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SPECPRO FULL CASES

Anastacia Mariquit as well as of the order of July 15, 1970 denying reconsideration of the first order. The above-named spouses both died leaving as the only property to be inherited by their heirs a parcel of land, Lot 1327, Cad. 292, covered by OCT No. RP-355 (262) of the Register of Deeds of Iligan City, with an assessed value of P590.00. Accordingly, herein respondent Cenon Medelo, one of the grandchildren of the said spouses, (being one of the children of their predeceased daughter Digna Ermac) filed a petition for summary settlement of said estate. All requirements having been complied with, and there being no opposition thereto, on January 21, 1970, respondent court issued an order granting the same, enumerating all the heirs entitled to participate in the inheritance and ordering petitioner to present the proper project of partition of the lot aforementioned. On February 2, 1970, however, petitioner Pedro Ermac, one of the children of the deceased spouses, moved for reconsideration of the order of settlement, praying for the elimination of Lot 1327 from the estate on the ground that it belongs to him and his wife. This motion was denied, the court ruling that the proper remedy is a separate suit. Accordingly, petitioner, together with his children, filed the corresponding action, Civil Case No. 1564 of the Court of First Instance of Lanao del Norte. And when upon submission of the project of partition, the respondent court approved the same over his objection predicated on the pendency of Civil Case No. 1564, petitioner moved for reconsideration, but the motion was denied. Hence, the present petition. The sole question to be resolved here is whether or not respondent court exceeded its jurisdiction or gravely abused its discretion in approving the project of partition covering Lot No. 1327 notwithstanding that it is being claimed by petitioners in a separate civil action to be their property and not of the estate. Such being the case, the petition cannot prosper. The policy of the law is to terminate proceedings for the settlement of the estate of deceased persons with the least loss

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION

G.R. No. L-32281 June 19, 1975 PEDRO ERMAC, and his children, ELENA, CARLOS, ANTONIO, LUCIANO, HILARIO, INDALECIO and FRANCISCA, all surnamed ERMAC, petitioners, vs. CENON MEDELO and JUDGE HERNANDO PINEDA as presiding judge of Branch II of the LANAO DEL NORTE Court of First Instance, respondents. Anthony Santos & Teddy S. Rodriguez for petitioners. Irene D. Jurado for respondents.

BARREDO, J.: Petition for certiorari to set aside the order of respondent court of June 25, 1970, in its Special Proceedings No. 1517, approving the project of partition filed by private respondent, pursuant to the order of the same court providing for summary settlement of the intestate estate of the deceased spouses Potenciano Ermac and

of time. This is specially true with small estates for which the rules 3 The case of Gutierrez vs. Cruz, 24 SCRA 69, provide precisely a summary procedure dispensing with the relied upon by petitioner did not involve a appointment of an administrator together with the other involved summary settlement. and cumbersome steps ordinarily required in the determination of the assets of the deceased and the persons entitled to inhirit therefrom and the payment of his obligations. Definitely, the probate court is not the best forum for the resolution of adverse FIRST DIVISION claims of ownership of any property ostensibly belonging to the decedent's estate. 1 While there are settled exceptions to this rule [G.R. No. L-8492. February 29, 1956.] as applied to regular administration proceedings, 2 it is not proper to delay the summary settlement of Indeceased person just a the Matter of the Declaration of the Civil Status of: LOURDES G. LUKBAN,Petitioner-App because an heir or a third person claims that certain properties do OF THE PHILIPPINES, Oppositor-Appellee. not belong to the estate but to him. 3 Such claim must be ventilated in an independent action, and the probate court should proceed to the distribution of the estate, if there are no other legal DECISION obstacles to it, for after all, such distribution must always be subject to the results of the suit. For the protection of the claimant the appropriate step is to have theThis isannotation of lis proper a petition filed in the Court of First Instance of Rizal for a declaration that Petitioner is a pendens entered. Francisco Chuidian who is presumed to be dead and has no legal impediment to contract a subsequen

Accordingly, the instant petition is The Solicitor General opposed the petition on the ground that the same is not authorized by dismissed, without prejudice to presented her evidence, petitioner having the proper annotation of lis pendens regarding the court sustained the opposition and dismissed the petition. Hence this app Civil Case No. 1564 made on the title covering Lot 1327. Petitioner herein, contracted marriage with Francisco Chuidian on December 10, 1 Costs against petitioners.

Church, Manila. On December 27, of the same year, Francisco left Lourdes after a violent quarrel an been heard from despite diligent search made by her. She also inquired about him from his parents was able to indicate his whereabouts. She has no knowledge if he is still alive, his last known addr Fernando (Chairman), Antonio, Aquino and Concepcionbelieves that he is already dead because he had been absent for more than twenty Paco, Manila. She Jr., JJ., concur. intends to marry again, she desires that her civil status be defined in order that she may be relieved

Footnotes

We believe that the petition at bar comes within the purview of our decision in the case of Nicolai Sz Sup., 243, wherein it was held that a petition for judicial declaration that Petitioners husband is pres be entertained because it is not authorized by law, and if such declaration cannot be made in a spec the Appeals, much less 1 Bernardo vs. Court ofpresent, 7 SCRA 367.can the court determine the status of Petitioner as a widow since this matter m upon the fact of death of the husband. This the court can declare upon proper evidence, but not to presumed to 2 Guzman vs. Anog, 37 Phil. 61. be dead. (Nicolai Szartraw, 46 Off. Gaz., 1st sup. 243).

The philosophy behind the ruling that such judicial pronouncement cannot be made in a proceedi

ase above-cited. Thus, we there said that A judicial pronouncement to that effect, even if final and ll be a prima facie presumption only. It is still disputable. It is for that reason that it cannot be the subject ncement or declaration, if it is the only question or matter involved in a case, or upon which a competent It is, therefore, clear that a judicial declaration that a person is presumptively dead, because he had been ven years, being a presumption juris tantum only, subject to contrary proof, cannot reach the stage of nal.

at the remedy she is seeking for can be granted in the present proceedings because in the case of Hagans hil., 880, it was declared that a special proceeding is an application or proceeding to establish the status or a particular fact; but, as already said, that remedy can be invoked if the purpose is to seek the THIRD DIVISION h of the husband, and not, as in the present case, to establish a presumption of death. If it can be n that the husband is dead, the court would not certainly deny a declaration to that effect as has been e of Nicolas Szartraw, supra.
chan roblesv irtualawlibrary

s that the present petition can be entertained because article 349 of the Revised Penal Code, in defining ANGELITA VALDEZ, hat a person commits that crime if he contracts a second marriage before the absent spouse has been vely dead by means of a judgment rendered in the proper proceedings Petitioner, claimed, the present and, it is n the purview of this legal provision. The argument is untenable for the words proper proceedings used nly refer to those authorized by law such as those which refer to the administration or settlement of the d person (Articles 390 and 391, new Civil Code). That such is the correct interpretation of the provision in ort in the case of Jones vs. Hortiguela, 64 Phil., 179, wherein this Court made the following comment:

G.R. No. 180863

Present:

f the civil marriage law, it is not necessary to have the former spouse judicially declared an absentee. The nce made in accordance with the provisions of the Civil Code has for its sole purpose to enable the taking recautions for the administration of the estate of the absentee. For the celebration of civil marriage, nly requires that the former spouse has been absent for seven consecutive years at the time of the second spouse present does not know his or her former spouse to be living, that each former spouse is generally - versus and the spouse present so believes at the time of the celebration of the marriage (section III, paragraph 2, 68).

YNARES-SANTIAGO, J. Chairperson, CHICO-NAZARIO, VELASCO, JR., NACHURA, and PERALTA, JJ.

ed from is affirmed, without pronouncement as to costs.

a, Montemayor, Reyes, A., Jugo, Labrador, Concepcion, Reyes, J. B. L. and Endencia,

Promulgated:

REPUBLIC OF THE PHILIPPINES,

He and petitioner talked for several hours and they agreed to separate. They executed a document to that Respondent. September 8, 2009[1] That was the last time petitioner saw him. effect. After that, petitioner didnt hear any news of Sofio, his whereabouts or even if he was alive or not.[2] x-------------------------------------------------------------------------Believing that Sofio was already dead, petitioner ----------x married Virgilio Reyes on June 20, 1985. [3] DECISION Subsequently, however, Virgilios application for naturalization filed with the United States Department NACHURA, J.: of Homeland Security was denied because petitioners marriage to Sofio was subsisting.[4] Hence, on March Before this Court is a Petition for Review 29, 2007, petitioner filed a Petition before the RTC of on Certiorari under Rule 45 of the Rules of Court Camiling, Tarlac seeking the declaration of assailing the Decision of the Regional Trial Court (RTC) presumptive death of Sofio. of Camiling, Tarlac dated November 12, 2007 dismissing petitioner Angelita Valdezs petition for the declaration of presumptive death of her husband, Sofio Polborosa (Sofio). The facts of the case are as follows: Petitioner married Sofio on January 11, 1971 in Pateros, Rizal. On December 13, 1971, petitioner gave birth to the spouses only child, Nancy. According to petitioner, she and Sofio argued constantly because the latter was unemployed and did not bring home any money. In March 1972, Sofio left their conjugal dwelling. Petitioner and their child waited for him to return but, finally, in May 1972, petitioner decided to go back to her parents home in Bancay 1st, Camiling, Tarlac. Three years passed without any word from Sofio. In October 1975, Sofio showed up at Bancay 1st. The RTC rendered its Decision[5] on November 12, 2007, dismissing the Petition for lack of merit. The RTC held that Angelita was not able to prove the wellgrounded belief that her husband Sofio Polborosa was already dead. It said that under Article 41 of the Family Code, the present spouse is burdened to prove that her spouse has been absent and that she has a well-founded belief that the absent spouse is already dead before the present spouse may contract a subsequent marriage. This belief, the RTC said, must be the result of proper and honest-to-goodness inquiries and efforts to ascertain the whereabouts of the absent spouse. The RTC found that, by petitioners own admission, she did not try to find her husband anymore in light of

their mutual agreement to live separately. Likewise, petitioners daughter testified that her mother prevented her from looking for her father. The RTC also said there is a strong possibility that Sofio is still alive, considering that he would have been only 61 years old by then, and people who have reached their 60s have not become increasingly low in health and spirits, and, even assuming as true petitioners testimony that Sofio was a chain smoker and a drunkard, there is no evidence that he continues to drink and smoke until now. Petitioner filed a motion for reconsideration.[6] She argued that it is the Civil Code that applies in this case and not the Family Code since petitioners marriage to Sofio was celebrated on January 11, 1971, long before the Family Code took effect. Petitioner further argued that she had acquired a vested right under the provisions of the Civil Code and the stricter provisions of the Family Code should not be applied against her because Title XIV of the Civil Code, where Articles 384 and 390 on declaration of absence and presumption of death, respectively, can be found, was not expressly repealed by the Family Code. To apply the stricter provisions of the Family Code will impair the rights petitioner had acquired under the Civil Code. The RTC denied the Motion for Reconsideration in a Resolution dated December 10, 2007.[7]

Petitioner now comes before this Court seeking the reversal of the RTC Decision and Motion for Reconsideration. In its Manifestation and Motion,[8] the Office of the Solicitor General (OSG) recommended that the Court set aside the assailed RTC Decision and grant the Petition to declare Sofio presumptively dead. The OSG argues that the requirement of well-founded belief under Article 41 of the Family Code is not applicable to the instant case. It said that petitioner could not be expected to comply with this requirement because it was not yet in existence during her marriage to Virgilio Reyes in 1985. The OSG further argues that before the effectivity of the Family Code, petitioner already acquired a vested right as to the validity of her marriage to Virgilio Reyes based on the presumed death of Sofio under the Civil Code. This vested right and the presumption of Sofios death, the OSG posits, could not be affected by the obligations created under the Family Code.[9] Next, the OSG contends that Article 390 of the Civil Code was not repealed by Article 41 of the Family Code.[10] Title XIV of the Civil Code, the OSG said, was not one of those expressly repealed by the Family Code. Moreover, Article 256 of the Family Code provides that its provisions shall not be retroactively applied if they will prejudice or impair vested or acquired rights.[11]

The RTC Decision, insofar as it dismissed the Petition, is affirmed. However, we must state that we are denying the Petition on grounds different from those cited in the RTC Decision. Initially, we discuss a procedural issue. Under the Rules of Court, a party may directly appeal to this Court from a decision of the trial court only on pure questions of law. A question of law lies, on one hand, when the doubt or difference arises as to what the law is on a certain set of facts; on the other hand, a question of fact exists when the doubt or difference arises as to the truth or falsehood of the alleged facts. Here, the facts are not disputed; the controversy merely relates to the correct application of the law or jurisprudence to the undisputed facts.[12] The RTC erred in applying the provisions of the Family Code and holding that petitioner needed to prove a well-founded belief that Sofio was already dead. The RTC applied Article 41 of the Family Code, to wit: Art. 41. A marriage contracted by any person during subsistence of a previous marriage shall be null and void, unless before the celebration of the subsequent marriage, the prior spouse had been absent for four consecutive years and the spouse present has a well-founded belief that the absent spouse was already dead. In case of disappearance where there is danger under the circumstances set

forth in the provisions of Article 391 of the Civil Code, an absence of only two years shall be sufficient. For the purpose of contracting a subsequent marriage under the preceding paragraph, the spouse present must institute a summary proceeding as provided in this Code for the declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse. It is readily apparent, however, that the marriages of petitioner to Sofio and Virgilio on January 11, 1971 and June 20, 1985, respectively, were both celebrated under the auspices of the Civil Code. The pertinent provision of the Civil Code is Article 83: Art. 83. Any marriage subsequently contracted by any person during the lifetime of the first spouse of such person with any person other than such first spouse shall be illegal and void from its performance, unless: (1) The first marriage was annulled or dissolved; or (2) The first spouse had been absent for seven consecutive years at the time of the second marriage without the spouse present having news of the absentee being alive, of if the absentee, though he has been absent for less than seven years, is generally considered as dead and believed to be so by the spouse present at the time of contracting such

subsequent marriage, or if the absentee is presumed dead according to Articles 390 and 391. The marriage so contracted shall be valid in any of the three cases until declared null and void by a competent court.

marriage, however, the law only requires that the former spouse has been absent for seven consecutive years at the time of the second marriage, that the spouse present does not know his or her former spouse to be living, that such former spouse is generally reputed to be dead and the spouse present so believes at the time of the celebration of the marriage.[13] Further, the Court explained that presumption of death cannot be the subject of court proceedings independent of the settlement of the absentees estate. In re Szatraw[14] is instructive. In that case, petitioner contracted marriage with a Polish national in 1937. They lived together as husband and wife for three years. Sometime in 1940, the husband, on the pretext of visiting some friends, left the conjugal abode with their child and never returned. After inquiring from friends, petitioner found that her husband went to Shanghai, China. However, friends who came from Shanghai told her that the husband was not seen there. In 1948, petitioner filed a petition for the declaration of presumptive death of her husband arguing that since the latter had been absent for more than seven years and she had not heard any news from him and about her child, she believes that he is dead. In deciding the case, the Court said: The petition is not for the settlement of the estate of Nicolai Szatraw, because it does not appear that he

Article 390 of the Civil Code states: Art. 390. After an absence of seven years, it being unknown whether or not the absentee still lives, he shall be presumed dead for all purposes, except for those of succession. The absentee shall not be presumed dead for the purpose of opening his succession till after an absence of ten years. If he disappeared after the age of seventy-five years, an absence of five years shall be sufficient in order that his succession may be opened.

The Court, on several occasions, had interpreted the above-quoted provision in this wise: For the purposes of the civil marriage law, it is not necessary to have the former spouse judicially declared an absentee. The declaration of absence made in accordance with the provisions of the Civil Code has for its sole purpose to enable the taking of the necessary precautions for the administration of the estate of the absentee. For the celebration of civil

possessed property brought to the marriage and because he had acquired no property during his married life with the petitioner. The rule invoked by the latter is merely one of evidence which permits the court to presume that a person is dead after the fact that such person had been unheard from in seven years had been established. This presumption may arise and be invoked and made in a case, either in an action or in a special proceeding, which is tried or heard by, and submitted for decision to, a competent court. Independently of such an action or special proceeding, the presumption of death cannot be invoked, nor can it be made the subject of an action or special proceeding. In this case, there is no right to be enforced nor is there a remedy prayed for by the petitioner against her absent husband. Neither is there a prayer for the final determination of his right or status or for the ascertainment of a particular fact (Hagans v. Wislizenus, 42 Phil. 880), for the petition does not pray for a declaration that the petitioner's husband is dead, but merely asks for a declaration that he be presumed dead because he had been unheard from in seven years. If there is any pretense at securing a declaration that the petitioner's husband is dead, such a pretension cannot be granted because it is unauthorized. The petition is for a declaration that the petitioner's husband is presumptively dead. But this declaration, even if judicially made, would not improve the petitioner's situation, because such a presumption is already established by law. A judicial pronouncement to

that effect, even if final and executory, would still be a prima facie presumption only. It is still disputable. It is for that reason that it cannot be the subject of a judicial pronouncement or declaration, if it is the only question or matter involved in a case, or upon which a competent court has to pass. The latter must decide finally the controversy between the parties, or determine finally the right or status of a party or establish finally a particular fact, out of which certain rights and obligations arise or may arise; and once such controversy is decided by a final judgment, or such right or status determined, or such particular fact established, by a final decree, then the judgment on the subject of the controversy, or the decree upon the right or status of a party or upon the existence of a particular fact, becomes res judicata, subject to no collateral attack, except in a few rare instances especially provided by law. It is, therefore, clear that a judicial declaration that a person is presumptively dead, because he had been unheard from in seven years, being a presumption juris tantum only, subject to contrary proof, cannot reach the stage of finality or become final. Proof of actual death of the person presumed dead because he had been unheard from in seven years, would have to be made in another proceeding to have such particular fact finally determined. If a judicial decree declaring a person presumptively dead, because he had not been heard from in seven years, cannot become final and

executory even after the lapse of the reglementary period within which an appeal may be taken, for such presumption is still disputable and remains subject to contrary proof, then a petition for such a declaration is useless, unnecessary, superfluous and of no benefit to the petitioner.[15] In Lukban v. Republic, petitioner Lourdes G. Lukban contracted marriage with Francisco Chuidian on December 10, 1933. A few days later, on December 27, Francisco left Lourdes after a violent quarrel. She did not hear from him after that day. Her diligent search, inquiries from his parents and friends, and search in his last known address, proved futile. Believing her husband was already dead since he had been absent for more than twenty years, petitioner filed a petition in 1956 for a declaration that she is a widow of her husband who is presumed to be dead and has no legal impediment to contract a subsequent marriage. On the other hand, the antecedents in Gue v. Republic[17] are similar to Szatraw. On January 5, 1946, Angelina Gues husband left Manila where they were residing and went to Shanghai, China. From that day on, he had not been heard of, had not written to her, nor in anyway communicated with her as to his whereabouts. Despite her efforts and diligence, she failed to locate him. After 11 years, she asked the court for a declaration of the presumption of death of Willian Gue, pursuant to the provisions of Article 390 of the Civil Code of thePhilippines.
[16]

In both cases, the Court reiterated its ruling in Szatraw. It held that a petition for judicial declaration that petitioner's husband is presumed to be dead cannot be entertained because it is not authorized by law.[18] From the foregoing, it can be gleaned that, under the Civil Code, the presumption of death is established by law[19] and no court declaration is needed for the presumption to arise. Since death is presumed to have taken place by the seventh year of absence,[20] Sofio is to be presumed dead starting October 1982. Consequently, at the time of petitioners marriage to Virgilio, there existed no impediment to petitioners capacity to marry, and the marriage is valid under paragraph 2 of Article 83 of the Civil Code. Further, considering that it is the Civil Code that applies, proof of well-founded belief is not required. Petitioner could not have been expected to comply with this requirement since the Family Code was not yet in effect at the time of her marriage to Virgilio. The enactment of the Family Code in 1988 does not change this conclusion. The Family Code itself states: Art. 256. This Code shall have retroactive effect insofar as it does not prejudice or impair vested or acquired rights in accordance with the Civil Code or other laws. To retroactively apply the provisions of the Family Code requiring petitioner to exhibit well-founded

belief will, ultimately, result in the invalidation of her second marriage, which was valid at the time it was celebrated. Such a situation would be untenable and would go against the objectives that the Family Code wishes to achieve. In sum, we hold that the Petition must be dismissed since no decree on the presumption of Sofios death can be granted under the Civil Code, the same presumption having arisen by operation of law. However, we declare that petitioner was capacitated to marry Virgilio at the time their marriage was celebrated in 1985 and, therefore, the said marriage is legal and valid. WHEREFORE, the foregoing premises considered, the Petition is DENIED. SO ORDERED. --------------------------------------------------------------------------------------------------------------------------------

PUNO, J., Chairperson, SANDOVALGUTIERREZ, - versus CORONA, AZCUNA, and GARCIA, JJ. Promulgate d: GLORIA A. VARGAS, AURORA VARGAS, RAMON VARGAS, October 31, 2006 MARITES VARGAS, EDELINA VARGAS AND GEMMA VARGAS, Respondents. x -------------------------------------------------------------------------------------- x

SECOND DIVISION
JOSEPH CUA, 156536 Petitioner, Present: G.R. No.

DECISION
AZCUNA, J.:

This is a petition for review under Rule 45 of the Rules of Court seeking the reversal of the decision[1] dated March 26, 2002, and the resolution[2] dated December 17, 2002, of the Court of Appeals in CA-G.R. SP No. 59869 entitled Gloria A. Vargas, Aurora Vargas, Ramon Vargas, Marites Vargas, Edelina Vargas and Gemma Vargas v. Joseph Cua.

unto themselves the lot in question, each one of them getting a share of 11 square meters. Florentino, Andres, Antonina and Gloria, however, did not sign the document. Only Ester, Visitacion, Juan, Zenaida and Rosario signed it. The Extra Judicial Settlement Among Heirs was published in the Catanduanes Tribune for three consecutive weeks.
[3]

The facts are as follows: A parcel of residential land with an area of 99 square meters located in San Juan, Virac, Catanduanes was left behind by the latePaulina Vargas. On February 4, 1994, a notarized Extra Judicial Settlement Among Heirs was executed by and among Paulina Vargas heirs, namely Ester Vargas, Visitacion Vargas, Juan Vargas, Zenaida V. Matienzo, Rosario V. Forteza, Andres Vargas, Gloria Vargas,Antonina Vargas and Florentino Vargas, partitioning and adjudicating

On November 15, 1994, an Extra Judicial Settlement Among Heirs with Sale[4] was again executed by and among the same heirs over the same property and also with the same sharings. Once more, only Ester, Visitacion, Juan, Zenaida and Rosario signed the document and their respective shares totaling 55 square meters were sold to Joseph Cua, petitioner herein. According to Gloria Vargas, the widow of Santiago Vargas and one of respondents herein, she came to know of the Extra Judicial Settlement Among Heirs with Sale dated November 16, 1994 only when

the original house built on the lot was being demolished sometime in May 1995.[5] She likewise claimed she was unaware that an earlier Extra Judicial Settlement Among Heirs dated February 4, 1994 involving the same property had been published in the Catanduanes Tribune.[6] After knowing of the sale of the 55 square meters to petitioner, Gloria Vargas tried to redeem the property, with the following letter[7] sent to petitioner on her behalf:
29th June 1995 Mr. Joseph Cua Capilihan, Virac, Catanduanes Sir: This is in behalf of my client, Ms. Aurora Vargas,[8] (c/o Atty. Prospero V. Tablizo) one of the lawful heirs of the late Paulina Vargas, original owner of Lot No. 214 of Virac, Poblacion covered by ARP No. 0310031 in her name. I understand that a document Extra Judicial Settlement Among Heirs with Sale was

executed by some of my clients co-heirs and alleged representatives of other co-heirs, by virtue of which document you acquired by purchase from the signatories to the said document, five (5) shares with a total area of fifty-five square meters of the above-described land. This is to serve you notice that my client shall exercise her right of legal redemption of said five (5) shares as well as other shares which you may likewise have acquired by purchase. And you are hereby given an option to agree to legal redemption within a period of fifteen (15) days from your receipt hereof. Should you fail to convey to me your agreement within said 15-day-period, proper legal action shall be taken by my client to redeem said shares. Thank you. Very truly yours, (Sgd.) JUAN G. ATENCIA

When the offer to redeem was refused and after having failed to reach an amicable settlement at the barangay level,[9] Gloria Vargas filed a case for annulment of Extra Judicial Settlement and Legal

Redemption of the lot with the Municipal Trial Court (MTC) of Virac, Catanduanes against petitioner and consigned the amount of P100,000 which is the amount of the purchase with the Clerk of Court on May 20, 1996.[10] Joining her in the action were her children with Santiago, namely, Aurora, Ramon, Marites, Edelina andGemma, all surnamed Vargas. Subsequently, Carlos Gianan, Jr. and Gloria Arcilla, heirs of the alleged primitive owner of the lot in question, Pedro Lakandula, intervened in the case.[11] Respondents claimed that as co-owners of the property, they may be subrogated to the rights of the purchaser by reimbursing him the price of the sale. They likewise alleged that the 30-day period following a written notice by the vendors to their coowners for them to exercise the right of redemption of the property had not yet set in as no written notice was sent to them. In effect, they claimed that the Extra

Judicial Settlement Among Heirs and the Extra Judicial Settlement Among Heirs with Sale were null and void and had no legal and binding effect on them.
[12]

After trial on the merits, the MTC rendered a decision[13] in favor of petitioner, dismissing the complaint as well as the complaint-in-intervention for lack of merit, and declaring the Deed of Extra Judicial Settlement Among Heirs with Sale valid and binding. The MTC upheld the sale to petitioner because the transaction purportedly occurred after the partition of the property among the co-owner heirs. The MTC opined that the other heirs could validly dispose of their respective shares. Moreover, the MTC found that although there was a failure to strictly comply with the requirements under Article 1088 of the Civil Code[14] for a written notice of sale to be served upon respondents by the vendors prior to the exercise of the formers right of redemption, this deficiency was cured by respondents actual knowledge of the sale, which was more than 30 days before the filing of their

complaint, and their consignation of the purchase price with the Clerk of Court, so that the latter action came too late. Finally, the MTC ruled that respondents failed to establish by competent proof petitioners bad faith in purchasing the portion of the property owned by respondents co-heirs.[15] On appeal, the Regional Trial Court (RTC), Branch 42, of Virac, Catanduanes affirmed the MTC decision in a judgment dated November 25, 1999. The matter was thereafter raised to the Court of Appeals (CA). The CA reversed the ruling of both lower courts in the assailed decision dated March 26, 2002, declaring that the Extra Judicial Settlement Among Heirs and the Extra Judicial Settlement Among Heirs with Sale, dated February 4, 1994 and November 15, 1994, respectively, were void and without any legal effect. The CA held that, pursuant to Section 1, Rule 74 of the Rules of Court, [16] the extrajudicial settlement made by the other co-heirs is not binding

upon respondents considering the latter never participated in it nor did they ever signify their consent to the same. His motion for reconsideration having been denied, petitioner filed the present petition for review. The issues are: Whether heirs are deemed constructively notified and bound, regardless of their failure to participate therein, by an extrajudicial settlement and partition of estate when the extrajudicial settlement and partition has been duly published; and, Assuming a published extrajudicial settlement and partition does not bind persons who did not participate therein, whether the written notice required to be served by an heir to his co-heirs in connection with the sale of hereditary rights to a stranger before partition under Article 1088 of the Civil Code[17] can be dispensed with when such co-heirs have

actual knowledge of the sale such that the 30-day period within which a co-heir can exercise the right to be subrogated to the rights of a purchaser shall commence from the date of actual knowledge of the sale.

Secondly, petitioner is a possessor and builder in good faith. Thirdly, the MTC had no jurisdiction over the complaint because its subject matter was incapable of pecuniary estimation. The complaint should have been filed with the RTC. Fourthly, there was a non-joinder of indispensable parties, the co-heirs who sold their interest in the subject property not having been impleaded by respondents. Fifthly, the appeal to the CA should have been dismissed as it was not properly verified by respondents. Gloria Vargas failed to indicate that she was authorized to represent the other respondents (petitioners therein) to initiate the petition. Moreover, the verification was inadequate because it did not state the basis of the alleged truth and/or correctness of the material allegations in the petition.

Petitioner argues, as follows: Firstly, the acquisition by petitioner of the subject property subsequent to the extrajudicial partition was valid because the partition was duly published. The publication of the same constitutes due notice to respondents and signifies their implied acquiescence thereon. Respondents are therefore estopped from denying the validity of the partition and sale at this late stage. Considering that the partition was valid, respondents no longer have the right to redeem the property.

The petition lacks merit. The procedure outlined in Section 1 of Rule 74 is an ex parte proceeding. The rule plainly states, however, that persons who do not participate or had no notice of an extrajudicial settlement will not be bound thereby.[18] It contemplates a notice that has been sent out or issued before any deed of settlement and/or partition is agreed upon (i.e., a notice calling all interested parties to participate in the said deed of extrajudicial settlement and partition), and not after such an agreement has already been executed[19] as what happened in the instant case with the publication of the first deed of extrajudicial settlement among heirs. The publication of the settlement does not constitute constructive notice to the heirs who had no knowledge or did not take part in it because the same was notice after the fact of execution. The requirement of publication is geared for the protection of creditors and was never intended to deprive heirs of

their lawful participation in the decedents estate. In this connection, the records of the present case confirm that respondents never signed either of the settlement documents, having discovered their existence only shortly before the filing of the present complaint. Following Rule 74, these extrajudicial settlements do not bind respondents, and the partition made without their knowledge and consent is invalid insofar as they are concerned.

This is not to say, though, that respondents coheirs cannot validly sell their hereditary rights to third persons even before the partition of the estate. The heirs who actually participated in the execution of the extrajudicial settlements, which included the sale to petitioner of their pro indiviso shares in the subject property, are bound by the same. Nevertheless, respondents are given the right to redeem these shares pursuant to Article 1088 of the Civil Code. The right to redeem was never lost because respondents were never notified in writing of the actual sale by their co-

heirs. Based on the provision, there is a need for written notice to start the period of redemption, thus:
Should any of the heirs sell his hereditary rights to a stranger before the partition, any or all of the co-heirs may be subrogated to the rights of the purchaser by reimbursing him for the price of the sale, provided they do so within the period of one month from the time they were notified in writing of the sale by the vendor. (Emphasis supplied.)

It bears emphasis that the period of one month shall be reckoned from the time that a co-heir is notified in writing by the vendor of the actual sale. Written notice is indispensable and mandatory, [20] actual knowledge of the sale acquired in some other manner by the redemptioner notwithstanding. It cannot be counted from the time advance notice is given of an impending or contemplated sale. The law gives the co-heir thirty days from the time written notice of the actual sale within which to make up his or her mind and decide to repurchase or effect the redemption.[21]

Though the Code does not prescribe any particular form of written notice nor any distinctive method for written notification of redemption, the method of notification remains exclusive, there being no alternative provided by law.[22] This proceeds from the very purpose of Article 1088, which is to keep strangers to the family out of a joint ownership, if, as is often the case, the presence of outsiders be undesirable and the other heir or heirs be willing and in a position to repurchase the share sold.[23]

It should be kept in mind that the obligation to serve written notice devolves upon the vendor coheirs because the latter are in the best position to know the other co-owners who, under the law, must be notified of the sale.[24] This will remove all uncertainty as to the fact of the sale, its terms and its perfection and validity, and quiet any doubt that the alienation is not definitive.[25] As a result, the party

notified need not entertain doubt that the seller may still contest the alienation. [26] Considering, therefore, that respondents coheirs failed to comply with this requirement, there is no legal impediment to allowing respondents to redeem the shares sold to petitioner given the formers obvious willingness and capacity to do so. Likewise untenable is petitioners contention that he is a builder in good faith. Good faith consists in the belief of the builder that the land the latter is building on is ones own without knowledge of any defect or flaw in ones title.[27] Petitioner derived his title from the Extra Judicial Settlement Among Heirs With Sale dated November 15, 1994. He was very much aware that not all of the heirs participated therein as it was evident on the face of the document itself. Because the property had not yet been partitioned in accordance with the Rules of Court, no particular portion of the property could have been

identified as yet and delineated as the object of the sale. This is because the alienation made by respondents co-heirs was limited to the portion which may be allotted to them in the division upon the termination of the co-ownership. Despite this glaring fact, and over the protests of respondents, petitioner still constructed improvements on the property. For this reason, his claim of good faith lacks credence. As to the issue of lack of jurisdiction, petitioner is estopped from raising the same for the first time on appeal. Petitioner actively participated in the proceedings below and sought affirmative ruling from the lower courts to uphold the validity of the sale to him of a portion of the subject property embodied in the extrajudicial settlement among heirs. Having failed to seasonably raise this defense, he cannot, under the peculiar circumstances of this case, be permitted to challenge the jurisdiction of the lower court at this late stage.While it is a rule that a jurisdictional question may be raised at any time, an

exception arises where estoppel has already supervened. Estoppel sets in when a party participates in all stages of a case before challenging the jurisdiction of the lower court. One cannot belatedly reject or repudiate its decision after voluntarily submitting to its jurisdiction, just to secure affirmative relief against one's opponent or after failing to obtain such relief. The Court has, time and again, frowned upon the undesirable practice of a party submitting a case for decision and then accepting the judgment, only if favorable, and attacking it for lack of jurisdiction when adverse.[28] Petitioners fourth argument, that there is a nonjoinder of indispensable parties, similarly lacks merit. An indispensable party is a party-in-interest without whom there can be no final determination of an action and who is required to be joined as either plaintiff or defendant.[29] The party's interest in the subject matter of the suit and in the relief sought is so inextricably intertwined with the other parties that

the formers legal presence as a party to the proceeding is an absolute necessity. Hence, an indispensable party is one whose interest will be directly affected by the court's action in the litigation. In the absence of such indispensable party, there cannot be a resolution of the controversy before the court which is effective, complete, or equitable.[30] In relation to this, it must be kept in mind that the complaint filed by respondents ultimately prayed that they be allowed to redeem the shares in the property sold by their co-heirs. Significantly, the right of the other heirs to sell their undivided share in the property to petitioner is not in dispute. Respondents concede that the other heirs acted within their hereditary rights in doing so to the effect that the latter completely and effectively relinquished their interests in the property in favor of petitioner. Petitioner thus stepped into the shoes of the other heirs to become a co-owner of the property with respondents. As a result, only petitioners presence is absolutely

required for a complete and final determination of the controversy because what respondents seek is to be subrogated to his rights as a purchaser. Finally, petitioner contends that the petition filed by respondents with the CA should have been dismissed because the verification and certificate of non-forum shopping appended to it were defective, citing specifically the failure of respondent Gloria Vargas to: (1) indicate that she was authorized to represent her co-respondents in the petition, and (2) state the basis of the alleged truth of the allegations. The general rule is that the certificate of nonforum shopping must be signed by all the plaintiffs or petitioners in a case and the signature of only one of them is insufficient.[31] Nevertheless, the rules on forum shopping, which were designed to promote and facilitate the orderly administration of justice, should not be interpreted with such absolute literalness as to subvert their own ultimate and legitimate objective. Strict compliance with the provisions regarding the certificate of non-forum shopping merely underscores

its mandatory nature in that the certification cannot be altogether dispensed with or its requirements completely disregarded.[32] Under justifiable circumstances, the Court has relaxed the rule requiring the submission of such certification considering that although it is obligatory, it is not jurisdictional.[33] Thus, when all the petitioners share a common interest and invoke a common cause of action or defense, the signature of only one of them in the certification against forum shopping substantially complies with the rules.[34] The co-respondents of respondent Gloria Vargas in this case were her children. In order not to defeat the ends of justice, the Court deems it sufficient that she signed the petition on their behalf and as their representative. WHEREFORE, the petition is DENIED for lack of merit. Costs against petitioner.

SO ORDERED. SECOND DIVISION

This petition assails the decision of the Court of Appeals dated May 23, 1994 which affirmed the judgment of the Regional Trial Court, Branch 15, of Ozamiz City in Civil Case No. OZ-1397. The facts of this case are as follows: On April 8, 1946, the spouses Miguel Rodriguez and Rosalina J. de Rodriguez initiated proceedings before the CFI of Ozamiz City for the legal adoption of herein petitioner, Maria Elena Rodriguez Pedrosa. On August 1, 1946, the CFI granted the petition and declared petitioner Pedrosa the adopted child of Miguel and Rosalina. On April 29, 1972, Miguel died intestate. Thereafter, petitioner and Rosalina entered into an extrajudicial settlement of Miguels estate, adjudicating between themselves in equal proportion the estate of Miguel. On November 21, 1972, private respondents filed an action to annul the adoption of petitioner before the CFI of Ozamiz City, with petitioner and herein respondent Rosalina as defendants docketed as OZ 349. On August 28, 1974, the CFI denied the petition and upheld the validity of the adoption. Thereafter, the private respondents appealed said decision to the Court of Appeals. On March 11, 1983, while said appeal was pending, the Rodriguezes entered into an extrajudicial settlement with respondent Rosalina for the partition of the estate of Miguel and of another sister, Pilar. Rosalina acted as the representative of the heirs of Miguel Rodriguez. Pilar had no heirs except his brothers and sisters. The Deed of Extrajudicial Settlement and Partition covered fourteen parcels of land covering a total area of

[G.R. No. 118680. March 5, 2001]

MARIA ELENA RODRIGUEZ PEDROSA, petitioner, vs. THE HON. COURT OF APPEALS, JOSE, CARMEN, MERCEDES & RAMON, all surnamed RODRIGUEZ, ROSALINA RODRIGUEZ, CHAN LUNG FAI, MATEO TAN TE, TE ENG SUY, LORETA TE, VICTORIO S. DETALIA, JEROME DEIPARINE, PETRONILO S. DETALIA, HUBERT CHIU YULO, PATERIO N. LAO, LORENSITA M. PADILLA, IMMACULATE CONCEPCION COLLEGE AND LILIAN EXPRESS, INC. and TIO TUAN, respondents. DECISION
QUISUMBING, J.:

224,883 square meters. These properties were divided among Jose, Carmen, Mercedes, Ramon and the heirs of Miguel, represented solely by Rosalina. The heirs of Miguel were given 226 square meters of parcel 2, and 9,567 square meters and 24,457 square meters of parcels 7 and 9, respectively. [1] The total land area allocated to the heirs of Miguel was 34,250 square meters. Armed with the Deed of Extrajudicial Settlement and Partition, respondents Rodriguezes were able to secure new Transfer Certificates of Title (TCTs) and were able to transfer some parcels to the other respondents herein.[2] Lots 504-A-6, 504-B-3 and 504-C-4, portions of Parcel 3, designated as Lot 504, were transferred to respondents Chuan Lung Fai,[3] but not included in the Deed of Settlement and Partition, were transferred to respondent Lilian Express, Inc. and are now registered under TCT No. T-11337. Parcel 6, Lot 560, was subdivided among Ramon, Jose, Carmen and Mercedes and was designated as Lots 560-A, 560-B, 560-C, 560-D and 560-E. Lot 560-A covering 500 square meters was transferred to respondent Victorino Detall[4] and was subsequently transferred to Jerome Deiparine who registered it under his name under TCT No. T-10706. Lot 560-B with 500 square meters was transferred to respondent Petronilo Detalla[5] and was later transferred to respondent Hubert Chiu Yulo who registered it under his name under TCT No. T11305. Lot 560-C was transferred and registered under the name of respondent Paterio Lao with TCT No. T-10206. Lot 560-D was sold to and subsequently registered in the name of Lorensita M. Padilla under TCT No. T-10207. The remaining portion, Lot 560-E consisting of 43,608 square meters was bought by respondent Immaculate Concepcion College and was registered in its name under TCT No. T-10208.[6]

On June 19, 1986, the parties in the appeal which sought to annul the adoption of petitioner Pedrosa filed a joint Motion to Dismiss. On June 25, 1986, the Court of Appeals dismissed the appeal but upheld the validity of the adoption of petitioner. Thereafter, petitioner sent her daughter, Loreto Jocelyn, to claim their share of the properties from the Rodriguezes. The latter refused saying that Maria Elena and Loreto were not heirs since they were not their blood relatives. Petitioner, then, filed a complaint to annul the 1983 partition. The said complaint was filed on January 28, 1987. Said complaint was later amended on March 25, 1987 to include the allegation that earnest efforts toward a compromise were made between the plaintiffs and the defendants, but the same failed.[7] The Regional Trial Court dismissed the complaint. Petitioner appealed to the Court of Appeals. The appellate court affirmed the decision of the trial court. Its ruling was premised on the following grounds:[8]
1) that the participation of Rosalina has already estopped her from questioning the validity of the partition, and since she is already estopped, it naturally follows that Maria Elena, her successor-in-interest, is likewise estopped, applying Article 1439 of the Civil Code; that the appeal of Maria Elena and her claim that the partition is null and void is weakened by her inconsistent claim that the partition would have been alright had she been given a more equitable share;

2)

3) the action is essentially an action for rescission and had been filed late considering that it was filed beyond the 4 year period provided for in Article 1100 of the Civil Code;[9]

4)

that fraud and/or bad faith was never established.

Petitioner filed a Motion for Reconsideration, which was denied by the Court of Appeals in a Resolution dated December 20, 1994.[10] Hence, this petition wherein the petitioner asserts that the following errors were allegedly committed by the Court of Appeals in I. FINDING THAT THE EXTRAJUDICIAL SETTLEMENT AND PARTITION ENTERED INTO BY DEFENDANT JUREDINI AND DEFENDANTSAPPELLANTS RODRIGUEZES WAS VALID AND BINDING UPON THE PLAINTIFF-APPELLANT WHO DID NOT PARTICIPATE IN SAID TRANSACTION CONCLUDING THAT THE CLAIM OF PLAINTIFF-APPELLANT HAVE ALREADY PRESCRIBED TWO (2) YEARS AFTER PUBLICATION OF THE EXTRAJUDICIAL SETTLEMENT AND PARTITION IN THE NEWSPAPER OF GENERAL CIRCULATION ...CONCLUDING THAT THE CLAIM OF PLAINTIFF-APPELLANT IS BARRED OR ESTOPPED IN FILING THIS CASE (sic) IN VIEW OF THE DISMISSAL OF THE APPEAL IN CIVIL CASE NO. OZ 349 INTERPOSED BY HEREIN DEFENDANTS-APPELLEES WHO WERE THEN PLAINTIFFS-APPELLANTS IN AC[C]-G.R. NO. SP00208 SUSTAINING THE DEFENDANTAPPELLEES CLAIM THAT AS THEY HAVE NOT AS YET RECOGNIZED PLAINTIFF-APPELLANT AS AN ADOPTED DAUGHTER OF MIGUEL RODRIGUEZ IT WAS NOT NECESSARY FOR

THEM TO HAVE HER PARTICIPATE IN THE EXTRAJUDICIAL SETTLEMENT, EXHIBITS S AND I V. CONCLUDING THAT THE PLAINTIFFAPPELLANT HAD NOT CONCLUSIVELY SHOWN THAT MIGUEL RODRIGUEZ WAS A CO-OWNER OF THE LANDS SOLD AND HENCE IT FOLLOWS THAT SHE HAS NO RIGHT OF REDEMPTION OF THOSE LANDS

VI. FINDING THAT PORTION OF LOTS NOS. 504 AND 560 SOLD TO THE OTHER DEFENDANTS APPELLEES WERE CLEAN AND FREE FROM ENCUMBRANCES OR ANY FLAWS HENCE WERE VALID VII. FINDING THAT THE PLANTIFF APPELLANT NEVER APPEARED IN COURT TO TESTIFY OR REBUT THE ASSERTIONS OF THE DEFENDANTSAPPELLANTS THAT THERE WAS A VALID PARTITION VIII. AWARDING PLAINTIFFAPPELLANT DAMAGES FOR THE INCOME OF HER SHARE IN THE PROPERTIES IN QUESTION[11]

II.

III.

In sum, the issues to be resolved in our view are (1) whether or not the complaint for annulment of the Deed of Extrajudicial Settlement and Partition had already prescribed; (2) whether or not said deed is valid; and (3) whether or not the petitioner is entitled to recover the lots which had already been transferred to the respondent buyers. Petitioner argues that the complaint for annulment of the extrajudicial partition has not yet prescribed since the prescriptive period which should be applied is four years following the case of Beltran vs. Ayson, 4 SCRA 69

IV.

(1962). She also avers that Sec. 4, Rule 74 which provides for a two-year prescriptive period needs two requirements. One, the party assailing the partition must have been given notice, and two, the party assailing the partition must have participated therein. Petitioner insists these requirements are not present in her case,[12] since she did not participate in the Deed of Extrajudicial Settlement and Partition. She cites Villaluz vs. Neme, 7 SCRA 27, 30 (1963), where we held that a deed of extrajudicial partition executed without including some of the heirs, who had no knowledge and consent to the same, is fraudulent. She asserts that she is an adoptive daughter and thus an heir of Miguel.[13] Petitioner also contends that the respondent buyers were buyers in bad faith since they failed to exercise the necessary due diligence required before purchasing the lots in question.
[14]

Section 4, Rule 74[18] provides for a two year prescriptive period (1) to persons who have participated or taken part or had notice of the extrajudicial partition, and in addition (2) when the provisions of Section 1[19] of Rule 74 have been strictly complied with, i.e., that all the persons or heirs of the decedent have taken part in the extrajudicial settlement or are represented by themselves or through guardians.[20] Petitioner, as the records confirm, did not participate in the extrajudicial partition. Patently then, the two-year prescriptive period is not applicable in her case. The applicable prescriptive period here is four (4) years as provided in Gerona vs. De Guzman, 11 SCRA 153 (1964), which held that:

In the alternative, petitioner wants to redeem the said lots as a co-owner of respondent Rodriguezes under the provisions of Article 1620 of the New Civil Code.[15]

Lastly, petitioner asserts that she will suffer lesion if the partition would be allowed. She asks for the rescission of the said partitioning under Articles 165-175 of the Civil Code.[16] Respondents, in response, claim that the action of petitioner had already prescribed. In addition, they argue that petitioner, Maria Elena, and Rosalina already have their shares in the estate of Miguel Rodriguez reflected in the compromise agreement they entered into with the respondent Rodriguezes in AC- G.R. SP 00208. Finally, respondents aver that the nonparticipation of Maria Elena in the extrajudicial partition was understandable since her status as an adopted child was then under litigation. In any case, they assert that the shares of Miguels heirs were adequately protected in the said partition.
[17]

[The action to annul] a deed of extrajudicial settlement upon the ground of fraud...may be filed within four years from the discovery of the fraud. Such discovery is deemed to have taken place when said instrument was filed with the Register of Deeds and new certificates of title were issued in the name of respondents exclusively.[21]
Considering that the complaint of the petitioner was filed on January 28, 1987, or three years and ten months after the questioned extrajudicial settlement dated March 11, 1983, was executed, we hold that her action against the respondents on the basis of fraud has not yet prescribed. Section 1 of Rule 74 of the Rules of Court is the applicable rule on publication of extrajudicial settlement. It states:

The fact of the extrajudicial settlement or administration shall be published in a newspaper of general circulation in the manner provided in the next succeeding section;but no extrajudicial settlement shall be binding upon any person who has not participated therein or had no notice thereof.[22]
Under said provision, without the participation of all persons involved in the proceedings, the extrajudicial settlement cannot be binding on said persons. The rule contemplates a notice which must be sent out or issued before the Deed of Settlement and/or Partition is agreed upon, i.e., a notice calling all interested parties to participate in the said deed of extrajudicial settlement and partition, not after, which was when publication was done in the instant case. Following Rule 74 and the ruling in Beltran vs. Ayson, since Maria Elena did not participate in the said partition, the settlement is not binding on her. The provision of Section 4, Rule 74 will also not apply when the deed of extrajudicial partition is sought to be annulled on the ground of fraud. A deed of extrajudicial partition executed without including some of the heirs, who had no knowledge of and consent to the same, is fraudulent and vicious.[23] Maria Elena is an heir of Miguel together with her adopting mother, Rosalina. Being the lone descendant of Miguel, she excludes the collateral relatives of Miguel from participating in his estate, following the provisions of Article 1003 of the Civil Code.[24] The private respondent Rodriguezes cannot claim that they were not aware of Maria Elenas adoption since they even filed an action to annul the decree of adoption. Neither can they claim that their actions were valid since the adoption of Maria Elena was still being questioned at

the time they executed the deed of partition. The complaint seeking to annul the adoption was filed only twenty six (26) years after the decree of adoption, patently a much delayed response to prevent Maria Elena from inheriting from her adoptive parents. The decree of adoption was valid and existing. With this factual setting, it is patent that private respondents executed the deed of partition in bad faith with intent to defraud Maria Elena. In the case of Segura vs. Segura, the Court held:

This section [referring to section 4, Rule 74] provides in gist that a person who has been deprived of his lawful participation in the estate of the decedent, whether as heir or as creditor, must assert his claim within two years after the extrajudicial or summary settlement of such estate under Sections 1 and 2 respectively of the same Rule 74. Thereafter, he will be precluded from doing so as the right will have prescribed. It is clear that Section 1 of Rule 74 does not apply to the partition in question which was null and void as far as the plaintiffs were concerned. The rule covers only valid partitions. The partition in the present case was invalid because it excluded six of the nine heirs who were entitled to equal shares in the partitioned property. Under the rule, no extrajudicial settlement shall be binding upon any person who has not participated therein or had no notice thereof. As the partition was a total nullity and did not affect the excluded heirs, it was not correct for the trial court to

hold that their right to challenge the partition had prescribed after two years from its execution in 1941.[25]
To say that Maria Elena was represented by Rosalina in the partitioning is imprecise. Maria Elena, the adopted child, was no longer a minor at the time Miguel died. Rosalina, only represented her own interests and not those of Maria Elena. Since Miguel predeceased Pilar, a sister, his estate automatically vested to his child and widow, in equal shares. Respondent Rodriguezes interests did not include Miguels estate but only Pilars estate. Could petitioner still redeem the properties from buyers? Given the circumstances in this case, we are constrained to hold that this is not the proper forum to decide this issue. The properties sought to be recovered by the petitioner are now all registered under the name of third parties. Well settled is the doctrine that aTorrens Title cannot be collaterally attacked. The validity of the title can only be raised in an action expressly instituted for such purpose.[26] Petitioner asks for the award of damages. No receipts, agreements or any other documentary evidence was presented to justify such claim for damages. Actual damages, to be recoverable, must be proved with a reasonable degree of certainty. Courts cannot simply rely on speculation, conjecture or guesswork in determining the fact and amount of damages. [27] The same is true for moral damages. These cannot be awarded in the absence of any factual basis.[28] The unsubstantiated testimony of Loreto Jocelyn Pedrosa is hearsay and has no probative value. It is settled in jurisprudence that damages may not be awarded on the basis of hearsay evidence. [29] Nonetheless, the failure of the petitioner to substantiate her claims for damages does not mean that she will be totally

deprived of any damages. Under the law, nominal damages are awarded, so that a plaintiffs right, which has been invaded or violated by defendants may be vindicated and recognized.[30] Considering that (1) technically, petitioner sustained injury but which, unfortunately, was not adequately and properly proved, (2) petitioner was unlawfully deprived of her legal participation in the partition of the estate of Miguel, her adoptive father, (3) respondents had transferred portions of the properties involved to third parties, and (4) this case has dragged on for more than a decade, we find it reasonable to grant in petitioners favor nominal damages in recognition of the existence of a technical injury. [31] The amount to be awarded as such damages should at least commensurate to the injury sustained by the petitioner considering the concept and purpose of said damages.[32] Such award is given in view of the peculiar circumstances cited and the special reasons extant in this case. [33] Thus, the grant of ONE HUNDRED THOUSAND (P100,000.00) PESOS to petitioner as damages is proper in view of the technical injury she has suffered. WHEREFORE, the petition is GRANTED. The assailed decision of the Court of Appeals is hereby REVERSED and SET ASIDE. The Deed of Extrajudicial Settlement and Partition executed by private respondents on March 11, 1983 is declared invalid. The amount of P100,000.00 is hereby awarded to petitioner as damages to be paid by private respondents, who are also ordered to pay the costs. SO ORDERED. Bellosillo (Chairman), Mendoza, Buena, and De Leon, Jr., JJ., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-23445 June 23, 1966

who are compulsory heirs of the deceased in the direct ascending line were illegally preterited and that in consequence the institution is void. On August 29, 1963, before a hearing was had on the petition for probate and objection thereto, oppositors moved to dismiss on the ground of absolute preterition. On September 6, 1963, petitioner registered her opposition to the motion to dismiss.
1wph1.t

REMEDIOS NUGUID, petitioner and appellant, vs. FELIX NUGUID and PAZ SALONGA NUGUID, oppositors and appellees. Custodio O. Partade for petitioner and appellant. Beltran, Beltran and Beltran for oppositors and appellees. SANCHEZ, J.: Rosario Nuguid, a resident of Quezon City, died on December 30, 1962, single, without descendants, legitimate or illegitimate. Surviving her were her legitimate parents, Felix Nuguid and Paz Salonga Nuguid, and six (6) brothers and sisters, namely: Alfredo, Federico, Remedios, Conrado, Lourdes and Alberto, all surnamed Nuguid. On May 18, 1963, petitioner Remedios Nuguid filed in the Court of First Instance of Rizal a holographic will allegedly executed by Rosario Nuguid on November 17, 1951, some 11 years before her demise. Petitioner prayed that said will be admitted to probate and that letters of administration with the will annexed be issued to her. On June 25, 1963, Felix Nuguid and Paz Salonga Nuguid, concededly the legitimate father and mother of the deceased Rosario Nuguid, entered their opposition to the probate of her will. Ground therefor, inter alia, is that by the institution of petitioner Remedios Nuguid as universal heir of the deceased, oppositors

The court's order of November 8, 1963, held that "the will in question is a complete nullity and will perforce create intestacy of the estate of the deceased Rosario Nuguid" and dismissed the petition without costs. A motion to reconsider having been thwarted below, petitioner came to this Court on appeal. 1. Right at the outset, a procedural aspect has engaged our attention. The case is for the probate of a will. The court's area of inquiry is limited to an examination of, and resolution on, the extrinsic validity of the will. The due execution thereof, the testatrix's testamentary capacity, and the compliance with the requisites or solemnities by law prescribed, are the questions solely to be presented, and to be acted upon, by the court. Said court at this stage of the proceedings is not called upon to rule on the intrinsic validity or efficacy of the provisions of the will, the legality of any devise or legacy therein.1 A peculiar situation is here thrust upon us. The parties shunted aside the question of whether or not the will should be allowed probate. For them, the meat of the case is the intrinsic validity of the will. Normally, this comes only after the court has declared that the will has been duly authenticated.2 But petitioner and oppositors, in the court below and here on appeal, travelled on the issue of law, to wit: Is the will intrinsically a nullity?

We pause to reflect. If the case were to be remanded for probate of the will, nothing will be gained. On the contrary, this litigation will be protracted. And for aught that appears in the record, in the event of probate or if the court rejects the will, probability exists that the case will come up once again before us on the same issue of the intrinsic validity or nullity of the will. Result: waste of time, effort, expense, plus added anxiety. These are the practical considerations that induce us to a belief that we might as well meet head-on the issue of the validity of the provisions of the will in question.3 After all, there exists a justiciable controversy crying for solution. 2. Petitioner's sole assignment of error challenges the correctness of the conclusion below that the will is a complete nullity. This exacts from us a study of the disputed will and the applicable statute. Reproduced hereunder is the will: Nov. 17, 1951 I, ROSARIO NUGUID, being of sound and disposing mind and memory, having amassed a certain amount of property, do hereby give, devise, and bequeath all of the property which I may have when I die to my beloved sister Remedios Nuguid, age 34, residing with me at 38-B Iriga, Q.C. In witness whereof, I have signed my name this seventh day of November, nineteen hundred and fifty-one. (Sgd.) Illegible T/ ROSARIO NUGUID The statute we are called upon to apply in Article 854 of the Civil Code which, in part, provides:

ART. 854. The preterition or omission of one, some, or all of the compulsory heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator, shall annul the institution of heir; but the devises and legacies shall be valid insofar as they are not inofficious. ... Except for inconsequential variation in terms, the foregoing is a reproduction of Article 814 of the Civil Code of Spain of 1889, which is similarly herein copied, thus Art. 814. The preterition of one or all of the forced heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator, shall void the institution of heir; but the legacies and betterments4 shall be valid, in so far as they are not inofficious. ... A comprehensive understanding of the term preterition employed in the law becomes a necessity. On this point Manresa comments: La pretericion consiste en omitar al heredero en el testamento. O no se le nombra siquiera o aun nombrandole como padre, hijo, etc., no se le instituya heredero ni se le deshereda expresamente ni se le asigna parte alguna de los bienes, resultando privado de un modo tacito de su derecho a legitima. Para que exista pretericion, con arreglo al articulo 814, basta que en el testamento omita el testador a uno cualquiera de aquellos a quienes por su muerte corresponda la herencia forzosa. Se necesita, pues, a) Que la omision se refiera a un heredero forzoso. b) Que la omision sea completa; que el heredero forzoso nada reciba en el testamento.

It may now appear trite bat nonetheless helpful in giving us a clear perspective of the problem before us, to have on hand a clear-cut definition of the word annul: To "annul" means to abrogate, to make void ... In re Morrow's Estate, 54 A. 342, 343, 204 Pa. 484.6 The word "annul" as used in statute requiring court to annul alimony provisions of divorce decree upon wife's remarriage means to reduce to nothing; to annihilate; obliterate; blot out; to make void or of no effect; to nullify; to abolish. N.J.S.A. 2:50 38 (now N.J.S. 2A:34-35). Madden vs. Madden, 40 A. 2d 611, 614, 136 N..J Eq. 132.7 ANNUL. To reduce to nothing; annihilate; obliterate; to make void or of no effect; to nullify; to abolish; to do away with. Ex parte Mitchell, 123 W. Va. 283, 14 S.E. 2d. 771, 774.8 And now, back to the facts and the law. The deceased Rosario Nuguid left no descendants, legitimate or illegitimate. But she left forced heirs in the direct ascending line her parents, now oppositors Felix Nuguid and Paz Salonga Nuguid. And, the will completely omits both of them: They thus received nothing by the testament; tacitly, they were deprived of their legitime; neither were they expressly disinherited. This is a clear case of preterition. Such preterition in the words of Manresa "anulara siempre la institucion de heredero, dando caracter absoluto a este ordenamiento referring to the mandate of Article 814, now 854 of the Civil Code.9 The one-sentence will here institutes petitioner as the sole, universal heir nothing more. No specific legacies or bequests are therein provided for. It is in this posture that we say that the nullity is complete. Perforce, Rosario Nuguid died intestate. Says Manresa:

En cuanto a la institucion de heredero, se anula. Lo que se anula deja de existir, en todo o en parte? No se aade limitacion alguna, como en el articulo 851, en el que se expresa que se anulara la institucion de heredero en cuanto prejudique a la legitima del deseheredado Debe, pues, entenderse que la anulacion es completa o total, y que este articulo como especial en el caso que le motiva rige con preferencia al 817. 10 The same view is expressed by Sanchez Roman: La consecuencia de la anulacion o nulidad de la institucion de heredero por pretericion de uno, varios o todos los forzosos en linea recta, es la apertura de la sucesion intestada total o parcial. Sera total, cuando el testador que comete la pretericion, hubiese dispuesto de todos los bienes por titulo universal de herencia en favor de los herederos instituidos, cuya institucion se anula, porque asi lo exige la generalidad del precepto legal del art. 814, al determinar, como efecto de la pretericion, el de que "anulara la institucion de heredero." ... 11 Really, as we analyze the word annul employed in the statute, there is no escaping the conclusion that the universal institution of petitioner to the entire inheritance results in totally abrogating the will. Because, the nullification of such institution of universal heir without any other testamentary disposition in the will amounts to a declaration that nothing at all was written. Carefully worded and in clear terms, Article 854 offers no leeway for inferential interpretation. Giving it an expansive meaning will tear up by the roots the fabric of the statute. On this point, Sanchez Roman cites the "Memoria annual del Tribunal Supreme, correspondiente a 1908", which in our opinion expresses the rule of interpretation, viz: ... El art. 814, que preceptua en tales casos de pretericion la nulidad de la institucion de heredero, no consiente interpretacion alguna favorable a la persona instituida en

el sentido antes expuesto aun cuando parezca, y en algun caso pudiera ser, mas o menos equitativa, porque una nulidad no significa en Derecho sino la suposicion de que el hecho o el acto no se ha realizado, debiendo por lo tanto procederse sobre tal base o supuesto, y consiguientemente, en un testamento donde falte la institucion, es obligado llamar a los herederos forzosos en todo caso, como habria que llamar a los de otra clase, cuando el testador no hubiese distribudo todos sus bienes en legados, siendo tanto mas obligada esta consecuencia legal cuanto que, en materia de testamentos, sabido es, segun tiene declarado la jurisprudencia, con repeticion, que no basta que sea conocida la voluntad de quien testa si esta voluntad no aparece en la forma y en las condiciones que la ley ha exigido para que sea valido y eficaz, por lo que constituiria una interpretacion arbitraria, dentro del derecho positivo, reputar como legatario a un heredero cuya institucion fuese anulada con pretexto de que esto se acomodaba mejor a la voluntad del testador, pues aun cuando asi fuese, sera esto razon para modificar la ley, pero no autoriza a una interpretacion contraria a sus terminos y a los principios que informan la testamentifaccion, pues no porque parezca mejor una cosa en el terreno del Derecho constituyente, hay razon para convereste juicio en regla de interpretacion, desvirtuando y anulando por este procedimiento lo que el legislador quiere establecer. 12 3. We should not be led astray by the statement in Article 854 that, annullment notwithstanding, "the devises and legacies shall be valid insofar as they are not inofficious". Legacies and devises merit consideration only when they are so expressly given as such in a will. Nothing in Article 854 suggests that the mere institution of a universal heir in a will void because of preterition would give the heir so instituted a share in the inheritance. As to him, the will is inexistent. There must be, in addition to such institution, a testamentary disposition granting

him bequests or legacies apart and separate from the nullified institution of heir. Sanchez Roman, speaking of the two component parts of Article 814, now 854, states that preterition annuls the institution of the heir "totalmente por la pretericion"; but added (in reference to legacies and bequests) "pero subsistiendo ... todas aquellas otras disposiciones que no se refieren a la institucion de heredero ... . 13 As Manresa puts it, annulment throws open to intestate succession the entire inheritance including "la porcion libre (que) no hubiese dispuesto en virtud de legado, mejora o donacion. 14 As aforesaid, there is no other provision in the will before us except the institution of petitioner as universal heir. That institution, by itself, is null and void. And, intestate succession ensues. 4. Petitioner's mainstay is that the present is "a case of ineffective disinheritance rather than one of preterition". 15From this, petitioner draws the conclusion that Article 854 "does not apply to the case at bar". This argument fails to appreciate the distinction between pretention and disinheritance. Preterition "consists in the omission in the testator's will of the forced heirs or anyone of them, either because they are not mentioned therein, or, though mentioned, they are neither instituted as heirs nor are expressly disinherited." 16 Disinheritance, in turn, "is a testamentary disposition depriving any compulsory heir of his share in the legitime for a cause authorized by law. " 17 In Manresa's own words: "La privacion expresa de la legitima constituye la desheredacion. La privacion tacita de la misma se denomina pretericion." 18 Sanchez Roman emphasizes the distinction by stating that disinheritance "es siempre voluntaria"; preterition, upon the other hand, is presumed to be "involuntaria". 19 Express as disinheritance should be, the same must be supported by a legal cause specified in the will itself. 20

The will here does not explicitly disinherit the testatrix's parents, the forced heirs. It simply omits their names altogether. Said will rather than be labeled ineffective disinheritance is clearly one in which the said forced heirs suffer from preterition. On top of this is the fact that the effects flowing from preterition are totally different from those of disinheritance. Preterition under Article 854 of the Civil Code, we repeat, "shall annul the institution of heir". This annulment is in toto, unless in the will there are, in addition, testamentary dispositions in the form of devises or legacies. In ineffective disinheritance under Article 918 of the same Code, such disinheritance shall also "annul the institution of heirs", put only "insofar as it may prejudice the person disinherited", which last phrase was omitted in the case of preterition. 21 Better stated yet, in disinheritance the nullity is limited to that portion of the estate of which the disinherited heirs have been illegally deprived. Manresa's expressive language, in commenting on the rights of the preterited heirs in the case of preterition on the one hand and legal disinheritance on the other, runs thus: "Preteridos, adquiren el derecho a todo; desheredados, solo les corresponde un tercio o dos tercios, 22 el caso.23 5. Petitioner insists that the compulsory heirs ineffectively disinherited are entitled to receive their legitimes, but that the institution of heir "is not invalidated," although the inheritance of the heir so instituted is reduced to the extent of said legitimes. 24 This is best answered by a reference to the opinion of Mr. Chief Justice Moran in the Neri case heretofore cited,viz: But the theory is advanced that the bequest made by universal title in favor of the children by the second marriage should be treated as legado and mejora and, accordingly, it must not be entirely annulled but merely reduced. This theory, if adopted, will result in a complete abrogation of Articles 814 and 851 of the Civil Code. If every case of institution of heirs may be made to fall into

the concept of legacies and betterments reducing the bequest accordingly, then the provisions of Articles 814 and 851 regarding total or partial nullity of the institution, would. be absolutely meaningless and will never have any application at all. And the remaining provisions contained in said article concerning the reduction of inofficious legacies or betterments would be a surplusage because they would be absorbed by Article 817. Thus, instead of construing, we would be destroying integral provisions of the Civil Code. The destructive effect of the theory thus advanced is due mainly to a failure to distinguish institution of heirs from legacies and betterments, and a general from a special provision. With reference to article 814, which is the only provision material to the disposition of this case, it must be observed that the institution of heirs is therein dealt with as a thing separate and distinct from legacies or betterments. And they are separate and distinct not only because they are distinctly and separately treated in said article but because they are in themselves different. Institution of heirs is a bequest by universal title of property that is undetermined. Legacy refers to specific property bequeathed by a particular or special title. ... But again an institution of heirs cannot be taken as a legacy. 25 The disputed order, we observe, declares the will in question "a complete nullity". Article 854 of the Civil Code in turn merely nullifies "the institution of heir". Considering, however, that the will before us solely provides for the institution of petitioner as universal heir, and nothing more, the result is the same. The entire will is null. Upon the view we take of this case, the order of November 8, 1963 under review is hereby affirmed. No costs allowed. So ordered.

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

- versus COURT OF APPEALS and FRANCISCO H. PROVIDO, Respondents. x------------------------------------------------------------------x

SECOND DIVISION
CYNTHIA C. ALABAN, G.R. No. 156021 FRANCIS COLLADO, JOSE P. COLLADO, JUDITH Present: PROVIDO, CLARITA PROVIDO, ALFREDO PROVIDO, MANUEL PUNO, J., PROVIDO, JR., LORNA DINA Chairman, E. PROVIDO, SEVERO ARENGA, AUSTRIAMARTINEZ, JR., SERGIO ARENGA, EDUARDO CALLEJO, SR., ARENGA, CAROL ARENGA, RUTH TINGA, and BABASA, NORMA HIJASTRO, CHICONAZARIO, JJ. DOLORES M. FLORES, ANTONIO MARIN, JR., JOSE MARIN, SR., and MATHILDE MARIN, Promulgated: Petitioners, September 23, 2005

DECISION
TINGA, J.: This is a petition for review of the Resolutions[1] of the

Court of Appeals (CA) in CA-G.R. SP No. 69221,[2] dismissing petitioners petition for annulment of judgment. On 8 November 2000, respondent Francisco Provido (respondent) filed a petition, docketed as SP Proc. No. 00-135, for the probate of the Last Will and Testament[3] of the late Soledad Provido Elevencionado (decedent), who died on 26 October 2000 in Janiuay, Iloilo.[4] Respondent alleged that he was the heir of the decedent and the executor of her will. On 30 May 2001, the Regional Trial Court (RTC), Branch 68, in P.D. Monfort North, Dumangas, Iloilo, rendered its Decision, [5] allowing the probate of the will of the decedent and directing the issuance of letters testamentary to respondent.[6] More than four (4) months later, or on 4 October 2001, herein petitioners filed a motion for the reopening of the probate proceedings.[7] Likewise, they filed an opposition to the allowance of the will of the decedent, as well as the issuance of

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

On 11 January 2002, the RTC issued an Order[10] denying petitioners motion for being unmeritorious. Resolving the issue of jurisdiction, the RTC held that petitioners were deemed notified of the hearing by publication and that the deficiency in the payment of docket fees is not a ground for the outright dismissal of the petition. It merely required respondent to pay the deficiency.[11] Moreover, the RTCs Decision was already final and executory even before petitioners filing of the motion to reopen.[12] Petitioners thereafter filed a petition with an application for preliminary injunction with the CA, seeking the annulment of the RTCs Decision dated 30 May 2001 and Order dated 11 January 2002. They claimed that after the death of the decedent, petitioners, together with respondent, held several conferences to discuss the matter of dividing the estate of the decedent, with respondent agreeing to a one-sixth (1/6) portion as his share.
[13]

Petitioners allegedly drafted a compromise agreement to implement the division of the estate. Despite receipt of the agreement, respondent refused to sign and return the same. Petitioners opined that respondent feigned interest in participating in the compromise agreement so that they would not suspect his intention to secure the probate of the will.[14] They claimed that they learnt of the probate proceedings only in July of 2001, as a result of which they filed their motion to reopen the proceedings and admit their opposition to the probate of the will only on 4 October 2001. They argued that the RTC Decision should be annulled and set aside on the ground of extrinsic fraud and lack of jurisdiction on the part of the RTC.
[15]

In its Resolution[16] promulgated on 28 February 2002, the CA dismissed the petition. It found that there was no showing that petitioners failed to avail of or resort to the ordinary remedies of new trial, appeal, petition for relief from

judgment, or other appropriate remedies through no fault of their own.[17] Moreover, the CA declared as baseless petitioners claim that the proceedings in the RTC was attended by extrinsic fraud. Neither was there any showing that they availed of this ground in a motion for new trial or petition for relief from judgment in the RTC, the CA added.[18] Petitioners sought reconsideration of theResolution, but the same was denied by the CA for lack of merit.[19] Petitioners now come to this Court, asserting that the CA committed grave abuse of discretion amounting to lack of jurisdiction when it dismissed their petition for the alleged failure to show that they have not availed of or resorted to the remedies of new trial, appeal, petition for relief from judgment or other remedies through no fault of their own, and held that petitioners were not denied their day in court during the proceedings before the RTC.[20] In addition, they assert that this Court has yet to decide a case involving

Rule 47 of the Rules of Court and, therefore, the instant petition should be given due course for the guidance of the bench and bar.[21] For his part, respondent claims that petitioners were in a position to avail of the remedies provided in Rules 37 and 38, as they in fact did when they filed a motion for new trial.[22] Moreover, they could have resorted to a petition for relief from judgment since they learned of the RTCs judgment only three and a half months after its promulgation.[23] Respondent likewise maintains that no extrinsic fraud exists to warrant the annulment of the RTCs Decision, since there was no showing that they were denied their day in court. Petitioners were not made parties to the probate proceedings because the decedent did not institute them as her heirs.[24] Besides, assuming arguendo that petitioners are heirs of the decedent, lack of notice to them is not a fatal defect since personal notice upon the heirs is a matter of procedural convenience and not a

jurisdictional requisite.[25] Finally, respondent charges petitioners of forum shopping, since the latter have a pending suit involving the same issues as those in SP No. 00-135, that is SP No. 1181[26] filed before Branch 23, RTC of General Santos City and subsequently pending on appeal before the CA in CA-G.R. No.74924.[27] It appears that one of the petitioners herein, Dolores M. Flores (Flores), who is a niece of the decedent, filed a petition for letters of administration with the RTC of General Santos City, claiming that the decedent died intestate without any issue, survived by five groups of collateral heirs. Flores, armed with a Special Power of Attorney from most of the other petitioners, prayed for her appointment as administratrix of the estate of the decedent. The RTC dismissed the petition on the ground of lack of jurisdiction, stating that the probate court in Janiuay, Iloilo has jurisdiction since the venue for a petition for the settlement of the estate of a decedent is the place where the

decedent died. This is also in accordance with the rule that the first court acquiring jurisdiction shall continue hearing the case to the exclusion of other courts, the RTC added.[28] On 9 January 2002, Flores filed a Notice of Appeal [29] and on 28 January 2002, the case was ordered forwarded to the CA.[30] Petitioners maintain that they were not made parties to the case in which the decision sought to be annulled was rendered and, thus, they could not have availed of the ordinary remedies of new trial, appeal, petition for relief from judgment and other appropriate remedies, contrary to the ruling of the CA. They aver that respondents offer of a false compromise and his failure to notify them of the probate of the will constitute extrinsic fraud that necessitates the annulment of the RTCs judgment.[31] The petition is devoid of merit.

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

Rule permits the filing of a motion for reconsideration on the grounds of excessive award of damages, insufficiency of evidence to justify the decision or final order, or that the decision or final order is contrary to law.[32] Both motions should be filed within the period for taking an appeal, or fifteen (15) days from notice of the judgment or final order. Meanwhile, a petition for relief from judgment under Section 3 of Rule 38 is resorted to when a judgment or final order is entered, or any other proceeding is thereafter taken, against a party in any court through fraud, accident, mistake, or excusable negligence. Said party may file a petition in the same court and in the same case to set aside the judgment, order or proceeding. It must be filed within sixty (60) days after the petitioner learns of the judgment and within six (6) months after entry thereof.[33]

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

judgment is rendered. In fact, it has been held that a person who was never a party to the case, or even summoned to appear therein, cannot avail of a petition for relief from judgment.[35] However, petitioners in this case are mistaken in asserting that they are not or have not become parties to the probate proceedings. Under the Rules of Court, any executor, devisee, or legatee named in a will, or any other person interested in the estate may, at any time after the death of the testator, petition the court having jurisdiction to have the will allowed.[36] Notice of the time and place for proving the will must be published for three (3) consecutive weeks, in a newspaper of general circulation in the province,[37] as well as furnished to the designated or other known heirs, legatees, and devisees of the testator.[38] Thus, it has been held that a proceeding for the probate of a will

[34]

is one in rem, such that with the corresponding publication of the petition the court's jurisdiction extends to all persons interested in said will or in the settlement of the estate of the decedent.
[39]

Publication is notice to the whole world that the proceeding has for its object to bar indefinitely all who might be minded to make an objection of any sort against the right sought to be established. It is the publication of such notice that brings in the whole world as a party in the case and vests the court with jurisdiction to hear and decide it.[40] Thus, even though petitioners were not mentioned in the petition for probate, they eventually became parties thereto as a consequence of the publication of the notice of hearing. As parties to the probate proceedings, petitioners could have validly availed of the remedies of motion for new trial or reconsideration and petition for relief from judgment. In fact, petitioners filed a motion

to reopen, which is essentially a motion for new trial, with petitioners praying for the reopening of the case and the setting of further proceedings. However, the motion was denied for having been filed out of time, long after the Decision became final and executory. Conceding that petitioners became aware of the Decision after it had become final, they could have still filed a petition for relief from judgment after the denial of their motion to reopen. Petitioners claim that they learned of the Decision only on 4 October 2001, or almost four (4) months from the time theDecision had attained finality. But they failed to avail of the remedy. For failure to make use without sufficient justification of the said remedies available to them, petitioners could no longer resort to a petition for annulment of judgment; otherwise, they would benefit from their own inaction or negligence.[41]

Even casting aside the procedural requisite, the petition for annulment of judgment must still fail for failure to comply with the substantive requisites, as the appellate court ruled. An action for annulment of judgment is a remedy in law independent of the case where the judgment sought to be annulled was rendered.[42] The purpose of such action is to have the final and executory judgment set aside so that there will be a renewal of litigation. It is resorted to in cases where the ordinary remedies of new trial, appeal, petition for relief from judgment, or other appropriate remedies are no longer available through no fault of the petitioner,[43] and is based on only two grounds: extrinsic fraud, and lack of jurisdiction or denial of due process.[44] A person need not be a party to the judgment sought to be annulled, and it is only essential that he can prove his

allegation that the judgment was obtained by the use of fraud and collusion and he would be adversely affected thereby.[45]

An action to annul a final judgment on the ground of fraud lies only if the fraud is extrinsic or collateral in character.[46] Fraud is regarded as extrinsic where it prevents a party from having a trial or from presenting his entire case to the court, or where it operates upon matters pertaining not to the judgment itself but to the manner in which it is procured. The overriding consideration when extrinsic fraud is alleged is that the fraudulent scheme of the prevailing litigant prevented a party from having his day in court.[47] To sustain their allegation of extrinsic fraud, petitioners assert that as a result of respondents deliberate omission or concealment of their names, ages and residences as the other heirs of the decedent in his petition for allowance of the will, they were not notified of the

proceedings, and thus they were denied their day in court. In addition, they claim that respondents offer of a false compromise even before the filing of the petition prevented them from appearing and opposing the petition for probate. The Court is not convinced.

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

Besides, assuming arguendo that petitioners are entitled to be so notified, the purported infirmity is cured by the publication of the notice. After all, personal notice upon the heirs is a matter of procedural convenience and not a jurisdictional requisite.[50] The non-inclusion of petitioners names in the petition and the alleged failure to personally notify them of the proceedings do not constitute extrinsic fraud. Petitioners were not denied their day in court, as they were not prevented from participating in the proceedings and presenting their case before the probate court.

One other vital point is the issue of forum-shopping against petitioners. Forumshopping consists of filing multiple suits in different courts, either simultaneously or successively, involving the same parties, to ask the courts to rule on the same or

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

WHEREFORE, the petition is DENIED. Costs against petitioners. estate on the theory that the decedent died intestate. The petition was dismissed on the ground of lack of jurisdiction, and it is this order of dismissal which is the subject of review in CA-G.R. No. 74924. Clearly, therefore, there is forumshopping. Moreover, petitioners failed to inform the Court of the said pending case in their certification against forum- shopping. Neither have they done so at any time thereafter. The Court notes that even in the petition for annulment of judgment, petitioners failed to inform the CA of the pendency of their appeal in CA-G.R. No. 74924, even though the notice of appeal was filed way before the petition for annulment of judgment was instituted. SO ORDERED.

LETICIA

VALMONTE ORTEGA, G.R. No. 157451 Petitioner, Present:

Panganiban, J., Chairman,

- versus Sandoval-Gutierrez, Corona,

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

DECISION
Carpio Morales, and Garcia, JJ PANGANIBAN, J.:

JOSEFINA C. VALMONTE, lgated: Respondent.

Promu

he law favors the probate of a will. Upon those who oppose it rests the burden of showing

why it should not be allowed. In the December 16, 2005 present case, petitioner has failed to

discharge this burden satisfactorily. For this reason, the Court cannot attribute any reversible error on the part of the appellate tribunal that allowed the probate of the will.

The Case

Before the Court is a Petition for Review[1] under Rule 45 of the Rules of Court, seeking to reverse and set aside the December 12, 2002

testament of Placido Valmonte and ordering the issuance of letters testamentary to the petitioner Josefina Valmonte. Let this case be remanded to the court a quo for further and concomitant proceedings.[4]

Decision[2] and the March 7, 2003 Resolution


[3]

The assailed Resolution denied petitioners Reconsideration. Motion for

of the Court of Appeals The

(CA) in CA-GR CV No. 44296.

assailed Decision disposed as follows: The Facts


WHEREFORE, the appeal is GRANTED, and the Decision appealed from is REVERSED and SET ASIDE. In its place judgment is rendered approving and allowing probate to the said last will and

The facts were summarized in the assailed Decision of the CA, as follows:
x x x: Like so many others before him, Placido toiled and lived for a long time in the United States until he finally reached retirement. In 1980, Placido finally came home to stay in the Philippines, and he lived in the house and lot located at #9200 Catmon St., San Antonio Village, Makati, which he owned in common with his sister Ciriaca Valmonte and titled in their names in TCT 123468. Two years after his arrival from the United States and at the age of 80 he wed Josefina who was then 28 years old, in a ceremony solemnized by Judge Perfecto Laguio, Jr. on February 5, 1982. But in a little more than two years of wedded bliss, Placido died on October 8, 1984 of a cause written down as COR PULMONALE.

Placido executed a notarial last will and testament written in English and consisting of two (2) pages, and dated June 15, 1983 but acknowledged only on August 9, 1983. The first page contains the entire testamentary dispositions and a part of the attestation clause, and was signed at the end or bottom of that page by the testator and on the left hand margin by the three instrumental witnesses. The second page contains the continuation of the attestation clause and the acknowledgment, and was signed by the witnesses at the end of the attestation clause and again on the left hand margin. It provides in the body that:

LAST WILL AND TESTAMENT OF PLACIDO VALMONTE IN THE NAME OF THE LORD AMEN:

I, PLACIDO VALMONTE, of legal age, married to Josefina Cabansag Valmonte, and a resident of 9200 Catmon Street, Makati, Metro Manila, 83 years of age and being of sound and disposing mind and memory, do hereby declare this to be my last will and testament:

a.

1. It is my will that I be buried in the Catholic Cemetery, under the auspices of the Catholic Church in accordance with the rites and said Church and that a suitable monument to be erected and provided my by executrix (wife) to perpetuate my memory in the minds of my family and friends;

Lot 4-A, Block 13 described on plan Psd-28575, LRC, (GLRO), situated in Makati, Metro Manila, described and covered by TCT No. 123468 of the Register of Deeds of Pasig, Metro-Manila registered jointly as co-owners with my deceased sister (Ciriaca Valmonte), having share and share alike;

b.

2. I give, devise and bequeath unto my loving wife, JOSEFINA C. VALMONTE, one half (1/2) portion of the followdescribed properties, which belongs to me as [co-owner]:

2-storey building standing on the above-described property, made of strong and mixed materials used as my residence and my wife and located at No. 9200 Catmon Street, Makati, Metro Manila also covered by Tax Declaration

No. A-025-00482, Makati, Metro-Manila, jointly in the name of my deceased sister, Ciriaca Valmonte and myself as co-owners, share and share alike or equal co-owners thereof;

IN WITNESS WHEREOF, I have hereunto set my hand this 15th day of June 1983 in Quezon City, Philippines.

3. All the rest, residue and remainder of my real and personal properties, including my savings account bank book in USA which is in the possession of my nephew, and all others whatsoever and wherever found, I give, devise and bequeath to my said wife, Josefina C. Valmonte;

The allowance to probate of this will was opposed by Leticia on the grounds that:

1.

Petitioner failed to allege all assets of the testator, especially those found in the USA;

2. 4. I hereby appoint my wife, Josefina C. Valmonte as sole executrix of my last will and testament, and it is my will that said executrix be exempt from filing a bond; 3.

Petitioner failed to state the names, ages, and residences of the heirs of the testator; or to give them proper notice pursuant to law;

Will was not executed and attested as required by law

and legal solemnities and formalities were not complied with;

4.

Testator was mentally incapable to make a will at the time of the alleged execution he being in an advance sate of senility;

and she also opposed the appointment as Executrix of Josefina alleging her want of understanding and integrity.

5.

Will was executed under duress, or the influence of fear or threats;

6.

Will was procured by undue and improper influence and pressure on the part of the petitioner and/or her agents and/or assistants; and/or

At the hearing, the petitioner Josefina testified and called as witnesses the notary public Atty. Floro Sarmiento who prepared and notarized the will, and the instrumental witnesses spouses Eugenio Gomez, Jr. and Feliza Gomez and Josie Collado. For the opposition, the oppositor Leticia and her daughter Mary Jane Ortega testified.

7.

Signature of testator was procured by fraud, or trick, and he did not intend that the instrument should be his will at the time of affixing his signature thereto;

According to Josefina after her marriage with the testator they lived in her parents house at Salingcob, Bacnotan, La Union but they came to Manila every month to get his $366.00 monthly pension and stayed at the said Makati residence. There were times

though when to shave off on expenses, the testator would travel alone. And it was in one of his travels by his lonesome self when the notarial will was made. The will was witnessed by the spouses Eugenio and Feliza Gomez, who were their wedding sponsors, and by Josie Collado. Josefina said she had no knowledge of the existence of the last will and testament of her husband, but just serendipitously found it in his attache case after his death. It was only then that she learned that the testator bequeathed to her his properties and she was named the executrix in the said will. To her estimate, the value of property both real and personal left by the testator is worth more or less P100,000.00. Josefina declared too that the testator never suffered mental infirmity because despite his old age he went alone to the market which is two to three kilometers from their home cooked and cleaned the kitchen and sometimes if she could not accompany him, even traveled to Manila alone to claim his monthly pension. Josefina also asserts

that her husband was in good health and that he was hospitalized only because of a cold but which eventually resulted in his death.

Notary Public Floro Sarmiento, the notary public who notarized the testators will, testified that it was in the first week of June 1983 when the testator together with the three witnesses of the will went to his house cum law office and requested him to prepare his last will and testament. After the testator instructed him on the terms and dispositions he wanted on the will, the notary public told them to come back on June 15, 1983 to give him time to prepare it. After he had prepared the will the notary public kept it safely hidden and locked in his drawer. The testator and his witnesses returned on the appointed date but the notary public was out of town so they were instructed by his wife to come back on August 9, 1983, and which they did. Before the testator and his witnesses signed the

prepared will, the notary public explained to them each and every term thereof in Ilocano, a dialect which the testator spoke and understood. He likewise explained that though it appears that the will was signed by the testator and his witnesses on June 15, 1983, the day when it should have been executed had he not gone out of town, the formal execution was actually on August 9, 1983. He reasoned that he no longer changed the typewritten date of June 15, 1983 because he did not like the document to appear dirty. The notary public also testified that to his observation the testator was physically and mentally capable at the time he affixed his signature on the will.

The attesting witnesses to the will corroborated the testimony of the notary public, and testified that the testator went alone to the house of spouses Eugenio and Feliza Gomez at GSIS Village, Quezon City and requested them to accompany him to the house of

Atty. Floro Sarmiento purposely for his intended will; that after giving his instructions to Atty. Floro Sarmiento, they were told to return on June 15, 1983; that they returned on June 15, 1983 for the execution of the will but were asked to come back instead on August 9, 1983 because of the absence of the notary public; that the testator executed the will in question in their presence while he was of sound and disposing mind and that he was strong and in good health; that the contents of the will was explained by the notary public in the Ilocano and Tagalog dialect and that all of them as witnesses attested and signed the will in the presence of the testator and of each other. And that during the execution, the testators wife, Josefina was not with them.

The oppositor Leticia declared that Josefina should not inherit alone because aside from her there are other children from the siblings of Placido who

are just as entitled to inherit from him. She attacked the mental capacity of the testator, declaring that at the time of the execution of the notarial will the testator was already 83 years old and was no longer of sound mind. She knew whereof she spoke because in 1983 Placido lived in the Makati residence and asked Leticias family to live with him and they took care of him. During that time, the testators physical and mental condition showed deterioration, aberrations and senility. This was corroborated by her daughter Mary Jane Ortega for whom Placido took a fancy and wanted to marry.

the execution and attestation of the will; and

2. Mental incapacity of the testator at the time of the execution of the will as he was then in an advanced state of senility

It then found these grounds extant and proven, and accordingly disallowed probate.[5]

Sifting through the evidence, the court a quo held that [t]he evidence adduced, reduces the opposition to two grounds, namely:

Ruling of the Court of Appeals

1. Non-compliance with the legal solemnities and formalities in

Reversing the trial court, the appellate court admitted the will of Placido Valmonte to probate. The CA upheld the credibility of the notary public and the subscribing witnesses who had acknowledged the due Petitioner raises the following issues for our consideration:
I.

Hence, this Petition.[7]

Issues

execution of the will. held that the

Moreover, it had

testator

testamentary capacity at the time of the execution of the will. It added that his sexual exhibitionism and unhygienic, crude and impolite

ways[6] did not make him a person of unsound mind.

Whether or not the findings of the probate court are entitled to great respect.

II.

Whether or not the signature of Placido Valmonte in the subject will was procured by fraud or trickery, and that Placido Valmonte never intended that the instrument should be his last will and testament.

In short, petitioner assails the CAs allowance of the probate of the will of Placido Valmonte.

III.

Whether or not Placido Valmonte has testamentary capacity at the time he allegedly executed the subject will.[8]

This Courts Ruling

presented during the trial may be examined and the factual matters

The Petition has no merit.

resolved by this Court when, as in the instant case, the findings of fact of the appellate court differ from those

Main Issue: Probate of a Will

of the trial court.[9]

The fact that public policy favors At the outset, we stress that only questions of law may be raised in a Petition for Review under Section 1 of Rule 45 of the Rules of Court. As an exception, however, the evidence the probate of mean for a will that does every should not will be

necessarily presented allowed.

probate

The law lays down the

procedures and requisites that must be satisfied for the probate of a will.

[10]

Verily, Article 839 of the Civil

Code states the instances when a will may be disallowed, as follows:

Article 839. The will shall be disallowed in any of the following cases:

(1) If the formalities required by law have not been complied with;

(6) If the testator acted by mistake or did not intend that the instrument he signed should be his will at the time of affixing his signature thereto.

(2) If the testator was insane, or otherwise mentally incapable of making a will, at the time of its execution;

In the present case, petitioner assails the validity of Placido

(3) If it was executed through force or under duress, or the influence of fear, or threats;

Valmontes will by imputing fraud in its execution and challenging the testators state of mind at the time.

(4) If it was procured by undue and improper pressure and influence, on the part of the beneficiary or of some other person;

Existence of Fraud in the


(5) If the signature of testator was procured by fraud; the

Execution of a Will

varying dates of the execution and Petitioner does not dispute the due observance of the formalities in the execution that of the the will, but Petitioner contends that it was highly dubious for a woman at the prime of her young life [to] almost immediately plunge into marriage the attestation of the will.

maintains

circumstances

surrounding it are indicative of the existence of fraud. Particularly, she alleges that respondent, who is the testators wife and sole beneficiary, conspired with the notary public and the three attesting Placido to witnesses sign it.

with a man who [was] thrice her age x x x and who happened to be [a] FilAmerican pensionado,[11] thus

casting doubt on the intention of respondent in seeking the probate of the will. defies Moreover, it supposedly human reason, logic and

in deceiving

Deception is allegedly reflected in the

common man with

experience[12] for a severe

an

old

deception

regarding

which

the

psychological

testator is led to make a certain will which, but for the fraud, he would not have made.[13]

condition to have willingly signed a last will and testament.

We are not convinced. Fraud is a trick, secret device, false

We

stress

that

the

party

challenging the will bears the burden of proving the existence of fraud at the time of its execution.[14] The

statement, or pretense, by which the subject of it is cheated. It may be of such character that the testator is misled or deceived as to the nature or contents of the document which he executes, or it may relate to some extrinsic fact, in consequence of the

burden to show otherwise shifts to the proponent of the will only upon a showing of credible evidence of

fraud.[15] Unfortunately in this case, other than the self-serving

allegations of petitioner, no evidence of fraud was ever presented.

cudgels

of

taking

care

of

[the

testator] in his twilight years.[17]

It is a settled doctrine that the omission of some relatives does not affect the due execution of a will.[16] That the testator was tricked into signing it was not sufficiently the

Moreover, as correctly ruled by appellate court, the conflict

between the dates appearing on the will does not invalidate the

document, because the law does not even require that a [notarial] will x x x be executed and acknowledged on the same occasion.[18] the will must More be

established by the fact that he had instituted his wife, who was more than fifty years his junior, as the sole beneficiary; petitioner and and her disregarded family, who

important,

subscribed by the testator, as well as by three or more credible witnesses

were the ones who had taken the

who must also attest to it in the presence of the testator and of one another.[19] Furthermore, the testator and the witnesses must acknowledge the will before a notary public.[20] In any event, we agree with the CA that the variance in the dates of the will as to its supposed execution and attestation was satisfactorily and

The

pertinent

transcript

of

stenographic notes taken on June 11, 1985, November 25, 1985, October 13, 1986, and October 21, 1987 -- as quoted by the CA -- are reproduced respectively as follows:
Atty. Floro Sarmiento:

persuasively explained by the notary public and the instrumental


A

witnesses.[21]

You typed this document exhibit C, specifying the date June 15 when the testator and his witnesses were supposed to be in your office? Yes sir.

On June 15, 1983, did the testator and his witnesses come to your house? They did as of agreement but unfortunately, I was out of town.

On that particular date when it was acknowledged, August 9, 1983.

x x x x xxx

x x

Why did you not make the necessary correction on the date appearing on the body of the document as well as the attestation clause? Because I do not like anymore to make some alterations so I put it in my own handwriting August 9, 1983 on the acknowledgement. (tsn, June 11, 1985, pp. 8-10)

A Q The document has been acknowledged on August 9, 1983 as per acknowledgement appearing therein. Was this the actual date when the document was acknowledged? Yes sir.

Eugenio Gomez:

What about the date when the testator and the three witnesses affixed their respective signature on the first and second pages of exhibit C?

It appears on the first page Mr. Witness that it is dated June 15, 1983, whereas in the acknowledgement it is dated August 9, 1983, will you look at

this document and tell us this discrepancy in the date? A We went to Atty. Sarmiento together with Placido Valmonte and the two witnesses; that was first week of June and Atty. Sarmiento told us to return on the 15th of June but when we returned, Atty. Sarmiento was not there.

Felisa Gomez on cross-examination:

Why did you have to go to the office of Atty. Floro Sarmiento, three times?

x x x x xxx

x x

When you did not find Atty. Sarmiento on June 15, 1983, did you again go back? We returned on the 9th of August and there we signed.

This August 9, 1983 where you said it is there where you signed, who were your companions? The two witnesses, me and Placido Valmonte. (tsn, November 25, 1985, pp. 7-8)

The reason why we went there three times is that, the first week of June was out first time. We went there to talk to Atty. Sarmiento and Placido Valmonte about the last will and testament. After that what they have talked what will be placed in the testament, what Atty. Sarmiento said was that he will go back on the 15th of June. When we returned on June 15, Atty. Sarmiento was not there so we

were not able to sign it, the will. That is why, for the third time we went there on August 9 and that was the time we affixed our signature. (tsn, October 13, 1986, pp. 4-6)

Q A

For what purpose? Our purpose is just to sign the will.

Q A

Were you able to sign the will you mentioned? Yes sir. (tsn, October 21, 1987, pp. 4-5)[22]

Josie Collado:

When you did not find Atty. Sarmiento in his house on June 15, 1983, what transpired? The wife of Atty. Sarmiento told us that we will be back on August 9, 1983.

Notably,

petitioner

failed

to

substantiate her claim of a grand conspiracy in the commission of a fraud. There was no showing that the witnesses of the proponent stood to receive allowance any of benefit the from will. the The

And on August 9, 1983 did you go back to the house of Atty. Sarmiento? Yes, Sir.

testimonies of the three subscribing

witnesses and the notary are credible evidence of its due execution.[23] Their testimony favoring it and the finding that it with by was the executed in

In determining the capacity of the testator to make a will, the Civil Code gives the following guidelines:
Article 798. In order to make a will it is essential that the testator be of sound mind at the time of its execution.

accordance required

formalities should be

law

affirmed, absent any showing of ill motives.


[24]

Article 799. To be of sound mind, it is not necessary that the testator be in full possession of all his reasoning faculties, or that his mind be wholly unbroken, unimpaired, or shattered by disease, injury or other cause.

Capacity to Make a Will


It shall be sufficient if the testator was able at the time of making the will to know the nature of the estate to be disposed of, the proper objects of his bounty, and the character of the testamentary act.

Article 800. The law presumes that every person is of sound mind, in the absence of proof to the contrary.

considered of sound mind are as follows: (1) the nature of the estate to be disposed of, (2) the proper objects of the testators bounty, and (3) the character of the testamentary act. Applying this test to the present case, we find that the appellate court was correct in holding that Placido had testamentary capacity at the time of the execution of his will.

The burden of proof that the testator was not of sound mind at the time of making his dispositions is on the person who opposes the probate of the will; but if the testator, one month, or less, before making his will was publicly known to be insane, the person who maintains the validity of the will must prove that the testator made it during a lucid interval.

According to Article 799, the three things that the testator must have the ability to know to be

It must be noted that despite his advanced age, he was still able to identify accurately the kinds of

property he owned, the extent of his shares in them As and even their

Worth reiterating in determining soundness of mind is Alsua-Betts v. CA,[25] which held thus:
"Between the highest degree of soundness of mind and memory which unquestionably carries with it full testamentary capacity, and that degrees of mental aberration generally known as insanity or idiocy, there are numberless degrees of mental capacity or incapacity and while on one hand it has been held that mere weakness of mind, or partial imbecility from disease of body, or from age, will not render a person incapable of making a will; a weak or feebleminded person may make a valid will, provided he has understanding and memory sufficient to enable him to know what he is about to do and how or to whom he is disposing of his property. To constitute a sound and disposing mind, it is not necessary that the mind be

locations.

regards the proper

objects of his bounty, it was sufficient that he identified his wife as sole beneficiary. earlier, the As we have of stated some

omission

relatives from the will did not affect its formal validity. There being no

showing of fraud in its execution, intent in its disposition becomes

irrelevant.

unbroken or unimpaired or unshattered by disease or otherwise. It has been held that testamentary incapacity does not necessarily require that a person shall actually be insane or of unsound mind."[26]

EN BANC G.R. No. L-18498 March 30, 1967

TESTATE ESTATE OF VITO BORROMEO. JOSE H. JUNQUERA, petitioner-appellee, vs. CRISPIN BORROMEO, ET AL., oppositors-appellants. REPUBLIC OF THE PHILIPPINES, intervenor-appellant. Benjamin A. Rallon for oppositor-appellant Fortunato Borromeo. Crispen Baizas and Associates for heirs oppositors-appellants Tomas Borromeo and Amelia Borromeo. Office of the Solicitor General for intervenor oppositor-appellant Republic. Miguel Cuenco and Fernando S. Ruiz for heirs oppositorsappellants Crispin Borromeo, Teofilo Borromeo, et al. Filiberto Leonardo for petitioner-appellee. DIZON, J.: Vito Borromeo, a widower and permanent resident of the City of Cebu, died on March 13, 1952, in Paraaque, Rizal, at the age of 88 years, without forced heirs but leaving extensive properties in the province of Cebu. On April 19 of the same year, Jose H. Junquera, filed with the Court of First Instance of said province a petition for the probate of a one page document as the last will left by said deceased, devising all his properties to Tomas, Fortunato and Amelia, all surnamed Borromeo, in equal and undivided shares, and designating Junquera as executor thereof (Special Proceedings No. 916-R). The document now in the record as Exhibit "A" was dated May 17, 1946, drafted in Spanish, and allegedly signed, and thumbmarked by said deceased, in the presence of Dr. Cornelio G. Gandionco, Eusebio Cabiluna and Filiberto

WHEREFORE,

the

Petition

is DENIED, and the assailed Decision and Resolution of the Court of

Appeals

areAFFIRMED.

Costs

against petitioner. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila

Leonardo as attesting witnesses. On June 14, 1952, the probate court appointed Junquera as special administrator of the estate. On November 14 of the same year, Teofilo Borromeo filed an opposition to the probate of the will based on the following grounds: (1) that the formalities required by law had not been complied with; (2) that the testator was mentally incapable of making a will at the time of its execution; (3) that the will was procured by undue and improper influence, on the part of the beneficiaries and/or some other person; (4) that the signature of the testator was procured by fraud; and (5) that the testator acted by mistake or did not intend the instrument he signed to be his will at the time he affixed his signature thereto. Upon motion of the abovenamed oppositor, on June 9, 1953, the Court removed Junquera as special administrator and appointed Dr. Patricio Beltran in his place. On November 27, 1953, Vitaliana Borromeo, a niece of the deceased, filed her own opposition to the probate of the will, on the ground that the signature "Vito Borromeo" appearing thereon was a forgery. Other oppositions were subsequently filed by Patrocinio Borromeo de Tabotabo (her opposition was later withdrawn), Lilia Morre de Tabotabo, Lamberto Morre, Patricia Morre de Ranario, Aurora Morre de Borromeo, Ramon Ocampo, Isagani Morre and Rosario Morre, invoking substantially the same grounds mentioned heretofore. Meanwhile, Tomas, Amelia and Fortunato Borromeo, manifestly on behalf of the "Cebu Arcade Company, T. L. Borromeo y Cia.", a duly organized partnership controlled by them, filed a motion to exclude from the inventory of the Estate previously filed by the new special administrator, thirteen parcels of land situated in the City of Cebu with a total area of 2,148 square meters, alleging that during his lifetime the deceased testator had sold said lots to them, as evidenced by the document now in the record as Exhibit F-1 executed on May 17, 1945, confirming the alleged previous sale. After due hearing, the court, in its order of July 16, 1954,

denied the motion for exclusion, ruling that movants' remedy was to file a separate accion reivindicatoria against the administrator. On October 28, 1955, the Republic of the Philippines filed a motion for leave to intervene and join the oppositors in contesting the probate of the will, on the ground that, should the estate be adjudicated the latter by intestacy, it stood to collect a considerable amount by way of estate and inheritance taxes. In its order of December 10 of the same year, the Court allowed the intervention. After a prolonged trial, on May 28, 1960, the Court rendered a decision denying the probate of the will and declaring itself without jurisdiction to pass upon the question of ownership over the thirteen lots which the Cebu Arcade etc. claimed as its own. All the parties appealed the proponents of the will from the portion of the decision denying probate, and the oppositors and the Republic of the Philippines, from that portion thereof where the court refused to decide the question of ownership of the thirteen lots already mentioned. The proponents of the disputed will, mainly with the testimony of the three attesting witnesses, Cornelio Gandionco, Filiberto Leonardo and Eusebio Cabiluna, sought to prove the following facts: In the morning of May 17, 1945, Tomas Borromeo, complying with the request of Vito Borromeo, went to the house of Atty. Filiberto Leonardo to request him to be a witness at the execution of the latter's last will. Dr. Cornelio Gandionco, who at the time happened to be in the house of Leonardo, was likewise requested to act as such. Together, the three went to the residence of Vito Borromeo at Ramos Street, Cebu City. Upon their arrival the third witness, Eusebio Cabiluna, who was living on the ground floor of the house, was asked to come upstairs. Thereafter, in their presence, Vito Borromeo executed first, the document Exhibit "F" (deed of confirmation of an alleged previous sale to Cebu Arcade Company, T. L. Borromeo y Cia.) witnessed by Gandionco and

Cabiluna. Later, Vito Borromeo, being of sound and disposing mind, and without pressure or influence exerted on him, dictated the substance of his will to Tomas Borromeo, who in turn typewrote it in proper legal language. The document was then read by Vito Borromeo, who later signed and thumbmarked it (Exhibit "A") and carbon copies thereof (Exhibits "E" and "K") in the presence of the attesting witnesses, who, in turn, signed the will and its copies in the presence of Vito Borromeo and of each other. Proponents also placed the Rev. Fr. Julio Corres, a Spanish Catholic priest who was the confessor of Vito Borromeo from 1942 to 1946, the Rev. Fr. Sergio Alfafara, who was his confessor from 1946 to 1947, and Vicenta Maacap, a mid-wife who lived in the testator's house and had served him from May 1945 up to his death on March 30, 1952 on the witness stand. The gist of their testimony is to the effect that at the time of the execution of the will, Vito Borromeo was still strong and could move around freely with the aid of a cane; that he was still mentally alert and was a man of strong will; that his right hand was unimpaired and he could write with it unaided; that as a matter of fact according to Vicenta Maacap he still wrote personal letters to Tomas Borromeo, could eat by himself and even played the piano. On the other hand, the oppositors presented several witnesses who testified that the signatures purporting to be those of Vito Borromeo on the document Exhibit "A" and its copies were forgeries; that they were too good and too perfect signatures and, therefore, quite impossible for the deceased an ailing man already 82 years old on May 17, 1945 to write; that he was found "positive for bacillus leprosy" by Dr. Antonio Garcia as early as 1926 or 1927, having been treated for it consistently by injections of chaulmoogra oil administered by Dr. Max Borromeo and Dr. Cornelio Gandionco; that Vito Borromeo's usual signatures during his better days had always been characterized by certain flourishes, technically called "rubric"; that Vito Borromeo had also reared and educated two of the oppositors, Crispin Borromeo and the late Teofilo Borromeo and there was

no conceivable reason why they were left out in the will, if any such will had really been made by him knowingly; that the testamentary witness Cornelio Gandionco, is a nephew of the other witness, Filiberto Leonardo, and was the fiance of Angeles Borromeo, a sister of Tomas Borromeo, one of the instituted heirs; that the third testamentary witness, Eusebio Cabiluna is the real father of Fortunato Borromeo, another instituted heir, who admittedly grew up and was reared by Vito Borromeo and his wife Juliana Evangelista since he was barely three months; that Amelia Borromeo, the third instituted heir, is a younger sister of Tomas Borromeo and dependent upon him; that on May 17, 1945, the deceased's leprosy was so far advanced that the fingers of his right hand were already hardened and atrophied, this making it difficult, if not impossible, for him to write; and that on the same date, his sense of hearing and his eyesight had been considerably impaired, his eyes being always watery due to the progress of his leprosy. The oppositors also presented Felipe Logan of the National Bureau of Investigation and Jose G. Villanueva, as handwriting experts, who testified, after examining the supposed signatures of the deceased in Exhibit "A" and comparing them with his accepted standard signatures, that the questioned signatures were forgeries. The proponents, however, presented their own handwriting expert, Martin Ramos, who testified to the contrary. The trial court refused to believe the testimony of the attesting witnesses and, as a result, denied the petition for probate, because, in its opinion, they appeared not to be "wholly disinterested persons" and because of the serious discrepancies in their testimonies with respect to the number of copies made of the disputed document. The court also found that the physical condition of the deceased at the time of the execution of the questioned document was such that it was highly improbable, if not impossible, for him to have affixed his signatures on the documents Exhibits A, E and K in the spontaneous and excellent manner they appear to have been written. Thus, the court was also led to believe the testimony of the handwriting experts for

oppositors, adverse to the genuineness of the signatures of Vito Borromeo on the questioned document more than that of the handwriting expert presented by the proponents of the will. It seems clear, therefore, that the main issue to be decided in the present appeal is whether or not the evidence of record is sufficient to prove the due execution of the will in question.
1wph1.t

It must be conceded that in this jurisdiction, the subscribing witnesses to a contested will are regarded as the best witnesses in connection with its due execution. It is similarly true, however, that to deserve full credit, their test, testimony must be reasonable and unbiased, and that, as in the case of any other witness, their testimony may be overcome by any competent evidence direct or circumstantial (Board, etc. vs. Shasser, 10 Kan. 585, 168 Pac. 836 [1917]). It is also an appellate practice of long standing in this jurisdiction to accord great weight to the findings of fact made by the trial court and not to disturb them unless said court had failed to consider material facts and circumstances or had given undue weight to, or misconstrued the testimony of particular witnesses, the reason for this being that the trial judge had full opportunity to hear and observe the conduct and demeanor of the witnesses while testifying and was consequently in a better position than the reviewing court to determine the question of their credibility. While this is not applicable to the present case because His Honor, the judge who penned the appealed decision was not the same judge before whom the evidence of the parties was presented, it must be stated that, judging from the carefully written decision under review, it was only after a thorough study of the record that His Honor arrived at the conclusion that the subscribing witnesses do not appear to be wholly disinterested persons. On the matter of the number of copies made of the questioned will allegedly signed by the testator and the three subscribing witnesses, His Honor found that Cabiluna was very uncertain and confused; that a certain stage of his examination, he said that

only two copies of the will were prepared the original and one carbon copy while at another stage he affirmed that he did not know whether or not there was a duplicate and that all he could say was that he had affixed his signature three times (Transcript, Marquiala, August 22, 1958, pp. 49-50). In truth, however, he really signed six (6) times twice on the original and twice on each of the two copies. Adding confusion to the situation is the answer he gave when he was asked if Vito Borromeo also signed the carbon copy, to which his answer was "I did not see" (Idem., p. 50). On the other hand, the other subscribing witness, Atty. Filiberto Leonardo, testified categorically that there were only the original and one carbon copy of the will and that the testator and all the subscribing witnesses signed both (Transcript, Marquiala, December 23, 1953, pp. 167, 210, and 218). However, the naked and highly disturbing fact is that, contrary to what is inferable from the vacillating testimony of Cabiluna and the categorical assertion of Atty. Leonardo, the proponents of the questioned will themselves presented three copies of said will; the original, a carbon duplicate copy and a carbon triplicate copy, now in the record as Exhibits A, E and K, respectively. While it is true that the testimony of these subscribing witnesses was given around eight years after the alleged execution of the questioned will, still we believe that the transaction in which they claim to have taken an important part is of such character and importance that it can not be a very easy matter for anyone of them to have a hazy recollection of the number of copies signed by the testator and by them. Stranger still would it be for them to say something in open contradiction with the reality on the matter. If, as may be clearly deduced from their testimony Cabiluna and Leonardo's there was only the original and one copy signed by the testator and the subscribing witnesses, why is it that three original and two copies were really in existence and were produced in court during the trial?

In the case of the third subscribing witness, Dr. Cornelio Gandionco, the imputation was made by two witnesses, Dr. Teofilo Borromeo and Judge Crispin Borromeo, that he was the fiance of Angeles Borromeo, sister of Tomas Borromeo, who is one of the three heirs instituted in the questioned will, evidently to show that he is not a completely disinterested witness. The evidence to this effect appears to have remained unimpeached, although the proponents of the will could have done it by calling on Dr. Gandionco himself or on Angeles Borromeo to deny the imputation. Moreover, the evidence also disclose that Dr. Gandionco was the uncle of the other subscribing witness, Atty. Leonardo, and that, in fact, they were living together at the time of the alleged execution of the will. This circumstance apparently trivial can not be taken lightly because in view of appellee's claim that Angeles Borromeo was the fiance of Dr. Gandionco, it would not be unreasonable to entertain the suspicion that both subscribing witnesses were not wholly disinterested. Material to this point is the fact established by the evidence that Atty. Leonardo was the notary public before whom the document Exhibit 4-A which purports to convey to a partnership controlled by the heirs instituted in the questioned will thirteen parcels of land situated in the commercial center of Cebu City was supposedly acknowledged by the testator on the same date May 17, 1945. In the light of the foregoing, We can not see our way clear to holding that the trial court erred in refusing to give full credit to the testimony of the three subscribing witnesses. It has also been held that the condition and physical appearance of a questioned document constitute a valuable factor which, if correctly evaluated in the light of surrounding circumstances, may help in determining whether it is genuine or forged. Subscribing witnesses may forget or exaggerate what they really know, saw, heard or did; they may be biased and, therefore, tell only half truths to mislead the court or favor one party to the prejudice of the other. This can not be said of the condition and physical

appearance of the questioned document itself. Both, albeit silently, will reveal the naked truth, hiding nothing, forgetting nothing, and exaggerating nothing. For this reason, independently of the conflicting opinions expressed by the handwriting experts called to the witness stand by the parties, we have carefully examined and considered the physical appearance and condition of the original and two copies of the questioned will found in the record particularly the signatures attributed to the testator and We have come to the conclusion that the latter could not have been written by him. Upon the face of the original and two copies of the contested will (Exhibits A, E and K) appear a total of six alleged signatures of the testator. They are all well written along a practically straight line, without any visible sign of tremor or lack of firmness in the hand that wrote them. In fact, in the respects just adverted to, they appear better written than the unquestioned signatures, of attesting witnesses Gandionco and Cabiluna, inspite of the fact that on the date of the alleged execution of the will (May 17, 1945) the testator was considerably older and in a much poorer physical condition than they. According to the evidence, the testator was then a sick man, eighty-two years old, with the entire left half of his body paralyzed since six years before, while the oldest attesting witness (Cabiluna) was around sixty-five years of age and Leonardo and Gandionco were only forty-four and fortyfive years old respectively, and were all in good health. Despite the obviously very poor physical condition of the testator, Leonardo claims that he signed the alleged will unaided, writing his name thereon slowly but continuously or without interruption, and that, on the same occasion, he signed his name several times not only on the original of the will and its copies but also on the original and several copies of the alleged confirmatory sale Exhibit F-1 and on his residence certificate. Considering all the attendant circumstances, we agree with the lower court that Vito Borromeo could not have written the questioned signatures. In view of what has been said heretofore, We find it unnecessary to examine and consider in detail the conflicting testimony of the

handwriting experts presented by the parties: Martin Ramos by the proponents of the will, to sustain the genuineness of the questioned signatures, and Felipe Logan and Jose G. Villanueva, by the oppositors, to prove that said signatures are forgeries. We shall limit ourselves in this connection to quoting with approval the following portion of the appealed decision: What the Court finds to be a weakness in the conclusions of Martin Ramos, based on his comparative examination of the questioned and standard signatures of Vito Borromeo, is his apparent assumption that all the signatures were made by Vito Borromeo under equality or similarity of circumstances, that is, that in all instances Vito Borromeo had normal use of both of his hands, the right and the left. He failed to take into account that when Vito Borromeo allegedly affixed those signatures on May 17, 1945 on Exhibits 'A', 'E', and 'K' the left portion of his body, including the left hand, was already paralyzed, and Vito Borromeo was represented to have written his name alone by himself and unaided. Maybe, if he was previously apprised of those circumstances, he would hesitate to make the conclusion that those flawless signatures reading Vito Borromeo, written straight and in a form as good as, if not better than, the signatures of three much younger attesting witnesses, were positively in the handwriting of the 82-year old, ailing, and paralytic Vito Borromeo. The Court consequently, finds itself not disposed to adopt his conclusions, but on the contrary is inclined toward the views of the other two experts witnesses, Felipe Logan and Jose G. Villanueva. As stated at the outset, the contested will is claimed to have been signed and thumbmarked by the testator. An examination of the thumbmarks, however, readily shows that, as the lower court found, the same are "glaringly far from being distinct and clear"; that "they are not a possible means of identification" nor can "they possibly be identified to be those of Vito Borromeo, or for that

matter, of any other person whatsoever". It is, therefore, obvious, that they are of little use in the resolution of the issue before Us. We shall now consider the appeal, taken by the oppositors and the Republic of the Philippines from that portion of the decision where the lower court declined to decide with finality the question of who owns the thirteen parcels of land subject-matter of the confirmatory sale Exhibit F-1 and whether or not they should be included in or excluded from the inventory of properties of the Estate of the deceased Vito Borromeo. It appears that on February 11, 1954 Tomas, Amelia, and Fortunato Borromeo, through counsel, filed a motion for the exclusion from the inventory of the Estate of the thirteen lots therein mentioned, with a total area of 2,348 square meters, claiming that the same had been sold by the deceased Vito Borromeo during his lifetime to the Cebu Arcade, T. L. Borromeo y Cia. This motion for exclusion was denied by the lower court in its order of July 16, 1954, and the ruling was reiterated in the appealed decision "for the same reasons and considerations" upon which it rejected the probate of the will. The ruling on the matter, however, was expressly made provisional in nature. We believe, and so hold, that the resolution of the lower court on this matter is correct because said court, acting in its capacity as a probate court, had no jurisdiction to determine with finality the question of ownership involved. That such matter must be litigated in a separate action has been the established jurisprudence in this jurisdiction (Ongsinco vs. Borja, L-7635, July 25, 1955; Mallari vs. Mallari, L-4656, February 23, 1953; Garcia vs. Martin, G.R. No. L-9233, June 29, 1957; Cordova vs. Ocampo, 73 Phil. 661; Pascual vs. Pascual, 73 Phil. 561 and others), except where a party merely prays for the inclusion or exclusion from the inventory of any particular property, in which case the probate court may pass upon provisionally, the question of inclusion or exclusion, but without prejudice to its final determination in an appropriate separate action (Garcia vs.

Garcia, 67 Phil. 353; Marcelino vs. Antonio, 70 Phil. 388; Guinguing vs. Abuton, 48 Phil. 144, 147). In view of all the foregoing, the decision appealed from is affirmed, with costs.

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 will 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 will was annexed to the petition for probate.
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SECOND DIVISION
[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. DECISION
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.

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 oclock in the morning, copies of which were served to Arturo de Santos Foundation, Inc. and Ms. Pacita de los Reyes Phillips (Officers 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 petitioners 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. 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 (testators 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.
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appointing her as special administrator of Dr. De Santoss 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 testators 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 petitioners motion for intervention. Petitioner brought this matter to the Court of Appeals which, in a decision promulgated on February 13, 1998, upheld the denial of petitioners motion for intervention.
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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 respondents motion, Judge Salvador Abad Santos of Branch 65 issued an order, dated June 28, 1996,

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. M4223 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, 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:
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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 petitioners 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 decision setting aside the trial courts order on the ground that petitioner had not shown any right or interest to intervene in Sp. Proc. No. M4343.
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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 testate 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. Santiesteban and Tagle v. Manalo, 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 respondents petition for issuance of letters testamentary.
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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.

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.
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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.
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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 testators life, therefore, will lessen the number of contest upon wills. Once a will is probated during the lifetime of the testator, the only

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 testators death shall govern. The Supreme Court shall formulate such additional Rules of Court as may be necessary for the allowance of wills on petition of the testator. Subject to the right of appeal, the allowance of the will, either during the lifetime of the testator or after his death, shall be conclusive as to its due execution.

questions that may remain for the courts to decide after the testators 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 testators death would be in order.
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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 latters 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.
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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,

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 RTCMakati 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

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:
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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.
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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:
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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 decedents 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 respondents 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]

(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]

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 testators (1) Legitimate children and descendants, with respect to their legitimate parents and ascendants;

Petitioner, as nephew of the testator, is not a compulsory heir who may have been preterited in the testators 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. None of these circumstances is present in this case.


[20]

SPECPRO DIGEST
Lukban vs Republic Lukban vs Republic L-8492, February 29, 1956

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. 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.

FACTS: Lourdes Lukban and Francisco Chuidian got married in 1933 and after a violent quarrel he left Lukban and has not been heard of since then. She diligently looked for him asking the parents and friends but no one knew his whereabouts. She believes that husband is already dead since he was absent for more than 20 years and because she intends to marry again, she desires to have her civil status put in order to be relieved on any liability under the law.

ISSUE: Whether Lukban needs to secure declaration of presumptive death before she can remarry.

HELD: The court ruled that Lukban does not need to secure declaration of presumptive death of her husband because Civil Code prevails during their marriage in

1933. It provides that for the purposes of the civil marriage law, it is not necessary to have the former spouse judicially declared an absentee. The declaration of absence made in accordance with the provisions of the Civil Code has for its sole purpose to enable the taking of the necessary precautions for the administration of the estate of the absentee. For the celebration of civil marriage, however, the law only requires that the former spouse has been absent for seven consecutive years at the time of the second marriage, that the spouse present does not know his or her former spouse to be living, that each former spouse is generally reputed to be dead and the spouse present so believes at the time of the celebration of the marriage. Valdez vs Republic

back to her parents home. 3 years have passed without any word from Sofio until in October 1975 when he showed up and they agreed to separate and executed a document to that effect. It was the last time they saw each other and had never heard of ever since. Believing that Sofio was already dead, petitioner married Virgilio Reyes in June 1985. Virgilios application for naturalization in US was denied because petitioners marriage with Sofio was subsisting. Hence, in March 2007, petitioner filed a petition seeking declaration of presumptive death of Sofio.

ISSUE: Whether or not petitioners marriage with Virgilio is valid despite lack of declaration of presumptive death of Sofio. HELD:

Valdez vs. Republic GR No. 180863, September 8, 2009 FACTS:

The court ruled that no decree on the presumption of Sofios death is necessary because Civil Code governs during 1971 and not Family Code where at least 7 consecutive years of absence is only needed. Thus, petitioner was capacitated to marry Virgilio and their marriage is legal and valid. Cua v. Vargas G.R. No. 156536, FACTS:

Angelita Valdez was married with Sofio in January 1971. She gave birth to a baby girl named Nancy. They argued constantly because Sofio was unemployed and did not bring home any money. In March 1972, the latter left their house. Angelita and her child waited until in May 1972, they decided to go

A parcel of residential land with an area of 99 square meters located in San Juan, Virac, Catanduanes was left behind by the late Paulina Vargas. On February 4, 1994, a notarized Extra Judicial Settlement Among Heirs was executed by and among Paulina Vargas' heirs, partitioning and adjudicating unto themselves the lot in question, each one of them getting a share of 11 square meters. The heirs Florentino, Andres, Antonina and Gloria, however, did not sign the document. Only Ester, Visitacion, Juan, Zenaida and Rosario signed it. An Extra Judicial Settlement Among Heirs with Sale was again executed by and among the same heirs over the same property and also with the same sharings. Once more, only Ester, Visitacion, Juan, Zenaida and Rosario signed the document and their respective shares totaling 55 square meters were sold to Joseph Cua. Gloria Vargas came to know of the Extra Judicial Settlement Among Heirs with Sale only when the original house built on the lot was being demolished sometime in May 1995. She also claimed she

was unaware that an earlier Extra Judicial Settlement Among Heirs dated February 4, 1994 involving the same property had been published in the Catanduanes Tribune. After knowing of the sale of the 55 square meters to petitioner Cua, Gloria Vargas tried to redeem the property from Joseph Cua but the offer was refused. Gloria Vargas filed a case for annulment of Extra Judicial Settlement and Legal Redemption of the lot against Joseph Cua. ISSUE: Whether heirs are deemed constructively notified and bound, regardless of their failure to participate therein, by an extrajudicial settlement and partition of estate when the extrajudicial settlement and partition has been duly published; HELD: NO. The procedure outlined in Section 1 of Rule 74 is an ex parte proceeding. The rule plainly states, however, that persons who do not participate or had no notice of an extrajudicial settlement will not be bound thereby. It contemplates a notice that has been sent out or issued before any deed of

settlement and/or partition is agreed upon (i.e., a notice calling all interested parties to participate in the said deed of extrajudicial settlement and partition), and not after such an agreement has already been executed as what happened in the instant case with the publication of the first deed of extrajudicial settlement among heirs. This is not to say, though, that respondents' co-heirs cannot validly sell their hereditary rights to third persons even before the partition of the estate. The heirs who actually participated in the execution of the extrajudicial settlements, which included the sale to petitioner of their pro indiviso shares in the subject property, are bound by the same.

Remedios, one of the sister filed in court a holographic will allegedly executed by Rosario instituting the former as the sole, universal heir of all her properties. She prayed that said will be admitted to probate and that letter of administration be issued to her. Felix and Paz opposed to the probate of the will on the ground that by the institution of Remedios as universal heir of the deceased, oppositors who are compulsory heirs in the direct ascending line were illegally preterited and that in consequence, the institution is void. Article 854 provides that preterition of one, some or all of the compulsory heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator, shall annul the institution of heir. Petitioners contention is that the present is a case of ineffective disinheritance rather than one of preterition drawing the conclusion that Article 854 does not apply in the case at bar. Issue: WON the institution of one of the sister of the deceased as the sole, universal heir preterited the compulsory heirs. Held: Yes. Where the deceased left no descendants, legitimate or illegitimate, but she left forced heirs in the direct ascending line her parents, and her holographic will does not explicitly disinherit them but simply omits their names altogether, the case is one of

Nuguid vs Nuguid, No. L-23445, June 23, 1966; 17 SCRA 449, digested (Special Proceedings Difference between Preterition and Disinheritance) Facts: Rosario died without descendants, legitimate or illegitimate. Surviving her were her legitimate parents Felix and Paz, and 6 brothers and sisters.

preterition of the parents, not a case of ineffective disinheritance. Preterition consists in the omission in the testators will of the forced heirs or anyone of them, either because they are not mentioned therein, or, through mentioned, they are neither instituted as heirs nor are expressly disinherited. Disinheritance, in turn, is a testamentary disposition depriving any compulsory heir of his share in the legitime for a cause authorized by law. Where the one sentence will institutes the petitioner as the sole, universal heir and preterits the parents of the testatrix, and it contains no specific legacies or bequests, such universal institution of petitioner, by itself, is void. And intestate succession ensues

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