover, it is noted that all the defendants, including the deceased, were signatories to the
contract of sub-lease. The remaining defendants cannot avoid the action by claiming that the
death of one of the parties to the contract has totally extinguished their obligation as held
in Imperial Insurance, Inc. v. David:
We find no merit in this appeal. Under the law and well settled jurisprudence, when the
obligation is a solidary one, the creditor may bring his action in toto against any of the debtors
obligated in solidum. Thus, if husband and wife bound themselves jointly and severally, in case
of his death, her liability is independent of and separate from her husband's; she may be sued
for the whole debt and it would be error to hold that the claim against her as well as the claim
against her husband should be made in the decedent's estate. (Agcaoili vs. Vda. de Agcaoili, 90
Phil. 97).5
Petitioner filed a motion for reconsideration, but it was denied on June 4, 1998.6 Hence this
petition based on the following assignment of errors:
A. THE RESPONDENT COURT COMMITTED REVERSIBLE ERROR IN APPLYING CLIMACO
v. SIY UY, 19 SCRA 858, IN SPITE OF THE FACT THAT THE PETITIONER WAS NOT
SEEKING THE DISMISSAL OF THE CASE AGAINST REMAINING DEFENDANTS BUT ONLY
WITH RESPECT TO THE CLAIM FOR PAYMENT AGAINST HER AND HER HUSBAND
WHICH SHOULD BE PROSECUTED AS A MONEY CLAIM.
B. THE RESPONDENT COURT COMMITTED REVERSIBLE ERROR IN APPLYING IMPERIAL
INSURANCE INC. v. DAVID, 133 SCRA 317, WHICH IS NOT APPLICABLE BECAUSE THE
SPOUSES IN THIS CASE DID NOT BIND THEMSELVES JOINTLY AND SEVERALLY IN
FAVOR OF RESPONDENT JARING.7
The petition is meritorious. We hold that a creditor cannot sue the surviving spouse of a
decedent in an ordinary proceeding for the collection of a sum of money chargeable against the
conjugal partnership and that the proper remedy is for him to file a claim in the settlement of
estate of the decedent.
First. Petitioner's husband died on December 1, 1988, more than ten months before private
respondent filed the collection suit in the trial court on October 13, 1989. This case thus falls
outside of the ambit of Rule 3, §21 which deals with dismissals of collection suits because of the
death of the defendant during the pendency of the case and the subsequent procedure to be
undertaken by the plaintiff, i.e., the filing of claim in the proceeding for the settlement of the
decedent's estate. As already noted, Rule 3, §20 of the 1997 Rules of Civil Procedure now
provides that the case will be allowed to continue until entry of final judgment. A favorable
judgment obtained by the plaintiff therein will then be enforced in the manner especially provided
in the Rules for prosecuting claims against the estate of a deceased person. The issue to be
resolved is whether private respondent can, in the first place, file this case against petitioner.
Petitioner and her late husband, together with the Manuel spouses, signed the sublease contract
binding themselves to pay the amount of stipulated rent. Under the law, the Alipios' obligation
(and also that of the Manuels) is one which is chargeable against their conjugal partnership.
Under Art. 161(1) of the Civil Code, the conjugal partnership is liable for ¾
All debts and obligations contracted by the husband for the benefit of the conjugal partnership,
and those contracted by the wife, also for the same purpose, in the cases where she may legally
bind the partnership.8
When petitioner's husband died, their conjugal partnership was automatically dissolved9 and
debts chargeable against it are to be paid in the settlement of estate proceedings in accordance
with Rule 73, §2 which states:
Where estate settled upon dissolution of marriage. ¾ When the marriage is dissolved by the
death of the husband or wife, the community property shall be inventoried, administered, and
liquidated, and the debts thereof paid, in the testate or intestate proceedings of the deceased
spouse. If both spouses have died, the conjugal partnership shall be liquidated in the testate or
intestate proceedings of either.
As held in Calma v. Tañedo,10 after the death of either of the spouses, no complaint for the
collection of indebtedness chargeable against the conjugal partnership can be brought against
the surviving spouse. Instead, the claim must be made in the proceedings for the liquidation and
settlement of the conjugal property. The reason for this is that upon the death of one spouse, the
powers of administration of the surviving spouse ceases and is passed to the administrator
appointed by the court having jurisdiction over the settlement of estate proceedings. 11Indeed, the
surviving spouse is not even a de facto administrator such that conveyances made by him of any
property belonging to the partnership prior to the liquidation of the mass of conjugal partnership
property is void.12
The ruling in Calma v. Tañedo was reaffirmed in the recent case of Ventura v. Militante.13 In that
case, the surviving wife was sued in an amended complaint for a sum of money based on an
obligation allegedly contracted by her and her late husband. The defendant, who had earlier
moved to dismiss the case, opposed the admission of the amended complaint on the ground
that the death of her husband terminated their conjugal partnership and that the plaintiff's claim,
which was chargeable against the partnership, should be made in the proceedings for the
settlement of his estate. The trial court nevertheless admitted the complaint and ruled, as the
Court of Appeals did in this case, that since the defendant was also a party to the obligation, the
death of her husband did not preclude the plaintiff from filing an ordinary collection suit against
her. On appeal, the Court reversed, holding that ¾
as correctly argued by petitioner, the conjugal partnership terminates upon the death of either
spouse. . . . Where a complaint is brought against the surviving spouse for the recovery of an
indebtedness chargeable against said conjugal [partnership], any judgment obtained thereby is
void. The proper action should be in the form of a claim to be filed in the testate or intestate
proceedings of the deceased spouse.
In many cases as in the instant one, even after the death of one of the spouses, there is no
liquidation of the conjugal partnership. This does not mean, however, that the conjugal
partnership continues. And private respondent cannot be said to have no remedy. Under Sec. 6,
Rule 78 of the Revised Rules of Court, he may apply in court for letters of administration in his
capacity as a principal creditor of the deceased . . . if after thirty (30) days from his death,
petitioner failed to apply for administration or request that administration be granted to some
other person.14
The cases relied upon by the Court of Appeals in support of its ruling, namely, Climaco v. Siy
Uy15 and Imperial Insurance, Inc. v. David,16 are based on different sets of facts. In Climaco, the
defendants, Carlos Siy Uy and Manuel Co, were sued for damages for malicious prosecution.
Thus, apart from the fact the claim was not against any conjugal partnership, it was one which
does not survive the death of defendant Uy, which merely resulted in the dismissal of the case
as to him but not as to the remaining defendant Manuel Co.
With regard to the case of Imperial, the spouses therein jointly and severally executed an
indemnity agreement which became the basis of a collection suit filed against the wife after her
husband had died. For this reason, the Court ruled that since the spouses' liability was solidary,
the surviving spouse could be independently sued in an ordinary action for the enforcement of
the entire obligation.
It must be noted that for marriages governed by the rules of conjugal partnership of gains, an
obligation entered into by the husband and wife is chargeable against their conjugal partnership
and it is the partnership which is primarily bound for its repayment. 17 Thus, when the spouses
are sued for the enforcement of an obligation entered into by them, they are being impleaded in
their capacity as representatives of the conjugal partnership and not as independent debtors
such that the concept of joint or solidary liability, as between them, does not apply. But even
assuming the contrary to be true, the nature of the obligation involved in this case, as will be
discussed later, is not solidary but rather merely joint, making Imperial still inapplicable to this
case.
From the foregoing, it is clear that private respondent cannot maintain the present suit against
petitioner.1âwphi1 Rather, his remedy is to file a claim against the Alipios in the proceeding for
the settlement of the estate of petitioner's husband or, if none has been commenced, he can file
a petition either for the issuance of letters of administration18 or for the allowance of
will,19 depending on whether petitioner's husband died intestate or testate. Private respondent
cannot short-circuit this procedure by lumping his claim against the Alipios with those against the
Manuels considering that, aside from petitioner's lack of authority to represent their conjugal
estate, the inventory of the Alipios' conjugal property is necessary before any claim chargeable
against it can be paid. Needless to say, such power exclusively pertains to the court having
jurisdiction over the settlement of the decedent's estate and not to any other court.
Second. The trial court ordered petitioner and the Manuel spouses to pay private respondent
the unpaid balance of the agreed rent in the amount of ₱50,600.00 without specifying whether
the amount is to be paid by them jointly or solidarily. In connection with this, Art. 1207 of the Civil
Code provides:
of ₱50,600.00 should be divided into two so that each couple is liable to pay the amount of
₱25,300.00.
WHEREFORE, the petition is GRANTED. Bienvenido Manuel and Remedios Manuel are
ordered to pay the amount of ₱25,300.00, the attorney's fees in the amount of ₱10,000.00 and
the costs of the suit. The complaint against petitioner is dismissed without prejudice to the filing
of a claim by private respondent in the proceedings for the settlement of estate of Placido Alipio
for the collection of the share of the Alipio spouses in the unpaid balance of the rent in the
amount of ₱25,300.00.
SO ORDERED.

The concurrence of two or more creditors or of two or more debtors in one and the same
obligation does not imply that each one of the former has a right to demand, or that each one of
the latter is bound to render, entire compliance with the prestations. There is a solidary liability
only when the obligation expressly so estates, or when the law or the nature of the obligation
requires solidarity.

Indeed, if from the law or the nature or the wording of the obligation the contrary does not
appear, an obligation is presumed to be only joint, i.e., the debt is divided into as many equal
shares as there are debtors, each debt being considered distinct from one another. 20

Private respondent does not cite any provision of law which provides that when there are two or
more lessees, or in this case, sublessees, the latter's obligation to pay the rent is solidary. To be
sure, should the lessees or sublessees refuse to vacate the leased property after the expiration
of the lease period and despite due demands by the lessor, they can be held jointly and
severally liable to pay for the use of the property. The basis of their solidary liability is not the
contract of lease or sublease but the fact that they have become joint tortfeasors.21 In the case at
bar, there is no allegation that the sublessees refused to vacate the fishpond after the expiration
of the term of the sublease. Indeed, the unpaid balance sought to be collected by private
respondent in his collection suit became due on June 30, 1989, long before the sublease
expired on September 12, 1990.

Neither does petitioner contend that it is the nature of lease that when there are more than two
lessees or sublessees their liability is solidary. On the other hand, the pertinent portion of the
contract involved in this case reads:22

2. That the total lease rental for the sub-leased fishpond for the entire period of three (3) years
and two (2) months is FOUR HUNDRED EIGHT-FIVE THOUSAND SIX HUNDRED
(₱485,600.00) PESOS, including all the improvements, prawns, milkfishes, crabs and related
species thereon as well all fishing equipment, paraphernalia and accessories. The said amount
shall be paid to the Sub-Lessor by the Sub-Lessees in the following manner, to wit:

A. Three hundred thousand (₱300,000.00) Pesos upon signing this contract; and

B. One Hundred Eight-Five Thousand Six-Hundred (₱185,6000.00) Pesos to be paid on June

30, 1989.

Clearly, the liability of the sublessees is merely joint. Since the obligation of the Manuel and
Alipio spouses is chargeable against their respective conjugal partnerships, the unpaid balance
G.R. No. 77660 July 28, 1988
ELADIO DILLENA petitioner,
vs.
COURT OF APPEALS and AURORA CARREON, respondents.
Mario A. Batongbacal for petitioner.
Oscar A. Inocentes & Associates for respondent Aurora Carreon.
BIDIN, J.:
This is a petition for review on certiorari of the decision dated NOVEMBER 14, 1986 of the
respondent Court of Appeals which dismissed the petition for certiorari (CA-G.R. SP No. 08404)
filed by herein petitioner Eladio Dillena to nullify the orders dated August 10, 1984, September
13, 1984 and October 28, 1985 of the RTC, Branch 84, Quezon City, sitting as a probate court in
Sp. Proc. No. Q-19378. The said orders annulled the sale of fishponds under administration,
executed by private respondent Aurora Carreon, as administratrix of the estate under
administration in favor of petitioner, for the reason that said sale was made without authority
from and/or approval of the probate court.
The facts of this case as found by the Court of Appeals are as follows:
Spouses Dolores Sebastian and Rufino Carreon died on March 7, 1974 and August 21, 1974, in
Quezon City and Manila, respectively, leaving an adopted daughter Aurora Carreon, private
respondent herein. On October 21, 1974, Fausta Carreon Herrera, sister of the deceased Rufino
Carreon instituted Sp. Proc. No. Q-19378 entitled "In the Matter of the Intestate Estate of the
Deceased Spouses Rufino B. Carreon and Dolores Sebastian — Petition for Letters of
Administration" before the then CFI, Branch XXXI, Quezon City. On November 7, 1974, the said
court appointed Fausta Carreon Herrera as Special Administratrix only for the purpose of
receiving and collecting all sums of money due and payable to the estate, in addition to the
powers and duties provided for under Section 2, Rule 80 of the Rules of Court.
On October 3, 1975, private respondent executed an Extra-Judicial Settlement of the Estate of
the deceased spouses, adjudicating to herself all the real properties of the said spouses.
On October 14, 1975, private respondent filed a motion to revoke the letters of administration
issued to Fausta Carreon Herrera. Accordingly, the lower court, on March 31, 1976, granted the
motion and allowed private respondent to administer the properties of the estate. Thereafter,
private respondent acted as administratrix of the estate although it was only on June 27, 1980
that the appointment of private respondent was formalized and she was granted letters of
administration on July 1, 1980.
Meanwhile, on November 8, 1978, private respondent, while being the administratrix of the
estate, executed an extrajudicial adjudication of the three (3) fishpond properties of the
deceased spouses in Hagonoy, Bulacan. By virtue of said extrajudicial adjudication, Transfer
Certificates of Title Nos. 140243, 140244 and 140245 in the names of the deceased spouses
were cancelled and in lieu thereof, Transfer Certificates of Title were issued in the name of
private respondent.
On November 13, 1978, private respondent sold in favor of petitioner the three fishponds in
question without the knowledge and approval of the probate court. Prior to the sale, petitioner
had been leasing these fishponds for several years. As a result of the sale, transfer certificates
of title over the said properties were issued in favor of petitioner.
Aside from the aforesaid sale, petitioner previously sold real properties of the estate to Luisa S.
Rodriguez on July 19, 1977 and to the Starlight Industrial Co., Inc. on December 7, 1977. Both
sales were likewise made without the approval of the probate court. The said court, having
learned of the aforesaid transfers of the real properties without its approval, issued an order
dated September 22, 1981 requiring the three vendees to appear on October 23, 1981 and to
explain why the deeds of sale, as well as the transfer certificates of title issued as a
consequence thereof, should not be cancelled for having been executed without court approval.
The aforesaid vendees were duly furnished with copies of the order dated September 22, 1981.
Only Starlight Industries, Co., Inc. appeared on October 23, 1981. Again, the vendees were
required to submit their respective explanations and the hearing on the incident was re-set to
November 11, 1981. Petitioner was again duly served with a copy of said order.
At the scheduled hearing, Starlight Industries Co., Inc. submitted an explanation, thus, the sale
in its favor was approved and confirmed by the probate court. However, vendees Luisa S.
Rodriguez and petitioner Eladio Dillena neither appeared at the scheduled hearing nor submitted
their explanations as to why the sales in their favor should not be cancelled for having been
executed without court approval.
On August 10, 1984, acting on the claim of Atty. Eugenio Balatbat for attorney's fees on account
of his legal services rendered to private respondent and to the estate, the probate court
approved the payment of said fees to be paid out of the properties of the estate. The same was
ordered annotated as a lien on the transfer certificates of title of the real properties of the estate,
including those properties transferred by private respondent without court approval.
On September 13, 1984, the lower court, on motion of Atty. Balatbat for a definitive ruling as to
the validity of the sale made by administratrix-private respondent to Luisa S. Rodriguez and
petitioner, declared that the transfers in favor of the aforesaid vendees are null and void and
without force and effect for having been made without court authority and approval. Petitioner
was served with a copy of the said order on December 13, 1984.
On July 25, 1985, or after seven (7) months from the time the order of September 13, 1984 was
received by petitioner, the latter filed a petition before the probate court in the same Sp. Proc No.
Q-19378 by way of special appearance alleging that said court, in view of its limited jurisdiction
as a probate court, has no power to annul the sale of the fishponds in question; that the orders
annulling the sale are void because he is not a party to Sp. Proc. No. Q-19378; that the lower
court has no jurisdiction over the res, which are located in Bulacan province.
After hearing the petition and the opposition therein, the lower court, on October 28, 1985,
denied the petition and ordered petitioner to return physical possession of the fishponds to
private respondent. Petitioner sought reconsideration of the aforesaid order which was denied.
On February 20, 1986, a petition for certiorari was instituted by petitioner before the respondent
Court of Appeals and as earlier mentioned, the said court, on November 14, 1986, dismissed the
petition. Petitioner's motion for reconsideration was likewise denied on March 2, 1987; hence,
this petition.
In the present petition, petitioner sets forth as issues the following: 1) that the Court of Appeals
in upholding the order of the trial court, deprived him of his property without due process of law
because he was not a proper party in the court a quo; 2) that the Court of Appeals violated the
rule that the jurisdiction of a court, when acting in the settlement of the estate, is limited and
cannot encroach upon questions of ownership; and 3) that the nullification and revocation of the
transfer certificates of title were brought about by the dictate of the probate court to annotate an
attorney's lien thereon, an order which is discordant with law and jurisprudence.
After a careful examination of the entire record of the case, We find the instant Petition devoid of
merit.
Anent the first issue, petitioner postulates that he was deprived of the questioned fishponds
without due process; and that not being an original party before the probate court, he was not
summoned thereto.
We are not persuaded. The probate court in its order dated September 22, 1981 issued in the
exercise of its probate jurisdiction (Sec. 3, Rule 730, required petitioner to appear before it on
October 23, 1 981 to explain why the deed of sale in favor of petitioner, as well as the transfer
certificates of title issued as a consequence thereof should not be cancelled for having been
executed without authority from and approval of the court. Petitioner, despite receipt of the
aforesaid order, failed to appear on the scheduled date. However, the probate court still gave
him fifteen (15) days to submit the required explanation and the case was re-set to November
11, 1981. But then again, petitioner, despite receipt of the second notice requiring his
appearance, chose not to appear and totally ignored the order of the probate court to submit the
explanation. One who was given full opportunity to present his evidence and who failed to do so
cannot complain that he was denied due process when the court rendered its decision (Ganadin
vs. Ramos, 99 SCRA 613).
As found out by the Court of Appeals, petitioner was afforded every opportunity to present his
explanation but he repeatedly failed to appear on the two scheduled hearings for the purpose.
As said in Municipality of Daet vs. Hidalgo Enterprises, 138 SCRA 265, and re-echoed in Divine
Word High School vs. NLRC, 143 SCRA 346, there is no denial of due process where petitioner
was afforded an opportunity to present his case.
Moreover, petitioner, on July 25, 1985, filed a petition before the probate court, by way of special
appearance, precisely questioning the power of the said court to declare null and void the sale of
the fishponds involved herein. As has been stated, the lower court after hearing the petition and
the opposition thereto denied the same.
Clearly, petitioner was given full opportunity to present his case. Thus, We give no credence to
petitioner's assertion that he was denied due process of law.
On the second issue, petitioner asseverates that the probate court, in view of its limited
jurisdiction, cannot declare as null and void, the sale of the questioned properties.
At the outset, it must be emphasized that the questioned properties (fishponds) were included in
the inventory of properties of the estate submitted by then administratrix Fausta Carreon Herrera
on November 14, 1974. Private respondent was appointed as administratrix of the estate on
March 31, 1976 in lieu of Fausta Carreon Herrera. On November 13, 1978, the questioned deed
of sale of the fishponds was executed between petitioner and private respondent without notice
to and approval of the probate court. Even after the said sale, administratrix Aurora Carreon still
included the three fishponds as among the real properties of the estate in her inventory
submitted on August 13, 1981. In fact, as stated by the Court of Appeals, petitioner, at the time
of the sale of the fishponds in question, knew that the same were part of the estate under
administration. Said the Court of Appeals:
Moreover, Dillena himself had knowledge that the fishponds are included in the inventory of
properties in the estate of the deceased spouses and that they are under special proceedings,
hence, no singular act of Aurora Carreon could bind these fishponds more so as Dillena had
been leasing these fishponds for years. (Court of Appeals Decision, p. 7).
The evidence shows that when the questioned properties were sold without court approval by
private respondent to petitioner, the same were under administration. The subject properties
therefore are under the jurisdiction of the probate court which according to our settled
jurisprudence has the authority to approve any disposition regarding properties under
administration.
An administratrix of an estate already subject of a special proceeding pending before the
probate court cannot enjoy blanket authority to dispose of real properties as she pleases. More
emphatic is the declaration We made in Estate of Olave vs. Reyes (123 SCRA 767) wherein We
stated that when the estate of the deceased person is already the subject of a testate or
intestate proceeding, the administrator cannot enter into any transaction involving it without prior
approval of the probate court.
Only recently, in Manotok Realty, Inc. vs. Court of Appeals (149 SCRA 174), We held that the
sale of an immovable property belonging to an estate of a decedent, in a special proceeding,
needs court approval, thus:
Although the Rules of Court do not specifically state that the sale of an immovable property
belonging to an estate of a decedent, in a special proceeding, should be made with the approval
of the court, this authority is necessarily included in its capacity as a probate court.
This pronouncement finds support in the previous case of Dolores Vda. de Gil vs. Agustin
Cancio (14 SCRA 797) wherein We emphasized that it is within the jurisdiction of a probate court
to approve the sale of properties of a deceased person by his prospective heirs before final
adjudication. Consequently, it is error to say that this matter should be threshed out in a
separate action.
It being settled that property under administration needs the approval of the probate court before
it can be disposed of, any unauthorized disposition does not bind the estate and is null and void.
As early as 1921 in the case of Godoy vs. Orellano (42 Phil. 347), We laid down the rule that a
sale by an administrator of property of the deceased, which is not authorized by the probate
court is null and void and title does not pass to the purchaser.
There is hardly any doubt that the probate court can declare null and void the disposition of the
property under administration, made by private respondent, the same having been effected
without authority from the said court. It is the probate court that has the power to authorize
and/or approve the sale (Sections 4 and 7, Rule 89), hence, a fortiori, it is said court that can
declare it null and void for as long as the proceedings had not been closed or terminated. To
uphold petitioner's contention that the probate court cannot annul the unauthorized sale, would
render meaningless the power pertaining to the said court. Sales of properties under
administration which do not comply with the requisites under sections 4 and 7 of Rule 89 are null
and void (Bonaga vs. Soler, 2 SCRA 755).

On the third issue, petitioner questions the order of the probate court allowing the annotation of
an attorney's lien on the transfer certificate of title of the estate subject of the special
proceedings. Again, the issue raised does not deserve any consideration because it is already
settled that the application to fix attorney's fees may be made before and passed upon by the
probate court in the same proceedings where attorney's services were rendered (Palanca vs.
Pecson, et al., 94 Phil. 419).

Finally, it may not be amiss to point out that the order dated September 13, 1984 of the probate
court nullifying the deed of sale between petitioner and private respondent was received by the
former on December 17, 1984. However, petitioner did not appeal from said order to the
appellate court. Instead, on July 25, 1985 or about seven (7) months thereafter, petitioner filed a
petition before the probate court questioning the power of the said court to nullify the deed of
sale which petition was likewise denied on October 25, 1985.

In view thereof, the order dated September 13, 1984, nullifying the deed of sale had long
become final and executory for failure of petitioner to appeal therefrom within the reglementary
period. On this score alone, the petition for certiorari which was belatedly filed by petitioner
before the Court of Appeals on February 20, 1986 should have been dismissed outright because
the remedy of certiorari does not lie where appeal has been lost. certiorari cannot take the place
of an appeal (Santos, Jr. vs. Court of Appeals, 152 SCRA 378; De la Cruz vs. Intermediate
Appellate Court, 134 SCRA 417; Santiago vs. Castro, 128 SCRA 545).

WHEREFORE, the petition is DISMISSED and the assailed decision is hereby AFFIRMED.