76.

1 IN THE MATTER OF THE ESTATE OF THE LATE

LEODEGARIA VILLANUEVA. ELISA CUISON, ET AL.,
petitioners-appellants,
vs.
NICOLAS VILLANUEVA, ET AL., oppositors-appellees.
FLAVIANO LACSON, judicial administrator.
[G.R. No. L-3932

February 29, 1952]

Hilado and Hilado for appellants.

Parreo, Parreo, and Carreon for appellees.
Hizon and Arboleda for petitioner Manuel Cuison.
Paras, C.J., Pablo, Bengzon, Padilla, Reyes, Jugo and
Bautista Angelo, JJ., concur.
NATURE OF THE CASE: Appeal of the Order dated
2/18/1950 of the trial court (Judge Enriquez)
FACTS: MONTEMAYOR, J.:

On February 14, 1939, Manuel Cuison filed in the

CFI of Negros Occidental a petition for the probate
of the last will and testament of Leodegaria
Villanueva who died on December 14, 1938 (exhibit
"A").
The heirs instituted in said will were Reynaldo
Cuison (nephew) and 6 minor children Maria
Dolores, Hernando, Leonardo, Angel, Maria Jimena
and Telma, all surnamed Macasa (grandnephews
and nieces of testatrix).
Petitioner Manuel was appointed administrator
The petition for probate was opposed by Nicolas
Villanueva and others who claim to be relatives of
the testatrix.
On January 29, 1941, CFI (presided by Judge
Sotero Rodas) dismissed the petition based on the
"lack of management of applicant."
Upon motion, the order of dismissal was
reconsidered, but in an Order (11/28/1941), the
lower court denied the probate of the will and
declared that the deceased Leodegaria Villanueva
died intestate.
Upon another MR filed by Manuel the order of denial
of probate was reconsidered and Manuel was
ordered to secure a transcript of the stenographic
notes taken during the hearing of probate held on
March 15, 1941. This order of reconsideration was
dated December 6, 1941. One or two days later the
Pacific war broke out.
On December 16, 1948, the oppositor Nicolas
Villanueva, et al., moved for the definite dismissal of
the petition for probate.
On January 10, 1949, Judge Jose Teodoro,
definitely denied the petition for probate.
On January 22, 1949, petitioner Manuel filed a MR
of the order of denial of the petition for probate.
On August 16, 1949, Elisa, Ricardo, Josefina, Luis,
Hermenigilda (all surnamed Cuison, petitioners), for
the first time, entered the case, claiming to be

legitimate brothers and sisters of Reynaldo Cuison

the nephew of the testatrix Leodegaria
Villanueva instituted as one of the heirs in the
will.
They claimed that Reynaldo died intestate on
2/12/1939, two months after the death of the
testatrix.
They filed a petition for relief under 2 and
3, Rule 38 from the Order 1/10/1949
The petitioners claimed that Reynaldo (brother),
upon his death, left neither legitimate nor natural
acknowledged children, consequently, his only
heirs are the petitioners and their brother
Manuel.
PETITION FOR RELIEF: The petitioners alleged
that they had no actual knowledge of the order
of 1/10/1949, denying the probate of the will,
until the month of July, 1949; that up to the filing
of the petition for relief, petitioners had never
been direct or actual parties to the probate
proceedings but they were constructive parties,
since the proceedings were in rem and the order
of the denial of probate would affect them as
heirs of the legatee Reynaldo; that there nonappearance or participation in the probate
proceedings may be regarded as excusable
negligence; and that if they were given a
chance, they would prove the validity and the
due execution of the will in question and would
present the instrumental witnesses.
On 2/18/1950, the trial court (presided by Judge
Enriquez) denied the petition.
Judge Enriquez denied the petition on the
ground that, pursuant to the provisions of Article
925 of the Civil Code, present petitioner have no
right to represent their deceased brother,
Reynaldo, in the inheritance of the testatrix
Villanueva. They have no interest in the will or
the property involved and have no personality to
intervene in these proceedings by filing the
petition for relief.
From the order of 2/18/1950, denying the petition for
relief, petitioners Elisa Cuison et al., are appealing.

ISSUE: Do the petitioners have an interest in the will and

may they be allowed to intervene in the probate
proceedings and file the petition for relief under Rule 38?
YES
RULING:

Before any person may intervene in the proceedings

for the probate of a will, he should show an interest
in said will or the property affected thereby.
The lower court was correct in holding that under Art.
925(2), the right of representation shall take place
only in favor of children of brothers and sisters,
which the petitioners are not. However, the trial
court erred in holding and assuming that
petitioners Elisa Cuison et al., were invoking the

right to represent their brother Reynaldo Cuison,

for they were not.
The petitioners seek to inherit the legacy of their
brother provided for in the will for their own right
and not in representation of their deceased
brother. The law is clear that there is representation
only when relatives of a deceased person try to
succeed him in his rights which he would have had
still living.
Petitioners are not trying to succeed to the right to
the property of the testatrix, but rather to the right of
the legatee Reynaldo in said property.
Reynaldo had already succeeded his aunt (testatrix)
and had acquired the right to the legacy given by her
to him, upon her death, because under Arts. 657 and
651 the rights to the succession of a person
transmitted from the moment of his death and an
heir succeeds to all rights and obligations of the
decedent by the mere fact of the latter's death.
At the time of the death of the testatrix, Reynaldo
was still alive, but died two months after her
(testatrix) death. And upon his death, he transmitted
to his heirs (the petitioners), the legacy or the right to
succeed to the legacy, which he received by virtue of
the will.
The petitioners, as heirs of the legatee Reynaldo,
have an interest in the will or in the property affected
by it, they had the right to intervene in the probate
proceedings and to file the petition for relief under
Rule 38.

The order appealed from is SET ASIDE AND THIS

CASE IS ORDERED REMANDED to the trial court for
further proceedings, particularly to rule upon the petition
for relief on the basis of its merits.
76.2. Intestate estate of the late Florencia Diez.
SEGUNDO DIEZ, petitioner-appellee,
vs.
TOMAS SERRA for himself, and as guardian of the
minors Mercedes, Trinidad, Jose, Marcelino, Adriano
and Felix Serra, opponent-appellant.
[G.R. No. 27650

December 24, 1927]

Arroyo and Evangelista for appellant.

Hilado and Hilado for appellee.
Avancea, C.J., Street, Malcolm, Ostrand, Johns and
Villa-Real, JJ., concur.
NATURE OF THE CASE: Appeal from the decision of
the court denying the petition of the special appearance
raising legal questions relating to the jurisdiction of the
court that granted the letters of the administration
FACTS: VILLAMOR, J.:

On September 12, 1923, Segundo applied to the CFI

of Occidental Negros for letters of administration of
the estate of the deceased Florencia Diez.
Alleged that he is the brother of Florencia, who
died on 8/21/1921 in the municipality of Cadiz,

Province of Occidental Negros, in which

municipality she resided at the time of her death.
The deceased at the time of her death was a
widow, left no will and left realty consisting in a
share of 1-3 of lots Nos. 465 and 490 of Cadiz
Cadastral Case No. 25.
The deceased left seven children, Tomas Serra
(21), Mercedes Serra (18), Trinidad Serra (16),
Jose Serra (14), Marcelino Serra (17), Adriano
Serra (10) and Felix Serra (7).
The Florencia 's share in the lots is assessed at
P22,970.
On September 15, 1923, the court granted the
application. Subsequently, Segundo filed the bond
and on May 7, 1924, Segundo was appointed
administrator.
On October 7, 1924, he presented an inventory of
the property under his administration.
The administration functioned until July 31, 1926,
when Tomas Serra for and as guardian of his 6
minor brothers and sisters, put in a special
appearance, contesting that court's authority to take
cognizance of this intestate estate, on the ground
that the deceased resided in the municipality of San
Joaquin, Province of Iloilo, at the time of her death,
as evidenced by the death certificate (Exhibit A).
North Negros Sugar Co., Inc. filed an intervention in
this case, as creditor of the intestate estate for a
mortgage loan granted to the administrator, with the
authorization of the court, maintaining the validity of
these proceedings, and asking for the dismissal of
the special appearance of Tomas Serra et al.
The court denied the petition of the special
appearance.
Tomas Serra, et al. appealed from the decision and
their counsel, assigning the following errors:
(a) In finding itself competent and with
jurisdiction to take cognizance of and act in the
proceeding for the settlement of the intestate
estate of the deceased Florencia;
(b) in not holding that the proceedings had
herein are absolutely void ab initio because no
evidence has been heard or introduced anent
the facts alleged in the application, and
particularly anent those concerning its own
jurisdiction to take cognizance of this case;
(c) in finding that the question set up by the
herein petitioners as to the court's jurisdiction is
untimely and lacks the legal requisites for that
purpose;
(d) in holding that the herein appellants are now
estopped from questioning the regularity and
validity of its proceedings in this intestacy;
(e) in permitting the North Negros Sugar Co.,
Inc., to intervene in the matter of the questioning
of the court's jurisdiction.

ISSUE: Does the court have jurisdiction to grant the

letters of administration of the estate of Florencia?
YES

RULING:

600. Where resident's estate settled. If and

inhabitant of the Philippine Islands dies, whether a
citizen or alien, his will shall be proved, or letters of
administration granted, and his estate settled, in the
CFI in the province in which he resided at the time of
his death.
According to the allegations of the application
for letters of administration: The Florencia lived
at Cadiz, Occidental Negros at the time of her
death.
It is clear that the court a quo had
jurisdiction to grant the letters of administration
applied for.
In order to render valid a grant of letters of
administration, certain JURISDICTIONAL FACTS
must exist
(1) The person on whose estate the letters are
being granted is in fact dead; and
(2) At the time of death he was a resident of the
county wherein letters are being granted, or if
not a resident that he left assets in such county.
The fact of the death of the intestate and of his
residence within the county are foundation facts
upon which all the subsequent proceedings in
the administration of the estate rest, and that if
the intestate was not an inhabitant of the state at the
time of his death, and left no assets in the state, and
none came into it afterwards, no jurisdiction is
conferred on the court to grant letters of
administration in any county.
A probate court has jurisdiction to grant
administration of the estate of a person who at
the time of his decease was an inhabitant or
resident in the county, without proof that he left
an estate to be administered within the count. (11
R. C. L., par. 81.)
603 (Code of Civil Procedure) provides that the
jurisdiction assumed by a CFI for the settlement of
an estate, so far as it depends on the place of
residence of a person, or of the location of his
estate, shall not be contested in a suit or proceeding,
except in an appeal from the that court, in the
original case, or when the lack of jurisdiction
appears in the record.
In the present case, the lack of jurisdiction did not
appear in the record at the time when the court a
quo that appointed the administrator found itself
competent and no appeal was taken from the order
decreeing said appointment.
The administration has functioned for 2 years and
the appellants after that period have appeared in this
case, too late to avail themselves of the benefits
offered by 113 of the Code of Civil Procedure, and
it would seem that the only remedy left to them is to
ask for the reopening of the proceedings in the lower
court that assumed jurisdiction.

The decision appealed from should be, as it is hereby,

AFFIRMED, without special pronouncement as to costs.

76.3 In re estate of the deceased Ines Basa de

Mercado. JOAQUINA BASA, ET AL., petitionersappellants, vs. ATILANO G. MERCADO, respondentappellee.
[G.R. No. L-42226

July 26, 1935]

Briones and Martinez for appellants.

Jose Gutierrez David for appellee.
Malcolm, Villa-Real, Imperial, and Butte, JJ., concur.
NATURE OF THE CASE: Appeal
FACTS: GODDARD, J.:

By virtue of an order dated 6/27/1931, Hon. Reyes

(Judge of the CFI of Pampanga) allowed and
probated the last will and testament of Ines Basa
(deceased).
On 1/30/1932, the same judge approved the account
of the administrator of the estate, declared him the
only heir of the deceased under the will and closed
the administration proceedings.
On April 11, 1934, petitioners filed a motion praying
for the reopening of the proceedings, alleging that
the court lacked jurisdiction to act in the matter
because there was a failure to comply with
requirements as to the publication of the notice of
hearing prescribed in 630 of the Code of Civil
Procedure.
The trial judge (on 5/29/1931) ordered the
publication of the required notice for "three
weeks successively" prior to the time appointed
for the hearing on the will, the first publication
was on 6/6/1931, the third on 6/20/1931, but the
hearing took place on the 27th of that month,
only 21 days after the date of the first
publication instead of three full weeks before
the day set for the hearing.

ISSUE: Does 630 of the Code of Civil Procedure

require that the notice should be published for three full
weeks before the date set for the hearing on the will?
NO
RULING:

630. Court to appoint hearing on will. When a

will is delivered to a court having jurisdiction of the
same, the court shall appoint a time and place when
all concerned may appear to contest the allowance
of the will, and shall cause public notice thereof to be
given by publication in such newspaper or
newspapers as the court directs of general
circulation in the province, three weeks successively,
previous to the time appointed, and no will shall be
allowed until such notice has been given. At the

hearing all testimony shall be taken under oath,

reduced to writing and signed by the witnesses.
630 of our Code of Civil Procedure is taken from
the Code of Civil Procedure of the State of Vermont.
The Supreme Court of that State, commenting on
the phrase "three weeks successively," held:
The date of examining and allowing Barlett's
final account of administration and for decreeing
the residue of the estate to the lawful claimants
of the same was set by the probate court for
December 19, 1919 and an order was made to
this effect on November 28, 1919. The order
provided that notice should be given by
publication for three weeks successively in
the Essex County Herald. With this order, the
notice was published in the issues for December
4, 11 and 18, respectively. This was "public
notice" to all persons interested of the time and
place of examining and allowing said account
and making decree of distribution, and was
sufficient. The proceeding was according to law
in all respects, and being in the nature of a
proceeding in rem, it binds everybody by its
legal effect."
In the above cited case, the last of the three
publications was on 12/18/1919 and the hearing on
the administrators' final account was set for 12/19 of
that year, only 15 days after the date of the first
publication.
The language used in 630 does not mean that
the notice (referred therein), should be published
for three full weeks before the date set for the
hearing on the will. In other words the first
publication of the notice need not be made
twenty-one days before the day appointed for the
hearing.
Appellants contend that the trial court erred in ruling
that the weekly newspaper, Ing Katipunan, in which
the notice of hearing was published, was a
newspaper of general circulation in the Province of
Pampanga.
Record
shows
that Ing
Katipunan is
a
NEWSPAPER OF GENERAL CIRCULATION
because it (a) is published for the
dissemination of local news and general
information; (b) has a bona fide subscription list
of paying subscribers; (c) is published at regular
intervals.
The fact that there is another paper published in
Pampanga that has a few more subscribers (72
to be exact) and that certain Manila dailies have
a larger circulation in that province is
unimportant. The law does not require that
publication of the notice should be made in
the newspaper with the largest numbers is
necessary to constitute a newspaper of
general circulation.

The assignments of error of the appellants are overruled

and the appealed order of the trial court is AFFIRMED
with costs in this instance against the appellants.

76.4 ANGELA RODRIGUEZ, MARIA RODRIGUEZ, ET

AL., petitioners,
vs.
HON. JUAN DE BORJA, as Judge of the CFI of
Bulacan, Branch III,
ANATOLIA PANGILINAN and ADELAIDA
JACALAN, respondents.
[G.R. No. L-21993

June 21, 1966]

Lorenzo Somulong for petitioners.

Torres and Torres for respondents.
Concepcion, C.J., Barrera, Dizon, Regala, Makalintal,
Bengzon, J.P., Zaldivar and Sanchez, JJ., concur.
NATURE OF THE CASE: Petition for a writ of certiorari
and prohibition to the CFI of Bulacan, for its refusal to
grant the petitioners MTD its Special Proceeding No.
1331, which said Court is alleged to have taken
cognizance of without jurisdiction.
The facts are narrated in the order of the respondent
court (Order dated 6/13/1963).
FACTS: REYES, J.B.L., J.:

Fr. Celestino Rodriguez died on February 12, 1963

in the City of Manila. The parties stipulated that Fr.
Rodriguez was born in Paraaque, Rizal; he was
Parish priest of the Catholic Church of Hagonoy,
Bulacan (from 1930 up to the time of his death in
1963); he was buried in Paraaque and that he left
real properties in Rizal, Cavite, Quezon City and
Bulacan.
3/4/1963,
Apolonia
and
Adelaida
(private
respondents) delivered to the Clerk of Court of
Bulacan a purported last will and testament of Fr.
Rodriguez.
3/8/ 1963, Maria and Angela, through counsel filed a
petition for leave of court to allow them to examine
the alleged will. But on 3/11/1963 before the Court
could act on the petition, the same was withdrawn.
[COMMENTARIO: Two cases were filed on the
same day: (a) probate for the will in Bulacan by the
respondents and (b) intestate proceedings (SP3907)
by petitioners. The MTD was filed and denied before
the CFI of Bulacan.]
On 3/12/1963, the petitioners filed before the CFI
of Rizal a petition for the settlement of the
intestate estate of Fr. Rodriguez alleging that Fr.
Rodriguez was a resident of Paraaque, Rizal,
and died without leaving a will and praying that
Maria Rodriguez be appointed as Special
Administratrix of the estate (Sp. Proceedings No.
3907).
On 3/12/1963 Apolonia and Adelaida filed a
petition in before the CFI of Bulacan for the
probation of the will delivered by them on
3/4/1963.

The petitioners filed a MTD alleging that the

court has no jurisdiction in view of the pendency
of another action for the settlement of the estate
of the deceased Fr. Rodriguez in the CFI of
Rizal (Sp. Proceedings No. 3907).
The movants contend that since the intestate
proceedings in the CFI of Rizal was filed at 8:00
A.M. on 3/12/1963 while the petition for probate
was filed in the CFI of Bulacan at 11:00 A.M. on
the same date, the latter Court has no
jurisdiction to entertain the petition for probate,
citing as authority in support thereof the case
of Ongsingco Vda. de Borja vs. Tan and De
Borja, G.R. No. 7792, July 27, 1955.
Pangilinan and Jacalan contend that the CFI of
Bulacan acquired jurisdiction over the case upon
delivery by them of the will to the Clerk of Court
on 3/4/1963 and should take precedence over
the case filed in Rizal.
CFI denied the MTD, on the ground that a difference
of a few hours did not entitle one proceeding to
preference over the other. As early as March 7,
movants were aware of the existence of the
purported will of Fr. Rodriguez since they filed a
petition to examine the same and that movants
clearly filed the intestate proceedings in Rizal for no
other purpose than to prevent this Court (of Bulacan)
from exercising jurisdiction over the probate
proceedings. Reconsideration was denied.

ISSUE: Did the CFI of Bulacan acquire jurisdiction upon

delivery thereto of the will on 3/4/1963, even if the
petition for the allowance of the will was filed only on
3/12/1963? YES
RULING:
The jurisdiction of the CFI of Bulacan became vested
upon the delivery of the will, even if no petition for its
allowance was filed until later, because upon the will
being deposited the court could, motu proprio, have
taken steps to fix the time and place for proving the
will, and issued the corresponding notices
conformably to what is prescribed by 3, Rule 76.
3. Court to appoint time for proving will. Notice
thereof to be published. When a will is
delivered to, OR a petition for the allowance
of a will is filed in, the Court having
jurisdiction, such Court shall fix a time and
place for proving the will when all concerned
may appear to contest the allowance thereof,
and shall cause notice of such time and place to
be published 3 weeks successively, previous to
the time appointed, in a newspaper of general
circulation in the province.
The use of the disjunctive in the words "when a will
is delivered to OR a petition for the allowance of
a will is filed" indicates that the court may act
upon the mere deposit therein of a decedent's
testament, even if no petition for its allowance is
as yet filed. Where the petition for probate is
made after the deposit of the will, the petition is

deemed to relate back to the time when the will

was delivered.
The testament of Fr. Rodriguez was submitted and
delivered to the Court of Bulacan on March 4, while
petitioners initiated intestate proceedings in the CFI
of Rizal only on March 12, eight days later, the
precedence and exclusive jurisdiction of the Bulacan
court is incontestable.

Meaning of the Court having jurisdiction: Law of

Jurisdiction vs. Law of Procedure
Petitioners objected and contended that 3 of Rule
76 speaks of a will being delivered to "the Court
having jurisdiction" and in the case at bar the
Bulacan court did not have jurisdiction because the
decedent was domiciled in Rizal province.
The Court ruled that the power to settle decedents'
estates is conferred by law upon all courts of first
instance, and the domicile of the testator only
affects the venue but not the jurisdiction of the
Court. .
In the Kaw Singco case the Court ruled that:
The law of jurisdiction [Act No. 136, 56(5)]
confers upon CFI jurisdiction over all probate
cases independently of the place of residence of
the deceased1 (Now 44 (e) of the Judiciary
Act). However, since there are many CFI in the
Philippines, the Law of Procedure (Act No. 190,
600), fixes the venue or the place where each
case shall be brought. Thus, the place of
residence of the deceased is not an element
of jurisdiction over the subject matter but
merely of venue. And it is upon this ground
that in the new Rules of Court the province
where the estate of a deceased person shall
be settled is properly called "venue" (Rule
75, 1.) Motion for reconsideration is denied.
The estate proceedings having been initiated in the
Bulacan CFI ahead of any other, that court is entitled
to assume jurisdiction to the exclusion of all other
courts, even if it were a case of wrong venue by
express provisions of Rule 73.
The disposition presupposes that two or more
courts have been asked to take cognizance of
the settlement of the estate. Of them only one
could be of proper venue, yet the rule grants
precedence to that Court whose jurisdiction is
first invoked, without taking venue into account.
Bad Faith on the Petitioners Part and Precedence of
Probate of Will over Intestate Proceedings
The commencement of the intestate proceedings in
Rizal was clearly an act done with bad faith
(commenced after petitioners learned of the delivery
of the decedent's will to the Court of Bulacan) and
patently done with a view to divest the latter court of
the precedence.
The order of priority established in Rule 73 was not
designed to convert the settlement of decedent's
estates into a race between applicants, with the

administration of the properties as the price for the

fleetest.
Intestate succession is only subsidiary or
subordinate to the testate, since intestacy only
takes place in the absence of a valid operative
will [Article 960 of the Civil Code was cited].
Therefore, only after final decision as to the nullity of
testate succession could an intestate succession be
instituted in the form of pre-established action. The
institution of intestacy proceedings in Rizal may not
thus proceed while the probate of the purported will
of Father Rodriguez is pending.
The Bulacan CFI was entitled to priority in the
settlement of the estate and in refusing to dismiss
the probate proceedings, said court did not commit
any abuse of discretion. It is the proceedings in the
Rizal Court that should be discontinued.

Wherefore, the writ of certiorari applied for is DENIED.

Costs against petitioners Rodriguez.

76.5 CONSTANTINO C. ACAIN, petitioner,

vs.
HON. INTERMEDIATE APPELLATE COURT (Third
Special Cases Division), VIRGINIA A. FERNANDEZ
and ROSA DIONGSON, respondents.
[G.R. No. 72706

October 27, 1987]

Teehankee, C.J., Yap, Fernan, Narvasa, Gutierrez, Jr.,

Cruz, Feliciano, Gancayco, Padilla, Bidin, Sarmiento
and Cortes, JJ., concur.
NATURE OF THE CASE: Petition for review on
certiorari of the CAs decision (penned by Justice Jose A.
R. Melo and concurred in by Justices Milagros A.
German and Nathanael P. De Pano, Jr.), promulgated on
8/30/1985, ordering the dismissal of the petition in SP
No. 591 ACEB and its Resolution issued on 10/23/1985
denying Acains MR.
FACTS: PARAS, J.:

On 5/29/1984, Constantino Acain filed on the RTC

of Cebu City Branch XIII, a petition for the
probate of the will of the late Nemesio Acain and
for the issuance to the same petitioner of letters
testamentary (SP No. 591 ACEB), on the premise
that Nemesio Acain died leaving a will in which
petitioner and his brothers Antonio, Flores and Jose
and his sisters Anita, Concepcion, Quirina and Laura
were instituted as heirs.
The will allegedly executed by Nemesio Acain on
2/17/1960 was written in Bisaya with a translation in
English submitted by petitioner without objection
raised by private respondents.
The will contained provisions on burial rites,
payment of debts, and the appointment of a certain
Atty. Ignacio G. Villagonzalo as the executor of the

testament. On the disposition of the testator's

property, the will provided:
THIRD: All my shares that I may receive from
our properties. house, lands and money which I
earned jointly with my wife Rosa Diongson shall
all be given by me to my brother SEGUNDO
ACAIN Filipino, widower, of legal age and
presently residing at 357-C Sanciangko Street,
Cebu City. In case my brother Segundo Acain
pre-deceased me, all the money properties,
lands, houses there in Bantayan and here in
Cebu City which constitute my share shall be
given to me to his children, namely: Anita,
Constantino, Concepcion, Quirina, laura, Flores,
Antonio and Jose, all surnamed Acain.
Segundo pre-deceased Nemesio. Thus, it is the
children of Segundo who are claiming to be heirs,
with Constantino as the petitioner in SP No. 591
ACEB
The petition was set for hearing in on 6/25/1984 the
oppositors (respondents) Virginia A. Fernandez, a
legally adopted daughter of the deceased and the
latter's widow Rosa Diongson Vda. de Acain filed a
MTD: (1) petitioner has no legal capacity to institute
the proceedings; (2) he is merely a universal heir
and (3) the widow and the adopted daughter have
been preterited. The motion was denied by the trial
judge.
MR was denied, then respondents filed with the SC
a petition for certiorari and prohibition with
preliminary injunction which was subsequently
referred to the IAC by Resolution of the Court dated
3/11/1985.
The IAC granted respondents' petition and
ordered the trial court to dismiss the petition for
the probate of the will of Nemesio Acain in SP
No. 591 ACEB.
His MR having been denied, petitioner filed the
instant petition on 12/18/1985.
Petitioner raises the following issues (Memorandum
for petitioner):
(A) The petition filed in AC-G.R. No. 05744 for
certiorari and prohibition with preliminary injunction
is not the proper remedy under the premises;
(B) The authority of the probate courts is limited
only to inquiring into the extrinsic validity of the
will sought to be probated and it cannot pass
upon the intrinsic validity thereof before it is
admitted to probate;
(C) The will of Nemesio Acain is valid and must
therefore, be admitted to probate. The preterition
mentioned in Article 854 of the New Civil Code refers
to preterition of "compulsory heirs in the direct line,"
and does not apply to private respondents who are
not compulsory heirs in the direct line; their omission
shall not annul the institution of heirs;
(D) DICAT TESTATOR ET MERIT LEX. What the
testator says will be the law;
(E) There may be nothing in Article 854 of the New
Civil Code, that suggests that mere institution of a
universal heir in the will would give the heir so

instituted a share in the inheritance but there is a

definite distinct intention of the testator in the case at
bar, explicitly expressed in his will. This is what
matters and should be in violable.
(F) As an instituted heir, petitioner has the legal
interest and standing to file the petition in Sp. Proc.
No. 591 ACEB for probate of the will of Nemesio
Acain and
(G) Article 854 of the New Civil Code is a bill of
attainder. It is therefore unconstitutional and
ineffectual.
[COMMENTARIO: The main issue related to
SpecPro is error (B); preterition is the main issue in
this case. However, this case is an exception to the
general rule that in probate proceedings, the
extrinsic validity of the will must be first passed upon
before the intrinsic validity of the will.]

ISSUE: May the probate court inquire into the intrinsic

validity of the will before it is admitted to probate? YES
RULING:

Preterition of the Adopted Child

Article 854 of the Civil Code: The preterition or
omission of one, some, or all of the compulsory heirs
in the direct line, whether living at the time of the
execution of the will or born after the death of the
testator, shall annul the institution of heir; but the
devisees and legacies shall be valid insofar as they
are not; inofficious. If the omitted compulsory heirs
should die before the testator, the institution shall he
effectual, without prejudice to the right of
representation.
Preterition consists in the omission in the testator's
will of the forced heirs or anyone of them either
because they are not mentioned therein, or, though
mentioned, they are neither instituted as heirs nor
are expressly disinherited. Insofar as the widow is
concerned, Art. 854 of the Civil Code may not
apply as she does not ascend or descend from
the testator, although she is a compulsory heir.
Stated otherwise, even if the surviving spouse is a
compulsory heir, there is no preterition even if
she is omitted from the inheritance, for she is
not in the direct line. However, the same thing
cannot be said of the other respondent Virginia A.
Fernandez, whose legal adoption by the testator has
not been questioned by petitioner.
Under Art. 39 of P.D. No. 603 (Child and Youth
Welfare Code), adoption gives to the adopted
person the same rights and duties as if he were a
legitimate child of the adopter and makes the
adopted person a legal heir of the adopter. She
has been totally omitted and preterited in the will
of the testator and that both adopted child and
the widow were deprived of at least their
legitime.
Preterition annuls the institution of an heir and
annulment throws open to intestate succession
the entire inheritance including " free portion

(which) had no provisions legacy virtual

improvement or donation."
The universal institution of petitioner together with
his brothers and sisters to the entire inheritance of
the testator results in totally abrogating the will
because the nullification of such institution of
universal heirs-without any other testamentary
disposition in the will-amounts to a declaration that
nothing at all was written.

Intervention of a Person in a Probate Proceeding

In order that a person may be allowed to intervene in
a probate proceeding he must have an interest in
the estate, or in the will, or in the property to be
affected by it either as executor or as a claimant
of the estate and an interested party is one who
would be benefited by the estate such as an heir
or one who has a claim against the estate like a
creditor.
Petitioner is not the appointed executor, neither a
devisee or a legatee there being no mention in the
testamentary disposition of any gift of an individual
item of personal or real property he is called upon to
receive.
At the outset, he appears to have an interest in the
will as an heir, defined under Article 782 of the Civil
Code as a person called to the succession either by
the provision of a will or by operation of law.
However, intestacy having resulted from the
preterition of the adopted child and the universal
institution of heirs, petitioner is in effect not an
heir of the testator. He has no legal standing to
petition for the probate of the will left by the
deceased and SP No. 591 A-CEB must be
dismissed.

Probate of a Will pertains to the Extrinsic Validity;

Exceptions
SP No. 591 ACEB is for the probate of a will. The
GENERAL RULE is that the probate court's
authority is limited only to the extrinsic validity of the
will, the due execution thereof, the testator's
testamentary capacity and the compliance with the
requisites or solemnities prescribed by law. The
intrinsic validity of the will normally comes only after
the Court has declared that the will has been duly
authenticated. The court at this stage of the
proceedings is not called upon to rule on the intrinsic
validity or efficacy of the provisions of the will.
EXCEPTION: The probate court is not powerless to
do what the situation constrains it to do and pass
upon certain provisions of the will. In Nuguid v.
Nuguid, the oppositors to the probate moved to
dismiss on the ground of absolute preterition The
probate court acting on the motion held that the will
in question was a complete nullity and dismissed the
petition. The SC upheld the decision of the probate
court, the Court said: If the case were to be
remanded for probate of the will, nothing will be
gained. On the contrary, this litigation will be
protracted. And for aught that appears in the record,

in the event of probate or if the court rejects the will,

probability exists that the case will come up once
again before us on the same issue of the intrinsic
validity or nullity of the will result: waste of time,
effort, expense, plus added anxiety. These are the
practical considerations that induce us to a belief
that we might as well meet head-on the issue of the
validity of the provisions of the will in question. After
all there exists a justiciable controversy crying for
solution.
For private respondents to have tolerated the
probate of the will and allowed the case to
progress when on its face the will appears to be
INTRINSICALLY VOID as petitioner and his
brothers and sisters were instituted as universal
heirs coupled with the obvious fact that one of
the private respondents had been preterited
would have been an exercise in futility. It would
have meant a waste of time, effort, expense, plus
added futility. The TC could have denied its
probate outright or could have passed upon the
intrinsic validity of the testamentary provisions
before the extrinsic validity of the will was resolved.
The remedies of certiorari and prohibition were
properly availed of by private respondents.

Barredo, J., reserves his vote.

NATURE OF THE CASE: Petition for Certiorari of the
Order of Judge Vasquez requiring him to pay docket
fees in the amount of P940.00
FACTS: FERNANDO, J.:

76.6 REV. FATHER LUCIO V. GARCIA, petitioner,

vs.
HON. CONRADO M. VASQUEZ, respondent.

In sum, the decedent executed 2 wills, Fr. Garcia is in

possession of the decedents 1956 testament. He
sought to file the probate of such will in the Sp. Proc.
62618 (pending before the respondent court), but he
was ordered to pay docket fees. The Court affirmed the
probate courts order (3/28 group) because the Court
contended that Fr. Garcia is filing a separate action. In
the Resolution below (5/23), the Court agreed with the
petitioner.

ISSUE: Did the commit an error in ordering the payment

of the docket fee? NO
RULING:

G.R. No. L-26808

March 28, 1969

Antonio Enrile Inton and Conrado B. Enriquez for

petitioner.
No appearance for respondent.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal,
Zaldivar, Sanchez, Castro, Capistrano and Teehankee,
JJ., concur.

Payment was made by Fr. Garcia on 12/2/1965,

coupled with a reservation that he would seek a
definite ruling from the SC.
He was of the belief that no such fee should be
collected as previously another alleged will of
the same deceased was filed for probate by
another party with the corresponding docket fee
having been paid. He asserted that after
payment by the original petitioner (Gonzales),
there is no more need to pay additional or
separate docket fees for their petitions, since
they all refer to the settlement of only one
estate, the Estate of Gliceria A. del Rosario.

PREMISES CONSIDERED, the petition is hereby

DENIED for lack of merit and the questioned decision of
respondent Court of Appeals promulgated on August 30,
1985 and its Resolution dated October 23, 1985 are
hereby AFFIRMED.

COMMENTARIO: The case includes a main Decision

(dated 3/28/1969) and the Resolution of the Petitioners
Motion for Reconsideration from the main decision
(dated 5/23/1969, see Resolution below). 2 cases ung
nakita ko friends, maikli lang naman, sinama ko na.

A Petition for Probate for the will of the decedent,

Gliceria A. del Rosario was filed by Consuelo
Gonzales.
Judge Vasquez, in an Order dated 11/6/1965,
ordered "Oppositor, Fr. Lucio Garcia to pay the
corresponding fees of the filing of his petition for
allowance of will and issuance of letters of
administration with the will annexed, dated
11/30/1965 within 15 days from notice hereof, failure
of which the said petition will be considered
dismissed.

Respondent Judge did not even bother to answer

the petition. It is understandable why. On its face, it
is obviously without merit. A petition for probate of
a will having been filed by petitioner, he could
not escape the payment of the corresponding
docket fee. The argument based on the
allegation that there was such a previous
payment in connection with another will of the
same decedent sought to be probated does not
carry the day. It is bereft of any persuasive force.
Petitioner should have been aware that there is no
escape from the payment of the corresponding
docket fee, otherwise, the Court is not called upon to
act on a complaint or petition. Nor does it suffice to
vary the rule simply because there is only one
decedent whose estate is thus to be disposed of
by will that must first be probated. It is not
farfetched or implausible that a decedent could
have left various wills. Under such circumstances,
there is nothing inherently objectionable in thus

exacting the payment of a docket fee, every time a

will is sought to be probated. Petitioner here could
have sought the probate of the will presented by him
in the same proceeding. He did not; he filed instead
a separate action.

The Rules of Court require that for all clerical

services in the allowance of will, the "fees payable
out of the estate shall be collected in accordance
with the value of the property involved." The specific
legal provision is thus clear and unmistakable. It is
the clerical service in the allowance of the will that
has to be paid for. The docket fees exist for that
purpose and must be collected at the outset. There
is no exception according to the above legal
provision. It needs no interpretation. It must be
applied in accordance with the specific language
thus employed.

Respondent Judge acted in accordance with the

clear tenor of the controlling legal norm. The alleged
grievance of petitioner that there was a grave abuse
of discretion does not merit any attention. As a
matter of fact, on this point, respondent Judge had
no discretion to abuse. The docket fees had to be
paid. There is no escape for petitioner.

WHEREFORE, this petition for certiorari is denied.

G.R. No. L-26808

NATURE OF THE CASE: MR of the decision of

3/28/1969
FACTS: FERNANDO, J.:

WHEREFORE, the decision of March 28, 1969 is set

aside and the petition for certiorari granted, with
petitioner being thus entitled to the refund of the second
docket fee of P940.00 paid under Receipt No. J1459986 issued on December 2, 1965, and the order of
respondent Court of November 6, 1965 ordering such
payment of the second docket fee annulled. Without
pronouncement as to costs.
76.7 APOLONIA BANAYAD FRIANELA, Petitioner,
vs.
SERVILLANO BANAYAD, JR., Respondent.

May 23, 1969*

Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez and

Capistrano, JJ., concur.
Teehankee and Barredo, JJ., took no part.
Concepcion, C.J., and Castro, J., are on leave.

In the opinion rendered in main case, the Court

stated: Petitioner should have been aware that
there is no escape from the payment of the
corresponding docket fee, otherwise, the Court is not
called upon to act on a complaint or petition. Nor
does it suffice to vary the rule simply because there
is only one decedent whose estate is thus to be
disposed of by will that must first be probated. It is
not farfetched or implausible that a decedent could
have left various wills. Under such circumstances,
there is nothing inherently objectionable in thus
exacting the payment of a docket fee, every time
a will is sought to be probated. Petitioner here
could have sought the probate of the will presented
by him in the same proceeding. He did not; he filed
instead a separate action.
While not disputing the correctness of the above
principle, petitioner, in this MR, would assert that

he did NOT file a separate action "but instead

elected to file the probate of the decedent's 1956
Will in the same Sp. Proc. 62618, then pending
before the respondent Court."
Petitioner's statement of fact is correct. Under
the circumstances then, while the doctrine to the
effect that a court of justice is not called upon to act
on a complaint will petition in the absence of a
payment of the corresponding docket fee every time
a will is sought to be probated must be considered
as subsisting, it finds no application to the
present case, as petitioner did not file a separate
action but instead sought to have the other will
probated in the same special proceedings then
pending before respondent Court. He is
therefore entitled to have our decision
reconsidered.

[G.R. No. 169700

July 30, 2009]

NATURE OF THE CASE:

Petition for review on
certiorari under Rule 45 assailing the CA decision 6/17/
2005 Decision (Penned by Associate Justice Arturo D.
Brion, with Associate Justices Eugenio S. Labitoria and
Eliezer R. De Los Santos concurring) and the 8/17/2005
Resolution
denying
the
motion
for
partial
reconsideration.
FACTS: NACHURA, J.:

Testator Moises F. Banayad died. Apolonia (named

as devisee in the will) filed before the RTC of Pasay
City (6/3/1999, Sp. Proc. No. 3664-P) for the
allowance of the 11/18/1985 holographic will of the
decedent.
Petitioner alleged that Moises died without issue and
left to her the following properties, namely: (1) a
parcel of land situated in Pasay City and described
in Transfer Certificate of Title No. 9741; (2) images
of Oracion del Huerto and Pieta including the crown;
and (3) all personal belongings.
Servillano, cousin of Apolonia, filed his opposition
and counter-petitioned for the allowance of two
other holographic wills of the decedent, one
dated 9/27/1989 and another dated 9/28/1989.
RTC (9/29/1995) declared the 9/27/1989 holographic
will as having revoked the 11/18/1985 will, allowing

the former and appointing respondent as

administrator of Moisess estate.
CA (6/17/2005 Decision), modified the decision of
the trial court and ruled that the 9/27/1989
holographic will had only revoked the 11/18/1985
will insofar as the testamentary disposition of
Moises real property was concerned.
Petitioners MR was denied (8/17/ 2005 Resolution).
Hence, the instant petition.
The Court notes that the trial court focused all of its
attention on the merits of the case without first
determining whether it could have validly exercised
jurisdiction to hear and decide Sp. Proc. No. 3664-P.
On appeal, the appellate court also overlooked the
issue on the jurisdictional competence of the trial
court over the said case. The Court, after a
meticulous review of the records, finds that the
RTC of Pasay City had no jurisdiction over the
subject matter in Sp. Proc. No. 3664-P.

RULING:

The jurisdiction of the court to hear and decide a

case is conferred by the law in force at the time
of the institution of the action unless such
statute provides for a retroactive application
thereof.12 Jurisdiction is moreover determined by
the allegations or averments in the complaint or
petition.
In this case, at the time the petition for the allowance
of Moisess holographic will was instituted, the then
19 and 3314 of B.P. Blg. 12915 were in force, [citation
omitted; 19 pertains to the Jurisdiction of the RTC;
33 refers to the jurisdiction of the MTC].
The applicable law confers jurisdiction on the
RTC or the MTCs over probate proceedings
depending on the gross value of the estate,
which value must be alleged in the complaint or
petition to be filed.
In this case, the original petition docketed before the
trial court does not contain any averment as to the
gross value of Moisess estate. Thus, from a reading
of the original petition filed, it cannot be determined
which court has original and exclusive jurisdiction
over the proceedings.
The RTC committed gross error when it had
perfunctorily assumed jurisdiction despite the
fact that the initiatory pleading filed before it did
not call for the exercise of its jurisdiction. The
RTC should have, at the outset, dismissed the case
for lack of jurisdiction. The dismissal on the said
ground may be ordered motu proprio by the courts.
Further, the CA, on appeal, should have dismissed
the case on the same ground. Settled is the doctrine
that the issue of jurisdiction may be raised by any of
the parties or may be reckoned by the court, at any
stage of the proceedings, even on appeal, and is not
lost by waiver or by estoppel.
Despite the pendency of this case for around 18
years, the exception laid down in Tijam v.

Sibonghanoy and clarified recently in Figueroa v.

People cannot be applied.
First, because, as a general rule, the principle of
estoppel by laches cannot lie against the
government. No injustice to the parties or to any
third person will be wrought by the ruling that the
trial court has no jurisdiction over the instituted
probate proceedings.
Second and most important, because in Tijam,
the delayed invocation of lack of jurisdiction
has been made during the execution stage of
a final and executory ruling of a court. In
Figueroa, the Court has emphasized that
estoppel by laches only supervenes in
exceptional cases similar to the factual milieu in
Tijam.
In Tijam, the issue of lack of jurisdiction has only
been raised during the execution stage, specifically
when the matter of the trial courts denial of the
suretys motion to quash the writ of execution has
been brought to the appellate court for review.
In this case, the trial courts assumption of
unauthorized jurisdiction over the probate
proceedings has been discovered by the Court
during the appeal stage of the main case, not
during the execution stage of a final and
executory decision. Thus, the exceptional rule
laid down in Tijam cannot apply.
Since the RTC has no jurisdiction over the action, all
the proceedings therein, including the decision
rendered, are null and void. 25 With the above
disquisition, the Court finds it unnecessary to
discuss and resolve the other issues raised in the
petition.
[COMMENTARIO: The issue of jurisdiction was
never raised by the Petitioner or included in her
Memorandum.]

IN THE LIGHT OF THE FOREGOING, Sp. Proc. No.

3664-P before the RTC of Pasay City is DISMISSED for
lack of jurisdiction.