G.R. No.

16680

September 13, 1920

BROADWELL
HAGANS, petitioner,
vs.
ADOLPH WISLIZENUS, Judge of First Instance of Cebu,
ET AL., respondents.
JOHNSON, J.:
This is an original petition, presented in the Supreme Court, for
writ of certiorari. The facts alleged in the petition are admitted
by a demurrer. The only question presented is, whether or not
a judge of the Court of First Instance, in "special proceedings,"
is authorized under the law to appoint assessors for the
purpose of fixing the amount due to an administrator or
executor for his services and expenses in the care,
management, and settlement of the estate of a deceased
person.
The respondent judge, in support of his demurrer, argues that
the provision of Act No. 190 permit him to appoint assessors in
"special proceedings," The petitioner contends that no authority
in law exists for the appointment of assessors in such
proceedings.

From all of the foregoing we are driven to the conclusion that in

proceedings like the present the judge of the Court of First
Instance is without authority to appoint assessors. Therefore,
the demurrer is hereby overruled and the prayer of the petition
is hereby granted, and it is hereby ordered and decreed that
the order of the respondent judge appointing the assessors
described in the petition be and the same is hereby annulled
and set aside; and, without any finding as to costs, it is so
ordered.

[G.R. No. 129242. January 16, 2001] PILAR S. VDA. DE

MANALO, ANTONIO S. MANALO, ORLANDO S. MANALO,
and ISABELITA MANALO, petitioners, vs. HON. COURT OF
APPEALS, HON. REGIONAL TRIAL COURT OF MANILA
(BRANCH 35), PURITA S. JAYME, MILAGROS M. TERRE,
BELEN M. ORILLANO, ROSALINA M. ACUIN, ROMEO S.
MANALO, ROBERTO S. MANALO, AMALIA MANALO and
IMELDA MANALO, respondents.

DECISION
DE LEON, JR., J.:

The only provisions of law which authorize the appointment of

assessors are the following; (a) Section 57-62 of Act No. 190;
(b) sections 153-161 of Act No. 190; (c) section 44 (a) of Act
No. 267; (d) section 2477 of Act No. 2711; and (e) section 2 of
Act No. 2369.
Said section 44 (a) of Act No. 267 and section 2477 of Act No.
2711 apply to the city of Manila only. Act No. 2369 provides for
the appointment of assessors in criminal cases only. Sections
57-62 of Act No. 190 provide for the appointment of assessors
in the court of justice of the peace. Therefore, the only
provisions of law which could, by any possibility, permit the
appointment of assessors in "special proceedings" are sections
153-161 of Act No. 190.
Section 154 provides that "either party to an action may apply
in writing to the judge for assessors to sit in the trial. Upon the
filing of such application, the judge shall direct that assessors
be provided, . . . ."
Is a "special proceeding," like the present, an "action"? If it is,
then, the court is expressly authorized by said section 154 to
appoint assessors. But we find, upon an examination of section
1 of Act No. 190, which gives us an interpretation of the words
used in said Act, that a distinction is made between an "action"
and a "special proceeding." Said section 1 provides that an
"action" means an ordinary suit in a court of justice, while
"every other remedy furnished by law is a 'special proceeding."
In view of the interpretation given to the words "action" and
"special proceeding" by the Legislature itself, we are driven to
the conclusion that there is a distinction between an "action"
and a "special proceeding," and that when the Legislature used
the word "action" it did not mean "special proceeding."
There is a marked distinction between an "action" and a
"special proceeding. "An action is a formal demand of one's
legal rights in a court of justice in the manner prescribed by the
court or by the law. It is the method of applying legal remedies
according to definite established rules. (People vs. County
Judge, 13 How. Pr. [N. Y.], 398.) The term "special proceeding"
may be defined as an application or proceeding to establish
the status or right of a party, or a particular fact.
(Porter vs. Purdy, 29 N. Y., 106, 110; Chapin vs. Thompson, 20
Cal., 681.) Usually, in special proceedings, no formal pleadings
are required, unless the statute expressly so provides. The
remedy in special proceedings is generally granted upon an
application or motion. Illustrations of special proceedings, in
contradistinction to actions, may be given: Proceedings for the
appointment of an administrator, guardians, tutors; contest of
wills; to perpetuate testimony; to change the name of persons;
application for admission to the bar, etc., etc. (Bliss on Code
Pleading, 3d ed., sec. 1.)

This is a petition for review on certiorari filed by

petitioners Pilar S. Vda. De Manalo, et. al., seeking to annul
the Resolution[1] of the Court of Appeals[2] affirming the
Orders[3] of the Regional Trial Court and the Resolution[4]which
denied petitioners motion for reconsideration.
The antecedent facts[5] are as follows:
Troadio Manalo, a resident of 1966 Maria Clara Street,
Sampaloc, Manila died intestate on February 14, 1992. He
was survived by his wife, Pilar S. Manalo, and his eleven (11)
children, namely: Purita M. Jayme, Antonio Manalo, Milagros
M. Terre, Belen M. Orillano, Isabelita Manalo, Rosalina M.
Acuin, Romeo Manalo, Roberto Manalo, Amalia Manalo,
Orlando Manalo, and Imelda Manalo, who are all of legal age.
At the time of his death on February 14, 1992, Troadio
Manalo left several real properties located in Manila and in the
province of Tarlac including a business under the name and
style Manalos Machine Shop with offices at No. 19 Calavite
Street, La Loma, Quezon City and at No. 45 Gen. Tinio Street,
Arty Subdivision, Valenzuela, Metro Manila.
On November 26, 1992, herein respondents, who are
eight (8) of the surviving children of the late Troadio Manalo,
namely: Purita, Milagros, Belen, Rosalina, Romeo, Roberto,
Amalia, and Imelda filed a petition [6] with the respondent
Regional Trial Court of Manila[7] for the judicial settlement of the
estate of their late father, Troadio Manalo, and for the
appointment of their brother, Romeo Manalo, as administrator
thereof.
On December 15, 1992, the trial court issued an order
setting the said petition for hearing on February 11, 1993 and
directing the publication of the order for three (3) consecutive
weeks in a newspaper of general circulation in Metro Manila,
and further directing service by registered mail of the said
order upon the heirs named in the petition at their respective
addresses mentioned therein.
On February 11, 1993, the date set for hearing of the
petition, the trial court issued an order declaring the whole
world in default, except the government, and set the reception
of evidence of the petitioners therein on March 16,
1993. However, this order of general default was set aside by
the trial court upon motion of herein petitioners (oppositors
therein) namely: Pilar S. Vda. De Manalo, Antonio, Isabelita
and Orlando who were granted ten (10) days within which to
file their opposition to the petition.
Several pleadings were subsequently filed by herein
petitioners, through counsel, culminating in the filing of an
Omnibus Motion[8] on July 23, 1993 seeking: (1) to set aside
and reconsider the Order of the trial court dated July 9, 1993
which denied the motion for additional extension of time to file
opposition; (2) to set for preliminary hearing their affirmative
defenses as grounds for dismissal of the case; (3) to declare

that the trial court did not acquire jurisdiction over the persons
of the oppositors; and (4) for the immediate inhibition of the
presiding judge.
On July 30, 1993, the trial court issued an order [9] which
resolved, thus:
A. To admit the so-called Opposition filed by
counsel for the oppositors on July 20, 1993, only
for the purpose of considering the merits thereof;
B. To deny the prayer of the oppositors for a
preliminary hearing of their affirmative defenses
as ground for the dismissal of this proceeding,
said affirmative defenses being irrelevant and
immaterial to the purpose and issue of the
present proceeding;
C. To declare that this court has acquired
jurisdiction over the persons of the oppositors;
D. To deny the motion of the oppositors for the
inhibition of this Presiding Judge;
E. To set the application of Romeo Manalo for
appointment as regular administrator in the
intestate estate of the deceased Troadio Manalo
for hearing on September 9, 1993 at 2:00
oclock in the afternoon.
Herein petitioners filed a petition for certiorari under Rule
65 of the Rules of Court with the Court of Appeals, docketed as
CA-G.R. SP. No. 39851, after their motion for reconsideration
of the Order dated July 30, 1993 was denied by the trial court
in its Order[10] dated September 15, 1993. In their petition
for certiorari with the appellate court, they contend that: (1) the
venue was improperly laid in SP. PROC. No. 92-63626; (2) the
trial court did not acquire jurisdiction over their persons; (3) the
share of the surviving spouse was included in the intestate
proceedings; (4) there was absence of earnest efforts toward
compromise among members of the same family; and (5) no
certification of non-forum shopping was attached to the
petition.
Finding the contentions untenable, the Court of Appeals
dismissed
the
petition
for
certiorari
in
its
Resolution[11] promulgated on September 30, 1996. On May 6,
1997 the motion for reconsideration of the said resolution was
likewise dismissed.[12]
The only issue raised by herein petitioners in the instant
petition for review is whether or not the respondent Court of
Appeals erred in upholding the questioned orders of the
respondent trial court which denied their motion for the outright
dismissal of the petition for judicial settlement of estate despite
the failure of the petitioners therein to aver that earnest efforts
toward a compromise involving members of the same family
have been made prior to the filing of the petition but that the
same have failed.
Herein petitioners claim that the petition in SP. PROC No.
92-63626 is actually an ordinary civil action involving members
of the same family. They point out that it contains certain
averments which, according to them, are indicative of its
adversarial nature, to wit:
x

Par. 7. One of the surviving sons, ANTONIO

MANALO, since the death of his father,
TROADIO MANALO, had not made any
settlement, judicial or extra-judicial of the
properties of the deceased father, TROADIO
MANALO.
Par. 8. xxx the said surviving son continued to
manage
and
control
the
properties
aforementioned, without proper accounting, to
his own benefit and advantage xxx.
x

Par. 12. That said ANTONIO MANALO is managing

and controlling the estate of the deceased
TROADIO MANALO to his own advantage and
to the damage and prejudice of the herein
petitioners and their co-heirs xxx.

Par. 14. For the protection of their rights and

interests, petitioners were compelled to bring
this suit and were forced to litigate and incur
expenses and will continue to incur expenses of
not less than, P250,000.00 and engaged the
services of herein counsel committing to pay
P200,000.00 as and for attorneys fees plus
honorarium of P2,500.00 per appearance in
court xxx.[13]
Consequently, according to herein petitioners, the same
should be dismissed under Rule 16, Section 1(j) of the Revised
Rules of Court which provides that a motion to dismiss a
complaint may be filed on the ground that a condition
precedent for filing the claim has not been complied with, that
is, that the petitioners therein failed to aver in the petition in SP.
PROC. No. 92-63626, that earnest efforts toward a
compromise have been made involving members of the same
family prior to the filing of the petition pursuant to Article
222[14] of the Civil Code of the Philippines.
The instant petition is not impressed with merit.
It is a fundamental rule that, in the determination of the
nature of an action or proceeding, the averments [15] and the
character of the relief sought[16] in the complaint, or petition, as
in the case at bar, shall be controlling. A careful scrutiny of the
Petition for Issuance of Letters of Administration, Settlement
and Distribution of Estate in SP. PROC. No. 92-63626 belies
herein petitioners claim that the same is in the nature of an
ordinary civil action. The said petition contains sufficient
jurisdictional facts required in a petition for the settlement of
estate of a deceased person such as the fact of death of the
late Troadio Manalo on February 14, 1992, as well as his
residence in the City of Manila at the time of his said
death. The fact of death of the decedent and of his residence
within the country are foundation facts upon which all the
subsequent proceedings in the administration of the estate
rest.[17] The petition in SP. PROC. No. 92-63626 also contains
an enumeration of the names of his legal heirs including a
tentative list of the properties left by the deceased which are
sought to be settled in the probate proceedings. In addition,
the reliefs prayed for in the said petition leave no room for
doubt as regard the intention of the petitioners therein (private
respondents herein) to seek judicial settlement of the estate of
their deceased father, Troadio Manalo, to wit:
PRAYER
WHEREFORE, premises considered, it is respectfully prayed
for of this Honorable Court:
(a) That after due hearing, letters of administration
be issued to petitioner ROMEO MANALO for the
administration of the estate of the deceased
TORADIO MANALO upon the giving of a bond
in such reasonable sum that this Honorable
Court may fix.
(b) That after all the properties of the deceased
TROADIO MANALO have been inventoried and
expenses and just debts, if any, have been paid
and the legal heirs of the deceased fully
determined, that the said estate of TROADIO
MANALO be settled and distributed among the
legal heirs all in accordance with law.
c) That the litigation expenses o these proceedings
in the amount of P250,000.00 and attorneys
fees in the amount of P300,000.00 plus
honorarium of P2,500.00 per appearance in
court in the hearing and trial of this case and
costs of suit be taxed solely against ANTONIO
MANALO.[18]
Concededly, the petition in SP. PROC. No. 92-63626
contains certain averments which may be typical of an ordinary
civil action. Herein petitioners, as oppositors therein, took
advantage of the said defect in the petition and filed their socalled Opposition thereto which, as observed by the trial court,
is actually an Answer containing admissions and denials,
special
and
affirmative
defenses
and
compulsory

counterclaims for actual, moral and exemplary damages, plus

attorney's fees and costs[19] in an apparent effort to make out a
case of an ordinary civil action an ultimately seek its dismissal
under Rule 16, Section 1(j) of the Rules of Court vis--vis,
Article 222 of the Civil Code.
It is our view that herein petitioners may not be allowed to
defeat the purpose of the essentially valid petition for the
settlement of the estate of the late Troadio Manalo by raising
matters that are irrelevant and immaterial to the said
petition. It must be emphasized that the trial court, sitting, as a
probate court, has limited and special jurisdiction[20] and cannot
hear and dispose of collateral matters and issues which may
be properly threshed out only in an ordinary civil action. In
addition, the rule has always been to the effect that the
jurisdiction of a court, as well as the concomitant nature of an
action, is determined by the averments in the complaint and
not by the defenses contained in the answer. If it were
otherwise, it would not be too difficult to have a case either
thrown out of court or its proceedings unduly delayed by simple
strategem.[21] So it should be in the instant petition for
settlement of estate.
Herein petitioners argue that even if the petition in SP.
PROC. No. 92-63626 were to be considered as a special
proceeding for the settlement of estate of a deceased person,
Rule 16, Section 1(j) of the Rules of Court vis-a-vis Article 222
of the Civil Code of the Philippines would nevertheless apply
as a ground for the dismissal of the same by virtue of Rule 1,
Section 2 of the Rules of Court which provides that the rules
shall be liberally construed in order to promote their object and
to assist the parties in obtaining just, speedy and inexpensive
determination of every action and proceeding. Petitioners
contend that the term proceeding is so broad that it must
necessarily include special proceedings.
The argument is misplaced. Herein petitioners may not
validly take refuge under the provisions of Rule 1, Section 2, of
the Rules of Court to justify the invocation of Article 222 of the
Civil Code of the Philippines for the dismissal of the petition for
settlement of the estate of the deceased Troadio Manalo
inasmuch as the latter provision is clear enough, to wit:
Art. 222. No suit shall be filed or maintained between
members of the same family unless it should appear that
earnest efforts toward a compromise have been made, but that
the same have failed, subject to the limitations in Article 2035
(underscoring supplied).[22]
The above-quoted provision of the law is applicable only
to ordinary civil actions. This is clear from the term suit that it
refers to an action by one person or persons against another or
others in a court of justice in which the plaintiff pursues the
remedy which the law affords him for the redress of an injury or
the enforcement of a right, whether at law or in equity.[23] A civil
action is thus an action filed in a court of justice, whereby a
party sues another for the enforcement of a right, or the
prevention or redress of a wrong. [24] Besides, an excerpt from
the Report of the Code Commission unmistakably reveals the
intention of the Code Commission to make that legal provision
applicable only to civil actions which are essentially adversarial
and involve members of the same family, thus:
It is difficult to imagine a sadder and more tragic spectacle than
a litigation between members of the same family. It is
necessary that every effort should be made toward a
compromise before a litigation is allowed to breed hate and
passion in the family. It is known that lawsuit between close
relatives generates deeper bitterness than strangers.[25]
It must be emphasized that the oppositors (herein
petitioners) are not being sued in SP. PROC. No. 92-63626 for
any cause of action as in fact no defendant was impleaded
therein. The Petition for Issuance of Letters of Administration,
Settlement and Distribution of Estate in SP. PROC. No. 9263626 is a special proceeding and, as such, it is a remedy
whereby the petitioners therein seek to establish a status, a
right, or a particular fact.[26] The petitioners therein (private
respondents herein) merely seek to establish the fact of death
of their father and subsequently to be duly recognized as
among the heirs of the said deceased so that they can validly
exercise their right to participate in the settlement and

liquidation of the estate of the decedent consistent with the

limited and special jurisdiction of the probate court.
WHEREFORE, the petition in the above-entitled case, is
DENIED for lack of merit. Costs against petitioners.
SO ORDERED.
CRISOLOGO
DOMINGO,

C.

G.R. No.

Petitio

Present:

170015

ner,

- versus -

QUISUMBING, J., Chairperson

CARPIO,
CARPIO MORALES,
TINGA, and
VELASCO, JR., JJ.

Promulgated:
SEVERINO
AND
RAYMUNDO LANDICHO,
JULIAN ABELLO, MARTA
DE SAGUN AND EDITHA
G. SARMIENTO,
Respo
ndents.

August 29, 2007

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
DECISION
CARPIO MORALES, J.:
Crisologo C. Domingo (Domingo) filed on April 20,
1993 with the Regional Trial Court (RTC) of Tagaytay City an
application for registration,[1] docketed as LRC No. TG-451, of
five parcels of land delineated as Lot Nos. 7513, 7515, 7516,
7517 and 7518, Cad. 355 under Approved Survey Plan AS-04002475[2] (the lots).
The
lots,
which
are
located
at Barangay Tolentino, Tagaytay, have a total land area of
38,975 square meters.
In his application, Domingo claimed that he bought
the lots from Genoveva Manlapit (Genoveva) in 1948 and has
since been in continuous, open, public, adverse and
uninterrupted possession thereof in the concept of an owner.
Domingo further claimed that prior to his purchase of
the lots, Genoveva had been in possession thereof in the
concept of an owner for more than 30 years.[3]
To Domingos application the following documents
were attached:
1.
Tracing Cloth of Approved Plan AS04-002475 (surveyed from September
24, 1963 to February 13, 1964 and
approved on December 12, 1990).[4]
2.

Photocopy
of
the
Technical
Description of Lot Nos. 7513, 7515,
7516, 7517, and 7518.[5]

3.

Photocopy
of
the
Engineers Certificate.[6]

4.

Owners Copy of Tax Declaration

Nos.
GR-019-0893-R
(covering Lot 7513), GR-019-0894-R
(covering Lot 7515), GR-019-0895-R
(covering Lot 7516), GR-019-0896-R
(covering Lot7517), GR-019-0897-R
(covering Lot 7518), all dated January
7, 1993 and in the name of Crisologo
C. Domingo.[7]

5.

Land Management Inspectors

2nd Indorsement dated October 22,
1990 recommending approval of ASPlan.[8]

Geodetic

The Land Registration Authority (LRA), which filed

before the RTC its Report[9] dated September 27, 1993, stated
that after plotting Plan AS-04-002475 in the Municipal Index
Sheet thru its tie lines, a discrepancy was noted. The RTC
thus referred the matter to the Lands Management Sector,
Region IV for verification and correction.
Acting on the directive of the RTC, the Director of
Lands filed a Report that per records of the Lands
Management Bureau in Manila, the land involved in said case
was not covered by any land patent or by public land
application pending issuance of patent. [10]
The
LRA
later
filed
a
Supplementary
Report[11] dated December 22, 1993 stating that:
xxxx
2.
The Regional Technical Director,
Region Office IV, thru the Chief,
Surveys
Division,
Robert
C. Pangyarihan in his letter dated
November 22, 1993, a copy is
attached hereto as Annex A,
informed that per records on file in
that Office, the correct adjoining
survey along line 8-9 of Lot 7516 and
along lines 3-4-5 of Lot 7515 should
be Lot 9237 Cad-355, covered by As04-000091 and that the parcel of land
covered by As-04-002475 are not
portions of or identical to any
previously
approved
isolated
survey; and
3. When the above-furnished correction was
applied on plan As-04-002475 no
more discrepancy exists.
xxxx
On
November
26,
1993,
herein
respondents Severino and Raymundo Landicho, Julian Abello,
Marta de Sagun, and Editha G. Sarmiento filed an
Answer/Opposition[12] to Domingos application, claiming that
they have been in open, continuous, adverse and actual
possession and cultivation of the lots in the concept of an
owner and have been paying real estate taxes thereon; [13] and
that Survey Plan AS-04-002475 was lifted from the cadastral
survey of the government which was surveyed for them and
other individual owners.[14]
During the pendency of his application or on March 9,
1996, Domingo died. His counsel, Atty. Irineo Anarna, did not,
however, inform the RTC of his death.
By Decision[15] of December 22, 1997, the RTC
approved
Domingos
application
for
registration,
the dispositive portion of which reads:
WHEREFORE, in the light of the
foregoing premises and considerations, this
Court hereby renders judgment approving
the instant application for registration and
thus places under the operation of Act 141,
Act 496 and/or P.D. 1529, otherwise known
as the Property Registration Law, the lands
described in Plan AS-04-002475 as Lots
7513, 7515, 7516, 7517 and 7518, Cad-355,
Tagaytay Cadastre, containing an area of
10,519 square meters, 3, 956 square
meters, 18, 921 square meters, 3, 985
square meters and 1, 594 square meters,
respectively, as supported by their technical
descriptions now forming parts of the records
of this case, in addition to other proofs
adduced, in the name of CRISOLOGO C.
DOMINGO, Filipino, of legal age, married to
Corazon A. Domingo, and with residence
at No. 34 Dao St., Project 3, Quezon City,
Metro Manila.
Once this decision becomes final
and executory, the corresponding decree of
registration shall forthwith issue.

SO ORDERED.[16]
Respondents appealed to the Court of Appeals,
contending that contrary to Domingos claim that he and his
predecessors-in-interest have been in actual, continuous and
uninterrupted possession of the lots, Domingo has always
been a resident of No. 34 Dao St., Project 3, Quezon City; that
despite Domingos claim that he has a caretaker overseeing
the lots, he could not even give the name of the caretaker; and
that Domingo admittedly declared the lots in his name only in
1993.
By Decision[17] of June 30, 2005, the Court of Appeals
reversed and set aside the RTC decision and dismissed
Domingos application for registration of land title.
The appellate court ruled that while Domingo sought
judicial confirmation of his imperfect title under the Public Land
Act and Section 14 (1) of Presidential Decree (P.D.) No. 1529,
THE PROPERTY REGISTRATION DECREE, he failed to
prove that he and his predecessors-in-interest had been in
possession and occupation of the lots under abona fide claim
of ownership since June 12, 1945 or earlier.[18]
And the appellate court noted that Domingo failed to
present the alleged deed of sale executed by Genoveva[19] and
could only prove through his Tax Declaration No. 0298 (new)
that his possession in the concept of an owner started only in
1948 (Exhibit L, Records, p. 117).
Domingos Motion for Reconsideration having been
denied by the appellate court, the present petition was lodged,
faulting the appellate court:
I
.
.
.
x x x x WHEN
IT LIMITED
CONSIDERATION OF THE MATTERS
ESTABLISHED IN THE APPLICATION TO
SECTION 48 (B) OF THE PUBLIC LAND
ACT AND SECTION 14 (1) OF PD 1529.
II
. . . x x x WHEN IT HELD THAT
PETITIONER IS NOT ENTITLED FOR
REGISTRATION OF TITLE OVER THE
SUBJECT LAND, NOTWITHSTANDING
THE FACT THAT THE EVIDENCE ON
RECORD CLEARLY ESTABLISHED HIS
ENTITLEMENT [TO] REGISTRATION OF
TITLE OVER THE LAND UNDER SECTION
14
(1) AND
(4)
OF
PD
1529.
[20]
(Underscoring supplied)
Domingos present counsel argues that assuming that
Domingo failed to establish his possession from June 12,
1945 or earlier in accordance with Section 14(1) of P.D. No.
1529, he is still entitled to registration of title under Article
1113[21] in relation to Article 1137[22] of the Civil Code.[23]
In their Comment[24] to the present petition,
respondents pray for its denial for being substantially defective,
Domingos death not having been alleged, albeit the
Verification and Certification against Forum Shopping was
signed by Domingos alleged Surviving Spouse and Heirs.[25]
To respondents Comment, Domingos counsel filed a
Reply[26] stating that there is no clearer manifestation of the
death of Domingo than the statement under oath of his
surviving spouse and heirs in substitution of deceased
CRISOLOGO C. DOMINGO contained in the Verification and
Certification against Forum Shopping which forms part of the
present petition.[27] Nonetheless, the counsel presented a
certified true copy of Domingos death certificate [28] showing
that he died on March 9, 1996 (during thependency of his
application before the RTC as earlier stated).
The petition is bereft of merit.
Section 14 (1) of P.D. No. 1529 provides:

Sec. 14. Who may apply. The following

persons may file in the proper Court of First
Instance an application for registration of title
to land, whether personally or through their
duly authorized representatives:
(1) Those who by themselves or through
their predecessors-in-interest have been
in open, continuous, exclusive and
notorious
possession
and occupation of alienable
and
disposable lands of the public domain
under a bona fide claim of ownership
since June 12, 1945, or earlier.
[29]
(Underscoring supplied)
To thus be entitled to registration of a land, the
applicant must prove that (a) the land applied for forms part of
the disposable and alienable agricultural lands of the public
domain; and (b) he has been in open, continuous, exclusive,
and notorious possession and occupation of the same under
a bona fide claim of ownership either since time immemorial or
since June 12, 1945.[30]
All lands not otherwise appearing to be clearly within
private ownership are presumed to belong to the State, and
unless it has been shown that they have been reclassified by
the State as alienable or disposable to a private person, they
remain part of the inalienable public domain.[31]
To prove that a land is alienable, an applicant must
conclusively establish the existence of a positive act of the
government, such as a presidential proclamation or an
executive order, or administrative action, investigation reports
of the Bureau of Lands investigator or a legislative act or
statute.[32]
While petitioner presented a document denominated
as 2nd Indorsement[33] issued by Land Management
Inspector Amadeo Mediran that the lots are within the
alienable and disposable zone under Project No. 3 LSC-3113
issued on April 5, 1978 as certified by the Director of the Forest
Development, the genuineness of the document cannot be
ascertained, it being a mere photocopy. Besides, the truth of
its contents cannot be ascertained, Mediran having failed to
take the witness stand to identify and testify thereon.
In fine, Domingo failed to adduce incontrovertible
evidence[34] showing that the lots have been declared
alienable. They are thus presumed to belong to the public
domain, beyond the commerce of man, and are not
susceptible of private appropriation and acquisitive
prescription.
But even assuming arguendo that the lots are
alienable, Domingo failed to comply with the requirement on
the period of possession. While he alleged in his petition that
he bought the lots from Genoveva in 1948, he failed, as the
appellate court correctly noted, to adduce the deed of sale
executed for the purpose, or to explain the reason behind the
failure and to present sufficient evidence to prove the fact of
sale.
Again, even assuming arguendo that the lots were
indeed sold to him by Genoveva, Domingo failed to adduce
proof that Genoveva, from whom he seeks to tack his
possession, acquired registrable title over them on June 12,
1945 or earlier. Under the same assumption, Domingos claim
that he has been in actual, continuous, adverse and open
possession of the lots in the concept of an owner since 1948 is
a conclusion of law which must be substantiated with proof of
specific acts of ownership and factual evidence of possession.
[35]

An examination of the tax receipts[36] presented by

Domingo shows that they are of recent vintage, the earliest
being dated January 8, 1993.
Tax Declaration Nos. 0298, GR-019-0884, and GR019-0885,[37] which
appear
to
have
been
issued
in 1947 [sic], 1964, and 1968, respectively, contain the
declaration Filed under Presidential Decree No. 464 below
the title Declaration of Real Property. P.D. No. 464, THE

REAL PROPERTY TAX CODE, took effect, however, only

onJune 1, 1974. Specifically with respect to the first tax
declaration, it even shows that Domingo subscribed and swore
to it on August 1, 1947 at which time he had not bought the lot
yet, in 1948 by his claim.
A note on Domingos death during the pendency of
his application at the RTC. Indeed, the records do not show
that his death on March 9, 1996 was brought to
the RTCsattention, which is not in accordance with Sections
16 and 17, Rule 3 of the 1994 Rules of Court, viz:
SEC. 16. Duty of attorney upon death,
incapacity, or incompetency of party.
Whenever a party to a pending case dies,
becomes incapacitated or incompetent, it
shall be the duty of his attorney to inform the
court promptly of such death, incapacity or
incompetency, and to give the name and
residence of his executor, administrator,
guardian
or
other
legal
representative. (Italics
in
the
original; underscoring supplied)
SEC. 17. Death of party. After a party
dies and the claim is not thereby
extinguished, the court shall order, upon
proper notice, the legal representative of the
deceased to appear and to be substituted for
the deceased, within a period of thirty (30)
days, or within such time as may be
granted. If the legal representative fails to
appear within said time, the court may order
the opposing party to procure the
appointment of a legal representative of the
deceased within a time to be specified by the
court,
and
the
representative
shall
immediately appear for and on behalf of the
interest of the deceased. The court charges
involved in procuring such appointment, if
defrayed by the opposing party, may be
recovered as costs. The heirs of the
deceased may be allowed to be substituted
for the deceased, without requiring the
appointment of an executor or administrator
and the court may appoint guardian ad
litem for the minor heirs. (Italics in the
original; underscoring supplied)
When a party dies in an action that survives and no
order is issued by the court for the appearance of the legal
representative or of the heirs of the deceased in substitution of
the deceased, and as a matter of fact no substitution has ever
been effected, the proceedings held by the court without such
legal representatives or heirs and the judgment rendered after
such trial are null and void because the court acquired no
jurisdiction over the person of the legal representative or of the
heirs upon whom the trial and judgment would be binding.[38]
Unlike, however, jurisdiction over the subject matter
which is conferred by law, jurisdiction over the person of the
parties to the case may, however, be waived either expressly
or impliedly.[39] In the case at bar, the surviving heirs voluntarily
submitted themselves to the jurisdiction of this Court, albeit
belatedly, by participating in the present petition.
Under the now amended Section 16, Rule 3 of
the 1997 Rules of Court, failure of a counsel to comply with the
provision thereof is a ground for disciplinary action, viz:
SEC. 16. Death of party; duty of counsel.
Whenever a party to a pending action dies,
and the claim is not thereby extinguished, it
shall be the duty of his counsel to inform the
court within thirty (30) days after such
death of the fact thereof, and to give the
name and address of his legal representative
or representatives. Failure of counsel to
comply with this duty shall be a ground for
disciplinary action.

The heirs of the deceased may be

allowed to be substituted for the deceased,
without requiring the appointment of an
executor or administrator and the court may
appoint a guardian ad litem for the minor
heirs.
The court shall forthwith order said
legal representative or representatives to
appear and be substituted within a period of
thirty (30) days from notice.
If no legal representative is named by
the counsel for the deceased party, or if the
one so named shall fail to appear within the
specified period, the court may order the
opposing party, within a specified time, to
procure the appointment of an executor or
administrator for the estate of the deceased
and the latter shall immediately appear for
and on behalf of the deceased. The court
charges in procuring such appointment, if
defrayed by the opposing party, may be
recovered
as
costs. (Italics
in
the
original; underscoring supplied)
The failure of Domingos former counsel,
Atty. Irineo A. Anarna of
No.
4 Madlansacay St., Poblacion Lilang 4118 Cavite, to comply
with the immediately quoted provisions of the Rules, is
compounded by his misrepresentation, before the CA, that
Domingo was well and alive when he stated in his Motion to
Withdraw Appearance as Counsel[40] dated July 8, 2004 that
the motion for withdrawal [was] conformed to by Mrs.
Rosemarie
Manlapit
Zamora, representative
of
the
applicant as shown by her signature . . . and that Mrs.
Rosemarie Zamora also undertakes to personally seek
the conformity of the Applicant (Underscoring supplied); and
by his retaining of the name of Domingo in the title of his
pleadings before the appellate court.
Canon 10 of the Code of Professional Responsibility
provides that a lawyer owes candor, fairness and good faith to
the court. Rule 10.01 likewise provides that a lawyer shall do
no falsehood, nor consent to the doing of any in court; nor
shall he mislead, or allow the court to be mislead by any
artifice. And Rule 10.03 provides that a lawyer shall observe
the rules of procedure and shall not misuse them to defeat the
ends of justice.
This Court thus takes this occasion to warn Atty. Anarna
that a repetition of a similar violation of the Rules of Court and
the Code of Professional Responsibility will be dealt with
strictly.
WHEREFORE, the petition is, in light of the foregoing
discussion, DENIED.
Let a copy of this Decision be
Atty. Irineo A. Anarna of
4 Madlansacay St., Poblacion Lilang, 4118 Cavite.

furnished
No.

SO ORDERED.
G.R. No. L-40502 November 29, 1976
VIRGINIA GARCIA FULE, and HONORABLE SEVERO A.
MALVAR, Presiding Judge, Court of First Instance of
Laguna,
Branch
Vl, petitioners,
vs.
THE HONORABLE COURT OF APPEALS, * PRECIOSA B.
GARCIA and AGUSTINA B. GARCIA, respondents.
G.R. No. L-42670 November 29, 1976
VIRGINIA
GARCIA
FULE,
petitioner,
vs.
HONORABLE ERNANI C. PAO, Presiding Judge of Court
of First Instance of Rizal, Quezon City, Branch XVIII, and
PRECIOSA B. GARCIA, respondents.

MARTIN, J.:
These two interrelated cases bring to Us the question of what
the word "resides" in Section 1, Rule 73 of the Revised Rules
Of Court, referring to the situs of the settlement of the estate of
deceased persons, means. Additionally, the rule in the
appointment of a special administrator is sought to be
reviewed.
On May 2, 1973, Virginia G. Fule filed with the Court of First
Instance of Laguna, at Calamba, presided over by Judge
Severo A. Malvar, a petition for letters of administration,
docketed as Sp. Proc. No. 27-C, alleging, inter alia, "that on
April 26, 1973, Amado G. Garcia, a property owner of
Calamba, Laguna, died intestate in the City of Manila, leaving
real estate and personal properties in Calamba, Laguna, and in
other places, within the jurisdiction of the Honorable Court." At
the
same
time,
she
moved
ex parte for her appointment as special administratrix over the
estate. On even date, May 2, 1973, Judge Malvar granted the
motion.
A motion for reconsideration was filed by Preciosa B. Garcia on
May 8, 1973, contending that the order appointing Virginia G.
Fule as special administratrix was issued without jurisdiction,
since no notice of the petition for letters of administration has
been served upon all persons interested in the estate; there
has been no delay or cause for delay in the proceedings for the
appointment of a regular administrator as the surviving spouse
of Amado G. Garcia, she should be preferred in the
appointment of a special administratrix; and, Virginia G. Fule is
a debtor of the estate of Amado G. Garcia. Preciosa B. Garcia,
therefore, prayed that she be appointed special administratrix
of the estate, in lieu of Virginia G. Fule, and as regular
administratrix after due hearing.
While this reconsideration motion was pending resolution
before the Court, Preciosa B. Garcia filed on May 29, 1973 a
motion to remove Virginia G. Fule as special administratrix
alleging, besides the jurisdictional ground raised in the motion
for reconsideration of May 8, 1973 that her appointment was
obtained through erroneous, misleading and/or incomplete
misrepresentations; that Virginia G. Fule has adverse interest
against the estate; and that she has shown herself unsuitable
as administratrix and as officer of the court.
In the meantime, the notice of hearing of the petition for letters
of administration filed by Virginia G. Fule with the Court of First
Instance of Calamba, Laguna, was published on May 17, 24,
and 31, 1973, in theBayanihan, a weekly publication of general
circulation in Southern Luzon.
On June 6, 1973, Preciosa B. Garcia received a "Supplemental
Petition for the Appointment of Regular Administrator ' filed by
Virginia G. Fule. This supplemental petition modified the
original petition in four aspects: (1) the allegation that during
the lifetime of the deceased Amado G. Garcia, he was elected
as Constitutional Delegate for the First District of Laguna and
his last place of residence was at Calamba, Laguna; (2) the
deletion of the names of Preciosa B. Garcia and Agustina
Garcia as legal heirs of Amado G. Garcia; (3) the allegation
that Carolina Carpio, who was simply listed as heir in the
original petition, is the surviving spouse of Amado G. Garcia
and that she has expressly renounced her preferential right to
the administration of the estate in favor of Virginia G. Fule; and
(4) that Virginia G. Fule be appointed as the regular
administratrix. The admission of this supplemental petition was
opposed by Preciosa B. Garcia for the reason, among others,
that it attempts to confer jurisdiction on the Court of First
Instance of Laguna, of which the court was not possessed at
the beginning because the original petition was deficient.
On July 19, 1973, Preciosa B. Garcia filed an opposition to the
original and supplemental petitions for letters of administration,
raising the issues of jurisdiction, venue, lack of interest of
Virginia G. Fule in the estate of Amado G. Garcia, and
disqualification of Virginia G Fule as special administratrix.
An omnibus motion was filed by Virginia G. Fule on August 20,
1973, praying for authority to take possession of properties of

the decedent allegedly in the hands of third persons as well as

to secure cash advances from the Calamba Sugar Planters
Cooperative Marketing Association, Inc. Preciosa B. Garcia
opposed the motion, calling attention to the limitation made by
Judge Malvar on the power of the special administratrix, viz.,
"to making an inventory of the personal and real properties
making up the state of the deceased."
However, by July 2, 1973, Judge Malvar and already issued an
order, received by Preciosa B. Garcia only on July 31, 1973,
denying the motion of Preciosa B. Garcia to reconsider the
order of May 2, 1973, appointing Virginia G. Fule as special
administratrix, and admitting the supplementation petition of
May 18,1973.
On August 31, 1973, Preciosa B. Garcia moved to dismiss the
petition, because (1) jurisdiction over the petition or over the
parties in interest has not been acquired by the court; (2)
venue was improperly laid; and (3) Virginia G. Fule is not a
party in interest as she is not entitled to inherit from the
deceased Amado G. Garcia.
On September 28, 1973, Preciosa B. Garcia filed a
supplemental motion to substitute Virginia G. Fule as special
administratrix, reasoning that the said Virginia G. Fule admitted
before before the court that she is a full-blooded sister of Pablo
G. Alcalde, an illegitimate son of Andrea Alcalde, with whom
the deceased Amado G. Garcia has no relation.
Three motions were filed by Preciosa B. Garcia on November
14, 1973, one, to enjoin the special administratrix from taking
possession of properties in the hands of third persons which
have not been determined as belonging to Amado G. Garcia;
another, to remove the special administratrix for acting outside
her authority and against the interest of the estate; and still
another, filed in behalf of the minor Agustina B. Garcia, to
dismiss the petition for want of cause of action, jurisdiction, and
improper venue.
On November 28, 1973, Judge Malvar resolved the pending
omnibus motion of Virgina G. Fule and the motion to dismiss
filed by Preciosa B. Garcia. Resolving the motion to dismiss,
Judge Malvar ruled that the powers of the special
administratrix are those provided for in Section 2, Rule 80 of
the Rules of Court, 1 subject only to the previous qualification
made by the court that the administration of the properties
subject of the marketing agreement with the Canlubang Sugar
Planters Cooperative Marketing Association should remain with
the latter; and that the special administratrix had already been
authorized in a previous order of August 20, 1973 to take
custody and possession of all papers and certificates of title
and personal effects of the decedent with the Canlubang Sugar
Planters Cooperative Marketing Association, Inc. Ramon
Mercado, of the Canlubang Sugar Planters Cooperative
Marketing Association, Inc., was ordered to deliver to Preciosa
B. Garcia all certificates of title in her name without any
qualifying words like "married to Amado Garcia" does not
appear. Regarding the motion to dismiss, Judge Malvar ruled
that the issue of jurisdiction had already been resolved in the
order of July 2, 1973, denying Preciosa B. Garcia's motion to
reconsider the appointment of Virginia G. Fule and admitting
the supplemental petition, the failure of Virginia G. Fule to
allege in her original petition for letters of administration in the
place of residence of the decedent at the time of his death was
cured. Judge Malvar further held that Preciosa B. Garcia had
submitted to the jurisdiction of the court and had waived her
objections thereto by praying to be appointed as special and
regular administratrix of the estate.
An omnibus motion was filed by Preciosa B. Garcia on
December 27, 1973 to clarify or reconsider the foregoing order
of Judge Malvar, in view of previous court order limiting the
authority of the special administratrix to the making of an
inventory. Preciosa B. Garcia also asked for the resolution of
her motion to dismiss the petitions for lack of cause of action,
and also that filed in behalf of Agustina B. Garcia. Resolution of
her motions to substitute and remove the special administratrix
was likewise prayed for.
On December 19, 1973, Judge Malvar issued two separate
orders, the first, denying Preciosa B. Garcia's motions to

substitute and remove the special administratrix, and the

second, holding that the power allowed the special
administratrix enables her to conduct and submit an inventory
of the assets of the estate.
On January 7, 1974, Preciosa B. Garcia moved for
reconsideration of the foregoing orders of November 28, 1973
and December 19, 1973, insofar as they sustained or failed to
rule on the issues raised by her: (a) legal standing (cause of
action) of Virginia G. Fule; (b) venue; (c) jurisdiction; (d)
appointment,
qualification
and
removal
of
special
administratrix; and (e) delivery to the special administratrix of
checks and papers and effects in the office of the Calamba
Sugar Planters Cooperative Marketing Association, Inc.
On March 27, 1973, Judge Malvar issued the first questioned
order denying Preciosa B. Garcia's motion for reconsideration
of January 7, 1974. On July 19, 1974, Judge Malvar issued the
other three questioned orders: one, directing Ramon Mercado,
of the Calamba Sugar Planters Cooperative Marketing
Association, Inc., to furnish Virginia G. Fule, as special
administratrix, copy of the statement of accounts and final
liquidation of sugar pool, as well as to deliver to her the
corresponding amount due the estate; another, directing
Preciosa B. Garcia to deliver to Virginia G. Fule two motor
vehicles presumably belonging to the estate; and another,
directing Ramon Mercado to deliver to the court all certificates
of title in his possession in the name of Preciosa B. Garcia,
whether qualified with the word "single" or "married to Amado
Garcia."
During the hearing of the various incidents of this case (Sp.
Proc. 27-C) before Judge Malvar, 2 Virginia G. Fule presented
the death certificate of Amado G. Garcia showing that his
residence at the time of his death was Quezon City. On her
part, Preciosa B. Garcia presented the residence certificate of
the decedent for 1973 showing that three months before his
death his residence was in Quezon City. Virginia G. Fule also
testified that Amado G. Garcia was residing in Calamba,
Laguna at the time of his death, and that he was a delegate to
the 1971 Constitutional Convention for the first district of
Laguna.
On July 26, 1974, Preciosa B. Garcia and Agustina B. Garcia
commenced a special action for certiorari and/or prohibition
and preliminary injunction before the Court of Appeals,
docketed as CA-G.R. No. 03221-SP. primarily to annul the
proceedings before Judge Malvar in Sp. Proc. No. 27-C of the
Court of First Instance of Laguna, or, in the alternative, to
vacate the questioned four orders of that court, viz., one dated
March 27, 1974, denying their motion for reconsideration of the
order denying their motion to dismiss the criminal and
supplemental petitions on the issue, among others, of
jurisdiction, and the three others, all dated July 19, 1974,
directing the delivery of certain properties to the special
administratrix, Virginia G. Fule, and to the court.
On January 30, 1975, the Court of Appeals rendered judgment
annulling the proceedings before Judge Severo A. Malvar in
Sp. Proc. 27-C of the Court of First Instance of Calamba,
Laguna, for lack of jurisdiction.
Denied of their motion for reconsideration on March 31, 1975,
Virginia G. Fule forthwith elevated the matter to Us on appeal
by certiorari. The case was docketed as G.R. No. L-40502.
However, even before Virginia G. Fule could receive the
decision of the Court of Appeals, Preciosa B. Garcia had
already filed on February 1, 1975 a petition for letters of
administration before the Court of First Instance of Rizal,
Quezon City Branch, docketed as Sp. Proc. No. Q-19738, over
the same intestate estate of Amado G. Garcia. On February
10, 1975, Preciosa B. Garcia urgently moved for her
appointment as special administratrix of the estate. Judge
Vicente G. Ericta granted the motion and appointed Preciosa
B. Garcia as special administratrix upon a bond of P30,000.00.
Preciosa B. Garcia qualified and assumed the office.
For the first time, on February 14, 1975, Preciosa B. Garcia
informed Judge Ericta of the pendency of Sp. Proc. No. 27-C

before Judge Malvar of the Court of First Instance of Laguna,

and the annulment of the proceedings therein by the Court of
Appeals on January 30, 1975. She manifested, however, her
willingness to withdraw Sp. Proc. Q-19738 should the decision
of the Court of Appeals annulling the proceedings before the
Court of First Instance of Laguna in Sp. Proc. No. 27-C have
not yet become final, it being the subject of a motion for
reconsideration.
On March 10, 1973, Judge Ericta ordered the suspension of
the proceedings before his court until Preciosa B. Garcia
inform the court of the final outcome of the case pending
before the Court of Appeals. This notwithstanding, Preciosa B.
Garcia filed on December 11, 1975, an "Urgent Petition for
Authority to Pay Estate Obligations."
On December 13, 1975, Virginia G. Fule filed a "Special
Appearance to Question Venue and Jurisdiction" reiterating the
grounds stated in the previous special appearance of March 3,
1975, and calling attention that the decision of the Court of
Appeals and its resolution denying the motion for
reconsideration had been appealed to this Court; that the
parties had already filed their respective briefs; and that the
case is still pending before the Court.
On December 17, 1975, Judge Ernani Cruz Pano, who
succeeded Judge Ericta, issued an order granting Preciosa B.
Garcia's "Urgent Petition for Authority to Pay Estate
Obligations" in that the payments were for the benefit of the
estate and that there hangs a cloud of doubt on the validity of
the proceedings in Sp. Proc. No. 27-C of the Court of First
Instance of Laguna.
A compliance of this Order was filed by Preciosa B. Garcia on
January 12,1976.
On February 4,1974, VIRGINIA G. FULE instituted G.R. No. L42670, a petition for certiorari with temporary restraining order,
to annul the proceedings in Sp. Proc. No. Q-19738 and to
restrain Judge Ernani Cruz Pao from further acting in the
case. A restraining order was issued on February 9, 1976.
We dismiss the appeal in G.R. No. L-40502 and the petition for
certiorari in G.R. No. L-42670 for the reasons and
considerations hereinafter stated.
1. Section 1, Rule 73 of the Revised Rules of Court provides:
"If the decedent is an inhabitant of the Philippines at the time
of his death, whether a citizen or an alien, his will shall be
proved, or letters of administration granted, and his estate
settled, in the Court of First Instance in the province in which
he resides at the time of his death, and if he is an inhabitant of
a foreign country, the Court of First Instance of any province in
which he had estate. The court first taking cognizance of the
settlement of the estate of a decedent, shall exercise
jurisdiction to the exclusion of all other courts. The jurisdiction
assumed by a court, so far as it depends on the place of
residence of the decedent, or of the location of his estate, shall
not be contested in a suit or proceeding, except in an appeal
from that court, in the original case, or when the want of
jurisdiction appears on the record." With particular regard to
letters of administration, Section 2, Rule 79 of the Revised
Rules of Court demands that the petition therefor should
affirmatively show the existence of jurisdiction to make the
appointment sought, and should allege all the necessary facts,
such as death, the name and last residence of the decedent,
the existence, and situs if need be, of assets, intestacy, where
this is relied upon, and the right of the person who seeks
administration, as next of kin, creditor, or otherwise, to be
appointed. The fact of death of the intestate and his last
residence within the country are foundation facts upon which
all subsequent proceedings in the administration of the estate
rest, and that if the intestate was not an inhabitant of the state
at the time of his death, and left no assets in the state, no
jurisdiction is conferred on the court to grant letters of
administration. 3
The aforequoted Section 1, Rule 73 (formerly Rule 75, Section
1), specifically the clause "so far as it depends on the place of
residence of the decedent, or of the location of the estate," is in

reality a matter of venue, as the caption of the Rule indicates:

"Settlement of Estate of Deceased Persons. Venue and
Processes. 4 It could not have been intended to define the
jurisdiction over the subject matter, because such legal
provision is contained in a law of procedure dealing merely
with procedural matters. Procedure is one thing; jurisdiction
over the subject matter is another. The power or authority of
the court over the subject matter "existed and was fixed before
procedure in a given cause began." That power or authority is
not altered or changed by procedure, which simply directs the
manner in which the power or authority shall be fully and justly
exercised. There are cases though that if the power is not
exercised conformably with the provisions of the procedural
law, purely, the court attempting to exercise it loses the power
to exercise it legally. However, this does not amount to a loss
of jurisdiction over the subject matter. Rather, it means that the
court may thereby lose jurisdiction over the person or that the
judgment may thereby be rendered defective for lack of
something essential to sustain it. The appearance of this
provision in the procedural law at once raises a strong
presumption that it has nothing to do with the jurisdiction of the
court over the subject matter. In plain words, it is just a matter
of method, of convenience to the parties. 5
The Judiciary Act of 1948, as amended, confers upon Courts of
First Instance jurisdiction over all probate cases independently
of the place of residence of the deceased. Because of the
existence of numerous Courts of First Instance in the country,
the Rules of Court, however, purposedly fixes the venue or the
place where each case shall be brought. A fortiori, the place of
residence of the deceased in settlement of estates, probate of
will, and issuance of letters of administration does not
constitute an element of jurisdiction over the subject matter. It
is merely constitutive of venue. And it is upon this reason that
the Revised Rules of Court properly considers the province
where the estate of a deceased person shall be settled as
"venue." 6
2. But, the far-ranging question is this: What does the term
"resides" mean? Does it refer to the actual residence or
domicile of the decedent at the time of his death? We lay down
the doctrinal rule that the term "resides" connotes ex vi
termini "actual residence" as distinguished from "legal
residence or domicile." This term "resides," like, the terms
"residing" and "residence," is elastic and should be interpreted
in the light of the object or purpose of the statute or rule in
which it is employed. 7 In the application of venue statutes and
rules Section 1, Rule 73 of the Revised Rules of Court is of
such nature residence rather than domicile is the significant
factor. Even where the statute uses the word "domicile" still it is
construed as meaning residence and not domicile in the
technical sense. Some cases make a distinction between the
terms "residence" and "domicile" but as generally used in
statutes fixing venue, the terms are synonymous, and convey
the same meaning as the term "inhabitant." 8 In other words,
"resides" should be viewed or understood in its popular sense,
meaning, the personal, actual or physical habitation of a
person, actual residence or place of abode. It signifies physical
presence in a place and actual stay thereat. In this popular
sense, the term means merely residence, that is, personal
residence, not legal residence or domicile. 9 Residence simply
requires bodily presence as an inhabitant in a given place,
while domicile requires bodily presence in that place and also
an intention to make it one's domicile. 10 No particular length of
time of residence is required though; however, the residence
must be more than temporary. 11
3. Divergent claims are maintained by Virginia G. Fule and
Preciosa B. Garcia on the residence of the deceased Amado
G. Garcia at the time of his death. In her original petition for
letters of administration before the Court of First Instance of
Calamba, Laguna, Virginia G. Fule measely stated "(t)hat on
April 26,1973, Amado G. Garcia, a property owner of Calamba,
Laguna, died intestate in the City of Manila, leaving real estate
and personal properties in Calamba, Laguna, and in other
places within the jurisdiction of this Honorable Court." Preciosa
B. Garcia assailed the petition for failure to satisfy the
jurisdictional requirement and improper laying of venue. For
her, the quoted statement avers no domicile or residence of the
deceased Amado G. Garcia. To say that as "property owner of
Calamba, Laguna," he also resides in Calamba, Laguna, is,
according to her, non sequitur. On the contrary, Preciosa B.

Garcia claims that, as appearing in his death certificate

presented by Virginia G. Fule herself before the Calamba court
and in other papers, the last residence of Amado G. Garcia
was at 11 Carmel Avenue, Carmel Subdivision, Quezon City.
Parenthetically, in her amended petition, Virginia G. Fule
categorically alleged that Amado G. Garcia's "last place of
residence was at Calamba, Laguna."
On this issue, We rule that the last place of residence of the
deceased Amado G. Garcia was at 11 Carmel Avenue, Carmel
Subdivision, Quezon City, and not at Calamba, Laguna. A
death certificate is admissible to prove the residence of the
decedent at the time of his death. 12 As it is, the death
certificate of Amado G. Garcia, which was presented in
evidence by Virginia G. Fule herself and also by Preciosa B.
Garcia, shows that his last place of residence was at 11
Carmel Avenue, Carmel Subdivision, Quezon City. Aside from
this, the deceased's residence certificate for 1973 obtained
three months before his death; the Marketing Agreement and
Power of Attorney dated November 12, 1971 turning over the
administration of his two parcels of sugar land to the Calamba
Sugar Planters Cooperative Marketing Association, Inc.; the
Deed of Donation dated January 8, 1973, transferring part of
his interest in certain parcels of land in Calamba, Laguna to
Agustina B. Garcia; and certificates of titles covering parcels of
land in Calamba, Laguna, show in bold documents that Amado
G. Garcia's last place of residence was at Quezon City. Withal,
the conclusion becomes imperative that the venue for Virginia
C. Fule's petition for letters of administration was improperly
laid in the Court of First Instance of Calamba, Laguna.
Nevertheless, the long-settled rule is that objection to improper
venue is subject to waiver. Section 4, Rule 4 of the Revised
Rules of Court states: "When improper venue is not objected to
in a motion to dismiss, it is deemed waived." In the case before
Us the Court of Appeals had reason to hold that in asking to
substitute Virginia G. Fule as special administratrix, Preciosa
B. Garcia did not necessarily waive her objection to the
jurisdiction or venue assumed by the Court of First Instance of
Calamba, Laguna, but availed of a mere practical resort to
alternative remedy to assert her rights as surviving spouse,
while insisting on the enforcement of the Rule fixing the proper
venue of the proceedings at the last residence of the decedent.
4. Preciosa B. Garcia's challenge to Virginia G. Fule's
appointment as special administratrix is another issue of
perplexity. Preciosa B. Garcia claims preference to the
appointment as surviving spouse. Section 1 of Rule 80
provides that "(w)hen there is delay in granting letters
testamentary or of administration by any cause including an
appeal from the allowance or disallowance of a will, the court
may appoint a special administrator to take possession and
charge of the estate of the deceased until the questions
causing the delay are decided and executors or administrators
appointed. 13 Formerly, the appointment of a special
administrator was only proper when the allowance or
disallowance of a will is under appeal. The new Rules,
however, broadened the basis for appointment and such
appointment is now allowed when there is delay in granting
letters testamentary or administration by any cause e.g.,
parties cannot agree among themselves. 14 Nevertheless, the
discretion to appoint a special administrator or not lies in the
probate court. 15That, however, is no authority for the judge to
become partial, or to make his personal likes and dislikes
prevail over, or his passions to rule, his judgment. Exercise of
that discretion must be based on reason, equity, justice and
legal principle. There is no reason why the same fundamental
and legal principles governing the choice of a regular
administrator should not be taken into account in the
appointment of a special administrator. 16 Nothing is wrong for
the judge to consider the order of preference in the
appointment of a regular administrator in appointing a special
administrator. After all, the consideration that overrides all
others in this respect is the beneficial interest of the appointee
in the estate of the decedent. 17 Under the law, the widow
would have the right of succession over a portion of the
exclusive property of the decedent, besides her share in the
conjugal partnership. For such reason, she would have as
such, if not more, interest in administering the entire estate
correctly than any other next of kin. The good or bad
administration of a property may affect rather the fruits than the
naked ownership of a property. 18

Virginia G. Fule, however, disputes the status of Preciosa B.

Garcia as the widow of the late Amado G. Garcia. With equal
force, Preciosa B. Garcia maintains that Virginia G. Fule has
no relation whatsoever with Amado G. Garcia, or that, she is a
mere illegitimate sister of the latter, incapable of any
successional rights. 19 On this point, We rule that Preciosa B.
Garcia is prima facie entitled to the appointment of special
administratrix. It needs be emphasized that in the issuance of
such appointment, which is but temporary and subsists only
until a regular administrator is appointed, 20 the appointing
court does not determine who are entitled to share in the
estate of the decedent but who is entitled to the administration.
The issue of heirship is one to be determined in the decree of
distribution, and the findings of the court on the relationship of
the parties in the administration as to be the basis of
distribution. 21 The preference of Preciosa B. Garcia is with
sufficient reason. In a Donation Inter Vivos executed by the
deceased Amado G. Garcia on January 8, 1973 in favor of
Agustina B. Garcia, he indicated therein that he is married to
Preciosa B. Garcia. 22 In his certificate of candidacy for the
office of Delegate to the Constitutional Convention for the First
District of Laguna filed on September 1, 1970, he wrote therein
the name of Preciosa B. Banaticla as his spouse. 23 Faced with
these documents and the presumption that a man and a
woman deporting themselves as husband and wife have
entered into a lawful contract of marriage, Preciosa B. Garcia
can be reasonably believed to be the surviving spouse of the
late Amado G. Garcia. Semper praesumitur pro matrimonio. 24
5. Under these circumstances and the doctrine laid down in
Cuenco vs. Court of Appeals, 25 this Court under its supervisory
authority over all inferior courts may properly decree that
venue in the instant case was properly assumed by and
transferred to Quezon City and that it is in the interest of justice
and avoidance of needless delay that the Quezon City court's
exercise of jurisdiction over the settlement of the estate of the
deceased Amado G. Garcia and the appointment of special
administratrix over the latter's estate be approved and
authorized and the Court of First Instance of Laguna be
disauthorized from continuing with the case and instead be
required to transfer all the records thereof to the Court of First
Instance of Quezon City for the continuation of the
proceedings.
6. Accordingly, the Order of Judge Ernani Cruz Pano of
December 17, 1975, granting the "Urgent Petition for Authority
to Pay Estate Obligations" filed by Preciosa B. Garcia in Sp.
Proc. No. Q-19738, subject matter of G.R. No. L-42670, and
ordering the Canlubang Sugar Estate to deliver to her as
special administratrix the sum of P48,874.70 for payment of
the sum of estate obligations is hereby upheld.
IN VIEW OF THE FOREGOING, the petitions of petitioner
Virginia Garcia Fule in G.R. No. L-40502 and in G.R. No.
L42670 are hereby denied, with costs against petitioner.
SO ORDERED.
G.R. No. L-24742 October 26, 1973
ROSA
CAYETANO
CUENCO, petitioners,
vs.
THE HONORABLE COURT OF APPEALS, THIRD DIVISION,
MANUEL CUENCO, LOURDES CUENCO, CONCEPCION
CUENCO MANGUERRA, CARMEN CUENCO, CONSUELO
CUENCO
REYES,
and
TERESITA
CUENCO
GONZALEZ, respondents.
TEEHANKEE, J.:
Petition for certiorari to review the decision of respondent Court
of Appeals in CA-G.R. No. 34104-R, promulgated 21
November 1964, and its subsequent Resolution promulgated 8
July 1964 denying petitioner's Motion for Reconsideration.
The pertinent facts which gave rise to the herein petition follow:
On 25 February 1964 Senator Mariano Jesus Cuenco died at
the Manila Doctors' Hospital, Manila. He was survived by his

widow, the herein petitioner, and their two (2) minor sons,
Mariano Jesus, Jr. and Jesus Salvador, both surnamed
Cuenco, all residing at 69 Pi y Margal St., Sta. Mesa Heights,
Quezon City, and by his children of the first marriage,
respondents herein, namely, Manuel Cuenco, Lourdes
Cuenco, Concepcion Cuenco Manguera, Carmen Cuenco,
Consuelo Cuenco Reyes and Teresita Cuenco Gonzales, all of
legal age and residing in Cebu.
On 5 March 1964, (the 9th day after the death of the late
Senator) 1 respondent Lourdes Cuenco filed a Petition for
Letters of Administration with the court of first instance of Cebu
(Sp. Proc. No. 2433-R), alleging among other things, that the
late senator died intestate in Manila on 25 February 1964; that
he was a resident of Cebu at the time of his death; and that he
left real and personal properties in Cebu and Quezon City. On
the same date, the Cebu court issued an order setting the
petition for hearing on 10 April 1964, directing that due notice
be given to all the heirs and interested persons, and ordering
the requisite publication thereof at LA PRENSA, a newspaper
of general circulation in the City and Province of Cebu.
The aforesaid order, however, was later suspended and
cancelled and a new and modified one released on 13 March
1964, in view of the fact that the petition was to be heard at
Branch II instead of Branch I of the said Cebu court. On the
same date, a third order was further issued stating that
respondent Lourdes Cuenco's petition for the appointment of a
special administrator dated 4 March 1964 was not yet ready for
the consideration of the said court, giving as reasons the
following:
It will be premature for this Court to act
thereon, it not having yet regularly acquired
jurisdiction to try this proceeding, the
requisite publication of the notice of hearing
not yet having been complied with.
Moreover, copies of the petition have not
been served on all of the heirs specified in
the basic petition for the issuance of letters
of administration. 2
In the meantime, or specifically on 12 March 1964, (a week
after the filing of the Cebu petition) herein petitioner Rosa
Cayetano Cuenco filed a petition with the court of first instance
of Rizal (Quezon City) for the probate of the deceased's last
will and testament and for the issuance of letters
testamentary in her favor, as the surviving widow and executrix
in the said last will and testament. The said proceeding was
docketed as Special Proceeding No. Q-7898.
Having learned of the intestate proceeding in the Cebu court,
petitioner Rosa Cayetano Cuenco filed in said Cebu court an
Opposition and Motion to Dismiss, dated 30 March 1964, as
well as an Opposition to Petition for Appointment of Special
Administrator, dated 8 April 1964. On 10 April 1964, the Cebu
court issued an order holding in abeyance its resolution on
petitioner's motion to dismiss "until after the Court of First
Instance of Quezon City shall have acted on the petition
for probate of that document purporting to be the last will and
testament of the deceased Don Mariano Jesus
Cuenco." 3 Such order of the Cebu court deferring to
the probateproceedings in the Quezon City court was neither
excepted to nor sought by respondents to be reconsidered or
set aside by the Cebu court nor did they challenge the same
by certiorari or prohibition proceedings in the appellate courts.
Instead, respondents filed in the Quezon City court an
Opposition and Motion to Dismiss, dated 10 April
1964,opposing probate of the will and assailing the jurisdiction
of the said Quezon City court to entertain petitioner's petition
for probate and for appointment as executrix in Sp. Proc. No.
Q-7898 in view of the alleged exclusive jurisdiction vested by
her petition in the Cebu court in Sp. Proc. No. 2433-R. Said
respondent prayed that Sp. Proc. No. Q-7898 be dismissed
for lack of jurisdiction and/or improper venue.
In its order of 11 April 1964, the Quezon City court denied the
motion to dismiss, giving as a principal reason the "precedence
of probate proceeding over an intestate proceeding." 4 The said
court further found in said order that theresidence of the late

senator at the time of his death was at No. 69 Pi y Margal, Sta.

Mesa Heights, Quezon City. The pertinent portion of said order
follows:
On the question of residence of the decedent, paragraph 5 of
the opposition and motion to dismiss reads as follows: "that
since the decedent Don Mariano Jesus Cuenco was a resident
of the City of Cebu at the time of his death, the aforesaid
petition filed by Rosa Cayetano Cuenco on 12 March 1964 was
not filed with the proper Court (wrong venue) in view of the
provisions of Section 1 of Rule 73 of the New Rules of
Court ...". From the aforequoted allegation, the Court is made
to understand that the oppositors do not mean to say that the
decedent being a resident of Cebu City when he died, the
intestate proceedings in Cebu City should prevail over the
probate proceedings in Quezon City, because as stated above
the probate of the will should take precedence, but that the
probate proceedings should be filed in the Cebu City Court of
First Instance. If the last proposition is the desire of the
oppositors as understood by this Court, that could not also be
entertained as proper because paragraph 1 of the petition for
the probate of the will indicates that Don Mariano Jesus
Cuenco at the time of his death was a resident of Quezon City
at 69 Pi y Margal. Annex A (Last Will and Testament of Mariano
Jesus Cuenco) of the petition for probate of the will shows that
the decedent at the time when he executed his Last Will clearly
stated that he is a resident of 69 Pi y Margal, Sta. Mesa
Heights, Quezon City, and also of the City of Cebu. He made
the former as his first choice and the latter as his second
choice of residence." If a party has two residences, the one will
be deemed or presumed to his domicile which he himself
selects or considers to be his home or which appears to be the
center of his affairs. The petitioner, in thus filing the instant
petition before this Court, follows the first choice of residence
of the decedent and once this court acquires jurisdiction of the
probate proceeding it is to the exclusion of all others. 5
Respondent Lourdes Cuenco's motion for reconsideration of
the Quezon City court's said order of 11 April 1964 asserting its
exclusive jurisdiction over the probate proceeding as deferred
to by the Cebu court was denied on 27 April 1964 and a
second motion for reconsideration dated 20 May 1964 was
likewise denied.
On 11 May 1964, pursuant to its earlier order of 11 April 1964,
the hearing for probate of the last will of the decedent was
called three times at half-hour intervals, but notwithstanding
due notification none of the oppositors appeared and the
Quezon City court proceeded at 9:00 a.m. with the hearing in
their absence.
As per the order issued by it subsequently on 15 May 1964,
the Quezon City court noted that respondents-oppositors had
opposed probate under their opposition and motion to dismiss
on the following grounds:
(a) That the will was not executed and attested as required by
law;
(b) That the will was procured by undue and improper pressure
and influence on the part of the beneficiary or some other
persons for his benefit;
(c) That the testator's signature was procured by fraud and/or
that the testator acted by mistake and did not intend that the
instrument he signed should be his will at the time he affixed
his signature thereto. 6
The Quezon City court further noted that the requisite
publication of the notice of the hearing had been duly complied
with and that all the heirs had been duly notified of the hearing,
and after receiving the testimony of the three instrumental
witnesses to the decedent's last will, namely Atty. Florencio
Albino, Dr. Guillermo A. Picache and Dr. Jose P. Ojeda, and of
the notary public, Atty. Braulio A. Arriola, Jr., who ratified the
said last will, and the documentary evidence (such as the
decedent's residence certificates, income tax return, diplomatic
passport, deed of donation) all indicating that the decedent
was a resident of 69 Pi y Margal St., Quezon City, as also
affirmed by him in his last will, the Quezon City court in its

said order of 15 May 1964 admitted to probate the late

senator's last will and testament as having been "freely and
voluntarily executed by the testator" and "with all formalities of
the law" and appointed petitioner-widow as executrix of his
estate without bond "following the desire of the testator" in his
will as probated.
Instead of appealing from the Quezon City court's said
order admitting the will to probate and naming petitioner-widow
as executrix thereof, respondents filed a special civil action
of certiorari and prohibition with preliminary injunction with
respondent Court of Appeals (docketed as case CA-G.R. No.
34104-R) to bar the Rizal court from proceeding with case No.
Q-7898.
On 21 November 1964, the Court of Appeals rendered a
decision in favor of respondents (petitioners therein) and
against the herein petitioner, holding that:
Section 1, Rule 73, which fixes the venue in proceedings for
the settlement of the estate of a deceased person,
covers both testate and intestate proceedings. Sp. Proc. 2433R of the Cebu CFI having been filed ahead, it is that court
whose jurisdiction was first invoked and which first attached. It
is that court which can properly and exclusively pass upon the
factual issues of (1) whether the decedent left or did not leave
a valid will, and (2) whether or not the decedent was a resident
of Cebu at the time of his death.
Considering therefore that the first proceeding was instituted in
the Cebu CFI (Special Proceeding 2433-R), it follows that the
said court must exercise jurisdiction to the exclusion of the
Rizal CFI, in which the petition for probate was filed by the
respondent Rosa Cayetano Cuenco (Special Proceeding Q7898). The said respondent should assert her rights within the
framework of the proceeding in the Cebu CFI, instead of
invoking the jurisdiction of another court.
The respondents try to make capital of the fact that on March
13, 1964, Judge Amador Gomez of the Cebu CFI, acting in Sp.
Proc. 2433-R, stated that the petition for appointment of
special administrator was "not yet ready for the consideration
of the Court today. It would be premature for this Court to act
thereon, it not having yet regularly acquired jurisdiction to try
this proceeding ... . " It is sufficient to state in this connection
that the said judge was certainly not referring to the court's
jurisdiction over the res, not to jurisdiction itself which is
acquired from the moment a petition is filed, but only to
theexercise of jurisdiction in relation to the stage of the
proceedings. At all events, jurisdiction is conferred and
determined by law and does not depend on the
pronouncements of a trial judge.
The dispositive part of respondent appellate court's judgment
provided as follows:
ACCORDINGLY, the writ of prohibition will issue, commanding
and directing the respondent Court of First Instance of Rizal,
Branch IX, Quezon City, and the respondent Judge Damaso B.
Tengco to refrain perpetually from proceeding and taking any
action in Special Proceeding Q-7898 pending before the said
respondent court. All orders heretofore issued and actions
heretofore taken by said respondent court and respondent
Judge, therein and connected therewith, are hereby annulled.
The writ of injunction heretofore issued is hereby made
permanent. No pronouncement as to costs.
Petitioner's motion for reconsideration was denied in a
resolution of respondent Court of Appeals, dated 8 July 1965;
hence the herein petition for review on certiorari.
The principal and decisive issue at bar is, theretofore, whether
the appellate court erred in law in issuing the writ of prohibition
against the Quezon City court ordering it to refrain perpetually
from proceeding with the testateproceedings and annulling and
setting aside all its orders and actions, particularly its
admission to probate of the decedent's last will and testament
and appointing petitioner-widow as executrix thereof without
bond in compliance with the testator's express wish in his
testament. This issue is tied up with the issue submitted to the

appellate court, to wit, whether the Quezon City court acted

without jurisdiction or with grave abuse of discretion in taking
cognizance and assuming exclusive jurisdiction over the
probate proceedings filed with it, in pursuance of the Cebu
court's order of 10 April 1964 expressly consenting in
deference to the precedence of probate over intestate
proceedings that it (the Quezon City court) should first act "on
the petition for probate of the document purporting to be the
last will and testament of the deceased Don Mariano Jesus
Cuenco" - which order of the Cebu court respondents never
questioned
nor
challenged
by
prohibition
or certiorari proceedings and thus enabled the Quezon City
court to proceed without any impediment or obstruction, once it
denied respondent Lourdes Cuenco's motion to dismiss the
probate proceeding for alleged lack of jurisdiction or improper
venue, toproceed with the hearing of the petition and
to admit the will to probate upon having been satisfied as to its
due execution and authenticity.
The Court finds under the above-cited facts that the appellate
court erred in law in issuing the writ of prohibition against the
Quezon City court from proceeding with the testate
proceedings and annulling and setting aside all its orders and
actions, particularly its admission to probate of the deceased's
last will and testament and appointing petitioner-widow as
executrix thereof without bond pursuant to the deceased
testator's express wish, for the following considerations:
1.
The
Judiciary
Act 7 concededly
confers
original jurisdiction upon all Courts of First Instance over "all
matter of probate, both of testate and intestate estates." On the
other hand, Rule 73, section of the Rules of Court lays down
the rule of venue, as the very caption of the Rule indicates, and
in order to prevent conflict among the different courts which
otherwise may properly assume jurisdiction from doing so, the
Rule specifies that "the court first taking cognizance of the
settlement of the estate of a decedent, shall exercise
jurisdiction to the exclusion of all other courts." The cited Rule
provides:
Section 1. Where estate of deceased persons settled. If the
decedent is an inhabitant of the Philippines at the time of his
death, whether a citizen or an alien, his will shall be proved, or
letters of administration granted, and his estate settled, in the
Court of First Instance in the Province in which he resides at
the time of his death, and if he is an inhabitant of a foreign
country, the Court of First Instance of the province in which he
had estate. The court first taking cognizance of the settlement
of the estate of a decedent, shall exercise jurisdiction to
the exclusion of all other courts. The jurisdiction assumed by a
court, so far as it depends on the place of residence, of the
decedent, or of the location of his estate, shall not be
contested in a suit or proceeding, except in an appeal from that
court, in the original case, or when the want of jurisdiction
appears on the record. (Rule 73) 8
It is equally conceded that the residence of the deceased or
the location of his estate is not an element of jurisdiction over
the subject matter but merely of venue. This was lucidly stated
by the late Chief Justice Moran inSy Oa vs. Co Ho 9 as follows:
We are not unaware of existing decisions to the effect that in
probate cases the place of residence of the deceased is
regarded as a question of jurisdiction over the subject-matter.
But we decline to follow this view because of its mischievous
consequences. For instance, a probate case has been
submitted in good faith to the Court of First Instance of a
province where the deceased had not resided. All the parties,
however, including all the creditors, have submitted themselves
to the jurisdiction of the court and the case is therein
completely finished except for a claim of a creditor who also
voluntarily filed it with said court but on appeal from an adverse
decision raises for the first time in this Court the question of
jurisdiction of the trial court for lack of residence of the
deceased in the province. If we consider such question of
residence as one affecting the jurisdiction of the trial court over
the subject-matter, the effect shall be that the whole
proceedings including all decisions on the different incidents
which have arisen in court will have to be annulled and
the same
case will
have
to
be commenced
anew before another court of the same rank in another

province. That this is ofmischievous effect in the prompt

administration of justice is too obvious to require comment. (Cf.
Tanunchuan vs. Dy Buncio & Co., G.R. No. 48206, December
31, 1942) Furthermore, section 600 of Act No. 190, 10 providing
that the estate of a deceased person shall be settled in the
province where he had last resided, could not have been
intended as defining the jurisdiction of the probate court over
the subject-matter, because such legal provision is contained
in a law of procedure dealing merely with procedural matters,
and, as we have said time and again, procedure is one thing
and jurisdiction over the subject matter is another. (AttorneyGeneral vs. Manila Railroad Company, 20 Phil. 523.) The law
of jurisdiction Act No. 136, 11 Section 56, No. 5 confers
upon Courts of First Instance jurisdiction over all probate cases
independently of the place of residence of the deceased.
Since, however, there are many courts of First Instance in the
Philippines, the Law of Procedure, Act No. 190, section 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".

the Cebu court must first take cognizance over the estate of
the decedent and must exercise jurisdiction to exclude all other
courts, which the Cebu court declined to do. Furthermore, as is
undisputed, said rule only lays down a rule of venue and the
Quezon City court indisputably had at least equal and
coordinate jurisdiction over the estate.

It should be noted that the Rule on venue does not state that
the court with whom the estate or intestate petition is first
filed acquires exclusive jurisdiction.

4. The relatively recent case of Uriarte vs. Court of First

Instance of Negros Occidental 12 with facts analogous to the
present case 13 is authority against respondent appellate
court's questioned decision.

The Rule precisely and deliberately provides that "the court

first taking cognizance of the settlement of the estateof a
decedent, shall exercise jurisdiction to the exclusion of all
other courts."

In said case, the Court upheld the doctrine of precedence of

probate proceedings over intestate proceedings in this wise:

A fair reading of the Rule since it deals with venue and

comity between courts of equal and co-ordinate jurisdiction
indicates that the court with whom the petition is first filed, must
also first take cognizance of the settlement of the estate in
order to exercise jurisdiction over it to the exclusion of all other
courts.
Conversely, such court, may upon learning that a petition
for probate of the decedent's last will has been presented in
another court where the decedent obviously had his conjugal
domicile and resided with his surviving widow and their minor
children, and that the allegation of the intestate petition before
it stating that the decedent died intestate may be actually false,
may decline to take cognizance of the petition and hold the
petition before it in abeyance, and instead defer to the second
court which has before it the petition for probate of the
decedent's alleged last will.
2. This exactly what the Cebu court did. Upon petitionerwidow's filing with it a motion to dismiss Lourdes' intestate
petition, it issued its order holding in abeyance its action on the
dismissal motion and deferred to the Quezon City court,
awaiting its action on the petition for probate before that court.
Implicit in the Cebu court's order was that if the will was duly
admitted to probate, by the Quezon City court, then it would
definitely
decline
to
take
cognizance
of
Lourdes' intestate petition which would thereby be shown to
be false and improper, and leave the exercise of jurisdiction to
the Quezon City court, to the exclusion of all other courts.
Likewise by its act of deference, the Cebu court left it to the
Quezon City court to resolve the question between the parties
whether the decedent's residence at the time of his death was
in Quezon City where he had his conjugal domicile rather than
in Cebu City as claimed by respondents. The Cebu court thus
indicated that it would decline to take cognizance of
the intestate petition before it and instead defer to the Quezon
City court, unless the latter would make a negative finding as
to the probate petition and the residence of the decedent within
its territory and venue.
3. Under these facts, the Cebu court could not be held to have
acted without jurisdiction or with grave abuse of jurisdiction in
declining to take cognizance of the intestate petition and
deferring to the Quezon City court.
Necessarily, neither could the Quezon City court be deemed to
have acted without jurisdiction in taking cognizance of and
acting on the probate petition since under Rule 73, section 1,

Since the Quezon City court took cognizance over

the probate petition before it and assumed jurisdiction over the
estate, with the consent and deference of the Cebu court, the
Quezon City court should be left now, by the same rule of
venue of said Rule 73, to exercise jurisdiction to the exclusion
of all other courts.
Under the facts of the case and where respondents submitted
to the Quezon City court their opposition to probate of the will,
but failed to appear at the scheduled hearing despite due
notice, the Quezon City court cannot be declared, as the
appellate court did, to have acted without jurisdiction in
admitting to probate the decedent's will and appointing
petitioner-widow as executrix thereof in accordance with the
testator's testamentary disposition.

It cannot be denied that a special proceeding intended to effect

the distribution of the estate of a deceased person, whether in
accordance with the law on intestate succession or in
accordance with his will, is a "probate matter" or a proceeding
for the settlement of his estate. It is equally true, however, that
in accordance with settled jurisprudence in this jurisdiction,
testate proceedings for the settlement of the estate of a
deceased person take precedence over intestate proceedings
for the same purpose. Thus it has been held repeatedly that, if
in the course of intestate proceedings pending before a court
of first instance it is found that the decedent had left a last will,
proceedings for the probate of the latter should replace the
intestate proceedings even if at that state an administrator had
already been appointed, the latter being required to render final
account and turn over the estate in his possession to the
executor subsequently appointed. This however, is understood
to be without prejudice that should the alleged last will be
rejected or is disapproved, the proceeding shall continue as an
intestacy. As already adverted to, this is a clear indication that
proceedings for the probate of a will enjoy priority over
intestate proceedings. 14
The Court likewise therein upheld the jurisdiction of
the second court, (in this case, the Quezon City court) although
opining that certain considerations therein "would seem to
support the view that [therein respondent] should have
submitted said will for probate to the Negros Court, [in this
case, the Cebu court] either in a separate special proceeding
or in an appropriate motion for said purpose filed in the already
pending Special Proceeding No. 6344," 15 thus:
But the fact is that instead of the aforesaid will being presented
for probate to the Negros Court, Juan Uriarte Zamacona filed
the petition for the purpose with the Manila Court. We can not
accept petitioner's contention in this regard that the latter court
had no jurisdiction to consider said petition, albeit we say that it
was not the proper venue therefor.
It is well settled in this jurisdiction that wrong venue is merely
a waivable procedural defect, and, in the light of the
circumstances obtaining in the instant case, we are of the
opinion, and so hold, that petitioner has waived the right to
raise such objection or is precluded from doing so by laches. It
is enough to consider in this connection that petitioner knew of
the existence of a will executed by Juan Uriarte y Goite since
December 19, 1961 when Higinio Uriarte filed his opposition to
the initial petition filed in Special Proceeding No. 6344; that
petitioner likewise was served with notice of the existence
(presence) of the alleged last will in the Philippines and of the

filing of the petition for its probate with the Manila Court since
August 28, 1962 when Juan Uriarte Zamacona filed a motion
for the dismissal of Special Proceeding No. 6344. All these
notwithstanding, it was only on April 15, 1963 that he filed with
the Manila Court in Special Proceeding No. 51396 an Omnibus
motion asking for leave to intervene and for the dismissal and
annulment of all the proceedings had therein up to that date;
thus enabling the Manila Court not only to appoint an
administrator with the will annexed but also to admit said will to
probate more than five months earlier, or more specifically, on
October 31, 1962. To allow him now to assail the exercise of
jurisdiction over the probate of the will by the Manila Court and
the validity of all the proceedings had in Special Proceeding
No. 51396 would put a premium on his negligence. Moreover,
it must be remembered that this Court is not inclined to annul
proceedings regularly had in a lower court even if the latter
was not the proper venue therefor, if the net result would be to
have the same proceedings repeated in some other court of
similar jurisdiction; more so in a case like the present where
the objection against said proceedings is raised too late. 16
5. Under Rule 73, section 1 itself, the Quezon City
court's assumption of jurisdiction over the decedent's estate on
the basis of the will duly presented for probate by petitionerwidow
and
finding that
Quezon
City was
the
firstchoice of residence of the decedent, who had his conjugal
home and domicile therein with the deference in comity duly
given by the Cebu court could not be contested except by
appeal from said court in the original case. The last paragraph
of said Rule expressly provides:
... The jurisdiction assumed by a court, so far as it depends on
the place of residence of the decedent, or of the location of his
estate, shall not be contested in a suit or proceeding, except in
an appeal from that court, in the original case, or when the
want of jurisdiction appears on the record. (Rule 73)
The exception therein given, viz, "when the want of jurisdiction
appears on the record" could probably be properly invoked,
had such deference in comity of the Cebu court to the Quezon
City court not appeared in the record, or had the record
otherwise shown that the Cebu court had taken cognizance of
the petition before it and assumed jurisdiction.
6. On the question that Quezon City established to be the
residence of the late senator, the appellate court while
recognizing that "the issue is a legitimate one" held in reliance
on Borja vs. Tan 17 that.
... The issue of residence comes within the competence of
whichever court is considered to prevail in the exercise
jurisdiction - in this case, the Court of First Instance of Cebu as
held by this Court. Parenthetically, we note that the question of
the residence of the deceased is a serious one, requiring both
factual and legal resolution on the basis of ample evidence to
be submitted in the ordinary course of procedure in the first
instance, particularly in view of the fact that the deceased was
better known as the Senator from Cebu and the will purporting
to be his also gives Cebu, besides Quezon City, as his
residence. We reiterate that this matter requires airing in the
proper court, as so indicated in the leading and controlling
case of Borja vs. Hon. Bienvenido Tan, et al., G.R. L-7792, July
27, 1955.
In the case at bar, however, the Cebu court declined to take
cognizance of the intestate petition first filed with it and
deferred to the testate proceedings filed with the Quezon City
court and in effect asked the Quezon City court to determine
the residence of the decedent and whether he did leave a last
will and testament upon which would depend the proper venue
of the estate proceedings, Cebu or Quezon City. The Quezon
City court having thus determined in effect for both courts at
the behest and with the deference and consent of the Cebu
court thatQuezon City was the actual residence of the
decedent who died testate and therefore the proper venue, the
Borja ruling would seem to have no applicability. It would not
serve the practical ends of justice to still require the Cebu
court, if the Borja ruling is to be held applicable and as
indicated in the decision under review, to determine for itself
the actual residence of the decedent (when the Quezon City
court had already so determined Quezon City as the actual

residence at the Cebu court's behest and respondents have

not seriously questioned this factual finding based on
documentary evidence) and if the Cebu court should likewise
determine Quezon City as the actual residence, or its contrary
finding reversed on appeal, only then to allow petitioner-widow
after years of waiting and inaction to institute the
corresponding proceedings in Quezon City.
7. With more reason should the Quezon City proceedings be
upheld when it is taken into consideration that Rule 76, section
2 requires that the petition for allowance of a will must show:
"(a) the jurisdictional facts." Such "jurisdictional facts" in
probate proceedings, as held by the Court in Fernando vs.
Crisostomo 18 " are the death of the decedent, his residence at
the time of his death in the province where the probate court is
sitting, or if he is an inhabitant of a foreign country, his having
left his estate in such province."
This tallies with the established legal concept as restated by
Moran that "(T)he probate of a will is a proceeding in rem. The
notice by publication as a pre-requisite to the allowance of a
will, is a constructive notice to the whole world, and when
probate is granted, the judgment of the court is binding upon
everybody, even against the State.The probate of a will by a
court having jurisdiction thereof is conclusive as to its due
execution and validity." 19 The Quezon City court acted
regularly within its jurisdiction (even if it were to be conceded
that Quezon City was not the proper venue notwithstanding the
Cebu court's giving way and deferring to it,) in admitting the
decedent's last will to probate and naming petitioner-widow as
executrix thereof. Hence, the Quezon city court's action
should not be set aside by a writ of prohibition for supposed
lack of jurisdiction as per the appellate court's appealed
decision, and should instead be sustained in line with Uriarte,
supra, where the Court, in dismissing the certiorari petition
challenging the Manila court's action admitting the decedent's
will to probate and distributing the estate in accordance
therewith in the second proceeding, held that "it must be
remembered that this Court is not inclined to annul
proceedings regularly had in a lower court even if the latter
was not the proper venue therefor, if the net result would be to
have the same proceedings repeated in some other court of
similar jurisdiction." As stressed by Chief Justice Moran in Sy
Oa, supra, "the mischievous effect in the administration of
justice" of considering the question of residence as affecting
the jurisdiction of the trial court and annulling the whole
proceedings only to start all over again the same proceedings
before another court of the same rank in another province "is
too obvious to require comment."
8. If the question of jurisdiction were to be made to depend
only on who of the decedent's relatives gets first to file a
petition for settlement of the decedent's estate, then the
established jurisprudence of the Court that Rule 73, section 1
provides only a rule of venue in order to preclude different
courts which may properly assumejurisdiction from doing so
and creating conflicts between them to the detriment of the
administration of justice, and that venue is waivable, would be
set at naught. As between relatives who unfortunately do not
see eye to eye, it would be converted into a race as to who can
file the petition faster in the court of his/her choice regardless
of whether the decedent is still in cuerpo presente and in
disregard of the decedent's actual last domicile, the fact that he
left a last will and testament and the right of his surviving
widow named as executrix thereof. Such dire consequences
were certainly not intended by the Rule nor would they be in
consonance with public policy and the orderly administration of
justice.
9. It would finally be unjust and inequitable that petitionerwidow, who under all the applicable rules of venue, and despite
the fact that the Cebu court (where respondent Lourdes
Cuenco had filed an intestate petition in the Cebu court earlier
by a week's time on 5 March 1964) deferred to the Quezon
City court where petitioner had within fifteen days (on March
12, 1964) after the decedent's death (on February 25, 1964)
timely filed the decedent's last will and petitioned for letters
testamentary and is admittedly entitled to preference in the
administration of her husband's estate, 20 would be compelled
under the appealed decision to have to go all the way to Cebu
and submit anew the decedent's will there for probate either in
a new proceeding or by asking that the intestate proceedings

be converted into a testate proceeding when under the

Rules, the proper venue for the testate proceedings, as per the
facts of record and as already affirmed by the Quezon City
court is Quezon City, where the decedent and petitioner-widow
had their conjugal domicile.
It would be an unfair imposition upon petitioner as the one
named and entitled to be executrix of the decedent's last will
and settle his estate in accordance therewith, and a disregard
of her rights under the rule on venue and the law on jurisdiction
to require her to spend much more time, money and effort to
have to go from Quezon City to the Cebu court everytime she
has an important matter of the estate to take up with the
probate court.
It would doubly be an unfair imposition when it is considered
that under Rule 73, section 2, 21 since petitioner's marriage has
been dissolved with the death of her husband, their community
property and conjugal estate have to beadministered and
liquidated in the estate proceedings of the deceased spouse.
Under the appealed decision, notwithstanding that petitioner
resides in Quezon City, and the proper venue of
the testate proceeding was in Quezon City and the Quezon
City court properly took cognizance and exercised exclusive
jurisdiction with the deference in comity and consent of the
Cebu court, such proper exercise of jurisdiction would be
nullified and petitioner would have to continually leave her
residence in Quezon City and go to Cebu to settle and
liquidate even her own community property and conjugal
estate with the decedent.
10. The Court therefore holds under the facts of record that
the Cebu court did not act without jurisdiction nor with grave
abuse of discretion in declining to take cognizance of
the intestate petition
and
instead deferring to
thetestate proceedings filed just a week later by petitioner as
surviving widow and designated executrix of the decedent's
last will, since the record before it (the petitioner's opposition
and motion to dismiss) showed the falsityof the allegation in
the intestate petition that the decedent had died without a will.
It is noteworthy that respondents never challenged
by certiorari or prohibition proceedings the Cebu court's order
of 10 April 1964 deferring to the probate proceedings before
the Quezon City court, thus leaving the latter free (pursuant to
the Cebu court's order of deference) to exercise
jurisdiction and admit the decedent's will to probate.
For the same reasons, neither could the Quezon City court be
held to have acted without jurisdiction nor with grave abuse of
discretion in admitting the decedent's will to probate and
appointing petitioner as executrix in accordance with its
testamentary disposition, in the light of the settled doctrine that
the provisions of Rule 73, section 1 lay down only a rule
of venue, not of jurisdiction.
Since respondents undisputedly failed to appeal from the
Quezon City court's order of May 15, 1964 admitting the will to
probate and appointing petitioner as executrix thereof, and said
court concededly has jurisdiction to issue said order, the said
order of probate has long since become final and can not be
overturned in a special civic action of prohibition.
11. Finally, it should be noted that in the Supreme Court's
exercise of its supervisory authority over all inferior courts, 22 it
may properly determine, as it has done in the case at bar,
that venue was properly
assumed by
and transferredto
the Quezon City court and that it is the interest of justice and in
avoidance of needless delay that the Quezon City court's
exercise of jurisdiction over the testate estate of the decedent
(with the due deference and consent of the Cebu court) and its
admission to probate of his last will and testament and
appointment of petitioner-widow as administratrix without bond
in pursuance of the decedent's express will and all its orders
and actions taken in the testate proceedings before it be
approved and authorized rather than to annul all such
proceedings regularly had and to repeat and duplicate the
same proceedings before the Cebu court only to revert once
more to the Quezon City court should the Cebu court find that
indeed and in fact, as already determined by the Quezon City
court on the strength of incontrovertible documentary evidence

of record, Quezon City was the conjugal residence of the

decedent.
ACCORDINGLY, judgment is hereby rendered reversing the
appealed decision and resolution of the Court of Appeals and
the petition for certiorari and prohibition with preliminary
injunction originally filed by respondents with the Court of
Appeals (CA-G.R. No. 34104-R) is ordered dismissed. No
costs.
Separate Opinions
BARREDO, J., concurring:
I concur in the main opinion of Mr. Justice Teehankee.
I only want to stress that in my view, the failure of respondents
to question within a reasonable time the laying of the venue in
the Quezon City Court of First Instance and the assumption of
jurisdiction by that court, after the Court of First Instance of
Cebu deferred in its favor, in order to prevent the holding
therein of any proceeding and trial, and their having filed
therein a formal opposition to the probate of the will, makes
them guilty of laches, for which reason they are not entitled to
the equitable relief prayed for in the present petition.
Separate Opinions
BARREDO, J., concurring:
I concur in the main opinion of Mr. Justice Teehankee.
I only want to stress that in my view, the failure of respondents
to question within a reasonable time the laying of the venue in
the Quezon City Court of First Instance and the assumption of
jurisdiction by that court, after the Court of First Instance of
Cebu deferred in its favor, in order to prevent the holding
therein of any proceeding and trial, and their having filed
therein a formal opposition to the probate of the will, makes
them guilty of laches, for which reason they are not entitled to
the equitable relief prayed for in the present petition.
Monserrat vs Ibanez
Vicenta Salamanca died intestate leaving as heirs 1 son and 4
daughters. Ramon (son) filed in CFI Lagunaa petition for his
appointment as administrator of the properties of his deceased
mother. His sisters(respondents) opposed saying that they are
all of age; the debts and obligations of the estate hasalready
been paid; that they did not want to be burdened with admin
proceedings; and that Ramons remedy was to sue for partition
under Rule 74 of ROC.Judge Ibanez issued an order stating
that in accordance with Fule v Fule the proper remedy should
be anaction for partition because all the heirs were of age and
there were no debts of the estate. He requiredthe sisters to
institute partition proceedings and that the litigation begun by
Ramon will be held inabeyance.The sisters filed an action for
partition. Ramon filed this special civil action alleging that the
respondent judge had committed grave abuse of discretion. He
prayed for the court to proceed with the hearing of his petition
for administration. Petitioner asserts that it is not known
whether there are any debtsbecause these may be shown only
in the administration proceedings but he did not assert
otherwise when respondents affidavit says that there was no
debt.
He argues that only when the heirs do nothave any dispute as
to the bulk of hereditary estate but only in the manner of
partition does Section 1 Rule 74 of ROC apply, and that in this
case the parties are at loggerheads as to the corpus of
thehereditary estate because respondents succeeded in
sequestering some assets of the intestate.
Issue: WON the administration proceedings should be held in
abeyance.
HELD: Yes. Fule v Fule applies: where there are no debts, the
heirs are not bound to submit the propertyto a judicial
administration which is always long and costly or to apply for
an appointment of an adminby the court. These proceedings

are superfluous and unnecessary.The creditors are protected

even if, without benefit of the administration, the estate is
distributed in anaction for partition.Questions as to what
property belonged to the deceased (and to the heirs) may
properly be ventilatedin the partition proceedings, especially
where such property is in the hands of one heir.The questions
he seeks to raise in the admin proceedings may equally de
decided in the partition suit.Besides, since the sisters
constitute 4/5 of the heirs. The majority interest usually gets to
select theadministrator.SC also said that the admin
proceedings will be dismissed soon, inasmuch as the partition
suit hasalready been instituted, because the court has already
intimated that the proceedings will be suspendedpending the
presentation of the other suit.
[G.R. No. L-19060. May 20, 1964.]
IGNACIO GERONA, MARIA CONCEPCION GERONA,
FRANClSCO GERONA and DELFIN GERONA, Petitioners,
v. CARMEN DE GUZMAN, JOSE DE GUZMAN, CLEMENTE
DE GUZMAN, FRANCISCO DE GUZMAN, RUSTICA DE
GUZMAN, PACITA DE GUZMAN, and VICTORIA DE
GUZMAN, Respondents.
SYLLABUS
1. PRESCRIPTION OF ACTION FOR PARTITION; STARTS
FROM ASSERTION OF ADVERSE TITLE. Although, as a
general rule, an action for partition among co-heirs does not
prescribe, this is true only as long as the defendants do not
hold the property in question under an adverse title. The
statute of limitations operates, as in other cases, from the
moment such adverse title is asserted by the possessor of the
property.
2. ID.; ID.; WHEN ADVERSE TITLE DEEMED SET UP BY COHEIRS. When respondents executed the deed of
extrajudicial settlement stating therein that they are the sole
heirs of the deceased, and secured new transfer certificates of
title in their own name, they thereby excluded the petitioners
from the estate of the deceased, and, consequently, set up a
title adverse to them.
3. ID.; ID.; ACTION FOR RECONVEYANCE BASED ON
FRAUD MAY BE BARRED BY STATURE OF LIMITATIONS.
An action for reconveyance of real property based upon a
constructive or implied trust, resulting from fraud, may be
barred by the statute of limitations.
4. ID.; ID.; ID.; DISCOVERY OF FRAUD COUNTED FROM
REGISTRATION OF DEED AND ISSUANCE OF NEW
TITLES. The action to annul a deed of extrajudicial
settlement upon the ground of fraud may be filed within four
years from the discovery of the fraud. Such discovery is
deemed to have taken place when said instrument was filed
with the Register of Deeds and new certificates of title were
issued in the name of the respondents exclusively.
DECISION
CONCEPCION, J.:
Appeal by certiorari from a decision of the Court of Appeals,
affirming that of the Court of First Instance of Bulacan.
In the complaint, filed with the latter court on September 4,
1958, petitioners herein, namely, Ignacio, Maria Concepcion,
Francisco and Delfin, all surnamed Gerona, allege that they
are the legitimate children of Domingo Gerona and Placida de
Guzman; that the latter, who died on August 9, 1941 was a
legitimate daughter of Marcelo de Guzman and his first wife,
Teodora de la Cruz; that after the death of his first wife,
Marcelo de Guzman married Camila Ramos, who begot him
several children, namely, respondents Carmen, Jose,
Clemente, Francisco, Rustica, Pacita and Victoria, all
surnamed De Guzman; that Marcelo de Guzman died on
September 11, 1945; that subsequently, or on May 6, 1948,
respondents executed a deed of "extra-judicial settlement of
the estate of the deceased Marcelo de Guzman", fraudulently
misrepresenting therein that they were the only surviving heirs
of the deceased Marcelo de Guzman, although they well knew
that petitioners were, also, his forced heirs; that respondents
had thereby succeeded fraudulently in causing the transfer

certificates of title to seven (7) parcels of land, issued in the

name of said deceased, to be cancelled and new transfer
certificates of title to be issued in their own name, in the
proportion of 1/7th individual interest for each; that such fraud
was discovered by the petitioners only the year before the
institution of this case; that petitioners forthwith demanded
from respondents their (petitioners) share in said properties, to
the extent of 1/8th interest thereon; and that the respondents
refused to heed said demand, thereby causing damages to the
petitioners. Accordingly, the latter prayed that judgment be
rendered nullifying said deed of extra-judicial settlement,
insofar as it deprives them of their participation of 1/8th of the
properties in litigation; ordering the respondents to reconvey to
petitioners their aforementioned share in said properties;
ordering the register of deeds to cancel the transfer certificates
of title secured by respondents as above stated and to issue
new certificates of title in the name of both the petitioners and
the respondents in the proportion of 1/8th for the former and
7/8th for the latter; ordering the respondents to render
accounts of the income of said properties and to deliver to
petitioners their lawful share therein; and sentencing
respondents to pay damages and attorneys fees.
In their answer, respondents maintained that petitioners
mother, the deceased Placida de Guzman, was not entitled to
share in the estate of Marcelo de Guzman, she being merely a
spurious child of the latter, and that petitioners action is barred
by the statute of limitations.
After appropriate proceedings, the trial court rendered a
decision finding that petitioners mother was a legitimate child,
by first marriage, of Marcelo de Guzman; that the properties
described in the complaint belonged to the conjugal
partnership of Marcelo de Guzman and his second wife,
Camila Ramos; and that petitioners action has already
prescribed, and, accordingly, dismissing the complaint without
costs. On appeal taken by the petitioners, this decision was
affirmed by the Court of Appeals, with costs against them.
Petitioners maintain that since they and respondents are coheirs of the deceased Marcelo de Guzman, the present action
for partition of the latters estate is not subject to the statute of
limitations of action; that, if affected by said statute, the period
of four (4) years therein prescribed did not begin to run until
actual discovery of the fraud perpetrated by respondents,
which, it is claimed, took place in 1956 or 1957; and that,
accordingly, said period had not expired when the present
action was commenced on November 4, 1958.
Petitioners contention is untenable. Although, as a general
rule, an action for partition among co-heirs does not prescribe,
this is true only as long as the defendants do not hold the
property in question under an adverse title (Cordova v.
Cordova, L-9936, January 14, 1948). The statute of limitations
operates, as in other cases, from the moment such adverse
title is asserted by the possessor of the property (Ramos v.
Ramos, 45 Phil., 362; Bargayo v. Camumot, 40 Phil., 857;
Castro v. Echarri, 20 Phil., 23).
When respondents executed the aforementioned deed of
extra- judicial settlement stating therein that they are the sole
heirs of the late Marcelo de Guzman, and secured new transfer
certificates of title in their own name, they thereby excluded the
petitioners from the estate of the deceased, and, consequently,
set up a title adverse to them. And this is why petitioners have
brought this action for the annulment of said deed upon the
ground that the same is tainted with fraud.
Although, there are some decisions to the contrary (Jacinto v.
Mendoza, 105 Phil., 260; Cuison v. Fernandez, 105 Phil., 135;
Marabiles v. Quito, 100 Phil., 64; and Sevilla v. De los Angeles,
97 Phil., 875), it is already settled in this jurisdiction that an
action for reconveyance of real property based upon a
constructive or implied trust, resulting from fraud, may be
barred by the statute of limitations (Candelaria v. Romero, 109
Phil., 500; Alzona v. Capunita, L-10220, February 28, 1962).
Inasmuch as petitioners seek to annul the aforementioned
deed of "extra-judicial settlement" upon the ground of fraud in
the execution thereof, the action therefor may be filed within
four (4) years from the discovery of the fraud (Mauricio v.
Villanueva, L-11072, September 24, 1959). Such discovery is
deemed to have taken place, in the case at bar, on June 25,

1948, when said instrument was filed with the Register of

Deeds and new certificates of title were issued in the name of
respondents exclusively, for the registration of the deed of
extra-judicial settlement constitutes constructive notice to
whole world (Diaz v. Gorricho, 103 Phil., 261; Avecilla v. Yatco,
L-11578, May 14, 1958; J.M. Tuason & Co., Inc. v. Magdangal,
L-15539, January 30, 1962; Lopez v. Gonzaga, L-18788,
January 31, 1964).
As correctly stated in the decision of the trial court:
"In the light of the foregoing it must, therefore, be held that
plaintiffs learned, at least constructively, of the allege fraud
committed against them by defendants on 25 June 1948 when
the deed of extrajudicial settlement of the estate of the
deceased Marcelo de Guzman was registered in the registry of
deeds of Bulacan, Plaintiffs complaint in this case was not filed
until 4 November 1958, or more than 10 years thereafter.
Plaintiff Ignacio Gerona became of age on 3 March 1948. He is
deemed to have discovered defendants fraud on 25 June 1948
and had, therefore, only 4 years from the said date within
which to file this action. Plaintiff Maria Concepcion Gerona
became of age on 8 December 1949, or after the registration of
the deed of extra-judicial settlement. She also had only the
remainder of the period of 4 years from 8 December 1949
within which to commence her action. Plaintiff Francisco
Gerona became of age only on 9 January 1952 so that he was
still minor when he gained knowledge (even if only
constructive) of the deed of extra-judicial settlement on 25
June 1948. Likewise, plaintiff Delfin Gerona became of legal
age on 5 August 1954, so that he was still a minor at the time
he gained knowledge (although constructive) of the deed of
extra-judicial settlement on 25 June 1948. Francisco Gerona
and Delfin Gerona had, therefore, two years after the removal
of their disability within which to commence their action
(Section 45, paragraph 3, in relation to Section 43, Act 190),
that is January 29, 1952, with respect to Francisco, and 5
August 1954, with respect to Delfin.
WHEREFORE, the decision of the Court of Appeals is hereby
affirmed, with costs against petitioners herein. It is so ordered.
G.R. No. L-39247June 27, 1975
In the Matter of the Petition to Approve the Will of
Leodegaria Julian. FELIX BALANAY, JR., petitioner,
vs. HON. ANTONIO M. MARTINEZ, Judge of the Court of
First Instance of Davao, Branch VI; AVELINA B. ANTONIO
and DELIA B. LANABAN, respondents.
AQUINO, J.:
Felix Balanay, Jr. appealed by certiorari from the order of the
Court of First Instance of Davao dated February 28, 1974,
declaring illegal and void the will of his mother, Leodegaria
Julian, converting the testate proceeding into an intestate
proceeding and ordering the issuance of the corresponding
notice to creditors (Special Case No. 1808). The antecedents
of the appeal are as follows:
Leodegaria Julian, a native of Sta. Maria, Ilocos Sur, died on
February 12, 1973 in Davao City at the age of sixty-seven. She
was survived by her husband, Felix Balanay, Sr., and by their
six legitimate children named Felix Balanay, Jr., Avelina B.
Antonio, Beatriz B. Solamo, Carolina B. Manguiob, Delia B.
Lanaban and Emilia B. Pabaonon.

in the manner set forth in that part of her will. She devised and
partitioned the conjugal lands as if they were all owned by her.
She disposed of in the will her husband's one half share of the
conjugal assets. *
Felix Balanay, Sr. and Avelina B. Antonio opposed the probate
of the will on the grounds of lack of testamentary capacity,
undue influence, preterition of the husband and alleged
improper partition of the conjugal estate. The oppositors
claimed that Felix Balanay, Jr. should collate certain properties
which he had received from the testatrix.
Felix Balanay, Jr., in his reply to the opposition, attached
thereto an affidavit of Felix Balanay, Sr. dated April 18, 1973
wherein he withdrew his opposition to the probate of the will
and affirmed that he was interested in its probate. On the same
date Felix Balanay, Sr. signed an instrument captioned
"Conformation (sic) of Division and Renunciation of Hereditary
Rights" wherein he manifested that out of respect for his wife's
will he "waived and renounced' his hereditary rights in her
estate in favor of their six children. In that same instrument he
confirmed the agreement, which he and his wife had perfected
before her death, that their conjugal properties would be
partitioned in the manner indicated in her will.
Avelina B. Antonio, an oppositor, in her rejoinder contended
that the affidavit and "conformation" of Felix Balanay, Sr. were
void. The lower court in its order of June 18, 1973 "denied" the
opposition and reset for hearing the probate of the will. It gave
effect to the affidavit and conformity of Felix Balanay, Sr. In an
order dated August 28, 1973 it appointed its branch clerk of
court as special administrator of the decedent's estate.
Mrs. Antonio moved for the reconsideration of the lower court's
order of June 18, 1973 on the grounds (a) that the testatrix
illegally claimed that she was the owner of the southern half of
the conjugal lots and (b) that she could not partition the
conjugal estate by allocating portions of the nine lots to her
children. Felix Balanay, Jr., through his counsel, Hermenegildo
Cabreros, opposed that motion. The lower court denied it in its
order of October 15, 1973.
In the meanwhile, another lawyer appeared in the case. David
O. Montaa, Sr., claiming to be the lawyer of petitioner Felix
Balanay, Jr. (his counsel of record was Atty. Cabreros), filed a
motion dated September 25, 1973 for "leave of court to
withdraw probate of alleged will of Leodegaria Julian and
requesting authority to proceed by intestate estate
proceeding." In that motion Montaa claimed to be the lawyer
not only of the petitioner but also of Felix Balanay, Sr., Beatriz
B. Solamo, Carolina B. Manguiob and Emilia B. Pabaonon.
Montaa in his motion assailed the provision of the will which
partitioned the conjugal assets or allegedly effected a
compromise of future legitimes. He prayed that the probate of
the will be withdrawn and that the proceeding be converted into
an intestate proceeding. In another motion of the same date he
asked that the corresponding notice to creditors be issued.
Avelina B. Antonio and Delia B. Lanaban, through Atty. Jose B.
Guyo, in their comments dated October 15, 1973 manifested
their conformity with the motion for the issuance of a notice to
creditors. They prayed that the will be declared void for being
contrary to law and that an intestacy be declared.

Felix J. Balanay, Jr. filed in the lower court a petition dated

February 27, 1973 for the probate of his mother's notarial will
dated September 5, 1970 which is written in English. In that will
Leodegaria Julian declared (a) that she was the owner of the
"southern half of nine conjugal lots (par. II); (b) that she was
the absolute owner of two parcels of land which she inherited
from her father (par. III), and (c) that it was her desire that her
properties should not be divided among her heirs during her
husband's lifetime and that their legitimes should be satisfied
out of the fruits of her properties (Par. IV).

The lower court, acting on the motions of Atty. Montaa,

assumed that the issuance of a notice to creditors was in order
since the parties had agreed on that point. It adopted the view
of Attys. Montaa and Guyo that the will was void. So, in its
order of February 28, 1974 it dismissed the petition for the
probate, converted the testate proceeding into an intestate
proceeding, ordered the issuance of a notice to creditors and
set the intestate proceeding for hearing on April 1 and 2, 1974.
The lower court did not abrogate its prior orders of June 18 and
October 15, 1973. The notice to creditors was issued on April
1, 1974 and published on May 2, 9 and 16 in the Davao Star in
spite of petitioner's motion of April 17, 1974 that its publication
be held in abeyance.

Then, in paragraph V of the will she stated that after her

husband's death (he was eighty-two years old in 1973) her
paraphernal lands and all the conjugal lands (which she
described as "my properties") should be divided and distributed

Felix Balanay, Jr., through a new counsel, Roberto M. Sarenas,

in a verified motion dated April 15, 1974, asked for the
reconsideration of the lower court's order of February 28, 1974
on the ground that Atty. Montaa had no authority to withdraw

the petition for the allowance of the will. Attached to the motion
was a copy of a letter dated March 27, 1974 addressed to Atty.
Montaa and signed by Felix Balanay, Jr., Beatriz V. Solamo,
Carolina B. Manguiob and Emilia B. Pabaonon, wherein they
terminated Montaa's services and informed him that his
withdrawal of the petition for the probate of the will was without
their consent and was contrary to their repeated reminder to
him that their mother's will was "very sacred" to them.
Avelina B. Antonio and Delia B. Lanaban opposed the motion
for reconsideration. The lower court denied the motion in its
order of June 29, 1974. It clarified that it declared the will void
on the basis of its own independent assessment of its
provisions and not because of Atty. Montaa's arguments.
The basic issue is whether the probate court erred in passing
upon the intrinsic validity of the will, before ruling on its
allowance or formal validity, and in declaring it void.
We are of the opinion that in view of certain unusual provisions
of the will, which are of dubious legality, and because of the
motion to withdraw the petition for probate (which the lower
court assumed to have been filed with the petitioner's
authorization), the trial court acted correctly in passing upon
the will's intrinsic validity even before its formal validity had
been established. The probate of a will might become an idle
ceremony if on its face it appears to be intrinsically void. Where
practical considerations demand that the intrinsic validity of the
will be passed upon, even before it is probated, the court
should meet the issue (Nuguid vs. Nuguid, 64 O.G. 1527, 17
SCRA 449. Compare with Sumilang vs. Ramagosa, L-23135,
December 26, 1967, 21 SCRA 1369; Cacho vs. Udan, L19996, April 30, 1965, 13 SCRA 693).1wph1.t
But the probate court erred in declaring, in its order of February
28, 1974 that the will was void and in converting the testate
proceeding into an intestate proceeding notwithstanding the
fact that in its order of June 18, 1973 , it gave effect to the
surviving husband's conformity to the will and to his
renunciation of his hereditary rights which presumably included
his one-half share of the conjugal estate.
The rule is that "the invalidity of one of several dispositions
contained in a will does not result in the invalidity of the other
dispositions, unless it is to be presumed that the testator would
not have made such other dispositions if the first invalid
disposition had not been made" (Art. 792, Civil Code). "Where
some of the provisions of a will are valid and others invalid, the
valid parts will be upheld if they can be separated from the
invalid without defeating the intention of the testator or
interfering with the general testamentary scheme, or doing
injustice to the beneficiaries" (95 C.J.S. 873).
The statement of the testatrix that she owned the "southern
half of the conjugal lands is contrary to law because, although
she was a coowner thereof, her share was inchoate and
proindiviso (Art. 143, Civil Code; Madrigal and Paterno vs.
Rafferty and Concepcion, 38 Phil. 414). But That illegal
declaration does not nullify the entire will. It may be
disregarded.
The provision of the will that the properties of the testatrix
should not be divided among her heirs during her husband's
lifetime but should be kept intact and that the legitimes should
be paid in cash is contrary to article 1080 of the Civil Code
which reads:
ART. 1080. Should a person make a partition of his estate by
an act inter vivos, or by will, such partition shall be respected,
insofar as it does not prejudice the legitime of the compulsory
heirs.
A parent who, in the interest of his or her family, to keep any
agricultural, industrial, or manufacturing enterprise intact, may
avail himself of the right granted him in this article, by ordering
that the legitime of the other children to whom the property is
not assigned be paid in cash. (1056a)
The testatrix in her will made a partition of the entire conjugal
estate among her six children (her husband had renounced his
hereditary rights and his one-half conjugal share). She did not
assign the whole estate to one or more children as envisaged
in article 1080. Hence, she had no right to require that the

legitimes be paid in cash. On the other hand, her estate may

remain undivided only for a period of twenty years. So, the
provision that the estate should not be divided during her
husband's lifetime would at most be effective only for twenty
years from the date of her death unless there are compelling
reasons for terminating the coownership (Art. 1083, Civil
Code).
Felix Balanay, Sr. could validly renounce his hereditary rights
and his one-half share of the conjugal partnership (Arts. 179[1]
and 1041, Civil Code) but insofar as said renunciation partakes
of a donation of his hereditary rights and his one-half share in
the conjugal estate (Art. 1060[1] Civil Code), it should be
subject to the limitations prescribed in articles 750 and 752 of
the Civil Code. A portion of the estate should be adjudicated to
the widower for his support and maintenance. Or at least his
legitime should be respected.
Subject to the foregoing observations and the rules on
collation, the will is intrinsically valid and the partition therein
may be given effect if it does not prejudice the creditors and
impair the legitimes. The distribution and partition would
become effective upon the death of Felix Balanay, Sr. In the
meantime, the net income should be equitably divided among
the children and the surviving spouse.
It should be stressed that by reason of the surviving husband's
conformity to his wife's will and his renunciation of his
hereditary rights, his one-half conjugal share became a part of
his deceased wife's estate. His conformity had the effect of
validating the partition made in paragraph V of the will without
prejudice, of course, to the rights of the creditors and the
legitimes of the compulsory heirs.
Article 793 of the Civil Code provides that "property acquired
after the making of a will shall only pass thereby, as if the
testator had it at the time of making the will, should it expressly
appear by the will that such was his intention". Under article
930 of the Civil Code "the legacy or devise of a thing belonging
to another person is void, if the testator erroneously believed
that the thing pertained to him. But if the thing bequeathed,
though not belonging to the testator when he made the will,
afterwards becomes his, by whatever title, the disposition shall
take effect."
In the instant case there is no doubt that the testatrix and her
husband intended to partition the conjugal estate in the manner
set forth in paragraph V of her will. It is true that she could
dispose of by will only her half of the conjugal estate (Art. 170,
Civil Code) but since the husband, after the dissolution of the
conjugal partnership, had assented to her testamentary
partition of the conjugal estate, such partition has become
valid, assuming that the will may be probated.
The instant case is different from the Nuguid case, supra,
where the testatrix instituted as heir her sister and preterited
her parents. Her will was intrinsically void because it preterited
her compulsory heirs in the direct line. Article 854 of the Civil
Code provides that "the preterition or omission of one, some,
or all of the compulsory heirs in the direct line, whether living at
the time of the execution of the will or born after the death of
the testator, shall annul the institution of heir; but the devises
and legacies, shall be valid insofar as they are not inofficious."
Since the preterition of the parents annulled the institution of
the sister of the testatrix and there were no legacies and
devises, total intestacy resulted (.Art. 960[2], Civil
Code).1wph1.t
In the instant case, the preterited heir was the surviving
spouse. His preterition did not produce intestacy. Moreover, he
signified his conformity to his wife's will and renounced his
hereditary rights. .
It results that the lower court erred in not proceeding with the
probate of the will as contemplated in its uncancelled order of
June 18, 1973. Save in an extreme case where the will on its
face is intrinsically void, it is the probate court's duty to pass
first upon the formal validity of the will. Generally, the probate
of the will is mandatory (Art. 838, Civil Code; Guevara vs.
Guevara, 74 Phil. 479 and 98 Phil. 249; Fernandez vs.
Dimagiba, L-23638, October 12, 1967, 21 SCRA 428).

As aptly stated by Mr. Justice Barredo, "the very existence of a

purported testament is in itself prima facie proof that the
supposed testator has willed that his estate should be
distributed in the manner therein provided, and it is incumbent
upon the state that, if legally tenable, such desire be given
effect independent of the attitude of the parties affected
thereby" (Resolution, Vda. de Precilla vs. Narciso, L-27200,
August 18, 1972, 46 SCRA 538, 565).
To give effect to the intention and wishes of the testatrix is the
first and principal law in the matter of testaments (Dizon-Rivera
vs. Dizon, L-24561, June 30, 1970, 33 SCRA 554, 561).
Testacy is preferable to intestacy. An interpretation that will
render a testamentary disposition operative takes precedence
over a construction that will nullify a provision of the will (Arts.
788 and 791, Civil Code).
Testacy is favored. Doubts are resolved in favor of testacy
especially where the will evinces an intention on the part of the
testator to dispose of practically his whole estate. So
compelling is the principle that intestacy should be avoided and
that the wishes of the testator should prevail that sometimes
the language of the will can be varied for the purpose of giving
it effect (Austria vs. Reyes, L-23079, February 27, 1970, 31
SCRA 754, 762).
As far as is legally possible, the expressed desire of the
testator must be followed and the dispositions of the properties
in his will should be upheld (Estorque vs. Estorque, L-19573,
June 30, 1970, 33 SCRA 540, 546).
The law has a tender regard for the wishes of the testator as
expressed in his will because any disposition therein is better
than that which the law can make (Castro vs. Bustos, L-25913,
February 28, 1969, 27 SCRA 327, 341).
Two other errors of the lower court may be noticed. It erred in
issuing a notice to creditors although no executor or regular
administrator has been appointed. The record reveals that it
appointed a special administrator. A notice to creditors is not in
order if only a special administrator has been appointed.
Section 1, Rule 86 of the Rules of Court, in providing that
"immediately after granting letters of testamentary or of
administration, the court shall issue a notice requiring all
persons having money claims against the decedent to file them
in the office of the clerk of said court" clearly contemplates the
appointment of an executor or regular administrator and not
that of a special administrator.
It is the executor or regular administrator who is supposed to
oppose the claims against the estate and to pay such claims
when duly allowed (See. 10, Rule 86 and sec. 1, Rule 88,
Rules of Court).
We also take this occasion to point out that the probate court's
appointment of its branch clerk of court as special
administrator (p. 30, Rollo) is not a salutary practice because it
might engender the suspicion that the probate Judge and his
clerk of court are in cahoots in milking the decedent's estate.
Should the branch clerk of court commit any abuse or
devastavit in the course of his administration, the probate
Judge might find it difficult to hold him to a strict accountability.
A court employee should devote his official time to his official
duties and should not have as a sideline the administration of a
decedent's estate.
WHEREFORE, the lower court's orders of February 28, and
June 29, 1974 are set aside and its order of June 18, 1973,
setting for hearing the petition for probate, is affirmed. The
lower court is directed to conduct further proceedings in
Special Case No. 1808 in consonance with this opinion. Costs,
against the private respondents.
SO ORDERED.

vs. FELINO MALOTO and FELINO MALOTO, oppositorsappellees.

FERNANDEZ, J.:
This is a petition to review the order dated April 13, 1970 of the
Court of First Instance of Iloilo, Branch III, in Special
Proceeding No. 2176 dismissing the petition for the probate of
a will. 1
One Adriana Maloto died on October 20, 1963 in Iloilo City, her
place of residence.
Aldina Maloto Casiano, Constancio Maloto, Panfilo Maloto, and
Felino Maloto, niece and nephews, respectively, of Adriana
Maloto, in the belief that decedent died intestate, commenced
on November 4, 1963 in the Court of First Instance of iloilo an
intestate proceeding docketed as Special Proceeding No.
1736. In the course of said intestate proceeding, Aldina Maloto
Casiano, Constancio Maloto, Panfilo Maloto and Felino Maloto
executed an extrajudicial Partition of the estate of Adriana
Maloto on February 1, 1964 whereby they adjudicated said
estate unto themselves in the proportion of one-fourth (1/4)
share for each. 2 The Court of First Instance of iloilo, then
prescribed by Judge Emigdio V. Nietes, ed he diamond
partition on March approve extrajudicial on March 21, 1964. 3
On April 1, 1967, a document dated January 3, 1940 purporting
to be the last with and testament of Adriana Maloto was
delivered to the Clerk of Art of the Art of First Instant of Iloilo. 4
It appears that Aldina Maloto Casiano Consent Maloto, Panfilo
Maloto, and Felino Maloto are named as heirs but Maloto
Casiano and Constancio Maloto allegedly have shares in said
with which are bigger, different and more valuable than what
they obtained in the extrajudicial partition. The said will also
allegedly made dispositions to certain devisees and/or
legatees, among whom being the Asilo de Molo, the Roman
Catholic Church of Molo, and Purificacion Miraflor.
On May 24, 1967, Aldina Maloto Casiano and Constancio
Maloto filed in Special Proceeding No. 1736 a motion (1) for
reconsideration; (2) annulment of the proceedings; and (3) for
the allowance of the last will and testament of Adriana Maloto.
5 The Asilo de Molo, the Roman Catholic Church of Molo, and
Purificacion Miraflor also filed in Special Proceeding No. 1736
petitions for the allowance of the will of Adriana Maloto. 6
Panfilo Maloto and Felino Maloto opposed the motion of Aldina
Maloto Casiano and Constancio Maloto.
The Court of First Instance of iloilo, through Judge Emigdio V.
Nietes, issued an order dated November 16, 1968 denying the
motion to reopen the proceedings on the ground that the said
motion had been filed out of time. A motion for reconsideration
of said order was denied. Petitioners appealed from the order
of denial. On motion of Panfilo Maloto and Felino Maloto, the
lower court dismissed the appeal on the ground that it was filed
late. A motion for reconsideration of the order of dismissal was
denied. A supplemental order dated April 1, 1969 stating as
additional ground that the appeal is improper was issued.
The petitioners filed a petition for certiorari and mandamus with
the Supreme Court docketed as G.R. No. L-30479. This Court
dismissed the petition in a resolution dated May 14, 1969
which reads:
L-010479 (Constancio Maloto, et al, vs. Hon. Emigdio V.
Nietes, etc., et al.) THE COURT RESOLVED to dismiss the
petition for certiorari and mandamus, without passing on the
issue of whether or not the petitioners appeal from the order of
November 16, 1968 of respondent Judge was made on time, it
appearing that the more appropriate remedy of petitioners in
the premises stated in the petition is for petitioners to initiate a
separate proceeding for the probate of the alleged will in
question. 7

G.R. No. L-32328September 30, 1977

TESTATE ESTATE OF THE LATE ADRIANO MALOTO:

ALDINA MALOTO CASIANO, CONSTANCIO MALOTO,
PURIFICACION MIRAFLOR, ROMAN CATHOLIC CHURCH
OF MOLO, and ASILO DE MOLO, petitioners-appellants

Acting on the petitioners' motion for reconsideration and

citation, fl Art issued a resolution dated July 15, 1969 which
reads:

Acting on the motion for reconsideration and/or clarification

filed by petitioner in G. R. No. L-30479, Constancio Maloto, et
al., vs. Hon. Emigdio V. Nietes, etc. et al., dated June 11, 1969,
the Court resolved to DENY the motion for reconsideration,
with the clarification that the matter of whether or not the
pertinent findings of facts of respondent Judge in his herein
subject order of November 16, 1968 constitute res adjudicata
may be raised in the proceedings for probate of the alleged will
in question indicated in the resolution of this Court of May 14,
1969, wherein such matter will be more appropriately
determined. 8
Thereupon, the herein petitioners commenced Special
Proceeding No. 2176 in the Court of First Instance of Iloilo for
the probate of the alleged last will and testament of Adriana
Maloto. 9
Panfilo Maloto and Felino Maloto filed an opposition with a
motion to dismiss on the following grounds:
I.
THAT THE ALLEGED WILL SOUGHT TO BE
PROBATED HAD BEEN DESTROYED AND REVOKED BY
THE TESTATRIX.
II.
THAT THE INSTANT PETITION FOR PROBATE IS
NOW BARRED BY PRIOR JUDGMENT OR ORDER (OR RES
JUDICATA).
III.
THAT THE ESTATE OF THE LATE ADRIANA
MALOTO HAD ALREADY PASSED OUT OF EXISTENCE
AND TITLE THERETO HAD ALREADY ARRESTED IN THE
DISTRIBUTEES OF THEIR ASSIGNS.
IV.
THAT PETITIONERS ALDINA MALOTO CASIANO
AND CONSTANCIO MALOTO ARE NOW ESTOPPED FROM
SEEKING THE REMEDY TENDER THIS PROCEEDING,
THEY HAVING CEASED TO BE INTERESTED PARTIES. 10
In an order dated April 13, 1970, the probate court dismissed
the petition for the probate of the with on the basis of the
finding of said court in Special Proceeding No. 1736 that the
alleged win sought to be Probated had been destroyed and
revoked by the testatrix. The probate court sustained the
oppositors' contention that the petition for probate is now
barred by the order of November 16, 1968 in the intestate
estate proceeding, Special Proceeding No. 1736. 11
The herein petitioners allege that the probate court committed
the following errors:
I
THE LOWER COURT ERRED IN HOLDING THAT THE
.kl).NIITTEI)I,Y GENUINE LAST WILL AND TESTAMENT OF
THE LATE ADRIANA MALOTO (THE SUBJECT OF PETITION
FOR PROBATE SPECIAL PROCEEDING NO. 2176, CFI
ILOILO) HAD PREVIOUSLY BEEN REVOKED BY HER
(ADRIANA MALOTO).

order of November 16, 1968 that "Movants should have filed a

separate action for the probate of the Will." 13 And this court
stated in its resolution of May 14, 1969 that "The more
appropriate remedy of the petitioners in the premises stated in
the petition is for petitioners to initiate a separate proceeding
for the probate of the alleged with in question."
In view of the foregoing, the order of November 16, 1968 in
Special Proceeding No. 1736 is not a bar to the present
petition for the probate of the alleged will of Adriana Maloto.
WHEREFORE, the order dated April 13, 1970 dismissing the
petition for the probate of the alleged will of Adriana Maloto is
hereby set aside and the lower court is directed to proceed
with the hearing of the petition in Special Proceeding No. 2176
on the merits, with costs against the respondents.
SO ORDERED.
G.R. No. L-48840December 29, 1943
ERNESTO M. GUEVARA, Petitioner-Appellant, vs.
ROSARIO GUEVARA and her husband PEDRO BUISON,
respondent-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.

III

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.

THE LOWER COURT, THEREFORE, ERRED IN DISMISSING

THE AFORESAID PETITION FOR PROBATE OF THE LAST
WILL AND TESTAMENT OF THE LATE ADRIANA MALOTO
AND IN NOT, INSTEAD, GIVING IT (THE PETITION ABOVECITED DUE COURSE.12

He set aside 100 hectares of the same parcel of land to be

disposed of either by him during his lifetime or by his attorneyin-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 instant petition for review is meritorious.

The remainder of said parcel of land his disposed of in the

following manner:

II
THE LOWER COURT ERRED IN HOLDING THAT SAID
PETITION (FOR PROBATE OF THE AFORESAID LAST WILL
AND TESTAMENT OF THE LATE ADRIANA MALOTO) IS
NOW BARRED BY PRIOR JUDGMENT. I. E., THAT THE
MATTER CONCERNED IS NOW RES ADJUDICATA

The probate court had no jurisdiction to entertain the petition

for the probate of the alleged with of Adriana Maloto in Special
Proceeding No. 1736. Indeed, the motion to reopen the was
denied because the same was filed out of time. Moreover, it is
not proper to make a finding in an intestate estate proceeding
that the discovered will has been revoked. As a matter of fact,
the probate court in Special Proceeding No. 1736 stated in the

(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.chanroblesvirtualawlibrary chanrobles virtual
law library

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.
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.
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.
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 M. Guevara the southern
half of Victorino L. Guevara's hacienda of 259-odd 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.
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.
G.R. No. L-23372

June 14, 1967

IN RE: INTESTATE ESTATE OF THE LATE PIO DURAN.

CIPRIANO DURAN and MIGUEL DURAN, petitionersappellants,
vs.JOSEFINA B. DURAN, movant-oppositor and appellee.
BENGZON J.P, J.:
Pio Duran died without testament on February 28, 1961 in
Guinobatan Albay. Among his alleged heirs are Josefina
Duran, as surviving spouse; several brothers and sisters;
nephews and nieces.
Subsequent to his death, on June 2, 1962, Cipriano Duran,
one of the surviving brothers, executed a public instrument
assigning and renouncing his hereditary rights to the
decedent's estate in favor of Josefina Duran, for the
consideration of P2,500.00.

A year later, on June 8, 1963, Cipriano Duran filed in the Court

of First Instance of Albay a petition for intestate proceedings to
settle Pio Duran's estate, further asking that he be named the
administrator. An ex parte motion to be appointed special
administrator was also filed by him.
Against said petition, Josefina Duran filed on August 9, 1963
an opposition, praying for its dismissal upon the ground that
the petitioner is not an "interested person" in the estate, in view
of the deed of transfer and renunciation the estate, in view of
afore-stated, attaching a copy of the same; in the alternative,
she asked to be appointed administratrix.
Replying to this, Cipriano alleged, on September 11, 1963,
alleged in his opposition to the motion to dismiss, that Josefina
Duran was not the decedent's wife. Anent the deed of
assignment, he contended that the same was procured thru
fraud, with gross inadequacy of price and vitiated by lesion.
Still later, another brother of the decedent, Miguel Duran, filed
on September 14, 1963, a petition to be joined as co-petitioner
of Cipriano. Josefina Duran moved to strike out said petition as
an improper attempt to intervene in the case. She also filed a
reply to Cipriano's opposition to her motion to dismiss. In turn,
Miguel filed an opposition to Josefina's motion to strike out.
Acting on said motions, on June 3, 1964, the Court of First
Instance issued an order dismissing the petition of Cipriano for
his lack of interest in the estate. Said lack of interest was
premised on the deed of transfer executed by Cipriano,
regarding which the court declared itself without power to
examine in said proceedings, collaterally, the alleged fraud,
inadequacy of price and lesion that would render it rescissible
or voidable. And with the petition's dismissal, Miguel's petition
to be joined as co-petitioner was deemed without leg to stand
on.
Appeal to Us directly, on questions of law, was taken by
Cipriano and Miguel Duran.
The Rules of Court provides that a petition for administration
and settlement of an estate must be filed by an "interested
person" (See. 2, Rule 79). Appellants contend that the deed of
assignment executed by Cipriano did not operate to render him
a person without interest in the estate. Relying on In re Irene
Santos, L-11848, May 31, 1962, they argue that an assignment
by one heir of his share in the estate to a co-heir amounts to a
partition needing approval by the settlement court to be
effective; and that the assigning heir does not lose his status
as a person interested in the estate, even after said
assignment is approved by the court.
The situation in the Santos case involves an assignment
between co-heirs pendente lite, during the course of settlement
proceedings, properly and validly commenced. At the time of
said assignment, therefore, the settlement court had already
acquired jurisdiction over the properties of estate. As a result,
any assignment regarding the same had to be approved by
said court. And since the approval the court is not deemed final
until the estate is closed the assigning heir remains an
interested person in proceedings even after said approval,
which can be vacated is given.
In the present case, however, the assignment took place when
no settlement proceedings was pending. The properties
subject matter of the assignment were not under the
jurisdiction of a settlement court. Allowing that the assignment
must be deemed a partition as between the assignor and
assignee, the same does not need court approval to be
effective as between the parties. An extrajudicial partition is
valid as between the participants even if the requisites of Sec.
1, Rule 74 for extrajudicial partition are not followed, since said
requisites are for purposes of binding creditors and nonparticipating heirs only (Hernandez v. Andal, 78 Phil. 196).
Should it be contended that said partition was attended with
fraud, lesion or inadequacy of price, the remedy is to rescind or
to annul the same in an action for that purpose. And in the
meanwhile, assigning heir cannot initiate a settlement
proceedings, for until the deed of assignment is annulled or
rescinded, it is deemed valid and effective against him, so that
he is left without that "interest" in the estate required to petite
for settlement proceedings.

Anent appellant Miguel Duran, he sought in his petition below

to "join petitioner Cipriano Duran as co-petitioner in the latter's
petition . . . and incorporates herein by adoption all the
allegations made in said petition." (Record on Appeal, pp. 4546). The same, therefore, amounted to a petition to intervene
in the settlement proceedings. As aptly ruled by the court a
quo, since there was really no settlement proceedings in the
first place, the petition to intervene must be denied.
Finally, although Josefina Duran prayed to be appointed
administratrix, her doing so did not amount to ratification of the
petition for settlement under the ruling in Eusebio v. Valmores,
97 Phil. 163, since she did so merely by way of an alternative
prayer, should her motion to dismiss fail. And said motion to
dismiss was properly sustained.
Wherefore, the dismissal order appealed from is hereby
affirmed, with costs against appellants. So ordered.
G.R. No. L-26317

January 29, 1927

Estate of Miguel Mamuyac, deceased.

FRANCISCO GAGO, petitioner-appellant, vs.CORNELIO
MAMUYAC, AMBROSIO LARIOSA, FELICIANA BAUZON,
and CATALINA MAMUYAC, opponents-appellees.
JOHNSON, J.:
The purpose of this action was to obtain the probation of a last
will and testament of Miguel Mamuyac, who died on the 2d day
of January, 1922, in the municipality of Agoo of the Province of
La Union. It appears from the record that on or about the 27th
day of July, 1918, the said Miguel Mamuyac executed a last
will and testament (Exhibit A). In the month of January, 1922,
the said Francisco Gago presented a petition in the Court of
First Instance of the Province of La Union for the probation of
that will. The probation of the same was opposed by Cornelio
Mamuyac, Ambrosio Lariosa, Feliciana Bauzon, and Catalina
Mamuyac (civil cause No. 1144, Province of La Union). After
hearing all of the parties the petition for the probation of said
will was denied by the Honorable C. M. Villareal on the 2d day
of November, 1923, upon the ground that the deceased had on
the 16th day of April, 1919, executed a new will and testament.
On the 21st day of February, 1925, the present action was
commenced. Its purpose was to secure the probation of the
said will of the 16th day of April, 1919 (Exhibit 1). To said
petition Cornelio Mamuyac, Ambrosio Lariosa, Feliciana
Bauzon, and Catalina Mamuyac presented their oppositions,
alleging (a) that the said will is a copy of the second will and
testament executed by the said Miguel Mamuyac; (b) that the
same had been cancelled and revoked during the lifetime of
Miguel Mamuyac and (c) that the said will was not the last will
and testament of the deceased Miguel Mamuyac.
Upon the issue thus presented, the Honorable Anastacio R.
Teodoro, judge, after hearing the respective parties, denied the
probation of said will of April 16, 1919, upon the ground that
the same had been cancelled and revoked in the year 1920.
Judge Teodoro, after examining the evidence adduced, found
that the following facts had been satisfactorily proved:
That Exhibit A is a mere carbon of its original which remained
in the possession of the deceased testator Miguel Mamuyac,
who revoked it before his death as per testimony of witness
Jose Fenoy, who typed the will of the testator on April 16,
1919, and Carlos Bejar, who saw on December 30, 1920, the
original Exhibit A (will of 1919) actually cancelled by the
testator Miguel Mamuyac, who assured Carlos Bejar that
inasmuch as he had sold him a house and the land where the
house was built, he had to cancel it (the will of 1919),
executing thereby a new testament. Narcisa Gago in a way
corroborates the testimony of Jose Fenoy, admitting that the
will executed by the deceased (Miguel Mamuyac) in 1919 was
found in the possession of father Miguel Mamuyac. The
opponents have successfully established the fact that father
Miguel Mamuyac had executed in 1920 another will. The same
Narcisa Gago, the sister of the deceased, who was living in the
house with him, when cross-examined by attorney for the
opponents, testified that the original Exhibit A could not be
found. For the foregoing consideration and for the reason that
the original of Exhibit A has been cancelled by the deceased

father Miguel Mamuyac, the court disallows the probate of

Exhibit A for the applicant." From that order the petitioner
appealed.
The appellant contends that the lower court committed an error
in not finding from the evidence that the will in question had
been executed with all the formalities required by the law; that
the same had been revoked and cancelled in 1920 before his
death; that the said will was a mere carbon copy and that the
oppositors were not estopped from alleging that fact.
With reference to the said cancellation, it may be stated that
there is positive proof, not denied, which was accepted by the
lower court, that will in question had been cancelled in 1920.
The law does not require any evidence of the revocation or
cancellation of a will to be preserved. It therefore becomes
difficult at times to prove the revocation or cancellation of wills.
The fact that such cancellation or revocation has taken place
must either remain unproved of be inferred from evidence
showing that after due search the original will cannot be found.
Where a will which cannot be found is shown to have been in
the possession of the testator, when last seen, the presumption
is, in the absence of other competent evidence, that the same
was cancelled or destroyed. The same presumption arises
where it is shown that the testator had ready access to the will
and it cannot be found after his death. It will not be presumed
that such will has been destroyed by any other person without
the knowledge or authority of the testator. The force of the
presumption of cancellation or revocation by the testator, while
varying greatly, being weak or strong according to the
circumstances, is never conclusive, but may be overcome by
proof that the will was not destroyed by the testator with intent
to revoke it.
In view of the fat that the original will of 1919 could not be
found after the death of the testator Miguel Mamuyac and in
view of the positive proof that the same had been cancelled,
we are forced to the conclusion that the conclusions of the
lower court are in accordance with the weight of the evidence.
In a proceeding to probate a will the burden of proofs is upon
the proponent clearly to establish not only its execution but its
existence. Having proved its execution by the proponents, the
burden is on the contestant to show that it has been revoked.
In a great majority of instances in which wills are destroyed for
the purpose of revoking them there is no witness to the act of
cancellation or destruction and all evidence of its cancellation
perishes with the testator. Copies of wills should be admitted
by the courts with great caution. When it is proven, however,
by proper testimony that a will was executed in duplicate and
each copy was executed with all the formalities and
requirements of the law, then the duplicate may be admitted in
evidence when it is made to appear that the original has been
lost and was not cancelled or destroyed by the testator.
(Borromeo vs. Casquijo, G.R. No. L-26063.)1
After a careful examination of the entire record, we are fully
persuaded that the will presented for probate had been
cancelled by the testator in 1920. Therefore the judgment
appealed from is hereby affirmed. And without any finding as to
costs, it is so ordered.
G.R. No. L-58509December 7, 1982
IN THE MATTER OF THE PETITION TO APPROVE THE
WILL OF RICARDO B. BONILLA deceased, MARCELA
RODELAS, petitioner-appellant,
vs. AMPARO ARANZA, ET AL., oppositors-appellees, ATTY.
LORENZO SUMULONG, intervenor.
RELOVA, J.:
This case was certified to this Tribunal by the Court of Appeals
for final determination pursuant to Section 3, Rule 50 of the
Rules of Court.
As found by the Court of Appeals:
... On January 11, 1977, appellant filed a petition with the Court
of First Instance of Rizal for the probate of the holographic will
of Ricardo B. Bonilla and the issuance of letters testamentary
in her favor. The petition, docketed as Sp. Proc. No. 8432, was
opposed by the appellees Amparo Aranza Bonilla, Wilferine

Bonilla Treyes Expedita Bonilla Frias and Ephraim Bonilla on

the following grounds:
(1) Appellant was estopped from claiming that the deceased
left a will by failing to produce the will within twenty days of the
death of the testator as required by Rule 75, section 2 of the
Rules of Court;
(2) The alleged copy of the alleged holographic will did not
contain a disposition of property after death and was not
intended to take effect after death, and therefore it was not a
will
(3) The alleged hollographic will itself,and not an alleged copy
thereof, must be produced, otherwise it would produce no
effect, as held in Gam v. Yap, 104 Phil. 509; and
(4 ) The deceased did not leave any will, holographic or
otherwise, executed and attested as required by law.
The appellees likewise moved for the consolidation of the case
with another case Sp. Proc. No, 8275). Their motion was
granted by the court in an order dated April 4, 1977.
On November 13, 1978, following the consolidation of the
cases, the appellees moved again to dismiss the petition for
the probate of the will. They argued that:
(1)
The alleged holographic was not a last will but merely
an instruction as to the management and improvement of the
schools and colleges founded by decedent Ricardo B. Bonilla;
and
(2) Lost or destroyed holographic wills cannot be proved by
secondary evidence unlike ordinary wills.
Upon opposition of the appellant, the motion to dismiss was
denied by the court in its order of February 23, 1979.
The appellees then filed a motion for reconsideration on the
ground that the order was contrary to law and settled
pronouncements and rulings of the Supreme Court, to which
the appellant in turn filed an opposition. On July 23, 1979, the
court set aside its order of February 23, 1979 and dismissed
the petition for the probate of the will of Ricardo B. Bonilla. The
court said:
... It is our considered opinion that once the original copy of the
holographic will is lost, a copy thereof cannot stand in lieu of
the original.
In the case of Gam vs. Yap, 104 Phil. 509, 522, the Supreme
Court held that 'in the matter of holographic wills the law, it is
reasonable to suppose, regards the document itself as the
material proof of authenticity of said wills.
MOREOVER, this Court notes that the alleged holographic will
was executed on January 25, 1962 while Ricardo B. Bonilla
died on May 13, 1976. In view of the lapse of more than 14
years from the time of the execution of the will to the death of
the decedent, the fact that the original of the will could not be
located shows to our mind that the decedent had discarded
before his death his allegedly missing Holographic Will.
Appellant's motion for reconsideration was denied. Hence, an
appeal to the Court of Appeals in which it is contended that the
dismissal of appellant's petition is contrary to law and wellsettled jurisprudence.
On July 7, 1980, appellees moved to forward the case to this
Court on the ground that the appeal does not involve question
of fact and alleged that the trial court committed the following
assigned errors:
I.
THE LOWER COURT ERRED IN HOLDING THAT A
LOST HOLOGRAPHIC WILL MAY NOT BE PROVED BY A
COPY THEREOF;
II. THE LOWER COURT ERRED IN HOLDING THAT THE
DECEDENT HAS DISCARDED BEFORE HIS DEATH THE
MISSING HOLOGRAPHIC WILL;
III. THE LOWER COURT
APPELLANT'S WILL.

ERRED

IN

DISMISSING

The only question here is whether a holographic will which was

lost or cannot be found can be proved by means of a
photostatic copy. Pursuant to Article 811 of the Civil Code,
probate of holographic wills is the allowance of the will by the
court after its due execution has been proved. The probate
may be uncontested or not. If uncontested, at least one
Identifying witness is required and, if no witness is available,
experts may be resorted to. If contested, at least three
Identifying witnesses are required. However, if the holographic
will has been lost or destroyed and no other copy is available,
the will can not be probated because the best and only
evidence is the handwriting of the testator in said will. It is
necessary that there be a comparison between sample
handwritten statements of the testator and the handwritten will.
But, a photostatic copy or xerox copy of the holographic will
may be allowed because comparison can be made with the
standard writings of the testator. In the case of Gam vs. Yap,
104 PHIL. 509, the Court ruled that "the execution and the
contents of a lost or destroyed holographic will may not be
proved by the bare testimony of witnesses who have seen
and/or read such will. The will itself must be presented;
otherwise, it shall produce no effect. The law regards the
document itself as material proof of authenticity." But, in
Footnote 8 of said decision, it says that "Perhaps it may be
proved by a photographic or photostatic copy. Even a
mimeographed or carbon copy; or by other similar means, if
any, whereby the authenticity of the handwriting of the
deceased may be exhibited and tested before the probate
court," Evidently, the photostatic or xerox copy of the lost or
destroyed holographic will may be admitted because then the
authenticity of the handwriting of the deceased can be
determined by the probate court.
WHEREFORE, the order of the lower court dated October 3,
1979, denying appellant's motion for reconsideration dated
August 9, 1979, of the Order dated July 23, 1979, dismissing
her petition to approve the will of the late Ricardo B. Bonilla, is
hereby SET ASIDE.
SO ORDERED.
G.R. No. L-11622

January 28, 1961

THE COLLECTOR OF INTERNAL REVENUE, petitioner,

vs.DOUGLAS FISHER AND BETTINA FISHER, and the
COURT OF TAX APPEALS, respondents.
x---------------------------------------------------------x
G.R. No. L-11668

January 28, 1961.

DOUGLAS FISHER AND BETTINA FISHER, petitioner,

vs.THE COLLECTOR OF INTERNAL REVENUE, and the
COURT OF TAX APPEALS, respondents.

BARRERA, J.:
This case relates to the determination and settlement of the
hereditary estate left by the deceased Walter G. Stevenson,
and the laws applicable thereto. Walter G. Stevenson (born in
the Philippines on August 9, 1874 of British parents and
married in the City of Manila on January 23, 1909 to Beatrice
Mauricia Stevenson another British subject) died on February
22, 1951 in San Francisco, California, U.S.A. whereto he and
his wife moved and established their permanent residence
since May 10, 1945. In his will executed in San Francisco on
May 22, 1947, and which was duly probated in the Superior
Court of California on April 11, 1951, Stevenson instituted his
wife Beatrice as his sole heiress to the following real and
personal properties acquired by the spouses while residing in
the Philippines, described and preliminary assessed as follows:
Gross Estate
Real Property 2 parcels of land in Baguio, covered by T.C.T.
Nos. 378 and 379
P43,500.00
Personal Property

(1) 177 shares of stock of Canacao Estate at P10.00 each

8,604.39

1,770.00

Real Estate Tax for 1951 on Baguio real properties (O.R. No.
B-1 686836)

(2) 210,000 shares of stock of Mindanao Mother Lode Mines,

Inc. at P0.38 per share

652.50

79,800.00

Claims against the estate:

(3) Cash credit with Canacao Estate Inc.

($5,000.00) P10,000.00

4,870.88

P10,000.00

(4) Cash, with the Chartered Bank of India, Australia & China

Plus: 4% int. p.a. from Feb. 2 to 22, 1951

851.97
Total Gross Assets
P130,792.85

22.47
10,022.47
Sub-Total
P21,365.88

On May 22, 1951, ancillary administration proceedings were

instituted in the Court of First Instance of Manila for the
settlement of the estate in the Philippines. In due time
Stevenson's will was duly admitted to probate by our court and
Ian Murray Statt was appointed ancillary administrator of the
estate, who on July 11, 1951, filed a preliminary estate and
inheritance tax return with the reservation of having the
properties declared therein finally appraised at their values six
months after the death of Stevenson. Preliminary return was
made by the ancillary administrator in order to secure the
waiver of the Collector of Internal Revenue on the inheritance
tax due on the 210,000 shares of stock in the Mindanao
Mother Lode Mines Inc. which the estate then desired to
dispose in the United States. Acting upon said return, the
Collector of Internal Revenue accepted the valuation of the
personal properties declared therein, but increased the
appraisal of the two parcels of land located in Baguio City by
fixing their fair market value in the amount of P52.200.00,
instead of P43,500.00. After allowing the deductions claimed
by the ancillary administrator for funeral expenses in the
amount of P2,000.00 and for judicial and administration
expenses in the sum of P5,500.00, the Collector assessed the
state the amount of P5,147.98 for estate tax and P10,875,26 or
inheritance tax, or a total of P16,023.23. Both of these
assessments were paid by the estate on June 6, 1952.
On September 27, 1952, the ancillary administrator filed in
amended estate and inheritance tax return in pursuance f his
reservation made at the time of filing of the preliminary return
and for the purpose of availing of the right granted by section
91 of the National Internal Revenue Code.
In this amended return the valuation of the 210,000 shares of
stock in the Mindanao Mother Lode Mines, Inc. was reduced
from 0.38 per share, as originally declared, to P0.20 per share,
or from a total valuation of P79,800.00 to P42,000.00. This
change in price per share of stock was based by the ancillary
administrator on the market notation of the stock obtaining at
the San Francisco California) Stock Exchange six months from
the death of Stevenson, that is, As of August 22, 1931. In
addition, the ancillary administrator made claim for the
following deductions:

In the meantime, on December 1, 1952, Beatrice Mauricia

Stevenson assigned all her rights and interests in the estate to
the spouses, Douglas and Bettina Fisher, respondents herein.
On September 7, 1953, the ancillary administrator filed a
second amended estate and inheritance tax return (Exh. "MN"). This return declared the same assets of the estate stated
in the amended return of September 22, 1952, except that it
contained new claims for additional exemption and deduction
to wit: (1) deduction in the amount of P4,000.00 from the gross
estate of the decedent as provided for in Section 861 (4) of the
U.S. Federal Internal Revenue Code which the ancillary
administrator averred was allowable by way of the reciprocity
granted by Section 122 of the National Internal Revenue Code,
as then held by the Board of Tax Appeals in case No. 71
entitled "Housman vs. Collector," August 14, 1952; and (2)
exemption from the imposition of estate and inheritance taxes
on the 210,000 shares of stock in the Mindanao Mother Lode
Mines, Inc. also pursuant to the reciprocity proviso of Section
122 of the National Internal Revenue Code. In this last return,
the estate claimed that it was liable only for the amount of
P525.34 for estate tax and P238.06 for inheritance tax and
that, as a consequence, it had overpaid the government. The
refund of the amount of P15,259.83, allegedly overpaid, was
accordingly requested by the estate. The Collector denied the
claim. For this reason, action was commenced in the Court of
First Instance of Manila by respondents, as assignees of
Beatrice Mauricia Stevenson, for the recovery of said amount.
Pursuant to Republic Act No. 1125, the case was forwarded to
the Court of Tax Appeals which court, after hearing, rendered
decision the dispositive portion of which reads as follows:

P1,204.34

In fine, we are of the opinion and so hold that: (a) the one-half
() share of the surviving spouse in the conjugal partnership
property as diminished by the obligations properly chargeable
to such property should be deducted from the net estate of the
deceased Walter G. Stevenson, pursuant to Section 89-C of
the National Internal Revenue Code; (b) the intangible
personal property belonging to the estate of said Stevenson is
exempt from inheritance tax, pursuant to the provision of
section 122 of the National Internal Revenue Code in relation
to the California Inheritance Tax Law but decedent's estate is
not entitled to an exemption of P4,000.00 in the computation of
the estate tax; (c) for purposes of estate and inheritance
taxation the Baguio real estate of the spouses should be
valued at P52,200.00, and 210,000 shares of stock in the
Mindanao Mother Lode Mines, Inc. should be appraised at
P0.38 per share; and (d) the estate shall be entitled to a
deduction of P2,000.00 for funeral expenses and judicial
expenses of P8,604.39.

(b) Attorney's Fee

From this decision, both parties appealed.

6.000.00

The Collector of Internal Revenue, hereinafter called petitioner

assigned four errors allegedly committed by the trial court,
while the assignees, Douglas and Bettina Fisher hereinafter
called respondents, made six assignments of error. Together,
the assigned errors raise the following main issues for
resolution by this Court:

Funeral expenses ($1,04326)

P2,086.52
Judicial Expenses:
(a) Administrator's Fee

(c) Judicial and Administration expenses as of August 9, 1952

1,400.05

(1) Whether or not, in determining the taxable net estate of the

decedent, one-half () of the net estate should be deducted
therefrom as the share of tile surviving spouse in accordance
with our law on conjugal partnership and in relation to section
89 (c) of the National Internal revenue Code;
(2) Whether or not the estate can avail itself of the reciprocity
proviso embodied in Section 122 of the National Internal
Revenue Code granting exemption from the payment of estate
and inheritance taxes on the 210,000 shares of stock in the
Mindanao Mother Lode Mines Inc.;
(3) Whether or not the estate is entitled to the deduction of
P4,000.00 allowed by Section 861, U.S. Internal Revenue
Code in relation to section 122 of the National Internal
Revenue Code;
(4) Whether or not the real estate properties of the decedent
located in Baguio City and the 210,000 shares of stock in the
Mindanao Mother Lode Mines, Inc., were correctly appraised
by the lower court;
(5) Whether or not the estate is entitled to the following
deductions: P8,604.39 for judicial and administration
expenses; P2,086.52 for funeral expenses; P652.50 for real
estate taxes; and P10,0,22.47 representing the amount of
indebtedness allegedly incurred by the decedent during his
lifetime; and
(6) Whether or not the estate is entitled to the payment of
interest on the amount it claims to have overpaid the
government and to be refundable to it.
In deciding the first issue, the lower court applied a well-known
doctrine in our civil law that in the absence of any ante-nuptial
agreement, the contracting parties are presumed to have
adopted the system of conjugal partnership as to the properties
acquired during their marriage. The application of this doctrine
to the instant case is being disputed, however, by petitioner
Collector of Internal Revenue, who contends that pursuant to
Article 124 of the New Civil Code, the property relation of the
spouses Stevensons ought not to be determined by the
Philippine law, but by the national law of the decedent
husband, in this case, the law of England. It is alleged by
petitioner that English laws do not recognize legal partnership
between spouses, and that what obtains in that jurisdiction is
another regime of property relation, wherein all properties
acquired during the marriage pertain and belong Exclusively to
the husband. In further support of his stand, petitioner cites
Article 16 of the New Civil Code (Art. 10 of the old) to the effect
that in testate and intestate proceedings, the amount of
successional rights, among others, is to be determined by the
national law of the decedent.
In this connection, let it be noted that since the mariage of the
Stevensons in the Philippines took place in 1909, the
applicable law is Article 1325 of the old Civil Code and not
Article 124 of the New Civil Code which became effective only
in 1950. It is true that both articles adhere to the so-called
nationality theory of determining the property relation of
spouses where one of them is a foreigner and they have made
no prior agreement as to the administration disposition, and
ownership of their conjugal properties. In such a case, the
national law of the husband becomes the dominant law in
determining the property relation of the spouses. There is,
however, a difference between the two articles in that Article
1241 of the new Civil Code expressly provides that it shall be
applicable regardless of whether the marriage was celebrated
in the Philippines or abroad while Article 13252 of the old Civil
Code is limited to marriages contracted in a foreign land.
It must be noted, however, that what has just been said refers
to mixed marriages between a Filipino citizen and a foreigner.
In the instant case, both spouses are foreigners who married in
the Philippines. Manresa,3 in his Commentaries, has this to
say on this point:
La regla establecida en el art. 1.315, se refiere a las
capitulaciones otorgadas en Espana y entre espanoles. El
1.325, a las celebradas en el extranjero cuando alguno de los
conyuges es espanol. En cuanto a la regla procedente cuando
dos extranjeros se casan en Espana, o dos espanoles en el
extranjero hay que atender en el primer caso a la legislacion

de pais a que aquellos pertenezean, y en el segundo, a las

reglas generales consignadas en los articulos 9 y 10 de
nuestro Codigo. (Emphasis supplied.)
If we adopt the view of Manresa, the law determinative of the
property relation of the Stevensons, married in 1909, would be
the English law even if the marriage was celebrated in the
Philippines, both of them being foreigners. But, as correctly
observed by the Tax Court, the pertinent English law that
allegedly vests in the decedent husband full ownership of the
properties acquired during the marriage has not been proven
by petitioner. Except for a mere allegation in his answer, which
is not sufficient, the record is bereft of any evidence as to what
English law says on the matter. In the absence of proof, the
Court is justified, therefore, in indulging in what Wharton calls
"processual presumption," in presuming that the law of
England on this matter is the same as our law.4
Nor do we believe petitioner can make use of Article 16 of the
New Civil Code (art. 10, old Civil Code) to bolster his stand. A
reading of Article 10 of the old Civil Code, which incidentally is
the one applicable, shows that it does not encompass or
contemplate to govern the question of property relation
between spouses. Said article distinctly speaks of amount of
successional rights and this term, in speaks in our opinion,
properly refers to the extent or amount of property that each
heir is legally entitled to inherit from the estate available for
distribution. It needs to be pointed out that the property relation
of spouses, as distinguished from their successional rights, is
governed differently by the specific and express provisions of
Title VI, Chapter I of our new Civil Code (Title III, Chapter I of
the old Civil Code.) We, therefore, find that the lower court
correctly deducted the half of the conjugal property in
determining the hereditary estate left by the deceased
Stevenson.
On the second issue, petitioner disputes the action of the Tax
Court in the exempting the respondents from paying
inheritance tax on the 210,000 shares of stock in the Mindanao
Mother Lode Mines, Inc. in virtue of the reciprocity proviso of
Section 122 of the National Internal Revenue Code, in relation
to Section 13851 of the California Revenue and Taxation Code,
on the ground that: (1) the said proviso of the California
Revenue and Taxation Code has not been duly proven by the
respondents; (2) the reciprocity exemptions granted by section
122 of the National Internal Revenue Code can only be availed
of by residents of foreign countries and not of residents of a
state in the United States; and (3) there is no "total" reciprocity
between the Philippines and the state of California in that while
the former exempts payment of both estate and inheritance
taxes on intangible personal properties, the latter only exempts
the payment of inheritance tax..
To prove the pertinent California law, Attorney Allison Gibbs,
counsel for herein respondents, testified that as an active
member of the California Bar since 1931, he is familiar with the
revenue and taxation laws of the State of California. When
asked by the lower court to state the pertinent California law as
regards exemption of intangible personal properties, the
witness cited article 4, section 13851 (a) and (b) of the
California Internal and Revenue Code as published in Derring's
California Code, a publication of the Bancroft-Whitney
Company inc. And as part of his testimony, a full quotation of
the cited section was offered in evidence as Exhibits "V-2" by
the respondents.
It is well-settled that foreign laws do not prove themselves in
our jurisdiction and our courts are not authorized to take
judicial notice of them.5 Like any other fact, they must be
alleged and proved.6
Section 41, Rule 123 of our Rules of Court prescribes the
manner of proving foreign laws before our tribunals. However,
although we believe it desirable that these laws be proved in
accordance with said rule, we held in the case of Willamette
Iron and Steel Works v. Muzzal, 61 Phil. 471, that "a reading of
sections 300 and 301 of our Code of Civil Procedure (now
section 41, Rule 123) will convince one that these sections do
not exclude the presentation of other competent evidence to
prove the existence of a foreign law." In that case, we
considered the testimony of an attorney-at-law of San
Francisco, California who quoted verbatim a section of
California Civil Code and who stated that the same was in

force at the time the obligations were contracted, as sufficient

evidence to establish the existence of said law. In line with this
view, we find no error, therefore, on the part of the Tax Court in
considering the pertinent California law as proved by
respondents' witness.
We now take up the question of reciprocity in exemption from
transfer or death taxes, between the State of California and the
Philippines.F
Section 122 of our National Internal Revenue Code, in
pertinent part, provides:
... And, provided, further, That no tax shall be collected under
this Title in respect of intangible personal property (a) if the
decedent at the time of his death was a resident of a foreign
country which at the time of his death did not impose a transfer
of tax or death tax of any character in respect of intangible
personal property of citizens of the Philippines not residing in
that foreign country, or (b) if the laws of the foreign country of
which the decedent was a resident at the time of his death
allow a similar exemption from transfer taxes or death taxes of
every character in respect of intangible personal property
owned by citizens of the Philippines not residing in that foreign
country." (Emphasis supplied).
On the other hand, Section 13851 of the California Inheritance
Tax Law, insofar as pertinent, reads:.
"SEC. 13851, Intangibles of nonresident: Conditions. Intangible
personal property is exempt from the tax imposed by this part if
the decedent at the time of his death was a resident of a
territory or another State of the United States or of a foreign
state or country which then imposed a legacy, succession, or
death tax in respect to intangible personal property of its own
residents, but either:.
(a) Did not impose a legacy, succession, or death tax of any
character in respect to intangible personal property of residents
of this State, or
(b) Had in its laws a reciprocal provision under which intangible
personal property of a non-resident was exempt from legacy,
succession, or death taxes of every character if the Territory or
other State of the United States or foreign state or country in
which the nonresident resided allowed a similar exemption in
respect to intangible personal property of residents of the
Territory or State of the United States or foreign state or
country of residence of the decedent." (Id.)
It is clear from both these quoted provisions that the reciprocity
must be total, that is, with respect to transfer or death taxes of
any and every character, in the case of the Philippine law, and
to legacy, succession, or death taxes of any and every
character, in the case of the California law. Therefore, if any of
the two states collects or imposes and does not exempt any
transfer, death, legacy, or succession tax of any character, the
reciprocity does not work. This is the underlying principle of the
reciprocity clauses in both laws.
In the Philippines, upon the death of any citizen or resident, or
non-resident with properties therein, there are imposed upon
his estate and its settlement, both an estate and an inheritance
tax. Under the laws of California, only inheritance tax is
imposed. On the other hand, the Federal Internal Revenue
Code imposes an estate tax on non-residents not citizens of
the United States,7 but does not provide for any exemption on
the basis of reciprocity. Applying these laws in the manner the
Court of Tax Appeals did in the instant case, we will have a
situation where a Californian, who is non-resident in the
Philippines but has intangible personal properties here, will the
subject to the payment of an estate tax, although exempt from
the payment of the inheritance tax. This being the case, will a
Filipino, non-resident of California, but with intangible personal
properties there, be entitled to the exemption clause of the
California law, since the Californian has not been exempted
from every character of legacy, succession, or death tax
because he is, under our law, under obligation to pay an estate
tax? Upon the other hand, if we exempt the Californian from
paying the estate tax, we do not thereby entitle a Filipino to be
exempt from a similar estate tax in California because under
the Federal Law, which is equally enforceable in California he
is bound to pay the same, there being no reciprocity

recognized in respect thereto. In both instances, the Filipino

citizen is always at a disadvantage. We do not believe that our
legislature has intended such an unfair situation to the
detriment of our own government and people. We, therefore,
find and declare that the lower court erred in exempting the
estate in question from payment of the inheritance tax.
We are not unaware of our ruling in the case of Collector of
Internal Revenue vs. Lara (G.R. Nos. L-9456 & L-9481, prom.
January 6, 1958, 54 O.G. 2881) exempting the estate of the
deceased Hugo H. Miller from payment of the inheritance tax
imposed by the Collector of Internal Revenue. It will be noted,
however, that the issue of reciprocity between the pertinent
provisions of our tax law and that of the State of California was
not there squarely raised, and the ruling therein cannot control
the determination of the case at bar. Be that as it may, we now
declare that in view of the express provisions of both the
Philippine and California laws that the exemption would apply
only if the law of the other grants an exemption from legacy,
succession, or death taxes of every character, there could not
be partial reciprocity. It would have to be total or none at all.

With respect to the question of deduction or reduction in the

amount of P4,000.00 based on the U.S. Federal Estate Tax
Law which is also being claimed by respondents, we uphold
and adhere to our ruling in the Lara case (supra) that the
amount of $2,000.00 allowed under the Federal Estate Tax
Law is in the nature of a deduction and not of an exemption
regarding which reciprocity cannot be claimed under the
provision of Section 122 of our National Internal Revenue
Code. Nor is reciprocity authorized under the Federal Law. .
On the issue of the correctness of the appraisal of the two
parcels of land situated in Baguio City, it is contended that their
assessed values, as appearing in the tax rolls 6 months after
the death of Stevenson, ought to have been considered by
petitioner as their fair market value, pursuant to section 91 of
the National Internal Revenue Code. It should be pointed out,
however, that in accordance with said proviso the properties
are required to be appraised at their fair market value and the
assessed value thereof shall be considered as the fair market
value only when evidence to the contrary has not been shown.
After all review of the record, we are satisfied that such
evidence exists to justify the valuation made by petitioner
which was sustained by the tax court, for as the tax court aptly
observed:
"The two parcels of land containing 36,264 square meters were
valued by the administrator of the estate in the Estate and
Inheritance tax returns filed by him at P43,500.00 which is the
assessed value of said properties. On the other hand,
defendant appraised the same at P52,200.00. It is of common
knowledge, and this Court can take judicial notice of it, that
assessments for real estate taxation purposes are very much
lower than the true and fair market value of the properties at a
given time and place. In fact one year after decedent's death or
in 1952 the said properties were sold for a price of P72,000.00
and there is no showing that special or extraordinary
circumstances caused the sudden increase from the price of
P43,500.00, if we were to accept this value as a fair and
reasonable one as of 1951. Even more, the counsel for
plaintiffs himself admitted in open court that he was willing to
purchase the said properties at P2.00 per square meter. In the
light of these facts we believe and therefore hold that the
valuation of P52,200.00 of the real estate in Baguio made by
defendant is fair, reasonable and justified in the premises."
(Decision, p. 19).
In respect to the valuation of the 210,000 shares of stock in the
Mindanao Mother Lode Mines, Inc., (a domestic corporation),
respondents contend that their value should be fixed on the
basis of the market quotation obtaining at the San Francisco
(California) Stock Exchange, on the theory that the certificates
of stocks were then held in that place and registered with the
said stock exchange. We cannot agree with respondents'
argument. The situs of the shares of stock, for purposes of
taxation, being located here in the Philippines, as respondents
themselves concede and considering that they are sought to
be taxed in this jurisdiction, consistent with the exercise of our
government's taxing authority, their fair market value should be
taxed on the basis of the price prevailing in our country.

Upon the other hand, we find merit in respondents' other

contention that the said shares of stock commanded a lesser
value at the Manila Stock Exchange six months after the death
of Stevenson. Through Atty. Allison Gibbs, respondents have
shown that at that time a share of said stock was bid for at only
P.325 (p. 103, t.s.n.). Significantly, the testimony of Atty. Gibbs
in this respect has never been questioned nor refuted by
petitioner either before this court or in the court below. In the
absence of evidence to the contrary, we are, therefore,
constrained to reverse the Tax Court on this point and to hold
that the value of a share in the said mining company on August
22, 1951 in the Philippine market was P.325 as claimed by
respondents..

It should be noted that the petitioner and the Tax Court valued
each share of stock of P.38 on the basis of the declaration
made by the estate in its preliminary return. Patently, this
should not have been the case, in view of the fact that the
ancillary administrator had reserved and availed of his legal
right to have the properties of the estate declared at their fair
market value as of six months from the time the decedent
died..
On the fifth issue, we shall consider the various deductions,
from the allowance or disallowance of which by the Tax Court,
both petitioner and respondents have appealed..
Petitioner, in this regard, contends that no evidence of record
exists to support the allowance of the sum of P8,604.39 for the
following expenses:.
1) Administrator's fee
P1,204.34
2) Attorney's fee
6,000.00
3) Judicial and Administrative expenses
2,052.55
Total Deductions
P8,604.39
An examination of the record discloses, however, that the
foregoing items were considered deductible by the Tax Court
on the basis of their approval by the probate court to which
said expenses, we may presume, had also been presented for
consideration. It is to be supposed that the probate court would
not have approved said items were they not supported by
evidence presented by the estate. In allowing the items in
question, the Tax Court had before it the pertinent order of the
probate court which was submitted in evidence by
respondents. (Exh. "AA-2", p. 100, record). As the Tax Court
said, it found no basis for departing from the findings of the
probate court, as it must have been satisfied that those
expenses were actually incurred. Under the circumstances, we
see no ground to reverse this finding of fact which, under
Republic Act of California National Association, which it would
appear, that while still living, Walter G. Stevenson obtained we
are not inclined to pass upon the claim of respondents in
respect to the additional amount of P86.52 for funeral
expenses which was disapproved by the court a quo for lack of
evidence.
In connection with the deduction of P652.50 representing the
amount of realty taxes paid in 1951 on the decedent's two
parcels of land in Baguio City, which respondents claim was
disallowed by the Tax Court, we find that this claim has in fact
been allowed. What happened here, which a careful review of
the record will reveal, was that the Tax Court, in itemizing the
liabilities of the estate, viz:
1) Administrator's fee
P1,204.34
2) Attorney's fee

6,000.00
3) Judicial and Administration expenses as of August 9, 1952
2,052.55
Total
P9,256.89
added the P652.50 for realty taxes as a liability of the estate, to
the P1,400.05 for judicial and administration expenses
approved by the court, making a total of P2,052.55, exactly the
same figure which was arrived at by the Tax Court for judicial
and administration expenses. Hence, the difference between
the total of P9,256.98 allowed by the Tax Court as deductions,
and the P8,604.39 as found by the probate court, which is
P652.50, the same amount allowed for realty taxes. An evident
oversight has involuntarily been made in omitting the
P2,000.00 for funeral expenses in the final computation. This
amount has been expressly allowed by the lower court and
there is no reason why it should not be. .
We come now to the other claim of respondents that pursuant
to section 89(b) (1) in relation to section 89(a) (1) (E) and
section 89(d), National Internal Revenue Code, the amount of
P10,022.47 should have been allowed the estate as a
deduction, because it represented an indebtedness of the
decedent incurred during his lifetime. In support thereof, they
offered in evidence a duly certified claim, presented to the
probate court in California by the Bank of California National
Association, which it would appear, that while still living, Walter
G. Stevenson obtained a loan of $5,000.00 secured by pledge
on 140,000 of his shares of stock in the Mindanao Mother Lode
Mines, Inc. (Exhs. "Q-Q4", pp. 53-59, record). The Tax Court
disallowed this item on the ground that the local probate court
had not approved the same as a valid claim against the estate
and because it constituted an indebtedness in respect to
intangible personal property which the Tax Court held to be
exempt from inheritance tax.
For two reasons, we uphold the action of the lower court in
disallowing the deduction.
Firstly, we believe that the approval of the Philippine probate
court of this particular indebtedness of the decedent is
necessary. This is so although the same, it is averred has been
already admitted and approved by the corresponding probate
court in California, situs of the principal or domiciliary
administration. It is true that we have here in the Philippines
only an ancillary administration in this case, but, it has been
held, the distinction between domiciliary or principal
administration and ancillary administration serves only to
distinguish one administration from the other, for the two
proceedings are separate and independent.8 The reason for
the ancillary administration is that, a grant of administration
does not ex proprio vigore, have any effect beyond the limits of
the country in which it was granted. Hence, we have the
requirement that before a will duly probated outside of the
Philippines can have effect here, it must first be proved and
allowed before our courts, in much the same manner as wills
originally presented for allowance therein.9 And the estate
shall be administered under letters testamentary, or letters of
administration granted by the court, and disposed of according
to the will as probated, after payment of just debts and
expenses of administration.10 In other words, there is a regular
administration under the control of the court, where claims
must be presented and approved, and expenses of
administration allowed before deductions from the estate can
be authorized. Otherwise, we would have the actuations of our
own probate court, in the settlement and distribution of the
estate situated here, subject to the proceedings before the
foreign court over which our courts have no control. We do not
believe such a procedure is countenanced or contemplated in
the Rules of Court.
Another reason for the disallowance of this indebtedness as a
deduction, springs from the provisions of Section 89, letter (d),
number (1), of the National Internal Revenue Code which
reads:
(d) Miscellaneous provisions (1) No deductions shall be
allowed in the case of a non-resident not a citizen of the

Philippines unless the executor, administrator or anyone of the

heirs, as the case may be, includes in the return required to be
filed under section ninety-three the value at the time of his
death of that part of the gross estate of the non-resident not
situated in the Philippines."
In the case at bar, no such statement of the gross estate of the
non-resident Stevenson not situated in the Philippines appears
in the three returns submitted to the court or to the office of the
petitioner Collector of Internal Revenue. The purpose of this
requirement is to enable the revenue officer to determine how
much of the indebtedness may be allowed to be deducted,
pursuant to (b), number (1) of the same section 89 of the
Internal Revenue Code which provides:
(b) Deductions allowed to non-resident estates. In the case
of a non-resident not a citizen of the Philippines, by deducting
from the value of that part of his gross estate which at the time
of his death is situated in the Philippines
(1) Expenses, losses, indebtedness, and taxes. That
proportion of the deductions specified in paragraph (1) of
subjection (a) of this section11 which the value of such part
bears the value of his entire gross estate wherever situated;"
In other words, the allowable deduction is only to the extent of
the portion of the indebtedness which is equivalent to the
proportion that the estate in the Philippines bears to the total
estate wherever situated. Stated differently, if the properties in
the Philippines constitute but 1/5 of the entire assets wherever
situated, then only 1/5 of the indebtedness may be deducted.
But since, as heretofore adverted to, there is no statement of
the value of the estate situated outside the Philippines, no part
of the indebtedness can be allowed to be deducted, pursuant
to Section 89, letter (d), number (1) of the Internal Revenue
Code.
For the reasons thus stated, we affirm the ruling of the lower
court disallowing the deduction of the alleged indebtedness in
the sum of P10,022.47.
In recapitulation, we hold and declare that:
(a) only the one-half (1/2) share of the decedent Stevenson in
the conjugal partnership property constitutes his hereditary
estate subject to the estate and inheritance taxes;
(b) the intangible personal property is not exempt from
inheritance tax, there existing no complete total reciprocity as
required in section 122 of the National Internal Revenue Code,
nor is the decedent's estate entitled to an exemption of
P4,000.00 in the computation of the estate tax;
(c) for the purpose of the estate and inheritance taxes, the
210,000 shares of stock in the Mindanao Mother Lode Mines,
Inc. are to be appraised at P0.325 per share; and
(d) the P2,000.00 for funeral expenses should be deducted in
the determination of the net asset of the deceased Stevenson.
In all other respects, the decision of the Court of Tax Appeals is
affirmed.
Respondent's claim for interest on the amount allegedly
overpaid, if any actually results after a recomputation on the
basis of this decision is hereby denied in line with our recent
decision in Collector of Internal Revenue v. St. Paul's Hospital
(G.R. No. L-12127, May 29, 1959) wherein we held that, "in the
absence of a statutory provision clearly or expressly directing
or authorizing such payment, and none has been cited by
respondents, the National Government cannot be required to
pay interest."
WHEREFORE, as modified in the manner heretofore indicated,
the judgment of the lower court is hereby affirmed in all other
respects not inconsistent herewith. No costs. So ordered.