Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No.

1439 March 19, 1904

ANTONIO CASTAEDA, plaintiff-appellee, vs. JOSE E. ALEMANY, defendant-appellant. Ledesma, Sumulong and Quintos for appellant. The court erred in holding that all legal formalities had been complied with in the execution of the will of Doa Juana Moreno, as the proof shows that the said will was not written in the presence of under the express direction of the testratrix as required by section 618 of the Code of Civil Procedure. Antonio V. Herrero for appellee. The grounds upon which a will may be disallowed are limited to those mentioned in section 634 of the Code of Civil Procedure. WILLARD, J.: (1) The evidence in this case shows to our satisfaction that the will of Doa Juana Moreno was duly signed by herself in the presence of three witnesses, who signed it as witnesses in the presence of the testratrix and of each other. It was therefore executed in conformity with law. There is nothing in the language of section 618 of the Code of Civil Procedure which supports the claim of the appellants that the will must be written by the testator himself or by someone else in his presence and under his express direction. That section requires (1) that the will be in writing and (2) either that the testator sign it himself or, if he does sign it, that it be signed by some one in his presence and by his express direction. Who does the mechanical work of writing the will is a matter of indifference. The fact, therefore, that in this case the will was typewritten in the office of the lawyer for the testratrix is of no consequence. The English text of section 618 is very plain. The mistakes in translation found in the first Spanish edition of the code have been corrected in the second. (2) To establish conclusively as against everyone, and once for all, the facts that a will was executed with the formalities required by law and that the testator was in a condition to make a will, is the only purpose of the proceedings under the new code for the probate of a will. (Sec. 625.) The judgment in such proceedings determines and can determine nothing more. In them the court has no power to pass upon the validity of any provisions made in the will. It can not decide, for example, that a certain legacy is void and another one valid. It could not in this case make any decision upon the question whether the testratrix had the power to appoint by will a guardian for the property of her children by her first husband, or whether the person so appointed was or was not a suitable person to discharge such trust. All such questions must be decided in some other proceeding. The grounds on which a will may be disallowed are stated the section 634. Unless one of those grounds appears the will must be allowed. They all have to do with the personal condition of the testator at the time of its execution and the formalities connected therewith. It follows that neither this court nor the court below has any jurisdiction in his proceedings to pass upon the questions raised by the appellants by the assignment of error relating to the appointment of a guardian for the children of the deceased.

It is claimed by the appellants that there was no testimony in the court below to show that the will executed by the deceased was the same will presented to the court and concerning which this hearing was had. It is true that the evidence does not show that the document in court was presented to the witnesses and identified by them, as should have been done. But we think that we are justified in saying that it was assumed by all the parties during the trial in the court below that the will about which the witnesses were testifying was the document then in court. No suggestion of any kind was then made by the counsel for the appellants that it was not the same instrument. In the last question put to the witness Gonzales the phrase "this will" is used by the counsel for the appellants. In their argument in that court, found on page 15 of the record, they treat the testimony of the witnesses as referring to the will probate they were then opposing. The judgment of the court below is affirmed, eliminating therefrom, however, the clause "el cual debera ejecutarse fiel y exactamente en todas sus partes." The costs of this instance will be charged against the appellants. Arellano, C. J., Torres, Cooper, Mapa, McDonough and Johnson, JJ., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 45629 September 22, 1938

ANTILANO G. MERCADO, petitioner, vs. ALFONSO SANTOS, Judge of First Instance of Pampanga, respondents. ROSARIO BASA DE LEON, ET AL., intervenors. Claro M. Recto and Benigno S. Aquino for petitioner. Esperanza de la Cruz and Heracio Abistao for respondents. Sotto and Sotto for intervenors. LAUREL, J.: On May 28, 1931, the petitioner herein filed in the Court of First Instance of Pampanga a petition for the probate of the will of his deceased wife, Ines Basa. Without any opposition, and upon the testimony of Benigno F. Gabino, one of the attesting witnesses, the probate court, on June 27,1931, admitted the will to probate. Almost three years later, on April 11, 1934, the five intervenors herein moved ex parte to reopen the proceedings, alleging lack of jurisdiction of the court to probate the will and to close the proceedings. Because filed ex parte, the motion was denied. The same motion was filed a second time, but with notice to the adverse party. The motion was nevertheless denied by the probate court on May 24, 1934. On appeal to this court, the order of denial was affirmed on July 26, 1935. (Basa vs. Mercado, 33 Off. Gaz., 2521.) It appears that on October 27, 1932, i. e., sixteen months after the probate of the will of Ines Basa, intervenor Rosario Basa de Leon filed with the justice of the peace court of San Fernando, Pampanga, a complaint against the petitioner herein, for falsification or forgery of the will probated as above indicated. The petitioner was arrested. He put up a bond in the sum of P4,000 and engaged the services of an attorney to undertake his defense. Preliminary investigation of the case was continued twice upon petition of the complainant. The complaint was finally dismissed, at the instance of the complainant herself, in an order dated December 8, 1932. Three months later, or on March 2, 1933, the

same intervenor charged the petitioner for the second time with the same offense, presenting the complaint this time in the justice of the peace court of Mexico, Pampanga. The petitioner was again arrested, again put up a bond in the sum of P4,000, and engaged the services of counsel to defend him. This second complaint, after investigation, was also dismissed, again at the instance of the complainant herself who alleged that the petitioner was in poor health. That was on April 27, 1933. Some nine months later, on February 2, 1934, to be exact, the same intervenor accused the same petitioner for the third time of the same offense. The information was filed by the provincial fiscal of Pampanga in the justice of the peace court of Mexico. The petitioner was again arrested, again put up a bond of P4,000, and engaged the services of defense counsel. The case was dismissed on April 24, 1934, after due investigation, on the ground that the will alleged to have been falsified had already been probated and there was no evidence that the petitioner had forged the signature of the testatrix appearing thereon, but that, on the contrary, the evidence satisfactorily established the authenticity of the signature aforesaid. Dissatisfied with the result, the provincial fiscal, on May 9, 1934, moved in the Court of First Instance of Pampanga for reinvestigation of the case. The motion was granted on May 23, 1934, and, for the fourth time, the petitioner was arrested, filed a bond and engaged the services of counsel to handle his defense. The reinvestigation dragged on for almost a year until February 18, 1934, when the Court of First Instance ordered that the case be tried on the merits. The petitioner interposed a demurrer on November 25, 1935, on the ground that the will alleged to have been forged had already been probated. This demurrer was overruled on December 24, 1935, whereupon an exception was taken and a motion for reconsideration and notice of appeal were filed. The motion for reconsideration and the proposed appeal were denied on January 14, 1936. The case proceeded to trial, and forthwith petitioner moved to dismiss the case claiming again that the will alleged to have been forged had already been probated and, further, that the order probating the will is conclusive as to the authenticity and due execution thereof. The motion was overruled and the petitioner filed with the Court of Appeals a petition for certiorari with preliminary injunction to enjoin the trial court from further proceedings in the matter. The injunction was issued and thereafter, on June 19, 1937, the Court of Appeals denied the petition for certiorari, and dissolved the writ of preliminary injunction. Three justices dissented in a separate opinion. The case is now before this court for review on certiorari. Petitioner contends (1) that the probate of the will of his deceased wife is a bar to his criminal prosecution for the alleged forgery of the said will; and, (2) that he has been denied the constitutional right to a speedy trial. 1. Section 306 of our Code of Civil Procedure provides as to the effect of judgments. SEC. 306. Effect of judgment. The effect of a judgment or final order in an action or special proceeding before a court or judge of the Philippine Islands or of the United States, or of any State or Territory of the United States, having jurisdiction to pronounce the judgment or order, may be as follows. 1. In case of a judgment or order against a specific thing, or in respect to the probate of a will, or the administration of the estate of a deceased person, or in respect to the personal, political, or legal condition or relation of a particular person, the judgment or order is conclusive upon the title of the thing, the will or administration, or the condition or relation of the person Provided, That the probate of a will or granting of letters of administration shall only be prima facie evidence of the death of the testator or intestate. xxx xxx xxx

SEC. 625. Allowance Necessary, and Conclusive as to Execution. No will shall pass either the real or personal estate, unless it is proved and allowed in the Court of First Instance, or by appeal to the Supreme Court; and the allowance by the court of a will of real and personal estate shall be conclusive as to its due execution. (Emphasis ours.) (In Manahan vs. Manahan 58 Phil., 448, 451), we held: . . . The decree of probate is conclusive with respect to the due execution thereof and it cannot be impugned on any of the grounds authorized by law, except that of fraud, in any separate or independent action or proceeding. Sec. 625, Code of Civil Procedure; Castaeda vs. Alemany, 3 Phil., 426; Pimentel vs.Palanca, 5 Phil., 436; Sahagun vs. De Gorostiza, 7 Phil., 347; Limjuco vs. Ganara, 11 Phil., 393; Montaanovs. Suesa, 14 Phil., 676; in re Estate of Johnson, 39 Phil, 156; Riera vs. Palmaroli, 40 Phil., 105; Austria vs.Ventenilla, 21 Phil., 180; Ramirez vs. Gmur, 42 Phil., 855; and Chiong Jocsoy vs. Vano, 8 Phil., 119. In 28 R. C. L., p. 377, section 378, it is said. The probate of a will by the probate court having jurisdiction thereof is usually considered as conclusive as to its due execution and validity, and is also conclusive that the testator was of sound and disposing mind at the time when he executed the will, and was not acting under duress, menace, fraud, or undue influence,and that the will is genuine and not a forgery. (Emphasis ours.) As our law on wills, particularly section 625 of our Code of Civil Procedure aforequoted, was taken almost bodily from the Statutes of Vermont, the decisions of the Supreme Court of the State relative to the effect of the probate of a will are of persuasive authority in this jurisdiction. The Vermont statute as to the conclusiveness of the due execution of a probated will reads as follows. SEC. 2356. No will shall pass either real or personal estate, unless it is proved and allowed in the probate court, or by appeal in the county or supreme court; and the probate of a will of real or personal estate shall be conclusive as to its due execution. (Vermont Statutes, p. 451.) Said the Supreme Court of Vermont in the case of Missionary Society vs. Eells (68 Vt., 497, 504): "The probate of a will by the probate court having jurisdiction thereof, upon the due notice, is conclusive as to its due execution against the whole world. (Vt. St., sec. 2336; Fosters Exrs. vs. Dickerson, 64 Vt., 233.)" The probate of a will in this jurisdiction is a proceeding in rem. The provision of notice by Publication as a prerequisite to the allowance of a will is constructive notice to the whole world, and when probate is granted, the judgment of the court is binding upon everybody, even against the State. This court held in the case of Manalo vs. Paredes and Philippine Food Co. (47 Phil., 938): The proceeding for the probate of a will is one in rem (40 Cyc., 1265), and the court acquires jurisdiction over all the persons interested, through the publication of the notice prescribed by section 630 of the Code of Civil Procedure, and any order that may be entered therein is binding against all of them. Through the publication of the petition for the probate of the will, the court acquires jurisdiction over all such persons as are interested in said will; and any judgment that may be rendered after said proceeding is binding against the whole world.

(Emphasis ours.) Section 625 of the same Code is more explicit as to the conclusiveness of the due execution of a probate will. It says.

In Everrett vs. Wing (103 Vt., 488, 492), the Supreme Court of Vermont held. In this State the probate of a will is a proceeding in rem being in form and substance upon the will itself to determine its validity. The judgment determines the status of the instrument, whether it is or is not the will of the testator. When the proper steps required by law have been taken the judgment is binding upon everybody, and makes the instrument as to all the world just what the judgment declares it to be. (Woodruff vs. Taylor, 20 Vt., 65, 73; Burbeck vs. Little, 50 Vt., 713, 715; Missionary Society vs. Eells, 68 Vt., 497, 504; 35 Atl., 463.) The proceedings before the probate court are statutory and are not governed by common law rules as to parties or causes of action. (Holdrige vs. Holdriges Estate, 53 Vt., 546, 550; Purdy vs. Estate of Purdy, 67 Vt. 50, 55; 30 Atl., 695.) No process is issued against anyone in such proceedings, but all persons interested in determining the state or conditions of the instrument are constructively notified by the publication of notice as required by G. L. 3219. (Woodruff vs. Taylor, supra; In re Warners Estate 98 Vt., 254; 271; 127 Atl., 362.) Section 333, paragraph 4, of the Code of Civil Procedure establishes an incontrovertible presumption in favor of judgments declared by it to be conclusive. SEC. 333. Conclusive Presumptions. The following presumptions or deductions, which the law expressly directs to be made from particular facts, are deemed conclusive. xxx xxx xxx

It was the case of Rex vs. Buttery, supra, which induced the Supreme Court of Massachussetts in the case of Waters vs. Stickney (12 Allen 1; 90 Am. Dec., 122) also cited by the majority opinion, to hold that "according to later and sounder decisions, the probate, though conclusive until set aside of the disposition of the property, does not protect the forger from punishment." This was reproduced in 28 R.C.L., p. 376, and quoted in Barry vs. Walker (103 Fla., 533; 137 So., 711, 715), and Thompson vs. Freeman (149 So., 740, 742), also cited in support of the majority opinion of the Court of Appeals. The dissenting opinion of the Court of Appeals in the instant case under review makes a cursory study of the statutes obtaining in England, Massachussetts and Florida, and comes to the conclusion that the decisions cited in the majority opinion do not appear to "have been promulgated in the face of statutes similar to ours." The dissenting opinion cites Whartons Criminal Evidence (11th ed., sec. 831), to show that the probate of a will in England is only prima facie proof of the validity of the will (Op. Cit. quoting Marriot vs.Marriot, 93 English Reprint, 770); and 21 L.R.A. (pp. 686689 and note), to show that in Massachussetts there is no statute making the probate of a will conclusive, and that in Florida the statute(sec. 1810, Revised Statutes) makes the probate conclusive evidence as to the validity of the will with regard to personal, and prima facie as to real estate. The cases decided by the Supreme Court of Florida cited by the majority opinion, supra, refer to wills of both personal and real estate. The petitioner cites the case of State vs. McGlynn (20 Cal., 233, decided in 1862), in which Justice Norton of the Supreme Court of California, makes the following review of the nature of probate proceedings in England with respect to wills personal and real property. In England, the probate of wills of personal estate belongs to the Ecclesiastical Courts. No probate of a will relating to real estate is there necessary. The real estate, upon the death of the party seized, passes immediately to the devisee under the will if there be one; or if there be no will, to the heir at law. The person who thus becomes entitled takes possession. If one person claims to be the owner under a will, and another denies the validity of the will and claims to be the owner as heir at law, an action of ejectment is brought against the party who may be in possession by the adverse claimant; and on the trial of such an action, the validity of the will is contested, and evidence may be given by the respective parties as to the capacity of the testator to make a will, or as to any fraud practiced upon him, or as to the actual execution of it, or as to any other circumstance affecting its character as a valid devise of the real estate in dispute. The decision upon the validity of the will in such action becomes res adjudicata, and is binding and conclusive upon the parties to that action and upon any person who may subsequently acquire the title from either of those parties; but the decision has no effect upon other parties, and does not settle what may be called the status or character of the will, leaving it subject to be enforced as a valid will, or defeated as invalid, whenever other parties may have a contest depending upon it. A probate of a will of personal property, on the contrary, is a judicial determination of the character of the will itself. It does not necessarily or ordinarily arise from any controversy between adverse claimants, but is necessary in order to authorize a disposition of the personal estate in pursuance of its provisions. In case of any controversy between adverse claimants of the personal estate, the probate is given in evidence and is binding upon the parties, who are not at liberty to introduce any other evidence as to the validity of the will. The intervenors, on the other hand, attempt to show that the English law on wills is different from that stated in the case of State vs. McGlynn, supra, citing the following statutes. 1. The Wills Act, 1837 (7 Will. 4 E 1 Vict. c. 26). 2. The Court of Probate Act, 1857 (20 and 21 Vict. c. 77).

4. The judgment or order of a court, when declared by this code to be conclusive. Conclusive presumptions are inferences which the law makes so peremptory that it will not allow them to be overturned by any contrary proof however strong. (Brant vs. Morning Journal Assn., 80 N.Y.S., 1002, 1004; 81 App. Div., 183; see, also, Joslyn vs. Puloer, 59 Hun., 129, 140, 13 N.Y.S., 311.) The will in question having been probated by a competent court, the law will not admit any proof to overthrow the legal presumption that it is genuine and not a forgery. The majority decision of the Court of Appeals cites English decisions to bolster up its conclusion that "the judgment admitting the will to probate is binding upon the whole world as to the due execution and genuineness of the will insofar as civil rights and liabilities are concerned, but not for the purpose of punishment of a crime." The cases of Dominus Rex vs. Vincent, 93 English Reports, Full Reprint, 795, the first case being decided in 1721, were cited to illustrate the earlier English decisions to the effect that upon indictment for forging a will, the probating of the same is conclusive evidence in the defendants favor of its genuine character. Reference is made, however, to the cases of Rex vs. Gibson, 168 English Reports, Full Reprint, 836, footnote (a), decided in 1802, and Rex vs. Buttery and Macnamarra, 168 English Reports, Full Reprint, 836, decided in 1818, which establish a contrary rule. Citing these later cases, we find the following quotation from Black on Judgments, Vol. II, page 764. A judgment admitting a will to probate cannot be attacked collaterally although the will was forged; and a payment to the executor named therein of a debt due the decedent will discharge the same, notwithstanding the spurious character of the instrument probated. It has also been held that, upon an indictment for forging a will, the probate of the paper in question is conclusive evidence in the defendants favor of its genuine character. But this particular point has lately been ruled otherwise.

3. The Judicature Act, 1873 (36 and 37 Vict. c. 66). The Wills Act of 1837 provides that probate may be granted of "every instrumental purporting to be testamentary and executed in accordance with the statutory requirements . . . if it disposes of property, whether personal or real." The Ecclesiastical Courts which took charge of testamentary causes (Ewells Blackstone [1910], p. 460), were determined by the Court of Probate Act of 1857, and the Court of Probate in turn was, together with other courts, incorporated into the Supreme Court of Judicature, and transformed into the Probate Division thereof, by the Judicature Act of 1873. (Lord Halsbury, The Laws of England[1910], pp. 151156.) The intervenors overlook the fact, however, that the case of Rex vs. Buttery and Macnamarra, supra, upon which they rely in support of their theory that the probate of a forged will does not protect the forger from punishment, was decided long before the foregoing amendatory statutes to the English law on wills were enacted. The case of State vs. McGlynn may be considered, therefore, as more or less authoritative on the law of England at the time of the promulgation of the decision in the case of Rex vs. Buttery and Macnamarra. In the case of State vs. McGlynn, the Attorney General of California filed an information to set aside the probate of the will of one Broderick, after the lapse of one year provided by the law of California for the review of an order probating a will, in order that the estate may be escheated to the State of California for the review of an probated will was forged and that Broderick therefore died intestate, leaving no heirs, representatives or devisees capable of inheriting his estate. Upon these facts, the Supreme Court of California held. The fact that a will purporting to be genuine will of Broderick, devising his estate to a devisee capable of inheriting and holding it, has been admitted to probate and established as a genuine will by the decree of a Probate Court having jurisdiction of the case, renders it necessary to decide whether that decree, and the will established by it, or either of them, can be set aside and vacated by the judgment of any other court. If it shall be found that the decree of the Probate Court, not reversed by the appellate court, is final and conclusive, and not liable to be vacated or questioned by any other court, either incidentally or by any direct proceeding, for the purpose of impeaching it, and that so long as the probate stands the will must be recognized and admitted in all courts to be valid, then it will be immaterial and useless to inquire whether the will in question was in fact genuine or forged. (State vs. McGlynn, 20 Cal., 233; 81 Am. Dec., 118, 121.). Although in the foregoing case the information filed by the State was to set aside the decree of probate on the ground that the will was forged, we see no difference in principle between that case and the case at bar. A subtle distinction could perhaps be drawn between setting aside a decree of probate, and declaring a probated will to be a forgery. It is clear, however, that a duly probated will cannot be declared to be a forgery without disturbing in a way the decree allowing said will to probate. It is at least anomalous that a will should be regarded as genuine for one purpose and spurious for another. The American and English cases show a conflict of authorities on the question as to whether or not the probate of a will bars criminal prosecution of the alleged forger of the probate will. We have examined some important cases and have come to the conclusion that no fixed standard maybe adopted or drawn therefrom, in view of the conflict no less than of diversity of statutory provisions obtaining in different jurisdictions. It behooves us, therefore, as the court of last resort, to choose that rule most consistent with our statutory law, having in view the needed stability of property rights and the public interest in general. To be sure, we have seriously reflected upon the dangers of evasion from punishment of culprits deserving of the severity of the law in cases where, as here, forgery is discovered after the probate of the will and the prosecution is had before the prescription of the offense. By and large, however, the balance seems inclined in favor of the view that we have taken. Not only does the law surround the execution of the will with the

necessary formalities and require probate to be made after an elaborate judicial proceeding, but section 113, not to speak of section 513, of our Code of Civil Procedure provides for an adequate remedy to any party who might have been adversely affected by the probate of a forged will, much in the same way as other parties against whom a judgment is rendered under the same or similar circumstances. (Pecson vs.Coronel, 43 Phil., 358.)The aggrieved party may file an application for relief with the proper court within a reasonable time, but in no case exceeding six months after said court has rendered the judgment of probate, on the ground of mistake, inadvertence, surprise or excusable neglect. An appeal lies to review the action of a court of first instance when that court refuses to grant relief. (Banco Espaol Filipino vs. Palanca, 37 Phil., 921; Philippine Manufacturing Co. vs. Imperial, 47 Phil., 810; Samia vs. Medina, 56 Phil., 613.) After a judgment allowing a will to be probated has become final and unappealable, and after the period fixed by section 113 of the Code of Civil Procedure has expired, the law as an expression of the legislative wisdom goes no further and the case ends there. . . . The court of chancery has no capacity, as the authorities have settled, to judge or decide whether a will is or is not a forgery; and hence there would be an incongruity in its assuming to set aside a probate decree establishing a will, on the ground that the decree was procured by fraud, when it can only arrive at the fact of such fraud by first deciding that the will was a forgery. There seems, therefore, to be a substantial reason, so long as a court of chancery is not allowed to judge of the validity of a will, except as shown by the probate, for the exception of probate decrees from the jurisdiction which courts of chancery exercise in setting aside other judgments obtained by fraud. But whether the exception be founded in good reason or otherwise, it has become too firmly established to be disregarded. At the present day, it would not be a greater assumption to deny the general rule that courts of chancery may set aside judgments procured by fraud, than to deny the exception to that rule in the case of probate decrees. We must acquiesce in the principle established by the authorities, if we are unable to approve of the reason. Judge Story was a staunch advocate for the most enlarged jurisdiction of courts of chancery, and was compelled to yield to the weight of authority. He says "No other excepted case is known to exist; and it is not easy to discover the grounds upon which this exception stands, in point of reason or principle, although it is clearly settled by authority. (1 Storys Eq. Jur. sec. 440.)" (State vs. McGlynn, 20 Cal., 233; 81 Am. Dec., 118, 129. See, also, Tracy vs. Muir, 121 American State Reports, 118, 125.) We hold, therefore, that in view of the provisions of sections 306, 333 and 625 of our Code of Civil Procedure, criminal action will not lie in this jurisdiction against the forger of a will which had been duly admitted to probate by a court of competent jurisdiction. The resolution of the foregoing legal question is sufficient to dispose of the case. However, the other legal question with reference to the denial to the accused of his right to a speedy trial having been squarely raised and submitted, we shall proceed to consider the same in the light of cases already adjudicated by this court. 2. The Constitution of the Philippines provides that "In all criminal prosecutions the accused . . . shall enjoy the right . . . to have a speedy . . . trial. . . . (Art. III, sec. 1, par. 17. See, also, G.O. No. 58, sec. 15, No. 7.) Similar provisions are to be found in the Presidents Instructions to the Second Philippine Commission (par. 11), the Philippine Bill of July 1, 1902 (sec. 5, par. 2) and the Jones Act of August 29, 1916 (sec. 3, par. 2). The provisions in the foregoing organic acts appear to have been taken from similar provisions in the Constitution of the United States (6th Amendment) and those of the various states of the American Union. A similar injunction is contained in the Malolos Constitution (art. 8, Title IV), not to speak of other constitutions. More than once this court had occasion to set aside the proceedings in criminal cases to give effect to the constitutional injunction of speedy trial. (Conde vs. Judge of First

Instance and Fiscal of Tayabas [1923], 45 Phil., 173; Conde vs. Rivera and Unson[1924], 45 Phil., 650; People vs. Castaeda and Fernandez[1936]), 35 Off. Gaz., 1269; Kalaw vs. Apostol, Oct. 15, 1937, G.R. No. 45591; Esguerra vs. De la Costa, Aug. 30,1938, G.R. No. 46039.). In Conde vs. Rivera and Unson, supra, decided before the adoption of our Constitution, we said. Philippine organic and statutory law expressly guarantee that in all criminal prosecutions the accused shall enjoy the right to have a speedy trial. Aurelia Conde, like all other accused persons, has a right to a speedy trial in order that if innocent she may go free, and she has been deprived of that right in defiance of law. Dismissed from her humble position, and compelled to dance attendance on courts while investigations and trials are arbitrarily postponed without her consent, is palpably and openly unjust to her and a detriment to the public. By the use of reasonable diligence, the prosecution could have settled upon the appropriate information, could have attended to the formal preliminary examination, and could have prepared the case for a trial free from vexatious, capricious, and oppressive delays. In People vs. Castaeda and Fernandez, supra , this court found that the accused had not been given a fair and impartial trial. The case was to have been remanded to the court a quo for a new trial before an impartial judge. This step, however, was found unnecessary. A review of the evidence convinced this court that a judgment of conviction for theft, as charged, could not be sustained and, having in view the right to a speedy trial guaranteed by the Constitution to every person accused of crime, entered a judgment acquitting the accused, with costs de oficio. We said. . . . The Constitution, Article III, section 1, paragraph 17, guarantees to every accused person the right to a speedy trial. This criminal proceeding has been dragging on for almost five years now. The accused have twice appealed to this court for redress from the wrong that they have suffered at the hands of the trial court. At least one of them, namely Pedro Fernandez alias Piro, had been con-fined in prison from July 20, 1932 to November 27, 1934, for inability to post the required bond of P3,000 which was finally reduced to P300. The Government should be the last to set an example of delay and oppression in the administration of justice and it is the moral and legal obligation of this court to see that the criminal proceedings against the accused come to an end and that they be immediately dis-charged from the custody of the law. (Conde vs.Rivera and Unson, 45 Phil., 651.) In Kalaw vs. Apostol, supra, the petitioner invoked and this court applied and gave effect to the doctrines stated in the second Conde case, supra. In granting the writs prayed for, this court, after referring to the constitutional and statutory provisions guaranteeing to persons accused of crime the right to a speedy trial, said: Se infiere de los preceptos legales transcritos que todo acusado en causa criminal tiene derecho a ser juzgado pronta y publicamente. Juicio rapido significa un juicioque se celebra de acuerdo con la ley de procedimiento criminal y los reglamentos, libre de dilaciones vejatorias, caprichosas y opersivas (Burnett vs.State, 76 Ark., 295; 88S. W., 956; 113 AMSR, 94; Stewart vs. State, 13 Ark., 720; Peo. vs. Shufelt, 61 Mich., 237; 28 N. W., 79; Nixon vs. State, 10 Miss., 497; 41 AMD., 601; State vs. Cole, 4 Okl. Cr., 25; 109 P., 736; State vs. Caruthers, 1 Okl. Cr., 428; 98 P., 474; State vs. Keefe, 17 Wyo., 227, 98 p., 122;22 IRANS, 896; 17 Ann. Cas., 161). Segun los hechos admitidos resulta que al recurrente se le concedio vista parcial del asunto, en el Juzgado de Primera Instancia de Samar, solo despues de haber transcurrido ya mas de un ao y medio desde la presentacion de la primera querella y desde la recepcion de la causa en dicho Juzgado, y despues

de haberse transferido dos veces la vista delasunto sin su consentimiento. A esto debe aadirse que laprimera transferencia de vista era claramente injustificadaporque el motivo que se alego consistio unicamente en laconveniencia personal del ofendido y su abogado, no habiendose probado suficientemente la alegacion del primero de quese hallaba enfermo. Es cierto que el recurrente habia pedido que, en vez de sealarse a vista el asunto para el mayo de 1936, lo fuera para el noviembre del mismo ao; pero,aparte de que la razon que alego era bastante fuerte porquesu abogado se oponia a comparecer por compromisos urgentes contraidos con anterioridad y en tal circunstancia hubiera quedado indefenso si hubiese sido obligado a entraren juicio, aparece que la vista se pospuso por el Juzgado amotu proprio, por haber cancelado todo el calendario judicial preparado por el Escribano para el mes de junio. Declaramos, con visto de estos hechos, que al recurrents se leprivo de su derecho fundamental de ser juzgado prontamente. Esguerra vs. De la Costa, supra, was a petition for mandamus to compel the respondent judge of the Court of First Instance of Rizal to dismiss the complaint filed in a criminal case against the petitioner, to cancel the bond put up by the said petitioner and to declare the costs de oficio. In accepting the contention that the petitioner had been denied speedy trial, this court said: Consta que en menos de un ao el recurrente fue procesado criminalmente por el alegado delito de abusos deshonestos, en el Juzgado de Paz del Municipio de Cainta, Rizal. Como consecuencia de las denuncias que contra el se presentaron fue arrestado tres veces y para gozar de libertad provisional, en espera de los juicios, se vio obligado a prestartres fianzas por la suma de P1,000 cada una. Si no se da fin al proceso que ultimamente se ha incoado contra el recurrente la incertidumbre continuara cerniendose sobre el y las consiguientes molestias y preocupaciones continuaran igualmente abrumandole. El Titulo III, articulo 1, No. 17,de la Constitucion preceptua que en todo proceso criminalel acusado tiene derecho de ser juzgado pronta y publicamente. El Articulo 15, No. 7, de la Orden General No. 58 dispone asimismo que en las causas criminales el acusado tendra derecho a ser juzgado pronta y publicamente. Si el recurrente era realmente culpable del delito que se le imputo, tenia de todos modos derechos a que fuera juzgado pronta y publicamente y sin dilaciones arbitrarias y vejatorias. Hemos declarado reiteradamente que existe un remedio positivo para los casos en que se viola el derecho constitucional del acusado de ser juzgado prontamente. El acusado que esprivado de su derecho fundomental de ser enjuiciado rapidamente tiene derecho a pedir que se le ponga en libertad, si estuviese detenido, o a que la causa que pende contra el sea sobreseida definitivamente. (Conde contra Rivera y Unson, 45 Jur. Fil., 682; In the matter of Ford [1911], 160 Cal., 334; U. S. vs. Fox [1880], 3 Mont., 512; Kalaw contra Apostol, R. G. No. 45591, Oct. 15, 1937; Pueblo contra Castaeda y Fernandez, 35 Gac. Of., 1357.) We are again called upon to vindicate the fundamental right to a speedy trial. The facts of the present case may be at variance with those of the cases hereinabove referred to. Nevertheless, we are of the opinion that, under the circumstances, we should consider the substance of the right instead of indulging in more or less academic or undue factual differentiations. The petitioner herein has been arrested four times, has put up a bond in the sum of P4,000 and has engaged the services of counsel to undertake his defense an equal number of times. The first arrest was made upon a complaint filed by one of the intervenors herein for alleged falsification of a will which, sixteen months before, had been probated in court. This complaint, after investigation, was dismissed at the complainant's own request. The second arrest was made upon a complaint charging the same offense and this complaint, too, was dismissed at the behest of the complainant herself who alleged the quite startling ground that the petitioner was in poor health. The third arrest

was made following the filing of an information by the provincial fiscal of Pampanga, which information was dismissed, after due investigation, because of insufficiency of the evidence. The fourth arrest was made when the provincial fiscal secured a reinvestigation of the case against the petitioner on the pretext that he had additional evidence to present, although such evidence does not appear to have ever been presented. It is true that the provincial fiscal did not intervene in the case until February 2, 1934, when he presented an information charging the petitioner, for the third time, of the offense of falsification. This, however, does not matter. The prosecution of offenses is a matter of public interest and it is the duty of the government or those acting in its behalf to prosecute all cases to their termination without oppressive, capricious and vexatious delay. The Constitution does not say that the right to a speedy trial may be availed of only where the prosecution for crime is commenced and undertaken by the fiscal. It does not exclude from its operation cases commenced by private individuals. Where once a person is prosecuted criminally, he is entitled to a speedy trial, irrespective of the nature of the offense or the manner in which it is authorized to be commenced. In any event, even the actuations of the fiscal himself in this case is not entirely free from criticism. From October 27, 1932, when the first complaint was filed in the justice of the peace court of San Fernando, to February 2, 1934, when the provincial fiscal filed his information with the justice of the peace of Mexico, one year, three months and six days transpired; and from April 27, 1933, when the second criminal complaint was dismissed by the justice of the peace of Mexico, to February 2, 1934, nine months and six days elapsed. The investigation following the fourth arrest, made after the fiscal had secured a reinvestigation of the case, appears also to have dragged on for about a year. There obviously has been a delay, and considering the antecedent facts and circumstances within the knowledge of the fiscal, the delay may not at all be regarded as permissible. In Kalaw vs. Apostol, supra, we observed that the prosecuting officer all prosecutions for public offenses (secs. 1681 and 2465 of the Rev. Adm. Code), and that it is his duty to see that criminal cases are heard without vexatious, capricious and oppressive delays so that the courts of justice may dispose of them on the merits and determine whether the accused is guilty or not. This is as clear an admonition as could be made. An accused person is entitled to a trial at the earliest opportunity. (Sutherland on the Constitution, p. 664; United States vs. Fox, 3 Mont., 512.) He cannot be oppressed by delaying he commencement of trial for an unreasonable length of time. If the proceedings pending trial are deferred, the trial itself is necessarily delayed. It is not to be supposed, of course, that the Constitution intends to remove from the prosecution every reasonable opportunity to prepare for trial. Impossibilities cannot be expected or extraordinary efforts required on the part of the prosecutor or the court. As stated by the Supreme Court of the United States, "The right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances. It secures rights to a defendant. It does not preclude the rights of public justice." (Beavers vs. Haubert [1905], 198 U. S., 86; 25 S. Ct., 573; 49 Law. ed., 950, 954.). It may be true, as seems admitted by counsel for the intervenors, in paragraph 8, page 3 of his brief, that the delay was due to "the efforts towards reaching an amicable extrajudicial compromise," but this fact, we think, casts doubt instead upon the motive which led the intervenors to bring criminal action against the petitioner. The petitioner claims that the intention of the intervenors was to press upon settlement, with the continuous threat of criminal prosecution, notwithstanding the probate of the will alleged to have been falsified. Argument of counsel for the petitioner in this regard is not without justification. Thus after the filing of the second complaint with the justice of the peace court of Mexico, complainant herself, as we have seen, asked for dismissal of the complaint, on the ground that "el acusado tenia la salud bastante delicada," and, apparently because of failure to arrive at any settlement, she decided to renew her complaint. Counsel for the intervenors contend and the contention is sustained by the Court of Appeals that the petitioner did not complain heretofore of the denial of his constitutional right to a speedy trial. This is a mistake. When the petitioner, for the fourth time, was ordered arrested by the Court of First Instance of Pampanga, he moved for reconsideration of the

order of arrest, alleging, among other things, "Que por estas continuas acusaciones e investigaciones, el acusado compareciente no obstante su mal estado de salud desde el ao 1932 en que tuvo que ser operado por padecer de tuberculosis ha tenido que sostener litigios y ha sufrido la mar de humiliaciones y zozobras y ha incudo en enormes gastos y molestias y ha desatendido su quebrantada salud." The foregoing allegation was inserted on page 6 of the amended petition for certiorari presented to the Court of Appeals. The constitutional issue also appears to have been actually raised and considered in the Court of Appeals. In the majority opinion of that court, it is stated: Upon the foregoing facts, counsel for the petitioner submits for the consideration of this court the following questions of law: First, that the respondent court acted arbitrarily and with abuse of its authority, with serious damage and prejudice to the rights and interests of the petitioner, in allowing that the latter be prosecuted and arrested for the fourth time, and that he be subjected, also for the fourth time, to a preliminary investigation for the same offense, hereby converting the court into an instrument of oppression and vengeance on the part of the alleged offended parties, Rosario Basa et al.; . . . . And in the dissenting opinion, we find the following opening paragraph: We cannot join in a decision declining to stop a prosecution that has dragged for about five years and caused the arrest on four different occasions of a law abiding citizen for the alleged offense of falsifying a will that years be competent jurisdiction. From the view we take of the instant case, the petitioner is entitled to have the criminal proceedings against him quashed. The judgment of the Court of Appeals is hereby reversed, without pronouncement regarding costs. So ordered. Avancea, C.J., Villa-Real, Imperial, Diaz and Concepcion, JJ., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-6620 January 11, 1912

ALEJANDRA AUSTRIA, petitioner-appellee, vs. RAMON VENTENILLA, ET AL., opponents-appellants. Addison B. Ritchey, for appellants. Pedro Ma. Sison, for appellee. JOHNSON, J.: It appears from the record that one Antonio Ventenilla, died on the 13th of March, 1909, in the municipality of Mangatarem, Province of Pangasinan, leaving a will which, after due notice in accordance with the provisions of the law, was duly admitted to probate on the 14th of April, 1909, and the said Doa Alejandra Austria was appointed administratrix of his estate, by order of the Honorable James C. Jenkins, judge of the Court of First Instance of the Province of Pangasinan. On the 30th day of July, 1909, the said administratrix (Doa Alejandra Austria) with will annexed, presented a report of her administration of said estate, petitioned the court, after due notification to all of the parties interested, to distribute the estate in accordance with the will and the law.

So far as the record show no action was taken upon said petition until the 5th day of October, 1910. On the 6th day of August, 1910, the said opponents, through their attorney, A. B. Ritchey, presented the following petition, asking that the will of the said Antonio Ventenilla be annulled: PETITION FOR ANNULMENT OF A WILL. Now come Don Ramon Ventenilla, Eulalio Soriano V., Domingo Soriano, Carmen Rosario, Maria Ventenilla, and Oliva Dizon to impugn the instrument to this court, said to be the last will and testament of the said deceased, on the following grounds: That before his death the deceased always intended to distribute his property in equal shares among his wife and his brothers and their representatives, and often expressed such intention before executing the instrument herein submitted, and after executing it often declared that he had distributed the same in the manner and aforesaid; That the deceased could not read or write Spanish and that therefore on the date of executing said instrument he did not know what the same contained except through translation; That the said instrument was not translated to the testator, or if so, it was not correctly translated, and that said deceased never intended to execute it as his last will and testament in the manner and form of the instrument herein submitted, and that at the time of his death he thought that the instrument executed clearly ordered the distribution in the manner aforesaid; That by reason of the fraud and deceit practiced upon the testator and a lack of a good translation, the herein submitted is null and void; That the tenth paragraph of said instrument is null because of its obscurity and ambiguity and is in plain contradiction to the proceeding paragraphs, and that the other paragraph have more force and weight; Therefore, the petitioners pray the court: (1) That the testamentary provisions of the will of the deceased Antonio Ventenilla be declared null and void; that the inheritance of the said deceased be declared intestate; that his window and Don Hemorgenes Mendoza be appointed administrators under sufficient bond to protect the interest of the heirs and the other interest parties; (2) That the will be amended, in case the court does not see fit to annul it, by declaring the tenthparagraph null; (3) That they be further granted any other relief which appear just and equitable to the court. Lingayen, P. I., August 6, 1910. (Sgd.) A. B. Attorney for petitioners. Ritchey,

the law, until more than fifteen months had expired from the date on which the lower court duly admitted said will to probate. Section 625 of the Code of Procedure in Civil Actions provides that: No will shall either the real or personal estate unless it is proved and allowed in the Court of First Instance or by appeal to the Supreme Court; and the allowance by the court of a will of real and personal estate shall be conclusive as to its due execution. This court has held, under the provision of this section, that "the probate of a will is conclusive as to its due execution, and as to the testamentary capacity of the testator." (Castaeda vs. Alemany, 3 Phil. Rep., 426; Pimentel vs. Palanca, 5 Phil. Rep., 436; Sahagun vs. Gorostiza, 7 Phil. Rep., 347; Chiong Joc-Soy vs. Vao, 8 Phil. Rep., 119; Sanches vs. Pascual, 11 Phil. Rep., 395; Montaano vs. Suesa, 14 Phil. Rep., 676.) When no appeal is taken from an order probating a will, the heirs can not, in subsequent litigation in the same proceedings, raise question relating to its due execution. (Chong Joc-Soy vs. Vao et al., 8 Phil. Rep., 119.) The opponents not having appealed from the order admitting the will to probate, as they had a right to do, that order is final and conclusive, (Pimentel vs. Palanca, supra) unless some fraud sufficient to vitiate the proceedings is discovered. In the present case, however, the alleged fraud, in view of all the facts contained in the record, in our opinion, is not sufficiently proved to justify a reopening of the probate of the will in question, especially in view of the long delay of the parties interested. The said section 625 was evidently taken from section 2356 of the Statutes of Vermont. In most of the states of the United States certain number of months is given to the interested parties to appeal from an order of the court admitting to probate a will. (In the matter of the estate of Giovanni Sbarboro, 63 Cal., 5; Thompson vs. Samson, 64 Cal., 330; In the matter of the estate of Richard T. Maxell, 74 Cal., 387; Wetherbee et al. vs. Chase, 57 Vt., 347.) Under said section 625 and the decisions of the court, it seems that the only time given the parties who are displeased with the order admitting a will to probate, is the time given for appeals in ordinary actions. Without deciding whether or not the order admitting a will to probate can be open for fraud, after the time allowed for an appeal has expired, we hold in the present case simply that the showing as to fraud is not sufficient to justify a reopening of the proceedings. The judgment of the lower court is, therefore, hereby affirmed with costs. Torres, Mapa, Moreland and Trent, JJ., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 38050 September 22, 1933 In the matter of the will of Donata Manahan. TIBURCIA MANAHAN, petitioner-appellee, vs. ENGRACIA MANAHAN, opponent-appellant. J. Fernando Rodrigo for appellant. Heraclio H. del Pilar for appellee. IMPERIAL, J.: This is an appeal taken by the appellant herein, Engracia Manahan, from the order of the Court of the First Instance of Bulacan dated July 1, 1932, in the matter of the will of the deceased Donata Manahan, special

It will be noted that the opponents made no effort to question the legality of he will, even though legal notice had been given in accordance with

proceedings No. 4162, denying her motion for reconsideration and new trial filed on May 11, 1932. The fact in the case are as follows: On August 29, 1930, Tiburcia Manahan instituted special proceedings No. 4162, for the probate of the will of the deceased Donata Manahan, who died in Bulacan, Province of Bulacan, on August 3, 1930. The petitioner herein, niece of the testatrix, was named the executrix in said will. The court set the date for the hearing and the necessary notice required by law was accordingly published. On the day of the hearing of the petition, no opposition thereto was filed and, after the evidence was presented, the court entered the decree admitting the will to probate as prayed for. The will was probated on September 22, 1930. The trial court appointed the herein petitioner executrix with a bond of P1,000, and likewise appointed the committed on claims and appraisal, whereupon the testamentary proceedings followed the usual course. One year and seven months later, that is, on My 11, 1932, to be exact, the appellant herein filed a motion for reconsideration and a new trial, praying that the order admitting the will to probate be vacated and the authenticated will declared null and void ab initio. The appellee herein, naturally filed her opposition to the petition and, after the corresponding hearing thereof, the trial court erred its over of denial on July 1, 1932. Engracia Manahan, under the pretext of appealing from this last order, likewise appealed from the judgment admitting the will to probate. In this instance, the appellant assigns seven (7) alleged errors as committed by the trial court. Instead of discussing them one by one, we believe that, essentially, her claim narrows down to the following: (1) That she was an interested party in the testamentary proceedings and, as such, was entitled to and should have been notified of the probate of the will; (2) that the court, in its order of September 22, 1930, did not really probate the will but limited itself to decreeing its authentication; and (3) that the will is null and void ab initio on the ground that the external formalities prescribed by the Code of Civil Procedure have not been complied with in the execution thereof. The appellant's first contention is obviously unfounded and untenable. She was not entitled to notification of the probate of the will and neither had she the right to expect it, inasmuch as she was not an interested party, not having filed an opposition to the petition for the probate thereof. Her allegation that she had the status of an heir, being the deceased's sister, did not confer on her the right to be notified on the ground that the testatrix died leaving a will in which the appellant has not been instituted heir. Furthermore, not being a forced heir, she did not acquire any successional right. The second contention is puerile. The court really decreed the authentication and probate of the will in question, which is the only pronouncement required of the trial court by the law in order that the will may be considered valid and duly executed in accordance with the law. In the phraseology of the procedural law, there is no essential difference between the authentication of a will and the probate thereof. The words authentication and probate are synonymous in this case. All the law requires is that the competent court declared that in the execution of the will the essential external formalities have been complied with and that, in view thereof, the document, as a will, is valid and effective in the eyes of the law. The last contention of the appellant may be refuted merely by stating that, once a will has been authenticated and admitted to probate, questions relative to the validity thereof can no more be raised on appeal. The decree of probate is conclusive with respect to the due execution thereof and it cannot impugned on any of the grounds authorized by law, except that of fraud, in any separate or independent action or proceedings (sec. 625, Code of Civil Procedure; Castaeda vs. Alemany, 3 Phil., 426; Pimentel vs. Palanca, 5 Phil., 436; Sahagun vs. De Gorostiza, 7 Phil., 347; Limjuco vs. Ganara, 11 Phil., 393; Montaano vs. Suesa, 14 Phil., 676; In re Estate of Johnson, 39 Phil., 156; Riera vs. Palmaroli, 40 Phil., 105; Austria vs. Ventenilla, 21 Phil., 180; Ramirez vs. Gmur, 42 Phil., 855; and Chiong Joc-Soy vs. Vao, 8 Phil., 119). But there is another reason which prevents the appellant herein from successfully maintaining the present action and it is that inasmuch as the proceedings followed in a testamentary case are in rem, the trial court's decree admitting the will to probate was effective and conclusive against her, in accordance with the provisions of section 306 of the said Code of Civil Procedure which reads as follows: SEC. 306. EFFECT OF JUDGMENT. . . . .

1. In case of a judgment or order against a specific thing, or in respect to the probate of a will, or the administration of the estate of a deceased person, or in respect to the personal, political, or legal condition or relation of a particular person the judgment or order is conclusive upon the title of the thing, the will or administration, or the condition or relation of the person: Provided, That the probate of a will or granting of letters of administration shall only be prima facie evidence of the death of the testator or intestate; . . . . On the other hand, we are at a loss to understand how it was possible for the herein appellant to appeal from the order of the trial court denying her motion for reconsideration and a new trial, which is interlocutory in character. In view of this erroneous interpretation, she succeeded in appealing indirectly from the order admitting the will to probate which was entered one year and seven months ago. Before closing, we wish to state that it is not timely to discuss herein the validity and sufficiency of the execution of the will in question. As we have already said, this question can no more be raised in this case on appeal. After due hearing, the court found that the will in question was valid and effective and the order admitting it to probate, thus promulgated, should be accepted and respected by all. The probate of the will in question now constitutes res judicata. Wherefore, the appeal taken herein is hereby dismissed, with costs against the appellant. So ordered. Avancea, C.J., Malcolm, Villa-Real, and Hull, JJ., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-48840 December 29, 1943 ERNESTO M. GUEVARA, petitioner-appellant, vs. ROSARIO GUEVARA and her husband PEDRO BUISON, respondent-appellees. Primacias, Abad, Mencias & Castillo for appellant. Pedro C. Quinto for appellees. OZAETA, J.: Ernesto M. Guevarra and Rosario Guevara, ligitimate son and natural daughter, respectively, of the deceased Victorino L. Guevara, are litigating here over their inheritance from the latter. The action was commenced on November 12, 1937, by Rosario Guevara to recover from Ernesto Guevara what she claims to be her strict ligitime as an acknowledged natural daughter of the deceased to wit, a portion of 423,492 square meters of a large parcel of land described in original certificate of title No. 51691 of the province of Pangasinan, issued in the name of Ernesto M. Guervara and to order the latter to pay her P6,000 plus P2,000 a year as damages for withholding such legitime from her. The defendant answered the complaint contending that whatever right or rights the plaintiff might have had, had been barred by the operation of law. It appears that on August 26, 1931, Victorino L. Guevara executed a will (exhibit A), apparently with all the formalities of the law, wherein he made the following bequests: To his stepdaughter Candida Guevara, a pair of earrings worth P150 and a gold chain worth P40; to his son Ernesto M. Guevara, a gold ring worth P180 and all the furniture, pictures, statues, and other religious objects found in the residence of the testator in Poblacion Sur, Bayambang, Pangasinan; "a mi hija Rosario Guevara," a pair of earrings worth P120; to his stepson Piuo Guevara, a ring worth P120; and to his wife by second marriage, Angustia Posadas, various pieces of jewelry worth P1,020. He also made the following devises: "A mis hijos Rosario Guevara y Ernesto M. Guevara y a mis hijastros, Vivencio, Eduviges, Dionisia, Candida y Pio, apellidados Guevara," a residential lot with its improvements situate in the town of Bayambang, Pangasinan, having an area of 960 square meters and assessed at P540; to his wife Angustia Posadas he confirmed the donation propter nuptias theretofore made by him to her of a portion of 25 hectares of the large parcel of land of 259-

odd hectares described in plan Psu-66618. He also devised to her a portion of 5 hectares of the same parcel of land by way of complete settlement of her usufructurary right.1awphil.net He set aside 100 hectares of the same parcel of land to be disposed of either by him during his lifetime or by his attorney-in-fact Ernesto M. Guevara in order to pay all his pending debts and to degray his expenses and those of his family us to the time of his death. The remainder of said parcel of land his disposed of in the following manner: (d). Toda la porcion restante de mi terreno arriba descrito, de la extension superficial aproximada de ciento veintinueve (129) hectareas setenta (70) areas, y veiticinco (25) centiares, con todas sus mejoras existentes en la misma, dejo y distribuyo, pro-indiviso, a mis siguientes herederos como sigue: A mi hijo legitimo, Ernesto M. Guevara, ciento ocho (108) hectareas, ocho (8) areas y cincuenta y cuatro (54) centiareas, hacia la parte que colinda al Oeste de las cien (100) hectareas referidas en el inciso ( a) de este parrafo del testamento, como su propiedad absoluta y exclusiva, en la cual extension superficial estan incluidas cuarenta y tres (43) hectareas, veintitres (23) areas y cuarenta y dos (42) centiareas que le doy en concepto de mejora. A mi hija natural reconocida, Rosario Guevara, veintiun (21) hectareas, sesenta y un (61) areas y setenta y un (71) centiareas, que es la parte restante. Duodecimo. Nombro por la presente como Albacea Testamentario a mi hijo Ernesto M. Guevara, con relevacion de fianza. Y una vez legalizado este testamento, y en cuanto sea posible, es mi deseo, que los herederos y legatarios aqui nombrados se repartan extrajudicialmente mis bienes de conformidad con mis disposiciones arriba consignadas. Subsequently, and on July 12, 1933, Victorino L. Guevarra executed whereby he conveyed to him the southern half of the large parcel of land of which he had theretofore disposed by the will above mentioned, inconsideration of the sum of P1 and other valuable considerations, among which were the payment of all his debts and obligations amounting to not less than P16,500, his maintenance up to his death, and the expenses of his last illness and funeral expenses. As to the northern half of the same parcel of land, he declared: "Hago constar tambien que reconozco a mi referido hijo Ernesto M. guevara como dueo de la mitad norte de la totalidad y conjunto de los referidos terrenos por haberlos comprado de su propio peculio del Sr. Rafael T. Puzon a quien habia vendido con anterioridad." On September 27, 1933, final decree of registration was issued in land registration case No. 15174 of the Court of First Instance of Pangasinan, and pursuant thereto original certificate of title No. 51691 of the same province was issued on October 12 of the same year in favor of Ernesto M. Guevara over the whole parcel of land described in the deed of sale above referred to. The registration proceeding had been commenced on November 1, 1932, by Victorino L. Guevara and Ernesto M. Guevara as applicants, with Rosario, among others, as oppositor; but before the trial of the case Victorino L. Guevara withdrew as applicant and Rosario Guevara and her co-oppositors also withdrew their opposition, thereby facilitating the issuance of the title in the name of Ernesto M. Guevara alone. On September 27, 1933, Victorino L. Guevarra died. His last will and testament, however, was never presented to the court for probate, nor has any administration proceeding ever been instituted for the settlement of his estate. Whether the various legatees mentioned in the will have received their respective legacies or have even been given due notice of the execution of said will and of the dispositions therein made in their favor, does not affirmatively appear from the record of this case. Ever since the death of Victorino L. Guevara, his only legitimate son Ernesto M. Guevara appears to have possessed the land adjudicated to him in the registration proceeding and to have disposed of various portions thereof for the purpose of paying the debts left by his father. In the meantime Rosario Guevara, who appears to have had her father's last will and testament in her custody, did nothing judicially to invoke the testamentary dispositions made therein in her favor, whereby the testator acknowledged her as his natural daughter and, aside from certain legacies and bequests, devised to her a portion of 21.6171 hectares of the large

parcel of land described in the will. But a little over four years after the testor's demise, she (assisted by her husband) commenced the present action against Ernesto M. Guevara alone for the purpose hereinbefore indicated; and it was only during the trial of this case that she presented the will to the court, not for the purpose of having it probated but only to prove that the deceased Victirino L. Guevara had acknowledged her as his natural daughter. Upon that proof of acknowledgment she claimed her share of the inheritance from him, but on the theory or assumption that he died intestate, because the will had not been probated, for which reason, she asserted, the betterment therein made by the testator in favor of his legitimate son Ernesto M. Guevara should be disregarded. Both the trial court and the Court of appeals sustained that theory. Two principal questions are before us for determination: (1) the legality of the procedure adopted by the plaintiff (respondent herein) Rosario Guevara; and (2) the efficacy of the deed of sale exhibit 2 and the effect of the certificate of title issued to the defendant (petitioner herein) Ernesto M. Guevara. I We cannot sanction the procedure adopted by the respondent Rosario Guevara, it being in our opinion in violation of procedural law and an attempt to circumvent and disregard the last will and testament of the decedent. The Code of Civil Procedure, which was in force up to the time this case was decided by the trial court, contains the following pertinent provisions: Sec. 625. Allowance Necessary, and Conclusive as to Execution. No will shall pass either the real or personal estate, unless it is proved and allowed in the Court of First Instance, or by appeal to the Supreme Court; and the allowance by the court of a will of real and personal estate shall be conclusive as to its due execution. Sec. 626. Custodian of Will to Deliver. The person who has the custody of a will shall, within thirty days after he knows of the death of the testator, deliver the will into the court which has jurisdiction, or to the executor named in the will. Sec. 627. Executor to Present Will and Accept or Refuse Trust. A person named as executor in a will, shall within thirty days after he knows of the death of the testor, or within thirty days after he knows that he is named executor, if he obtained such knowledge after knowing of the death of the testor, present such will to the court which has jurisdiction, unless the will has been otherwise returned to said court, and shall, within such period, signify to the court his acceptance of the trust, or make known in writing his refusal to accept it. Sec. 628. Penalty. A person who neglects any of the duties required in the two proceeding sections, unless he gives a satisfactory excuse to the court, shall be subject to a fine not exceeding one thousand dollars. Sec. 629. Person Retaining Will may be Committed. If a person having custody of a will after the death of the testator neglects without reasonable cause to deliver the same to the court having jurisdiction, after notice by the court so to do, he may be committed to the prison of the province by a warrant issued by the court, and there kept in close confinement until he delivers the will. The foregoing provisions are now embodied in Rule 76 of the new Rules of Court, which took effect on July 1, 1940. The proceeding for the probate of a will is one in rem, with notice by publication to the whole world and with personal notice to each of the known heirs, legatees, and devisees of the testator (section 630, C. c. P., and sections 3 and 4, Rule 77). Altho not contested (section 5, Rule 77), the due execution of the will and the fact that the testator at the time of its execution was of sound and disposing mind and not acting under duress, menace, and undue influence or fraud, must be proved to the satisfaction of the court, and only then may the will be legalized and given effect by means of a certificate of its allowance, signed by the judge and attested by the seal of the court; and when the will devises real property, attested copies thereof and of the certificate of allowance must be recorded in the register of deeds of the province in which the land lies. (Section 12, Rule 77, and section 624, C. C. P.) It will readily be seen from the above provisions of the law that the presentation of a will to the court for probate is mandatory and its allowance by the court is essential and indispensable to its efficacy. To assure and compel the probate of will, the law punishes a person who

neglects his duty to present it to the court with a fine not exceeding P2,000, and if he should persist in not presenting it, he may be committed to prision and kept there until he delivers the will. The Court of Appeals took express notice of these requirements of the law and held that a will, unless probated, is ineffective. Nevertheless it sanctioned the procedure adopted by the respondent for the following reasons: The majority of the Court is of the opinion that if this case is dismissed ordering the filing of testate proceedings, it would cause injustice, incovenience, delay, and much expense to the parties, and that therefore, it is preferable to leave them in the very status which they themselves have chosen, and to decide their controversy once and for all, since, in a similar case, the Supreme Court applied that same criterion (Leao vs. Leao, supra), which is now sanctioned by section 1 of Rule 74 of the Rules of Court. Besides, section 6 of Rule 124 provides that, if the procedure which the court ought to follow in the exercise of its jurisdiction is not specifically pointed out by the Rules of Court, any suitable process or mode of procedure may be adopted which appears most consistent to the spirit of the said Rules. Hence, we declare the action instituted by the plaintiff to be in accordance with law. Let us look into the validity of these considerations. Section 1 of Rule 74 provides as follows: Section 1. Extrajudicial settlement by agreement between heirs. If the decedent left no debts and the heirs and legatees are all of age, or the minors are represented by their judicial guardians, the parties may, without securing letters of administration, divide the estate among themselves as they see fit by means of a public instrument filed in the office of the register of deeds, and should they disagree, they may do so in an ordinary action of partition. If there is only one heir or one legatee, he may adjudicate to himself the entire estate by means of an affidavit filed in the office of the register of deeds. It shall be presumed that the decedent left no debts if no creditor files a petition for letters of administration within two years after the death of the decedent. That is a modification of section 596 of the Code of Civil Procedure, which reads as follows: Sec. 596. Settlement of Certain Intestates Without Legal Proceedings. Whenever all the heirs of a person who died intestate are of lawful age and legal capacity and there are no debts due from the estate, or all the debts have been paid the heirs may, by agreement duly executed in writing by all of them, and not otherwise, apportion and divide the estate among themselves, as they may see fit, without proceedings in court. The implication is that by the omission of the word "intestate" and the use of the word "legatees" in section 1 of Rule 74, a summary extrajudicial settlement of a deceased person's estate, whether he died testate or intestate, may be made under the conditions specified. Even if we give retroactive effect to section 1 of Rule 74 and apply it here, as the Court of Appeals did, we do not believe it sanctions the nonpresentation of a will for probate and much less the nullification of such will thru the failure of its custodian to present it to the court for probate; for such a result is precisely what Rule 76 sedulously provides against. Section 1 of Rule 74 merely authorizes the extrajudicial or judicial partition of the estate of a decedent "without securing letter of administration." It does not say that in case the decedent left a will the heirs and legatees may divide the estate among themselves without the necessity of presenting the will to the court for probate. The petition to probate a will and the petition to issue letters of administration are two different things, altho both may be made in the same case. the allowance of a will precedes the issuance of letters testamentary or of administration (section 4, Rule 78). One can have a will probated without necessarily securing letters testamentary or of administration. We hold that under section 1 of Rule 74, in relation to Rule 76, if the decedent left a will and no debts and the heirs and legatees desire to make an extrajudicial partition of the estate, they must first present that will to the court for probate and divide the estate in accordance with the will. They may not disregard the provisions of the will unless those provisions are contrary to law. Neither may they so away with the presentation of the will to the court for probate, because such suppression of the will is contrary to law and public policy. The law enjoins the probate of the will and public policy requires it, because unless the will is probated and notice thereof given to the whole world, the right of a person to dispose of his property by will may be rendered

nugatory, as is attempted to be done in the instant case. Absent legatees and devisees, or such of them as may have no knowledge of the will, could be cheated of their inheritance thru the collusion of some of the heirs who might agree to the partition of the estate among themselves to the exclusion of others. In the instant case there is no showing that the various legatees other than the present litigants had received their respective legacies or that they had knowledge of the existence and of the provisions of the will. Their right under the will cannot be disregarded, nor may those rights be obliterated on account of the failure or refusal of the custodian of the will to present it to the court for probate. Even if the decedent left no debts and nobdy raises any question as to the authenticity and due execution of the will, none of the heirs may sue for the partition of the estate in accordance with that will without first securing its allowance or probate by the court, first, because the law expressly provides that "no will shall pass either real or personal estate unless it is proved and allowed in the proper court"; and, second, because the probate of a will, which is a proceeding in rem, cannot be dispensed with the substituted by any other proceeding, judicial or extrajudicial, without offending against public policy designed to effectuate the testator's right to dispose of his property by will in accordance with law and to protect the rights of the heirs and legatees under the will thru the means provided by law, among which are the publication and the personal notices to each and all of said heirs and legatees. Nor may the court approve and allow the will presented in evidence in such an action for partition, which is one in personam, any more than it could decree the registration under the Torrens system of the land involved in an ordinary action for reinvindicacion or partition. We therefore believe and so hold that section 1 of Rule 74, relied upon by the Court of Appeals, does not sanction the procedure adopted by the respondent. The case of Leao vs. Leao (25 Phil., 180), cited by the Court of Appeals, like section 1 of Rule 74, sanctions the extrajudicial partition by the heirs of the properties left by a decedent, but not the nonpresentation of a will for probate. In that case one Paulina Ver executed a will on October 11, 1902, and died on November 1, 1902. Her will was presented for probate on November 10, 1902, and was approved and allowed by the Court on August 16, 1904. In the meantime, and on November 10, 1902, the heirs went ahead and divided the properties among themselves and some of them subsequently sold and disposed of their shares to third persons. It does not affirmatively appear in the decision in that case that the partition made by the heirs was not in accordance with the will or that they in any way disregarded the will. In closing the case by its order dated September 1, 1911, the trial court validated the partition, and one of the heirs, Cunegunda Leao, appealed. In deciding the appeal this Court said: The principal assignment of error is that the lower court committed an error in deciding that the heirs and legatees of the estate of Da. Paulina Ver had voluntarily divided the estate among themselves. In resolving that question this Court said: In view of the positive finding of the judge of the lower court that there had been a voluntary partition of the estate among the heirs and legatees, and in the absence of positive proof to the contrary, we must conclude that the lower court had some evidence to support its conclusion. Thus it will be seen that as a matter of fact no question of law was raised and decided in that case. That decision cannot be relied upon as an authority for the unprecedented and unheard of procedure adopted by the respondent whereby she seeks to prove her status as an acknowledged natural child of the decedent by his will and attempts to nullify and circumvent the testamentary dispositions made by him by not presenting the will to the court for probate and by claiming her legitime as an acknowledged natural child on the basis of intestacy; and that in the face of express mandatory provisions of the law requiring her to present the will to the court for probate. In the subsequent case of Riosa vs. Rocha (1926), 48 Phil. 737, this Court departed from the procedure sanctioned by the trial court and impliedly

approved by this Court in the Leao case, by holding that an extrajudicial partition is not proper in testate succession. In the Riosa case the Court, speaking thru Chief Justice Avancea, held: 1. EXTRAJUDICIAL PARTITION; NOT PROPER IN TESTATE SUCCESSION. Section 596 of the Code of Civil Procedure, authorizing the heirs of a person who dies intestate to make extrajudicial partition of the property of the deceased, without going into any court of justice, makes express reference to intestate succession, and therefore excludes testate succession.

M. Guevara the southern half of Victorino L. Guevara's hacienda of 259odd hectares in consideration of P1 and other valuable considerations therein mentioned; and (b) insofar as it declares that Ernesto M. Guevara became the owner of the northern half of the same hacienda by repurchasing it with his own money from Rafael T. Puzon. A. As to the conveyance of the southern half of the hacienda to Ernesto M. Guevara in consideration of the latter's assumption of the obligation to pay all the debts of the deceased, the Court of Appeals found it to be valid and efficacious because: "(a) it has not been proven that the charges imposed as a condition is [are] less than the value of the property; and ( b) neither has it been proven that the defendant did not comply with the conditions imposed upon him in the deed of transfer." As a matter of fact the Court of Appeals found" "It appears that the defendant has been paying the debts left by his father. To accomplish this, he had to alienate considerable portions of the above-mentioned land. And we cannot brand such alienation as anomalous unless it is proven that they have exceeded the value of what he has acquired by virtue of the deed of July 12, 1933, and that of his corresponding share in the inheritance." The finding of the Court of Appeals on this aspect of the case is final and conclusive upon the respondent, who did not appeal therefrom.

2. ID.; EFFECTS OF; TESTATE SUCCESSION. In the instant case, which is a testate succession, the heirs made an extrajudicial partition of the estate and at the same time instituted proceeding for the probate of the will and the administration of the estate. When the time came for making the partition, they submitted to the court the extrajudicial partition previously made by them, which the court approved. Held: That for the purposes of the reservation and the rights and obligations created thereby, in connection with the relatives benefited, the property must not be deemed transmitted to the heirs from the time the extrajudicial partition was made, but from the time said partition was approved by the court. (Syllabus.) The Court of Appeals also cites section 6 of Rule 124, which provides that if the procedure which the court ought to follow in the exercise of its jurisdiction is not specifically pointed out by the Rules of Court, any suitable process for mode of proceeding may be adopted which appears most conformable to the spirit of the said Rules. That provision is not applicable here for the simple reason that the procedure which the court ought to follow in the exercise of its jurisdiction is specifically pointed out and prescribed in detail by Rules 74, 76, and 77 of the Rules of Court. The Court of Appeals also said "that if this case is dismissed, ordering the filing of testate proceedings, it would cause injustice, inconvenience, delay, and much expense to the parties." We see no injustice in requiring the plaintiff not to violate but to comply with the law. On the contrary, an injustice might be committed against the other heirs and legatees mentioned in the will if the attempt of the plaintiff to nullify said will by not presenting it to the court for probate should be sanctioned. As to the inconvenience, delay, and expense, the plaintiff herself is to blame because she was the custodian of the will and she violated the duty imposed upon her by sections 2, 4, and 5 of Rule 76, which command her to deliver said will to the court on pain of a fine not exceeding P2,000 and of imprisonment for contempt of court. As for the defendant, he is not complaining of inconvenience, delay, and expense, but on the contrary he is insisting that the procedure prescribed by law be followed by the plaintiff. Our conclusion is that the Court of Appeals erred in declaring the action instituted by the plaintiff to be in accordance with law. It also erred in awarding relief to the plaintiff in this action on the basis of intestacy of the decedent notwithstanding the proven existence of a will left by him and solely because said will has not been probated due to the failure of the plaintiff as custodian thereof to comply with the duty imposed upon her by the law. It is apparent that the defendant Ernesto M. Guevara, who was named executor in said will, did not take any step to have it presented to the court for probate and did not signify his acceptance of the trust or refusal to accept it as required by section 3 of Rule 76 (formerly section 627 of the Code of Civil Procedure), because his contention is that said will, insofar as the large parcel of land in litigation is concerned, has been superseded by the deed of sale exhibit 2 and by the subsequent issuance of the Torrens certificate of title in his favor. II This brings us to the consideration of the second question, referring to the efficacy of the deed of sale exhibit 2 and the effect of the certificate of titled issued to the defendant Ernesto M. Guevara. So that the parties may not have litigated here in vain insofar as that question is concerned, we deem it proper to decide it now and obviate the necessity of a new action. The deed of sale exhibit 2 executed by and between Victorino L. Guevara and Ernesto M. Guevara before a notary public on July 12, 1933, may be divided into two parts: (a) insofar as it disposes of and conveys to Ernesto

B. With regard to the northern half of the hacienda, the findings of fact and of law made by the Court of Appeals are as follows: The defendant has tried to prove that with his own money, he bought from Rafael Puzon one-half of the land in question, but the Court a quo, after considering the evidence, found it not proven; we hold that such conclusion is well founded. The acknowledgment by the deceased, Victorino L. Guevara, of the said transactions, which was inserted incidentally in the document of July 12, 1933, is clearly belied by the fact that the money paid to Rafael Puzon came from Silvestre P. Coquia, to whom Victorino L. Guevara had sold a parcel of land with the right of repurchase. The defendant, acting for his father, received the money and delivered it to Rafael Puzon to redeem the land in question, and instead of executing a deed of redemption in favor of Victorino L. Guevara, the latter executed a deed of sale in favor of the defendant. The plaintiff avers that she withdrew her opposition to the registration of the land in the name of the defendant, because of the latter's promise that after paying all the debt of their father, he would deliver to her and to the widow their corresponding shares. As their father then was still alive, there was no reason to require the delivery of her share and that was why she did not insist on her opposition, trusting on the reliability and sincerity of her brother's promise. The evidence shows that such promise was really made. The registration of land under the Torrens system does not have the effect of altering the laws of succession, or the rights of partition between coparceners, joint tenants, and other cotenants nor does it change or affect in any other way any other rights and liabilities created by law and applicable to unregistered land (sec. 70, Land Registration Law). The plaintiff is not, then, in estoppel, nor can the doctrine of res judicata be invoked against her claim. Under these circumstances, she has the right to compel the defendant to deliver her corresponding share in the estate left by the deceased, Victorino L. Guevara. In his tenth to fourteenth assignments of error the petitioner assails the foregoing findings of the Court of Appeals. But the findings of fact made by said court are final and not reviewable by us on certiorari. The Court of Appeals found that the money with which the petitioner repurchased the northern half of the land in question from Rafael Puzon was not his own but his father's, it being the proceeds of the sale of a parcel of land made by the latter to Silvestre P. Coquia. Said court also found that the respondent withdrew her opposition to the registration of the land in the name of the petitioner upon the latter's promise that after paying all the debts of their father he would deliver to her and to the widow their corresponding shares. From these facts, it results that the interested parties consented to the registration of the land in question in the name of Ernesto M. Guevara alone subject to the implied trust on account of which he is under obligation to deliver and convey to them their corresponding shares after all the debts of the original owner of said land had been paid. Such finding does not constitute a reversal of the decision

and decree of registration, which merely confirmed the petitioner's title; and in the absence of any intervening innocent third party, the petitioner may be compelled to fulfill the promise by virtue of which he acquired his title. That is authorized by section 70 of the Land Registration Act, cited by the Court of Appeals, and by the decision of this Court in Severino vs. Severino, 44 Phil., 343, and the cases therein cited. Upon this phase of the litigation, we affirm the finding of the Court of Appeals that the northern half of the land described in the will exhibit A and in original certificate of title No. 51691 still belongs to the estate of the deceased Victorino L. Guevara. In the event the petitioner Ernesto M. Guevara has alienated any portion thereof, he is under obligation to compensate the estate with an equivalent portion from the southern half of said land that has not yet been sold. In other words, to the estate of Victorino L. Guevara still belongs one half of the total area of the land described in said original certificate of title, to be taken from such portions as have not yet been sold by the petitioner, the other half having been lawfully acquired by the latter in consideration of his assuming the obligation to pay all the debts of the deceased. Wherefore, that part of the decision of the Court of Appeals which declares in effect that notwithstanding exhibit 2 and the issuance of original certificate of title No. 51691 in the name of Ernesto M. Guevara, one half of the land described in said certificate of title belongs to the estate of Victorino L. Guevara and the other half to Ernesto M. Guevara in consideration of the latter's assumption of the obligation to pay all the debts of the deceased, is hereby affirmed; but the judgment of said court insofar as it awards any relief to the respondent Rosario Guevara in this action is hereby reversed and set aside, and the parties herein are hereby ordered to present the document exhibit A to the proper court for probate in accordance with law, without prejudice to such action as the provincial fiscal of Pangasinan may take against the responsible party or parties under section 4 of Rule 76. After the said document is approved and allowed by the court as the last will and testament of the deceased Victorino L. Guevara, the heirs and legatees therein named may take such action, judicial or extrajudicial, as may be necessary to partition the estate of the testator, taking into consideration the pronouncements made in part II of this opinion. No finding as to costs in any of the three instances. Yulo, C.J., and Hontiveros, 1 J., concur.

In the proceedings for the settlement of his estate in Manila (Civil Cases 46058-63), his widow moved for delivery of her paraphernal property together with some reimbursements and indemnities, and for one-half of the conjugal partnership property. She also asked that her usufructuary right as surviving spouse be imposed on the corresponding portion of her husband's assets. The heiress, who was executrix, opposed several such claims. After hearing evidence on both sides, the Court rendered on January 15, 1940, a decision which, as amended by its resolution of April 24, 1940, declared as paraphernal certain personal and real properties. Other realties, although originally paraphernal, were considered part of the conjugal assets because of buildings erected thereon during coverture, but reimbursement of their value was directed. The main bulk was adjudged conjugal property. The Court ordered the appointment of commissioners to estimate the amounts to be reimbursed, to divide the matrimonial assets into two equal parts for the spouses, and to determine the specific portion of the deceased's estate to be encumbered with the widow's usufruct (/3). Other minor directives are omitted for the sake of brevity. The executrix appealed to this Supreme Court, wherein, dated October 4, 1943, a decision was promulgated upholding the judgment of the Manila court with a slight modification as to payment of interest. (That year Concepcion Paterno died. She is now represented by her testate heirs and legatees.) For compliance with the decision, the records went back to the Manila court. Therein three commissioners were duly appointed: Vicente A. Rufino, chosen by the widow's side, Augusto J. D. Cortes by the heiressexecutrix, and V. R. Endaya by the Court. After hearings held before the said committee (May-November, 1947), Vicente A. Rufino submitted his report dated July 9, 1948 which was concurred in toto by V. R. Endaya. A few days later Augusta J. D. Cortes filed his own report, wholly at variance with his colleague's recommendations on many important particulars. In December, 1948, counsel for the executrix interposed legal and factual objections to the Rufino report. In May, 1949, Atty. Claro M. Recto, for the Paterno relatives, replied to said objections and prayed that they be overruled with the approval the aforesaid report. On July 3, 1950, Judge Rafael Amparo of the Manila Court approved the majority report except that he declared: (1) lot No. 50 on Juan Luna Street was conjugal, and (2) the usufruct of the widow shall be constituted on the one-third estate. (Report on Appeal, pp. 149-151). After the return of the records to the probate court for partition in accordance with our decision in G.R. No. L-4130, which affirmed the decision appealed from with the exception of the modification that one piece of property (the R. Hidalgo property) adjudicated to the widow was assigned instead to the estate of the deceased, in exchange for another property (in Azcarraga-Reina Regente) given to the widow, and after delivery by the executrix on December 7, 1953 of the properties constituting the widow's share in the partition of the conjugal estate, the executrix, on March 3, 1954, filed a petition for the final closure of the testate proceedings. A day before the filing of this petition, however, the trial court had issued an order, upon motion of the administratrix of the estate of the widow Concepcion Paterno, for a final accounting of the 1951, 1952, and 1953 credit balances of the estate, and to determine the rentals or income of those properties found to be paraphernal assets of the widow, so that the undelivered portions of said rentals could be turned over to the widow's estate. Accordingly, the estate of the widow opposed the petition for closure pending the final accounting required of the executrix in the court's order of March 2, 1954; and also pending determination of the share of the widow in the additional value of the R. Hidalgo property, due to the construction of the Illusion Theater, that in 1952 would become property of the owner of the land. The administratrix of the widow's estate likewise sought an amendment of the court's order of March 2, 1954, so as to require the executrix to account for the undelivered rentals or fruits of the widow's paraphernal properties from October 5, 1938, when the executrix started her administration, until

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-8748 December 26, 1961 TESTATE ESTATE OF NARCISO A. PADILLA, deceased. ISABEL B. VDA. DE PADILLA, executrix-appellant, vs. CONCEPCION PATERNO, administratrix-appellee. Padilla Law Office and Associates for executrix-appellant. Claro M. Recto for administratrix-appellee. REYES, J.B.L., J.: This appeal from an order of the probate court in the special proceeding for the settlement of the testate estate of the deceased Narciso A. Padilla involves the same properties that had already been the subject-matter of two earlier appeals also brought to this Court by the executrix-appellant Isabel B. Vda. de Padilla, G.R. No. 48137 decided October 4, 1943, during the war, and G.R. No. L-4130, decided September 30, 1953, after the war. The facts of the case, up to the time the second appeal (G.R. No. L-4130) was taken by the executrix to this Court, were summed up in our 1953 decision as follows: Narciso A. Padilla died February 12, 1934, leaving a childless widow, Concepcion Paterno, whom he had married in 1912. His last will, which was probated in due course, instituted his mother, Ysabel Bibby Vda. de Padilla, as universal heiress.

December 7, 1953, when they were finally turned over to the widow's estate. On March 15, 1954, the executrix submitted an accounting of the credit balances of the estate for the years 1951, 1952, and 1953, but in subsequent pleadings objected to the accounting of the fruits of the properties declared to be paraphernal on the theory that (1) said properties were actually held conjugal, subject only to paraphernal claims; and that (2) consequently, their income belonged to the conjugal estate and had been periodically divided equally between the executrix as the universal heir of the deceased and the widow's estate. As for the R. Hidalgo property, the executrix also objected to any further determination of an additional share of the widow on the improvements thereon, claiming that the widow's estate was bound by the value of P189,240 given to this property by the Rufino report from which the administratrix of the widow's estate did not appeal. Reply and counter-reply having been filed by the parties on the above issues, the probate court finally resolved the same in its order of July 31, 1954, the pertinent portions of which are as follows: The questions that should be passed upon by this Court are those raised by the administratrix of the estate of Concepcion Paterno in her motion for reconsideration, to wit: (1) Should the herein executrix be made to account for the income of the paraphernal properties belonging to Concepcion Paterno as prayed for by said administratrix? (2) Is it necessary to determine the additional value of the R. Hidalgo property as sought by said administratrix? The answer to the first question is in the affirmative. The Civil Code of 1889 provided that upon dissolution of marriage the husband or his heirs may be compelled to make immediate restitution of the paraphernal property which has been turned over to the husband for administration (Art. 1391 in connection with Art. 1369). The Code of Civil Procedure provided in its Section 726 that 'where a deceased person in his lifetime held lands in trust for another person, the court may, after notice given as required in the preceding section, grant license to the executor or administrator, and the person, his executor, or administrator, for whose use and benefit they are holders; and the court may decree the execution of such trust, whether created by deed or by law.' Upon the death of Narciso Padilla his marriage with Concepcion Paterno was dissolved. From the moment of his death, his heir was bound to return the paraphernal properties of Concepcion Paterno, and from said moment any income or fruit derived from said paraphernal properties belonged to the owner thereof. It is contended by the executrix herein that the properties under administration in this proceeding are conjugal subject to the paraphernal claims of the widow, Concepcion Paterno, and that the rentals from one or the other property cannot be excluded 'for such exclusions cannot be justified, as the definite character of the properties as adjudicated in favor of the wife or of the husband became absolute and definite only after the decision of the Hon. Supreme Court late in 1953'. This contention is not well taken, because the determination made by the Supreme Court of the character of the properties in question retroacts to the date Narciso Padilla died. It appears that Ysabel Bibby was appointed special administratrix in this proceeding on August 29, 1938. The other question refers to the R. Hidalgo property. With respect to this property, the Supreme Court in its decision in G.R. No. L-4130 said This Illusion Theatre was not reckoned with in the Rufino report. Apparently it would pass to the estate in 1952 upon the occurrence of specified contingencies. If it has passed the matter could undoubtedly be the subject of further deliberation upon appropriate motions. It would only be a question of determining the additional value of the R. Hidalgo property and of requiring the herein appellant to pay the Paterno estate its corresponding share. The above quoted portion of the decision is clear and needs no further elucidation. WHEREFORE, the executrix herein is directed to submit within ten (10) days from receipt of this order an accounting of the income of the

paraphernal properties in question covering the period from August 29, 1938 to December 7, 1953. Regarding the R. Hidalgo property, this proceeding is hereby set for hearing on August 19, 1954, at 8:30 a.m. for the purpose of determining the additional value of said property in consonance with the above indicated decision of the Supreme Court. The executrix herein is hereby authorized and directed to deliver immediately to the estate of Concepcion Paterno the one-half portion of the credit balance on the 1953 annual accounting. The consideration of the prayer to close this proceeding is hereby deferred until the accounting herein above called for shall have been submitted and passed upon and the additional value of the R. Hidalgo property shall have been determined. Let the corrections indicated by the administratrix of the estate of Concepcion Paterno be made. IT IS SO ORDERED. (Record on Appeal, pp. 60-62.) The executrix sought but failed to have the above order reconsidered; whereupon, she filed this her third appeal before this Court. 1 The executrix-appellant assigns six errors, which may be reduced to the following propositions: (1) That the lower court erred in holding that some of the properties included in the estate are paraphernal in character and that all their income belonged to the widow Concepcion Paterno; (2) That the widow having already raised the question of her right to all the fruits of her alleged paraphernal properties in a petition for the liquidation of their fruits filed before the probate court even before the war, and no fruits having been awarded to her by the probate court in its decision of January 15, 1940, as amended by its resolution of April 24, 1940, or by this Court in its 1954 decision in G.R. No. 48137 or in its 1953 decision in G.R. No. L-4130, the widow or her estate is now barred from raising again the question of her exclusive right to such fruits either by the principle of res judicata or that of conclusiveness of judgment; (3) As to the R. Hidalgo property of the estate, the lower court erred in sustaining the additional claim of the widow's estate over the improvements therein. In support of her first proposition, that the lower court erred in holding that some of the properties in the estate are paraphernal and that all their income belonged the widow Concepcion Paterno, the executrix-appellant claims that our decision in G.R. No. L-4130 did not declare any properties in the estate of the deceased Narciso A. Padilla paraphernal, but that certain properties therein were declared "conjugal assets, subject to paraphernal claims", and that this decision is the "law of the case" in this incident and appeal. The above argument appears to be a mere reiteration of the claims already urged by this same appellant in G.R. No. L-4130, where she similarly argued that the probate court, and this Court in G.R. No. 48137, did not hold any properties in the estate paraphernal, but the certain properties therein were declared conjugal partnership properties, with the widow being entitled to reimbursement for the value of her paraphernal claims (see Appellant's Brief in G.R. No. L-4130, pp. 70-71, 103, 106). Rejecting this argument in our decision in G.R. No. L-4130, we said: The Rufino report which is printed in full on pages 169-192 of the Record on Appeal, states that the buildings constructed by the partnership on the two lots were destroyed by fire during the battle of liberation of Manila in 1945. Then it goes on to adjudicate: As already stated, the conjugal improvements on the lots on Arquiza and Juan Luna have been destroyed by fire, and the Supreme Court having held that the lands on which said improvements were erected remained paraphernal until the value of said lands were paid to the widow Concepcion Paterno Vda. de Padilla, said lands must be returned to the Testate Estate of Concepcion Paterno Vda. de Padilla. However, any amount due or that may be received from the War Damage Commission for the improvements that were destroyed on those two

pieces of property shall be divided share and share alike between the estate of Ysabel Bibby Vda. de Padilla and the estate of Concepcion Paterno Vda. de Padilla. (Record on Appeal, p. 177). The executrix earnestly challenges the first paragraph contending that the lots became conjugal properties from the time the buildings were erected thereon, and the subsequent destruction of such buildings did not make them paraphernal. She also argues that the indemnity to the widow for said lots should be their value at the time of the construction of the buildings, or at most, at the time of the dissolution of the partnership in 1934. These contentions may not be upheld in view of the decision of the Manila Court and the confirmatory decision of this Tribunal in 1943. There are, to be sure, some propositions in said decision which we may now hesitate to ratify, especially the pronouncement that the lot continued to be paraphernal until its value had been actually paid. But that judgment is now the law of the case. (Record on Appeal, pp. 151-152). In other words, we maintained in G.R. No. L-4130, as the law of the case, our previous decision in G.R. No. 48137 that The ownership of the land is retained by the wife until she is paid the value of the lot, as a result of the liquidation of the conjugal partnership. The mere construction of a building from common funds does not automatically convey the ownership of the wife's land to the conjugal partnership. (Record on Appeal, p. 138). Considering that our decision in G.R. No. L-4130 is, in executrixappellant's own words, "the last and final decision of this Honorable court intended to definitely settle and close this estate" (Appellant's Brief, p. 49), and that the "law of the case" in this appeal are all the previous decisions herein, "including the 1953 decision G.R. No. L-4130" (idem, p. 17), the dispositions made in our decision in G.R. No. L-4130 should be considered as final and conclusive on the parties in this case and its incidents. But to what extent does the "law of the case", as expressed in the above decisions, bear on the more important question in this appeal namely, the alleged exclusive right of widow Concepcion Paterno to all the fruits of the properties of the estate declared paraphernal from the time the conjugal partnership was terminated by the death of the husband Narciso A. Padilla up to their final delivery to the estate of the widow Concepcion Paterno on December 7, 1953? On this matter, we must perforce distinguish those paraphernal properties that did not cease to be such all throughout and were, accordingly, turned over to the widow's estate on December 7, 1953, from those that, having been paid or indemnified in full to the widow upon the final partition and division of the conjugal estate, had finally been converted into conjugal assets. To determine the properties that belong to either class, we must go back to the records of these settlement proceedings before this appeal, the proceedings taken in the court below in the course of the execution of our final judgment in G.R. No. L-4130. Let us recall that in its original resolution of January 15, 1940, the probate court found the following properties to be paraphernal: (1) the lot at 305 Arquiza Street and the demolished improvements therein; (2) the lot at 1393-1409 Juan Luna Street and the improvements therein that had been torn down; (3) the lot and improvements (except the building constructed during the marriage) at 401-407 Camba Street; (4) that lot at 613-631 and 634-636 Martin Ocampo Street, with the original "accesorias" and a camarin which was destroyed in order that new "accesorias" might be constructed, these new "accesorias" being conjugal property; (5) the property at 620-H, Callejon De la Fe; (6) one-half of the property at 631 Regidor Street; and (7) 9/29 of the property at 302-306 R. Hidalgo Street. (Record on Appeal, pp. 133-134). The findings of the probate court as to the nature of the above properties were affirmed in toto by this Court in our decision in G.R. No. 48137 dated October 4, 1943.

After the above-mentioned decision was returned to the lower court for execution, the battle for the liberation of Manila supervened and as a result of the general conflagration in the city sometime in February, 1945, the conjugal buildings on the Arquiza and Juan Luna properties were completely destroyed. As for the property at 631 Regidor Street, the same was later expropriated by the government. When the commissioners appointed to execute the judgment submitted their report, therefore, the majority of the commissioners (whose report, otherwise known as the "Rufino Report," the lower court approved) made the following recommendations: (1) As to the Arquiza and Juan Luna properties, the improvements of which were destroyed during the battle for the liberation of Manila: As already stated, the conjugal improvements on the lots on Arquiza and Juan Luna have been destroyed by fire, and the Supreme Court having held that the lands in which said improvements were erected remained paraphernal until the value of said lands were paid to the widow Concepcion Paterno Vda. de Padilla, said lands must be returned to the Testate Estate of Concepcion Paterno Vda. de Padilla, (Record on Appeal in G.R. L-4130, p. 177). (2) As to the Camba property: According to the evidence presented, the portion of this lot located right at the corner of San Nicolas and Camba Streets, otherwise known as Lot No. 6-A, and the building existing thereon, are both paraphernal properties. They should, therefore, be delivered to the Testate Estate of Concepcion Paterno Vda. de Padilla. The portion of said lot which is otherwise known as Lot No. 6-B likewise originally paraphernal, but a building was erected thereon by the conjugal partnership, so that it would become conjugal partnership property upon the reimbursement to the wife of its present value. According to the evidence, Lot No. 6-B has an area of 83.422 sq. ms., and the present value thereof per square meter is P30.00. This Testate Estate, therefore, should reimburse the Testate Estate of Concepcion Paterno Vda. de Padilla in the sum of P2,502.66. After said reimbursement, Lot No. 6-B and the existing improvement thereon shall become conjugal partnership property and should be divided accordingly for purposes of distribution. (Record on Appeal in L-4130, pp. 179-80). (3) As to the Martin Ocampo property: According to the evidence the portion of the lot occupied by paraphernal building or the accesoria otherwise known as Nos. 612, 614, 616, 620, 624, 626, 628 Quezon Boulevard, has a total area of 360.5 sq. m.; while the interior portion of said lot actually occupied by the accesoria constructed during the marriage of the spouses contained an area of 528.1 sq. ms. This interior portion is the one which must be appraised by the Commissioners, and its value reimbursed to the Estate of Concepcion Paterno Vda. de Padilla, in view of the ruling of the Court that "el valor actual del suelo ocupado por dicha accesoria construida durante el matrimonio se determinara por los Comisionados y se adjudicara a la Viuda en concepto de indemnizacion." The outer portion of 360.5 sq. ms. having been declared paraphernal property, should be delivered to the Estate of Concepcion Paterno Vda. de Padilla. The evidence further shows that the reasonable value of said interior portion is P125 per sq. m., so that the amount to be reimbursed is P66,012.50. As soon as said reimbursement is made, said portion of the lot and the buildings existing thereon as conjugal property should be divided accordingly for purposes of distribution. (Record on Appeal, Ibid, p. 181) (4) As to the Callejon De la Fe property: In view of the fact that finding of the Supreme Court was that this property and the improvement which used to exist thereon were both paraphernal, the lot should be delivered to the Testate Estate of Concepcion Paterno Vda. de Padilla and whatever amount is paid by the War Damage Commission as compensation for the destruction of said building should also be totally paid to it. (Record on appeal, ibid, p. 182). (5) As to the Regidor property, which was expropriated by the government:

The compensation received for the expropriation of the Regidor property, should be divided between the spouses in accordance with the finding of the decision of the Supreme Court as to the character of said property. (Ibid, p. 192) (6) And as to R. Hidalgo property: The R. Hidalgo property is partly conjugal and partly paraphernal. Ninetwenty-ninths thereof belong to the Testate Estate of Concepcion Paterno Vda. de Padilla as paraphernal property, ten-twenty-ninths thereof belong to it as share in the conjugal partnership, while the remaining ten-twentyninths should belong to Da. Isabela B. Vda. de Padilla as her inheritance from the decedent herein. It has a total area of 1962 square meters. At the rate of P200 per square meter, it has a total value of P189,240.00. The lot shall become conjugal property and divided accordingly after the Testate Estate of Concepcion Paterno Vda. de Padilla shall have been reimbursed in the sum of P58,729,67. Any payment made by the War Damage Commission shall be divided in the same proportion, to wit: nine-twenty-ninths shall belong to the Testate Estate of Concepcion Paterno Vda. de Padilla, and the remaining tentwenty-ninths shall belong to Da. Isabel B. Vda. de Padilla. (Idem., pp. 182-183). All the above recommendations were approved by the trial court, and in her appeal from the order of approval (which is G.R. No. L-4130), wherein the executrix-appellant specially protested against the declaration that upon the destruction of the improvements on the Arquiza and Juan Luna properties, they remained paraphernal and must be returned to the estate of the widow, as well as the recommendation to subdivide the Camba and Martin Ocampo properties, declaring those portions thereof occupied by paraphernal buildings as paraphernal and should be returned to the widow's estate, the same recommendations were affirmed by this Court. Considering, then, the "law of the case" in this appeal as expressed in the Rufino report and approved by both the probate court and this Court in G.R. No. L-4130, we find no error in the lower court's pronouncement that as sole owner of those properties that never became conjugal because the conjugal improvements thereon were destroyed before they could be paid for the widow (i.e., the Arquiza and Juan Luna properties), as well as Lot No. 6-B on Camba Street, the outer portion of the Martin Ocampo lot, and the Callejon de la Fe property, that never ceased to be paraphernal because there were paraphernal buildings thereon at the time of the termination of the conjugal partnership, the widow Concepcion Paterno is also the sole owner of all their income that accrued during their administration by the executrix-appellant until they were finally delivered to the estate of the deceased Concepcion Paterno on December 7, 1953; minus of course, the administration expenses incurred by said executrixappellant with respect to these paraphernal properties. This is also in accordance with that portion of the Rufino report making the following recommendation as to the rentals of said properties during the period of settlement: E. RENTALS AND OTHER INCOME DURING SETTLEMENT For a complete liquidation of the estate under administration, the rentals from real properties, and other income, such as proceeds from expropriation, etc., should be disposed in the following manner: The rentals of property declared paraphernal, after deducting administration expenses, must be delivered to the estate of Concepcion Paterno; while the rentals from conjugal property, after deducting administration expenses, should be divided equally between the heir of the husband and those of the wife.... (Record on Appeal in L-4130, p. 192). Appellant claims that the above recommendation is void because the commissioners appointed to execute our 1943 decision in G.R. No. 48137 were vested only with the limited authority of putting said decision into effect, and said decision made no disposition as to rentals or fruits of the paraphernal properties. This contention is unmeritorious because the above recommendation was approved by the trial court in its order of July 3, 1950, and by this Court in the 1953 decision in G.R. No. L-4130, and

has become part of the "law of the case;" as such it is now binding, conclusive, and irrevocable in this appeal. Indeed, it nowhere, appears in the brief submitted by the executrix-appellant in G.R. No. L-4130 that she then questioned the disposition, made by the Rufino report and by the lower court, as to the rentals of the properties declared paraphernal during the period of her administration, and it is now too late for her to raise this objection many years after our decision in L-4130 had become final and executory. With this result, it becomes unnecessary for us to discuss the executrix-appellant's proposition that the lower court order of January 15, 1940, as amended by its resolution of April 24, 1940, and this Court's decision in G.R. 48137, both of which came ahead of our decision in G.R. No. L-4130, are res judicata by passing sub silentio this issue of the exclusive right of the widow to the fruits of her paraphernal properties. The above discussion does not, however, imply that the estate of the widow Concepcion Paterno has also the exclusive right to the fruits of those properties which, although originally paraphernal, had finally become converted to conjugal assets after their values were reimbursed or paid to the estate of the widow Concepcion Paterno in the final partition and division of the estate left by the deceased Narciso A. Padilla. These properties are the following: (1) Lot No. 6-B of the Camba property; (2) The interior portion of the Martin Ocampo property; and (3) the 9/29 share of the widow in the R. Hidalgo property. As to the above properties, their conversion from paraphernal to conjugal assets should be deemed to retroact to the time the conjugal buildings were first constructed thereon or at the very latest, to the time immediately before the death of Narciso A. Padilla that ended the conjugal partnership. They can not be considered to have become conjugal property only as of the time their values were paid to the estate of the widow Concepcion Paterno because by that time the conjugal partnership no longer existed and it could not acquire the ownership of said properties. The acquisition by the partnership of these properties was, under the 1943 decision, subject to the suspensive condition that their values would be reimbursed to the widow at the liquidation of the conjugal partnership; once paid, the effects of the fulfillment of the condition should be deemed to retroact to the date the obligation was constituted (Art. 1187, New Civil Code). As a consequence, all the fruits of these properties, after the dissolution of the partnership by the death of the husband, until final partition, logically belonged to the universal heir of said husband (his mother Isabel Bibby) and to the surviving widow in co-ownership, share and share alike. As there has been periodical equal distribution between these two parties of the current income of the estate, there is no need for the executrix-appellant to make any new accounting for the fruits of these properties. Coming now to the third issue in this appeal, namely, the right of the widow to an additional share in the improvements on the R. Hidalgo property that was adjudicated to the estate of the husband Narciso A. Padilla in the 1953 decision, G.R. No. L-4130, we find and no merit to the claim of appellant that When the R. Hidalgo property was appraised by the Rufino Report on July 9, 1948, at P189,240.00 and under such appraisement awarded to the estate of the widow, we respectfully submit that the value as appraised included not only the land but also the improvement which was then already existing, the same having been built in 1947. because the Rufino report states in clear and unmistakable terms that only the land was appraised in the report and only its value included in the project of partition: The R. Hidalgo property is partly conjugal and partly paraphernal. Ninetwenty-ninths thereof belongs to the Testate Estate of Concepcion Paterno Vda. de Padilla as paraphernal property, while ten-twenty-ninths thereof belongs to it as share in the conjugal partnership, while the remaining ten-twenty-ninths should belong to Da. Isabel B. Vda. de Padilla as her inheritance from the decedent herein. It has a total area of 946.2 square meters. At the rate of P200 per square meter, it has a total value of P189,240.00. The lot shall become conjugal property and divided accordingly after the Testate Estate of Concepcion Paterno Vda. de Padilla shall have been reimbursed in the sum of P58,729.67. (Record on Appeal in L-4130, pp. 182-183)

Indeed, the Rufino report could not have included the value of the improvements at the time the commissioners appraised this property for purposes of partition between the parties, because the old improvements thereon were destroyed during the war and whatever improvements were found therein by the commissioners in 1948 still belonged to the lessee of said property. This was admitted in the executrix-appellant's own brief in G.R. No. L-4130 (pp. 119-120), to wit: The increase in the valuation of the share of the widow in the R. Hidalgo property from P45,608.26 to P58,729.59 is certainly unjustified, considering, as above stated, that the permanent improvements on the R. Hidalgo property were totally destroyed by fire during liberation. Besides, if the property present has increased in value, it is due to the executrix-appellant who, after liberation, entered into a contract of lease with Cinema Operators, Inc., which built the Illusion Theatre and the commercial establishments nearby. The improvements built by the lessee will become the property of the estate of Narciso A. Padilla after the expiration of said contract of lease.lawphil.net Hence, the footnote in our decision in L-4130 to the following effect: This Illusion Theatre was not reckoned with in the Rufino report. Apparently it would pass to the estate in 1952 upon the occurrence of certain specified contingencies. If it has passed the matter could undoubtedly be the subject of further deliberation upon appropriate motions. It would only be a question of determining the additional value of the R. Hidalgo property and of requiring the herein appellant to pay the Paterno estate its corresponding share. (Record on Appeal, p. 157) As correctly observed by the lower court in the order now appealed from, "the above-quoted portion of the decision is clear and needs no further elucidation" (Record on Appeal p. 62). Considering that the improvements on the R. Hidalgo property accrued to the owner of the land only after the expiration of the seven-year lease entered into by the executrix-appellant with the tenant on February 2, 1946, the lower court did not err in ordering the appraisal of said improvement with the view of determining the additional share therein of the widow Concepcion Paterno. WHEREFORE, with the clarification that the accounting of the income of the paraphernal properties to be made by the executrix-appellant should refer only to the Arquiza, Juan Luna, and Callejon de la Fe properties, to Lot No. 6-A of the Camba property, and to the outer portion of the Martin Ocampo property, the order appealed from is affirmed. Without special pronouncement as to costs. Bengzon, C.J., Bautista Angelo, Labrador, Barrera, Paredes, Dizon and De Leon, JJ., concur. Padilla and Concepcion, JJ., took no part.

After the presentation of petitioner's evidence relative to the essential requisites and formalities provided by law for the validity of a will, the court on July 6, 1956 issued an order admitting the will to probate. The court, however, set a date for the hearing of the opposition relative to the intrinsic validity of the will and, after proper hearing concerning this incident, the court issued another order declaring oppositor to be the natural child of petitioner and annulling the will insofar as it impairs her legitime, with costs against petitioner. From this last order, petitioner gave notice of his intention to appeal directly to the Supreme Court, and accordingly, the record was elavated to this Court. It should be noted that petition instituted the present proceeding in order to secure the probate of his will availing himself of the provisions of Article 838, paragraph 2, of the new Civil Code, which permit a testator to petition the proper court during his lifetime for the allowance of his will, but to such petition on Maria Catimbang filed an opposition alleging that she is the acknowledged natural daughter of petitioner but that she was completely ignored in the will thus impairing her object to the probate of the will insofar as it due execution is concerned or on the ground that it has not complied with the formalities prescribed by law; rather she objects to its intrinsic validity or to the legality of the provisions of the will. We hold that such opposition cannot be entertained in this proceeding because its only purpose is merely to determine if the will has been executed in accordance with the requirements of the law, much less if the purpose of the opposition is to show that the oppositor is an acknowledged natural child who allegedly has been ignored in the will for issue cannot be raised here but in a separate action. This is especially so when the testator, as in the present case, is still alive and has merely filed a petition for the allowance of his will leaving the effects thereof after his death.lawphi1.net This is in line with our ruling in Montaano vs. Suesa, 14 Phil., 676, wherein we said: "The authentication of the will decides no other questions than such as touch upon the capacity of the testator and the compliance with those requisites or solemnities which the law prescribes for the validity of a will. It does not determine nor even by implication prejudge the validity or efficiency of the provisions; that may be impugned as being vicious or null, notwithstanding its authentication. The questions relating to these points remain entirely un-affected, and may be raised even after the will has been authenticated." On the other hand, "after a will has been probated during the lifetime of a testator, it does not necessarily mean that he cannot alter or revoke the same before he has had a chance to present such petition, the ordinary probate proceedings after the testator's death would be in order" (Report of the Code Commission, pp. 53-54).The reason for this comment is that the rights to the succession are transmitted from the moment of the death of the decedent (Article 777, new Civil Code.). It is clear that the trial court erred in entertaining the opposition and in annulling the portion of the will which allegedly impairs the legitime of the oppositor on the ground that, as it has found, she is an extraneous matter which should be treshed out in a separate action. Wherefore, the order appealed from is set aside, without pronouncement as to costs. Paras, C.J., Bengzon, Padilla, Labrador, Concepcion, Endencia, Barrera and Gutierrez David., JJ., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-12207 December 24, 1959 JUAN PALACIOS, petitioner-appellant, vs. MARIA CATIMBANG PALACIOS, oppositor-appellee. Augusto Francisco and Vicente Reyes Villavicencio for appellant. Laureano C. Alano and Enrique A. Amador for appellee. BAUTISTA ANGELO, J.: Juan Palacios executed his last will and testament on June 25, 1946 and availing himself of the provisions of the new Civil Code, he filed on May 23, 1956 before the Court of First Instance of Batangas a petition for its approval. In said will, he instituted as his sole heirs his natural children Antonio C. Palacios and Andrea C. Palacios. On June 21, 1956, Maria Catimbang filed a opposition to the probate of the will alleging that she is the acknowledged natural daughter of petitioner but that she was completely ignored in said will thus impairing here legitime.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-3378 August 22, 1951 TESTATE ESTATE OF THE DECEASED DAMASA CRISOSTOMO. NAZARIO TRILLANA, administrator-appellee, vs. CONSORCIA P. CRISOSTOMO, ET ALS, petitioners-appellants. Francisco R. Capistrano and Jesus T. Quiambao for petitioners and appellants. Jose G. Generoso and Jose B. Bautista for administrator and appellee. FERIA, J.: This is an appeal from an order of the Court of First Instance of Bulacan denying the appellants' petition for relief from the judgment of the said court allowing the will of October 19, 1948, executed by the deceased Damasa Crisostomo. The appellants, in support of their sole assignment that the lower court erred in denying their petition for relief from the judgment of January 5, 1949, admitting to probate the will of October 19, 1948, submits to this Court three propositions, to wit: (a) "The judgment of January 5 was obtained through fraud," (b) "The lower court failed to perform its legal duty to set date for proving the will of August 16, 1948;" and (c) "The failure to set aside a date for proving the will of August 16 with the will of October 19 was entirely due to the lower court's fault or negligence." In support of their proposition (a), attorneys for the appellant allege that the fraud in obtaining the judgment of January 5 consisted in that the proponents of the will of October 19 did not cause personal notice of the hearing to be made upon the legal heirs of the decedent, contrary to the requirement of Rule 77, sec. 4 of the Rules of Court. We can not consider now for the first time in this appeal the question whether the lower court (not the proponents) complied with the requirement of said sec. 4 of Rule 77 of the Rules of Court, for that question has not been raised by the appellants in the court below, either in their original petition for relief of May 12, 1949 (pp. 2-8, Record on Appeal), or in their motion for reconsideration dated August 27, 1949, of the order denying their petition for relief (pp. 67-71). And there being no evidence to the contrary, the legal presumption is that the court which probated the will of October, 19, 1948., complied with its duty and acted in lawful exercise of its jurisdiction in probating said will (Sec. 69 (m) (n), Rule 123 of the Rules of Court). Besides, appellee's attorney, in the statement of facts in to the appellants' petition for relief, stated that "This Honorable Court set its hearing [of the petition for allowance of the will of October 19, 1948] on December 2, 1948. Copy of this order was published in "The Star Reporter", newspaper of general circulation in Bulacan on November 5, 12 and 19 respectively, and the corresponding notices served by the office of the Clerk of Court, in accordance with law" (pp. 25 26, Record on Appeal). And the attorneys for the petitioners-appellant had not denied said statement. The petitioners-appellants having failed to show that the judgment of the lower court of January 5, 1948, probating the will of testatrix of October 19, was obtained through fraud, the lower court did not commit any error in denying the appellant's petition for relief under sec. 2, Rule 38 of the Rules of Court, and therefore it is not necessary for us to discuss and pass

upon the other propositions of the appellant. Where a will is duly probated after publication pursuant to 630 of the Code of Civil Procedure, the order admitting the will is, in the absence of fraud, effective against an persons. The fact that an heir or other interested party lives so far away as to make it impossible for such party to be present at the date appointed for the, probate of the will does not render the order of probate void for lack of due process. (In re Estate of Johnson, 39 Phil. 156) Besides, even assuming without deciding, that under sec. 3 of Rule 77, the court shall set aside a date for proving a will even without petition when it is delivered to the, court having jurisdiction, as contended by the appellants, the lower court was right in not setting a date for proving the will of August 16, 1948, because this will was expressly and absolutely revoked by the will of October 19, 1948, executed by the same executrix or deceased, which was filed for allowance on November 1, 1948, with the same Court of First Instance of Bulacan. According to the attorneys for the appellant, the will dated August 16, 1948, was sent together with a writing called "Manifestation" by registered mail on October 30, 1948, from Manila to the Court of First Instance of Bulacan, by Attorney Mr. Tomas V. Barnes, and said will must have been received by the Clerk of Said Court on or after November 1, 1948, the date when the subsequent will of October 19, was filed for probate. It stands to reason that if two wills are presented for allowance but one of them revoked will cannot be included in the probate of the latter subsequent will, because it would be a waste of time to allow the revoked will if the subsequent revoking will is allowed. The revoked will may be probated and allowed only if the subsequent revoking will is disallowed. (11. McAra vs .MacCay, L. R. 23 Ir., 138; Pepper vs. Pepper, Ir. R. 5 Eq., 85; Matter of Palmer, 58 L.J. P.D. and Adm., 44; Matter of Stephens, 22 L.T. Rep., N.S. 727.) [68 C.J. 886] Besides, the appellants in the present case, who merely allege in their petition for relief that they are "nephews and nieces and therefore legal heirs of the deceased Damasa Crisostomo," without specifying the degree of relationship they had the latter, do not pretend that it if the will October 19, 1949, be disallowed, they will inherit the estate left by the testatrix. They contend that said will should be probated jointly or together with the will of August 16, 1948, and the latter be allowed instead of the former. As in her will of October 19, 1949, as well in that of August 16, 1948, the testatrix is leaving all her properties as legacies to other persons, the appellants have no interest in the probate of said wills, and they can not appeal from the judgment which allowed one of them instead of the other. Appellants argue that they are in interested parties and therefore may appeal in the present case, because in the event the will of October 19 is disallowed and in its that of August 16 is allowed, and the legacies in the latter are declared invalid or the legatees incapable to inherit, the legacies will go to appellants. This argument has no merit. In civil actions and special proceedings, unless otherwise provided by law, the interest in order that a person may be a party on appeal must be material and direct, so that he will be materially and directly benefited or injured by the court's order, decree or judgment: and not indirect or contingent (Espinosa vs. Barrios, 40 Off. Gaz., [8 Supp. No. 12]. p. 145). The interest claimed by the appellants is purely contingent or dependent upon several uncertain and future events to (1) The disallowance of the will of October 19, 1948 (2)The allowance of the will of August 16, 1948, and (3) invalidation of certain legacies left in said will of August 16, 1948. In view of all the foregoing, the order appealed from is affirmed with costs against the appellants. So ordered.

Paras, C.J., Pablo, Bengzon, Padilla, Tuason, Reyes, Jugo and Bautista Angelo, JJ., concur.

Santos v. Castillo 64 Phil 211 (1937) FACTS: Petitioner Emerita Santos, in her behalf and as guardian of the minor acknowledge natural children of the deceased, filed a petition for probate of the will of Nicolas Azores. She also filed a motion for the appointment of a special administrator. At the hearing, respondents Jose, Sinfrosa and Antonio Azores, legitimate children of the deceased filed their opposition, on the ground that the court had not acquired jurisdiction over the casepetitioners allegations being insufficient to confer jurisdiction because she did not allege that she had the custody of the will, and therefore, was not entitled to present it for probate; and furtherance because the will that should be probated is the original and not a copy thereof, as the one presented by the petitioner. Petitioner filed an amended petition praying that respondents be required to present the copies of the will and the codicil in their possession. Court issued an order denying the petition for the appointment of a special administrator by petitioner and ordered Jose Azores, who has custody of the last will and testament and all other documents in relation thereto, to deliver said papers to the court within 10 days from notice. Consequently, petitioner filed a motion praying that her amended petition be admitted. However, before this motion was decided, respondents, 16 days after their fathers death, presented the original of the will and codicil, and petitioned that they be admitted for probate. The court issued an order dismissing the petition filed by the petitioner. ISSUE: [1] Who is entitled to apply for probate? [2] W/N Court has acquired jurisdiction HELD: [1] Section 625 of the Code of Civil Procedure provides that no will shall pass either real or personal estate, unless it is proved and allowed. For this purpose, section 626 provides that the person who has the custody of he will shall, within 30 days after he knows of the death of the testator, deliver the will to the court which has jurisdiction, or to the executor named in the will. Sections 628 and 629 proscribed coercive means to compel a person having the custody of a will to deliver it to the court having jurisdiction. Petitioner alleged that the deceased designated nobody as custodian of his will but that he directed his nephew Manuel Azores to deliver a copy thereof to her, to keep one in his (Manuels) possession, and to turn over the other two copies to his son Jose Azores, with instructions to the effect that if petitioner or his son failed to present said will for probate, Manuel should take charge of presenting it to the court. Taking everything into account therefore, it is of the Courts view that Jose Azores, the son of the deceased, had the custody of the will because the original thereof was turned over to him. For the sake of argument, however, admitting that the testator had designated nobody as custodian of the will, it cannot be denied that his act of subsequently making a codicil and entrusting the custody thereof to his legitimate children, clearly modified his last will. In this sense, the custody of both is entrusted to his legitimate children and not to Manuel Azores or to petitioner. Hence, as the legitimate children of the deceased had custody of the originals of the will and of the codicil, they alone could, had the right and where bound by law to apply for the probate of their father's last will. [2] In order that the court may acquire jurisdiction over the case for the probate of a will and for the administration of the properties left by a deceased person, the application must allege, in addition to the residence of the deceased and other indispensable facts or circumstances, that the

applicant is the executor in the will or is the person who had custody of the will to be probated. The original of said document must be presented or sufficient reasons given to justify the non-representation of said original and the acceptance of the copy or duplicate thereof. Inasmuch as these requisites had not been complied with in the application filed by the petitioner, the respondent judge did not exceed his jurisdiction in dismissing the application in question.