December 24, 1927 G.R. No. L-27650 Intestate estate of the late Florencia Diez.

SEGUNDO DIEZ, petitionerappellee, vs. TOMAS SERRA for himself, and as guardian of the minors Mercedes, Trinidad, Jose, Marcelino, Adriano and Felix Serra, opponent-appellant. Arroyo and Evangelista for appellant. Hilado and Hilado for appellee. VILLAMOR, J.: FLORENCIA DIEZ. SEGUNDO DIEZ vs. TOMAS SERRA Republic of the PhilippinesSUPREME COURTManila EN BANC G.R. No. L-27650 December 24, 1927 Intestate estate of the late Florencia Diez. SEGUNDO DIEZ, petitionerappellee, vs. TOMAS SERRA for himself, and as guardian of the minors Mercedes, Trinidad, Jose, Marcelino, Adriano and Felix Serra, opponent-appellant. Arroyo and Evangelista for appellant. Hilado and Hilado for appellee. VILLAMOR, J.: On September 12, 1923, Segundo Diez applied to the Court of First Instance of Occidental Negros for letters of administration of the estate of the deceased Florencia Diez alleging that he is a brother of the said Florencia Diez, who died on August 21, 1921 in the municipality of Cadiz, Province of Occidental Negros, in which municipality she resided at the time of her death; that the deceased at the time of her death was a widow and left no will; that the deceased left realty consisting in a share of onethird of lots Nos. 465 and 490 of Cadiz cadastral case No. 25, more specifically described in the certificates of the office of the register of deeds of that province; that the deceased left seven children, as follows: Years old Tomas Serra y Diez 21 Mercedes Serra y Diez 18 Trinidad Serra y Diez 16 Jose Serra y Diez .14 Marcelino Serra y Diez ..17 Adriano Serra y Diez .10 Felix Serra y Diez 7 That the deceased Florencia Diezs share in the above-mentioned lots is assessed at P22,970. On September 15, 1923, the court granted the application, ordering the appointment of Segundo Diez as administrator, upon his filing a bond in the sum of P5,000. The said bond was filed, and on may 7, 1924, Segundo Diez was appointed administrator. On October 7, 1924, he presented an inventory of the property under his administration. From then on the administration functioned until July 31, 1926, when Tomas Serra fro himself and as guardian of his six minor brothers and sisters, the children of the deceased Florencia Diez, put in a special

appearance, contesting that courts authority to take cognizance of this intestate estate, on the ground that the deceased Florencia Diez resided in the municipality of San Joaquin, Province of Iloilo, at the time of her death, as evidenced by the death certificate, Exhibit A. The North Negros Sugar Co., Inc., filed an intervention in this case, as creditor of the intestate estate for a mortgage loan granted to the administrator, with the authorization of the court, maintaining the validity of these proceedings, and asking for the dismissal of the special appearance of Tomas Serra et al. The court denied the petition of the special appearance. Tomas Serra, et al. appealed from this decision and their counsel in this instance assigns the following errors as committed by the court below: (a) In finding itself competent and with jurisdiction to take cognizance of and act in this proceeding for the settlement of the intestate estate of the deceased Florencia Diez; (b) in not holding that the proceedings had herein are absolutely void ab initio because no evidence has been heard or introduced anent the facts alleged in the application, and particularly anent those concerning its own jurisdiction to take cognizance of this case; (c) in finding that the question set up by the herein petitioners as to the courts jurisdiction is untimely and lacks the legal requisites for that purpose; (d) in holding that the herein appellants are now estopped from questioning the regularity and validity of its proceedings in this intestacy; (e) in permitting the North Negros Sugar Co., Inc., to intervene in the matter of the questioning of the courts jurisdiction. The legal questions raised by this appeal relate to the jurisdiction of the court that granted the letters of administration of the estate of the deceased Florencia Diez , and to the challenge of such jurisdiction. Section 600 of the Code of Civil Procedure provides: SEC. 600. Where residents estate settled. ? If and inhabitant of the Philippine Islands dies, whether a citizen or 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 resided at the time of his death. According to the allegations of the application for letters of administration, the deceased Florencia Diez lived at Cadiz, Occidental Negros at the time of her death; it is therefore clear that the court a quo had jurisdiction to grant the letters of administration applied for. In order to render valid a grant of letters of administration the view is generally accepted that certain jurisdiction facts must exist. These facts are that the person on whose estate the letters are being granted is in fact dead, and that at the time of death he was a resident of the county wherein letters are being granted, or if not a resident that he left assets in such county. It has been said that the fact of the death of the intestate and of his residence within the county are foundation facts upon which all the subsequent proceedings in the administration of the estate rest, and that if the intestate was not an inhabitant of the state at the time of his death, and left no assets in the state, and none came into it afterwards, no jurisdiction is conferred on the court to grant letters of administration in any county. A probate court has jurisdiction to grant administration of the estate of a person who at the time of his decease was an inhabitant or resident in the county, without proof that he left an estate to be administered within the count. (11 R. C. L., par. 81.) Section 603 of the Code of Civil Procedure provides that the jurisdiction assumed by a Court of First Instance for the settlement of an estate, so far as it depends on the place of residence of a person, or of the location of his estate, shall not be contested in a suit or proceeding, except in an appeal from the that court, in the original case, or when the lack of jurisdiction appears in the record. In the present case the lack of jurisdiction did not appear in the record at the time when the court a quo that appointed the administrator found itself competent, and no appeal was taken from the order decreeing said appointment. This administration has functioned for two years, and the appellants after that period have appeared in this case, too late to avail themselves of the benefits offered by section 113 of the Code of Civil Procedure, and it would seem that the only remedy left to them is to ask for the reopening of the proceedings in the lower court that assumed jurisdiction. Without further need to discuss the points raised by the appellants, the decision appealed from should be, as it is hereby, affirmed, without special pronouncement as to costs. So ordered.

Avancea, C.J., Street, Malcolm, Ostrand, Johns and Villa-Real, JJ., concur. Republic of the Philippines SUPREME COURT Manila EN BANC DECISION March 28, 1969 G.R. No. L-26808 REV. FATHER LUCIO V. GARCIA, petitioner, vs. HON. CONRADO M. VASQUEZ, respondent. Antonio Enrile Inton and Conrado B. Enriquez for petitioner. No appearance for respondent. FERNANDO, J.: Petitioner in this certiorari proceeding was averse to paying the docket fees in the amount of P940.00 for the probate of a will of the decedent, Gliceria A. del Rosario. He was of the belief that no such fee should be collected as previously another alleged will of the same deceased was filed for probate by another party with the corresponding docket fee having been paid. He would assert, as set forth in the petition, that after [such payment] by the original petitioner, Consuelo Gonzales, there is no more need for [him] to pay additional or separate docket fees for their petitions, since they all refer to the settlement of only one estate, the Estate of Gliceria A. del Rosario.[[1]] Petitioner had to pay just the same, his belief that he would be thus exempted having failed to command the assent of respondent Judge, the Honorable Conrado M. Vasquez, who issued the following order of November 6, 1965: Oppositor, Father Lucio Garcia is hereby ordered to pay the corresponding fees of the filing of his petition for allowance of will and issuance of letters of administration with the will annexed, dated September 30, 1965 within fifteen (15) days from notice hereof, failure of which the said petition will be considered dismissed.[[2]] Payment was made by him on December 2, 1965, coupled with a reservation that he would seek a definite ruling from us. Hence this petition for certiorari filed on November 9, 1966, the sole question raised being the alleged error of the respondent Judge in ordering the payment of the aforesaid docket fee considering that previously, with reference to an alleged will of the same estate of the decedent in connection with the petition for probate filed, such a fee had been collected. It is petitioners contention that the challenged order of respondent Judge amounted to a grave abuse of discretion correctible by certiorari. Respondent Judge did not even bother to answer the petition. It is understandable why. On its face, it is obviously without merit. A petition for probate of a will having been filed by petitioner, he could not escape the payment of the corresponding docket fee. The argument based on the allegation that there was such a previous payment in connection with another will of the same decedent sought to be probated does not carry the day. It is bereft of any persuasive force. Petitioner should have been aware that there is no escape from the payment of the corresponding docket fee, otherwise, the Court is not called upon to act on a complaint or petition. Nor does it suffice to vary the rule simply because there is only one decedent whose estate is thus to be disposed of by will that must first be probated. It is not farfetched or implausible that a decedent could have left various wills. Under such circumstances, there is nothing inherently objectionable in thus exacting the payment of a docket fee, every time a will is sought to be probated. Petitioner here could have sought the probate of the will presented by him in the same proceeding. He did not; he filed instead a separate action. One last point. The Rules of Court require that for all clerical services in the allowance of will, the fees payable out of the estate shall be collected in accordance with the value of the property involved .[[3]] The specific legal provision is thus clear and unmistakable. It is the clerical service in the allowance of the will that has to be paid for. The docket fees exist for that purpose and must be collected at the outset. There is no exception according to the above legal provision. It needs no interpretation. It must be applied in accordance with the specific language thus employed.[[4]] Respondent Judge acted in accordance with the clear tenor of the controlling legal norm. The alleged grievance of petitioner that there was

a grave abuse of discretion does not merit any attention. As a matter of fact, on this point, respondent Judge had no discretion to abuse. The docket fees had to be paid. There is no escape for petitioner. WHEREFORE, this petition for certiorari is denied, with costs against petitioner. Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Castro, Capistrano and Teehankee, JJ., concur. Barredo, J., reserves his vote. echo Republic of the Philippines SUPREME COURT Manila EN BANC DECISION March 17, 1930 G.R. No. L-32636 In the matter Estate of Edward Randolph Hix, deceased. A.W. FLUEMER, petitioner-appellant, vs. ANNIE COUSHING HIX, oppositor-appellee. C.A. Sobral for appellant. Harvey & O Brien and Gibbs & McDonough for appellee. , J.: EDWARD RANDOLPH HIX. A.W. FLUEMER vs. ANNIE COUSHING HIX Republic of the PhilippinesSUPREME COURTManila EN BANC G.R. No. L-32636 &nbsp &nbsp &nbsp &nbsp &nbsp &nbsp March 17, 1930 In the matter Estate of Edward Randolph Hix, deceased. A.W. FLUEMER, petitioner-appellant, vs. ANNIE COUSHING HIX, oppositor-appellee. C.A. Sobral for appellant. Harvey & O Brien and Gibbs & McDonough for appellee. MALCOLM, J.: The special administrator of the estate of Edward Randolph Hix appeals from a decision of Judge of First Instance Tuason denying the probate of the document alleged to by the last will and testament of the deceased. Appellee is not authorized to carry on this appeal. We think, however, that the appellant, who appears to have been the moving party in these proceedings, was a person interested in the allowance or disallowance of a will by a Court of First Instance, and so should be permitted to appeal to the Supreme Court from the disallowance of the will (Code of Civil Procedure, sec. 781, as amended; Villanueva vs. De Leon [1925], 42 Phil. 780). It is theory of the petitioner that the alleged will was executed in Elkins, West Virginia, on November 3, 1925, by Hix who had his residence in that jurisdiction, and that the laws of West Verginia Code, Annotated, by Hogg, Charles E., vol. 2, 1914, p. 1690, and as certified to by the Director of the National Library. But this was far from a compliance with the law. The laws of a foreign jurisdiction do not prove themselves in our courts. the courts of the Philippine Islands are not authorized to take American Union. Such laws must be proved as facts. (In re Estate of Johnson [1918], 39 Phil. 156.) Here the requirements of the law were not met. There was no was printed or published under the authority of the State of West Virginia, as provided in section 300 of the Code of Civil Procedure. Nor was the extract from the law attested by the certificate of the officer having charge of the original, under the sale of the State of West Virginia, as provided in section 301 of the Code of Civil Procedure. No evidence was introduced to show that the extract from the laws of West Virginia was in force at the time the alleged will was executed. In addition, the due execution of the will was not established. The only evidence on this point is to be found in the testimony of the petitioner. Aside from this, there was nothing to indicate that the will was acknowledged by the testator in the presence of two competent witnesses, of that these witnesses subscribed the will in the presence of the testator and of each other as the law of West Virginia seems to require. On the supposition that the witnesses to the will reside without the Philippine Islands, it would then the duty of the petitioner to prove execution by some other means (Code of Civil Procedure, sec. 633.) It was also necessary for the petitioner to prove that the testator had his domicile in West Virginia and not establish this fact consisted of the recitals in the CATHY will and the testimony of the petitioner. Also in

beginning administration proceedings orginally in the Philippine Islands, the petitioner violated his own theory by attempting to have the principal administration in the Philippine Islands. While the appeal pending submission in this court, the attorney for the appellant presented an unverified petition asking the court to accept as part of the evidence the documents attached to the petition. One of these documents discloses that a paper writing purporting to be the was presented for probate on June 8, 1929, to the clerk of Randolph Country, State of West Virginia, in vacation, and was duly proven by the oaths of Dana Wamsley and Joseph L. MAdden, the subscribing witnesses thereto , and ordered to be recorded and filed. It was shown by another document that, in vacation, on June 8, 1929, the clerk of court of Randolph Country, West Virginia, appointed Claude W. Maxwell as administrator, cum testamento annexo, of the estate of Edward Randolph Hix, deceased. In this connection, it is to be noted that the application for the probate of the will in the Philippines was filed on February 20, 1929, while the proceedings in West Virginia appear to have been initiated on June 8, 1929. These facts are strongly indicative of an intention to make the Philippines the principal administration and West Virginia the ancillary administration. However this may be, no attempt has been made to comply with Civil Procedure, for no hearing on the question of the allowance of a will said to have been proved and allowed in West Virginia has been requested. There is no showing that the deceased left any property at any place other than the Philippine Islands and no contention that he left any in West Virginia. Reference has been made by the parties to a divorce purported to have been awarded Edward Randolph Hix from Annie Cousins Hix on October 8, 1925, in the State of West specific pronouncements on the validity or validity of this alleged divorce. For all of the foregoing, the judgment appealed from will be affirmed, with the costs of this instance against the appellant. Villamor, Ostrand, Johns, Romualdez and Villa-Real, JJ., concur. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-4898 March 19, 1909 SALVADOR GUERRERO, guardian of the minors Maria Manuela and Maria del Carmen Sanchez Muoz, plaintiff-appellee, vs. LEOPOLDO TERAN, defendant-appellant. J. Rodriguez Serra for appellant. Jose Varela y Calderon for appellee. JOHNSON, J.: On the 18th day of March, 1908, the plaintiff commenced an action against the defendant to recover the sum of P4,129.56 and costs. This amount was claimed by the plaintiff from the defendant upon the theory that the defendant had been the administrator of the estate of Antonio Sanchez Muoz from the 1st day of September, 1901, until the 22d day of October, 1906. The plaintiff made a part of his complaint the following items of indebtedness: Difference, account of the property "Bonga" ........................................................ P10.55 Difference, account of the property "Basag" ......................................................... 218.75 Difference, small accounts "Bonga" and "Basag" ................................................ 8.80 Difference, account estate of A. Sanchez .............................................................. 150.00 Difference, account heirs of J. M. Ceballos ............................................................ 224.81 Difference, account hemp of "La Trinidad" ........................................................... 82.87 Difference, account workmen at "La Trinidad" ..................................................... 80.70 Difference, account lates of Ligao .......................................................................... 2.00 Small accounts of "Bonga" and "Basag" .............................................................. 3,676.84 Cost 1 lamp and 1 barometer .................................................................................... 33.50 Workmen at "La Trinidad" ....................................................................................... 5,709.90 Excess of salaries paid account general expenses at "La Trinidad"................... 670.00 Account of cockpit .................................................................................................... 34.15 Account "late Caualog" ........................................................................................... 220.10 Account Jesus Teran ................................................................................................

235.92 Account Antonio Moreda ....................................................................................... 1,029.83 Total .......................................................................................................... 12,388.72 In answer to the said complaint, the defendant admitted certain allegations and denied others. The defendant admitted that he owed the plaintiff P188.39 but claimed that the plaintiff owed him the sum of P482.14, and that the plaintiff, therefore, still owed to the defendant the difference between P188.39 and P482.14, or the sum of P239.75, for which latter amount the defendant prayed for judgment, with interest and cots against the plaintiff. After hearing the evidence adduced during the trial of the cause, the lower court found that the evidence that the defendant, as administrator of the estate of Antonio Sanchez Muoz, or that part of the said estate belonging to the plaintiff, owed the plaintiff the sum of P3,447.46, with interest at 6 per cent until the same amount should be fully paid. From this decision of the lower court the defendant appealed and made the following assignment of error: 1. The court erred in holding that the defendant, from September 17, 1901, to October 6, 1906, managed and administered the estate of Sanchez Muoz as a judicial administrator and executor. 2. The court erred in holding that the defendant was responsible to the plaintiffs for the loans made to different persons for different accounts, and for credits against the persons mentioned in the complaint. 3. The court erred in declaring in the judgment that the difference in the weight of the scales was illegal. 4. And the court erred in sentencing the defendant to pay the costs specified in the judgment. With reference to the first above assignment of error, from the record brought to this court the following facts appear: First. That the defendant Leopoldo Teran was, on the 17th day of September, 1901, appointed as administrator of said estate. The record also discloses that the defendant entered into a bond in the sum of 10,000 dollars, gold, for the faithful performance of his duties as such representative of the estate of Antonio Sanchez Muoz. Second. The record further discloses that upon the 18th day of March, 1902, the Court of First Instance of the Province of Albay appointed Maria Muoz y Gomez as guardian for the said Maria Manuela and Maria del Carmen Sanchez Muoz, and that the said Maria Muoz y Gomez gave the required bond for the faithful performance of her duties as such guardian. Third. While there are some indications in the record that the defendant continued to act as the administrator of said estate after the appointment of the said Maria Muoz y Gomez, up to and including the 6th day of October, 1906, yet the fact exists and must be accepted as true that the said Maria Muoz y Gomez was the actual representative of the said Maria Manuela and Maria del Carmen Sanchez Muoz in the administration of their interests in the estate of the said Antonio Sanchez Muoz, from and after the 18th day of March, 1902, until the 6th day of October, 1906, and therefore the said Maria Muoz y Gomez, as such guardian and administratrix of the estate of the said minors, must be held responsible for the property belonging to said minors during the period while she (Maria Muoz y Gomez) was the actual guardian of said minors. Fourth. On the 6th day of October, 1906, the Court of First Instance of the Province of Albay, for the reason that the said Maria Muoz y Gomez was not a resident of the Philippine Islands at the time for her appointment (the 18th day of March, 1902) removed her as such guardian and appointed as guardian of said minors Felix Samson, and required from said Samson, as provisional guardian, a bond in the sum of P2,000. On the 18th day of October, 1906, the said Samson duly executed the bond as required. From the order of the judge annulling the appointment of the said Maria Muoz y Gomez her lawyers appealed to the Supreme Court, which appeal was subsequently withdrawn. The order therefore revoking the appointment of the said Maria Muoz y Gomez became final. The mere fact, however, that she had been removed as said guardian did not relieve her, nor her bondsmen from liability to the minors during the time

that she was duly acting as said guardian. It must be clear, therefore, that the said Maria Muoz y Gomez is responsible to the said minors for administration of their interests in the estate of the said Antonio Sanchez Muoz from the time of her acceptance of said appointment on the 18th day of March, 1902, up to the time of her removal on the 6th day of October, 1906. If during this time she allowed other persons to handle the property of her wards and if any mismanagement or loss occurred thereby, the responsibility must fall upon her. Unquestionably, she may have an action against the persons to whom she entrusted the direct management of said estate for any loss which they may have negligently and corruptly occasioned her. Therefore, if any loss occurred to the plaintiff between the 18th day of March, 1902, and the 6th day of October, 1906, they have a right of action only against the said Maria Muoz y Gomez as their legal guardian and under the law the administratrix of the property of their estate. In the claim presented by the plaintiff against the defendant no dates are given showing the time of the particular loss and losses occasioned by the defendant. As was said above, the defendant was liable for losses only during the time that he was acting as the legal representative of the said minors in the management of their estate, from the 17th day of September, 1901, up to the time that he was superseded by the said Maria Muoz y Gomez, on the 18th day of March, 1902. There is no proof showing that any of the losses constituting the amount which the plaintiff claims occurred within this period. However, the defendant acknowledged that of the amount claimed by the plaintiff, he owes to them the sum of P188.39. There is no claim of any loss or that the estate has not been properly managed since the appointment of the said Felix Samson on the 6th day of October, 1906. From a consideration of all of the evidence brought to this court, we reach the following conclusions: First. That the defendant, Leopoldo Teran, was the duly appointed and recognized representative of the minors Maria Manuela and Maria del Carmen Sanchez Muoz in the administration of their interests in the estate of the said Antonio Sanchez Muoz from the 17th day of September, 1901, until the 18th day of March, 1902. Second. That the said Doa Maria Muoz y Gomez was the duly appointed representative of the said minors in the administration of their interests in the estate of the said Antonio Sanchez Muoz from the 18th day of March, 1902, until the 6th day of October, 1906. Third. That the Leopoldo Teran was responsible to the plaintiff (the said minors) for the fruits and profits resulting from their interests in the estate of the said Antonio Sanchez Muoz from the said 17th day of September, 1901, to the 18th day of March, 1902. Fourth. That the said Doa Maria Muoz y Gomez was responsible to the plaintiff (the said minors) for the fruits and profits resulting from the management of the estate of the said Don Antonio Sanchez Muoz from the 18th day of March, 1902, until the 6th day of October, 1906. The record not disclosing that any of the amounts claimed by the plaintiff were due as a result of the management of the said estate during the time while the said defendant was administering their interests therein, except the sum of P188.39, admitted to be due by the defendant, we are of the opinion, and so hold, that the only amount which the plaintiff is entitled to recover in this action is the said amount of P188.39. Doa Maria Muoz y Gomez was, as above indicated, removed upon the theory that her appointment was void because she did not reside in the Philippine Islands. There is nothing in the law which requires the courts to appoint residents only as administrators or guardians. However, notwithstanding the fact that there are no statutory requirements upon this question, the courts, charged with the responsibilities of protecting the estates of deceased persons, wards of the estate, etc., will find much difficulty in complying with this duty by appointing administrators and guardians who are not personally subject to their jurisdiction. Notwithstanding that there is no statutory requirement, the courts should not consent to the appointment of persons as administrators and guardians who are not personally subject to the jurisdiction of our courts here. We deem it unnecessary to discuss the other assignments of error for the reason that there is no evidence in the record indicating any liability on the part of the defendant other than his admission above indicated.

For the reason above stated, the judgment of the lower court is hereby reversed, without any special finding as to costs. Arellano, C. J., Torres and Mapa, JJ., concur. Willard, J., concurs in the result. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-20080 March 27, 1923 Intestate estate of the deceased GERONIMA UY COQUE. JUAN NAVAS L. SIOCA, petitioner-appellant, vs. JOSE GARCIA, administrator-appellee. Romualdez Bros. and Pedro C. Mendiola for appellant. Ruperto Kapunan for appellee. OSTRAND, J.: This is an appeal from an order of the Court of First Instance of Samar, dated November 11, 1922, and appointing Jose Garcia, administrator of the estate of the deceased Geronima Uy Coque. The appellant is the surviving spouse of the deceased and maintains that the court erred in not appointing him administrator instead of Jose Garcia. As the refusal to appoint the appellant appears in an order of the court below dated September 30, 1922, from which no appeal has been taken, we might well consider the question raised upon this appeal res adjudicata. For the satisfaction of counsel, we shall, however, briefly state another reason why the appeal must fail. It is well settled that a probate court cannot arbitrarily and without sufficient reason disregard the preferential rights of the surviving spouse to the administration of the estate of the deceased spouse. But, if the person enjoying such preferential rights is unsuitable, the court may appoint another person. (Paragraph 2 of sec. 642 of the Code of Civil Procedure.) The determination of a person's suitability for the office of administrator rests, to a great extent, in the sound judgment of the court exercising the power of appointment and such judgment will not be interfered with on appeal unless it appears affirmatively that the court below was in error. In the present case the court based its ruling on the fact that it appeared from the record in Civil Case No. 1041 of the same court, that the appellant had adverse interest in the estate of such a character as to render him unsuitable as administrator. Unsuitableness may consist in adverse interest of some kind or hostility to those immediately interested in the estate. (18 Cyc., 93, 94.) The court below therefore stated facts which may constitute sufficient grounds for setting aside the appellant's preferential rights and which, in the absence of proof to the contrary, must be presumed sufficient. Whether they are in fact sufficient, we are not in position to determine as we have not before us the record in the aforesaid case No. 1041; it being a record of the court below, that court could properly take judicial notice thereof, but we cannot. The order appealed from is affirmed, with the costs against the appellant. So ordered. Araullo, C.J., Street, Malcolm, Avancea, Villamor, and Johns, JJ., concur. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-17633 October 19, 1966

CIRILO LIM, petitioner-appellant, vs. BASILISA DIAZ-MILLAREZ, oppositor-appellee. Januario L. Jison, Sr. for petitioner-appellant. Amado B. Parreo, Sr. for oppositor-appellee. REGALA, J.: On February 26, 1954, Cirilo Lim, claiming to be a nephew of the late Jose Millarez who died intestate on October 22, 1953, filed with the Court of First Instance of Negros Occidental a petition for his appointment as judicial administrator of the estate of the deceased. The petition alleged

that the deceased left no relatives such as descendants, ascendants or surviving spouse, except collaterals. To the said petition, Basilisa Diaz-Millarez, claiming to be a widow of the late Jose Millarez, filed an opposition on two grounds: that the petitioner has an adverse interest in the estate; and that the properties of the estate are the subject matter of a litigation between her as plaintiff and Cirilo Lim as defendant in Civil Case No. 2986. Trial of the case was postponed several times. When the case was called for hearing on March 17, 1959, both parties manifested the existence of a litigation between them over the properties of the estate. Hence, the trial court issued the following order:

derived from such investment; (2) to admit such other evidence as the court may consider material and relevant; and (3) to render judgment anew on the basis of the examination to be conducted by the qualified certified public accountant and such further evidence, if any, as shall be presented, adjudicating in favor of the plaintiff Basilisa Diaz-Millarez of the capital and of the profits and gains derived therefrom that properly pertain to the late Jose Millarez after the accounting shall have been accomplished. No pronouncement as to costs. From what appears above, the claim which Basilisa has against Cirilo in the civil case supposed to be now again pending in the trial court, is based on her declared right to one-half of the estate of the deceased. It cannot, therefore, be denied that Cirilo Lim, as a relative of the deceased, has some interest adverse to that of Basilisa. Shown to have some liabilities to Basilisa and to the estate as a whole, Cirilo can not compatibly perform the duties of an administrator. In this jurisdiction, one is considered to be unsuitable for appointment as administrator when he has adverse interest of some kind or hostility to those immediately interested in the estate. (Sioca v. Garcia, 44 Phil. 711; Arevalo v. Bustamante, 69 Phil. 656). The determination of a person's suitability for the office of judicial administrator rests, to a great extent, in the sound judgment of the court exercising the power of appointment and said judgment is not to be interfered with on appeal unless the said court is clearly in error. (Sioca v. Garcia, supra). IN VIEW HEREOF, the order appealed from is hereby affirmed, with costs against the petitioner-appellant. Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar, Sanchez and Castro, JJ., concur. Republic of the Philippines SUPREME COURT Manila EN BANC DECISION June 30, 1953 G.R. No. L-5436 ROMAN OZAETA, ROSA GONZALES VDA. DE PALANCA, JUSTO G. PALANCA, LEONARDA PALANCA DE ARANAS, SEVERINA G. PALANCA, CARLOS PALANCA, JR., ANTONIO G. PALANCA, MACARIO G. PALANCA, MILAGROS PALANCA DE FURER, and RAMON G. PALANCA, petitioners, vs. HONORABLE POTENCIANO PECSON, Judge of First Instance of Manila, and BANK OF THE PHILIPPINE ISLANDS, respondents. Roxas, Lichauco, Picazo and Manuel S. San Jose for petitioners. Sebastian C. Palanca in his own behalf. Labrador, J.: The question posed by the petition filed in this case is: Does a probate court commit an abuse of discretion if, pending an appeal against its order or judgment admitting a will to probate and appointing as judicial administrator the person named therein as executor, it appoints as special administrator any person other than the executor named in the will? The facts giving rise to the question may be briefly summarized as follows: Carlos Palanca died on September 2, 1950; leaving a will executed by him on May 19, 1945. In the will petitioner Roman Ozaeta, former associate justice of this Court, was named executor if General Manuel A. Roxas fails to qualify. Upon Palancas death, and General Roxas having died previously, petitioner presented a petition for the probate of the will, at the same time praying that he be appointed special administrator. Some of the heirs of the decedent opposed this petition, and the court on October 6, 1950, appointed the Philippine Trust Company, a non-applicant and a stranger to the proceedings, special administrator. On April 20, 1951, the Philippine Trust Company presented a petition to resign as special administrator on the ground of incompatibility of interest, as it had granted a loan to heir Angel Palanca,

When this expediente was called for hearing today, Atty. Enrique Mario for the petitioner and Atty. Amado B. Parreo, Sr. for the oppositor appeared. Both manifested that there is an ordinary civil case between the parties herein, that is Basilisa Diaz-Millarez, as plaintiff and Cirilo Lim, as defendant, litigating between them on the ownership of the properties belonging to the deceased Jose Millarez, in the sense that while plaintiff Basilisa Diaz-Millarez in said civil case, now oppositor in the special proceeding alleged that she is the legitimate widow of the deceased Jose Millarez, yet defendant Cirilo Lim in said civil case, now petitioner herein, alleged that he is contesting said allegation because she is not the legitimate spouse of the deceased; that the said civil case was already decided in favor of the defendant therein and against the plaintiff by the Second Sala of this Court and now pending appeal in the Court of Appeals. Under the above considerations, the present expediente is of no consequence. However, upon the final termination of said civil case, the parties concerned without prejudice can file another application for the judicial administration of the property involved in this administration. It is to be noted that this expediente was filed way back on February 26, 1954 that is more than 5 years and neither a special nor a regular administrator has been appointed so that the dismissal of the expediente would not be prejudicial to any of the parties interested in the same. PREMISES CONSIDERED, this expediente is ordered dismissed. Failing in his motion for the reconsideration of this order, the petitioner, Cirilo Lim, brought the case to the Court of Appeals but that court has certified the appeal to Us for the reason that there is no question of fact involved. Meanwhile, the civil case between the parties which was also elevated to the Court of Appeals (CA-G.R. 24561-R) was decided on February 18, 1965. From the body of the decision, it appears that Basilisa DiazMillarez sought to recover from Cirilo Lim one-half of the total amount of P22,000 allegedly delivered to him by her and the deceased Jose Millarez on various occasions and to declare her as the owner of of the profits and gains derived therefrom, on the ground that Jose Millarez and she used to live as husband and wife for about 23 years and as such she is entitled to of the property held in common by them. She asserted further that since she contributed capital and labor to the tobacco business in which she and the deceased were engaged and from which they gave P22,000 in cash to Cirilo Lim, she would be entitled to of the capital and of the proceeds and profits derived from such capital. In answer, Cirilo Lim alleged that the money he received from Jose Millarez on various occasions was handed to one Tan Suaco for investment in the tobacco business. While the trial court, after hearing, ordered Lim to make an accounting of the P22,000 invested in the tobacco business to be submitted to court, the Court of Appeals, on the other hand, made the following conclusion: We agree with the court a quo, that the plaintiff Basilisa is entitled to of the estate of the late Jose because she contributed labor and capital in the form of cash to a common fund with Jose during the period from 1930 up to the date of the death of Jose in 1953. Accordingly, the judgment a quo is set aside and the records of this case are hereby remanded to the court a quo with instructions (1) that it appoints a qualified certified public accountant to examine with painstaking care the documentary evidence presented and to determine how much over and above the amount of P12,500 was invested by the late Jose Millarez and the plaintiff in the tobacco business together with the defendant Lim, and to assess the extent of the profits and gains

who had pledged to it shares of the Far Eastern University allegedly belonging to the estate of the deceased. Thereupon petitioner reiterated his previous petition, but the court appointed Sebastian Palanca, one of the heirs, to take the place of the Philippine Trust Company. The order is dated June 30, 1951. But on October 23rd, the court rendered an order admitting the will to probate and appointing petitioner as administrator. The order reads thus: In view of all the foregoing, the court declares that the document which was executed by the testator on May 19, 1945 (Exhibit D), is the last will of Carlos Palanca Tanguinlay, and its probate is hereby allowed. The court appoints the petitioner, Roman Ozaeta, as executor, with a bond of P50,000 with sufficient sureties and subject to the approval by this court. Once this decision has become final and upon the approval of the said bond and the taking of the oath of office, let letters testamentary issue accordingly. With costs against the oppositors. And on October 25, 1951, the court allowed the Philippine Trust Company to resign, reconsidered its order appointing Sebastian Palanca special administrator, and appointed instead the Bank of the Philippine Islands. Petitioner moved to reconsider the order, but his motion was denied, and thereupon the present petition was filed. In its order the court held that it has discretion to choose the special administrator and is not bound to appoint the person named therein as executor, because the order had been appealed. Petitioner claims that the reason why the respondent judge does not appoint him special administrator is his personal dislike for him, and that the reasons given by the judge in not appointing him, namely, alleged partiality to one group of heirs, less ability and experience in handling estates as the appointees the previous and the subsequent one are not actually the reasons that impelled him to deny petitioners appointment. On the other hand, intervenors Maria Cuartero, et al., (a group of heirs), claim that petitioner had close personal relations with Rosa Gonzales (second wife of deceased) and her children, acting as sponsor in her marriage with the deceased, obtaining a loan from her family, etc. We have overlooked all the personal grounds or reasons given by the parties, and have chosen to decide the issue from a purely legal point of view. It should be noted at the outset that Rule 81 of the Rules of Court, under the provisions of which the order appealed from was made, grants discretion to the probate court to appoint or not to appoint a special administrator. It is silent as to the person that may be appointed as special administrator, unlike section 6 of Rule 79, which expressly gives the order of preference of the persons that may be appointed regular administrator. We have held in the case of Roxas vs. Pecson, however, that the appointment of special administrators is not governed by the rules regarding the appointment of regular administrators. (Roxas vs. Pecson, 82 Phil. 407, 46 O.G. [5] 2058.) But we further held, however, that while the choice of the person lies within the courts discretion, such discretion should not be a whimsical one, but one that is reasonable and logical and in accord with fundamental legal principles and justice. The fact that a judge is granted discretion does not authorize him to become partial, or to make his personal likes and dislikes prevail over, or his passions to rule, his judgment. Such discretion must be based on reason and legal principle, and it must be exercised within the limits thereof. And there is no reason why the same fundamental and legal principles governing the choice of a regular administrator should not be taken into account in the appointment of the special administrator. 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 the estate. The curtailment of this right may be considered as a curtailment of the right to dispose. And as the rights granted by will take effect from the time of death (Article 777, Civil Code of the Philippines), the management of his estate by the administrator of his choice should be made as soon as practicable, when no reasonable objection to his assumption of the trust can be interposed any longer. It has been held that when a will has been admitted to probate, it is the duty of the court to issue letters testamentary to the person named as executor upon his application (23 C.J. 1023). It is the testator that appoints his executor, as the question as to his peculiar fitness for such a position or his want of ability to manage the estate can not be addressed to the discretion of the county judge. (Holbrook vs. Head, 6 S.W. 592, 593, 9 Ky. 755.).

In the case at bar, the will has already been admitted to probate, and respondent judge himself has expressly appointed petitioner as administrator. The only reason or ground, therefore, for suspending his appointment, and for the appointment of a special administrator, who is not the petitioner himself, is a very technical one. It also appears that the Philippine Trust Company, which had acted as special administrator for a period of only a few months, has submitted a bill for P90,000. This would cut deep into the income of the estate, and if the new special administrator appointed by the respondent judge takes office, it is not improbable that the estate may again be subjected to the same expensive cost of administration. Under these circumstances, it would seem unreasonable to refuse to appoint the petitioner as special administrator. To do so would be delaying the fulfillment of the wishes of the testator and subjecting the estate to unnecessary expense. Petitioner has cited precedents in the surrogate courts of the State of New York to support his claim that as the will appointing him regular administrator has been admitted to probate by the trial judge, he should now be appointed special administrator during the pendency of the appeal against the order admitting the will to probate. In the case of In re Shonts Estate, 178 N.Y.S. 762, 767-768, the judge makes the following very pertinent remarks: . . . . It is my firm belief that the appointment of the executors named in a will as temporary administrators during contested probates is not only more economical for suitors and estates in ninety-nine cases of a hundred, but more consonant with the dignity of a court of this character. The intrusion of nominees of the court, strangers to the dead, very distasteful to the inhabitants of this state, should be as rare as possible in this court if people of property are to continue to feel as ease and in security in this state. The case of In re Erlangers Estate, 242 N.Y.S. 249, also reiterates the same principle. The courts have always respected the right to which a testator enjoys to determine who is most suitable to settle his testamentary affairs, and his solemn selection should not lightly be disregarded. After the admission of a will to probate, the courts will not name a better executor for the testator nor disqualify, by a judicial veto, the widow or friend or other person selected in the will, except upon strict proof of the statutory grounds of incompetency. Matter of Lelands Will, 219 N.Y. 387, 393, 114 N.E. 854. For the foregoing reasons the person selected by the testator in three successive wills will be appointed. (Pages 254-255). The claimants principal objection to the selection of Mr. Baron as temporary administrator is founded upon her charge that he exercised undue influence upon the testator in the drafting of the will offered for probate here. She also stresses his personal hostility to her. In my opinion, and in view of the special circumstances of this case, these considerations do not constitute a disqualification. Matter of Hiltons Will, 29 Misc. Rep. 532, 61 N.Y.S. 1073; Jessup-Redfield Surrogates Courts, 6th Edit., page 743; Matter of Robert, N.Y. Law Journal, January 9th, 1912; Matter of Ashmores Estate, 48 Misc. Rep. 312, 96 N.Y.S. 772. He receives no legacy under the will. He is an attorney of long experience and his professional standing is attested by several affiants. In addition to the fact that he was selected by Mr. Erlanger as executor in three wills, it appears from several affidavits that he was for a long period of time intimately associated with Mr. Erlanger. This association not only involved a personal friendship, but also the relationship of Mr. Baron as lawyer and Mr. Erlanger as client. It involved also knowledge of Mr. Erlangers financial transactions, and, in addition, a close business contact with Mr. Erlangers various enterprises. Mr. Baron was an officer or director of over thirty corporations through which Mr. Erlangers various activities were conducted. He held powers of attorney from him in the last years of Mr. Erlangers life. He is qualified, therefore, by this experience to safeguard the estate as temporary administrator. (Pages 252- 253). The writ prayed for is, therefore, granted, the appealed order reversed, and the temporary injunction issued by the court made absolute. Let temporary letters of administration be issued in favor of petitioner during the pendency of the appeal from the order admitting the will to probate. Paras, C.J., Pablo, Bengzon, Tuason, Montemayor, Reyes, Jugo and Bautista Angelo, JJ., concur. 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. Scmis 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. 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[1] 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[2] was annexed to the petition for probate. On February 16, 1996, Judge Fernando V. Gorospe, Jr. of RTC-Makati, Branch 61 issued an order granting the petition and allowing the will. The order reads: On 03 August 1995, the Court issued an Order setting the hearing of the petition on 12 September 1995, at 8:30 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. Mis sc 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", & "A18"), 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. Mis spped On the other hand, private respondent Pacita de los Reyes Phillips, the designated executrix of the will, filed a motion for the issuance of letters testamentary with Branch 61. Later, however, private respondent moved to withdraw her motion. This was granted, while petitioner was required to file a memorandum of authorities in support of his claim that said court (Branch 61) still had jurisdiction to allow his intervention.[3] Petitioner filed his memorandum of authorities on May 13, 1996. On the other hand, private respondent, who earlier withdrew her motion for the issuance of letters testamentary in Branch 61, refiled a petition for the same purpose with the Regional Trial Court, Makati, which was docketed as Sp. Proc. No. M-4343 and assigned to Branch 65. Upon private respondents motion, Judge Salvador Abad Santos of Branch 65 issued an order, dated June 28, 1996, 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[4] promulgated on February 13, 1998, upheld the denial of petitioners motion for intervention. Meanwhile, Judge Gorospe issued an order, dated September 4, 1996, returning the records of Sp. Proc. No. M-4343 to Branch 65 on the ground that there was a pending case involving the Estate of Decedent Arturo de Santos pending before said court. The order reads: Spped Acting on the ORDER dated 28 August 1996 of Branch 65, this Court, transferring this case to this Branch 61 on the ground that this case is related with a case before this Court, let this case be returned to Branch

65 with the information that there is no related case involving the ESTATE OF DECEDENT ARTURO DE SANTOS pending before this Branch. There is, however, a case filed by ARTURO DE SANTOS, as petitioner under Rule 76 of the Rules of Court for the Allowance of his will during his lifetime docketed as SP. PROC. NO. M-4223 which was already decided on 16 February 1996 and has become final. It is noted on records of Case No. M-4223 that after it became final, herein Petitioner Pacita de los Reyes Phillips filed a MOTION FOR THE ISSUANCE OF LETTERS TESTAMENTARY, which was subsequently withdrawn after this Court, during the hearing, already ruled that the motion could not be admitted as the subject matter involves a separate case under Rule 78 of the Rules of Court, and movant withdrew her motion and filed this case (No. 4343). Octavio de Santos Maloles [II] filed a MOTION FOR INTERVENTION before Case No. M-4223 and this motion was already DENIED in the order (Branch 61) of 26 August 1996 likewise for the same grounds that the matter is for a separate case to be filed under Rule 78 of the Rules of Court and cannot be included in this case filed under Rule 76 of the Rules of Court. It is further noted that it is a matter of policy that consolidation of cases must be approved by the Presiding Judges of the affected Branches. Initially, in his decision dated September 23, 1996,[5] Judge Abad Santos appeared firm in his position that " . . . it would be improper for (Branch 65) to hear and resolve the petition (Sp. Proc. No. M-4343)," considering that the probate proceedings were commenced with Branch 61. He thus ordered the transfer of the records back to the latter branch. However, he later recalled his decision and took cognizance of the case "to expedite the proceedings." Thus, in his Order, dated October 21, 1996, he stated: Considering the refusal of the Hon. Fernando V. Gorospe, Jr. of Branch 61 to continue hearing this case notwithstanding the fact that said branch began the probate proceedings of the estate of the deceased and must therefore continue to exercise its jurisdiction to the exclusion of all others, until the entire estate of the testator had been partitioned and distributed as per Order dated 23 September 1996, this branch (Regional Trial Court Branch 65) shall take cognizance of the petition if only to expedite the proceedings, and under the concept that the Regional Trial Court of Makati City is but one court. Jo spped 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[6] setting aside the trial courts order on the ground that petitioner had not shown any right or interest to intervene in Sp. Proc. No. M-4343. Hence, these petitions which raise the following issues: 1. Whether or not the Honorable Regional Trial Court - Makati, Branch 61 has lost jurisdiction to proceed with the probate proceedings upon its issuance of an order allowing the will of Dr. Arturo de Santos 2. Whether or not the Honorable (Regional Trial Court - Makati, Branch 65) acquired jurisdiction over the petition for issuance of letters testamentary filed by (private) respondent. 3. Whether or not the petitioner, being a creditor of the late Dr. Arturo de Santos, has a right to intervene and oppose the petition for issuance of letters testamentary filed by the respondent. 4. Whether or not (private) respondent is guilty of forum shopping in filing her petition for issuance of letters testamentary with the Regional Trial Court - Makati, Branch 65 knowing fully well that the probate proceedings involving the same testate estate of the decedent is still pending with the Regional Trial Court - Makati, Branch 61. Spped jo

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[7] and Tagle v. Manalo,[8] he argues that the proceedings must continue until the estate is fully distributed to the lawful heirs, devisees, and legatees of the testator, pursuant to Rule 73, 1 of the Rules of Court. Consequently, petitioner contends that Branch 65 could not lawfully act upon private respondents petition for issuance of letters testamentary. The contention has no merit. In cases for the probate of wills, it is well-settled that the authority of the court is limited to ascertaining the extrinsic validity of the will, i.e., whether the testator, being of sound mind, freely executed the will in accordance with the formalities prescribed by law.[9] Ordinarily, probate proceedings are instituted only after the death of the testator, so much so that, after approving and allowing the will, the court proceeds to issue letters testamentary and settle the estate of the testator. The cases cited by petitioner are of such nature. In fact, in most jurisdictions, courts cannot entertain a petition for probate of the will of a living testator under the principle of ambulatory nature of wills.[10] However, Art. 838 of the Civil Code authorizes the filing of a petition for probate of the will filed by the testator himself. It provides: Civil Code, Art. 838. No will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court. The testator himself may, during his lifetime, petition the court having jurisdiction for the allowance of his will. In such case, the pertinent provisions of the Rules of Court for the allowance of wills after the testators death shall govern. Miso The Supreme Court shall formulate such additional Rules of Court as may be necessary for the allowance of wills on petition of the testator. Subject to the right of appeal, the allowance of the will, either during the lifetime of the testator or after his death, shall be conclusive as to its due execution. Rule 76, 1 likewise provides: Sec. 1 Who may petition for the allowance of will. - Any executor, devisee, or legatee named in a will, or any other person interested in the estate, may, at any time after the death of the testator, petition the court having jurisdiction to have the will allowed, whether the same be in his possession or not, or is lost or destroyed. The testator himself may, during his lifetime, petition in the court for the allowance of his will. The rationale for allowing the probate of wills during the lifetime of testator has been explained by the Code Commission thus: Most of the cases that reach the courts involve either the testamentary capacity of the testator or the formalities adopted in the execution of wills. There are relatively few cases concerning the intrinsic validity of testamentary dispositions. It is far easier for the courts to determine the mental condition of a testator during his lifetime than after his death. Fraud, intimidation and undue influence are minimized. Furthermore, if a will does not comply with the requirements prescribed by law, the same may be corrected at once. The probate during the testators life, therefore, will lessen the number of contest upon wills. Once a will is probated during the lifetime of the testator, the only questions that may remain for the courts to decide after the 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.[11]

Thus, after the allowance of the will of Dr. De Santos on February 16, 1996, there was nothing else for Branch 61 to do except to issue a certificate of allowance of the will pursuant to Rule 73, 12 of the Rules of Court. There is, therefore, no basis for the ruling of Judge Abad Santos of Branch 65 of RTC-Makati that -Nex old Branch 61 of the Regional Trial Court of Makati having begun the probate proceedings of the estate of the deceased, it continues and shall continue to exercise said jurisdiction to the exclusion of all others. It should be noted that probate proceedings do not cease upon the allowance or disallowance of a will but continues up to such time that the entire estate of the testator had been partitioned and distributed. The fact that the will was allowed during the lifetime of the testator meant merely that the partition and distribution of the estate was to be suspended until the 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.[12] Petitioner, who defends the order of Branch 65 allowing him to intervene, cites Rule 73, 1 which states: Where estate of deceased persons settled. - If the decedent is an inhabitant of the Philippines at the time of his death, whether a citizen or an alien, his will shall be proved, or letters of administration granted, and his estate settled, in the Court of First Instance in the province in which he resides at the time of his death, and if he is an inhabitant of a foreign country, the Court of First Instance of any province in which he had estate. The court first taking cognizance of the settlement of the estate of a decedent, shall exercise jurisdiction to the exclusion of all other courts. The jurisdiction assumed by a court, so far as it depends on the place of residence of the decedent, or of the location of his estate, shall not be contested in a suit or proceeding, except in an appeal from that court, in the original case, or when the want of jurisdiction appears on the record. The above rule, however, actually provides for the venue of actions for the settlement of the estate of deceased persons. In Garcia Fule v. Court of Appeals, it was held:[13] The aforequoted Section 1, Rule 73 (formerly Rule 75, Section 1), specifically the clause "so far as it depends on the place of residence of the decedent, or of the location of the state," is in reality a matter of venue, as the caption of the Rule indicates: "Settlement of Estate of Deceased Persons. Venue and Processes." It could not have been intended to define the jurisdiction over the subject matter, because such legal provision is contained in a law of procedure dealing merely with procedural matters. Procedure is one thing, jurisdiction over the subject matter is another. The power or authority of the court over the subject matter "existed was fixed before procedure in a given cause began." That power or authority is not altered or changed by procedure, which simply directs the manner in which the power or authority shall be fully and justly exercised. There are cases though that if the power is not exercised conformably with the provisions of the procedural law, purely, the court attempting to exercise it loses the power to exercise it legally. However, this does not amount to a loss of jurisdiction over the subject matter. Rather, it means that the court may thereby lose jurisdiction over the person or that the judgment may thereby be rendered defective for lack of something essential to sustain it. The appearance of this provision in the procedural law at once raises a strong presumption that it has nothing to do with the jurisdiction of the court over the subject matter. In plain words, it is just a matter of method, of convenience to the parties. Mani kx Indeed, the jurisdiction over probate proceedings and settlement of estates with approximate value of over P100,000.00 (outside Metro Manila) or P200,000.00 (in Metro Manila) belongs to the regional trial courts under B.P. Blg. 129, as amended. The different branches comprising each court in one judicial region do not possess jurisdictions independent of and incompatible with each other.[14] It is noteworthy that, although Rule 73, 1 applies insofar as the venue of the petition for probate of the will of Dr. De Santos is concerned, it does not bar other branches of the same court from taking cognizance of the settlement of the estate of the testator after his death. As held in the leading case of Bacalso v. Ramolote:[15] The various branches of the Court of First Instance of Cebu under the Fourteenth Judicial District, are a coordinate and co-equal courts, and the

totality of which is only one Court of First Instance. The jurisdiction is vested in the court, not in the judges. And when a case is filed in one branch, jurisdiction over the case does not attach to the branch or judge alone, to the exclusion of the other branches. Trial may be held or proceedings continue by and before another branch or judge. It is for this reason that Section 57 of the Judiciary Act expressly grants to the Secretary of Justice, the administrative right or power to apportion the cases among the different branches, both for the convenience of the parties and for the coordination of the work by the different branches of the same court. The apportionment and distribution of cases does not involve a grant or limitation of jurisdiction, the jurisdiction attaches and continues to be vested in the Court of First Instance of the province, and the trials may be held by any branch or judge of the court. Necessarily, therefore, Branch 65 of the RTC of Makati City has jurisdiction over Sp. Proc. No. M-4343. Second. Petitioner claims the right to intervene in and oppose the petition for issuance of letters testamentary filed by private respondent. He argues that, as the nearest next of kin and creditor of the testator, his interest in the matter is material and direct. In ruling that petitioner has no right to intervene in the proceedings before Branch 65 of RTC-Makati City, the Court of Appeals held: The private respondent herein is not an heir or legatee under the will of the decedent Arturo de Santos. Neither is he a compulsory heir of the latter. As the only and nearest collateral relative of the decedent, he can inherit from the latter only in case of intestacy. Since the decedent has left a will which has already been probated and disposes of all his properties the private respondent can inherit only if the said will is annulled. His interest in the decedents estate is, therefore, not direct or immediate. Maniks 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] 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. Manikan 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;

(2) In default of the foregoing, legitimate parents and ascendants, with respect to their legitimate children and descendants; (3) (4) fiction; The widow or widower; Acknowledged natural children, and natural children by legal

This is a petition for prohibition with a prayer for preliminary injunction to restrain the respondent Judge from proceeding with the trial of Civil Case No. 7278 of the Court of First Instance of Cebu, entitled Celestino Bacalso versus the Secretary of Agriculture & Natural Resources, Mateo C. Bacalso and Cesar Gonzalez. Culled from the pleadings and annexes thereto before Us, the following are the facts pertinent to the issue involved in the present petition: Dissatisfied with the decision of the Director of Mines, which was affirmed by the Secretary of Agriculture & Natural Resources, declaring that Mateo C. Bacalso and Cesar Gonzalez, petitioners herein, have established superior location rights on certain mining claims situated in the City of Toledo, Cebu, which were in dispute between Celestino Bacalso, on one hand, and Mateo C. Bacalso and Cesar Gonzalez, on the other hand, and pursuant to which decision, the claims of the latter were given due course, on November 10, 1961 Celestino Bacalso filed a complaint in the Court of First Instance of Cebu, against the Secretary of Agriculture & Natural Resources, Mateo C. Bacalso and Cesar Gonzalez, docketed as Civil Case No. 7278. The respondents filed separate motions to dismiss the case, based on a common ground, that the decision of the administrative body had become final and executory. The motions were denied. The private respondents moved to reconsider the order which was also denied. Before the trial on the merits, the private respondents filed an "Ex-parte motion to order the clerk of court, Atty. Vicente Miranda, to transfer civil case No. 7278, . . . from branch V to Branch VII, Barili, Cebu", alleging that ". . . in virtue of the Administrative Order No. 302 of the Department of Justice, Series of 1962, as amended by Administrative Order No. 337, in the sense that the City of Toledo be included under the Seventh Branch in Barili, Cebu and considering that the properties involved in the litigation are located in Toledo City as above-stated compliance to the said Administrative Orders of the Department of justice by the clerk of court is necessary." Resolving the motion, the court denied the same in an order which reads as follows: Defendants Mateo Bacalso and Cesar Gonzales, in their motion ex parte dated May 15, 1963, ask this court to order the clerk of court to transfer this case to Branch VII of this court at Barili, Cebu, alleging as grounds that after the said additional branch was created, the Department of Justice ordered that all cases originating from Toledo and other southern towns of this province should be heard by the said branch; that this case involves mining claims which are situated in Toledo City, within the jurisdiction of the said branch at Barili, Cebu; and that the trial of this case has not been started yet. The movants attached to their motion certified copies of their mining claims showing that the said claims are situated in the City of Toledo. The same motion was submitted for resolution to the Honorable Judge Amador E. Gomez, presiding as vacation judge. The record shows that this case was filed on November 22, 1961, long before the said Branch VII at Barili, Cebu was created by law, and since then several important incidents have taken place, one of which was a motion to dismiss the Complaint for lack of jurisdiction, which motion was resolved by this court denying the same. Several motions for reconsiderations had been submitted to, and considered and resolved by this court. Although it is true that the mining claims in this case are situated in Toledo City, within the jurisdiction of this court at Barili, Cebu, the said motion to transfer the case to that branch is not considered well taken by this court by reason of the following grounds: 1. This case had already been assigned to the Fifth Branch of this court long before the Seventh Branch was created and before Administrative Order No. 337 of the Department of Justice was issued; 2. Several important incidents had taken place and resolved by this court, and it is necessary in order to avoid variance and conflict in the rulings on the previous incidents resolved by this court, that this case should remain to be tried by this Branch; 3. The agreement of the judges of this court concerning cases pertaining to the different branches of this court does not cover the present case where several incidents have already been acted upon by this Branch.

(5) Other illegitimate children referred to in Article 287 of the Civil Code.[18] Petitioner, as nephew of the testator, is not a compulsory heir who may have been preterited in the 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.[20] None of these circumstances is present in this case. Third. Petitioner contends that private respondent is guilty of forum shopping when she filed the petition for issuance of letters testamentary (Sp. Proc. No. M-4343) while the probate proceedings (Sp. Proc. No. M4223) 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. Oldmis o 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. Bellosillo, (Chairman), Quisumbing, Buena, and De Leon, Jr., JJ., concur. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-22488 October 26, 1967

MATEO C. BACALSO and CESAR GONZALEZ, petitioners, vs. MODESTO R. RAMOLETE, Judge of the Court of First Instance of Cebu and CELESTINO BACALSO, respondents. Bacalso and Gonzales for petitioners. Hilario C. Davide, Jr. for respondents. ANGELES, J.:

WHEREFORE, based on the foregoing considerations, the ex-parte motion to order the clerk of court to transfer this case to Branch VII of this court is hereby denied for lack of merit. A motion for reconsideration of the order having been denied, the present petition for certiorari with preliminary injunction was filed before this Court on February 28, 1964. The question presented for review expressed in the terms and circumstances of the case is, whether or not the respondent Judge presiding over branch V of the Court of First Instance of Cebu, to which the case No. 7278 has been assigned by agreement of the Judges presiding over the other branches of the same court, and before whom the case had been partially heard on matters other than the merits, has lost jurisdiction to try and decide the said case by virtue of the Administrative Orders Nos. 302 and 337 of the Secretary of Justice, transferring the cases assigned in branch V, one of which is the case No. 7278, to branch VII of the same court which is stationed at Barili, Cebu. Administrative Order No. 302, dated August 20, 1962, states that, in view of the addition of two branches of the Court of First Instance of Cebu from six to eight branches by virtue of Republic Act No. 2613, approved in August 1, 1959, and pursuant to the provisions of Section 57 of the Judiciary Act, as amended, that the cases coming from the different municipalities of the Province of Cebu are hereby distributed between the eight branches of the court as follows: ("Here follows the list of cities and municipalities, included among them the City of Toledo, as corresponding to the six branches of the court; the municipality of Barili, among other municipalities, corresponding to Branch VII.") As already stated, the case No. 7278, by agreement of the judges presiding over the six branches of the court, was assigned to Branch V, presided over by the respondent Judge. On September 10, 1962, Administrative Order No. 337 was issued by the Secretary of Justice, amending Administrative Order No. 302, providing that "the City of Toledo be included under the Seventh Branch in Barili, Cebu." We start with the statement that it is a settled rule that jurisdiction is conferred only by the Constitution or the law. It cannot be fixed by the will of the parties; it cannot be acquired through, enlarged or diminished by any act of omission of the parties. Constitutionally viewed, apportionment of jurisdiction is vested in Congress. As this Court has said, thru Justice Concepcion (now Chief Justice) in Gumpal v. CFI of Isabela, et al., L16409 and L-16416, November 29, 1960: It is trite to say, however, that the validity of a given judicial action is dependent upon the jurisdiction of the court taking it, and that, by specific constitutional mandate, the power to define, prescribe and apportion the jurisdiction of the various courts, is subject to the limitations set forth in the fundamental law, within the exclusive province of Congress. Since, being legislative, said power cannot be delegated to the Secretary of Justice. . . . The foregoing statement of the law on the fountain source and extent of the jurisdiction of the Court is beyond debate. It is incorrect to assume, as the respondent Judge did assert in his order complained of, that because the case No. 7278 has been assigned to Branch V, by agreement of the Judges presiding over the six branches, of the Court of First Instance of Cebu, that he has acquired exclusive jurisdiction to try and decide the case to the exclusion of the other Judges presiding over the other branches of the same court. 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.

In the case at bar, the respondent Judge grievously erred in not complying with the directive of the secretary of Justice in Administrative Order No. 337, on, a flimsy, nay, self-conceited reason that because 2. Several important incidents, had taken place and resolved by this Court, and it is necessary, in order to avoid various and conflicting rulings on the previous incidents resolved by this Court, that this case should remain to be tried by this Branch. The apportionment of cases among the different branches of the same court, as ordained by the Secretary of Justice, must be respected by the Judges in the interests of order and coordination in the dispatch of cases. Be all that as it may, however, the legal question under consideration has become moot and academic, because on June 22, 1963, or more than a, year before the present petition was filed, Republic Act No. 3729 amending Republic Act No. 296, otherwise known as the Judiciary Act of 1948, went into effect, increasing the number of branches of the Court of First Instance in the 14th Judicial District, comprising Cebu, Toledo and Bohol from 11 to 14 branches, and as ordained in Section 6 of the law Wherever an additional branch or branches of the Court of First Instance is or are established in this Act in the same place where there is an existing court or courts of first instance, all cases already filed in the latter court or courts shall be heard, tried and decided by such latter court or courts. (Emphasis ours.) which means that branch V of the Court of First Instance of Cebu shall retain jurisdiction to try and decide the case No. 7278. WHEREFORE, the petition is dismissed, and the writ of preliminary injunction heretofore issued is hereby dissolved. On equitable considerations, no costs. Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar, Sanchez, Castro and Fernando, JJ., concur. Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 160530 November 20, 2007

CYNTHIA V. NITTSCHER, petitioner, vs. DR. WERNER KARL JOHANN NITTSCHER (Deceased), ATTY. ROGELIO P. NOGALES and THE REGIONAL TRIAL COURT OF MAKATI (Branch 59), respondents. DECISION QUISUMBING, J.: For review on certiorari are the Decision1 dated July 31, 2003 and Resolution2 dated October 21, 2003 of the Court of Appeals in CA-G.R. CV No. 55330, which affirmed the Order3 dated September 29, 1995 of the Regional Trial Court (RTC), Branch 59, Makati City, in SP Proc. No. M-2330 for the probate of a will. The facts are as follows. On January 31, 1990, Dr. Werner Karl Johann Nittscher filed with the RTC of Makati City a petition for the probate of his holographic will and for the issuance of letters testamentary to herein respondent Atty. Rogelio P. Nogales. On September 19, 1991, after hearing and with due notice to the compulsory heirs, the probate court issued an order allowing the said holographic will, thus: WHEREFORE, premises considered, the Holographic Will of the petitioner-testator Dr. Werner J. Nittscher executed pursuant to the provision of the second paragraph of Article 838 of the Civil Code of the Philippines on January 25, 1990 in Manila, Philippines, and proved in

accordance with the provision of Rule 76 of the Revised Rules of Court is hereby allowed. SO ORDERED.4 On September 26, 1994, Dr. Nittscher died. Hence, Atty. Nogales filed a petition for letters testamentary for the administration of the estate of the deceased. Dr. Nittschers surviving spouse, herein petitioner Cynthia V. Nittscher, moved for the dismissal of the said petition. However, the court in its September 29, 1995 Order denied petitioners motion to dismiss, and granted respondents petition for the issuance of letters testamentary, to wit: In view of all the foregoing, the motion to dismiss is DENIED. The petition for the issuance of Letters Testamentary, being in order, is GRANTED. Section 4, Rule 78 of the Revised Rules of Court, provides "when a will has been proved and allowed, the court shall issue letters testamentary thereon to the person named as executor therein, if he is competent, accepts the trust and gives a bond as required by these rules." In the case at bar, petitioner Atty. Rogelio P. Nogales of the R.P. Nogales Law Offices has been named executor under the Holographic Will of Dr. Werner J. Nittscher. As prayed for, let Letters Testamentary be issued to Atty. Rogelio P. Nogales, the executor named in the Will, without a bond. SO ORDERED.5 Petitioner moved for reconsideration, but her motion was denied for lack of merit. On May 9, 1996, Atty. Nogales was issued letters testamentary and was sworn in as executor. Petitioner appealed to the Court of Appeals alleging that respondents petition for the issuance of letters testamentary should have been dismissed outright as the RTC had no jurisdiction over the subject matter and that she was denied due process. The appellate court dismissed the appeal, thus: WHEREFORE, the foregoing considered, the appeal is hereby DISMISSED and the assailed Order is AFFIRMED in toto. The court a quo is ordered to proceed with dispatch in the proceedings below. SO ORDERED.6 Petitioners motion for reconsideration of the aforequoted decision was denied for lack of merit. Hence, the present petition anchored on the following grounds: I. BOTH THE CA AND THE LOWER COURT ERRED IN NOT DISMISSING OUTRIGHT THE PETITION FOR LETTERS TESTAMENTARY FILED BY ATTY. NOGALES WHEN, OBVIOUSLY, IT WAS FILED IN VIOLATION OF REVISED CIRCULAR NO. 28-91 AND ADMINISTRATIVE CIRCULAR NO. 04-94 OF THIS HONORABLE COURT. II. THE CA ERRED IN NOT DECLARING THAT THE LOWER COURT [HAS] NO JURISDICTION OVER THE SUBJECT MATTER OF THE PRESENT SUIT. III. THE CA ERRED IN CONCLUDING THAT SUMMONS WERE PROPERLY ISSUED TO THE PARTIES AND ALL PERSONS INTERESTED IN THE PROBATE OF THE HOLOGRAPHIC WILL OF DR. NITTSCHER. IV. THE CA ERRED IN CONCLUDING THAT THE PETITIONER WAS NOT DEPRIVED OF DUE PROCESS OF LAW BY THE LOWER COURT.7 Petitioner contends that respondents petition for the issuance of letters testamentary lacked a certification against forum-shopping. She adds that the RTC has no jurisdiction over the subject matter of this case because

Dr. Nittscher was allegedly not a resident of the Philippines; neither did he leave real properties in the country. Petitioner claims that the properties listed for disposition in her husbands will actually belong to her. She insists she was denied due process of law because she did not receive by personal service the notices of the proceedings. Respondent Atty. Nogales, however, counters that Dr. Nittscher did reside and own real properties in Las Pias, Metro Manila. He stresses that petitioner was duly notified of the probate proceedings. Respondent points out that petitioner even appeared in court to oppose the petition for the issuance of letters testamentary and that she also filed a motion to dismiss the said petition. Respondent maintains that the petition for the issuance of letters testamentary need not contain a certification against forum-shopping as it is merely a continuation of the original proceeding for the probate of the will. We resolve to deny the petition. As to the first issue, Revised Circular No. 28-918 and Administrative Circular No. 04-949 of the Court require a certification against forumshopping for all initiatory pleadings filed in court. However, in this case, the petition for the issuance of letters testamentary is not an initiatory pleading, but a mere continuation of the original petition for the probate of Dr. Nittschers will. Hence, respondents failure to include a certification against forum-shopping in his petition for the issuance of letters testamentary is not a ground for outright dismissal of the said petition. Anent the second issue, Section 1, Rule 73 of the Rules of Court provides: SECTION 1. Where estate of deceased persons settled. If the decedent is an inhabitant of the Philippines at the time of his death, whether a citizen or an alien, his will shall be proved, or letters of administration granted, and his estate settled, in the Court of First Instance (now Regional Trial Court) in the province in which he resides at the time of his death, and if he is an inhabitant of a foreign country, the Court of First Instance (now Regional Trial Court) of any province in which he had estate. (Emphasis supplied.) In this case, the RTC and the Court of Appeals are one in their finding that Dr. Nittscher was a resident of Las Pias, Metro Manila at the time of his death. Such factual finding, which we find supported by evidence on record, should no longer be disturbed. Time and again we have said that reviews on certiorari are limited to errors of law. Unless there is a showing that the findings of the lower court are totally devoid of support or are glaringly erroneous, this Court will not analyze or weigh evidence all over again.10 Hence, applying the aforequoted rule, Dr. Nittscher correctly filed in the RTC of Makati City, which then covered Las Pias, Metro Manila, the petition for the probate of his will and for the issuance of letters testamentary to respondent. Regarding the third and fourth issues, we note that Dr. Nittscher asked for the allowance of his own will. In this connection, Section 4, Rule 76 of the Rules of Court states: SEC. 4. Heirs, devisees, legatees, and executors to be notified by mail or personally. If the testator asks for the allowance of his own will, notice shall be sent only to his compulsory heirs. In this case, records show that petitioner, with whom Dr. Nittscher had no child, and Dr. Nittschers children from his previous marriage were all duly notified, by registered mail, of the probate proceedings. Petitioner even appeared in court to oppose respondents petition for the issuance of letters testamentary and she also filed a motion to dismiss the said petition. She likewise filed a motion for reconsideration of the issuance of the letters testamentary and of the denial of her motion to dismiss. We are convinced petitioner was accorded every opportunity to defend her cause. Therefore, petitioners allegation that she was denied due process in the probate proceedings is without basis. As a final word, petitioner should realize that the allowance of her husbands will is conclusive only as to its due execution.11 The authority of the probate court is limited to ascertaining whether the testator, being of sound mind, freely executed the will in accordance with the formalities

prescribed by law.12 Thus, petitioners claim of title to the properties forming part of her husbands estate should be settled in an ordinary action before the regular courts. WHEREFORE, the petition is DENIED for lack of merit. The assailed Decision dated July 31, 2003 and Resolution dated October 21, 2003 of the Court of Appeals in CA-G.R. CV No. 55330, which affirmed the Order dated September 29, 1995 of the Regional Trial Court, Branch 59, Makati City, in SP Proc. No. M-2330 are AFFIRMED. No pronouncement as to costs. SO ORDERED. Carpio, Carpio-Morales, Tinga, Velasco, Jr., JJ., concur. Republic of the Philippines SUPREME COURT Manila SECOND DIVISION

remained unsatisfied and that she thereby had an interest in said estate. 5 On December 12, 1988, private respondent filed for approval by the probate court an "Inventory and Appraisal" placing the value of the properties left by the decedent at P18,960,000.00, which incident was set for hearing on January 16, 1989. 6 On February 2, 1989, petitioners Nilda, Eva, Boy, George, Rosemarie, and Maribel, all surnamed Gabriel, filed their "Opposition and Motion" praying for the recall of the letters of administration issued to private respondent and the issuance of such letters instead to petitioner Nilda Gabriel, as the legitimate daughter of the deceased, or any of the other oppositors who are the herein petitioners. 7 After some exchanges and on order of the court, petitioners filed an "Opposition to the Petition and Motion," dated May 20, 1989, alleging that (1) they were not duly informed by personal notice of the petition for administration; (2) petitioner Nilda Gabriel, as the legitimate daughter, should be preferred over private respondent; (3) private respondent has a conflicting and/or adverse interest against the estate because he might prefer the claims of his mother and (4) most of the properties of the decedent have already been relinquished by way of transfer of ownership to petitioners and should not be included in the value of the estate sought to be administered by private respondent. 8 On September 21, 1989, the probate court issued an order denying the opposition of petitioners on the ground that they had not shown any circumstance sufficient to overturn the order of July 8, 1988, in that (1) no evidence was submitted by oppositor Nilda Gabriel to prove that she is a legitimate daughter of the deceased; and (2) there is no proof to show that the person who was appointed administrator is unworthy, incapacitated or unsuitable to perform the trust as to make his appointment inadvisable under these circumstances. 9 The motion for reconsideration filed by petitioners was likewise denied in an order dated December 22, 1989. 10 From said orders, herein petitioners filed a special civil action for certiorari with the Court of Appeals, on the following grounds:

G.R. No. 101512 August 7, 1992 NILDA GABRIEL, EVA GABRIEL, EDGAR GABRIEL, GEORGE GABRIEL, ROSEMARIE GABRIEL, MARIBEL GABRIEL, CYNTHIA GABRIEL, RENATO GABRIEL, GERARDO GABRIEL, JOJI ZORAYDA GABRIEL, DANIEL GABRIEL and FELICITAS JOSE-GABRIEL, petitioners, vs. HON COURT OF APPEALS, HON. MANUEL E. YUZON, Judge, Regional Trial Court of Manila, Branch XI, and ROBERTO DINDO GABRIEL, respondents.

REGALADO, J.: In its decision in CA-G.R. SP No. 19797 promulgated on August 23, 1991, 1 respondent Court of Appeals dismissed the petition for certiorari filed by herein petitioners assailing the orders of the lower court in Special Proceeding No. 88-44589 thereof which effectively sustained the appointment of private respondent Roberto Dindo Gabriel as administrator of the estate of the late Domingo Gabriel. Petitioners' present appeal by certiorari would have this Court set aside that decision of respondent court, hence the need to examine the chronology of antecedent facts, as found by respondent court and detailed hereunder, pertinent to and which culminated in their recourse now before us. On May 12, 1988, or nine (9) months after Domingo Gabriel died on August 6, 1987, private respondent filed with the Regional Trial Court of Manila, Branch XI, a petition for letters of administration alleging, among others, that he is the son of the decedent, a college graduate, engaged in business, and is fully capable of administering the estate of the late Domingo Gabriel. Private respondent mentioned eight (8) of herein petitioners as the other next of kin and heirs of the decedent. 2 On May 17, 1988, the court below issued an order 3 setting the hearing of the petition on June 29, 1988, on which date all persons interested may show cause, if any, why the petition should not be granted. The court further directed the publication of the order in "Mabuhay," a newspaper of general circulation, once a week for three (3) consecutive weeks. No opposition having been filed despite such publication of the notice of hearing, private respondent was allowed to present his evidence ex parte. Thereafter, the probate court issued an order, dated July 8, 1988, appointing private respondent as administrator of the intestate estate of the late Domingo Gabriel on a bond of P30,000.00. 4 Subsequently, a notice to creditors for the filing of claims against the estate of the decedent was published in the "Metropolitan News." As a consequence, Aida Valencia, mother of private respondent, filed a "Motion to File Claim of (sic) the Intestate Estate of Domingo P. Gabriel" alleging that the decision in a civil case between her and the deceased 1. The orders of September 21, 1989 and December 22, 1989 are null and void, being contrary to the facts, law and jurisprudence on the matter; 2. Respondent judge, in rendering the aforesaid orders, gravely acted with abuse of discretion amounting to lack and/or excess of jurisdiction, hence said orders are null and void ab initio; and 3. Private respondent is morally incompetent and unsuitable to perform the duties of an administrator as he would give prior preference to the claims of his mother against the estate itself. 11 As stated at the outset, the Court of Appeals rendered judgment dismissing that petition for certiorari on the ground that the appointment of an administrator is left entirely to the sound discretion of the trial court which may not be interfered with unless abused; that the fact that there was no personal notice served on petitioners is not a denial of due process as such service is not a jurisdictional requisite and petitioners were heard on their opposition; and that the alleged violation of the order of preference, if any, is an error of fact or law which is a mistake of judgment, correctible by appeal and not by the special civil action of certiorari. 12 In the petition for review on certiorari at bar, petitioners primarily aver that under Section 6, Rule 78 of the Rules of Court, it is the surviving spouse who is first in the order of preference for the appointment of an administrator. Petitioner Felicitas Jose-Gabriel is the widow and legal surviving spouse of the deceased Domingo Gabriel and should, therefore, be preferred over private respondent who is one of the illegitimate children of the decedent by claimant. Aida Valencia. Secondly, they claim that assuming that the widow is incompetent, the next of kin must be appointed. As between a legitimate and an illegitimate child, the former is preferred, hence petitioner Nilda Gabriel, as the legitimate daughter, must be preferred over private respondent who is an illegitimate son. Thirdly, it is contended that the non-observance or violation per se of the order of preference already constitutes a grave abuse of discretion amounting to lack of jurisdiction. On the other hand, private respondent contends that the court did not commit a grave abuse of discretion in not following the order of

preference because the same is not absolute and the choice of who to appoint rests in the sound discretion of the court. He calls attention to the fact that petitioners Nilda Gabriel and Felicitas Jose-Gabriel never applied for appointment despite the lapse of more than nine (9) months from the death of Domingo Gabriel, hence it was not possible for the probate court to have considered them for appointment. Besides, it is not denied that several properties of the deceased have already been relinquished to herein petitioners, hence they would have no interest in applying for letters of administration. Lastly, private respondent submits that it has not been shown that he is incompetent nor is he disqualified from being appointed or serving as administrator. Section 6, Rule 78 of the Rules of Court provides: Sec. 6. When and to whom letters of administration granted. If no executor is named in the will, or the executor or executors are incompetent, refuse the trust, or fail to give bond, or a person dies intestate, administration shall be granted: (a) To the surviving husband or wife, as the case may be, or next of kin, or both, in the discretion of the court, or to such person as such surviving husband or wife, or next of kin, requests to have appointed, if competent and willing to serve; (b) If such husband or wife, as the case may be, or the next of kin, or the person selected by them, be incompetent or unwilling, or if the husband or widow, or next of kin, neglects for thirty (30) days after the death of the person to apply for administration or to request that administration be granted to some other person, it may be granted to one or more of the principal creditors, if competent and willing to serve; (c) If there is no such creditor competent and willing to serve, it may be granted to such other person as the court may select. (Emphases ours.) Evidently, the foregoing provision of the Rules prescribes the order of preference in the issuance of letters of administration, categorically seeks out the surviving spouse, the next of kin and the creditors, and requires that sequence to be observed in appointing an administrator. It would be a grave abuse of discretion for the probate court to imperiously set aside and insouciantly ignore that directive without any valid and sufficient reason therefor. In the appointment of the administrator of the estate of a deceased person, the principal consideration reckoned with is the interest in said estate of the one to be appointed as administrator. This is the same consideration which Section 6 of Rule 78 takes into account in establishing the order of preference in the appointment of administrators for the estate. The underlying assumption behind this rule is that those who will reap the benefit of a wise, speedy and economical administration of the estate, or, on the other hand, suffer the consequences of waste, improvidence or mismanagement, have the highest interest and most influential motive to administer the estate correctly. 13 This is likewise the same consideration which the law takes into account in establishing the preference of the widow to administer the estate of her husband upon the latter's death, because she is supposed to have an interest therein as a partner in the conjugal partnership. 14 Under the law, the widow would have the right of succession over a portion of the exclusive property of the decedent, aside from her share in the conjugal partnership. For such reason, she would have as much, if not more, interest in administering the entire estate correctly than any other next of kin. 15 On this ground alone, petitioner Felicitas Jose-Gabriel, the widow of the deceased Domingo Gabriel, has every right and is very much entitled to the administration of the estate of her husband since one who has greater interest in the estate is preferred to another who has less. 16 Private respondent, however, argues that Felicitas Jose-Gabriel may no longer be appointed administratrix by reason of her failure to apply for letters of administration within thirty (30) days from the death of her husband, as required under the rules. It is true that Section 6(b) of Rule 78 provides that the preference given to the surviving spouse or next of kin may be disregarded by the court where said persons neglect to apply for letters of administration for thirty (30) days after the decedent's death. However, it is our considered opinion that such failure is not sufficient to exclude the widow from the administration of the estate of her husband. There must be a very strong case to justify the exclusion of the widow from the administration. 17

In the case at bar, there is no compelling reason sufficient to disqualify Felicitas Jose-Gabriel from appointment as administratrix of the decedent's estate. Moreover, just as the order of preference is not absolute and may be disregarded for valid cause 18 despite the mandatory tenor in the opening sentence of Rule 78 for its observance, so may the 30-day period be likewise waived under the permissive tone in paragraph (b) of said rule which merely provides that said letters, as an alternative, "may be granted to one or more of the principal creditors." On the other hand, we feel that we should not nullify the appointment of private respondent as administrator. The determination of a person's suitability for the office of judicial administrator rests, to a great extent, in the sound judgment of the court exercising the power of appointment and said judgment is not to be interfered with on appeal unless the said court is clearly in error. 19 Administrators have such a right and corresponding interest in the execution of their trust as would entitle them to protection from removal without just cause. Thus, Section 2 of Rule 82 provides the legal and specific causes authorizing the probate court to remove an administrator. While it is conceded that the court is invested with ample discretion in the removal of an administrator, it must, however, have some fact legally before it in order to justify such removal. There must be evidence of an act or omission on the part of the administrator not conformable to or in disregard of the rules or the orders of the court which it deems sufficient or substantial to warrant the removal of the administrator. 20 In the instant case, a mere importunity by some of the heirs of the deceased, there being no factual and substantial bases therefor, is not adequate ratiocination for the removal of private respondent. Suffice it to state that the removal of an administrator does not lie on the whims, caprices and dictates of the heirs or beneficiaries of the estate. In addition, the court may also exercise its discretion in appointing an administrator where those who are entitled to letters fail to apply therefor within a given time. 21 On the equiponderance of the foregoing legal positions, we see no reason why, for the benefit of the estate and those interested therein, more than one administrator may not be appointed since that is both legally permissible and sanctioned in practice. 22 Section 6(a) of Rule 78 specifically states that letters of administration may be issued to both the surviving spouse and the next of kin. 23 In fact, Section 2 of Rule 82 contemplates a contingency which may arise when there is only one administrator but which may easily be remediable where there is co-administration, to wit: "When an executor or administrator dies, resigns, or is removed the remaining executor or administrator may administer the trust alone, . . . ." Also, coadministration herein will constitute a recognition of both the extent of the interest of the widow in the estate and the creditable services rendered to and which may further be expected from private respondent for the same estate. Under both Philippine and American jurisprudence, the appointment of co-administrators has been upheld for various reasons, viz: (1) to have the benefit of their judgment and perhaps at all times to have different interests represented; 24 (2) where justice and equity demand that opposing parties or factions be represented in the management of the estate of the deceased; 25 (3) where the estate is large or, from any cause, an intricate and perplexing one to settle; 26 (4) to have all interested persons satisfied and the representatives to work in harmony for the best interests of the estate; 27 and (5) when a person entitled to the administration of an estate desires to have another competent person associated with him in the office. 28 Under the circumstances obtaining herein, we deem it just, equitable and advisable that there be a co-administration of the estate of the deceased by petitioner Felicitas Jose-Gabriel and private respondent Roberto Dindo Gabriel. As earlier stated, the purpose of having co-administrators is to have the benefit of their judgment and perhaps at all times to have different interests represented, especially considering that in this proceeding they will respectively represent the legitimate and illegitimate groups of heirs to the estate. Thereby, it may reasonably be expected that all interested persons will be satisfied, with the representatives working in harmony under the direction and supervision of the probate court.

WHEREFORE, the judgment of respondent Court of Appeals is MODIFIED by AFFIRMING the validity of the appointment of respondent Roberto Dindo Gabriel as judicial administrator and ORDERING the appointment of petitioner Felicitas Jose-Gabriel as co-administratrix in Special Proceeding No. 88-4458 of Branch XI, Regional Trial Court of Manila. SO ORDERED. Narvasa, C.J., Padilla and Nocon, JJ., concur. Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. L-26306 April 27, 1988 TESTATE ESTATE OF THE LATE GREGORIO VENTURA MARIA VENTURA, executrix- appellant, MIGUEL VENTURA and JUANA CARDONA, heirs-appellants, vs. GREGORIA VENTURA and HER HUSBAND, EXEQUIEL VICTORIO, MERCEDES VENTURA and HER HUSBAND, PEDRO D. CORPUZ, oppositors-appellees.

Gregoria Ventura and Exequiel Victorio on the ground that the question of the paternity of Mercedes Ventura and Gregoria Ventura is still pending final determination before the Supreme Court and that should they be adjudged the adulterous children of testator, as claimed, they are not entitled to inherit nor to oppose the approval of the counts of administration (Record on Appeals, pp. 33-36). Spouses Mercedes Ventura and Pedro Corpuz filed on February 2, 1961 their opposition to the motion to hold in abeyance the approval of the accounts of administration on the ground that Mercedes and Gregoria Ventura had already been declared by the Court of First Instance in Civil Cases No. 1064 and 1476, which cases are supposed to be pending before the Supreme Court, as the legitimate children of Gregorio Ventura, hence, they have reason to protect their interest (Record on Appeal, pp. 36-39). On February 9,1961, the motion to hold in abeyance the approval of the accounts was denied (Record on Appeal, pp. 39-40). It appears that on July 12, 1963, the Court set the case for pre-trial on August 7, 1963 in connection with the accounts of the executrix Maria Ventura dated June 17, 1960 and the Motion to Annul Provision of Will dated July 14,1962 of Mercedes Ventura (Record on Appeal, p. 45). On October 22, 1963, four motions were filed by Mercedes Ventura and Gregoria Ventura, namely: (1) motion to remove the executrix Maria Ventura which was supplemented on April 27, 1965; (2) motion to require her to deposit the harvest of palay of the property under administration in a bonded warehouse; (3) motion to render an accounting of the proceeds and expenses of Administration; and (4) motion to require her to include in the inventory of the estate certain excluded properties (Record on Appeal, pp. 50-53; 71). An opposition to said motions was filed by the heirs Juana Cardona and Miguel Ventura and by the executrix Maria Ventura herself (Record on Appeal, pp. 56-61; 61-70 and 71). On motion of counsel for Exequiel Victorio and Gregoria Ventura the joint motions to require an Up-to-date Accounting and to Require Executrix Ventura to Include Excluded Properties in Her Inventory were ordered withdrawn (Order dated February 2, 1965, Record on Appeal, p. 73). The other two motions were however set for hearing. The grounds of aforesaid joint motions to remove the executrix Maria Ventura are: (1) that she is grossly incompetent; (2) that she has maliciously and purposely concealed certain properties of the estate in the inventory; (3) that she is merely an illegitimate daughter who can have no harmonious relations with the appellees; (4) that the executrix has neglected to render her accounts and failed to comply with the Order of the Court of December 12, 1963, requiring her to file her accounts of administration for the years 1961 to 1963 (Record on Appeal, pp. 70 and 75-76) and the Order of June 11, 1964, reiterating aforesaid Order of December 12, 1963 (Record on Appeal, p. 76); and (5) that she is with permanent physical defect hindering her from efficiently performing her duties as an executrix (Record on Appeal, pp. 50-53 and 74-79). On May 17, 1965, the executrix Maria Ventura finally submitted her accounts of administration covering the period 1961 to 1965 (Record on Appeal, pp. 79-84) which were again opposed by the spouses Exequiel Victorio and Gregoria Ventura on September 21, 1965 and by the spouses Mercedes Ventura and Pedro Corpuz on September 29, 1965 (Record on Appeal, pp. 106-120). On June 2, 1965, the executrix filed her supplemental opposition to the aforesaid four motions, and prayed that the joint supplemental motion to remove the executrix be denied or held in abeyance until after the status of Mercedes and Gregoria Ventura as heirs of the testator is finally decided (Record on Appeal, pp. 85-1 01). On June 3, 1965, the Court, finding that the estate taxes have not been paid, ordered the administratrix to pay the same within thirty (30) days. On September 13, 1965, the lower court denied the suspension of the proceedings and deferred the resolution of the joint motion to remove executrix Maria Ventura until after the examination of the physical fitness of said executrix to undertake her duties as such. Also, it ordered the deposit of all palay to be harvested in the next agricultural year and subsequent years to be deposited in a bonded warehouse to be selected by the Court and the palay so deposited shall not be withdrawn without the express permission of the Court (Record on Appeal, pp. 103-105). On September 21, 1965, spouses Exequiel Victorio and Gregoria Ventura filed their opposition to the accounts of administration of Maria Ventura dated May 17, 1965, while that of spouses Mercedes Ventura and Pedro Corpuz was filed on September 29, 1965, both oppositions alleging among others that said accounts do not reflect the true and actual income of the estate and that the expenses reported thereunder are fake, exhorbitant and speculative (Record on Appeal, pp. 106-120).

PARAS, J.: This is an appeal from the order of the Court of First Instance of Nueva Ecija, Guimba, Branch V in Special Proceedings No. 812, Testate of the late Gregorio Venture, dated October 5, 1965, removing the appellant Maria Ventura as executrix and administratrix of the estate of the late Gregorio Ventura, and in her place appointing the appellees Mercedes Ventura and Gregoria Ventura as joint administratrices of the estate. (Record on Appeal, pp. 120-131.) Appellant Maria Ventura is the illegitimate daughter of the deceased Gregorio Ventura while Miguel Ventura and Juana Cardona are his son and saving spouse who are also the brother and mother of Maria Ventura. On the other hand, appellees Mercedes and Gregoria Ventura are the deceased's legitimate children with his former wife, the late Paulina Simpliciano (Record on Appeal, p. 122) but the paternity of appellees was denied by the deceased in his will (Record on Appeal, p. 4). On December 14,1953, Gregorio Ventura filed a petition for the probate of his will which did not include the appellees and the petition was docketed as Special Proceedings No. 812 (Record on Appeal, pp. 1-3). In the said will, the appellant Maria Ventura, although an illegitimate child, was named and appointed by the testator to be the executrix of his will and the administratrix of his estate (Record on Appeal, p. 7). In due course, said will was admitted to probate on January 14,1954 (Record on Appeal, pp. 8-10). Gregorio Ventura died on September 26,1955. On October 10, 1955, the appellant Maria Ventura filed a motion for her appointment as executrix and for the issuance of letters testamentary in her favor (Record on Appeal, pp. 10-11). On October 17, 1955, Maria Ventura was appointed executrix and the corresponding letters testamentary was issued in her favor (Record on Appeal, pp. 1112). On or about July 26, 1956, Maria Ventura submitted an inventory of the estate of Gregorio Ventura (Record on Appeal, pp. 12-20). On June 17,1960, she filed her accounts of administration for the years 1955 to 1960, inclusive. (Record on Appeal, pp. 20-27). Said account of administration was opposed by the spouses Mercedes Ventura and Pedro Corpuz on July 25, 1960 (Record on Appeal, pp. 27-33) and by Exequiel Victorio and Gregoria Ventura on August 5,1963 (Record on Appeal, pp. 46-50). Both oppositions assailed the veracity of the report as not reflecting the true income of the estate and the expenses which allegedly are not administration expenses. But on January 25, 1961, Maria Ventura filed a motion to hold in abeyance the approval of the accounts of administration or to have their approval without the opposition of the spouses Mercedes Ventura and Pedro Corpuz and

On October 5, 1965, the court a quo, finding that the executrix Maria Ventura has squandered the funds of the estate, was inefficient and incompetent, has failed to comply with the orders of the Court in the matter of presenting up-to-date statements of accounts and neglected to pay the real estate taxes of the estate, rendered the questioned decision, the dispositive portion of which reads: WHEREFORE, Maria Ventura is hereby removed as executrix and administratrix of the estate and in her place Mercedes Ventura and Gregoria Ventura are hereby appointed joint a tratrices of the estate upon filing by each of them of a bond of P 7,000.00. Let letters of administration be issued to Mercedes Ventura and Gregoria Ventura upon their qualification. IT IS SO ORDERED. (Record on Appeal pp. 120-131). Hence, this appeal. In their brief, appellants Maria Ventura and spouses Juana Cardona and Miguel Ventura assign the following errors allegedly committed by the probate court: ASSIGNMENT OF ERRORS I The lower court erred in ordering the removal of Maria Ventura as executrix and administratrix of the will and estate of the deceased Gregorio Ventura without giving her full opportunity to be heard and to present all her evidence. II The lower court erred in finding that the executrix Maria Ventura had squandered and dissipated the funds of the estate under her administration. III The lower court erred in finding that the executrix Maria Ventura was inefficient and incompetent. IV That, considering the circumtances surrounding the case, the lower court erred in finding that the failure of Maria Ventura to submit her periodical account had justified her removal as executrix. V The lower court erred in considering as an established fact that the appellees Mercedes Ventura and Gregoria Ventura are the legitimate daughters of the deceased Gregorio Ventura. VI The lower court erred in finding that the devises and bequests in favor of Maria Ventura and Miguel Ventura as specified in paragraph 8 of the last Will and Testament of the late Gregorio Ventura have ipso facto been annulled. VII The lower court erred in allowing the appellees Mercedes Ventura and Gregoria Ventura to intervene in the hearing of the accounts of administration submitted by the executrix Maria Ventura and/or in not suspending the hearing of the said accounts until the said appellees have finally established their status as legitimate children of the deceased Gregorio Ventura. VIII The lower court erred in appointing (even without a proper petition for appointment and much less a hearing on the appointment of) the appellees Mercedes Ventura and Gregoria Ventura who have an adverse

interest as joint administratrices of the estate of the deceased Gregorio Ventura. IX The lower court erred in not appointing the surviving widow, Juana Cardona, or Miguel Ventura, as administratrix of the estate of Gregorio Ventura in case the removal of Maria Ventura as executrix and administratrix thereof is legally justified. X Considering that there are in fact two (2) factions representing opposite interests in the estate, the lower court erred in not appointing Juana Cardona, or Miguel Ventura, as one of the two (2) administratrices.' (Joint Brief for the Appellants, pp. 1-4)

On July 19,1967, Atty. Arturo Tolentino (representing appellees Mercedes Ventura and Pedro Corpuz) and Atty. Jose J. Francisco (representing Gregoria and Exequiel Victoria), having failed to submit their respective briefs within the period for the purpose, which expired on July 2 and May 29,1967, respectively, the Supreme Court Resolved to consider this case submitted for decision WITHOUT SAID APPELLEES' BRIEF (Rollo, p. 152). The crucial issue in this case is whether or not the removal of Maria Ventura as executrix is legally justified. This issue has, however, become moot and academic in view of the decision of this Court in related cases. At the outset, it is worthy to note that aside from the instant special proceedings, there are two other civil cases involving the estate of the deceased Gregoria Ventura, namely, Civil Cases Nos. 1064 and 1476. Civil Case No. 1064 was filed on December 2, 1952 by herein appellee Gregoria Ventura in the Court of First Instance of Nueva Ecija, Branch I, against the other appellees herein Mercedes Ventura and their father, Gregorio Ventura. Later Mercedes Ventura joined cause with Gregoria Ventura. (Record on Appeal, p. 95). Gregoria and Mercedes Ventura claimed that they are the legitimate children of Gregorio Ventura and his wife Paulina Simpliciano, who died in 1943, and asked that one-half of the properties described in the complaint be declared as the share of their mother in the conjugal partnership, with them as the only forced heirs of their mother Paulina (Joint Brief for the Appellants, pp. 53-68). Subsequently, Civil Case No. 1476 was filed by Alipio, Eufracia and Juliana, all surnamed Simpliciano, against Gregorio Ventura and the two sisters, Mercedes and Gregoria Ventura, before the Court of First Instance of Nueva Ecija, Branch I. They alleged that as the only children of Modesto Simpliciano, sole brother of Paulina Simpliciano, they, instead of Mercedes and Gregoria Ventura, whom they claimed are adulterous children of Paulina with another man, Teodoro Ventura and as such are not entitled to inherit from her, are the ones who should inherit the share of Paulina Simpliciano in the conjugal Partnership with Gregorio Ventura (Joint Brief For The Appealant,pp.69-79) It appears that on November 4, 1959, after a joint hearing of Civil Cases Nos. 1064 and 1476, the lower court rendered its judgment, the dispositive portion of which reads as follows: WHEREFORE, judgment is hereby rendered declaring Mercedes Ventura and Gregoria Ventura to be the ligitimate daughters of Paulina Simpliciano and Gregorio Ventura; declaring that as such ligitimate daughters of Paulina Simpliciano they are entitled to 1/2 of the properties described in paragraph six of the complaint; ordering the defendant Maria Ventura, as administratrix of the estate of Gregorio Ventura to pay to Mercedes Ventura and Gregorio Ventura the amount of P 19,074.09 which shall be divided equally between Mercedes and Gregoria Ventura declaring Mercedes Ventura and Pedro Corpuz are the exclusive owners of the property describe in the certificate of Title Nos. T-1102, 212, T1213, T-1214, Exhibits 32, 33, 34 and 35, respectively; ordering Mercedes Ventura and Pedro D. Corpuz to pay to the conjugal partnership of Gregorio Ventura and Paulina Simpliciano the sum of P100,000.00, one-half of which shall pertain to the estate of Gregorio Ventura and the other half to the estate of Paulina Simpliciano to whom Mercedes and Gregoria Ventura have succeeded, to be divided between Mercedes and Gregoria in equal parts; and dismissing Civil Case No. 1476. The parties are urged to arrive at an amicable partition of the properties herein adjudicated within twenty days from receipt of this

decision. Upon their failure to do so, the Court shall appoint commissioners to divide the properties in accordance with the terms of the decision. Without pronouncements as to costs. (Emphasis supplied). (Joint Brief for the Appellants, pp. 3738.) Thereafter, on July 14, 1962, Mercedes Ventura filed a motion to annul the provisions of the will of the deceased Gregorio Ventura in Special Proceedings No. 812, which motion was opposed by Miguel Ventura and Juana Cardona and later by Maria Ventura. They claimed that the decision dated November 4,1959 in Civil Cases Nos. 1064 and 1476 was not yet final. On February 26,1964, the court annulled the institution of the heirs in the probated will of Gregorio Ventura. The motion for reconsideration of the aforesaid order filed by executrix Maria Ventura was denied on June 11, 1964. Accordingly, Maria Ventura appealed the February 26, 1964 and June 11, 1964 orders of the probate court in Special Proceedings No. 812 before the Supreme Court and was docketed as G.R. No. L-23878. On May 27,1977, this Court, through then Associate Justice Antonio P. Barredo, ruled, as follows: And so, acting on appellees' motion to dismiss appeal, it is Our considered opinion that the decision in Civil Cases Nos.1064 and 1476 declaring that appellees Mercedes and Gregoria Ventura are the ligimate children of the deceased Gregorio Ventura and his wife, Paulina Simpliciano, and as such are entitled to the annulment of the institution of heirs made in the probated will of said deceased became final and executory upon the finality of the order, approving ther partition directed in the decision in question. We need not indulge in any discussion as to whether or not, as of the time the orders here in question were issued by the trial court said decision had the nature of an interlocutory order only. To be sure, in the case of Miranda, aforementioned, the opinion of the majority of the Court may well be invoked against appellant's pose. In any event, even if the Court were minded to modify again Miranda and go back to Fuentebella and Zaldariaga and it is not, as of now there can be no question that the approval by the trial court in Civil Cases Nos. 1064 and 1476 of the partition report of the commissioners appointed for the purpose, one of whom, Emmanuel Mariano, is the husband of appellant, put a definite end to those cases, leaving nothing else to be done in the trial court. That order of approval is an appealable one, and inasmuch as no appeal has been taken from the same, it is beyond dispute that the decision in controversy has already become final and executory in all respects. Hence, the case at bar has become moot and academic. (Ventura vs. Ventura, 77 SCRA 159, May 27,1977) Under Article 854 of the Civil Code, "the pretention 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," and as a result, intestacy follows, thereby rendering the previous appointment of Maria Ventura as executrix moot and academic. This would now necessitate the appointment of another administrator, under the following provision: Section 6, Rule 78 of the Rules of Court: When and to whom letters of administration granted.-If no executor is named in the will, or the executor or executors are incompetent, refuse the trust, or fail to give bond, or a person dies intestate, a petition shall be granted: (a) To the surviving husband or wife, as the case may be or next of kin, or both, in the discretion of the court, or to such person as such surviving husband or wife, or both, in the discretion of the court, or to such person as such surviving husband or wife, or next of kin, requests to have appointed, if competent and willing to serve;" xxx xxx xxx In the case at bar, the surviving spouse of the deceased Gregorio Ventura is Juana Cardona while the next of kin are: Mercedes and Gregoria Ventura and Maria and Miguel Ventura. The "next of kin" has been defined as those persons who are entitled under the statute of distribution to the decedent's property (Cooper vs. Cooper, 43 Ind. A. 620, 88 NE 341). It is generally said that "the nearest of kin, whose interest in the estate is more preponderant, is preferred in the choice of

administrator. 'Among members of a class the strongest ground for preference is the amount or preponderance of interest. As between next of kin, the nearest of kin is to be preferred." (Cabanas, et al. vs. Enage et al., 40 Off. Gaz. 12 Suppl. 227; citing 12 Am. Jur. Sec. 77, p. 416, cited in Francisco Vicente J., The Revised Rules of Court in the Philippines, Vol. V-B 1970 Ed., p. 23). As decided by the lower court and sustained by the Supreme Court, Mercedes and Gregoria Ventura are the legitimate children of Gregorio Ventura and his wife, the late Paulina Simpliciano. Therefore, as the nearest of kin of Gregorio Ventura they are entitled to preference over the illegitimate children of Gregorio Ventura, namely: Maria and Miguel Ventura. Hence, under the aforestated preference provided in Section 6 of Rule 78, the person or persons to be appointed administrator are Juana Cardona, as the surviving spouse, or Mercedes and Gregoria Ventura as nearest of kin, or Juana Cardona and Mercedes and Gregoria Ventura in the discretion of the Court, in order to represent both interests. PREMISES CONSIDERED, the appeal interposed by appellants Maria Ventura, Juana Cardona and Miguel Ventura is hereby DISMISSED. SO ORDERED. Padilla and Sarmiento, JJ., concur.

Separate Opinions

MELENCIO-HERRERA, J., Disenting: Consistent with my "concurrence in the result" in Acain vs. IAC, et als., G.r. No. 72706, October 27, 1987, preterition results in total intestacy if it was mistakenly made or through inadvertence. In this case there was no mistake nor oversight whatsoever. The testator himself sought the probate of his Will during his lifetime wherein he not only excluded his "forced heirs" but even denied paternity. Under the circumstances, the omission being obviously intentional, the effect is a defective disinheritance covered by Article 918 of the Civil Code under which the institution of heir is not wholly void but only in so far as it prejudices the ligitimes of the persons disinherited. The nullity is partial unlike in true preterition where the nullity is total. This conclusion further finds support in the prevailing spirit in the codal provisions, which is to make the intention of the testator prevail (e.g., Articles 783, 790, 848, 852, 861, Civil Code). Yap, C.J., dissent. Separate Opinions MELENCIO-HERRERA, J., Disenting: Consistent with my "concurrence in the result" in Acain vs. IAC, et als., G.r. No. 72706, October 27, 1987, preterition results in total intestacy if it was mistakenly made or through inadvertence. In this case there was no mistake nor oversight whatsoever. The testator himself sought the probate of his Will during his lifetime wherein he not only excluded his "forced heirs" but even denied paternity. Under the circumstances, the omission being obviously intentional, the effect is a defective disinheritance covered by Article 918 of the Civil Code under which the institution of heir is not wholly void but only in so far as it prejudices the ligitimes of the persons disinherited. The nullity is partial unlike in true preterition where the nullity is total. This conclusion further finds support in the prevailing spirit in the codal provisions, which is to make the intention of the testator prevail (e.g., Articles 783, 790, 848, 852, 861, Civil Code). Yap, C.J., dissent. Republic of the Philippines

SUPREME COURT Manila THIRD DIVISION

5. That the aforementioned deceased left properties both real and personal worth P5,000,000.00 consisting of the following: a) Lot in Kakar, Cotabato City covered by TCT No. T-12835 with an area of 290 sq. m. estimated at P50,000.00

G.R. No. 116835 March 5, 1998 ANTONIETTA GARCIA VDA. DE CHUA, petitioner, vs. COURT OF APPEALS (Special Eight Division), HON. JAPAL M. GUIANI, RTC, Branch 14, 12th Judicial Region, Cotabato City, and FLORITA A. VALLEJO, as Administratrix of the Estate of the late Roberto L. Chua, respondents.

b) Lot in Kakar, Cotabato City covered by TCT No. T-12834 with an area of 323 sq. m. 50,000.00 c) Lot in Davao City covered by TCT No. T-126583 with an area of 303 sq. m. 50,000.00 d) Lot in Davao City covered by TCT No. T-126584 with an area of 303 sq. m. 50,000.00 e) Residential house in Cotabato City valued at 30,000.00

KAPUNAN, J.: Assailed before us in this Appeal by Certiorari under Rule 45 of the Rules of Court is the decision of the Court of Appeals in CA-GR Sp. No. 33101, promulgated on 19 April 1994 affirming the decision of the Regional Trial Court, Branch 14, of Cotabato City in Special Procedure Case No. 331. As culled from the records, the following facts have been established by evidence: During his lifetime, Roberto Lim Chua lived out of wedlock with private respondent Florita A. Vallejo from 1970 up to 1981. Out of this union, the couple begot two illegitimate children, namely, Roberto Rafson Alonzo and Rudyard Pride Alonzo. On 28 May 1992, Roberto Chua died intestate in Davao City. On 2 July 1992, private respondent filed with the Regional Trial Court of Cotabato City a Petition 1 which is reproduced hereunder: IN RE: PETITION FOR DECLARATION OF HEIRSHIP, GUARDIANSHIP OVER THE PERSONS AND PROPERTIES OF MINORS ROBERT RAFSON ALONZO SP. PROC. NO/ 331 and RUDYARD PRIDE ALONZO, all surnamed CHUA and ISSUANCE OF LETTERS OF ADMINISTRATION. FLORITA ALONZO VALLEJO, Petitioner PETITION COMES NOW the petitioner assisted by counsel and unto this Honorable Court most respectfully states: 1. That she is of legal age, Filipino, married but separated from her husband and residing at Quezon Avenue, Cotabato City, Philippines; 2. That sometime from 1970 up to and until late 1981 your petitioner lived with Roberto Lim Chua as husband and wife and out of said union they begot two (2) children, namely, Robert Rafson Alonzo Chua who was born in General Santos City on April 28, 1977 and Rudyard Pride Alonzo Chua who was born in Davao City on August 30, 1978. A xerox copy of the birth certificate of each child is hereto attached as annex "A" and "B", respectively. 3. That the aforementioned children who are still minors today are both staying with herein petitioner at her address at Quezon Avenue, Cotabato City; 4. That Roberto Lim Chua, father of the above-mentioned minors, died intestate on May 28, 1992 in Davao City.

f) Residential house in Davao City valued at 600,000.00 g) Car, Colt Lancer with Motor No. 4G33-3 AF6393 210,000.00 h) Colt, Galant Super Saloon with Motor No. 4G37-GB0165 545,000.00 i) Car, Colt Galant with Motor No. 4G52-52D75248 110,000.00 j) Reo Isuzu Dump Truck with Motor No. DA640-838635 350,000.00 k) Hino Dump Truck with Motor No. ED100-T47148 350,000.00 l) Stockholdings in various corporations with par value estimated at 3,335,000.00 Total P5,000,000.00 6. That deceased Roberto Lim Chua died single and without legitimate descendants or ascendants, hence, the above named minors Robert Rafson Alonzo Chua and Rudyard Pride Alonzo Chua, his children with herein petitioner shall succeed to the entire estate of the deceased. (Article 988 of the Civil Code of the Philippines). 7. That the names, ages and residences of the relatives of said minors are the following, to wit: Names Relationship Ages Residence 1. Carlos Chua Uncle 60 Quezon Avenue, Cotabato City 2. Aida Chua Auntie 55 Rosary Heights, Cotabato City 3. Romulo Uy Uncle 40 c/o Overseas Fishing Exporation Co. Inc., Matina, Davao City 6. That considering the fact that the aforementioned minors by operation of law are to succeed to the entire estate of Roberto Lim Chua under the provisions of Article 988 of the New Civil Code of the Philippines, it is necessary that for the protection of the rights and interest of Robert Rafson Alonzo Chua and Rudyard Pride Alonzo Chua, both minors and heirs of deceased Roberto Lim Chua, a guardian over the persons and properties of said minors be appointed by this Honorable Court. 7. That herein petitioner being the mother and natural guardian of said minors is also competent and willing to act as the guardian of minors Robert Rafson Alonzo Chua and Rudyard Pride Alonzo Chua both staying and living with her; that petitioner possesses all the qualifications and none of the disqualifications of a guardian. WHEREFORE, premises considered, it is most respectfully prayed: 1. That, upon proper notice and hearing, an order be issued declaring minors ROBERTO RAFSON ALONZO CHUA and RUDYARD PRIDE

ALONZO CHUA as heirs to the intestate estate of deceased ROBERTO LIM CHUA; 2. That Letters of Administration be issued to herein petitioner for the administration of the estate of the deceased ROBERTO LIM CHUA; 3. That the petitioner be also appointed the guardian of the persons and estate of minors ROBERT RAFSON ALONZO CHUA and RUDYARD PRIDE ALONZO CHUA; 4. That after all the property of deceased Roberto Lim Chua have been inventoried and expenses and just debts, have been paid, the intestate estate of Roberto Lim Chua be distributed to its rightful heirs, the minors in this case, pursuant to the provisions of Article 988 of the New Civil Code of the Philippines. 5. And for such other reliefs and remedies this Honorable Court may consider fit and proper in the premises. Cotabato City, Philippines, June 29, 1992. (Sgd.) FLORITA ALONZO VALLEJO (Petitioner) The trial court issued an order setting the hearing of the petition on 14 August 1992 and directed that notice thereof be published in a newspaper of general circulation in the province of Maguindanao and Cotabato City and or Davao City. On 21 July 1992, herein petitioner Antonietta Garcia Vda. de Chua, representing to be the surviving spouse of Roberto Chua, filed a Motion to Dismiss 2 on the ground of improper venue. Petitioner alleged that at the time of the decedent's death Davao City was his residence, hence, the Regional Trial Court of Davao City is the proper forum. Private respondent filed an opposition to the Motion to Dismiss 3 dated July 20, 1992 based on the following grounds: (1) That this petition is for the guardianship of the minor children of the petitioner who are heirs to the estate of the late Roberto L. Chua and under Section 1, Rule 92 of the Rules of Court the venue shall be at the place where the minor resides; (2) That the above-named minors are residents of Cotabato City: (3) That the movant in this case has no personality to intervene nor oppose in the granting of this petition for the reason that she is a total stranger to the minors Robert Rafson Alonzo and Rudyard Pride Alonzo, all surnamed Chua. (4) That deceased Roberto L. Chua died a bachelor. He is the father of the above-named minors with the petitioner in this case; (5) That movant/oppositor Antonietta Chua is not the surviving spouse of the late Roberto L. Chua but a pretender to the estate of the latter since the deceased never contracted marriage with any woman until he died. On 6 August 1992, private respondent Vallejo filed a Motion for Admission of an Amended Petition 4 "in order that the designation of the case title can properly and appropriately capture or capsulize in clear terms the material averments in the body of the pleadings; thus avoiding any confusion or misconception of the nature and real intent and purpose of this petition." The amended petition 5 contained identical material allegations but differed in its title, thus:. IN RE: PETITION FOR THE SETTLEMENT OF THE INTESTATE ESTATE OF ROBERTO L. CHUA, DECLARATION OF HEIRSHIP, GUARDIANSHIP OVER THE PERSONS AND PROPERTIES OF MINORS ROBERT AND RUDYARD, all surnamed CHUA and ISSUANCE OF LETTERS OF ADMINISTRATION. FLORITA ALONZO VALLEJO, Petitioner. Paragraph 4 of the original petition was also amended to read as follows:

4. That Roberto Lim Chua, father of the abovementioned minors is a resident of Cotabato City and died intestate on May 28, 1992 at Davao City. The petition contained exactly the same prayers as the original petition. Petitioner opposed the motion to amend petition alleging that at the hearing of said motion on 24 July 1992, private respondent's counsel allegedly admitted that the sole intention of the original petition was to secure guardianship over the persons and property of the minors. 6 On 21 August 1992, the trial court issued an Order 7 denying the motion to dismiss for lack of merit. The court ruled that Antonietta Garcia had no personality to file the motion to dismiss not having proven her status as wife of the decedent. Further, the court found that the actual residence of the deceased was Cotabato City, and even assuming that there was concurrent venue among the Regional Trial Courts where the decedent had resided, the R.T.C. of Cotabato had already taken cognizance of the settlement of the decedent's estate to the exclusion of all others. The pertinent portions of the order read: At the hearing of the motion to dismiss on August 19, 1992, counsel for movant Antonietta G. Chua presented 18 Exhibits in support of her allegation that she was the lawful wife of the decedent and that the latter resides in Davao City at the time of his death. Exh. "1" was the xerox copy of the alleged marriage contract between the movant and the petitioner. This cannot be admitted in evidence on the ground of the timely objection of the counsels for petitioner that the best evidence is the original copy or authenticated copy which the movant cannot produce. Further, the counsels for petitioner in opposition presented the following: a certification from the Local Civil Registrar concerned that no such marriage contract was ever registered with them; a letter from Judge Augusto Banzali, the alleged person to have solemnized the alleged marriage that he has not solemnized such alleged marriage. Exhibit "2" through "18" consist among others of Transfer Certificate of Title issued in the name of Roberto L. Chua married to Antonietta Garcia, and a resident of Davao City; Residence Certificates from 1988 and 1989 issued at Davao City indicating that he was married and was born in Cotabato City; Income Tax Returns for 1990 and 1991 filed in Davao City where the status of the decedent was stated as married; passport of the decedent specifying that he was married and his residence was Davao City. Petitioner through counsels, objected to the admission in evidence of Exhibits "2" through "18" if the purpose is to establish the truth of the alleged marriage between the decedent and Antonietta Garcia. The best evidence they said is the marriage contract. They do not object to the admission of said exhibit if the purpose is to show that Davao City was the business residence of the decedent. Petitioner through counsels, presented Exhibit "A" through "K" to support her allegation that the decedent was a resident of Cotabato City; that he died a bachelor; that he begot two illegitimate children with the petitioner as mother. Among these exhibits are Income Tax Returns filed in Cotabato City from 1968 through 1979 indicating therein that he was single; birth certificates of the alleged two illegitimate children of the decedent; Resident Certificates of the decedent issued in Cotabato City; Registration Certificate of Vehicle of the decedent showing that his residence is Cotabato City. It is clear from the foregoing that the movant failed to establish the truth of her allegation that she was the lawful wife of the decedent. The best evidence is a valid marriage contract which the movant failed to produce. Transfer Certificates of Title, Residence Certificates, passports and other similar documents cannot prove marriage especially so when the petitioner has submitted a certification from the Local Civil Registrar concerned that the alleged marriage was not registered and a letter from the judge alleged to have solemnized the marriage that he has not solemnized said alleged marriage. Consequently, she has no personality to file the subject motion to dismiss. On the issue of the residence of the decedent at the time of his death, the decedent as a businessman has many business residences from different parts of the country where he usually stays to supervise and pursue his business ventures. Davao City is one of them. It cannot be denied that Cotabato City is his actual residence where his alleged illegitimate children also reside. The place of residence of the deceased in settlement of estates, probate of will, and issuance of letters of administration does not constitute an

element of jurisdiction over the subject matter. It is merely constitutive of venue (Fule vs. CA, L-40502, November 29, 1976). Even assuming that there is concurrent venue among the Regional Trial Courts of the places where the decedent has residences, the Regional Trial Court first taking cognizance of the settlement of the estate of the decedent, shall exercise jurisdiction to the exclusion of all other courts (Section 1, Rule 73). It was this Court which first took cognizance of the case when the petition was filed on July 2, 1992, docketed as Special Proceeding No. 331 and an order of publication issued by this Court on July 13, 1992. WHEREFORE, in view of the foregoing, the motion to dismiss is hereby denied for lack of merit. On 31 August 1992, upon motion of private respondent, the trial court issued an order appointing Romulo Lim Uy, a first cousin of the deceased, as special administrator of the decedent's estate. 8 On the same day, the trial court, likewise, issued an Order appointing Florita Vallejo as guardian over the persons and properties of the two minor children. 9 Thereafter, petitioner filed a Motion dated 25 October 1993 10 praying that the letters of administration issued to Vallejo be recalled and that new letters of administration be issued to her. She, likewise, filed a Motion dated 5 November 1993 11 to declare the proceedings a mistrial. Both motions were denied by the trial court in its Order dated 22 November 1993. 12 Petitioner's motion for reconsideration of the order was denied by the trial court in an Order dated 13 December 1993. 13 Assailing the last two orders of the trial court, petitioner filed a petition for certiorari and prohibition (Rule 65) with the respondent Court of Appeals, docketed as CA G.R. No. Sp. 33101, alleging that the trial court acted with grave abuse of discretion in: (1) unilaterally and summarily converting, if not treating, the guardianship proceedings into an intestate proceeding; (2) summarily hearing the intestate proceedings without jurisdiction and without any notice to herein petitioner whatsoever; and (3) issuing the questioned order (sic) on the alleged pretension that herein petitioner has no personality to intervene in SPL Proc. No. 331 questioning the highly anomalous orders precipitately issued ex-parte by the public respondent R.T.C. without notice to the petitioners. Petitioner in the main argued that private respondent herself admitted in her opposition to petitioner's motion to dismiss filed in the trial court and in open court that the original petition she filed is one for guardianship; hence, the trial court acted beyond its jurisdiction when it issued letters of administration over the estate of Roberto L. Chua, thereby converting the petition into an intestate proceeding, without the amended petition being published in a newspaper of general circulation as required by Section 3, Rule 79. The Court of Appeals, in its decision promulgated on 19 April 1994, 14 denied the petition ratiocinating that the original petition filed was one for guardianship of the illegitimate children of the deceased as well as for administration of his intestate estate. While private respondent may have alleged in her opposition to the motion to dismiss that petition was for guardianship, the fact remains that the very allegations of the original petition unmistakably showed a twin purpose: (1) guardianship; and (2) issuance of letters of administration. As such, it was unnecessary for her to republish the notice of hearing through a newspaper of general circulation in the province. The amended petition was filed for the only reason stated in the motion for leave: so that the "case title can properly and appropriately capture or capsulize in clear terms the material averments in the body of the pleadings; thus avoiding any confusion or misconception of the nature and real intent and purpose of this petition," which was for guardianship over the persons and properties of her minor children and for the settlement of the intestate estate of the decedent who was their father. In other words, there being no change in the material allegations between the original and amended petitions, the publication of the first in a newspaper of general circulation sufficed for purposes of compliance with the legal requirements of notice. Moreover, the appellate court ruled that the petitioner's remedy is appeal from the orders complained of under Section 1(f), Rule 109 of the Rules of Court, not certiorari and prohibition.

Not satisfied with the decision of the Court of Appeals, petitioner comes to this Court contending that the appellate court committed the following errors: I THE PUBLIC RESPONDENT COURT OF APPEALS GRAVELY AND SERIOUSLY ERRED IN HOLDING THAT THE ORIGINAL PETITION (Annex F, Petition) WAS FOR A TWIN PURPOSE, TO WIT: FOR GUARDIANSHIP AND FOR INTESTATE ESTATE PROCEEDINGS; II THE PUBLIC RESPONDENT COURT APPEALS SERIOUSLY ERRED IN HOLDING THAT THERE IS NO NEED TO PUBLISH THE AMENDED PETITION FOR ADMINISTRATION OF THE INTESTATE ESTATE THEREBY CONTRAVENING THE RULES OF COURT AND THE RULINGS OF THE SUPREME COURT. III THE PUBLIC RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN NOT NULLIFYING THE ORDERS (Annex "P" to "T") PRECIPITATELY ISSUED EX-PARTE BY THE PUBLIC RESPONDENT REGIONAL TRIAL COURT IN THE INTESTATE PROCEEDINGS WITHOUT PRIOR HEARING OR NOTICE TO HEREIN PETITIONER THEREBY DEPRIVING THE LATTER (ANTONIETTA GARCIA VDA. DE CHUA ) OF DUE PROCESS AND OPPORTUNITY TO BE HEARD. IV THE PUBLIC RESPONDENT COURT OF APPEALS GRAVELY ERRED IN SWEEPINGLY HOLDING THAT PETITIONER'S REMEDY IS APPEAL. 15 In support of her first assignment of error, petitioner submits that the Court of Appeals' conclusion that the original petition was one for guardianship and administration of the intestate estate is contradicted by the evidence on hand, asserting that the original petition failed to allege and state the jurisdictional facts required by the Rules of Court in petitions for administration of a decedent's estate, such as: (a) the last actual residence of the decedent at the time of his death; (b) names, ages and residences of the heirs; and (c) the names and residences of the creditors of the decedent. Petitioner also reiterates her argument regarding private respondent's alleged admission that the original petition was one for guardianship and not for issuance of letters of administration, pointing to the Opposition to the Motion to Dismiss dated 20 July 1992, where the private respondent alleged. 1. That this petition is for guardianship of the minor children of the petitioner who are heirs to the estate of the late Roberto L. Chua and under Section 1, Rule 92 of the Rules of Court the venue shall be at the place where the minor resides. 16 as well as to the statements made by counsel for the private respondent during the 24 July 1992 hearing on the motion to dismiss: ATTY. RENDON: We filed our opposition to the motion to dismiss the petition because this is a petition for guardianship of minors, not for intestate proceedings. So this is a case where the mother wanted to be appointed as guardian because she is also the litigant here. Because whenever there is an intestate proceedings, she has to represent the minors, and under the Rules of Court in any guardianship proceedings, the venue is at the place where the minor is actually residing. 17 The petition is devoid of merit. The title alone of the original petition clearly shows that the petition is one which includes the issuance of letters of administration. The title of said petition reads: IN RE: PETITION FOR DECLARATION OF HEIRSHIPS, GUARDIANSHIP OVER THE PERSON AND PROPERTIES OF MINORS ROBERTO ALONZO AND RUDYARD ALONZO, all surnamed CHUA and ISSUANCE OF LETTERS OF ADMINISTRATION. 18

Likewise, the prayer of the petition states: 2. That Letters of Administration be issued to herein petition for the administration of the estate of the deceased ROBERTO LIM CHUA. The original petition also contains the jurisdictional facts required in a petition for the issuance of letters of administration. Section 2, Rule 79 of the Rules of Court reads: Sec. 2. Contents of petition for letters of administration A petition for letters of administration must be filed by an interested person and must show, so far as known to the petitioner: (a) jurisdictional facts; (b) The names, ages, and residences of the heirs and the names and residences of the creditors, of the decedent' (c) The probative value and character of the property of the estate;. (d) The name of the person for whom letters of administration are prayed; But no defect in the petition shall render void the issuance of letters of administration. (emphasis ours). The jurisdictional facts required in a petition for issuance of letters of administration are: (1) the death of the testator; (2) residence at the time of death in the province where the probate court is located; and (3) if the decedent was a non-resident, the fact of being a resident of a foreign country and that the decedent has left an estate in the province where the court is sitting. 19 While paragraph 4 of the original petition stating: (4) That Roberto Lim Chua, father of the above mentioned minors, died intestate on May 28, 1992 in Davao City. failed to indicate the residence of the deceased at the time of his death, the omission was cured by the amended petitions wherein the same paragraph now reads: (4) That Roberto Lim Chua, father of the abovementioned minors is a resident of Cotabato City and died intestate on May 28, 1992 at Davao City. 20 (Emphasis in the original.) All told the original petition alleged substantially all the facts required to be stated in the petition for letters of administration. Consequently, there was no need to publish the amended petition as petitioner would insist in her second assignment of errors. Be that as it may, petitioner has no legal standing to file the motion to dismiss as she is not related to the deceased, nor does she have any interest in his estate as creditor or otherwise. The Rules are explicit on who may do so: Sec. 4. Opposition to petition for administration Any interested person, may by filing a written opposition, contest the petition on the ground of incompetency of the person for whom letters of administration are prayed therein, or on the ground of the contestant's own right to the administration, and may pray that letters issue to himself, or to any competent person or persons named in the opposition.. Only an interested person may oppose the petition for issuance of letters of administration. 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; his interest is material and direct, and not one that is only indirect or contingent. 21 Petitioner was not able to prove her status as the surviving wife of the decedent. The best proof of marriage between man and wife is a marriage contract which Antonietta Chua failed to produce. The lower court correctly disregarded the photostat copy of the marriage certificate which she presented, this being a violation of the best evidence rule, together with other worthless pieces of evidence. The trial court correctly ruled in its 21 August 1992 Order that:

. . . Transfer Certificates of Title, Residence Certificates, passports and other similar documents cannot prove marriage especially so when the petitioner has submitted a certification from the Local Civil Registrar concerned that the alleged marriage was not registered and a letter from the judge alleged to have solemnized the marriage that he has not solemnized said alleged marriage. . . . 22 Under her third assignment of error, petitioner claims that the trial court issued its orders, Annexes "P" to "T" without prior hearing or notice to her, thus, depriving her of due process. The orders referred to by petitioner are: Order dated 31 August 1992 appointing Romulo Lim Uy, first cousin of the deceased, as special administrator of the estate; Order dated 31 August 1992 appointing private respondent as guardian over the person and property of the minors; Order dated 5 August 1993, directing the transfer of the remains of the deceased from Davao City to Cotabato City; Order dated 6 September 1993 directing petitioner to turn over a Mitsubishi Gallant car owned by the estate of the deceased to the special administrator; and Order dated 28 September 1993, authorizing the sheriff to break open the deceased's house for the purpose of conducting an inventory of the properties found therein, after the sheriff was refused entry to the house by the driver and maid of petitioner. Apart from the fact that petitioner was not entitled to notice of the proceedings of the trial court, not being able to establish proof of her alleged marriage to the deceased, or of her interest in the estate as creditor or otherwise, petitioner categorically stated in the instant petition that on 25 October 1993 she filed a motion praying for the recall of the letters of administration issued by the trial court and another motion dated 5 August 1993 praying that the proceedings conducted by the trial court be declared as a mistrial and the court orders relative thereto be set aside and nullified. Petitioner further stated that her motions were denied by the trial court in its Order dated 22 November 21, 1993 and that on 30 November 1993 she filed a motion for reconsideration of the order of denial which in turn was denied by the trial court on 13 December 1993. Due process was designed to afford opportunity to be heard, not that an actual hearing should always and indispensably be held. 23 The essence of due process is simply an opportunity to be heard. 24 Here, even granting that the petitioner was not notified of the orders of the trial court marked as Exhibits "P" to "T," inclusive, nonetheless, she was duly heard in her motions to recall letters of administration and to declare the proceedings of the court as a "mistrial," which motions were denied in the Order dated 22 November 1993. 25 A motion for the reconsideration of this order of denial was also duly heard by the trial court but was denied in its Order of 13 December 1993. 26 Denial of due process cannot be successfully invoked by a party who has had the opportunity to be heard on his motion for reconsideration. 27 As to the last assignment of errors, we agree with the Court of Appeals that the proper remedy of the petitioner in said court was an ordinary appeal and not a special civil action for certiorari; which can be availed of if a party has no plain, speedy and adequate remedy in the ordinary course of law. Except for her bare allegation that an ordinary appeal would be inadequate, nothing on record would indicate that extraordinary remedy of certiorari or prohibition is warranted. Finally, petitioner further argues as supplement to her memorandum that the ruling of the Court of Appeals treating the Special Proceeding No. 331 as one for both guardianship and settlement of estate is in contravention of our ruling in Gomez vs. Imperial, 28 which the petitioner quotes: The distribution of the residue of the estate of the deceased is a function pertaining property not to the guardianship proceedings, but to another proceeding which the heirs are at liberty to initiate. Petitioner's reliance on said case is misplaced. In the Gomez case, the action before the lower court was merely one for guardianship. Therefore said court did not have the jurisdiction to distribute the estate of the deceased. While in the case at bar, the petition filed before the court was both for guardianship and settlement of estate. IN VIEW OF THE FOREGOING, the petition of petitioner Antonietta Chua is hereby denied. SO ORDERED.

Narvasa, C.J., Romero and Purisima, JJ., concur.