Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-23638

October 12, 1967

DIONISIO FERNANDEZ, EUSEBIO REYES and LUISA REYES, petitioners,

vs.
ISMAELA DIMAGIBA, respondent.
---------------------------------------G.R. No. L-23662

October 12, 1967

MARIANO REYES, CESAR REYES, LEONOR REYES and PACIENCIA REYES, petitioners,
vs.
ISMAELA DIMAGIBA, respondent.
Jose D. Villena for petitioners.
Antonio Barredo and Exequiel M. Zaballero for respondent.
REYES, J.B.L., Actg. C.J.:
The heirs intestate of the late Benedicta de los Reyes have petitioned for a review of the
decision of the Court of Appeals (in CA-G. R. No. 31221-R) affirming that of the Court of First
Instance of Bulacan, in Special Proceeding No. 831 of said Court, admitting to probate the
alleged last will and testament of the deceased, and overruling the opposition to the probate.
It appears from the record that on January 19, 1955, Ismaela Dimagiba, now respondent,
submitted to the Court of First Instance a petition for the probate of the purported will of the late
Benedicta de los Reyes, executed on October 22, 1930, and annexed to the petition. The will
instituted the petitioner as the sole heir of the estate of the deceased. The petition was set for
hearing, and in due time, Dionisio Fernandez, Eusebio Reyes and Luisa Reyes and one month
later, Mariano, Cesar, Leonor and Paciencia, all surnamed Reyes, all claiming to be heirs
intestate of the decedent, filed oppositions to the probate asked. Grounds advanced for the
opposition were forgery, vices of consent of the testatrix, estoppel by laches of the proponent
and revocation of the will by two deeds of conveyance of the major portion of the estate made by
the testatrix in favor of the proponent in 1943 and 1944, but which conveyances were finally set
aside by this Supreme Court in a decision promulgated on August 3, 1954, in cases G.R. Nos. L5618 and L-5620 (unpublished).
After trial on the formulated issues, the Court of First Instance, by decision of June 20, 1958,
found that the will was genuine and properly executed; but deferred resolution on the questions
of estoppel and revocation "until such time when we shall pass upon the intrinsic validity of the

provisions of the will or when the question of adjudication of the properties is opportunely
presented."
Oppositors Fernandez and Reyes petitioned for reconsideration, and/or new trial, insisting that
the issues of estoppel and revocation be considered and resolved; whereupon, on July 27,
1959, the Court overruled the claim that proponent was in estoppel to ask for the probate of the
will, but "reserving unto the parties the right to raise the issue of implied revocation at the
opportune time."
On January 11, 1960, the Court of First Instance appointed Ricardo Cruz as administrator for the
sole purpose of submitting an inventory of the estate, and this was done on February 9, 1960.
On February 27, 1962, after receiving further evidence on the issue whether the execution by
the testatrix of deeds of sale of the larger portion of her estate in favor of the testamentary heir,
made in 1943 and 1944, subsequent to the execution of her 1930 testament, had revoked the
latter under Article 957(2) of the 1950 Civil Code (Art. 869 of the Civil Code of 1889), the trial
Court resolved against the oppositors and held the will of the late Benedicta de los Reyes
"unaffected and unrevoked by the deeds of sale." Whereupon, the oppositors elevated the case
to the Court of Appeals.
The appellate Court held that the decree of June 20, 1958, admitting the will to probate, had
become final for lack of opportune appeal; that the same was appealable independently of the
issue of implied revocation; that contrary to the claim of oppositors-appellants, there had been
no legal revocation by the execution of the 1943 and 1944 deeds of sale, because the latter had
been made in favor of the legatee herself, and affirmed the decision of the Court of First
Instance.
Oppositors then appealed to this Court.
In this instance, both sets of oppositors-appellants pose three main issues: (a) whether or not
the decree of the Court of First Instance allowing the will to probate had become final for lack of
appeal; (b) whether or not the order of the Court of origin dated July 27, 1959, overruling the
estoppel invoked by oppositors-appellants had likewise become final; and (c) whether or not the
1930 will of Benedicta de los Reyes had been impliedly revoked by her execution of deeds of
conveyance in favor of the proponent on March 26, 1943 and April 3, 1944.
As to the first point, oppositors-appellants contend that the order allowing the will to probate
should be considered interlocutory, because it fails to resolve the issues of estoppel and
revocation propounded in their opposition. We agree with the Court of Appeals that the
appellant's stand is untenable. It is elementary that a probate decree finally and definitively
settles all questions concerning capacity of the testator and the proper execution and witnessing
of his last will and testament, irrespective of whether its provisions are valid and enforceable or
otherwise. (Montaano vs. Suesa, 14 Phil. 676; Mercado vs. Santos, 66 Phil. 215; Trillana vs.
Crisostomo, 89 Phil. 710). As such, the probate order is final and appealable; and it is so
recognized by express provisions of Section 1 of Rule 109, that specifically prescribes that "any
interested person may appeal in special proceedings from an order or judgment . . . where such
order or judgment: (a) allows or disallows a will."

Appellants argue that they were entitled to await the trial Court's resolution on the other grounds
of their opposition before taking an appeal, as otherwise there would be a multiplicity of
recourses to the higher Courts. This contention is without weight, since Rule 109, section 1,
expressly enumerates six different instances when appeal may be taken in special proceedings.
There being no controversy that the probate decree of the Court below was not appealed on
time, the same had become final and conclusive. Hence, the appellate courts may no longer
revoke said decree nor review the evidence upon which it is made to rest. Thus, the appeal
belatedly lodged against the decree was correctly dismissed.
The alleged revocation implied from the execution of the deeds of conveyance in favor of the
testamentary heir is plainly irrelevant to and separate from the question of whether the
testament was duly executed. For one, if the will is not entitled to probate, or its probate is
denied, all questions of revocation become superfluous in law, there is no such will and hence
there would be nothing to revoke. Then, again, the revocation invoked by the oppositorsappellants is not an express one, but merely implied from subsequent acts of the testatrix
allegedly evidencing an abandonment of the original intention to bequeath or devise the
properties concerned. As such, the revocation would not affect the will itself, but merely the
particular devise or legacy. Only the total andabsolute revocation can preclude probate of the
revoked testament (Trillana vs. Crisostomo, supra.).
As to the issue of estoppel, we have already ruled in Guevara vs. Guevara, 98 Phil. 249, that the
presentation and probate of a will are requirements of public policy, being primarily designed to
protect the testator's, expressed wishes, which are entitled to respect as a consequence of the
decedent's ownership and right of disposition within legal limits. Evidence of it is
the duty imposed on a custodian of a will to deliver the same to the Court, and the fine and
imprisonment prescribed for its violation (Revised Rule 75). It would be a non sequitur to allow
public policy to be evaded on the pretext of estoppel. Whether or not the order overruling the
allegation of estoppel is still appealable or not, the defense is patently unmeritorious and the
Court of Appeals correctly so ruled.
The last issue, that of revocation, is predicated on paragraph 2 of Article 957 of the Civil Code of
1950 (Art. 869 of the Code of 1889), which recites:

It is well to note that, unlike in the French and Italian Codes, the basis of the quoted provision is
a presumed change of intention on the part of the testator. As pointed out by Manresa in his
Commentaries on Article 869 of the Civil Code (Vol. 6, 7th Ed., p. 743)
Este caso se funda en la presunta voluntad del testador. Si este, despues de legar, se
desprende de la cosa por titulo lucrativo u oneroso, hace desaparecer su derecho
sobra ella, dando lugar a la presuncion de que ha cambiado de voluntad, y no quiere
que el legado se cumpla. Mas para que pueda presumirse esa voluntad, es necesario
que medien actos del testador que la indiquen. Si la perdida del derecho sobre la
cosa ha sido independiente de la voluntad del testador, el legado podraquedar sin
efecto, mas no en virtud del numero 2 del articulo 869, que exige siempre actos
voluntarios de enajenacion por parte del mismo testador.
As observed by the Court of Appeals, the existence of any such change or departure from the
original intent of the testatrix, expressed in her 1930 testament, is rendered doubtful by the
circumstance that the subsequent alienations in 1943 and 1944 were executed in favor of the
legatee herself, appellee Dimagiba. In fact, as found by the Court of Appeals in its decision
annulling these conveyances (affirmed in that point by this Supreme Court in Reyes vs. Court of
Appeals and Dimagiba, L-5618 and L-5620, promulgated on July 31, 1954), "no consideration
whatever was paid by respondent Dimagiba" on account of the transfers, thereby rendering it
even more doubtful whether in conveying the property to her legatee, the testatrix merely
intended to comply in advance with what she had ordained in her testament, rather than an
alteration or departure therefrom.1Revocation being an exception, we believe, with the Courts
below, that in the circumstances of the particular case, Article 957 of the Civil Code of the
Philippines, does not apply to the case at bar.
Not only that, but even if it were applicable, the annulment of the conveyances would not
necessarily result in the revocation of the legacies, if we bear in mind that the findings made in
the decision decreeing the annulment of the subsequent 1943 and 1944 deeds of sale were also
that
it was the moral influence, originating from their confidential relationship, which was
the only cause for the execution of Exhs. A and B (the 1943 and 1944 conveyances).
(Decision, L-5618 and L-5620).

Art. 957. The legacy or devise shall be without effect:

(1) . . . .
(2) If the testator by any title or for any cause alienates the thing bequeathed or any
part thereof, it being understood that in the latter case the legacy or devise shall be
without effect only with respect to the part thus alienated. If after the alienation the
thing should again belong to the testator, even if it be by reason of nullity of the
contract, the legacy or devise shall not thereafter be valid, unless the reacquisition
shall have been effected by virtue of the exercise of the right of repurchase;
xxx

xxx

xxx

If the annulment was due to undue influence, as the quoted passage implies, then the transferor
was not expressing her own free will and intent in making the conveyances. Hence, it can not be
concluded, either, that such conveyances established a decision on her part to abandon the
original legacy.
True it is that the legal provision quoted prescribes that the recovery of the alienated property
"even if it be by reason of the nullity of the contract" does not revive the legacy; but as pointed
out by Scaevola (Codigo Civil, Vol. XV, 4th Ed., pp. 324-325) the "nullity of the contract" can not
be taken in an absolute sense.2 Certainly, it could not be maintained, for example, that if a
testator's subsequent alienation were avoided because the testator was mentally deranged at
the time, the revocatory effect ordained by the article should still ensue. And the same thing
could be said if the alienation (posterior to the will) were avoided on account of physical or
mental duress. Yet, an alienation through undue influence in no way differs from one made
through violence or intimidation. In either case, the transferor is not expressing his real

intent,3 and it can not be held that there was in fact an alienation that could produce a revocation
of the anterior bequest.
In view of the foregoing considerations, the appealed decision of the Court of Appeals is hereby
affirmed. Costs against appellants Reyes and Fernandez. So ordered.
Dizon, Makalintal, Zaldivar, Sanchez, Castro, Angeles and Fernando, JJ., concur.
Concepcion, C.J. and Bengzon, J.P., J., are on leave, took no part.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 45629

September 22, 1938

ANTILANO G. MERCADO, petitioner,

vs.
ALFONSO SANTOS, Judge of First Instance of Pampanga, respondents.
ROSARIO BASA DE LEON, ET AL., intervenors.
Claro M. Recto and Benigno S. Aquino for petitioner.
Esperanza de la Cruz and Heracio Abistao for respondents.
Sotto and Sotto for intervenors.

denied. The same motion was filed a second time, but with notice to the adverse party. The
motion was nevertheless denied by the probate court on May 24, 1934. On appeal to this court,
the order of denial was affirmed on July 26, 1935. (Basa vs. Mercado, 33 Off. Gaz., 2521.)
It appears that on October 27, 1932, i. e., sixteen months after the probate of the will of Ines
Basa, intervenor Rosario Basa de Leon filed with the justice of the peace court of San Fernando,
Pampanga, a complaint against the petitioner herein, for falsification or forgery of the will
probated as above indicated. The petitioner was arrested. He put up a bond in the sum of
P4,000 and engaged the services of an attorney to undertake his defense. Preliminary
investigation of the case was continued twice upon petition of the complainant. The complaint
was finally dismissed, at the instance of the complainant herself, in an order dated December 8,
1932. Three months later, or on March 2, 1933, the same intervenor charged the petitioner for
the second time with the same offense, presenting the complaint this time in the justice of the
peace court of Mexico, Pampanga. The petitioner was again arrested, again put up a bond in the
sum of P4,000, and engaged the services of counsel to defend him. This second complaint, after
investigation, was also dismissed, again at the instance of the complainant herself who alleged
that the petitioner was in poor health. That was on April 27, 1933. Some nine months later, on
February 2, 1934, to be exact, the same intervenor accused the same petitioner for the third
time of the same offense. The information was filed by the provincial fiscal of Pampanga in the
justice of the peace court of Mexico. The petitioner was again arrested, again put up a bond of
P4,000, and engaged the services of defense counsel. The case was dismissed on April 24,
1934, after due investigation, on the ground that the will alleged to have been falsified had
already been probated and there was no evidence that the petitioner had forged the signature of
the testatrix appearing thereon, but that, on the contrary, the evidence satisfactorily established
the authenticity of the signature aforesaid. Dissatisfied with the result, the provincial fiscal, on
May 9, 1934, moved in the Court of First Instance of Pampanga for reinvestigation of the case.
The motion was granted on May 23, 1934, and, for the fourth time, the petitioner was arrested,
filed a bond and engaged the services of counsel to handle his defense. The reinvestigation
dragged on for almost a year until February 18, 1934, when the Court of First Instance ordered
that the case be tried on the merits. The petitioner interposed a demurrer on November 25,
1935, on the ground that the will alleged to have been forged had already been probated. This
demurrer was overruled on December 24, 1935, whereupon an exception was taken and a
motion for reconsideration and notice of appeal were filed. The motion for reconsideration and
the proposed appeal were denied on January 14, 1936. The case proceeded to trial, and
forthwith petitioner moved to dismiss the case claiming again that the will alleged to have been
forged had already been probated and, further, that the order probating the will is conclusive as
to the authenticity and due execution thereof. The motion was overruled and the petitioner filed
with the Court of Appeals a petition for certiorari with preliminary injunction to enjoin the trial
court from further proceedings in the matter. The injunction was issued and thereafter, on June
19, 1937, the Court of Appeals denied the petition for certiorari, and dissolved the writ of
preliminary injunction. Three justices dissented in a separate opinion. The case is now before
this court for review on certiorari.

LAUREL, J.:
On May 28, 1931, the petitioner herein filed in the Court of First Instance of Pampanga a petition
for the probate of the will of his deceased wife, Ines Basa. Without any opposition, and upon the
testimony of Benigno F. Gabino, one of the attesting witnesses, the probate court, on June
27,1931, admitted the will to probate. Almost three years later, on April 11, 1934, the five
intervenors herein moved ex parte to reopen the proceedings, alleging lack of jurisdiction of the
court to probate the will and to close the proceedings. Because filed ex parte, the motion was

Petitioner contends (1) that the probate of the will of his deceased wife is a bar to his criminal
prosecution for the alleged forgery of the said will; and, (2) that he has been denied the
constitutional right to a speedy trial.
1. Section 306 of our Code of Civil Procedure provides as to the effect of judgments.

SEC. 306. Effect of judgment. The effect of a judgment or final order in an action or
special proceeding before a court or judge of the Philippine Islands or of the United
States, or of any State or Territory of the United States, having jurisdiction to
pronounce the judgment or order, may be as follows.
1. In case of a judgment or order against a specific thing, or in respect to the probate
of a will, or the administration of the estate of a deceased person, or in respect to the
personal, political, or legal condition or relation of a particular person, the judgment or
order is conclusive upon the title of the thing, the will or administration, or the condition
or relation of the person Provided, That the probate of a will or granting of letters of
administration shall only be prima facie evidence of the death of the testator or
intestate.
xxx

xxx

xxx

(Emphasis ours.)
Section 625 of the same Code is more explicit as to the conclusiveness of the due execution of
a probate will. It says.
SEC. 625. Allowance Necessary, and Conclusive as to Execution. No will shall
pass either the real or personal estate, unless it is proved and allowed in the Court of
First Instance, or by appeal to the Supreme Court; and the allowance by the court of a
will of real and personal estate shall be conclusive as to its due execution. (Emphasis
ours.)
(In Manahan vs. Manahan 58 Phil., 448, 451), we held:
. . . The decree of probate is conclusive with respect to the due execution thereof and
it cannot be impugned on any of the grounds authorized by law, except that of fraud,
in any separate or independent action or proceeding. Sec. 625, Code of Civil
Procedure; Castaeda vs. Alemany, 3 Phil., 426; Pimentel vs.Palanca, 5 Phil., 436;
Sahagun vs. De Gorostiza, 7 Phil., 347; Limjuco vs. Ganara, 11 Phil., 393;
Montaano vs. Suesa, 14 Phil., 676; in re Estate of Johnson, 39 Phil, 156;
Riera vs. Palmaroli, 40 Phil., 105; Austria vs. Ventenilla, 21 Phil., 180;
Ramirez vs. Gmur, 42 Phil., 855; and Chiong Jocsoy vs. Vano, 8 Phil., 119.
In 28 R. C. L., p. 377, section 378, it is said.
The probate of a will by the probate court having jurisdiction thereof is usually
considered as conclusive as to its due execution and validity, and is also conclusive
that the testator was of sound and disposing mind at the time when he executed the
will, and was not acting under duress, menace, fraud, or undue influence, and that the
will is genuine and not a forgery. (Emphasis ours.)
As our law on wills, particularly section 625 of our Code of Civil Procedure aforequoted, was
taken almost bodily from the Statutes of Vermont, the decisions of the Supreme Court of the
State relative to the effect of the probate of a will are of persuasive authority in this jurisdiction.

The Vermont statute as to the conclusiveness of the due execution of a probated will reads as
follows.
SEC. 2356. No will shall pass either real or personal estate, unless it is proved and
allowed in the probate court, or by appeal in the county or supreme court; and the
probate of a will of real or personal estate shall be conclusive as to its due execution.
(Vermont Statutes, p. 451.)
Said the Supreme Court of Vermont in the case of Missionary Society vs. Eells (68 Vt., 497,
504): "The probate of a will by the probate court having jurisdiction thereof, upon the due notice,
is conclusive as to its due execution against the whole world. (Vt. St., sec. 2336; Fosters
Exrs. vs. Dickerson, 64 Vt., 233.)"
The probate of a will in this jurisdiction is a proceeding in rem. The provision of notice by
Publication as a prerequisite to the allowance of a will is constructive notice to the whole world,
and when probate is granted, the judgment of the court is binding upon everybody, even against
the State. This court held in the case of Manalo vs. Paredes and Philippine Food Co. (47 Phil.,
938):
The proceeding for the probate of a will is one in rem (40 Cyc., 1265), and the court
acquires jurisdiction over all the persons interested, through the publication of the
notice prescribed by section 630 of the Code of Civil Procedure, and any order that
may be entered therein is binding against all of them.
Through the publication of the petition for the probate of the will, the court acquires
jurisdiction over all such persons as are interested in said will; and any judgment that
may be rendered after said proceeding is binding against the whole world.
In Everrett vs. Wing (103 Vt., 488, 492), the Supreme Court of Vermont held.
In this State the probate of a will is a proceeding in rem being in form and substance
upon the will itself to determine its validity. The judgment determines the status of the
instrument, whether it is or is not the will of the testator. When the proper steps
required by law have been taken the judgment is binding upon everybody, and makes
the instrument as to all the world just what the judgment declares it to be.
(Woodruffvs. Taylor, 20 Vt., 65, 73; Burbeck vs. Little, 50 Vt., 713, 715; Missionary
Society vs. Eells, 68 Vt., 497, 504; 35 Atl., 463.) The proceedings before the probate
court are statutory and are not governed by common law rules as to parties or causes
of action. (Holdrige vs. Holdriges Estate, 53 Vt., 546, 550; Purdyvs. Estate of Purdy,
67 Vt. 50, 55; 30 Atl., 695.) No process is issued against anyone in such proceedings,
but all persons interested in determining the state or conditions of the instrument are
constructively notified by the publication of notice as required by G. L. 3219.
(Woodruff vs. Taylor, supra; In re Warners Estate 98 Vt., 254; 271; 127 Atl., 362.)
Section 333, paragraph 4, of the Code of Civil Procedure establishes an incontrovertible
presumption in favor of judgments declared by it to be conclusive.

SEC. 333. Conclusive Presumptions. The following presumptions or deductions,

which the law expressly directs to be made from particular facts, are deemed
conclusive.
xxx

xxx

xxx

by the Supreme Court of Florida cited by the majority opinion, supra, refer to wills of both
personal and real estate.
The petitioner cites the case of State vs. McGlynn (20 Cal., 233, decided in 1862), in which
Justice Norton of the Supreme Court of California, makes the following review of the nature of
probate proceedings in England with respect to wills personal and real property.

4. The judgment or order of a court, when declared by this code to be conclusive.

Conclusive presumptions are inferences which the law makes so peremptory that it will not allow
them to be overturned by any contrary proof however strong. (Brant vs. Morning Journal Assn.,
80 N.Y.S., 1002, 1004; 81 App. Div., 183; see, also, Joslyn vs. Puloer, 59 Hun., 129, 140, 13
N.Y.S., 311.) The will in question having been probated by a competent court, the law will not
admit any proof to overthrow the legal presumption that it is genuine and not a forgery.
The majority decision of the Court of Appeals cites English decisions to bolster up its conclusion
that "the judgment admitting the will to probate is binding upon the whole world as to the due
execution and genuineness of the will insofar as civil rights and liabilities are concerned, but not
for the purpose of punishment of a crime." The cases of Dominus Rex vs. Vincent, 93 English
Reports, Full Reprint, 795, the first case being decided in 1721, were cited to illustrate the earlier
English decisions to the effect that upon indictment for forging a will, the probating of the same is
conclusive evidence in the defendants favor of its genuine character. Reference is made,
however, to the cases of Rex vs. Gibson, 168 English Reports, Full Reprint, 836, footnote (a),
decided in 1802, and Rex vs. Buttery and Macnamarra, 168 English Reports, Full Reprint, 836,
decided in 1818, which establish a contrary rule. Citing these later cases, we find the following
quotation from Black on Judgments, Vol. II, page 764.
A judgment admitting a will to probate cannot be attacked collaterally although the will
was forged; and a payment to the executor named therein of a debt due the decedent
will discharge the same, notwithstanding the spurious character of the instrument
probated. It has also been held that, upon an indictment for forging a will, the probate
of the paper in question is conclusive evidence in the defendants favor of its genuine
character. But this particular point has lately been ruled otherwise.
It was the case of Rex vs. Buttery, supra, which induced the Supreme Court of Massachussetts
in the case of Waters vs. Stickney (12 Allen 1; 90 Am. Dec., 122) also cited by the majority
opinion, to hold that "according to later and sounder decisions, the probate, though conclusive
until set aside of the disposition of the property, does not protect the forger from punishment."
This was reproduced in 28 R.C.L., p. 376, and quoted in Barry vs.Walker (103 Fla., 533; 137
So., 711, 715), and Thompson vs. Freeman (149 So., 740, 742), also cited in support of the
majority opinion of the Court of Appeals. The dissenting opinion of the Court of Appeals in the
instant case under review makes a cursory study of the statutes obtaining in England,
Massachussetts and Florida, and comes to the conclusion that the decisions cited in the majority
opinion do not appear to "have been promulgatedin the face of statutes similar to ours." The
dissenting opinion cites Whartons Criminal Evidence (11th ed., sec. 831), to show that the
probate of a will in England is only prima facie proof of the validity of the will (Op. Cit.quoting
Marriot vs. Marriot, 93 English Reprint, 770); and 21 L.R.A. (pp. 686689 and note), to show that
in Massachussetts there is no statute making the probate of a will conclusive, and that in Florida
the statute(sec. 1810, Revised Statutes) makes the probate conclusive evidence as to the
validity of the will with regard to personal, and prima facie as to real estate. The cases decided

In England, the probate of wills of personal estate belongs to the Ecclesiastical

Courts. No probate of a will relating to real estate is there necessary. The real estate,
upon the death of the party seized, passes immediately to the devisee under the will if
there be one; or if there be no will, to the heir at law. The person who thus becomes
entitled takes possession. If one person claims to be the owner under a will, and
another denies the validity of the will and claims to be the owner as heir at law, an
action of ejectment is brought against the party who may be in possession by the
adverse claimant; and on the trial of such an action, the validity of the will is contested,
and evidence may be given by the respective parties as to the capacity of the testator
to make a will, or as to any fraud practiced upon him, or as to the actual execution of
it, or as to any other circumstance affecting its character as a valid devise of the real
estate in dispute. The decision upon the validity of the will in such action becomes res
adjudicata, and is binding and conclusive upon the parties to that action and upon any
person who may subsequently acquire the title from either of those parties; but the
decision has no effect upon other parties, and does not settle what may be called the
status or character of the will, leaving it subject to be enforced as a valid will, or
defeated as invalid, whenever other parties may have a contest depending upon it. A
probate of a will of personal property, on the contrary, is a judicial determination of the
character of the will itself. It does not necessarily or ordinarily arise from any
controversy between adverse claimants, but is necessary in order to authorize a
disposition of the personal estate in pursuance of its provisions. In case of any
controversy between adverse claimants of the personal estate, the probate is given in
evidence and is binding upon the parties, who are not at liberty to introduce any other
evidence as to the validity of the will.
The intervenors, on the other hand, attempt to show that the English law on wills is different from
that stated in the case of State vs. McGlynn, supra, citing the following statutes.
1. The Wills Act, 1837 (7 Will. 4 E 1 Vict. c. 26).
2. The Court of Probate Act, 1857 (20 and 21 Vict. c. 77).
3. The Judicature Act, 1873 (36 and 37 Vict. c. 66).
The Wills Act of 1837 provides that probate may be granted of "every instrumental purporting to
be testamentary and executed in accordance with the statutory requirements . . . if it disposes of
property, whether personal or real." The Ecclesiastical Courts which took charge of testamentary
causes (Ewells Blackstone [1910], p. 460), were determined by the Court of Probate Act of
1857, and the Court of Probate in turn was, together with other courts, incorporated into the
Supreme Court of Judicature, and transformed into the Probate Division thereof, by the
Judicature Act of 1873. (Lord Halsbury, The Laws of England[1910], pp. 151156.) The
intervenors overlook the fact, however, that the case of Rex vs. Buttery and Macnamarra, supra,

upon which they rely in support of their theory that the probate of a forged will does not protect
the forger from punishment, was decided long before the foregoing amendatory statutes to the
English law on wills were enacted. The case of State vs. McGlynn may be considered, therefore,
as more or less authoritative on the law of England at the time of the promulgation of the
decision in the case of Rex vs. Buttery and Macnamarra.
In the case of State vs. McGlynn, the Attorney General of California filed an information to set
aside the probate of the will of one Broderick, after the lapse of one year provided by the law of
California for the review of an order probating a will, in order that the estate may be escheated to
the State of California for the review of an probated will was forged and that Broderick therefore
died intestate, leaving no heirs, representatives or devisees capable of inheriting his estate.
Upon these facts, the Supreme Court of California held.
The fact that a will purporting to be genuine will of Broderick, devising his estate to a
devisee capable of inheriting and holding it, has been admitted to probate and
established as a genuine will by the decree of a Probate Court having jurisdiction of
the case, renders it necessary to decide whether that decree, and the will established
by it, or either of them, can be set aside and vacated by the judgment of any other
court. If it shall be found that the decree of the Probate Court, not reversed by the
appellate court, is final and conclusive, and not liable to be vacated or questioned by
any other court, either incidentally or by any direct proceeding, for the purpose of
impeaching it, and that so long as the probate stands the will must be recognized and
admitted in all courts to be valid, then it will be immaterial and useless to inquire
whether the will in question was in fact genuine or forged. (State vs. McGlynn, 20 Cal.,
233; 81 Am. Dec., 118, 121.).
Although in the foregoing case the information filed by the State was to set aside the decree of
probate on the ground that the will was forged, we see no difference in principle between that
case and the case at bar. A subtle distinction could perhaps be drawn between setting aside a
decree of probate, and declaring a probated will to be a forgery. It is clear, however, that a duly
probated will cannot be declared to be a forgery without disturbing in a way the decree allowing
said will to probate. It is at least anomalous that a will should be regarded as genuine for one
purpose and spurious for another.
The American and English cases show a conflict of authorities on the question as to whether or
not the probate of a will bars criminal prosecution of the alleged forger of the probate will. We
have examined some important cases and have come to the conclusion that no fixed standard
maybe adopted or drawn therefrom, in view of the conflict no less than of diversity of statutory
provisions obtaining in different jurisdictions. It behooves us, therefore, as the court of last resort,
to choose that rule most consistent with our statutory law, having in view the needed stability of
property rights and the public interest in general. To be sure, we have seriously reflected upon
the dangers of evasion from punishment of culprits deserving of the severity of the law in cases
where, as here, forgery is discovered after the probate of the will and the prosecution is had
before the prescription of the offense. By and large, however, the balance seems inclined in
favor of the view that we have taken. Not only does the law surround the execution of the will
with the necessary formalities and require probate to be made after an elaborate judicial
proceeding, but section 113, not to speak of section 513, of our Code of Civil Procedure provides
for an adequate remedy to any party who might have been adversely affected by the probate of
a forged will, much in the same way as other parties against whom a judgment is rendered
under the same or similar circumstances. (Pecson vs. Coronel, 43 Phil., 358.)The aggrieved

party may file an application for relief with the proper court within a reasonable time, but in no
case exceeding six months after said court has rendered the judgment of probate, on the ground
of mistake, inadvertence, surprise or excusable neglect. An appeal lies to review the action of a
court of first instance when that court refuses to grant relief. (Banco Espaol Filipino vs.Palanca,
37 Phil., 921; Philippine Manufacturing Co. vs. Imperial, 47 Phil., 810; Samia vs. Medina, 56
Phil., 613.) After a judgment allowing a will to be probated has become final and unappealable,
and after the period fixed by section 113 of the Code of Civil Procedure has expired, the law as
an expression of the legislative wisdom goes no further and the case ends there.
. . . The court of chancery has no capacity, as the authorities have settled, to judge or
decide whether a will is or is not a forgery; and hence there would be an incongruity in
its assuming to set aside a probate decree establishing a will, on the ground that the
decree was procured by fraud, when it can only arrive at the fact of such fraud by first
deciding that the will was a forgery. There seems, therefore, to be a substantial
reason, so long as a court of chancery is not allowed to judge of the validity of a will,
except as shown by the probate, for the exception of probate decrees from the
jurisdiction which courts of chancery exercise in setting aside other judgments
obtained by fraud. But whether the exception be founded in good reason or otherwise,
it has become too firmly established to be disregarded. At the present day, it would not
be a greater assumption to deny the general rule that courts of chancery may set
aside judgments procured by fraud, than to deny the exception to that rule in the case
of probate decrees. We must acquiesce in the principle established by the authorities,
if we are unable to approve of the reason. Judge Story was a staunch advocate for the
most enlarged jurisdiction of courts of chancery, and was compelled to yield to the
weight of authority. He says "No other excepted case is known to exist; and it is not
easy to discover the grounds upon which this exception stands, in point of reason or
principle, although it is clearly settled by authority. (1 Storys Eq. Jur. sec. 440.)"
(State vs. McGlynn, 20 Cal., 233; 81 Am. Dec., 118, 129.See, also, Tracy vs. Muir, 121
American State Reports, 118, 125.)
We hold, therefore, that in view of the provisions of sections 306, 333 and 625 of our Code of
Civil Procedure, criminal action will not lie in this jurisdiction against the forger of a will which had
been duly admitted to probate by a court of competent jurisdiction.
The resolution of the foregoing legal question is sufficient to dispose of the case. However, the
other legal question with reference to the denial to the accused of his right to a speedy trial
having been squarely raised and submitted, we shall proceed to consider the same in the light of
cases already adjudicated by this court.
2. The Constitution of the Philippines provides that "In all criminal prosecutions the accused . . .
shall enjoy the right . . . to have a speedy . . . trial. . . . (Art. III, sec. 1, par. 17. See, also, G.O.
No. 58, sec. 15, No. 7.) Similar provisions are to be found in the Presidents Instructions to the
Second Philippine Commission (par. 11), the Philippine Bill of July 1, 1902 (sec. 5, par. 2) and
the Jones Act of August 29, 1916 (sec. 3, par. 2). The provisions in the foregoing organic acts
appear to have been taken from similar provisions in the Constitution of the United States (6th
Amendment) and those of the various states of the American Union. A similar injunction is
contained in the Malolos Constitution (art. 8, Title IV), not to speak of other constitutions. More
than once this court had occasion to set aside the proceedings in criminal cases to give effect to
the constitutional injunction of speedy trial. (Conde vs. Judge of First Instance and Fiscal of
Tayabas [1923], 45 Phil., 173; Conde vs. Rivera and Unson[1924], 45 Phil., 650;

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

admitidos resulta que al recurrente se le concedio vista parcial del asunto, en el

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

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

of the intervenors was to press upon settlement, with the continuous threat of criminal
prosecution, notwithstanding the probate of the will alleged to have been falsified. Argument of
counsel for the petitioner in this regard is not without justification. Thus after the filing of the
second complaint with the justice of the peace court of Mexico, complainant herself, as we have
seen, asked for dismissal of the complaint, on the ground that "el acusado tenia la salud
bastante delicada," and, apparently because of failure to arrive at any settlement, she decided to
renew her complaint.
Counsel for the intervenors contend and the contention is sustained by the Court of Appeals
that the petitioner did not complain heretofore of the denial of his constitutional right to a
speedy trial. This is a mistake. When the petitioner, for the fourth time, was ordered arrested by
the Court of First Instance of Pampanga, he moved for reconsideration of the order of arrest,
alleging, among other things, "Que por estas continuas acusaciones e investigaciones, el
acusado compareciente no obstante su mal estado de salud desde el ao 1932 en que tuvo que
ser operado por padecer de tuberculosis ha tenido que sostener litigios y ha sufrido la mar de
humiliaciones y zozobras y ha incudo en enormes gastos y molestias y ha desatendido su
quebrantada salud." The foregoing allegation was inserted on page 6 of the amended petition
for certiorari presented to the Court of Appeals. The constitutional issue also appears to have
been actually raised and considered in the Court of Appeals. In the majority opinion of that court,
it is stated:
Upon the foregoing facts, counsel for the petitioner submits for the consideration of
this court the following questions of law: First, that the respondent court acted
arbitrarily and with abuse of its authority, with serious damage and prejudice to the
rights and interests of the petitioner, in allowing that the latter be prosecuted and
arrested for the fourth time, and that he be subjected, also for the fourth time, to a
preliminary investigation for the same offense, hereby converting the court into an
instrument of oppression and vengeance on the part of the alleged offended parties,
Rosario Basa et al.; . . . .
And in the dissenting opinion, we find the following opening paragraph:
We cannot join in a decision declining to stop a prosecution that has dragged for about
five years and caused the arrest on four different occasions of a law abiding citizen for
the alleged offense of falsifying a will that years be competent jurisdiction.
From the view we take of the instant case, the petitioner is entitled to have the criminal
proceedings against him quashed. The judgment of the Court of Appeals is hereby reversed,
without pronouncement regarding costs. So ordered.
Avancea, C.J., Villa-Real, Imperial, Diaz and Concepcion, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-23135

December 26, 1967

TESTATE ESTATE OF HILARION RAMAGOSA. MARIANO SUMILANG, petitioner-appellee,

vs.
SATURNINA RAMAGOSA, SANTIAGO RAMAGOSA, ENRIQUE PABELLA, LICERIA
PABELLA and ANDREA RAVALO, oppositors-appellants.
Gatchalian and Sison and J. A. Bardelosa, Jr. for petitioner-appellee.
Jose L. Desvarro Jr. for oppositors-appellants

MAKALINTAL, J.:
On July 5, 1960 Mariano Sumilang filed in the Court of First Instance of Quezon a petition for the
probate of a document alleged to be the last will and testament of Hilarion Ramagosa, who died
on December 1, 1959. Said document, written in Tagalog and dated February 26, 1949,
institutes petitioner as sole heir of the testator.
The petition for probate was opposed by two (2) of oppositors appellants herein who
questioned the due execution of the document, claiming that it was made under duress and was
not really intended by the deceased to be his last will and testament. Aside from merely
opposing the petition for probate, the first set of oppositors Saturnino and Santiago
Ramagosa also claimed that they, instead of petitioner, were entitled to inherit the estate of
the deceased. The other oppositors representing themselves simply as next of kin, appropriately
prayed only for the disallowance of the will.
At the hearings of the petition petitioner adduced his evidence, and then rested his case on
February 16, 1961. Reception of oppositors' evidence was set for July 14, 1961. However, on
July 3, 1961 oppositors moved for the dismissal of the petition for probate mainly on the ground
that "the court lacks jurisdiction over the subject-matter because the last will and testament of
the decedent, if ever it was really executed by him, was revoked by implication of law six years
before his death." Oppositors alleged that after making the will Hilarion Ramagosa sold to
petitioner Mariano Sumilang and his brother Mario the parcels of land described therein, so that
at the time of the testator's death the titles to said lands were no longer in his name.
Petitioner filed his opposition to the motion for dismissal on July 17, 1961 supplemented it by
another opposition on August 14, 1961, and by a rejoinder on August 21, 1961. Finally, on
October 22, 1962 petitioner moved to strike out the oppositors' pleadings on two grounds,
namely:
1. That oppositors have no legal standing in court and they are bereft of personality to
oppose the probate of the last will and testament of the testators; and
2. That oppositors have no valid claim and interest in the distribution of (the) estate of
the aforesaid testator and no existing valid right whatsoever.
On October 18, 1963 the court a quo issued the order now subject of this appeal, which read as
follows:
Acting on the motion to dismiss filed by the oppositors dated July 31, 1961, the same
is hereby denied for the allegations contained therein goes (sic) to the very intrinsic
value of the will and other grounds stated on said motion to dismiss are without
merit.itc-alf With respect to the motion to strike out opposition and all other pleadings
of oppositors filed by the petitioner, it appears that oppositors have no relationship
whatsoever within the fifth degree as provided by law and therefore the oppositors are
totally strangers to the deceased whose will is under probate. This being so, the
motion to strike out opposition and all other pleadings pertinent thereto is hereby
ordered stricken out of the record.

The petition below being for the probate of a will, the court's area of inquiry is limited to
the extrinsic validity thereof. The testator's testamentary capacity and the compliance with the
formal requisites or solemnities prescribed by law are the only questions presented for the
resolution of the court. Any inquiry into the intrinsicvalidity or efficacy of the provisions of the will
or the legality of any devise or legacy is premature. (Nuguid vs. Nuguid, G.R. No. L-23445, June
23, 1966).
To establish conclusively as against everyone and once for all, the facts that a will was
executed with the formalities required by law and that the testator was in a condition to
make a will, is the only purpose of the proceedings . . . for the probate of a will. The
judgment in such proceedings determines and can determine nothing more. (Alemany,
et al. vs. CFI of Manila, 3 Phil. 424).
Oppositors would want the court a quo to dismiss petition for probate on the ground that the
testator had impliedly revoked his will by selling, prior to his death, the lands disposed of therein.
True or not, the alleged sale is no ground for the dismissal of the petition for probate. Probate is
one thing the validity of the testamentary provisions is another.itc-alf The first decides the
execution of the document and the testamentary capacity of the testator; the second relates to
descent and distribution.
The alleged revocation implied from the execution of the deeds of conveyance in favor
of the testamentary heir is plainly irrelevant to and separate from the question of
whether the testament was duly executed. For one, if the will is not entitled to probate,
or its probate is denied, all questions of revocation become superfluous: in law, there
is no such will and hence there would be nothing to revoke. Then, again, the
revocation invoked by the oppositors-appellants is not an express one, but merely
implied from subsequent acts of the testatrix allegedly evidencing an abandonment of
the original intention to bequeath or devise the properties concerned. As such, the
revocation would not affect the will itself, but merely the particular devise or legacy.itcalf (Fernandez, et al. vs. Dimagiba, L-23638 and Reyes, et al. vs. Dimagiba, L-23662,
October 12, 1967.)
In their brief, oppositors do not take issue with the court a quo's finding that they "have no
relationship whatsoever within the fifth degree as provided by law and therefore . . . are totally
(sic) strangers to the deceased whose will is under probate." They do not attempt to show that
they have some interest in the estate which must be protected. The uncontradicted evidence,
consisting of certified true copies of the parties' baptism and marriage certificates, support the
said court's finding in this respect.
It is a well-settled rule that in order that a person may be allowed to intervene in a
probate proceeding he must have an interest in the estate, or in the will, or in the
property to be affected by it either as executor or as a claimant of the estate (Ngo The
Hua vs. Chung Kiat Hua, et al., L-17091, September 30, 1963); and an interested
party has been defined as one who would be benefited by the estate such as an heir
or one who has a claim against the estate like a creditor. (Teotico vs. Del Val, etc.,
G.R. No. L- 18753, March 26, 1965.)

The reason for the rule excluding strangers from contesting the will, is not that thereby
the court may be prevented from learning facts which would justify or necessitate a
denial of probate, but rather that the courts and the litigants should not be molested by
the intervention in the proceedings of persons with no interest in the estate which
would entitle them to be heard with relation thereto. (Paras vs. Narciso, 35 Phil. 244.)
Sometime after this case was elevated to this Court appellee moved to dismiss the appeal on
the ground that the order appealed from is interlocutory. We deferred action on the motion until
after the brief of both parties had been filed. The motion, although now practically academic in
view of our resolution of the main issue involved, must be denied, since the order of the lower
court striking out appellants' opposition to the probate of the will on the ground that they have no
personality to intervene in the case, was final and therefore appealable order insofar as they
were concerned.
The order appealed from is hereby affirmed, with costs against oppositors- appellants.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar, Sanchez, Castro,
Angeles and Fernando, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION

G.R. No. L-39247 June 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.
Roberto M. Sarenas for petitioner.
Jose B. Guyo for private 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.
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).
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 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.
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.
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, L-19996, April 30, 1965, 13 SCRA 693).1wph1.t

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.

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.

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.

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).

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.

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:

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.
Fernando (Chairman), Barredo, Antonio and Concepcion, Jr., JJ., concur.

an illegitimate child, not natural, by the name of Lewellyn Barlito Quemada QUEMADA PASTOR,
JR. is a Philippine citizen, having been naturalized in 1936. SOFIA is a Spanish subject.
QUEMADA is a Filipino by his mother's citizenship.
On November 13, 1970, QUEMADA filed a petition for the probate and allowance of an alleged
holographic will of PASTOR, SR. with the Court of First Instance of Cebu, Branch I (PROBATE
COURT), docketed as SP No. 3128-R. The will contained only one testamentary disposition: a
legacy in favor of QUEMADA consisting of 30% of PASTOR, SR.'s 42% share in the operation
by Atlas Consolidated Mining and Development Corporation (ATLAS) of some mining claims in
Pina-Barot, Cebu.
On November 21, 1970, the PROBATE COURT, upon motion of QUEMADA and after an ex
parte hearing, appointed him special administrator of the entire estate of PASTOR, SR., whether
or not covered or affected by the holographic will. He assumed office as such on December 4,
1970 after filing a bond of P 5,000.00.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION

On December 7, 1970, QUEMADA as special administrator, instituted against PASTOR, JR. and
his wife an action for reconveyance of alleged properties of the estate, which included the
properties subject of the legacy and which were in the names of the spouses PASTOR, JR. and
his wife, Maria Elena Achaval de Pastor, who claimed to be the owners thereof in their own
rights, and not by inheritance. The action, docketed as Civil Case No. 274-R, was filed with the
Court of First Instance of Cebu, Branch IX.
On February 2, 1971, PASTOR, JR. and his sister SOFIA filed their opposition to the petition for
probate and the order appointing QUEMADA as special administrator.

G.R. No. L-56340 June 24, 1983

SPOUSES ALVARO PASTOR, JR. and MA. ELENA ACHAVAL DE PASTOR, petitioners,
vs.
THE COURT OF APPEALS, JUAN Y. REYES, JUDGE OF BRANCH I, COURT OF FIRST
INSTANCE OF CEBU and LEWELLYN BARLITO QUEMADA, respondents.
Pelaez, Pelaez, & Pelaez Law Office for petitioners.
Ceniza, Rama & Associates for private respondents.

PLANA, J.:
I. FACTS:
This is a case of hereditary succession.
Alvaro Pastor, Sr. (PASTOR, SR.), a Spanish subject, died in Cebu City on June 5, 1966,
survived by his Spanish wife Sofia Bossio (who also died on October 21, 1966), their two
legitimate children Alvaro Pastor, Jr. (PASTOR, JR.) and Sofia Pastor de Midgely (SOFIA), and

On December 5, 1972, the PROBATE COURT issued an order allowing the will to probate.
Appealed to the Court of Appeals in CA-G.R. No. 52961- R, the order was affirmed in a decision
dated May 9, 1977. On petition for review, the Supreme Court in G.R. No. L-46645 dismissed
the petition in a minute resolution dated November 1, 1977 and remanded the same to the
PROBATE COURT after denying reconsideration on January 11, 1978.
For two years after remand of the case to the PROBATE COURT, QUEMADA filed pleading after
pleading asking for payment of his legacy and seizure of the properties subject of said legacy.
PASTOR, JR. and SOFIA opposed these pleadings on the ground of pendency of the
reconveyance suit with another branch of the Cebu Court of First Instance. All pleadings
remained unacted upon by the PROBATE COURT.
On March 5, 1980, the PROBATE COURT set the hearing on the intrinsic validity of the will for
March 25, 1980, but upon objection of PASTOR, JR. and SOFIA on the e ground of pendency of
the reconveyance suit, no hearing was held on March 25. Instead, the PROBATE COURT
required the parties to submit their respective position papers as to how much inheritance
QUEMADA was entitled to receive under the wig. Pursuant thereto, PASTOR. JR. and SOFIA
submitted their Memorandum of authorities dated April 10, which in effect showed that
determination of how much QUEMADA should receive was still premature. QUEMADA
submitted his Position paper dated April 20, 1980. ATLAS, upon order of the Court, submitted a
sworn statement of royalties paid to the Pastor Group of tsn from June 1966 (when Pastor, Sr.
died) to February 1980. The statement revealed that of the mining claims being operated by
ATLAS, 60% pertained to the Pastor Group distributed as follows:

1. A. Pastor, Jr. ...................................40.5%

2. E. Pelaez, Sr. ...................................15.0%
3. B. Quemada .......................................4.5%
On August 20, 1980, while the reconveyance suit was still being litigated in Branch IX of the
Court of First Instance of Cebu, the PROBATE COURT issued the now assailed Order of
Execution and Garnishment, resolving the question of ownership of the royalties payable by
ATLAS and ruling in effect that the legacy to QUEMADA was not inofficious. [There was
absolutely no statement or claim in the Order that the Probate Order of December 5, 1972 had
previously resolved the issue of ownership of the mining rights of royalties thereon, nor the
intrinsic validity of the holographic will.]
The order of August 20, 1980 found that as per the holographic will and a written
acknowledgment of PASTOR, JR. dated June 17, 1962, of the above 60% interest in the mining
claims belonging to the Pastor Group, 42% belonged to PASTOR, SR. and only 33% belonged
to PASTOR, JR. The remaining 25% belonged to E. Pelaez, also of the Pastor Group. The
PROBATE COURT thus directed ATLAS to remit directly to QUEMADA the 42% royalties due
decedent's estate, of which QUEMADA was authorized to retain 75% for himself as legatee and
to deposit 25% with a reputable banking institution for payment of the estate taxes and other
obligations of the estate. The 33% share of PASTOR, JR. and/or his assignees was ordered
garnished to answer for the accumulated legacy of QUEMADA from the time of PASTOR, SR.'s
death, which amounted to over two million pesos.
The order being "immediately executory", QUEMADA succeeded in obtaining a Writ of Execution
and Garnishment on September 4, 1980, and in serving the same on ATLAS on the same day.
Notified of the Order on September 6, 1980, the oppositors sought reconsideration thereof on
the same date primarily on the ground that the PROBATE COURT gravely abused its discretion
when it resolved the question of ownership of the royalties and ordered the payment of
QUEMADA's legacy after prematurely passing upon the intrinsic validity of the will. In the
meantime, the PROBATE COURT ordered suspension of payment of all royalties due PASTOR,
JR. and/or his assignees until after resolution of oppositors' motion for reconsideration.
Before the Motion for Reconsideration could be resolved, however, PASTOR, JR., this time
joined by his wife Ma. ELENA ACHAVAL DE PASTOR, filed with the Court of Appeals a Petition
for certiorari and Prohibition with a prayer for writ of preliminary injunction (CA-G.R. No. SP11373-R). They assailed the Order dated August 20, 1980 and the writ of execution and
garnishment issued pursuant thereto. The petition was denied on November 18, 1980 on the
grounds (1) that its filing was premature because the Motion for Reconsideration of the
questioned Order was still pending determination by the PROBATE COURT; and (2) that
although "the rule that a motion for reconsideration is prerequisite for an action for certiorari is
never an absolute rule," the Order assailed is "legally valid. "
On December 9, 1980, PASTOR, JR. and his wife moved for reconsideration of the Court of
Appeal's decision of November 18, 1980, calling the attention of the appellate court to another
order of the Probate Court dated November 11, 1980 (i.e., while their petition for certiorari was
pending decision in the appellate court), by which the oppositors' motion for reconsideration of
the Probate Court's Order of August 20, 1980 was denied. [The November 11 Order declared

that the questions of intrinsic validity of the will and of ownership over the mining claims (not the
royalties alone) had been finally adjudicated by the final and executory Order of December 5,
1972, as affirmed by the Court of Appeals and the Supreme Court, thereby rendering moot and
academic the suit for reconveyance then pending in the Court of First Instance of Cebu, Branch
IX. It clarified that only the 33% share of PASTOR, JR. in the royalties (less than 7.5% share
which he had assigned to QUEMADA before PASTOR, SR. died) was to be garnished and that
as regards PASTOR, SR.'s 42% share, what was ordered was just the transfer of its possession
to the custody of the PROBATE COURT through the special administrator. Further, the Order
granted QUEMADA 6% interest on his unpaid legacy from August 1980 until fully paid.]
Nonetheless, the Court of Appeals denied reconsideration.
Hence, this Petition for Review by certiorari with prayer for a writ of pre y injunction, assailing the
decision of the Court of Appeals dated November 18, 1980 as well as the orders of the Probate
Court dated August 20, 1980, November 11, 1980 and December 17, 1980, Med by petitioners
on March 26, 1981, followed by a Supplemental Petition with Urgent Prayer for Restraining
Order.
In April 1981, the Court (First Division) issued a writ of preliminary injunction, the lifting of which
was denied in the Resolution of the same Division dated October 18, 1982, although the bond of
petitioners was increased from P50,000.00 to P100,000.00.
Between December 21, 1981 and October 12, 1982, private respondent filed seven successive
motions for early resolution. Five of these motions expressly prayed for the resolution of the
question as to whether or not the petition should be given due course.
On October 18, 1982, the Court (First Division) adopted a resolution stating that "the petition in
fact and in effect was given due course when this case was heard on the merits on September
7, (should be October 21, 1981) and concise memoranda in amplification of their oral arguments
on the merits of the case were filed by the parties pursuant to the resolution of October 21, 1981
. . . " and denied in a resolution dated December 13, 1982, private respondent's "Omnibus
motion to set aside resolution dated October 18, 1982 and to submit the matter of due course to
the present membership of the Division; and to reassign the case to another ponente."
Upon Motion for Reconsideration of the October 18, 1982 and December 13, 1982 Resolutions,
the Court en banc resolved to CONFIRM the questioned resolutions insofar as hey resolved that
the petition in fact and in effect had been given due course.
II. ISSUES:
Assailed by the petitioners in these proceedings is the validity of the Order of execution and
garnishment dated August 20, 1980 as well as the Orders subsequently issued allegedly to
implement the Probate Order of December 5, 1972, to wit: the Order of November 11, 1980
declaring that the Probate Order of 1972 indeed resolved the issues of ownership and intrinsic
validity of the will, and reiterating the Order of Execution dated August 20, 1980; and the Order
of December 17, 1980 reducing to P2,251,516.74 the amount payable to QUEMADA
representing the royalties he should have received from the death of PASTOR, SR. in 1966 up
to February 1980.

The Probate Order itself, insofar as it merely allowed the holographic will in probate, is not
questioned. But petitioners denounce the Probate Court for having acted beyond its jurisdiction
or with grave abuse of discretion when it issued the assailed Orders. Their argument runs this
way: Before the provisions of the holographic win can be implemented, the questions of
ownership of the mining properties and the intrinsic validity of the holographic will must first be
resolved with finality. Now, contrary to the position taken by the Probate Court in 1980 i.e.,
almost eight years after the probate of the will in 1972 the Probate Order did not resolve the
two said issues. Therefore, the Probate Order could not have resolved and actually did not
decide QUEMADA's entitlement to the legacy. This being so, the Orders for the payment of the
legacy in alleged implementation of the Probate Order of 1972 are unwarranted for lack of basis.
Closely related to the foregoing is the issue raised by QUEMADA The Probate Order of 1972
having become final and executory, how can its implementation (payment of legacy) be
restrained? Of course, the question assumes that QUEMADA's entitlement to the legacy was
finally adjudged in the Probate Order.
On the merits, therefore, the basic issue is whether the Probate Order of December 5, 1972
resolved with finality the questions of ownership and intrinsic validity. A negative finding will
necessarily render moot and academic the other issues raised by the parties, such as the
jurisdiction of the Probate Court to conclusively resolve title to property, and the constitutionality
and repercussions of a ruling that the mining properties in dispute, although in the name of
PASTOR, JR. and his wife, really belonged to the decedent despite the latter's constitutional
disqualification as an alien.
On the procedural aspect, placed in issue is the propriety of certiorari as a means to assail the
validity of the order of execution and the implementing writ.
III. DISCUSSION:
1. Issue of Ownership
(a) In a special proceeding for the probate of a will, the issue by and large is restricted to the
extrinsic validity of the will, i.e., whether the testator, being of sound mind, freely executed the
will in accordance with the formalities prescribed by law. (Rules of Court, Rule 75, Section 1;
Rule 76, Section 9.) As a rule, the question of ownership is an extraneous matter which the
Probate Court cannot resolve with finality. Thus, for the purpose of determining whether a certain
property should or should not be included in the inventory of estate properties, the Probate Court
may pass upon the title thereto, but such determination is provisional, not conclusive, and is
subject to the final decision in a separate action to resolve title. [3 Moran, Comments on the
Rules of Court (1980 ed.), p. 458; Valero Vda. de Rodriguez vs. Court of Appeals, 91 SCRA
540.]
(b) The rule is that execution of a judgment must conform to that decreed in the dispositive part
of the decision. (Philippine-American Insurance Co. vs. Honorable Flores, 97 SCRA 811.)
However, in case of ambiguity or uncertainty, the body of the decision may be scanned for
guidance in construing the judgment. (Heirs of Presto vs. Galang, 78 SCRA 534; Fabular vs.
Court of Appeals, 119 SCRA 329; Robles vs. Timario. 107 Phil. 809.)

The Order sought to be executed by the assailed Order of execution is the Probate Order of
December 5, 1972 which allegedly resolved the question of ownership of the disputed mining
properties. The said Probate Order enumerated the issues before the Probate Court, thus:
Unmistakably, there are three aspects in these proceedings: (1) the probate
of the holographic will (2) the intestate estate aspect; and (3) the
administration proceedings for the purported estate of the decedent in the
Philippines.
In its broad and total perspective the whole proceedings are being
impugned by the oppositors on jurisdictional grounds, i.e., that the fact of
the decedent's residence and existence of properties in the Philippines have
not been established.
Specifically placed in issue with respect to the probate proceedings are: (a)
whether or not the holographic will (Exhibit "J") has lost its efficacy as the
last will and testament upon the death of Alvaro Pastor, Sr. on June 5, 1966,
in Cebu City, Philippines; (b) Whether or not the said will has been executed
with all the formalities required by law; and (c) Did the late presentation of
the holographic will affect the validity of the same?
Issues In the Administration Proceedings are as follows: (1) Was the exparte appointment of the petitioner as special administrator valid and
proper? (2) Is there any indispensable necessity for the estate of the
decedent to be placed under administration? (3) Whether or not petition is
qualified to be a special administrator of the estate; and (4) Whether or not
the properties listed in the inventory (submitted by the special administrator
but not approved by the Probate Court) are to be excluded.
Then came what purports to be the dispositive portion:
Upon the foregoing premises, this Court rules on and resolves some of the
problems and issues presented in these proceedings, as follows:
(a) The Court has acquired jurisdiction over the probate proceedings as
it hereby allows and approves the so-called holographic will of testator
Alvaro Pastor, Sr., executed on July 31, 1961 with respect to its extrinsic
validity, the same having been duly authenticated pursuant to the requisites
or solemnities prescribed by law. Let, therefore, a certificate of its allowance
be prepared by the Branch Clerk of this Court to be signed by this Presiding
Judge, and attested by the seal of the Court, and thereafter attached to the
will, and the will and certificate filed and recorded by the clerk. Let attested
copies of the will and of the certificate of allowance thereof be sent to Atlas
Consolidated Mining & Development Corporation, Goodrich Bldg., Cebu
City, and the Register of Deeds of Cebu or of Toledo City, as the case may
be, for recording.

(b) There was a delay in the granting of the letters testamentary or of

administration for as a matter of fact, no regular executor and/or
administrator has been appointed up to this time and - the appointment of a
special administrator was, and still is, justified under the circumstances to
take possession and charge of the estate of the deceased in the Philippines
(particularly in Cebu) until the problems causing the delay are decided and
the regular executor and/or administrator appointed.
(c) There is a necessity and propriety of a special administrator and later on
an executor and/or administrator in these proceedings, in spite of this
Court's declaration that the oppositors are the forced heirs and the petitioner
is merely vested with the character of a voluntary heir to the extent of the
bounty given to him (under) the will insofar as the same will not prejudice
the legitimes of the oppositor for the following reasons:
1. To submit a complete inventory
of the estate of the decedenttestator Alvaro Pastor, Sr.
2. To administer and to continue to
put to prolific utilization of the
properties of the decedent;
3. To keep and maintain the
houses and other structures and
belonging to the estate, since the
forced heirs are residing in Spain,
and prepare them for delivery to
the heirs in good order after
partition and when directed by the
Court, but only after the payment of
estate and inheritance taxes;
(d) Subject to the outcome of the suit for reconveyance of ownership and
possession of real and personal properties in Civil Case No. 274-T before
Branch IX of the Court of First Instance of Cebu,the intestate estate
administration aspect must proceed, unless, however, it is duly proven by
the oppositors that debts of the decedent have already been paid, that there
had been an extrajudicial partition or summary one between the forced
heirs, that the legacy to be given and delivered to the petitioner does not
exceed the free portion of the estate of the testator, that the respective
shares of the forced heirs have been fairly apportioned, distributed and
delivered to the two forced heirs of Alvaro Pastor, Sr., after deducting the
property willed to the petitioner, and the estate and inheritance taxes have
already been paid to the Government thru the Bureau of Internal Revenue.
The suitability and propriety of allowing petitioner to remain as special
administrator or administrator of the other properties of the estate of the
decedent, which properties are not directly or indirectly affected by the

provisions of the holographic will (such as bank deposits, land in Mactan

etc.), will be resolved in another order as separate incident, considering that
this order should have been properly issued solely as a resolution on the
issue of whether or not to allow and approve the aforestated will. (Emphasis
supplied.)
Nowhere in the dispositive portion is there a declaration of ownership of specific properties. On
the contrary, it is manifest therein that ownership was not resolved. For it confined itself to the
question of extrinsic validity of the win, and the need for and propriety of appointing a special
administrator. Thus it allowed and approved the holographic win "with respect to its extrinsic
validity, the same having been duly authenticated pursuant to the requisites or solemnities
prescribed by law." It declared that the intestate estate administration aspect must proceed "
subject to the outcome of the suit for reconveyance of ownership and possession of real and
personal properties in Civil Case 274-T before Branch IX of the CFI of Cebu." [Parenthetically,
although the statement refers only to the "intestate" aspect, it defies understanding how
ownership by the estate of some properties could be deemed finally resolved for purposes
of testate administration, but not so for intestate purposes. Can the estate be the owner of a
property for testate but not for intestate purposes?] Then again, the Probate Order (while indeed
it does not direct the implementation of the legacy) conditionally stated that the intestate
administration aspect must proceed "unless . . . it is proven . . . that the legacy to be given and
delivered to the petitioner does not exceed the free portion of the estate of the testator," which
clearly implies that the issue of impairment of legitime (an aspect of intrinsic validity) was in fact
not resolved. Finally, the Probate Order did not rule on the propriety of allowing QUEMADA to
remain as special administrator of estate properties not covered by the holographic will,
"considering that this (Probate) Order should have been properly issued solely as a resolution
on the issue of whether or not to allow and approve the aforestated will. "
(c) That the Probate Order did not resolve the question of ownership of the properties listed in
the estate inventory was appropriate, considering that the issue of ownership was the very
subject of controversy in the reconveyance suit that was still pending in Branch IX of the Court of
First Instance of Cebu.
(d) What, therefore, the Court of Appeals and, in effect, the Supreme Court affirmed en
toto when they reviewed the Probable Order were only the matters properly adjudged in the said
Order.
(e) In an attempt to justify the issuance of the Order of execution dated August 20, 1980, the
Probate Court in its Order of November 11, 1980 explained that the basis for its conclusion that
the question of ownership had been formally resolved by the Probate Order of 1972 are the
findings in the latter Order that (1) during the lifetime of the decedent, he was receiving royalties
from ATLAS; (2) he had resided in the Philippines since pre-war days and was engaged in the
mine prospecting business since 1937 particularly in the City of Toledo; and (3) PASTOR, JR.
was only acting as dummy for his father because the latter was a Spaniard.
Based on the premises laid, the conclusion is obviously far-fetched.
(f) It was, therefore, error for the assailed implementing Orders to conclude that the Probate
Order adjudged with finality the question of ownership of the mining properties and royalties, and

that, premised on this conclusion, the dispositive portion of the said Probate Order directed the
special administrator to pay the legacy in dispute.

Under the circumstances of the case at bar, the challenge must be rejected. Grave abuse of
discretion amounting to lack of jurisdiction is much too evident in the actuations of the probate
court to be overlooked or condoned.

2. Issue of Intrinsic Validity of the Holographic Will (a) When PASTOR, SR. died in 1966, he was survived by his wife, aside from his two legitimate
children and one illegitimate son. There is therefore a need to liquidate the conjugal partnership
and set apart the share of PASTOR, SR.'s wife in the conjugal partnership preparatory to the
administration and liquidation of the estate of PASTOR, SR. which will include, among others,
the determination of the extent of the statutory usufructuary right of his wife until her
death. * When the disputed Probate order was issued on December 5, 1972, there had been no
liquidation of the community properties of PASTOR, SR. and his wife.

(a) Without a final, authoritative adjudication of the issue as to what properties compose the
estate of PASTOR, SR. in the face of conflicting claims made by heirs and a non-heir (MA.
ELENA ACHAVAL DE PASTOR) involving properties not in the name of the decedent, and in the
absence of a resolution on the intrinsic validity of the will here in question, there was no basis for
the Probate Court to hold in its Probate Order of 1972, which it did not, that private respondent is
entitled to the payment of the questioned legacy. Therefore, the Order of Execution of August 20,
1980 and the subsequent implementing orders for the payment of QUEMADA's legacy, in
alleged implementation of the dispositive part of the Probate Order of December 5, 1972, must
fall for lack of basis.

(b) So, also, as of the same date, there had been no prior definitive determination of the assets
of the estate of PASTOR, SR. There was an inventory of his properties presumably prepared by
the special administrator, but it does not appear that it was ever the subject of a hearing or that it
was judicially approved. The reconveyance or recovery of properties allegedly owned but not in
the name of PASTOR, SR. was still being litigated in another court.

(b) The ordered payment of legacy would be violative of the rule requiring prior liquidation of the
estate of the deceased, i.e., the determination of the assets of the estate and payment of all
debts and expenses, before apportionment and distribution of the residue among the heirs and
legatees. (Bernardo vs. Court of Appeals, 7 SCRA 367.)

(c) There was no appropriate determination, much less payment, of the debts of the decedent
and his estate. Indeed, it was only in the Probate Order of December 5, 1972 where the Probate
Court ordered that-

(c) Neither has the estate tax been paid on the estate of PASTOR, SR. Payment therefore of the
legacy to QUEMADA would collide with the provision of the National Internal Revenue Code
requiring payment of estate tax before delivery to any beneficiary of his distributive share of the
estate (Section 107 [c])

... a notice be issued and published pursuant to the provisions of Rule 86 of

the Rules of Court, requiring all persons having money claims against the
decedent to file them in the office of the Branch Clerk of this Court."
(d) Nor had the estate tax been determined and paid, or at least provided for, as of December 5,
1972.
(e) The net assets of the estate not having been determined, the legitime of the forced heirs in
concrete figures could not be ascertained.
(f) All the foregoing deficiencies considered, it was not possible to determine whether the legacy
of QUEMADA - a fixed share in a specific property rather than an aliquot part of the entire net
estate of the deceased - would produce an impairment of the legitime of the compulsory heirs.
(g) Finally, there actually was no determination of the intrinsic validity of the will in other
respects. It was obviously for this reason that as late as March 5, 1980 - more than 7 years after
the Probate Order was issued the Probate Court scheduled on March 25, 1980 a hearing on
the intrinsic validity of the will.
3. Propriety of certiorari
Private respondent challenges the propriety of certiorari as a means to assail the validity of the
disputed Order of execution. He contends that the error, if any, is one of judgment, not
jurisdiction, and properly correctible only by appeal, not certiorari.

(d) The assailed order of execution was unauthorized, having been issued purportedly under
Rule 88, Section 6 of the Rules of Court which reads:
Sec. 6. Court to fix contributive shares where devisees, legatees, or heirs
have been in possession. Where devisees, legatees, or heirs have
entered into possession of portions of the estate before the debts and
expenses have been settled and paid and have become liable to contribute
for the payment of such debts and expenses, the court having jurisdiction of
the estate may, by order for that purpose, after hearing, settle the amount of
their several liabilities, and order how much and in what manner each
person shall contribute, and may issue execution as circumstances require.
The above provision clearly authorizes execution to enforce payment of debts of estate. A legacy
is not a debt of the estate; indeed, legatees are among those against whom execution is
authorized to be issued.
... there is merit in the petitioners' contention that the probate court generally
cannot issue a writ of execution. It is not supposed to issue a writ of
execution because its orders usually refer to the adjudication of claims
against the estate which the executor or administrator may satisfy without
the necessity of resorting to a writ of execution. The probate court, as such,
does not render any judgment enforceable by execution.

The circumstances that the Rules of Court expressly specifies that the
probate court may issue execution (a) to satisfy (debts of the estate out of)
the contributive shares of devisees, legatees and heirs in possession of the
decedent's assets (Sec. 6. Rule 88), (b) to enforce payment of the expenses
of partition (Sec. 3, Rule 90), and (c) to satisfy the costs when a person is
cited for examination in probate proceedings (Sec. 13, Rule 142) may
mean, under the rule of inclusion unius est exclusion alterius, that those are
the only instances when it can issue a writ of execution. (Vda. de Valera vs.
Ofilada, 59 SCRA 96, 108.)

are hereby set aside; and this case is remanded to the appropriate Regional Trial Court for
proper proceedings, subject to the judgment to be rendered in Civil Case No. 274-R.
SO ORDERED.
Teehankee (Chairman), Melencio-Herrera Vasquez and Relova JJ., concur.
Gutierrez, J., took no part.

(d) It is within a court's competence to order the execution of a final judgment; but to order the
execution of a final order (which is not even meant to be executed) by reading into it terms that
are not there and in utter disregard of existing rules and law, is manifest grave abuse of
discretion tantamount to lack of jurisdiction. Consequently, the rule that certiorari may not be
invoked to defeat the right of a prevailing party to the execution of a valid and final judgment, is
inapplicable. For when an order of execution is issued with grave abuse of discretion or is at
variance with the judgment sought to be enforced (PVTA vs. Honorable Gonzales, 92 SCRA
172), certiorari will lie to abate the order of execution.
(e) Aside from the propriety of resorting to certiorari to assail an order of execution which varies
the terms of the judgment sought to be executed or does not find support in the dispositive part
of the latter, there are circumstances in the instant case which justify the remedy applied for.
Petitioner MA. ELENA ACHAVAL DE PASTOR, wife of PASTOR, JR., is the holder in her own
right of three mining claims which are one of the objects of conflicting claims of ownership. She
is not an heir of PASTOR, SR. and was not a party to the probate proceedings. Therefore, she
could not appeal from the Order of execution issued by the Probate Court. On the other hand,
after the issuance of the execution order, the urgency of the relief she and her co-petitioner
husband seek in the petition for certiorari states against requiring her to go through the
cumbersome procedure of asking for leave to intervene in the probate proceedings to enable
her, if leave is granted, to appeal from the challenged order of execution which has ordered
the immediate transfer and/or garnishment of the royalties derived from mineral properties of
which she is the duly registered owner and/or grantee together with her husband. She could not
have intervened before the issuance of the assailed orders because she had no valid ground to
intervene. The matter of ownership over the properties subject of the execution was then still
being litigated in another court in a reconveyance suit filed by the special administrator of the
estate of PASTOR, SR.
Likewise, at the time petitioner PASTOR, JR. Med the petition for certiorari with the Court of
Appeals, appeal was not available to him since his motion for reconsideration of the execution
order was still pending resolution by the Probate Court. But in the face of actual garnishment of
their major source of income, petitioners could no longer wait for the resolution of their motion
for reconsideration. They needed prompt relief from the injurious effects of the execution order.
Under the circumstances, recourse to certiorari was the feasible remedy.
WHEREFORE, the decision of the Court of Appeals in CA G.R. No. SP-11373-R is reversed.
The Order of execution issued by the probate Court dated August 20, 1980, as well as all the
Orders issued subsequent thereto in alleged implementation of the Probate Order dated
December 5, 1972, particularly the Orders dated November 11, 1980 and December 17, 1980,

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 12184

September 27, 1917

THE UNITED STATES, plaintiff-appellee,

vs.
CHIU GUIMCO, defendant-appellant.
Jose A. Clarin and Irureta Goyena and Recto for appellant.
Attorney-General Avancea for appellee.
STREET, J.:
This is an appeal brought by the accused Chiu Guimco to reverse a judgment of the Court of
First Instance of the Province of Misamis, subjecting him to a fine of P1,800 for a violation of
section 628 of the Code of Civil Procedure and ordering him to be confined in the provincial jail
until he should produce the will of his deceased brother, or until the further order of the court.
It appears that the testator, Joaquin Cruz, alias Piaua, had for many years, resided in the
municipality of Gingoog, Province of Misamis, where he had lived as a Chinese merchant and

had amassed a considerable estate, worth possibly forty or fifty thousand pesos. On or about
the year 1898, Joaquin Cruz visited China and was there married to a Chinese woman, Uy
Cuan, and by her had one child. In the year 1902, after his return from China, he was married in
Gingoog to a Filipina woman named Maria Villafranca. In the early part of the year 1910,
Joaquin Cruz again visited China, leaving his brother, Chiu Guimco, the accused, in charge of
his property and business in Gingoog as agent or attorney in fact (apoderado). While absent on
this visit to China Joaquin Cruz died. Before his departure from the Philippine Islands he had
executed a will before Anastacio Servillon, notary public, in which Chiu Guimco and Co-Iden
were named as executors. In August 1910, Chiu Guimco and Co-Iden appeared before
Anastacio Servillo; and at their request the latter drew up a petition for the probate of the will.
This petition was signed by Co-Iden and the accused. The will itself was not produced before the
notary public upon this occasion, and he was not informed by them as to who then had
possession of the will. Nothing further was done in the matter of the probate of the will and CoIden subsequently died.
In September, 1910, the accused, as attorney in fact (apoderado) and manager of the estate of
his deceased brother, entered into an arrangement with Maria Villafranca whereby, in
consideration of the conveyance of certain property to her, she relinquished in favor of the other
persons interested in the estate of the deceased all her claims in respect to the same property.
No further action was taken by the accused to distribute the estate to the persons in interest. In
1914 Uy Cuan, the Chinese wife, secured a special permit to enter the Philippine Islands for the
period of six months to effect some settlement of the estate of her deceased husband. When
she arrived in Misamis, the accused made the claim that he and his brother had been partners in
the business which had been conducted originally by Joaquin Cruz. He also asserted that
another brother living in China, named Chiu Tamco, was also a partner in the business though
he had never been in the Philippine Islands. In a document which was then drawn up, it was
agreed that Uy Cuan and her child Chiu Machay were to receive 40 per centum of the estate of
the deceased, that the defendant Chiu Guimco was to receive another 40 per centum, and Chiu
Tamco 20 per centum. Later upon the same visit, Uy Cuan, on behalf of herself and child,
entered into a contract with the accused whereby he agreed to pay the sum of P350 per quarter
by way of rental on their interest in the real estate of the decedent. No payments have, however,
been made by him in compliance with this contract.
In 1915 Ramon Contreras, a Chinese merchant of Cagayan, Misamis, acting on behalf of Uy
Cuan and her child, began to make inquries into the affairs of the estate and on January 26,
1915, wrote a letter to the defendant Chiu Guimco, urging him to produce the will of the
decedent for the institution of lawful proceedings in accordance therewith. The letter called his
attention to the penalty denounce by sections 628 and 629 of the Code of Civil Procedure for
withholding a will, but assured him that if he would then produce the will no penalty would be
incurred. Chiu Guimco was somewhat disturbed by this letter and called in his friend Antonio
Yacapin, then municipal president of Gingoog, for advice. Upon this occasion he showed
Yacapin the will; and the latter says he advised the Chinaman to present the will to the court, but
the latter dissented from this opinion and stated that if he should now present the will he would
suffer prejudice as a long time had already elapsed. In deference to this determination of the
accused a letter was written for him by Yacapin to Ramon Contreras, in which the accused
asserted that the will in question had never been in his possession and that he had never seen
it.

A few months later the complaint in this case was filed, under section 628 of the Code of Civil
Procedure, charging the defendant with the failure to produce the will within the time required by
law. The principal witness for the prosecution was Antonio Yacapin, who meanwhile had ceased
to have friendly relation with the defendant. The court found the accused guilty. That the will was
duly executed and that the accused and his coexecutor appeared before the notary public and
procured the latter to prepare a petition for the probate of the will are facts which are not
disputed. The action of the accused in possessing himself of the property of his deceased
brother and in refusing to take the proper steps to distribute the estate, as well as his refusal to
comply with the contract for the payment of rent to the wife and child in China, all tend to show
that he was acting in bad faith; and we have no doubt that the will was in his possession at the
time when Yacapin professes to have seen it. In finding the defendant guilty and imposing upon
him a fine of P1,800, the Court of First Instance therefore committed no error.
During the hear of this cause the trial judge formed the opinion that the accused still had
possession of the will. He therefore, upon July 22, ordered the accused to produce the will in
court and addressed to him, while he was testifying as a witness in his own behalf, the following
words: "I serve notice on you now to produce the will of your deceased brother Joaquin Cruz or
make a reasonable and satisfactory explanation as to why you cannot do so. And be back here
on the 8th of August and we will take up the case again." The accused, however, failed to
produce the will at the time specified in the notice, alleging that though he had searched
diligently among his papers he was unable to find it; and he reiterated his previous assertion that
the will had never been in his possession. The judge was not satisfied with this explanation, and
upon deciding the present case against the defendant he not only imposed the fine mentioned
above but also included in the judgment an order to the effect that the accused should be
committed to the provincial jail until he should produce the will or until further order the court,
The judge of first instance believed that he had authority to give the notice and make the order in
question under section 629 of the Code of Civil Procedure which provides the testator neglects
without reasonable cause to deliver the same to the court having jurisdiction, after notice by the
course 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.
It is our opinion that this provision can only be applied when a court is acting in the exercise of
its jurisdiction over the administration of the estates of deceased persons; and where
administration proceedings are not already pending, the court, before taking action under this
section, should require that there be before it some petition, information, or affidavit of such
character as to make action by the court under this section appropriate.
The proceedings in this case, under section 628 of the Code of the Civil Procedure, is an
ordinary criminal prosecution. The act penalized in that section (628) is a special statutory
offense and is properly prosecuted upon complaint or information as other criminal offenses
created by law. The fact that this penal provision is contained in the Code of Civil Procedure
does not make the proceeding to enforce the penalty a civil proceeding in any sense. The
remedy provided in section 629 of the Code of Procedure is evidently a totally different remedy,
having no relation with that provided in section 628; and it is in our opinion not permissible in a
prosecution under the last mentioned section to superimpose upon the penalty of fine therein
prescribed the additional penalty of imprisonment prescribed in section 629.

I may further be observed that one grace difficulty in applying the remedy provided in section
629 in a prosecution under section 628 is that to enforce the production of the will b the accused
at such trial would virtually compel him to convict himself, since the mere production of the will
by him would be conclusive that he had possession of it as charged in the criminal complaint;
and it seems probable that this would constitute an infringement of that provision of law which
says that in a criminal action the defendant shall be exempt from testifying against himself.
(See Gen. Orders No. 58, sec. 15.)
From what has been said it follows that the order of commitment made by the lower court
remanding the accused to jail should be vacated and if subsidiary imprisonment should be
imposed for insolvency the defendant shall, under the provisions of Act No. 2557, be credited
with the time during which he was confined in pursuance of the order of the lower court, With
this modification the judgment of the court below should be affirmed with costs against the
appellant. So ordered.
Arellano, C.J., Johnson and Araullo, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-21993

June 21, 1966

ANGELA RODRIGUEZ, MARIA RODRIGUEZ, ET AL., petitioners,

vs.
HON. JUAN DE BORJA, as Judge of the Court of First Instance of Bulacan, Branch III,
ANATOLIA PANGILINAN and ADELAIDA JACALAN, respondents.
Lorenzo Somulong for petitioners.
Torres and Torres for respondents.
REYES, J.B.L., J.:
Petitioners Angela, Maria, Abelardo and Antonio, surnamed Rodriguez, petition this Court for a
writ of certiorariand prohibition to the Court of First Instance of Bulacan, for its refusal to grant
their motion to dismiss its Special Proceeding No. 1331, which said Court is alleged to have
taken cognizance of without jurisdiction.
The facts and issues are succinctly narrated in the order of the respondent court, dated June 13,
1963 (Petition, Annex 0), in this wise:
It is alleged in the motion to dismiss filed by Angela, Maria, Abelardo and Antonio
Rodriguez, through counsel, that this Court "has no jurisdiction to try the aboveentitled case in view of the pendency of another action for the settlement of the estate
of the deceased Rev. Fr. Celestino Rodriguez in the Court of First Instance of Rizal,
namely, Sp. Proceedings No. 3907 entitled 'In the matter of the Intestate Estate of the
deceased Rev. Fr. Celestino Rodriguez which was filed ahead of the instant case".
The records show that Fr. Celestino Rodriguez died on February 12, 1963 in the City
of Manila; that on March 4, 1963, Apolonia Pangilinan and Adelaida Jacalan delivered
to the Clerk of Court of Bulacan a purported last will and testament of Fr. Rodriguez;
that on March 8, 1963, Maria Rodriguez and Angela Rodriguez, through counsel filed
a petition for leave of court to allow them to examine the alleged will; that on March 11,
1963 before the Court could act on the petition, the same was withdrawn; that on
March 12, 1963, aforementioned petitioners filed before the Court of First Instance of
Rizal a petition for the settlement of the intestate estate of Fr. Rodriguez alleging,
among other things, that Fr. Rodriguez was a resident of Paraaque, Rizal, and died
without leaving a will and praying that Maria Rodriguez be appointed as Special
Administratrix of the estate; and that on March 12, 1963 Apolonia Pangilinan and
Adelaida Jacalan filed a petition in this Court for the probation of the will delivered by
them on March 4, 1963. It was stipulated by the parties that Fr. Rodriguez was born in
Paraaque, Rizal; that he was Parish priest of the Catholic Church of Hagonoy,
Bulacan, from the year 1930 up to the time of his death in 1963; that he was buried in
Paraaque, and that he left real properties in Rizal, Cavite, Quezon City and Bulacan.
The movants contend that since the intestate proceedings in the Court of First
Instance of Rizal was filed at 8:00 A.M. on March 12, 1963 while the petition for
probate was filed in the Court of First Instance of Bulacan at 11:00 A.M. on the same
date, the latter Court has no jurisdiction to entertain the petition for probate, citing as
authority in support thereof the case of Ongsingco Vda. de Borja vs. Tan and De
Borja, G.R. No. 7792, July 27, 1955.

The petitioners Pangilinan and Jacalan, on the other hand, take the stand that the
Court of First Instance of Bulacan acquired jurisdiction over the case upon delivery by
them of the will to the Clerk of Court on March 4, 1963, and that the case in this Court
therefore has precedence over the case filed in Rizal on March 12, 1963.
The Court of First Instance, as previously stated denied the motion to dismiss on the ground that
a difference of a few hours did not entitle one proceeding to preference over the other; that, as
early as March 7, movants were aware of the existence of the purported will of Father
Rodriguez, deposited in the Court of Bulacan, since they filed a petition to examine the same,
and that movants clearly filed the intestate proceedings in Rizal "for no other purpose than to
prevent this Court (of Bulacan) from exercising jurisdiction over the probate proceedings".
Reconsideration having been denied, movants, now petitioners, came to this Court, relying
principally on Rule 73, section 1 of the Rules of Court, and invoking our ruling in Ongsingco vs.
Tan and De Borja, L-7792, July 27, 1955.
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 any province
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, as 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.
We find this recourse to be untenable. The jurisdiction of the Court of First Instance of Bulacan
became vested upon the delivery thereto of the will of the late Father Rodriguez on March 4,
1963, even if no petition for its allowance was filed until later, because upon the will being
deposited the court could, motu proprio, have taken steps to fix the time and place for proving
the will, and issued the corresponding notices conformably to what is prescribed by section 3,
Rule 76, of the Revised Rules of Court (Section 3, Rule 77, of the old Rules):
SEC. 3. Court to appoint time for proving will. Notice thereof to be published. When
a will is delivered to, or a petition for the allowance of a will is filed in, the Court having
jurisdiction, such Court shall fix a time and place for proving the will when all
concerned may appear to contest the allowance thereof, and shall cause notice of
such time and place to be published three (3) weeks successively, previous to the time
appointed, in a newspaper of general circulation in the province.
But no newspaper publication shall be made where the petition for probate has been
filed by the testator himself.
The use of the disjunctive in the words "when a will is delivered to OR a petition for the
allowance of a will is filed" plainly indicates that the court may act upon the mere deposit therein
of a decedent's testament, even if no petition for its allowance is as yet filed. Where the petition
for probate is made after the deposit of the will, the petition is deemed to relate back to the time
when the will was delivered. Since the testament of Fr. Rodriguez was submitted and delivered

to the Court of Bulacan on March 4, while petitioners initiated intestate proceedings in the Court
of First Instance of Rizal only on March 12, eight days later, the precedence and exclusive
jurisdiction of the Bulacan court is incontestable.1wph1.t

This disposition presupposes that two or more courts have been asked to take cognizance of the
settlement of the estate. Of them only one could be of proper venue, yet the rule grants
precedence to that Court whose jurisdiction is first invoked, without taking venue into account.

But, petitioners object, section 3 of revised Rule 76 (old Rule 77) speaks of a will being delivered
to "the Court having jurisdiction," and in the case at bar the Bulacan court did not have it
because the decedent was domiciled in Rizal province. We can not disregard Fr. Rodriguez's 33
years of residence as parish priest in Hagonoy, Bulacan (1930-1963); but even if we do so, and
consider that he retained throughout some animus revertendi to the place of his birth in
Paraaque, Rizal, that detail would not imply that the Bulacan court lacked jurisdiction. As ruled
in previous decisions, the power to settle decedents' estates is conferred by law upon all courts
of first instance, and the domicile of the testator only affects the venue but not the jurisdiction of
the Court (In re Kaw Singco, 74 Phil. 239; Reyes vs. Diaz, 73 Phil. 484; Bernabe vs. Vergara, 73
Phil. 676). Neither party denies that the late Fr. Rodriguez is deceased, or that he left personal
property in Hagonoy, province of Bulacan (t.s.n. p. 46, hearing of June 11, 1963, Annex "H",
Petition, Rec., p. 48). That is sufficient in the case before us.

There are two other reasons that militate against the success of petitioners. One is that their
commencing intestate proceedings in Rizal, after they learned of the delivery of the decedent's
will to the Court of Bulacan, was in bad faith, patently done with a view to divesting the latter
court of the precedence awarded it by the Rules. Certainly the order of priority established in
Rule 73 (old Rule 75) was not designed to convert the settlement of decedent's estates into a
race between applicants, with the administration of the properties as the price for the fleetest.

In the Kaw Singco case (ante) this Court ruled that:

"... 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 of mischievous 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, 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. (Attorney General vs. Manila Railroad Company, 20 Phil. 523.) The
law of jurisdiction Act No. 136, Section 56, No. 5 confers upon Courts of First
Instance jurisdiction over all probate cases independently of the place of residence of
the deceased.1 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" (Rule 75, section 1.)
Motion for reconsideration is denied.
The estate proceedings having been initiated in the Bulacan Court of First Instance ahead of any
other, that court is entitled to assume jurisdiction to the exclusion of all other courts, even if it
were a case of wrong venue by express provisions of Rule 73 (old Rule 75) of the Rules of
Court, since the same enjoins 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. (Sec. 1)

The other reason is that, in our system of civil law, intestate succession is only subsidiary or
subordinate to the testate, since intestacy only takes place in the absence of a valid operative
will. Says Article 960 of the Civil Code of the Philippines:
ART. 960. Legal or intestate succession takes place:
(1) If a person dies without a will, or with a void will, or one which has subsequently
lost its validity;
(2) When the will does not institute an heir to, or dispose of all the property belonging
to the testator. In such case, legal succession shall take place only with respect to the
property in which the testator has not disposed;
(3) If the suspensive condition attached to the institution of heir does not happen or is
not fulfilled, or if the heir dies before the testator, or repudiates the inheritance, there
being no substitution, and no right of accretion takes place;
(4) When the heir instituted is incapable of succeeding, except in cases provided in
this Code.
Therefore, as ruled in Castro, et al. vs. Martinez, 10 Phil. 307, "only after final decision as to the
nullity of testate succession could an intestate succession be instituted in the form of preestablished action". The institution of intestacy proceedings in Rizal may not thus proceed while
the probate of the purported will of Father Rodriguez is pending.
We rule that the Bulacan Court of First Instance was entitled to priority in the settlement of the
estate in question, and that in refusing to dismiss the probate. proceedings, said court did not
commit any abuse of discretion. It is the proceedings in the Rizal Court that should be
discontinued.
Wherefore, the writ of certiorari applied for is denied. Costs against petitioners Rodriguez.
Concepcion, C.J., Barrera, Dizon, Regala, Makalintal, Bengzon, J.P., Zaldivar and Sanchez, JJ.,
concur.

On July 17, 1955, Vicente B. Teotico filed a petition for the probate of the will before the Court of
First Instance of Manila which was set for hearing on September 3, 1955 after the requisite
publication and service to all parties concerned.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-18753

March 26, 1965

VICENTE B. TEOTICO, petitioner-appellant,

vs.
ANA DEL VAL, ETC., oppositor-appellant.
Antonio Gonzales for petitioner-appellant.
J.C. Zulueta, G. D. David and N. J. Quisumbing for oppositor-appellant.
BAUTISTA ANGELO, J.:
Maria Mortera y Balsalobre Vda. de Aguirre died on July 14, 1955 in the City of Manila leaving
properties worth P600,000.00. She left a will written in Spanish which she executed at her
residence at No. 2 Legarda St., Quiapo, Manila. She affixed her signature at the bottom of the
will and on the left margin of each and every page thereof in the presence of Pilar Borja, Pilar C.
Sanchez, and Modesto Formilleza, who in turn affixed their signatures below the attestation
clause and on the left margin of each and every page of the will in the presence of the testatrix
and of each other. Said will was acknowledged before Notary Public Niceforo S. Agaton by the
testatrix and her witnesses.
In said will the testatrix made the following preliminary statement: that she was possessed of the
full use of her mental faculties; that she was free from illegal pressure or influence of any kind
from the beneficiaries of the will and from any influence of fear or threat; that she freely and
spontaneously executed said will and that she had neither ascendants nor descendants of any
kind such that she could freely dispose of all her estate.
Among the many legacies and devises made in the will was one of P20,000.00 to Rene A.
Teotico, married to the testatrix's niece named Josefina Mortera. To said spouses the testatrix
left the usufruct of her interest in the Calvo building, while the naked ownership thereof she left
in equal parts to her grandchildren who are the legitimate children of said spouses. The testatrix
also instituted Josefina Mortera as her sole and universal heir to all the remainder of her
properties not otherwise disposed of in the will.

Ana del Val Chan, claiming to be an adopted child of Francisca Mortera, a deceased sister of the
testatrix, as well as an acknowledged natural child of Jose Mortera, a deceased brother of the
same testatrix, filed on September 2, 1955 an opposition to the probate of the will alleging the
following grounds: (1) said will was not executed as required by law; (2) the testatrix was
physically and mentally incapable to execute the will at the time of its execution; and (3) the will
was executed under duress, threat or influence of fear.
Vicente B. Teotico, filed a motion to dismiss the opposition alleging that the oppositor had no
legal personality to intervene. The probate court, after due hearing, allowed the oppositor to
intervene as an adopted child of Francisca Mortera, and on June 17, 1959, the oppositor
amended her opposition by alleging, the additional ground that the will is inoperative as to the
share of Dr. Rene Teotico because the latter was the physician who took care of the testatrix
during her last illness.
After the parties had presented their evidence, the probate court rendered its decision on
November 10, 1960, admitting the will to probate but declaring the disposition made in favor of
Dr. Rene Teotico void with the statement that the portion to be vacated by the annulment should
pass to the testatrix's heirs by way of intestate succession.
Petitioner Teotico, together with the universal heir Josefina Mortera, filed a motion for
reconsideration of that part of the decision which declares the portion of the estate to be vacated
by the nullity of the legacy made to Dr. Rene Teotico as passing to the legal heirs, while the
oppositor filed also a motion for reconsideration of the portion of the judgment which decrees the
probate of the will. On his part, Dr. Rene Teotico requested leave to intervene and to file a
motion for reconsideration with regard to that portion of the decision which nullified the legacy
made in his favor.
The motions for reconsideration above adverted to having been denied, both petitioner and
oppositor appealed from the decision, the former from that portion which nullifies the legacy in
favor of Dr. Rene Teotico and declares the vacated portion as subject of succession in favor of
the legal heirs, and the latter from that portion which admits the will to probate. And in this
instance both petitioner and oppositor assign several errors which, stripped of non-essentials,
may be boiled down to the following: (1) Has oppositor Ana del Val Chan the right to intervene in
this proceeding?; (2) Has the will in question been duly admitted to probate?; (3) Did the probate
court commit an error in passing on the intrinsic validity of the provisions of the will and in
determining who should inherit the portion to be vacated by the nullification of the legacy made
in favor of Dr. Rene Teotico?
These issues will be discussed separately.
1. It is a well-settled rule that in order that a person may be allowed to intervene in a probate
proceeding he must have an interest in the estate, or in the will, or in the property to be affected
by it either as executor or as a claimant of the estate (Ngo The Hua v. Chung Kiat Hua, et al., L17091, September 30, 1963); and an interested party has been defined as one who would be
benefited by the estate such as an heir or one who has a claim against the estate like a creditor

(Idem). On the other hand, in Saguinsin v. Lindayag, et al., L-17750, December 17, 1962, this
Court said:
According to Section 2, Rule 80 of the Rules of Court, a petition for letters of
administration must be filed by an "interested person." An interested party has been
defined in this connection as one who would be benefited by the estate, such as an
heir, or one who has a claim against the estate, such as a creditor (Intestate Estate of
Julio Magbanwa 40 O.G. 1171). And it is well settled in this jurisdiction that in civil
actions as well as special proceedings, the interest required in order that a person
may be a party thereto must be material and direct, and not merely indirect or
contingent (Trillana vs. Crisostomo, G.R. No. L-3370, August 22, 1951; Rapinosa vs.
Barrion, 70 Phil. 311).
The question now may be asked: Has oppositor any interest in any of the provisions of the will,
and, in the negative, would she acquire any right to the estate in the event that the will is denied
probate?
Under the terms of the will, oppositor has no right to intervene because she has no interest in
the estate either as heir, executor, or administrator, nor does she have any claim to any property
affected by the will, because it nowhere appears therein any provision designating her as heir,
legatee or devisee of any portion of the estate. She has also no interest in the will either as
administratrix or executrix. Neither has she any claim against any portion of the estate because
she is not a co-owner thereof, and while she previously had an interest in the Calvo building
located in Escolta, she had already disposed of it long before the execution of the
will.1wph1.t
In the supposition that, the will is denied probate, would the oppositor acquire any interest in any
portion of the estate left by the testatrix? She would acquire such right only if she were a legal
heir of the deceased, but she is not under our Civil Code. It is true that oppositor claims to be an
acknowledged natural child of Jose Mortera, a deceased brother of the deceased, and also an
adopted daughter of Francisca Mortera, a deceased sister of the testatrix, but such claim cannot
give her any comfort for, even if it be true, the law does not give her any right to succeed to the
estate of the deceased sister of both Jose Mortera and Francisca Mortera. And this is so
because being an illegitimate child she is prohibited by law from succeeding to the legitimate
relatives of her natural father. Thus, Article 992 of our Civil Code provides: "An illegitimate child
has no right to inherit ab intestato from the legitimate children and relatives of his father or
mother; ... ." And the philosophy behind this provision is well expressed in Grey v. Fabie, 68 Phil.
128, as follows:
Between the natural child and the legitimate relatives of the father or mother who
acknowledged it, the Code denies any right of succession. They cannot be called
relatives and they have no right to inherit. Of course, there is a blood tie, but the law
does not recognize it. On this, article 943 is based upon the reality of the facts and
upon the presumption will of the interested parties; the natural child is disgracefully
looked down upon by the legitimate family; the legitimate family is, in turn, hated by
the natural child; the latter considers the privileged condition of the former and the
resources of which it is thereby deprived; the former, in turn, sees in the natural child
nothing but the product of sin, a palpable evidence of a blemish upon the family. Every

relation is ordinarily broken in life; the law does no more than recognize this truth, by
avoiding further grounds of resentment. (7 Manresa, 3d., p. 110.)
The oppositor cannot also derive comfort from the fact that she is an adopted child of Francisca
Mortera because under our law the relationship established by adoption is limited solely to the
adopter and the adopted and does not extend to the relatives of the adopting parents or of the
adopted child except only as expressly provided for by law. Hence, no relationship is created
between the adopted and the collaterals of the adopting parents. As a consequence, the
adopted is an heir of the adopter but not of the relatives of the adopter.
The relationship established by the adoption, however, is limited to the adopting
parent, and does not extend to his other relatives, except as expressly provided by
law. Thus, the adopted child cannot be considered as a relative of the ascendants and
collaterals of the adopting parents, nor of the legitimate children which they may have
after the adoption, except that the law imposes certain impediments to marriage by
reason of adoption. Neither are the children of the adopted considered as
descendants of the adopter. The relationship created is exclusively between the
adopter and the adopted, and does not extend to the relatives of either. (Tolentino,
Civil Code of the Philippines, Vol. 1, p. 652).
Relationship by adoption is limited to adopter and adopted, and does not extend to
other members of the family of either; but the adopted is prohibited to marry the
children of the adopter to avoid scandal. (An Outline of Philippine Civil Law by Justice
Jose B. L. Reyes and Ricardo C. Puno, Vol. 1, p. 313; See also Caguioa, Comments
and Cases on Civil Law 1955, Vol 1, pp. 312-313; Paras, Civil Code of the Philippines,
1959 ed., Vol. 1, p. 515)
It thus appears that the oppositor has no right to intervene either as testamentary or as legal heir
in this probate proceeding contrary to the ruling of the court a quo.
2. The next question to be determined is whether the will Exhibit A was duly admitted to probate.
Oppositor claims that the same should not have been admitted not only because it was not
properly attested to but also because it was procured thru pressure and influence and the
testatrix affixed her signature by mistake believing that it contained her true intent.
The claim that the will was not properly attested to is contradicted by the evidence of record. In
this respect it is fit that we state briefly the declarations of the instrumental witnesses.
Pilar Borja testified that the testatrix was in perfect state of health at the time she executed the
will for she carried her conversation with her intelligently; that the testatrix signed immediately
above the attestation clause and on each and every page thereof at the left-hand margin in the
presence of the three instrumental witnesses and the notary public; that it was the testatrix
herself who asked her and the other witnesses to act as such; and that the testatrix was the first
one to sign and later she gave the will to the witnesses who read and signed it.
Pilar G. Sanchez also testified that she knew the testatrix since 1945; that it was the testatrix
herself who asked her to be a witness to the will; that the testatrix was the first one to sign and

she gave the will later to the witnesses to sign and afterwards she gave it to the notary public;
that on the day of the execution of the will the testatrix was in the best of health.
Modesto Formilleza also testified that he was asked by the testatrix to be one of the witnesses to
the will; that he read and understood the attestation clause before he signed the document, and
all the witnesses spoke either in Spanish or in Tagalog. He finally said that the instrumental
witnesses and the testatrix signed the will at the same time and place and identified their
signatures.
This evidence which has not been successfully refuted proves conclusively that the will was duly
executed because it was signed by the testatrix and her instrumental witnesses and the notary
public in the manner provided for by law.
The claim that the will was procured by improper pressure and influence is also belied by the
evidence. On this point the court a quo made the following observation:
The circumstance that the testatrix was then living under the same roof with Dr. Rene
Teotico is no proof adequate in law to sustain the conclusion that there was improper
pressure and undue influence. Nor is the alleged fact of isolation of the testatrix from
the oppositor and her witnesses, for their supposed failure to see personally the
testatrix, attributable to the vehemence of Dr. Rene Teotico, to exclude visitors, took
place years after the execution of the will on May 17, 1951. Although those fact may
have some weight to support the theory of the oppositor, yet they must perforce yield
to the weightier fact that nothing could have prevented the testatrix, had she really
wanted to from subsequently revoking her 1951 will if it did not in fact reflect and
express her own testamentary dispositions. For, as testified to by the oppositor and
her witnesses, the testatrix was often seen at the Escolta, in Quiapo and Sta. Cruz,
Manila, walking and accompanied by no one. In fact, on different occasions, each of
them was able to talk with her.
We have examined the evidence on the matter and we are fully in accord with the foregoing
observation. Moreover, the mere claim that Josefina Mortera and her husband Rene Teotico had
the opportunity to exert pressure on the testatrix simply because she lived in their house several
years prior to the execution of the will and that she was old and suffering from hypertension in
that she was virtually isolated from her friends for several years prior to her death is insufficient
to disprove what the instrumental witnesses had testified that the testatrix freely and voluntarily
and with full consciousness of the solemnity of the occasion executed the will under
consideration. The exercise of improper pressure and undue influence must be supported by
substantial evidence and must be of a kind that would overpower and subjugate the mind of the
testatrix as to destroy her free agency and make her express the will of another rather than her
own (Coso v. Deza, 42 0. G. 596). The burden is on the person challenging the will that such
influence was exerted at the time of its execution, a matter which here was not done, for the
evidence presented not only is insufficient but was disproved by the testimony of the
instrumental witnesses.
3. The question of whether the probate court could determine the intrinsic validity of the
provisions of a will has been decided by this Court in a long line of decisions among which the
following may be cited:

Opposition to the intrinsic validity or legality of the provisions of the will cannot be
entertained in Probate proceeding because its only purpose is merely to determine if
the will has been executed in accordance with the requirements of the law." (Palacios
v. Palacios, 58 0. G. 220)
... The authentication of a will decides no other questions than such as touch upon the
capacity of the testator and the compliance with those requisites or solemnities which
the law prescribes for the validity of wills. It does not determine nor even by implication
prejudge the validity or efficiency of the provisions, these may be impugned as being
vicious or null, notwithstanding its authentication. The questions relating to these
points remain entirely unaffected, and may be raised even after the will has been
authenticated. ...
From the fact that the legalization of a will does not validate the provisions therein
contained, it does not follow that such provision lack the efficiency, or fail to produce
the effects which the law recognizes when they are not impugned by anyone. In the
matter of wills it is a fundamental doctrine that the will of the testator is the law
governing the interested parties, and must be punctually complied with in so far as it is
not contrary to the law or to public morals. (Montaano v. Suesa, 14 Phil. 676, 679680)
To establish conclusively as against everyone, and once for all, the facts that a will
was executed with the formalities required by law and that the testator was in a
condition to make a will, is the only purpose of the proceedings under the new code
for the probate of a will. (Sec. 625.) The judgment in such proceedings determines
and can determine nothing more. In them the court has no power to pass upon the
validity of any provisions made in the will. It can not decide, for example, that a certain
legacy is void and another one is valid. (Castaeda v. Alemany, 3 Phil. 426, 428)
Pursuant to the foregoing precedents the pronouncement made by the court a quo declaring
invalid the legacy made to Dr. Rene Teotico in the will Exhibit A must be set aside as having
been made in excess of its jurisdiction. Another reason why said pronouncement should be set
aside is that the legatee was not given an opportunity to defend the validity of the legacy for he
was not allowed to intervene in this proceeding. As a corollary, the other pronouncements
touching on the disposition of the estate in favor of some relatives of the deceased should also
be set aside for the same reason.
WHEREFORE, with the exception of that portion of the decision which declares that the will in
question has been duly executed and admitted the same to probate, the rest of the decision is
hereby set aside. This case is ordered remanded to the court a quo for further proceedings. No
pronouncement as to costs.
Bengzon, C.J., Concepcion, Reyes, J.B.L., Barrera, Paredes, Regala, Makalintal, Bengzon, J.P.,
and Zaldivar, JJ., concur.
Dizon, J., took no part.

vs.
GERMAN CRISOSTOMO and PACITA FERNANDO, oppositors-appellees.
--------------------------INTESTATE ESTATE OF THE DECEASED SPOUSES RUFINO CRISOSTOMO and PETRA
FERNANDO. GERMAN CRISOSTOMO and PACITA FERNANDO, administrators-appellees,
vs.
HERMOGENES C. FERNANDO, as Guardian of the minors RUFINO CRISOSTOMO, JR.,
JUAN CRISOSTOMO, ROBERTO CRISOSTOMO, and GABRIEL CRISOSTOMO, oppositorappellant.
Bustos and Bustos and Rufino G. Villanueva for administrators-appellees.
Juan R. Rustia for oppositor-appellant.

JUGO, J.:
This is an appeal from several orders of the Court of First Instance of Bulacan in case No. 38 of
said court, entitled "Guardianship of Rufino Crisostomo, Sr. and his minor children Rufino, Jr.,
Roberto, Juan, and Gabriel, all surnamed Crisostomo," which has been numbered by this Court
G.R. No. L-2693, and case No. 318 of the same court, entitled "Inestate Estate of the spouses
Rufino Crisostomo and Petra Fernando," which has been numbered by this Court G.R. No. L2694. These two cases have been combined in view of the intimate and necessary relations
between them.
In case G.R. No. L-2963, Hermogenes C. Fernando was appointed on August 14, 1945,
guardian of Rufino Crisostomo and his minor children Rufino, Jr., Juan, Roberto, and Gabriel as
to their persons and properties. Later Rufino Crisostomo Sr., died, leaving his said four minor
children under the guardianship of said Hermogenes C. Fernando.
The value of the properties involved in the two proceedings exceeds P50,000 and the pertinent
questions raised are only of law.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. Nos. L-2963-4

On June 12, 1948, the guardian filed a motion with the Court of First Instance of Bulacan praying
for the approval of an extra-judicial settlement of the estate of the deceased parents of the
minors, the spouses Rufino Crisostomo, Sr. and Petra Fernando, who died intestate on August
15, 1945 and January 16, 1945, respectively. The guardian ad litem filed an opposition to said
motion. The regular guardian filed an answer to the opposition. The court entered the
following:lawphil.net

December 27, 1951

ORDER

GUARDIANSHIP OF RUFINO CRISOSTOMO and his minor children RUFINO

CRISOSTOMO, JR., JUAN CRISOSTOMO, ROBERTO CRISOSTOMO, and GABRIEL
CRISOSTOMO. HERMOGENES C. FERNANDO, as Guardian of the minors, petitionerappellant,

This is motion for the approval of an extra-judicial settlement

marked Exhibit "A".

The Supreme Court in the certiorari case, G.R. No. L-2172, has ruled:
The guardian of the minor children of the deceased is not, as such, administrator of
the estate of the deceased until and after said estate has been acquired by or
adjudicated to the minors by proper proceedings.
In view hereof, the said motion is hereby denied and the deed of extra-judicial
settlement executed by the legal guardian Hermogenes C. Fernando on May 23,
1948, a duplicate copy of which is marked A is declared null and void. Hermogenes C.
Fernando is order deliver to the Clerk of Court the original copy of Exhibit "A" within 5
days from the receipt of a copy of this order.

order denying the motion to dismiss the inestate proceedings. On April 2, 1948, the guardian
filed another petition reiterating the motion of dismissal. On April 7, 1948, the court appointed
German Crisostomo and Pacita Fernando co-administrators of the estate of the abovementioned spouses with the appropriate bonds, impliedly denying the reiteration of the motion
for dismissal.
On June 21, 198, the guardian filed a motion for the closing, termination and filing in the
archives of the record of the inestate proceedings on the ground that the properties involved
therein had already been extrajudicially declaring null and void the extrajudicial partition made
by the guardian and denying said motion for closing the inestate proceedings.
The guardian appellee form the above order as well as from the one dismissing the petition for
contempt.

Let a copy of this order be attached to the Special Proceedings No. 316.
IT IS SO ORDERED.
Malolos, Bulacan, Philippines, July 19, 1948.
(Sgd
.)
POT
ENC
IAN
O
PEC
SON
Jud
ge
The guardian appealed from the above order.
On July 23, 1948, the guardian filed in the guardianship proceedings a petition praying the court
to punish for contempt German Crisostomo (one of the administrators of the estate of the
deceased spouses appointed in the intestate proceedings above mentioned) and one Victor
Dimagiba, alleging that they had illegally taken possession of certain properties belonging to the
minor wards, inherited by them from their parents. The Court denied the petition on the ground
that German Crisostomo had the right to possess those properties in his capacity as coadministrator of the estate of the deceased spouses and that Victor Dimagiba was only his
overseer. The guardian filed a motion for reconsideration which the court denied on September
16, 1948. He appealed from said order.
In case G.R. No. L-2694, entitled "Inestate Estate of the Spouses Rufino Crisostomo and Petra
Fernando," German Crisostomo filed a petition, as next of kin, for the opening of the inestate
proceedings of the himself and Pacita Fernando, another next appointment of himself and Pacita
Fernando, another next of kin, as co-administrator of said estate. The guardian in case G.R. No.
L-2693 filed on February 28, 1948, an opposition to the appointment of the administrators and
moved for the dismissal of the inestate proceedings on the ground that the properties left by said
spouses were already in his possession as such guardian. On April 1, 1948, the court issued an

It may be gathered from the above statement of the pleadings, motions, petitions, and orders of
the court below that the principal issue in this case is whether the court should have denied the
petition for the opening of inestate proceedings, or should have dismissed it, upon motion of the
appellant, after they had commenced, and whether the project of partition submitted by the
guardian in the guardianship proceedings should have been approved. The other questions as
to the contempt of court allegedly committed by the co-administrator German Crisostomo
together with his overseer Victor Dimagiba, may be disposed of as a mere corollary of the
principal issues as to the dismissal of the inestate proceedings.
On April 27, 1948, the guardian filed with this Court a petition entitled "Solicitud de Avocacion
con Peticion de Interdicto Prohibitorio Preliminar," G.R. No. L-2172, in which he prayed for a
preliminary injunction to prohibit the Court of First Instance of Bulacan from proceeding with the
inestate case and that this court "dicte sentencia en este recurso declarando nulas, sin ningun
valor, ni efecto, todas las ordenes dictadas por el Hon. Juzgado reccurido en el Expediente de
Intestado No. 318 del Juzgado de Primera Instancia de Bulacan, por carecer de jurisdiccion
dicho Juzgado sobre la materia del procedimiento, especialmente las ordenes de fechas 1., 6 y
7 de abril, 1949; y se condene en costas a los recurridos German Crisostomo y Pacita
Fernando."
In the petition, substantially the same questions are raised as those discussed in the brief of the
appellant herein. This Court, in a resolution dated May 5, 1948, which became final on July 2,
1948, passed the following resolutions:
Considering the petition for certiorari with preliminary injunction filed by the petitioner
in case No. L-2172 (Hermogenes Fernando, etc., vs. Court of First Instance of
Bulacan et al.), the same is DEFINED, inasmuch as the brothers of the deceased
have interest, as next of kin, to petition for letters of administrators, the heirs of the
deceased being minors, and the respondent judge acted within his jurisdiction in
appointing the petitioners as administrators under section 6, Rule 79. The guardian of
the minor children of the deceased is not, as such, administrator of the estate of the
deceased until and after said estate has been acquired by or adjudicated to the
minors by proper proceedings.

The guardian filed an extensive motion for reconsideration of said resolution of the court,
discussing with further details the matter involved in the present case, and setting forth further
arguments in support of his contention.

Pablo, Bengzon, Padilla, Tuason, Reyes and Bautista Angelo, JJ., concur.

This Court, after giving due consideration to all the facts and arguments appearing in the original
petition and in the motion for reconsideration, passed the resolution of June 11, 1948, which
reads as follows:
In G.R. No. L-2172, Fernando vs. Judge of First Instance of Bulacan, et al., the motion
for reconsideration is denied. Respondent judge had jurisdiction and did not exceed it
in appointing the other respondent, who are the brother and sister or nearest of kin of
the decedent, as administrators of the latter's estate. The jurisdictional facts referred
to in section 2 (a) Rule 80, are the death of the decedent, his having left his estate in
such province were probate court is sitting, or life he is an inhabitant of a foreign
country, his having left his estate in such province. The name or competency of the
person or persons for whim letters of administration are prayed is not a jurisdictional
fact, it is another additional fact to be alleged in the petition (d); but "no defect in the
petition shall render void the issue of letters of administration" that is, shall divest the
court of its jurisdiction to appoint the administrator. A petition for certiorari does not lie
to correct errors; if the lower court has committed any error, the proper remedy would
be appeal. The guardian of the minors father who died after the guardian had been
appointed, until said properties have been adjudicated or awarded to them either by
extrajudicial or judicial partition. No partition either judicial or extra judicial having as
yet been made adjudicating the said properties to the minors, the properties of the
deceased have never been placed under the administration of the guardian of his
minor children.
Mr. Justice Perfecto dissented.
It will be seen from the above that the principal issue in this case as to whether the intestate
proceedings should be dismissed has already been decided by this Court in
the certiorari proceedings as far back as July 2, 1948, with the exception that if there had been
errors committed in the appointment of the guardian (not in the institution of the intestate
proceedings, which had been declared within the jurisdiction of the court) those errors in the
appointment may be corrected in an appeal. After examining the record, we do not see any error
in the appointment of German Crisostomo and Pacita Fernando as co-administrators as they
were the brother and sister, respectively, of the deceased, no evidence having been presented
by the appellant why those persons should not be appointed, either on account of their
incompetency or lack of moral qualifications. We, therefore, affirm the order of the court
appointing them.
It should be borne in mind that the above resolutions of this Court constitute res judicata and
"the law of the case" with regard to this appeal and they can no longer be questioned or put in
issue in the present case. It results then, that the claim of the appellant that the intestate
proceedings should be dismissed has to be denied and, as all the other questions are
dependent on said issue, they should also be decided adversely to the appellant.
In view of the foregoing, the orders appealed from are hereby affirmed, with costs against the
appellant. it is so ordered.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-2308

April 30, 1906

NIEVES ARAUJO, ET AL., plaintiffs-appellants,

vs.
GREGORIA CELIS, defendant-appellee.
Smith and Hargis, for appellants.
Jovito Yusay, for appellee.
MAPA, J.:
Rosario Darwin Araujo inherited from her mother, Asuncion Araujo y Belen, the hacienda known
as Pangpang and other property. She subsequently married Jose Araujo y Celis, the defendant's
son, and died on the 22d day of January, 1888, leaving no descendants or ascendants, but only
collateral relatives, of whom the plaintiffs in this case claim to be the nearest. They consequently
alleged that they should succeed to the estate of the said Rosario Darwin Araujo, and asked that
the property in herited by her from her mother be delivered to them as the heirs of the said
Rosario. The property in question, according to the complaint, is now held by the defendant, who
took possession of the same after the death of her son, Jose Araujo, the husband of the said
Rosario, her died a year after the death of his wife that is to say, in l889.
The defendant admits that the property in question belonged privately and exclusively to the
wife, Rosario Darwin, but claims that Rosario died leaving a will in which she bequeathed all of
her property to her husband, Jose Araujo, and that the latter having died without a will she, the
defendant, succeeded under the law to all of his property, rights, and actions, thereby lawfully
acquiring all the property that had formerly belonged to her daughter-in-law, Rosario.
The court below entered judgment in favor of the defendant. The plaintiffs excepted to the
judgment, made a motion for a new trial on the ground that the same was plainly and manifestly
against the weight of the evidence, and brought the case to this court by bill of exceptions.
As the court below properly found, the only important and decisive question in this case is
whether or not Rosario Darwin executed a legal and valid will in the form and manner alleged by

the defendant. If so the defendant's right to the property would be unquestionable. If not so the
contrary would necessarily be the result.
This point as to the will, however, was not as clearly established as it should have been. The
defendant introduced no will in evidence, offered secondary parol evidence as to its contents
under the claim that the original will had been lost. The court allowed this evidence over the
objection of the plaintiffs, and this is one of the errors assigned by them on this appeal. We are
of the opinion that the plaintiffs' objection to the admission of such evidence was well taken and
that it could therefore have been sustained.
The loss of the alleged original will has not been sufficiently established. The principal witness,
Calixto Delgado, who testified as to this point, stated that he had acted as procurador for the
defendant in this case about the year 1889 in action brought against her by one Jose Araujo in
the justice's court of Pototan involving the hacienda of Pangpang, and that as
such procurador or solicitor there came into his possession a copy of the will of Rosario Darwin,
duly recorded and probated, which was introduced in evidence in that action. He further
testified that he never saw the original of that will because the same was retained by the notary.
He was asked, "What was it that you saw?" He answered, "A copy of the original." He was also
asked whether it was a certified copy of the will or not, and instead of a direct answer he avoided
the question, saying; "After I had it in my possession for three days, I turned it over to my
attorney and he presented it to the court with a letter and a note attached." This answer, as will
be seen, is not responsible to the question, and leaves the point, a very important one, as to
whether the copy in question was a simple or certified copy, in doubt.
This was all the more important as the witness further testified that the will, a copy of which he
saw and had in his possession, was signed by two witnesses only. A will signed by two
witnesses only could not under any circumstances be valid under the law in force at the time
referred to by the witness, and legally speaking such will could not then have been probated or
recorded.
As to the loss or disappearance of the copy of the will above referred to, it is claimed that the
insurgents in 1899 burned all the by the papers and archives of the court of Pototan. There is
nothing to show that at the time these records were burned by the insurgents there existed in the
court-house of Pototan the copy of the will referred to. The witness who testified to such who
testified to such copy having been filed in that court refers to a time some ten years prior to the
fire that is to say, to the year 1889. This is not itself sufficient to show that the copy of the will
in question was burned at that time. Moreover, if that will was duly recorded as alleged, the
registry of the notary who authorized the same would show this. It is true that the same witness
testified that the notary record's were also kept at the court-house in the same place where the
court records were kept, and that all the papers therein were burned together with the notarial
records. This statement of the witness requires, we think, more conclusive evidence to support
it. The testimony of this witness in this respect is plainly and manifested contrary to what would
have ordinarily been the case in view of the provisions of article 60 of the provisional rules for
the organization and government of notaries public in the Philippines, approved by the royal
decree of the 11th of April, 1890, which provided that: "Notaries shall keep the protocols and
books in the same building where they live, in their custody, and shall be responsible
therefor." As provided in this section the records and books should have been kept by the notary
at his own house, where he lives, and not at the court building as testified to by the witness. The
testimony of Valentin Poral, another witness for the defendant, supports this view to a certain
extent. He testified that the records of the notary's office may have been at the notary's house.

As to the nature of the copy of the will in question and the alleged loss of the same, the
testimony of the witness Poral is no more conclusive than that of the other witness. We,
therefore, deem it unnecessary to refer to it, and what has been said before in regard thereto is
equally applicable to the testimony of this witness.
These were the only witnesses presented by the defendant upon this point. Their testimony is
absolutely insufficient to establish in a satisfactory manner the loss of the alleged will of Rosario
Darwin, and the court below should not have, therefore, allowed the secondary evidence
introduced by her as to the contents of the will, particularly in view of the fact that, as it appears
from the record, there had been pending since 1889 an action to declare this very will null and
void. The undue allowance of such evidence by the court was a violation of the provision of
section 321 of the Code of Civil Procedure.
We accordingly set aside the judgment appealed from, and it is ordered that the case be
remanded to the court below for a new trial without special condemnation as to the costs of both
instances. After the expiration of twenty days from the date hereof let judgment be entered in
accordance herewith and ten days thereafter the record in this case be remanded to the Court of
First Instance from whence it came for proper action. So ordered. Arellano, C.J.,concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-44276

November 25, 1936

In re will of the deceased JOSE B. SUNTAY. MARIA NATIVIDAD LIM BILLIAN, petitionerappellant,
vs.
APOLONIO SUNTAY, ANGEL SUNTAY, MANUEL SUNTAY, and JOSE SUNTAY, oppositorsappellees.
Eriberto de Silva for appellant.
Apolonio Suntay for appellees.

AVANCEA, C. J.:
On May 14, 1934, Jose B. Suntay died in the City of Amoy, China. He married twice, the first
time to Manuela T. Cruz with whom he had several children now residing in the Philippines, and
the second time to Maria Natividad Lim Billian with whom he had a son.
On the same date, May 14, 1934, Apolonio Suntay, eldest son of the deceased by his first
marriage, filed the latter's intestate in the Court of First Instance of Manila (civil case No. 4892).

On October 15, 1934, and in the same court, Maria Natividad Lim Billian also instituted the
present proceedings for the probate of a will allegedly left by the deceased.
According to the petitioner, before the deceased died in China he left with her a sealed envelope
(Exhibit A) containing his will and, also another document (Exhibit B of the petitioner) said to be
a true copy of the original contained in the envelope. The will in the envelope was executed in
the Philippines, with Messrs. Go Toh, Alberto Barretto and Manuel Lopez as attesting witnesses.
On August 25, 1934, Go Toh, as attorney-in-fact of the petitioner, arrived in the Philippines with
the will in the envelope and its copy Exhibit B. While Go Toh was showing this envelope to
Apolonio Suntay and Angel Suntay, children by first marriage of the deceased, they snatched
and opened it and, after getting its contents and throwing away the envelope, they fled.

The trial of this case was limited to the proof of loss of the will, and from what has taken place
we deduce that it was not petitioner's intention to raise, upon the evidence adduced by her, the
other points involved herein, namely, as we have heretofore indicated, whether Exhibit B is a
true copy of the will and whether the latter was executed with all the formalities required by law
for its probate. The testimony of Alberto Barretto bears importantly in this connection.
Wherefore, the loss of the will executed by the deceased having been sufficiently established, it
is ordered that this case be remanded to the court of origin for further proceedings in obedience
to this decision, without any pronouncement as to the costs. So ordered.
Villa-Real, Abad Santos, Imperial, Diaz, Laurel, and Concepcion, JJ., concur.

Upon these allegations, the petitioner asks in this case that the brothers Apolonio, Angel, Manuel
and Jose Suntay, children by the first marriage of the deceased, who allegedly have the
document contained in the envelope which is the will of the deceased, be ordered to present it in
court, that a day be set for the reception of evidence on the will, and that the petitioner be
appointed executrix pursuant to the designation made by the deceased in the will.
In answer to the court's order to present the alleged will, the brothers Apolonio. Angel, Manuel
and Jose Suntay, stated that they did not have the said will and denied having snatched it from
Go Toh.
In view of the allegations of the petition and the answer of the brothers Apolonio, Angel, Manuel
and Jose Suntay, the questions raised herein are: The loss of the alleged will of the deceased,
whether Exhibit B accompanying the petition is an authentic copy thereof, and whether it has
been executed with all the essential and necessary formalities required by law for its
probate.lawphi1.net
At the trial of the case on March 26, 1934, the petitioner put two witnesses upon the stand, Go
Toh and Tan Boon Chong, who corroborated the allegation that the brothers Apolonio and Angel
appropriated the envelope in the circumstances above-mentioned. The oppositors have not
adduced any evidence counter to the testimony of these two witnesses. The court, while making
no express finding on this fact, took it for granted in its decision; but it dismissed the petition
believing that the evidence is insufficient to establish that the envelope seized from Go Toh
contained the will of the deceased, and that the said will was executed with all the essential and
necessary formalities required by law for its probate.
In our opinion, the evidence is sufficient to establish the loss of the document contained in the
envelope. Oppositors' answer admits that, according to Barretto he prepared a will of the
deceased to which he later became a witness together with Go Toh and Manuel Lopez, and that
this will was placed in an envelope which was signed by the deceased and by the instrumental
witnesses. In court there was presented and attached to the case an open and empty envelope
signed by Jose B. Suntay, Alberto Barretto, Go Toh and Manuel Lopez. It is thus undeniable that
this envelope Exhibit A is the same one that contained the will executed by the deceased
drafted by Barretto and with the latter, Go Toh and Manuel Lopez as attesting witnesses. These
tokens sufficiently point to the loss of the will of the deceased., a circumstance justifying the
presentation of secondary evidence of its contents and of whether it was executed with all the
essential and necessary legal formalities.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-42226

July 26, 1935

In re estate of the deceased Ines Basa de Mercado.

JOAQUINA BASA, ET AL., petitioners-appellants,
vs.
ATILANO G. MERCADO, respondent-appellee.
Briones and Martinez for appellants.
Jose Gutierrez David for appellee.
GODDARD, J.:
By virtue of an order dated June 27, 1931, the Honorable Hermogenes Reyes, Judge of the
Court of First Instance of Pampanga, allowed and probated the last will and testament of Ines
Basa, deceased. On January 30, 1932, the same judge approved the account of the
administrator of the estate, declared him the only heir of the deceased under the will and closed

the administration proceedings. On April 11, 1934, the herein petitioners-appellants filed a
motion in which they prayed that said proceedings be reopened and alleged that the court
lacked jurisdiction to act in the matter because there was a failure to comply with requirements
as to the publication of the notice of hearing prescribed in the following section of the Code of
Civil Procedure:
SEC. 630. Court to appoint hearing on will. When a will is delivered to a court
having jurisdiction of the same, the court shall appoint a time and place when all
concerned may appear to contest the allowance of the will, and shall cause public
notice thereof to be given by publication in such newspaper or newspapers as the
court directs of general circulation in the province, three weeks successively, previous
to the time appointed, and no will shall be allowed until such notice has been given. At
the hearing all testimony shall be taken under oath, reduced to writing and signed by
the witnesses.

In view of the foregoing, it is held that the language used in section 630 of the Code of Civil
Procedure does not mean that the notice, referred to therein, should be published for three full
weeks before the date set for the hearing on the will. In other words the first publication of the
notice need not be made twenty-one days before the day appointed for the hearing.
The appellants also contend that the trial court erred in ruling that the weekly newspaper, Ing
Katipunan, in which the notice of hearing was published, was a newspaper of general circulation
in the Province of Pampanga.
The record shows that Ing Katipunan is a newspaper of general circulation in view of the fact
that it is published for the dissemination of local news and general information; that it has a bona
fide subscription list of paying subscribers; that it is published at regular intervals and that the
trial court ordered the publication to be made inIng Katipunan precisely because it was a
"newspaper of general circulation in the Province of Pampanga."

In this motion the appellants claim that the provisions of section 630 of the Code of Civil
Procedure have not been complied with in view of the fact that although the trial judge, on May
29, 1931, ordered the publication of the required notice for "three weeks successively" previous
to the time appointed for the hearing on the will, the first publication was on June 6, 1931, the
third on June 20, 1931, and the hearing took place on the 27th of that month, only twenty-one
days after the date of the first publication instead of three full weeks before the day set for the
hearing.

Furthermore no attempt has been made to prove that it was a newspaper devoted to the
interests or published for the entertainment of a particular class, profession, trade, calling, race
or religious denomination. The fact that there is another paper published in Pampanga that has a
few more subscribers (72 to be exact) and that certain Manila dailies also have a larger
circulation in that province is unimportant. The law does not require that publication of the notice,
referred to in the Code of Civil Procedure, should be made in the newspaper with the largest
numbers is necessary to constitute a newspaper of general circulation.

Section 630 of our Code of Civil Procedure is taken from the Code of Civil Procedure of the
State of Vermont. The Supreme Court of that State, commenting on the phrase "three weeks
successively", held:

The assignments of error of the appellants are overruled and the appealed order of the trial court
is affirmed with costs in this instance against the appellants.

The date of examining and allowing P.A. Barlett's final account of administration, and
for decreeing the residue of the estate to the lawful claimants of the same, was set by
the probate court for December 19, 1919, at the probate office in Brighton, and an
order was made to this effect on November 28, 1919. The order provided also that
notice should be given by publication for three weeks successively in the Essex
County Herald. In accordance with this order, the notice was published in the issues
for December 4, 11 and 18, respectively. This was "public notice" to all persons
interested of the time and place of examining and allowing said account and making
decree of distribution, and was sufficient under the provisions of G.L. 3276.
(Lenehen vs. Spaulding, 57 Vt., 115.) "The proceeding was according to law in all
respects, and being in the nature of a proceeding in rem, it binds everybody by its
legal effect." (Burbeck vs. Little, 50 Vt., 713.) At the time and place set for the hearing
none of the petitioners or other legatees under the will of Nickerson Warner appeared.
Thereupon the judge of probate then and there continued the hearing until April 6,
1920, at which time the final account of P.A .Barlett as administrator de bonis non with
will annexed was filed and, no one appearing to object, the same was allowed, and
the decree of distribution was entered. (In re Warner's Estate [Supreme Court of
Vermont] 1925; 127 Atl. Rep., 362, 364; 98 Vt., 254, 261.)
It will be noted that in the above cited case the last of the three publications was on December
18, 1919, and the hearing on the administrators's final account was set for December 19 of that
year, only fifteen days after the date of the first publication.

Malcolm, Villa-Real, Imperial, and Butte, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 77047 May 28, 1988
JOAQUINA R-INFANTE DE ARANZ, ANTONIO R-INFANTE, CARLOS R. INFANTE,
MERCEDES R-INFANTE DE LEDNICKY, ALFREDO R-INFANTE, TERESITA R-INFANTE,
RAMON R-INFANTE, FLORENCIA R-INFANTE DE DIAS, MARTIN R-INFANTE, JOSE RINFANTE LINK and JOAQUIN R-INFANTE CAMPBELL,petitioners,
vs.
THE HON. NICOLAS GALING, PRESIDING JUDGE, REGIONAL TRIAL COURT, NATIONAL

CAPITAL JUDICIAL REGION, BRANCH NO. 166, PASIG, METRO MANILA AND JOAQUIN RINFANTE, respondents.

Florencia R-Infante Roxas de Diaz residing at Calle Sancho Davila, 13-19D, Madrid, 28028 Spain;

Belo, Abiera and Associates for petitioners.

Martin R-Infante Roxas residing at #2 Bongavilla St., Cubao, Quezon City,

Metro Manila;

Miguel J. Lagman for respondents.

Jose R-Infante Link residing at 174R-Pascual St., San Juan, Metro Manila;
Joaquin R-Infante Campbell C/O Pilar Campbell, 15 Briones, Makati, Metro
Marta. 3

PADILLA, J.:
This is a petition for review on certiorari of the decision 1 of the Court of Appeals, dated 13
January 1987, in CA-G.R. SP No. 09622, entitled "Joaquina R-Infante de Aranz, et al.,
petitioners vs. Hon. Nicolas Galing, etc., et al., respondents," dismissing petitioners' petition for
certiorari and prohibition as-, sailing the orders 2 of the Regional Trial Court of Pasig, Branch
166, dated 12 May 1986 and 30 May 1986, respectively, in Sp. Proc. No. 9995, entitled, "In the
Matter of Petition for Approval of the Last Will and Testament of Montserrat R-Infante y G-Pola
Joaquin R. Infante, Petitioner."
On 3 March 1986, private respondent filed with the Regional Trial Court of Pasig, Branch 166, a
petition for the probate and allowance of the last will and testament of the late Montserrat RInfante y G-Pola The petition specified the names and ad- dresses of herein petitioners as
legatees and devisees, as follows:
Joaquina R-Infante Roxas de Aranz residing at No. 86 10th St., New Manila,
Quezon City, Metro Manila;
Antonio R-Infante Roxas residing at #91 Cambridge, North Forbes, Makati,
Metro Manila;
Carlos R-Infante Roxas residing at #46 Washington St., Greenhills, San
Juan, Metro Manila;
Mercedes R-Infante Roxas de Lednicky residing at #386 P. Guevarra St.,
San Juan, Metro Manila;
Alfredo R-Infante Roxas residing at #27 A Scout Tobias St., Quezon City,
Metro Manila;
Teresita R-Infante Roxas residing at #121 9th Street, New Manila, Quezon
City, Metro Manila;
Ramon R-Infante Roxas residing at #27 B Scout Tobias St., Quezon City,
Metro Manila;

On 12 March 1986, the probate court issued an order selling the petition for hearing on 5 May
1986 at 8:30 o'clock in the morning. Said order was published in the "Nueva Era" A newspaper
of general circulation in Metro Manila once a week for three (3) consecutive weeks. On the date
of the hearing, no oppositor appeared. The hearing was then reset to 12 May 1986, on which
date, the probate court issued the following order:
There being no opposition to this instant case, as prayed for, the oner toreceive Branch Clerk of Court is hereby designated Co evidence ex-parte of
the petitioner.
SO ORDERED. 4
On the same day (12 May 1986), private respondent presented his evidence ex-parte and
placed Arturo Arceo one of the testamentary witnesses, on the witness stand. During the
proceedings, private respondent was appointed executor.
On 14 May 1986, petitioners filed a motion for reconsideration of the order of 12 May 1986
alleging that, as named legatees, no notices were sent to them as required by Sec. 4, Rule 76 of
the Rules of Court and they prayed that they be given a period of ten (10) days within which to
file their opposition to the probate of the will.
On 30 May 1986, the probate court, acting on the opposition of private respondent and the reply
thereto of petitioners, issued an order denying petitioners motion for reconsideration.
Thereafter, petitioners filed with this Court a petition for certiorari and prohibition which was,
however, referred to the Court of Appeals. On 13 January 1987, the Court of Appeals
promulgated a decision dismissing the petition. 5Hence, the instant petition.
It is the view of petitioners that the Court of Appeals erred in holding that personal notice of
probate proceedings to the known legatees and devisees is not a jurisdictional requirement in
the probate of a will. Contrary to the holding of the Court of Appeals that the requirement of
notice on individual heirs, legatees and devisees is merely a matter of procedural convenience
to better satisfy in some instances the requirements of due process, petitioners allege that under
Sec. 4 of Rule 76 of the Rules of Court, said requirement of the law is mandatory and its
omission constitutes a reversible error for being constitutive of grave abuse of discretion. 6

We grant the petition:

interested parties residing in the Philippines (pp. 474, 476, 481, 503-4,
t.s.n., hearing of 24 February 1948). The proceedings had in the municipal
district court of Amoy, China, may be likened to a deposition or to a
perpetuation of testimony, and even if it were so it does not measure or
come up to the standard of such proceedings in the Philippines for lack of
notice to all interested parties and the proceedings were held at the back of
such interested parties.

Sec. 4, Rule 76 of the Rules of Cof reads:

SEC. 4. Heirs, devisees, legatees, and executors to be notified by mail or
personally. The court shag also cause copies of the notice of the time
and place fixed for proving the will to be addressed to the designated or
other known heirs, legatees, and devisees of the testator resident in the
Philippines at their places of residence, and deposited in the post office with
the postage thereon prepaid at least twenty (20) days before the hearing, if
such places of residence be known. A copy of the notice must in like manner
be mailed to the person named as executor, if he be not, the petitioner; also,
to any person named as co-executor not petitioning, if their places of
residence be known. Personal service of copies of the notice at least ten
(10) days before the day of hearing shall be equivalent to mailing.
It is clear from the aforecited rule that notice of the time and place of the hearing for the
allowance of a will shall be forwarded to the designated or other known heirs, legatees, and
devisees residing in the Philippines at their places of residence, if such places of residence be
known. There is no question that the residences of herein petitioners legatees and devisees
were known to the probate court. The petition for the allowance of the wig itself indicated the
names and addresses of the legatees and devisees of the testator. 7 But despite such
knowledge, the probate court did not cause copies of the notice to be sent to petitioners. The
requirement of the law for the allowance of the will was not satisfied by mere publication of the
notice of hearing for three (3) weeks in a newspaper of general circulation in the province.
The case of Joson vs. Nable 8 cited by the Court of Appeals in its assailed decision to support its
theory is not applicable in the present case. In that case, petitioners Purificacion Joson and
Erotica Joson failed to contest the will of Tomas Joson because they had not been notified of the
hearing of the petition for probate. he the petition included the residence of petitioners as
Dagupan Street No. 83, Manila, petitioners claimed that their residence was not Dagupan Street
No. 83, Manila. There the Court said:
Petitioners maintain that no notice was received by them partly because
their residence was not Dagupan Street No. 83 as alleged in the petition for
probate. If the allegation of the petition was wrong and the true residence of
petitioners was not known, then notice upon them individually was not
necessary. Under the provision abovequoted, individual notice upon heirs,
legatees and devisees is necessary only when they are known or when their
places of residence are known. In other instances, such notice is not
necessary and the court may acquire and exercise jurisdiction simply upon
the publication of the notice in a newspaper of general circulation. ... 9
In Re: Testate Estate of Suntay, 10 the Court, speaking thru Mr. Justice Sabino Padilla, said:
... It is a proceedings in rem and for the validity of such proceedings
personal notice or by publication or both to all interested parties must be
made. The interested parties in the case were known to reside in the
Philippines. The evidence shows that no such notice was received by the

xxx xxx xxx

... In view thereof, the will and the alleged probate thereof cannot be said to
have been done in accordance with the accepted basic and fundamental
concepts and principles followed in the probate and allowance of wills.
Consequently, the authenticated transcript of proceedings held in the
municipal district court of Amoy, China, cannot be deemed and accepted as
proceedings leading to the probate or allowance of a will and, therefore, the
will referred to therein cannot be allowed, filed and recorded by a competent
court of court. 11
WHEREFORE, the decision of the Court of Appeals dated 13 January 1987 is hereby
ANNULLED and SET ASIDE. The case is hereby ordered remanded to the Regional Trial Court
of Pasig for further proceedings in accordance with this decision. No costs.
SO ORDERED.
Yap (Chairman), Melencio-Herrera, Paras and Sarmiento, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-12767

November 16, 1918

In the matter of the estate of EMIL H. JOHNSON. EBBA INGEBORG JOHNSON, applicantappellant,
Hartigan & Welch for applicant and appellant.
Hartford Beaumont for Victor Johnson and others as appellees.
Chas. E. Tenney for Alejandra Ibaez de Johnson, personally and as guardian,
and for Simeona Ibaez, appellees.

STREET, J.:
On February 4, 1916, Emil H. Johnson, a native of Sweden and a naturalized citizen of the
United States, died in the city of Manila, leaving a will, dated September 9, 1915, by which he
disposed of an estate, the value of which, as estimated by him, was P231,800. This document is
an holographic instrument, being written in the testator's own handwriting, and is signed by
himself and two witnesses only, instead of three witnesses required by section 618 of the Code
of Civil Procedure. This will, therefore, was not executed in conformity with the provisions of law
generally applicable to wills executed by inhabitants of these Islands, and hence could not have
been proved under section 618.
On February 9, 1916, however, a petition was presented in the Court of First Instance of the city
of Manila for the probate of this will, on the ground that Johnson was at the time of his death a
citizen of the State of Illinois, United States of America; that the will was duly executed in
accordance with the laws of that State; and hence could properly be probated here pursuant to
section 636 of the Code of Civil Procedure. This section reads as follows:
Will made here by alien. A will made within the Philippine Islands by a citizen or
subject of another state or country, which is executed in accordance with the law of
the state or country of which he is a citizen or subject, and which might be proved and
allowed by the law of his own state or country, may be proved, allowed, and recorded
in the Philippine Islands, and shall have the same effect as if executed according to
the laws of these Islands.
The hearing on said application was set for March 6, 1916, and three weeks publication of notice
was ordered in the "Manila Daily Bulletin." Due publication was made pursuant to this order of
the court. On March 6, 1916, witnesses were examined relative to the execution of the will; and
upon March 16th thereafter the document was declared to be legal and was admitted to probate.

At the same time an order was made nominating Victor Johnson and John T. Pickett as
administrators of the estate, with the sill annexed. Shortly thereafter Pickett signified his desire
not to serve, and Victor Johnson was appointed sole administrator.
By the will in question the testator gives to his brother Victor one hundred shares of the
corporate stock in the Johnson-Pickett Rope Company; to his father and mother in Sweden, the
sum of P20,000; to his daughter Ebba Ingeborg, the sum of P5,000; to his wife, Alejandra
Ibaez, the sum of P75 per month, if she remains single; to Simeona Ibaez, spinster, P65 per
month, if she remains single. The rest of the property is left to the testator's five children
Mercedes, Encarnacion, Victor, Eleonor and Alberto.
The biographical facts relative to the deceased necessary to an understanding of the case are
these: Emil H. Johnson was born in Sweden, May 25, 1877, from which country he emigrated to
the United States and lived in Chicago, Illinois, from 1893 to 1898. On May 9, 1898, at Chicago,
he was married to Rosalie Ackeson, and immediately thereafter embarked for the Philippine
Islands as a soldier in the Army of the United States. As a result of relations between Johnson
and Rosalie Ackeson a daughter, named Ebba Ingeborg, was born a few months after their
marriage. This child was christened in Chicago by a pastor of the Swedish Lutheran Church
upon October 16, 1898.
After Johnson was discharged as a soldier from the service of the United States he continued to
live in the Philippine Islands, and on November 20, 1902, the wife, Rosalie Johnson, was
granted a decree of divorce from him in the Circuit Court of Cook County, Illinois, on the ground
of desertion. A little later Johnson appeared in the United States on a visit and on January 10,
1903, procured a certificate of naturalization at Chicago. From Chicago he appears to have gone
to Sweden, where a photograph, exhibited in evidence in this case, was taken in which he
appeared in a group with his father, mother, and the little daughter, Ebba Ingeborg, who was
then living with her grandparents in Sweden. When this visit was concluded, the deceased
returned to Manila, where he prospered in business and continued to live until his death.
In this city he appears to have entered into marital relations with Alejandra Ibaez, by whom he
had three children, to wit, Mercedes, baptized May 31, 1903; Encarnacion, baptized April 29,
1906; and Victor, baptized December 9, 1907. The other two children mentioned in the will were
borne to the deceased by Simeona Ibaez.
On June 12, 1916, or about three months after the will had been probated, the attorneys for
Ebba Ingeborg Johnson entered an appearance in her behalf and noted an exception to the
other admitting the will to probate. On October 31, 1916, the same attorneys moved the court to
vacate the order of March 16 and also various other orders in the case. On February 20, 1917,
this motion was denied, and from this action of the trial court the present appeal has been
perfected.
As will be discerned, the purpose of the proceeding on behalf of the petitioner is to annul the
decree of probate and put the estate into intestate administration, thus preparing the way for the
establishment of the claim of the petitioner as the sole legitimate heir of her father.
The grounds upon which the petitioner seeks to avoid the probate are four in number and may
be stated, in the same sequence in which they are set forth in the petition, as follows:

(1) Emil H. Johnson was a resident of the city of Manila and not a resident of the State of Illinois
at the time the will in question was executed;
(2) The will is invalid and inadequate to pass real and personal property in the State of Illinois;
(3) The order admitting the will to probate was made without notice to the petitioner; and
(4) The order in question was beyond the jurisdiction of the court.
It cannot of course be maintained that a court of first instance lacks essential jurisdiction over
the probate of wills. The fourth proposition above stated must, accordingly, be interpreted in
relation with the third and must be considered as a corollary deduced from the latter. Moreover,
both the third and fourth grounds stated take precedence, by reason of their more fundamental
implications, over the first two; and a logical exposition of the contentions of the petitioner is
expressed in the two following propositions:
(I) The order admitting the will to probate was beyond the jurisdiction of the court and
void because made without notice to the petitioner;
(II) The judgment from which the petitioner seeks relief should be set aside because
the testator was not a resident of the State of Illinois and the will was not in conformity
with the laws of that State.
In the discussion which is to follow we shall consider the problems arising in this cae in the order
last above indicated. Upon the question, then, of the jurisdiction of the court, it is apparent from
an inspection of the record of the proceedings in the court below that all the steps prescribed by
law as prerequisites to the probate of a will were complied with in every respect and that the
probate was effected in external conformity with all legal requirements. This much is
unquestioned. It is, however, pointed out in the argument submitted in behalf of the petitioner,
that, at the time the court made the order of publication, it was apprised of the fact that the
petitioner lived in the United States and that as daughter and heir she was necessarily interested
in the probate of the will. It is, therefore, insisted that the court should have appointed a date for
the probate of the will sufficiently far in the future to permit the petitioner to be present either in
person or by representation; and it is said that the failure of the court thus to postpone the
probate of the will constitutes an infringement of that provision of the Philippine Bill which
declared that property shall not be taken without due process of law.
On this point we are of the opinion that the proceedings for the probate of the will were regular
and that the publication was sufficient to give the court jurisdiction to entertain the proceeding
and to allow the will to be probated.
As was said in the case of In re Davis (136 Cal., 590, 596), "the proceeding as to the probate of
a will is essentially one in rem, and in the very nature of things the state is allowed a wide
latitude in determining the character of the constructive notice to be given to the world in a
proceeding where it has absolute possession of the res. It would be an exceptional case where
a court would declare a statute void, as depriving a party of his property without due process of
law, the proceeding being strictly in rem, and the res within the state, upon the ground that the
constructive notice prescribed by the statute was unreasonably short."

In that case the petitioner had been domiciled in the Hawaiian Islands at the time of the
testator's death; and it was impossible, in view of the distance and means of communication
then existing, for the petitioner to appear and oppose the probate on the day set for the hearing
in California. It was nevertheless held that publication in the manner prescribed by statute
constituted due process of law. (See Estate of Davis, 151 Cal., 318; Tracy vs.Muir, 151 Cal.,
363.)
In the Davis case (136 Cal., 590) the court commented upon the fact that, under the laws of
California, the petitioner had a full year within which she might have instituted a proceeding to
contest the will; and this was stated as one of the reasons for holding that publication in the
manner provided by statute was sufficient. The same circumstance was commented upon in
O'Callaghan vs. O'Brien (199 U. S., 89), decided in the Supreme Court of the United States. This
case arose under the laws of the State of Washington, and it was alleged that a will had been
there probated without the notice of application for probate having been given as required by
law. It was insisted that this was an infringement of the Fourteenth Amendment of the
Constitution of the United States. This contention was, however, rejected and it was held that the
statutory right to contest the will within a year was a complete refutation of the argument
founded on the idea of a violation of the due process provision.
The laws of these Islands, in contrast with the laws in force in perhaps all of the States of the
American Union, contain no special provision, other than that allowing an appeal in the probate
proceedings, under which relief of any sort can be obtained from an order of a court of first
instance improperly allowing or disallowing a will. We do, however, have a provision of a general
nature authorizing a court under certain circumstances to set aside any judgment, order, or other
proceeding whatever. This provision is found in section 113 of the Code of Civil Procedure,
which reads as follows:
Upon such terms as may be just the court may relieve a party or his legal
representative from a judgment, order or other proceeding taken against him through
his mistake, inadvertence, surprise or excusable neglect; Provided, That application
therefor be made within a reasonable time, but in no case exceeding six months after
such judgment, order, or proceeding was taken.
The use of the word "judgment, order or other proceeding" in this section indicates an intention
on the part of the Legislature to give a wide latitude to the remedy here provided, and in our
opinion its operation is not to be restricted to judgments or orders entered in ordinary
contentious litigation where a plaintiff impleads a defendant and brings him into court by
personal service of process. In other words the utility of the provision is not limited to actions
proper but extends to all sorts of judicial proceedings.
In the second section of the Code of Civil Procedure it is declared that the provisions of this
Code shall be liberally construed to promote its object and to assist the parties in obtaining
speedy justice. We think that the intention thus exhibited should be applied in the interpretation
of section 113; and we hold that the word "party," used in this section, means any person having
an interest in the subject matter of the proceeding who is in a position to be concluded by the
judgment, order, to other proceeding taken.
The petitioner, therefore, in this case could have applied, under the section cited, at any time
within six months for March 16, 1916, and upon showing that she had been precluded from

appearing in the probate proceedings by conditions over which she had no control and that the
order admitting the will to probate had been erroneously entered upon insufficient proof or upon
a supposed state of facts contrary to the truth, the court would have been authorized to set the
probate aside and grant a rehearing. It is no doubt true that six months was, under the
circumstances, a very short period of time within which to expect the petitioner to appear and be
prepared to contest the probate with the proof which she might have desired to collect from
remote countries. Nevertheless, although the time allowed for the making of such application
was inconveniently short, the remedy existed; and the possibility of its use is proved in this case
by the circumstance that on June 12, 1916, she in fact here appeared in court by her attorneys
and excepted to the order admitting the will to probate.

proceeding on the other ground stated in the petition, namely, that the testator was not a
resident of the State of Illinois and that the will was not made in conformity with the laws of that
State.
The order of the Court of First Instance admitting the will to probate recites, among other things:
That upon the date when the will in question was executed Emil H. Johnson was a
citizen of the United States, naturalized in the State of Illinois, County of Cook, and
that the will in question was executed in conformity with the dispositions of the law f
the State of Illinois.

It results that, in conformity with the doctrine announced in the Davis case, above cited, the
proceedings in the court below were conducted in such manner as to constitute due process of
law. The law supplied a remedy by which the petitioner might have gotten a hearing and have
obtained relief from the order by which she is supposed to have been injured; and though the
period within which the application should have been made was short, the remedy was both
possible and practicable.

We consider this equivalent to a finding that upon the date of the execution of the will the
testator was a citizen of the State of Illinois and that the will was executed in conformity with the
laws of that State. Upon the last point the finding is express; and in our opinion the statement
that the testator was a citizen of the United States, naturalized in the State of Illinois, should be
taken to imply that he was a citizen of the State of Illinois, as well as of the United States.

From what has been said it follows that the order of March 16, 1916, admitting the will of Emil H.
Johnson to probate cannot be declared null and void merely because the petitioner was
unavoidably prevented from appearing at the original hearing upon the matter of the probate of
the will in question. Whether the result would have been the same if our system of procedure
had contained no such provision as that expressed in section 113 is a matter which we need not
here consider.

The naturalization laws of the United States require, as a condition precedent to the granting of
the certificate of naturalization, that the applicant should have resided at least five years in the
United States and for one year within the State or territory where the court granting the
naturalization papers is held; and in the absence of clear proof to the contrary it should be
presumed that a person naturalized in a court of a certain State thereby becomes a citizen of
that State as well as of the United States.

Intimately connected with the question of the jurisdiction of the court, is another matter which
may be properly discussed at this juncture. This relates to the interpretation to be placed upon
section 636 of the Code of Civil Procedure. The position is taken by the appellant that this
section is applicable only to wills of liens; and in this connection attention is directed to the fact
that the epigraph of this section speaks only of the will made here by an alien and to the further
fact that the word "state" in the body of the section is not capitalized. From this it is argued that
section 636 is not applicable to the will of a citizen of the United States residing in these
Islands.lawphil.net

In this connection it should be remembered that the Fourteenth Amendment to the Constitution
of the United States declares, in its opening words, that all persons naturalized in the United
States, and subject to the jurisdiction thereof, are citizens of the United States and of the State
wherein they reside.

We consider these suggestions of little weight and are of the opinion that, by the most
reasonable interpretation of the language used in the statute, the words "another state or
country" include the United States and the States of the American Union, and that the operation
of the statute is not limited to wills of aliens. It is a rule of hermeneutics that punctuation and
capitalization are aids of low degree in interpreting the language of a statute and can never
control against the intelligible meaning of the written words. Furthermore, the epigraph, or
heading,, of a section, being nothing more than a convenient index to the contents of the
provision, cannot have the effect of limiting the operative words contained in the body of the text.
It results that if Emil H. Johnson was at the time of his death a citizen of the United States and of
the State of Illinois, his will was provable under this section in the courts of the Philippine
Islands, provided the instrument was so executed as to be admissible to probate under the laws
of the State of Illinois.
We are thus brought to consider the second principal proposition stated at the outset of this
discussion, which raises the question whether the order f probate can be set aside in this

It is noteworthy that the petition by which it is sought to annul the probate of this will does not
assert that the testator was not a citizen of Illinois at the date when the will was executed. The
most that is said on this point is he was "never a resident of the State of Illinois after the year
1898, but became and was a resident of the city of Manila," etc. But residence in the Philippine
Islands is compatible with citizenship in Illinois; and it must be considered that the allegations of
the petition on this point are, considered in their bearing as an attempt to refute citizenship in
Illinois, wholly insufficient.
As the Court of First Instance found that the testator was a citizen of the State of Illinois and that
the will was executed in conformity with the laws of that State, the will was necessarily and
properly admitted to probate. And how is it possible to evade the effect of these findings?
In Section 625 of the Code of Civil Procedure it is declared that "the allowance by the court of a
will of real or personal property shall be conclusive as to its due execution."
The due execution of a will involves conditions relating to a number of matters, such as the age
and mental capacity of the testator, the signing of the document by the testator, or by someone
in his behalf, and the acknowledgment of the instrument by him in the presence of the required
number of witnesses who affix their signatures to the will to attest the act. The proof of all these

requisites is involved in the probate; and as to each and all of them the probate is conclusive.
(Castaeda vs. Alemany, 3 Phil. Rep., 426; Pimentel vs. Palanca, 5 Phil. Rep., 436; Chiong JocSoy vs. Vao, 8 Phil. Rep., 119; Sanchez vs. Pascual, 11 Phil. Rep., 395; Montaano vs. Suesa,
14 Phil. Rep., 676.)
Our reported cases do not contain the slightest intimation that a will which has been probated
according to law, and without fraud, can be annulled, in any other proceeding whatever, on
account of any supposed irregularity or defect in the execution of the will or on account of any
error in the action of the court upon the proof adduced before it. This court has never been
called upon to decide whether, in case the probate of a will should be procured by fraud, relief
could be granted in some other proceeding; and no such question is now presented. But it is
readily seen that if fraud were alleged, this would introduce an entirely different factor in the cae.
In Austruavs. Ventenilla (21 Phil. Rep., 180, 184), it was suggested but not decided that relief
might be granted in case the probate of a will were procured by fraud.
The circumstance that the judgment of the trial court recites that the will was executed in
conformity with the law of Illinois and also, in effect, that the testator was a citizen of that State
places the judgment upon an unassailable basis so far as any supposed error apparent upon the
fact of the judgment is concerned. It is, however, probable that even if the judgment had not
contained these recitals, there would have been a presumption from the admission of the will to
probate as the will of a citizen of Illinois that the facts were as recited in the order of probate.
As was said by this court in the case of Banco Espaol-Filipino vs. Palanca (37 Phil. Rep., 921),
"There is no principle of law better settled than that after jurisdiction has once been acquired,
every act of a court of general jurisdiction shall be presumed to have been rightly done. This rule
is applied to every judgment or decree rendered in the various stages of the proceedings from
their initiation to their completion (Voorhees vs. United States Bank, 10 Pet., 314; 35 U. S., 449);
and if the record is silent with respect to any fact which must have established before the court
could have rightly acted, it will be presumed that such fact was properly brought to its
knowledge."
The Court of First Instance is a court of original and general jurisdiction; and there is no
difference in its faculties in this respect whether exercised in matters of probate or exerted in
ordinary contentious litigation. The trial court therefore necessarily had the power to determine
the facts upon which the propriety of admitting the will to probate depended; and the recital of
those facts in the judgment was probably not essential to its validity. No express ruling is,
however, necessary on this point.
What has been said effectually disposes of the petition considered in its aspect as an attack
upon the order of probate for error apparent on the face of the record. But the petitioner seeks to
have the judgment reviewed, it being asserted that the findings of the trial court especially on
the question of the citizenship of the testator are not supported by the evidence. It needs but
a moment's reflection, however, to show that in such a proceeding as this it is not possible to
reverse the original order on the ground that the findings of the trial court are unsupported by the
proof adduced before that court. The only proceeding in which a review of the evidence can be
secured is by appeal, and the case is not before us upon appeal from the original order
admitting the will to probate. The present proceedings by petition to set aside the order of
probate, and the appeal herein is from the order denying this relief. It is obvious that on appeal
from an order refusing to vacate a judgment it is not possible to review the evidence upon which

the original judgment was based. To permit this would operate unduly to protract the right of
appeal.
However, for the purpose of arriving at a just conception of the case from the point of view of the
petitioner, we propose to examine the evidence submitted upon the original hearing, in
connection with the allegations of the petition, in order to see, first, whether the evidence
submitted to the trial court was sufficient to justify its findings, and, secondly, whether the petition
contains any matter which would justify the court in setting the judgment, aside. In this
connection we shall for a moment ignore the circumstance that the petition was filed after the
expiration of the six months allowed by section 113 of the Code of Civil Procedure.
The principal controversy is over the citizenship of the testator. The evidence adduced upon this
point in the trial court consists of the certificate of naturalization granted upon January 10, 1903,
in the Circuit Court of Cook County, Illinois, in connection with certain biographical facts
contained in the oral evidence. The certificate of naturalization supplies incontrovertible proof
that upon the date stated the testator became a citizen of the United States, and inferentially
also a citizen of said State. In the testimony submitted to the trial court it appears that, when
Johnson first came to the United States as a boy, he took up his abode in the State of Illinois and
there remained until he came as a soldier in the United States Army to the Philippine Islands.
Although he remained in these Islands for sometime after receiving his discharge, no evidence
was adduced showing that at the time he returned to the United States, in the autumn of 1902,
he had then abandoned Illinois as the State of his permanent domicile, and on the contrary the
certificate of naturalization itself recites that at that time he claimed to be a resident of Illinois.
Now, if upon January 10, 1903, the testator became a citizen of the United States and of the
State of Illinois, how has he lost the character of citizen with respect to either of these
jurisdictions? There is no law in force by virtue of which any person of foreign nativity can
become a naturalized citizen of the Philippine Islands; and it was, therefore, impossible for the
testator, even if he had so desired, to expatriate himself from the United States and change his
political status from a citizen of the United States to a citizen of these Islands. This being true, it
is to be presumed that he retained his citizenship in the State of Illinois along with his status as a
citizen of the United States. It would be novel doctrine to Americans living in the Philippine
Islands to be told that by living here they lose their citizenship in the State of their naturalization
or nativity.
We are not unmindful of the fact that when a citizen of one State leaves it and takes up his
abode in another State with no intention of returning, he immediately acquires citizenship in the
State of his new domicile. This is in accordance with that provision of the Fourteenth
Amendment to the Constitution of the United States which says that every citizen of the United
States is a citizen of the State where in he resides. The effect of this provision necessarily is that
a person transferring his domicile from one State to another loses his citizenship in the State of
his original above upon acquiring citizenship in the State of his new abode. The acquisition of
the new State citizenship extinguishes the old. That situation, in our opinion, has no analogy to
that which arises when a citizen of an American State comes to reside in the Philippine Islands.
Here he cannot acquire a new citizenship; nor by the mere change of domicile does he lose that
which he brought with him.
The proof adduced before the trial court must therefore be taken as showing that, at the time the
will was executed, the testator was, as stated in the order of probate, a citizen of the State of

Illinois. This, in connection with the circumstance that the petition does not even so much as
deny such citizenship but only asserts that the testator was a resident of the Philippine Islands,
demonstrates the impossibility of setting the probate aside for lack of the necessary citizenship
on the part of the testator. As already observed, the allegation of the petition on this point is
wholly insufficient to justify any relief whatever.
Upon the other point as to whether the will was executed in conformity with the statutes of the
State of Illinois we note that it does not affirmatively appear from the transaction of the
testimony adduced in the trial court that any witness was examined with reference to the law of
Illinois on the subject of the execution of will. The trial judge no doubt was satisfied that the will
was properly executed by examining section 1874 of the Revised Statutes of Illinois, as
exhibited in volume 3 of Starr & Curtis's Annotated Illinois Statutes, 2nd ed., p. 426; and he may
have assumed that he could take judicial notice of the laws of Illinois under section 275 of the
Code of Civil Procedure. If so, he was in our opinion mistaken. that section authorizes the courts
here to take judicial notice, among other things, of the acts of the legislative department of the
United States. These words clearly have reference to Acts of the Congress of the United States;
and we would hesitate to hold that our courts can, under this provision, take judicial notice of the
multifarious laws of the various American States. Nor do we think that any such authority can be
derived from the broader language, used in the same action, where it is said that our courts may
take judicial notice of matters of public knowledge "similar" to those therein enumerated. The
proper rule we think is to require proof of the statutes of the States of the American Union
whenever their provisions are determinative of the issues in any action litigated in the Philippine
courts.
Nevertheless, even supposing that the trial court may have erred in taking judicial notice of the
law of Illinois on the point in question, such error is not now available to the petitioner, first,
because the petition does not state any fact from which it would appear that the law of Illinois is
different from what the court found, and, secondly, because the assignment of error and
argument for the appellant in this court raises no question based on such supposed error.
Though the trial court may have acted upon pure conjecture as to the law prevailing in the State
of Illinois, its judgment could not be set aside, even upon application made within six months
under section 113 of the Code of Civil procedure, unless it should be made to appear
affirmatively that the conjecture was wrong. The petitioner, it is true, states in general terms that
the will in question is invalid and inadequate to pass real and personal property in the State of
Illinois, but this is merely a conclusion of law. The affidavits by which the petition is accompanied
contain no reference to the subject, and we are cited to no authority in the appellant's brief which
might tent to raise a doubt as to the correctness of the conclusion of the trial court. It is very
clear, therefore, that this point cannot be urged as of serious moment.
But it is insisted in the brief for the appellant that the will in question was not properly admissible
to probate because it contains provisions which cannot be given effect consistently with the laws
of the Philippine Islands; and it is suggested that as the petitioner is a legitimate heir of the
testator she cannot be deprived of the legitime to which she is entitled under the law governing
testamentary successions in these Islands. Upon this point it is sufficient to say that the probate
of the will does not affect the intrinsic validity of its provisions, the decree of probate being
conclusive only as regards the due execution of the will. (Code of Civil Procedure, secs. 625,
614; Sahagun vs. De Gorostiza, 7 Phil. Rep., 347, 349; Chiong Joc-Soy vs. Vao, 8 Phil. Rep.,
119, 121; Limjuco vs.Ganara, 11 Phil. Rep., 393, 395.)

If, therefore, upon the distribution of this estate, it should appear that any legacy given by the will
or other disposition made therein is contrary to the law applicable in such case, the will must
necessarily yield upon that point and the law must prevail. Nevertheless, it should not be
forgotten that the intrinsic validity of the provisions of this will must be determined by the law of
Illinois and not, as the appellant apparently assumes, by the general provisions here applicable
in such matters; for in the second paragraph of article 10 of the Civil Code it is declared that
"legal and testamentary successions, with regard to the order of succession, as well as to the
amount of the successional rights and to the intrinsic validity of their provisions, shall be
regulated by the laws of the nation of the person whose succession is in question, whatever may
be the nature of the property and the country where it may be situate."
From what has been said, it is, we think, manifest that the petition submitted to the court below
on October 31, 1916, was entirely insufficient to warrant the setting aside of the other probating
the will in question, whether said petition be considered as an attack on the validity of the decree
for error apparent, or whether it be considered as an application for a rehearing based upon the
new evidence submitted in the affidavits which accompany the petition. And in this latter aspect
the petition is subject to the further fatal defect that it was not presented within the time allowed
by law.
It follows that the trial court committed no error in denying the relief sought. The order appealed
from is accordingly affirmed with costs. So ordered.
Torres, Johnson, Malcolm, Avancea and Fisher, JJ., concur.

EN BANC

G.R. No. L-26743 May 31, 1972

IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF CIPRIANO ABUT,
deceased. GENEROSO ABUT, petitioner, GAVINA ABUT, petitioner-appellant,
vs.
FELIPE ABUT, PRESENTACION DE RODRIGUEZ and ABSOLUTO ABUT, oppositorsappellees.
Felipe N. Montesa for petitioner-appellant.
Homobono A. Adaza for oppositors-appellees.

MAKALINTAL, J.:p
This is an appeal from an order dated July 2, 1966 of the Court of First Instance of Misamis
Oriental (Br. IV) in its Sp. Proc. No. 911. The said order states:
Gavina Abut, through counsel, seeks the admission of the amended petition
in which she substitutes for the original petitioner, Generoso Abut, who died
after his original petition was filed, published and the Court had taken
jurisdiction thereof. In the original petition the deceased Generoso Abut
appears to have been named executor of the will of the deceased Cipriano
Abut; that he was in possession and custody of the latter's will; and that he
sought to be named executor of the will of the deceased Cipriano Abut. In
the amended petition Gavina Abut alleges that the will was delivered to her
by Generoso Abut before his death and that it is now in her custody and
possession, and she prays that she be appointed administratrix of the
estate of the deceased Cipriano Abut.
Considering the foregoing amendments embodied in the amended petition,
and the fact that publication of the petition is a jurisdictional matter intended
to inform whomsoever may be interested in said petition and to afford him or
her an opportunity to assert his or her rights, the Court believes that the
original petition should be, as it is hereby dismissed, without prejudice to the
filing of another petition pursuant to the requirements of the Rules of Court.

Republic of the Philippines

SUPREME COURT
Manila

The decisive facts are largely matters of record. On August 4, 1965 Generoso Abut, one of the
children of the deceased Cipriano Abut by his second marriage and the person named as
executor in a will allegedly executed by the said deceased, filed a petition before the court a
quo praying that after due notice and hearing the said will be approved and allowed and that
letters testamentary issue in his favor. In an amended order dated September 1, 1965 the

court a quo motu proprio set the petition for hearing and further directed compliance with
Sections 3 and 4 of Rule 76 of the Rules of Court. 1 These procedural steps admittedly took
place.
Opposition to the petition was filed by the children of Cipriano Abut by his first marriage, namely,
Felipe Abut, Presentacion de Rodriguez and Absoluto Abut, now appellees here.
During the pendency of the case below but before the court a quo could even start the formal
hearing of the petition, which had been delayed by several postponements, Generoso Abut, the
original petitioner who initiated the probate proceeding, died on January 10, 1966. This
eventuality prompted Gavina Abut, a sister of Generoso Abut and an heir and devisee under the
will of the testator Cipriano Abut, to ask the court a quo to substitute her in lieu of Generoso Abut
and to admit an amended petition wherein she prayed that the probate of the will be allowed and
that letters of administration with the will annexed be issued in her favor. For reasons stated in
its order of July 2, 1966, hereinabove quoted, the court a quo dismissed the petition originally
brought by the deceased Generoso Abut, "without prejudice to the filing of another petition
pursuant to the requirements of the Rules of Court."
The issue is whether or not the probate court correctly dismissed the petition simply because the
original petitioner who was the executor named in the will sought to be probated died
before the petition could be heard and/or terminated. Stated otherwise, after the court had
acquired jurisdiction over the case involving probate of the will, did the demise of the original
petitioner during the pendency of the proceeding divest the court of such jurisdiction and
preclude the continuation of the case on the theory that the amended petition filed by herein
petitioner, who admittedly was a person having an interest in the estate, seeking to substitute
her in place of the original petitioner, but with a similar prayer for the allowance of the same will,
required a new publication in order to invest the court with jurisdiction.
We find the dismissal of the original petition for probate and the refusal of the probate court to
admit the amended petition without a new publication thereof to be untenable. The jurisdiction of
the court became vested upon the filing of the original petition and upon compliance with
Sections 3 and 4 of Rule 76. 2
A proceeding for the probate of a will is one in rem, such that with the corresponding publication
of the petition the court's jurisdiction extends to all persons interested in said will or in the
settlement of the estate of the deceased. The fact that the amended petition named additional
heirs not included in the original petition 3 did not require that notice of the amended petition be
published anew. All that Section 4 of Rule 76 provides is that those heirs be notified of the
hearing for the probate of the will, either by mail or personally. In the case of Perez vs.
Perez 4 this Court explained:
Thus it appears that such "no notice" argument has no legal foundation. At
any rate the omission, if any, did not affect the jurisdiction of the court; it
constituted a mere procedural error that may or may not be the basis of
reversal (Jocson vs. Nable, 48 O.G. 90). Indeed, this Tribunal has ruled that
the court acquires jurisdiction over all persons interested in the estate
through the publication of the petition in the newspapers (In re Estate of
Johnson, 39 Phil. 159; Jocson vs. Nable, supra) which in this case
admittedly took place.

Service of notice on individual heirs or legatees or devisees is a matter of

procedural convenience, not jurisdictional requisite. So much so that even if
the names of some legatees or heirs had been omitted from the petition for
allowance of the will and therefore were not advised the decree
allowing the will does not ipso facto become void for want of jurisdiction ...
Jurisdiction of the court once acquired continues until the termination of the case, 5 and remains
unaffected by subsequent events. The court below erred in holding that it was divested of
jurisdiction just because the original petitioner died before the petition could be formally heard.
Parties who could have come in and opposed the original petition, as herein appellees did, could
still come in and oppose the amended petition, having already been notified of the pendency of
the proceeding by the publication of the notice thereof.
The admission of the amended petition, of course, does not mean that Gavina Abut's prayer that
she be appointed administratrix with the will annexed is necessarily meritorious. It simply
recognizes that since the lower court has acquired jurisdiction over the res, such jurisdiction
continues until the termination of the case. The first question that the lower court should hear
and decide is the probate of the will; and the question of whether or not Gavina Abut should be
appointed administratrix must be decided on the basis of the facts to be presented and after the
will is proved and allowed, as provided in Section 6 of Rule 78.
WHEREFORE, the order dated July 2, 1966 is set aside and the case is remanded below, with
direction for the lower court to admit the amended petition and thereafter proceed accordingly.
Costs against oppositors-appellees.
Reyes, J.B.L., Zaldivar, Fernando, Teehankee, Barredo, Makasiar and Antonio, JJ., concur.
Castro, J., did not take part.
Concepcion, C.J., is on leave.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-58509 December 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.
Luciano A. Joson for petitioner-appellant.
Cesar Paralejo for oppositor-appellee.

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

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 well-settled
jurisprudence.

(4 ) The deceased did not leave any will, holographic or otherwise, executed
and attested as required by law.

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:

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.

I. THE LOWER COURT ERRED IN HOLDING THAT A LOST

HOLOGRAPHIC WILL MAY NOT BE PROVED BY A COPY THEREOF;

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:

II. THE LOWER COURT ERRED IN HOLDING THAT THE DECEDENT

HAS DISCARDED BEFORE HIS DEATH THE MISSING HOLOGRAPHIC
WILL;

(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

III. THE LOWER COURT ERRED IN DISMISSING APPELLANT'S WILL.

(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.

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.
Teehankee, Actg. C.J., Melencio-Herrera, Plana, Vasquez and Gutierrez, Jr., JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-12190

August 30, 1958

TESTATE ESTATE OF FELICIDAD ESGUERRA ALTO-YAP deceased. FAUSTO E.

GAN, petitioner-appellant,
vs.
ILDEFONSO YAP, oppositor-appellee.
Benedicto C. Belran, Crispin D. Baizas and Roberto H. Benitez for appellant.
Arturo M. Tolentino for appellee.
BENGZON, J.:
On November 20, 1951, Felicidad Esguerra Alto Yap died of heart failure in the University of
Santo Tomas Hospital, leaving properties in Pulilan, Bulacan, and in the City of Manila.
On March 17, 1952, Fausto E. Gan initiated them proceedings in the Manila court of first
instance with a petition for the probate of a holographic will allegedly executed by the deceased,
substantially in these words:

Nobyembre 5, 1951.

Ako, si Felicidad E. Alto-Yap, may asawa, at ganap na pag-iisip, ay nagsasalaysay na

ang aking kayamanan sa bayan ng Pulilan, Bulacan ay aking ipinamamana sa aking
mga kamag-anakang sumusunod:

Vicente Esguerra, Sr. .............................................

5 Bahagi

Fausto E. Gan .........................................................

2 Bahagi

Rosario E. Gan .........................................................

2 Bahagi

Filomena Alto ..........................................................

1 Bahagi

Beatriz Alto ..............................................................

1 Bahagi

At ang aking lahat ng ibang kayamanan sa Maynila at iba panglugar ay aking

ipinamamana sa aking asawang si Idelfonso D. Yap sa kondisyong siya'y
magpapagawa ng isang Health Center na nagkakahalaga ng di kukulangin sa
halagang P60,000.00 sa bayan ng Pulilan, Bulacan, na nakaukit ang aking pangalang
Felicidad Esguerra-Alto. At kung ito ay may kakulangan man ay bahala na ang aking
asawa ang magpuno upang matupad ang aking kagustuhan.

(Lagda) Felicidad E. Alto-Yap.

Opposing the petition, her surviving husband Ildefonso Yap asserted that the deceased had not
left any will, nor executed any testament during her lifetime.
After hearing the parties and considering their evidence, the Hon. Ramon R. San Jose,
Judge,1 refused to probate the alleged will. A seventy-page motion for reconsideration failed.
Hence this appeal.
The will itself was not presented. Petitioner tried to establish its contents and due execution by
the statements in open court of Felina Esguerra, Primitivo Reyes, Socorro Olarte and Rosario
Gan Jimenez, whose testimonies may be summarized as follows:
Sometime in 1950 after her last trip abroad, Felicidad Esguerra mentioned to her first cousin,
Vicente Esguerra, her desire to make a will. She confided however that it would be useless if her
husband discovered or knew about it. Vicente consulted with Fausto E. Gan, nephew of

Felicidad, who was then preparing for the bar examinations. The latter replied it could be done
without any witness, provided the document was entirely in her handwriting, signed and dated by
her. Vicente Esguerra lost no time in transmitting the information, and on the strength of it, in the
morning of November 5, 1951, in her residence at Juan Luna Street, Manila, Felicidad wrote,
signed and dated a holographic will substantially of the tenor above transcribed, in the presence
of her niece, Felina Esguerra (daughter of Vicente), who was invited to read it. In the afternoon
of that day, Felicidad was visited by a distant relative, Primitivo Reyes, and she allowed him to
read the will in the presence of Felina Esguerra, who again read it.
Nine days later, he had other visitors: Socorro Olarte a cousin, and Rosario Gan Jimenez, a
niece. To these she showed the will, again in the presence of Felina Esguerra, who read it for
the third time.
When on November 19, 1951, Felicidad was confined at the U.S.T. Hospital for her last illness,
she entrusted the said will, which was contained in a purse, to Felina Esguerra. But a few hours
later, Ildefonso Yap, her husband, asked Felina for the purse: and being afraid of him by reason
of his well-known violent temper, she delivered it to him. Thereafter, in the same day, Ildefonso
Yap returned the purse to Felina, only to demand it the next day shortly before the death of
Felicidad. Again, Felina handed it to him but not before she had taken the purse to the toilet,
opened it and read the will for the last time.2
From the oppositor's proof it appears that Felicidad Esguerra had been suffering from heart
disease for several years before her death; that she had been treated by prominent physicians,
Dr. Agerico Sison, Dr. Agustin Liboro and others; that in May 1950 husband and wife journeyed
to the United States wherein for several weeks she was treated for the disease; that thereafter
she felt well and after visiting interesting places, the couple returned to this country in August
1950. However, her ailment recurred, she suffered several attacks, the most serious of which
happened in the early morning of the first Monday of November 1951 (Nov. 5). The whole
household was surprised and alarmed, even the teachers of the Harvardian Colleges occupying
the lower floors and of by the Yap spouses. Physician's help was hurriedly called, and Dr.
Tanjuaquio arrived at about 8:00 a.m., found the patient hardly breathing, lying in bed, her head
held high by her husband. Injections and oxygen were administered. Following the doctor's
advice the patient stayed in bed, and did nothing the whole day, her husband and her personal
attendant, Mrs. Bantique, constantly at her side. These two persons swore that Mrs. Felicidad
Esguerra Yap made no will, and could have made no will on that day.
The trial judge refused to credit the petitioner's evidence for several reasons, the most important
of which were these: (a) if according to his evidence, the decedent wanted to keep her will a
secret, so that her husband would not know it, it is strange she executed it in the presence of
Felina Esguerra, knowing as she did that witnesses were unnecessary; (b) in the absence of a
showing that Felina was a confidant of the decedent it is hard to believe that the latter would
have allowed the former to see and read the will several times; (c) it is improbable that the
decedent would have permitted Primitivo Reyes, Rosario Gan Jimenez and Socorro Olarte to
read her will, when she precisely wanted its contents to remain a secret during her lifetime; (d) it
is also improbable that her purpose being to conceal the will from her husband she would carry it
around, even to the hospital, in her purse which could for one reason or another be opened by
her husband; (e) if it is true that the husband demanded the purse from Felina in the U.S.T.
Hospital and that the will was there, it is hard to believe that he returned it without destroying the
will, the theory of the petitioner being precisely that the will was executed behind his back for
fear he will destroy it.
In the face of these improbabilities, the trial judge had to accept the oppositor's evidence that
Felicidad did not and could not have executed such holographic will.

In this appeal, the major portion of appellant's brief discussed the testimony of the oppositor and
of his witnesses in a vigorous effort to discredit them. It appears that the same arguments, or
most of them, were presented in the motion to reconsider; but they failed to induce the court a
quo to change its mind. The oppositor's brief, on the other hand, aptly answers the criticisms.
We deem it unnecessary to go over the same matters, because in our opinion the case should
be decided not on the weakness of the opposition but on the strength of the evidence of the
petitioner, who has the burden of proof.
The Spanish Civil Code permitted the execution of holographic wills along with other forms. The
Code of Civil Procedure (Act 190) approved August 7, 1901, adopted only one form, thereby
repealing the other forms, including holographic wills.
The New Civil Code effective in 1950 revived holographic wills in its arts. 810-814. "A person
may execute a holographic will which must be entirely written, dated, and signed by the hand of
the testator himself. It is subject to no other form and may be made in or out of the Philippines,
and need not be witnessed."
This is indeed a radical departure from the form and solemnities provided for wills under Act 190,
which for fifty years (from 1901 to 1950) required wills to be subscribed by the testator and three
credible witnesses in eachand every page; such witnesses to attest to the number of sheets
used and to the fact that the testator signed in their presence and that they signed in the
presence of the testator and of each other.
The object of such requirements it has been said, is to close the door against bad faith and
fraud, to prevent substitution of wills, to guarantee their truth and authencity
(Abangan vs. Abangan, 40 Phil., 476) and to avoid those who have no right to succeed the
testator would succeed him and be benefited with the probate of same. (Mendoza vs. Pilapil, 40
Off. Gaz., 1855). However, formal imperfections may be brushed aside when authenticity of the
instrument is duly proved. (Rodriguez vs Yap, 40 Off. Gaz. 1st Supp. No. 3 p. 194.)
Authenticity and due execution is the dominant requirements to be fulfilled when such will is
submitted to the courts for allowance. For that purpose the testimony of one of the subscribing
witnesses would be sufficient if there is no opposition (Sec. 5, Rule 77). If there is, the three
must testify, if available. (Cabang vs. Delfinado, 34 Phil., 291; Tolentino vs. Francisco, 57 Phil.,
742). From the testimony of such witnesses (and of other additional witnesses) the court may
form its opinion as to the genuineness and authenticity of the testament, and the circumstances
its due execution.
Now, in the matter of holographic wills, no such guaranties of truth and veracity are demanded,
since as stated, they need no witnesses; provided however, that they are "entirely written, dated,
and signed by the hand of the testator himself." The law, it is reasonable to suppose,
regards the document itself as material proof of authenticity, and as its own safeguard, since it
could at any time, be demonstrated to be or not to be in the hands of the testator himself.
"In the probate of a holographic will" says the New Civil Code, "it shall be necessary that at least
one witness who knows the handwriting and signature of the testator explicitly declare that the
will and the signature are in the handwriting of the testator. If the will is contested, at least three
such witnesses shall be required. In the absence of any such witnesses, (familiar with
decedent's handwriting) and if the court deem it necessary, expert testimony may be resorted
to."
The witnesses so presented do not need to have seen the execution of the holographic will.
They may be mistaken in their opinion of the handwriting, or they may deliberately lie in affirming
it is in the testator's hand. However, the oppositor may present other witnesses who also know
the testator's handwriting, or some expert witnesses, who after comparing the will with other
writings or letters of the deceased, have come to the conclusion that such will has not been

written by the hand of the deceased. (Sec. 50, Rule 123). And the court, in view of such
contradictory testimony may use its own visual sense, and decide in the face of the document,
whether the will submitted to it has indeed been written by the testator.
Obviously, when the will itself is not submitted, these means of opposition, and of assessing the
evidence are not available. And then the only guaranty of authenticity3 the testator's
handwriting has disappeared.
Therefore, the question presents itself, may a holographic will be probated upon the testimony of
witnesses who have allegedly seen it and who declare that it was in the handwriting of the
testator? How can the oppositor prove that such document was not in the testator's handwriting?
His witnesses who know testator's handwriting have not examined it. His experts can not testify,
because there is no way to compare the alleged testament with other documents admittedly, or
proven to be, in the testator's hand. The oppositor will, therefore, be caught between the upper
millstone of his lack of knowledge of the will or the form thereof, and the nether millstone of his
inability to prove its falsity. Again the proponent's witnesses may be honest and truthful; but they
may have been shown a faked document, and having no interest to check the authenticity
thereof have taken no pains to examine and compare. Or they may be perjurers boldly testifying,
in the knowledge that none could convict them of perjury, because no one could prove that they
have not "been shown" a document which they believed was in the handwriting of the deceased.
Of course, the competency of such perjured witnesses to testify as to the handwriting could be
tested by exhibiting to them other writings sufficiently similar to those written by the deceased;
but what witness or lawyer would not foresee such a move and prepare for it? His knowledge of
the handwriting established, the witness (or witnesses) could simply stick to his statement: he
has seen and read a document which he believed was in the deceased's handwriting. And the
court and the oppositor would practically be at the mercy of such witness (or witnesses) not only
as to the execution, but also as to the contentsof the will. Does the law permit such a situation?
The Rules of Court, (Rule 77) approved in 1940 allow proof (and probate) of a lost or destroyed
will by secondary evidence the testimony of witnesses, in lieu of the original document. Yet
such Rules could not have contemplated holographic wills which could not then be validly made
here. (See also Sec. 46, Rule 123; Art. 830-New Civil Code.)
Could Rule 77 be extended, by analogy, to holographic wills?
Spanish commentators agree that one of the greatest objections to the holographic will is that it
may be lost or stolen4 an implied admission that such loss or theft renders it useless..
This must be so, because the Civil Code requires it to be protocoled and presented to the judge,
(Art. 689) who shall subscribe it and require its identity to be established by the three witnesses
who depose that they have no reasonable doubt that the will was written by the testator (Art.
691). And if the judge considers that the identity of the will has been proven he shall order that it
be filed (Art. 693). All these, imply presentation of the will itself. Art. 692 bears the same
implication, to a greater degree. It requires that the surviving spouse and the legitimate
ascendants and descendants be summoned so that they may make "any statement they may
desire to submit with respect to the authenticity of the will." As it is universally admitted that the
holographic will is usually done by the testator and by himself alone, to prevent others from
knowing either its execution or its contents, the above article 692 could not have the idea of
simply permitting such relatives to state whether they know of the will, but whether in the face of
the document itself they think the testator wrote it. Obviously, this they can't do unless the will
itself is presented to the Court and to them.
Undoubtedly, the intention of the law is to give the near relatives the choice of either complying
with the will if they think it authentic, or to oppose it, if they think it spurious. 5 Such purpose is
frustrated when the document is not presented for their examination. If it be argued that such

choice is not essential, because anyway the relatives may oppose, the answer is that their
opposition will be at a distinct disadvantage, and they have the right and privilege to comply with
the will, if genuine, a right which they should not be denied by withholding inspection thereof
from them.
We find confirmation of these ideas--about exhibition of the document itself--in the decision of
the Supreme Court of Spain of June 5, 1925, which denied protocolization or probate to a
document containing testamentary dispositions in the handwriting of the deceased, but
apparently mutilated, the signature and some words having been torn from it. Even in the face of
allegations and testimonial evidence (which was controverted), ascribing the mutilation to the
opponents of the will. The aforesaid tribunal declared that, in accordance with the provision of
the Civil Code (Spanish) the will itself, whole and unmutilated, must be presented; otherwise, it
shall produce no effect.
Considerando que sentado lo anterior, y estableciendose en el parrafo segundo del
articulo 688 del Codigo civil, que para que sea valido el testamento olografo debera
estar escrito todo el y firmado por testador, con expression del ao, mes y dia en que
se otorque, resulta evidente que para la validez y eficacia de esos testamentos, no
basta la demostracion mas o menos cumplida de que cuando seotorgaron se Ilenaron
todos esos requisitos, sino que de la expresada redaccion el precepto legal, y por el
tiempo en que el verbo se emplea, se desprende la necesidad de que el documento
se encuentre en dichas condiciones en el momento de ser presentado a la Autoridad
competente, para au adveracion y protocolizacion; y como consecuencia ineludible de
ello, forzoso es affirmar que el de autos carece de validez y aficacia, por no
estarfirmado por el testador, cualquiera que sea la causa de la falta de firma, y sin
perjuicio de las acciones que puedan ejercitar los perjudicados, bien para pedir
indemnizacion por el perjuicio a la persona culpable, si la hubiere, o su castigo en via
criminal si procediere, por constituir dicha omision un defecto insubsanable . . . .
This holding aligns with the ideas on holographic wills in the Fuero Juzgo, admittedly the basis
of the Spanish Civil Code provisions on the matter.6
PRECEDENTES LEGALES--Fuero Juzgo, libro segundo, titulo V, ley 15--E depues
que los herederos e sus fijos ovieren esta manda, fasta ... annos muestrenla al obispo
de la tierra, o al juez fasta VI meses y el obispo o el juez tomen otros tales tres
escritos, que fuesen fechos por su mano daquel que fizo la manda; e por aquellos
escriptos, si semjara la letra de la manda, sea confirmada la manda. E depues que
todo esto fuere connoscido, el obispo o el juez, o otras testimonios confirmen el
escripto de la manda otra vez, y en esta manera vala la manda. (Art. 689, Scaevola-Codigo Civil.)
(According to the Fuero above, the will itself must be compared with specimens of the testators
handwriting.)
All of which can only mean: the courts will not distribute the property of the deceased in
accordance with his holographic will, unless they are shown his handwriting and signature. 7
Parenthetically, it may be added that even the French Civil Law considers the loss of the
holographic will to be fatal. (Planiol y Ripert, Derecho Civil Frances, traduccion por Diaz Cruz,
1946, Tomo V, page 555).
Taking all the above circumstances together, we reach the conclusion 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.8

Under the provisions of Art. 838 of the New Civil Code, we are empowered to adopt this opinion
as a Rule of Court for the allowance of such holographic wills. We hesitate, however, to make
this Rule decisive of this controversy, simultaneously with its promulgation. Anyway, decision of
the appeal may rest on the sufficiency, rather the insufficiency, of the evidence presented by
petitioner Fausto E. Gan.
At this point, before proceeding further, it might be convenient to explain why, unlike holographic
wills, ordinary wills may be proved by testimonial evidence when lost or destroyed. The
difference lies in the nature of the wills. In the first, the only guarantee of authenticity is the
handwriting itself; in the second, the testimony of the subscribing or instrumental witnesses (and
of the notary, now). The loss of the holographic will entails the loss of the only medium of proof;
if the ordinary will is lost, the subscribing witnesses are available to authenticate.
In the case of ordinary wills, it is quite hard to convince three witnesses (four with the notary)
deliberately to lie. And then their lies could be checked and exposed, their whereabouts and acts
on the particular day, the likelihood that they would be called by the testator, their intimacy with
the testator, etc. And if they were intimates or trusted friends of the testator they are not likely to
end themselves to any fraudulent scheme to distort his wishes. Last but not least, they can not
receive anything on account of the will.
Whereas in the case of holographic wills, if oral testimony were admissible 9 only one man could
engineer the fraud this way: after making a clever or passable imitation of the handwriting and
signature of the deceased, he may contrive to let three honest and credible witnesses see and
read the forgery; and the latter, having no interest, could easily fall for it, and in court they would
in all good faith affirm its genuineness and authenticity. The will having been lost the forger
may have purposely destroyed it in an "accident" the oppositors have no way to expose the
trick and the error, because the document itself is not at hand. And considering that the
holographic will may consist of two or three pages, and only one of them need be signed, the
substitution of the unsigned pages, which may be the most important ones, may go undetected.
If testimonial evidence of holographic wills be permitted, one more objectionable feature
feasibility of forgery would be added to the several objections to this kind of wills listed by
Castan, Sanchez Roman and Valverde and other well-known Spanish Commentators and
teachers of Civil Law.10
One more fundamental difference: in the case of a lost will, the three subscribing witnesses
would be testifying to a fact which they saw, namely the act of the testator of subscribing the will;
whereas in the case of a lost holographic will, the witnesses would testify as to their opinion of
the handwriting which they allegedly saw, an opinion which can not be tested in court, nor
directly contradicted by the oppositors, because the handwriting itself is not at hand.
Turning now to the evidence presented by the petitioner, we find ourselves sharing the trial
judge's disbelief. In addition to the dubious circumstances described in the appealed decision,
we find it hard to believe that the deceased should show her will precisely to relatives who had
received nothing from it: Socorro Olarte and Primitivo Reyes. These could pester her into
amending her will to give them a share, or threaten to reveal its execution to her husband
Ildefonso Yap. And this leads to another point: if she wanted so much to conceal the will from her
husband, why did she not entrust it to her beneficiaries? Opportunity to do so was not lacking:
for instance, her husband's trip to Davao, a few days after the alleged execution of the will.
In fine, even if oral testimony were admissible to establish and probate a lost holographic will,
we think the evidence submitted by herein petitioner is so tainted with improbabilities and
inconsistencies that it fails to measure up to that "clear and distinct" proof required by Rule 77,
sec. 6.11

Wherefore, the rejection of the alleged will must be sustained.

Judgment affirmed, with costs against petitioner.
Paras, C. J., Padilla, Montemayor, Reyes, A., Bautista Angelo, Concepcion, Reyes, J. B. L.,
Endencia and Felix, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
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.

Nicanor Tavora for appellant.

Jose Rivera for appellees.

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.

JOHNSON, J.:

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.

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

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.
Street, Malcolm, Villamor, Ostrand, Romualdez and Villa-Real, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

3. That the aforementioned opponents are the nearest surviving relatives of the said
Salome Avila and are her heirs at law and are entitled to succeed to the estate left by
her.

Estate of the deceased Salome Avila.

VICENTE ALDANESE, petitioner-appellant,
vs.
CANUTO SALUTILLO, ET AL., objectors-appellees.

4. That said opponents oppose the probate of the document purporting to be the last
will and testament of the said Salome Avila on the following grounds:

G.R. No. L-23061

March 6, 1925

M.H. de Joya and Juan L. Orbeta for appellant.

Ybaes, Desquitado and Delgado; Jakosalem, Gullas, Briones and Cabahug; McVean and
Vickers and Thomas G. Ingalls for appellees.
OSTRAND, J.:
This is an appeal from an order of the Court of First Instance of Cebu denying the probate of a
document alleged to be the last will and testament of the deceased Salome Avila.

(a) That said will was not executed and attested as by law provided:
(b) That the testatrix was mentally incapable of the execution of such an
instrument at the time of its execution.
(c) That it was procured by undue and improper pressure and influence, on
the part of the beneficiaries, or some other person for their benefit.
(d) That it was procured through fraud and deception.
Wherefore, the opponents pray that said will be disallowed.

It appears from the record that the deceased, a widow and a resident of the municipality of
Silbonga, Province of Cebu, died on May 4, 1924, in the municipality of San Juan del Monte,
Province of Rizal. The will is dated May 3, 1924, appears to be executed in due form and is
witnessed by R.M. de Moreta, Jose U. Borromeo and Estanislao Rafols, all residents of the City
of Manila. The deceased left no ascendants or descendants and under the dispositions of the
will the greater part of the estate will go to the petitioner Vicente Aldanese and his sister
Enriqueta.
The petition for the probate of the will was presented to the Court of First Instance of Cebu on
May 22, 1924, and was by order of the court set down for hearing on June 21, 1924. After due
publication of the order Canuto, Teodora, Feliciano and Raymundo Salutillo and Valeria Llanos
appeared as opponents on June 11, 1924, and asked that the hearing of the case be continued
until July 14, 1924. In the meantime on June 13, 1924, the petitioner presented a motion asking
the court to authorize the taking of the depositions of the witnesses to the will on the ground that
being residents of the City of Manila said witnesses were unable to appear personally before the
Court of First Instance of Cebu. In an order of the same date Auxiliary Judge Recto granted the
motion and at the same time continued the hearing of the petition for the probate of the will until
July 14, 1924. On the same day upon which the petitioner presented his motion for authorization
to take the depositions aforementioned, the opponents filed the following amended opposition:
Come now the opponents, Canuto Salutillo, Teodora Salutillo, Feliciano Salutillo,
Raymundo Salutillo and Valeriana Llanos, by the undersigned attorneys and
respectfully show to the Court the following:
1. That Salome Avila died in the municipality of San Juan del Monte, Province of Rizal,
in the Philippine Islands, on or about May 4, 1924.
2. That the said Salome Avila left no ascendants or descendants.

Cebu, Cebu, June 14, 1924.

JAKOSALEM, GULLAS, BRIONES &
CABAHUG, ROQUE DESQUITADO Y
JOSE DELGADO, and MCVEAN and VICKERS
By (Fdo.) J.C. VICKERS
Attorneys for the opponents
On June 19, 1924, the opponents presented a motion asking that the order authorizing the
taking of the depositions be revoked. The court, Judge Wislizenus presiding, granted the motion
and on July 11, 1924, revoked the order in question on the ground that it had not been
sufficiently shown that it was impossible for the witnesses to appear personally before the court
and that therefore their depositions would be inadmissible in evidence. The notification of this
order was not received by the attorney for the petitioner until July 18, 1924.
By agreement between the parties the hearing of the petition for probate of the will was further
continued until August 22, 1924. In the meantime on July 1, 1924, the attorney for the petitioner
notified the attorneys for the opponents that the depositions of the witnesses would be taken on
July 14, 1924, at nine o'clock before the notary public Jose Batungbacal at his office in room 215
of the Roxas Building, Manila. This notification was received by the attorneys for the opponents
on the fifth day of the same month. The depositions of all three witnesses were taken at the time
and place stated in the notification, the opponents failing to appear.
The petition for probate was finally heard on August 22, 1924. The depositions were duly
presented but were ruled out by the court on the ground stated in its order of July 11th and there
being no other sufficient evidence of the execution of the will, the petition was denied and this
appeal brought.

In our opinion the court below erred in holding that the depositions in question were inadmissible
in evidence in the probate proceedings. It is true that the rule prevailing in this jurisdiction is that
when a will is contested the attesting witnesses must be called to prove the will or a showing
must be made that they cannot be had, but that does not necessarily mean that they must be
brought bodily before the court. It is their testimony which is needed and not their actual
personal presence in the court room. As far as we can see, there is nothing in the leading
case, Cabang vs. Delfinado (34 Phil., 291), cited by the appellees, to justify a different
conclusion; in that case no effect was made to produce the testimony of the two subscribing
witnesses though their abode was known to the proponent of the will.
The Code of Civil Procedure seems very clear upon the subject. its section 274 provides that
"the rules of evidence shall be the same in all courts of the Islands, and upon every trial, unless
otherwise expressly provided by statute."
Section 355 reads in part as follows:
The testimony of a witness in the Philippine Islands may be taken by deposition, in an
action, any time after the service of the summons or the appearance of the defendant,
and, in a special proceeding, after the question of fact has arisen therein, in the
following cases:
xxx

xxx

xxx

2. When the witness resides out of the province in which his testimony is to be used.

called to testify and produced before an officer legally authorized to take their testimony in the
form of depositions. The notice required by section 361, supra, was duly given and the
opponents given the opportunity to be present and to cross-examine the witnesses. In the
circumstances, this must certainly be considered a sufficient "calling" of the witnesses and
satisfies the law.
The depositions in question appear to be in due form and would ordinarily be admissible, but the
record indicates that the failure of the opponents to be presented at the examination of the
witnesses was due to the fact that they were misled by the petitioner's action in seeking special
authorization from the court for the taking of the depositions. In the interest of justice we
therefore think that the depositions should be retaken and the opponents given another
opportunity to examine the witnesses.
In the second assignment of error the appellant maintains that the court below erred in excluding
the testimony of the photographer Luis G. Calderon in regard to the identity of a photographic
copy of the will, which copy had been used in connection with the taking of the aforementioned
depositions. It is well settled that when depositions of subscribing witnesses to a will are taken, a
photographic copy of the will, which copy had been used in connection with the settled that
when depositions of subscribing witnesses to a will are taken, a photographic copy of the will
may be presented to the witnesses on their examination and that they may be asked the same
original will. It follows that if the depositions are admitted the testimony as to the identity of the
photographic copy shown to the witnesses is also admissible.
The order appealed from is reversed and the case remanded to the court below for further
proceedings in accordance with the indications hereinbefore given. No costs will be allowed in
this instance. So ordered.

Section 361 reads:

Johnson, Malcolm, Villamor, Johns, and Romualdez, JJ., concur.
Either party may have the deposition taken of a witness in the Philippine Islands, in
either of the cases mentioned in section three hundred and fifty-five, before any judge,
justices of the peace, or notary public, on serving on the adverse party previous notice
of the time and place of examination, together with a copy of an affidavit showing that
the case is within section three hundred and fifty-five. Such notice must be served at
least two days before the time is fixed for taking the deposition, and must in all cases
give the party reasonable time after notice to be presented at the taking thereof, and
without a notice of such reasonable length of time the deposition shall not be
admissible in evidence. The court shall determine, if the deposition is offered in
evidence, whether a reasonable notice of taking has been given.
Section 406 of the same Code reads:
A witness is not obliged to attend as a witness in a civil action before any court, judge,
justice, or other officer out of the province in which he resides, unless the distance be
less than thirty miles from his place of residence to the place of trial by the usual
course of travel, but his testimony may be taken in such case in the form of a
deposition.
In the present case, the will was presented for probate in Cebu; the attesting witnesses were
living in Manila and were beyond the process of the court for compulsory attendance. They were

appears in the record why these witnesses were not present and no question was raised either
in the court below or in this court with reference to the consideration by the trial court to the
testimony taken upon the first hearing. So it must be presumed that the petitioner did not desire
to present these two witnesses and that she had no objection to the consideration of the
testimony already taken.
We will now set forth briefly all the material testimony presented in this case.
Dorotea Cabang, widow of the testator, testified that her deceased husband, Celestino
Delfinado, could neither read nor write. The other witnesses testified in substance as follows:
Antonio Flor Mata, justice of the peace of Tayug:
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-8954

March 21, 1916

DOROTEA CABANG, petitioner-appellees,

vs.
MARTIN DELFINADO, respondent-appellant.
M. Legazpi Florendo for appellant.
Leon W. Denison, for appellee.
TRENT, J.:
This is an appeal from a judgment of the Court of First Instance of the Province of Pangasinan,
probating a document purporting to be the last will and testament of the deceased Celestino
Delfinado.
The petition setting forth the necessary facts was filed on the 15th of September, 1911. On the
25th of October of that year Martin Delfinado appeared, through his attorney, and filed an
opposition to the allowance of the will, alleging that the will was not signed by the deceased, nor
by any other person, in his presence and by his express direction, and that the attestation does
not comply with law. After publication, the case was set for hearing at 8 a. m. on November 18,
1911. On the last named date the case proceeded to trial, the petitioner presenting as witnesses
the widow Dorotea Cabang, Antonio Flor Mata, and Paciano Romero, the latter being one of the
subscribing witnesses. The opposition called only one witness, Martin Delfinado. On the 27th of
November, 1911, the petitioner presented a motion asking that the case be reopened for the
purpose of receiving the testimony of the other two subscribing witnesses, who were then living
in Manila and Nueva Ecija. Opposition to this motion was filed on December 1, 1911. On the
13th of May, 1912, the petitioner filed another motion, setting forth that due publication for the
legalization of the will had not been made. As a result of this last motion, the court, by an order
dated the 29th of December, 1912, directed a republication, setting the date for the hearing on
the 7th of January, 1913, and the judgment appealed from was entered on the 25th of that
month. The record fails to show a single act on the part of anyone which took place on the date
of the last hearing. The decision of the court is based exclusively upon the testimony taken on
the 18th of November, 1911. The petitioner had from the 29th of November, 1912, the date of the
order directing a republication and new hearing, until January 7, 1913, the date fixed for the new
hearing, within which to present the two absent subscribing witnesses. No reason whatever

The deceased Celestino Delfinado requested me to write a will for him. I complied with
his request by dictating the will to a clerk, who wrote it out. The will was then copied
on a typewriter from the draft which I dictated, and then read to the testator and
interpreted to him in his own dialect. When thus interpreted, the testator stated that it
was the same he had dictated to me. Then the typewritten will was presented to him
for signature, and he stated that he could not sign it because he did not know how to
read or write. He then requested Patricio de Guzman to write his name. De Guzman
complied with this request and the testator then put his cross on the will in the
presence of the witnesses. All three of the witnesses were present when the testator
signed the will and were also present when each of them signed it as a witness. I have
known the testator since 1890. I have never heard him read or seen him write. If he
could have done either, I certainly would have known it because I was municipal
secretary of the town and the electors had to take the oath before me. The testator, in
taking the oath, never signed his name, stating that he could not do so. He always
made his mark. The testator dictated the will to me word by word and I translated it
into Spanish to the best of my knowledge and ability. The testator made the cross with
his own hand. The fact that he requested one of those present to write his name to the
will does appear in the will, but the name of the person requested is not given herein. I
know from hearsay and from the testator's own statement that he was a councilman at
one time during the Spanish regime. Yes, I was present and saw all three of the
witnesses sign the will. I also saw the testator sign the will with his cross. All three of
the witnesses were present when the testator thus signed, and the witnesses signed
in the presence of each other. The clerk wrote the testator's name in his presence and
in the presence of the three witnesses. There was no undue influence brought to bear
upon the testator. He dictated and signed the will voluntarily. I know all three of the
witnesses and each is of age. This Exhibit A is the will which was executed in the
manner above stated. The testator was in his right mind at the time he executed his
will.
Paciano Romero, 27 years of age, clerk by profession:
I have seen this will before. I know the names signed there. One of them is my own. I
know why the names of the three subscribing witnesses and the name of the testator
appear on the will. A person came to call me at the instance of the testator. I went to
his house. Upon arrival I found the other parties there and the testator asked me to
write his will. Mr. Antonio Flor Mata dictated to me in Spanish what the testator told
him in Ilocano. After the draft was written and copied on the typewriter, it was again
interpreted to the testator by Mata, and after such interpretation, which took place in
the presence of witnesses, the testator stated that he could not read or write and
requested a certain person to sign his name to the will. That person wrote the
testator's name, after which the testator put his cross there and I then signed the will
with the two other witnesses. All of this was in the presence of all of us. The testator

executed his will and was in his right mind at the time. Patricio de Guzman is the
person who wrote the testator's name on the will. The other two subscribing witnesses
are living, one in Manila and the other in Nueva Ecija. Yes, sir, I heard the testator
request Patricio de Guzman to sign his name to the will and this was done in the
presence of the testator and in the presence of the other witnesses.
Martin Delfinado, a contestant:
I am a son by the first marriage of the testator. I do not know whether my father made
a will or not. This is the first time I have ever seen Exhibit A. My father could read,
write, and sign his name. I know his signature.
The following agreement appears in the record:
At this juncture, it was admitted by the counsel for both sides that the document,
which is marked 'Contestant's Exhibit No. 1,' and which is now offered in evidence,
was signed by the deceased Celestino Delfinado.
Exhibit No. 1 was admitted without objection. The last clause in the will reads:
In testimony whereof I place a cross between my name and surname as I am unable
to sign. Tayug, this 31st day of August, 1909.

CELESTINO (X) DELFINADO.

Signed in the presence of:

A. ABAYA,
PABLO DEL ROSARIO,
PACIANO ROMERO
The principal question raised by this appeal is whether the court erred in admitting the will to
probate without having two of the subscribing witnesses called, although they were living within
the jurisdiction of the court, or for not requiring any showing why they were not produced.
The Code of Civil Procedure provides that no will shall be valid to pass any estate, real or
personal, unless it be in writing and signed by the testator or by the testator's name and attested
and subscribed by three or more credible witnesses (sec. 618). Any person of sound mind and
of the age of eighteen or more, and not blind, deaf, or dumb, and able to read and write, may be
a witness to the execution of a will (sec. 620). If the witnesses attesting the will are competent at
the time of attesting, their becoming subsequently incompetent shall not prevent the allowance
of the will (sec. 621). If a will be attested by only three witnesses, to one of whom or to whose
wife or husband, or parent, or child, a beneficial devise, legacy, or interest is given by such will,
the devise or legacy is void (sec. 622). If no person appears to contest the allowance of a will at
the times appointed, the court may grant allowance thereof on the testimony of one of the
subscribing witnesses only (sec. 631). The will may be allowed, notwithstanding the fact that one
or more of the subscribing witnesses do not remember the fact of having attested it, provided the
court is satisfied that the will was duly executed and attested (sec. 632). If none of the

subscribing witnesses reside in the Philippine Islands at the time of the death of the testator, the
court may admit the testimony of other witnesses to prove the sanity of the testator and the due
execution of the will, although the subscribing witnesses are living. In case one or more of the
subscribing witnesses has deceased, the sanity of the testator and the due execution of the will
may also be proven in the manner herein provided (sec. 633).
It will be seen by comparison that the provisions above mentioned have been taken substantially
from similar provisions in the law of the State of Vermont. The requisites set out in section 618
are the same as those in section 2349 of the Vermont Statutes of 1894. The same provision as
that made in section 621 for subsequent incompetency of the subscribing witnesses occurs in
section 2352 of the same compilation of the Laws of Vermont. Section 622, making a legacy to a
subscribing witness void is almost word for word the same as section 2353 of the Vermont
Statutes. There is not practical difference between section 631, providing proof by one witness in
non-contested cases, and section 2362 of the Vermont Statutes. Section 633 differs only in
adding death to the common provision in section 2363 of the Vermont Statutes excusing the
calling of attesting witnesses and admitting proof of their handwriting, if none live within the
jurisdiction of the court.
Our code provides, as we have indicated, that non-contested may be admitted to probate upon
the testimony of one of the subscribing witnesses, but is silent as to the manner in which they
shall be proved when contested. Provisions are also made for supplying the testimony of the
three subscribing witnesses when they cannot be called. The provisions of the Vermont Statutes
are essentially the same. We therefore, call to our aid the decisions of the supreme court of that
State and the law upon which those decisions rest in determining the intention of the Philippine
Legislature in enacting the provisions of Act No. 190, above referred to.
The ancient common law rule concerning the proof of instruments having attesting witnesses
was that the instrument must be proved by those witnesses. Later common law courts changed
the rule so that one attesting witness was sufficient to prove the proper execution of the
instrument. This applied to wills only as they were used in evidence in a suit other than the
probate of the will. The chancery courts uniformly maintained the rule that all the subscribing
witnesses required by the law for the valid execution of a will, must be called and examined on
probate or a showing made that they were not required under the exceptions allowed. The
exceptions were that the witnesses were dead, beyond the jurisdiction of the court or insane.
(Wigmore on Evidence, vol. 2, secs. 1287 to 1319.)
This rule of the chancery courts has been adopted ad the common law in several of the States.
In Alabama in 1839 there was no statute in reference to the proof of wills. The court adopted in
that year the chancery rule and in the opinion deciding Bowling vs. Bowling (8 Ala., 538) is
shown the derivation of the rule.
In England, the statute of 29 Charles II, is substantially the same as ours, and there it
has always been held, that one witness who could swear to the execution of the will by
the testator, and that he subscribed the will, and also proved its attestation by the
other subscribing witnesses, is sufficient proof of the due execution of the will, in a
court of common law. (Longford vs. Eyre, 1 P. Will., 741; see the authorities collected
in 3 C. & H. of Phil. on Ev., 1349.) The same rule obtains in chancery, where the direct
object of the bill, is not to establish the will, but it is offered as an instrument of
evidence. (Concannon vs. Cruise, 2 Molloy, 332.) When however the bill is filed for
probate of the will, or when an issue is directed out of chancery, to ascertain whether
the will was duly executed, all the witnesses, if alive and within the jurisdiction of the
court, must be produced, or their absence accounted for. If the witness is dead, out of
the kingdom, insane, or has become incompetent to testify, his handwriting may be
proved. (See Powell vs. Cleaver, 2 Bro. C. C., 504; Carrington vs. Payne, 5 Vessey,
411; Burnett vs. Taylor, 9 Id., 381.)

Some States did not adopt this rule. In some of these States proof by all the attesting witnesses
is required by legislative provision. New York, Illinois, and California have such statutes. These
are exceptional. The great body of States have not passed any direct Act requiring wills to be
proved b the subscribing witnesses. The provisions generally provide when the proponent is
excused from calling the attesting witnesses. Usually they are the same as the excuses allowed
by the common law as stated in Bowling vs. Bowling, supra. Vermont, whose legislation is
typical in this regard and closely resembles our own, as has been shown, applies the same rule,
for the same reasons as does Alabama without the such legislation. (Thornton vs. Thornton, 39
Vt., 122.) In that case the court says:
Our statute requires wills to be attested by three witnesses, but is silent as to the
manner in which they shall be proved when contested. When not contested the statute
provides, that they may in the discretion of the judge be admitted to probate upon the
testimony of one of the subscribing witnesses. (G. S. p. 379, sec. 18.) This provision
would indicate that more were to be required in other cases. In an English common
law court, when, as in an action of ejectment, the issue was made upon the validity of
a will, the devisee was obliged to call but one of the attesting witnesses, if that one
testified to a sufficient execution. (1 Phil. Ev. [Cowen & Hill's Ed.], 496, 501; Ansty vs.
Dowsing, 2 Str., 1254; Jackson ex dem. Le Grange vs. Le Grange, 19 Johns, 386.) In
the ecclesiastical courts, it was necessary that all should be produced by the devisee,
if in his power; but he was not required to examine all himself. (The Lochlibo, 1 Eng.
Law & Eq. 645.7.)
It is urged that one or the other of these rules should prevail here. But, it is to be
remembered, that at common law a will is proved merely for the purpose of the case
on trial, and may be again put in issue; and in the ecclesiastical courts it was proved
with reference to the distribution of none but personal estate. (2 Bouvier's Bac. Ab.,
730.) The only method by which until recently a will, when it related to real as well as
personal estate, could be established in England, was by a bill in chancery; and in
such cases, says Lord Camden (Hindson vs. Kersey, 4 Burn. Ecc. Law, 91) it was the
"invariable practice" to require the three witnesses to be examined. . . . We think, if our
statute requires any aid for its interpretation from the English practice, in determining
how many subscribing witnesses should be called to prove a will, we should look to
that English court in which alone wills were, as in our probate court, established; and
to the rule of that court in establishing wills, instead of regarding the rule at law or in
the ecclesiastical courts, or even in the recent English court of probate. So far as we
are informed, the production and examination of all the witnesses have been always
required and thought necessary in this state. (See opinion of Isham, J., in Dean vs.
Dean, 27 Vt., 749.) We are of opinion that the court was correct in ruling that the
proponent must examine all the attesting witnesses.
In Bootle vs. Blundeel (19 Vesey, Jr., 500, 502-509), cited in Thornton vs. Thornton, supra , the
Lord Chancellor (Eldon) said:
The subscribing witnesses are the witnesses of this court and not of either party, as
erroneously considered. If [he says] the object is to establish a will, this court does not
give the devisee the opportunity of carrying it before a jury until all the three witnesses
have been examined, and will have them all examined, considering them as its
witnesses without entering into the dispute frequently occurring in a court of law,
whether the person called s the witness of the one party or the other. . . .the court, as
it will know the whole truth, expects that all the witnesses shall be examined on the
one side or the other.
In Denny vs. Pinney (60 Vt., 524), wherein one of the attesting witnesses was not within the
jurisdiction of the court and wherein it was insisted that the proponent should have taken the
deposition of that witness, the court said:

It was not incumbent upon the proponent to produce the attesting witness Bartlett in
court. He was beyond reach of process. The English practice adopted by this court
requires the proponent only to proceed and examine such of the attesting witnesses
as are within reach of process. (Thornton vs. Thornton, 39 Vt., 122.) He must be within
reach process, the legally obtainable at the trial.
In Chase vs. Lincoln (3 Mass., 236), decided in 1807, it was said:
The court observed that the legislature, in requiring three subscribing witnesses to a
will, did not contemplate the mere formality of signing their names. An idiot might do
this. These witnesses are placed round the testator to ascertain and judge of his
capacity, and the heir has a right to insist on the testimony of all the three witnesses,
to be given to the jury. They must therefore all be produce, if living, and under the
power of the court. If it be impossible to procure any one of them, the court will
proceed without him ex necessitate rei. But no such impossibility appears in this case.
For anything that appears, the absent witness might, with due diligence, have been
found and summoned. The not producing of him may lead to a presumption that his
testimony, if produced, would be unfavorable to the probate of the will. At any rate, the
rule is too important and too explicit to be dispensed with on light grounds.
In Sears vs. Dillingham (12 Mass., 358), decided in 1815, the court states:
It was argued, however, that no will can be proved, unless all the subscribing
witnesses, who are alive and within the control of the court, are produced to testify.
This, as a general rule, is undoubtedly well settled both here and in England. But there
are obvious exceptions, as necessary to be regarded as the rule itself. The case of
witnesses having become infamous instantly occurs, as one of the exceptions. They
may be alive and within the control of the court, and yet their testimony cannot be had,
and the will may be proved without it.
Section 33 of chapter 190 of the statutes of Massachusetts, enacted in 1817, and carried
forward as section 2 of chapter 136 of the Revised Statutes of 1902, provides:
If it appears to the probate court, by the consent in writing of the heirs, or by other
satisfactory evidence, but no person interested in the estate of a person deceased
intends to object to the probate of an instrument purporting to be the will of such
deceased person, the court may grant probate thereof upon the testimony of one only
of the subscribing witnesses; and the affidavit of such witness, taken before the
register of probate, may be received as evidence.
In Brown vs. Wood (17 Mass., 68), decided in 1820, the court said:
It is not now a question, whether the will ought to be proved upon the testimony of two
of the witnesses, without accounting for the absence of the third. The law is settled
that it cannot be so done.
An examination of the subsequent adjudicated cases and the statutes fails to disclose any
modification of this rule in the State of Massachusetts. In Evans vs. Evans (18 Miss., 402), the
court, following the rule adopted in Massachusetts, said:
The sole question presented by the appellant's counsel in this case is resolved into
the inquiry whether a will can be admitted to probate upon the testimony of but one of
the attesting witnesses to such will.

We are inclined to hold that no will can be proved, unless all the subscribing
witnesses, alive and within the control of the process of the court, are produced to
testify.
The rule that no will shall be valid to pass any estate, real or personal, unless "attested and
subscribed by three or more credible witnesses," is a matter of substantive law and an element
of the will's validity. The rule that the attesting witnesses must be called to prove a will for
probate is one of preference made so by statute. This rule of evidence is not to be confused with
rules of quantity. There have been several reasons given for this rule of preference for the
attesting witnesses, one reason being that the party opposing the claim of proper execution of
the will has a right to the benefit of cross-examining the attesting witnesses as to fraud, duress,
or other matters of defense. The law places these witnesses "around the testator to ascertain
and judge of his capacity" for the purpose of preventing frauds. The soundness of the rule is well
illustrated in the case under consideration. Here the attesting clause was omitted and the
testator signed by mark. The petitioner produced only one of the attesting witnesses. Had there
not been a contest, this would have probably been sufficient under section 631. While there is no
testimony in the record to the effect that the testator could neither read nor write, there is
conclusive evidence that he could sign his name. This fact is established by the production of
Exhibit 1, which all agree the testator did sign. The testator's signature to the document shows
that he could write, at least his name, in a plain, clear manner, indicating a fairly good knowledge
of writing. Had the proponent shown that the other two subscribing witnesses were not within the
jurisdiction of the court and could not, therefore, be called, the due execution of the will would
still be very doubtful. Believing, as we do, that it was the intention of the Legislature that the
subscribing witnesses must be called or good and sufficient reason shown why they could not be
had, and being supported by the authorities above cited and quoted, we must conclude that the
proponent did not comply with the provisions of the law in the presentation of her case.
For the foregoing reasons, the judgment appealed from is reversed, without costs in this
instance. So ordered.
Torres, Moreland, and Araullo, JJ., concur.

From this judgment an appeal was taken in behalf of the persons contesting the will, and the
only errors here assigned have reference to the two following points, namely, first, whether a will
can be admitted to probate, where opposition is made, upon the proof of a single attesting
witness, without producing or accounting for the absence of the other two; and, secondly,
whether the will in question is rendered invalid by reason of the fact that the signature of the
testator and of the three attesting witnesses are written on the right margin of each page of the
will instead of the left margin.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 15566

September 14, 1921

EUTIQUIA AVERA, petitioner-appellee,

vs.
MARINO GARCIA, and JUAN RODRIGUEZ, as guardian of the minors Cesar Garcia and
Jose Garcia,objectors-appellants.
Dionisio Villanueva for appellants.
Marcelino Lontok for appellee.
STREET, J.:
In proceedings in the court below, instituted by Eutiquia Avera for probate of the will of one
Esteban Garcia, contest was made by Marino Garcia and Juan Rodriguez, the latter in the
capacity of guardian for the minors Jose Garcia and Cesar Garcia. Upon the date appointed for
the hearing, the proponent of the will introduced one of the three attesting witnesses who
testified with details not necessary to be here specified that the will was executed with all
necessary external formalities, and that the testator was at the time in full possession of
disposing faculties. Upon the latter point the witness was corroborated by the person who wrote
the will at the request of the testator. Two of the attesting witnesses were not introduced, nor
was their absence accounted for by the proponent of the will.
When the proponent rested the attorney for the opposition introduced a single witness whose
testimony tended to show in a vague and indecisive manner that at the time the will was made
the testator was so debilitated as to be unable to comprehend what he was about.
After the cause had been submitted for determination upon the proof thus presented, the trial
judge found that the testator at the time of the making of the will was of sound mind and
disposing memory and that the will had been properly executed. He accordingly admitted the will
to probate.

Upon the first point, while it is undoubtedly true that an uncontested will bay be proved by the
testimony of only one of the three attesting witnesses, nevertheless in Cabang vs. Delfinado (34
Phil., 291), this court declared after an elaborate examination of the American and English
authorities that when a contest is instituted, all of the attesting witnesses must be examined, if
alive and within reach of the process of the court.
In the present case no explanation was made at the trial as to why all three of the attesting
witnesses were not produced, but the probable reason is found in the fact that, although the
petition for the probate of this will had been pending from December 21, 1917, until the date set
for the hearing, which was April 5, 1919, no formal contest was entered until the very day set for
the hearing; and it is probable that the attorney for the proponent, believing in good faith the
probate would not be contested, repaired to the court with only one of the three attesting
witnesses at hand, and upon finding that the will was contested, incautiously permitted the case
to go to proof without asking for a postponement of the trial in order that he might produce all the
attesting witnesses.
Although this circumstance may explain why the three witnesses were not produced, it does not
in itself supply any basis for changing the rule expounded in the case above referred to; and
were it not for a fact now to be mentioned, this court would probably be compelled to reverse
this case on the ground that the execution of the will had not been proved by a sufficient number
of attesting witnesses.
It appears, however, that this point was not raised by the appellant in the lower court either upon
the submission of the cause for determination in that court or upon the occasion of the filing of
the motion for a new trial. Accordingly it is insisted for the appellee that this question cannot now
be raised for the first time in this court. We believe this point is well taken, and the first
assignment of error must be declared not be well taken. This exact question has been decided
by the Supreme Court of California adversely to the contention of the appellant, and we see no
reason why the same rule of practice should not be observed by us. (Estate of McCarty, 58 Cal.,
335, 337.)
There are at least two reason why the appellate tribunals are disinclined to permit certain
questions to be raised for the first time in the second instance. In the first place it eliminates the
judicial criterion of the Court of First Instance upon the point there presented and makes the
appellate court in effect a court of first instance with reference to that point, unless the case is
remanded for a new trial. In the second place, it permits, if it does not encourage, attorneys to
trifle with the administration of justice by concealing from the trial court and from their opponent
the actual point upon which reliance is placed, while they are engaged in other discussions more
simulated than real. These considerations are, we think, decisive.

In ruling upon the point above presented we do not wish to be understood as laying down any
hard and fast rule that would prove an embarrassment to this court in the administration of
justice in the future. In one way or another we are constantly here considering aspects of cases
and applying doctrines which have escaped the attention of all persons concerned in the
litigation below; and this is necessary if this court is to contribute the part due from it in the
correct decision of the cases brought before it. What we mean to declare is that when we
believe that substantial justice has been done in the Court of First Instance, and the point relied
on for reversal in this court appears to be one which ought properly to have been presented in
that court, we will in the exercise of a sound discretion ignore such question relates a defect
which might have been cured in the Court of First Instance if attention had been called to it
there. In the present case, if the appellant had raised this question in the lower court, either at
the hearing or upon a motion for a new trial, that court would have had the power, and it would
have been is duty, considering the tardy institution of the contest, to have granted a new trial in
order that all the witnesses to the will might be brought into court. But instead of thus calling the
error to the attention of the court and his adversary, the point is first raised by the appellant in
this court. We hold that this is too late.
Properly understood, the case of Cabang vs. Delfinado, supra, contains nothing inconsistent
with the ruling we now make, for it appears from the opinion in that case that the proponent of
the will had obtained an order for a republication and new trial for the avowed purpose of
presenting the two additional attesting witnesses who had not been previously examined, but
nevertheless subsequently failed without any apparent reason to take their testimony. Both
parties in that case were therefore fully apprised that the question of the number of witnesses
necessary to prove the will was in issue in the lower court.
The second point involved in this case is whether, under section 618 of the Code of Civil
Procedure, as amended by Act No. 2645, it is essential to the validity of a will in this jurisdiction
that the names of the testator and the instrumental witnesses should be written on the left
margin of each page, as required in said Act, and not upon the right margin, as in the will now
before us; and upon this we are of the opinion that the will in question is valid. It is true that the
statute says that the testator and the instrumental witnesses shall sign their names on the left
margin of each and every page; and it is undeniable that the general doctrine is to the effect that
all statutory requirements as to the execution of wills must be fully complied with. The same
doctrine is also deducible from cases heretofore decided by this court.
Still some details at times creep into legislative enactments which are so trivial it would be
absurd to suppose that the Legislature could have attached any decisive importance to them.
The provision to the effect that the signatures of the testator and witnesses shall be written on
the left margin of each page rather than on the right margin seems to be this character. So
far as concerns the authentication of the will, and of every part thereof, it can make no possible
difference whether the names appear on the left or no the right margin, provided they are on one
or the other. In Caraig vs. Tatlonghari (R. G. No. 12558, decided March 23, 1918, not reported),
this court declared a will void which was totally lacking in the signatures required to be written on
its several pages; and in the case of Re estate of Saguinsin (41 Phil., 875), a will was likewise
declared void which contained the necessary signatures on the margin of each leaf ( folio), but
not in the margin of each page containing written matter.
The instrument now before us contains the necessary signatures on every page, and the only
point of deviation from the requirement of the statute is that these signatures appear in the right
margin instead of the left. By the mode of signing adopted every page and provision of the will is

authenticated and guarded from possible alteration in exactly the same degree that it would
have been protected by being signed in the left margin; and the resources of casuistry could be
exhausted without discovering the slightest difference between the consequences of affixing the
signatures in one margin or the other.
The same could not be said of a case like that of Estate of Saguinsin, supra, where only the
leaves, or alternate pages, were signed and not each written page; for as observed in that case
by our late lamented Chief Justice, it was possible that in the will as there originally executed by
the testratrix only the alternative pages had been used, leaving blanks on the reverse sides,
which conceivably might have been filled in subsequently.
The controlling considerations on the point now before us were well stated In Re will of Abangan
(40 Phil., 476, 479), where the court, speaking through Mr. Justice Avancea, in a case where
the signatures were placed at the bottom of the page and not in the margin, said:
The object of the solemnities surrounding the execution of wills is to close the door
against bad faith and fraud, to avoid substitution o will and testaments and to
guarantee their truth and authenticity. Therefore the laws on this subject should be
interpreted in such a way as to attain these primordial ends. But, on the other hand,
also one must not lose sight of the fact that it is not the object of the law to restrain
and curtail the exercise of the right to make a will. So when an interpretation already
given assures such ends, any other interpretation whatsoever, that adds nothing but
demands more requisites entirely unnecessary, useless and frustrative of the
testator's last will, must be disregarded.
In the case before us, where ingenuity could not suggest any possible prejudice to any person,
as attendant upon the actual deviation from the letter of the law, such deviation must be
considered too trivial to invalidate the instrument.
It results that the legal errors assigned are not sustainable, and the judgment appealed from will
be affirmed. It is so ordered, with costs against the appellants.
Johnson, Araullo, Avancea and Villamor, JJ., concur.

court in Civil Case No. 13207 for partition, reconveyance of ownership and possession and
damages, the dispositive portion of which reads as follows:
WHEREFORE, judgment is hereby rendered for the plaintiff and against
defendant:
a) Ordering that the estate of the late Esteban Javellana, Jr. be divided into
two (2) shares: one-half for the plaintiff and one-half for defendant. From
both shares shall be equally deducted the expenses for the burial,
mausoleum and related expenditures. Against the share of defendants shall
be charged the expenses for scholarship, awards, donations and the
'Salustia Solivio Vda. de Javellana Memorial Foundation;'
b) Directing the defendant to submit an inventory of the entire estate
property, including but not limited to, specific items already mentioned in this
decision and to render an accounting of the property of the estate, within
thirty (30) days from receipt of this judgment; one-half (1/2) of this produce
shall belong to plaintiff;
c) Ordering defendant to pay plaintiff P5,000.00 as expenses of litigation;
P10,000.00 for and as attorney's fees plus costs.
SO ORDERED. (pp. 42-43, Rollo)
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION

G.R. No. 83484 February 12, 1990

CELEDONIA SOLIVIO, petitioner,
vs.
THE HONORABLE COURT OF APPEALS and CONCORDIA JAVELLANA
VILLANUEVA, respondents.
Rex Suiza Castillon for petitioner.
Salas & Villareal for private respondent.
MEDIALDEA, J.:
This is a petition for review of the decision dated January 26, 1988 of the Court of Appeals in CA
GR CV No. 09010 (Concordia Villanueva v. Celedonia Solivio) affirming the decision of the trial

This case involves the estate of the late novelist, Esteban Javellana, Jr., author of the first postwar Filipino novel "Without Seeing the Dawn," who died a bachelor, without descendants,
ascendants, brothers, sisters, nephews or nieces. His only surviving relatives are: (1) his
maternal aunt, petitioner Celedonia Solivio, the spinster half-sister of his mother, Salustia
Solivio; and (2) the private respondent, Concordia Javellana-Villanueva, sister of his deceased
father, Esteban Javellana, Sr.
He was a posthumous child. His father died barely ten (10) months after his marriage in
December, 1916 to Salustia Solivio and four months before Esteban, Jr. was born.
Salustia and her sister, Celedonia (daughter of Engracio Solivio and his second wife Josefa
Fernandez), a teacher in the Iloilo Provincial High School, brought up Esteban, Jr.
Salustia brought to her marriage paraphernal properties (various parcels of land in Calinog, Iloilo
covered by 24 titles) which she had inherited from her mother, Gregoria Celo, Engracio Solivio's
first wife (p. 325, Record), but no conjugal property was acquired during her short-lived marriage
to Esteban, Sr.
On October 11, 1959, Salustia died, leaving all her properties to her only child, Esteban, Jr.,
including a house and lot in La Paz, Iloilo City, where she, her son, and her sister lived. In due
time, the titles of all these properties were transferred in the name of Esteban, Jr.

During his lifetime, Esteban, Jr. had, more than once, expressed to his aunt Celedonia and
some close friends his plan to place his estate in a foundation to honor his mother and to help
poor but deserving students obtain a college education. Unfortunately, he died of a heart attack
on February 26,1977 without having set up the foundation.
Two weeks after his funeral, Concordia and Celedonia talked about what to do with Esteban's
properties. Celedonia told Concordia about Esteban's desire to place his estate in a foundation
to be named after his mother, from whom his properties came, for the purpose of helping
indigent students in their schooling. Concordia agreed to carry out the plan of the deceased.
This fact was admitted by her in her "Motion to Reopen and/or Reconsider the Order dated April
3, 1978" which she filed on July 27, 1978 in Special Proceeding No. 2540, where she stated:
4. That petitioner knew all along the narrated facts in the immediately
preceding paragraph [that herein movant is also the relative of the
deceased within the third degree, she being the younger sister of the late
Esteban Javellana, father of the decedent herein], because prior to the filing
of the petition they (petitioner Celedonia Solivio and movant Concordia
Javellana) have agreed to make the estate of the decedent a
foundation, besides they have closely known each other due to their filiation
to the decedent and they have been visiting each other's house which are
not far away for (sic) each other. (p. 234, Record; Emphasis supplied.)
Pursuant to their agreement that Celedonia would take care of the proceedings leading to the
formation of the foundation, Celedonia in good faith and upon the advice of her counsel, filed on
March 8, 1977 Spl. Proceeding No. 2540 for her appointment as special administratrix of the
estate of Esteban Javellana, Jr. (Exh. 2). Later, she filed an amended petition (Exh. 5) praying
that letters of administration be issued to her; that she be declared sole heir of the deceased;
and that after payment of all claims and rendition of inventory and accounting, the estate be
adjudicated to her (p. 115, Rollo).
After due publication and hearing of her petition, as well as her amended petition, she was
declared sole heir of the estate of Esteban Javellana, Jr. She explained that this was done for
three reasons: (1) because the properties of the estate had come from her sister, Salustia
Solivio; (2) that she is the decedent's nearest relative on his mother's side; and (3) with her as
sole heir, the disposition of the properties of the estate to fund the foundation would be
facilitated.

Iloilo, Branch 26, entitled "Concordia Javellana- Villanueva v. Celedonia Solivio" for partition,
recovery of possession, ownership and damages.
On September 3, 1984, the said trial court rendered judgment in Civil Case No. 13207, in favor
of Concordia Javellana-Villanueva.
On Concordia's motion, the trial court ordered the execution of its judgment pending appeal and
required Celedonia to submit an inventory and accounting of the estate. In her motions for
reconsideration of those orders, Celedonia averred that the properties of the deceased had
already been transferred to, and were in the possession of, the 'Salustia Solivio Vda. de
Javellana Foundation." The trial court denied her motions for reconsideration.
In the meantime, Celedonia perfected an appeal to the Court of Appeals (CA GR CV No. 09010).
On January 26, 1988, the Court of Appeals, Eleventh Division, rendered judgment affirming the
decision of the trial court in toto.Hence, this petition for review wherein she raised the following
legal issues:
1. whether Branch 26 of the RTC of Iloilo had jurisdiction to entertain Civil
Case No. 13207 for partition and recovery of Concordia Villanueva's share
of the estate of Esteban Javellana, Jr. even while the probate proceedings
(Spl. Proc. No. 2540) were still pending in Branch 23 of the same court;
2. whether Concordia Villanueva was prevented from intervening in Spl.
Proc. No. 2540 through extrinsic fraud;
3. whether the decedent's properties were subject to reserva troncal in favor
of Celedonia, his relative within the third degree on his mother's side from
whom he had inherited them; and
4. whether Concordia may recover her share of the estate after she had
agreed to place the same in the Salustia Solivio Vda. de Javellana
Foundation, and notwithstanding the fact that conformably with said
agreement, the Foundation has been formed and properties of the estate
have already been transferred to it.
I. The question of jurisdiction

On April 3, 1978, the court (Branch II, CFI, now Branch 23, RTC) declared her the sole heir of
Esteban, Jr. Thereafter, she sold properties of the estate to pay the taxes and other obligations
of the deceased and proceeded to set up the "SALUSTIA SOLIVIO VDA. DE JAVELLANA
FOUNDATION" which she caused to be registered in the Securities and Exchange Commission
on July 17,1981 under Reg. No. 0100027 (p. 98, Rollo).
Four months later, or on August 7, 1978, Concordia Javellana Villanueva filed a motion for
reconsideration of the court's order declaring Celedonia as "sole heir" of Esteban, Jr., because
she too was an heir of the deceased. On October 27, 1978, her motion was denied by the court
for tardiness (pp. 80-81, Record). Instead of appealing the denial, Concordia filed on January 7,
1980 (or one year and two months later), Civil Case No. 13207 in the Regional Trial Court of

After a careful review of the records, we find merit in the petitioner's contention that the Regional
Trial Court, Branch 26, lacked jurisdiction to entertain Concordia Villanueva's action for partition
and recovery of her share of the estate of Esteban Javellana, Jr. while the probate proceedings
(Spl, Proc. No. 2540) for the settlement of said estate are still pending in Branch 23 of the same
court, there being as yet no orders for the submission and approval of the administratix's
inventory and accounting, distributing the residue of the estate to the heir, and terminating the
proceedings (p. 31, Record).
It is the order of distribution directing the delivery of the residue of the estate to the persons
entitled thereto that brings to a close the intestate proceedings, puts an end to the administration
and thus far relieves the administrator from his duties (Santiesteban v. Santiesteban, 68 Phil.

367, Philippine Commercial and Industrial Bank v. Escolin, et al., L-27860, March 29, 1974, 56
SCRA 266).
The assailed order of Judge Adil in Spl. Proc. No. 2540 declaring Celedonia as the sole heir of
the estate of Esteban Javellana, Jr. did not toll the end of the proceedings. As a matter of fact,
the last paragraph of the order directed the administratrix to "hurry up the settlement of the
estate." The pertinent portions of the order are quoted below:
2. As regards the second incident [Motion for Declaration of Miss Celedonia
Solivio as Sole Heir, dated March 7, 1978], it appears from the record that
despite the notices posted and the publication of these proceedings as
required by law, no other heirs came out to interpose any opposition to the
instant proceeding. It further appears that herein Administratrix is the only
claimant-heir to the estate of the late Esteban Javellana who died on
February 26, 1977.
During the hearing of the motion for declaration as heir on March 17, 1978,
it was established that the late Esteban Javellana died single, without any
known issue, and without any surviving parents. His nearest relative is the
herein Administratrix, an elder [sic] sister of his late mother who reared him
and with whom he had always been living with [sic] during his lifetime.
xxxxxxxxx
2. Miss Celedonia Solivio, Administratrix of this estate, is hereby declared as
the sole and legal heir of the late Esteban S. Javellana, who died intestate
on February 26, 1977 at La Paz, Iloilo City.
The Administratrix is hereby instructed to hurry up with the settlement of this
estate so that it can be terminated. (pp, 14-16, Record)
In view of the pendency of the probate proceedings in Branch 11 of the Court of First Instance
(now RTC, Branch 23), Concordia's motion to set aside the order declaring Celedonia as sole
heir of Esteban, and to have herself (Concordia) declared as co-heir and recover her share of
the properties of the deceased, was properly filed by her in Spl. Proc. No. 2540. Her remedy
when the court denied her motion, was to elevate the denial to the Court of Appeals for review
on certiorari. However, instead of availing of that remedy, she filed more than one year later, a
separate action for the same purpose in Branch 26 of the court. We hold that the separate action
was improperly filed for it is the probate court that has exclusive jurisdiction to make a just and
legal distribution of the estate.
In the interest of orderly procedure and to avoid confusing and conflicting dispositions of a
decedent's estate, a court should not interfere with probate proceedings pending in a co-equal
court. Thus, did we rule in Guilas v. Judge of the Court of First Instance of Pampanga, L-26695,
January 31, 1972, 43 SCRA 111, 117, where a daughter filed a separate action to annul a project
of partition executed between her and her father in the proceedings for the settlement of the
estate of her mother:

The probate court loses jurisdiction of an estate under administration only

after the payment of all the debts and the remaining estate delivered to the
heirs entitled to receive the same. The finality of the approval of the project
of The probate court, in the exercise of its jurisdiction to make distribution,
has power to determine the proportion or parts to which each distributed is
entitled. ... The power to determine the legality or illegality of the
testamentary provision is inherent in the jurisdiction of the court making a
just and legal distribution of the inheritance. ... To hold that a separate and
independent action is necessary to that effect, would be contrary to the
general tendency of the jurisprudence of avoiding multiplicity of suits; and is
further, expensive, dilatory, and impractical. (Marcelino v. Antonio, 70 Phil.
388)
A judicial declaration that a certain person is the only heir of the decedent is
exclusively within the range of the administratrix proceedings and can not
properly be made an independent action. (Litam v. Espiritu, 100 Phil. 364)
A separate action for the declaration of heirs is not proper. (Pimentel v.
Palanca, 5 Phil. 436)
partition by itself alone does not terminate the probate proceeding (Timbol v.
Cano, 1 SCRA 1271, 1276, L-15445, April 29, 1961; Siguiong v. Tecson, 89
Phil. pp. 28, 30). As long as the order of the distribution of the estate has not
been complied with, the probate proceedings cannot be deemed closed and
terminated Siguiong v. Tecson, supra); because a judicial partition is not
final and conclusive and does not prevent the heirs from bringing an action
to obtain his share, provided the prescriptive period therefore has not
elapsed (Mari v. Bonilia, 83 Phil. 137). The better practice, however, for the
heir who has not received his share, is to demand his share through a
proper motion in the same probate or administration proceedings, or for
reopening of the probate or administrative proceedings if it had already
been closed, and not through an independent action,which would be tried
by another court or Judge which may thus reverse a decision or order of the
probate or intestate court already final and executed and re-shuffle
properties long ago distributed and disposed of. (Ramos v. Ortuzar, 89 Phil.
730, 741-742; Timbol v. Cano, supra; Jingco v. Daluz, L-5107, April 24,
1953, 92 Phil. 1082; Roman Catholic v. Agustines, L-14710, March 29,
1960, 107 Phil. 455, 460-461; Emphasis supplied)
In Litam et al., v. Rivera, 100 Phil. 364, where despite the pendency of the special proceedings
for the settlement of the intestate estate of the deceased Rafael Litam the plaintiffs-appellants
filed a civil action in which they claimed that they were the children by a previous marriage of the
deceased to a Chinese woman, hence, entitled to inherit his one-half share of the conjugal
properties acquired during his marriage to Marcosa Rivera, the trial court in the civil case
declared that the plaintiffs-appellants were not children of the deceased, that the properties in
question were paraphernal properties of his wife, Marcosa Rivera, and that the latter was his
only heir. On appeal to this Court, we ruled that "such declarations (that Marcosa Rivera was the
only heir of the decedent) is improper, in Civil Case No. 2071, it being within the exclusive
competence of the court in Special Proceedings No. 1537, in which it is not as yet, in issue, and,
will not be, ordinarily, in issue until the presentation of the project of partition. (p. 378).

However, in the Guilas case, supra, since the estate proceedings had been closed and
terminated for over three years, the action for annulment of the project of partition was allowed
to continue. Considering that in the instant case, the estate proceedings are still pending, but
nonetheless, Concordia had lost her right to have herself declared as co-heir in said
proceedings, We have opted likewise to proceed to discuss the merits of her claim in the interest
of justice.
The orders of the Regional Trial Court, Branch 26, in Civil Case No. 13207 setting aside the
probate proceedings in Branch 23 (formerly Branch 11) on the ground of extrinsic fraud, and
declaring Concordia Villanueva to be a co-heir of Celedonia to the estate of Esteban, Jr.,
ordering the partition of the estate, and requiring the administratrix, Celedonia, to submit an
inventory and accounting of the estate, were improper and officious, to say the least, for these
matters he within the exclusive competence of the probate court.

1. Concordia was not unaware of the special proceeding intended to be filed

by Celedonia. She admitted in her complaint that she and Celedonia had
agreed that the latter would "initiate the necessary proceeding" and pay the
taxes and obligations of the estate. Thus paragraph 6 of her complaint
alleged:
6. ... for the purpose of facilitating the settlement of the estate of the late
Esteban Javellana, Jr. at the lowest possible cost and the least effort, the
plaintiff and the defendant agreed that the defendant shall initiate the
necessary proceeding, cause the payment of taxes and other obligations,
and to do everything else required by law, and thereafter, secure the
partition of the estate between her and the plaintiff, [although Celedonia
denied that they agreed to partition the estate, for their agreement was to
place the estate in a foundation.] (p. 2, Record; emphasis supplied)

II. The question of extrinsic fraud

Was Concordia prevented from intervening in the intestate proceedings by extrinsic
fraud employed by Celedonia? It is noteworthy that extrinsic fraud was not alleged in
Concordia's original complaint in Civil Case No. 13207. It was only in her amended complaint of
March 6, 1980, that extrinsic fraud was alleged for the first time.
Extrinsic fraud, as a ground for annulment of judgment, is any act or
conduct of the prevailing party which prevented a fair submission of the
controversy (Francisco v. David, 38 O.G. 714). A fraud 'which prevents a
party from having a trial or presenting all of his case to the court, or one
which operates upon matters pertaining, not to the judgment itself, but to the
manner by which such judgment was procured so much so that there was
no fair submission of the controversy. For instance, if through fraudulent
machination by one [his adversary], a litigant was induced to withdraw his
defense or was prevented from presenting an available defense or cause of
action in the case wherein the judgment was obtained, such that the
aggrieved party was deprived of his day in court through no fault of his own,
the equitable relief against such judgment may be availed of. (Yatco v.
Sumagui, 44623-R, July 31, 1971). (cited in Philippine Law Dictionary, 1972
Ed. by Moreno; Varela v. Villanueva, et al., 96 Phil. 248)
A judgment may be annulled on the ground of extrinsic or collateral fraud, as
distinguished from intrinsic fraud, which connotes any fraudulent scheme
executed by a prevailing litigant 'outside the trial of a case against the
defeated party, or his agents, attorneys or witnesses, whereby said defeated
party is prevented from presenting fully and fairly his side of the case. ...
The overriding consideration is that the fraudulent scheme of the prevailing
litigant prevented a party from having his day in court or from presenting his
case. The fraud, therefore, is one that affects and goes into the jurisdiction
of the court. (Libudan v. Gil, L-21163, May 17, 1972, 45 SCRA 17, 27-29;
Sterling Investment Corp. v. Ruiz, L-30694, October 31, 1969, 30 SCRA
318, 323)
The charge of extrinsic fraud is, however, unwarranted for the following reasons:

Evidently, Concordia was not prevented from intervening in the proceedings. She stayed
away by choice.Besides, she knew that the estate came exclusively from Esteban's mother,
Salustia Solivio, and she had agreed with Celedonia to place it in a foundation as the deceased
had planned to do.
2. The probate proceedings are proceedings in rem. Notice of the time and
place of hearing of the petition is required to be published (Sec. 3, Rule 76
in relation to Sec. 3, Rule 79, Rules of Court). Notice of the hearing of
Celedonia's original petition was published in the "Visayan Tribune" on April
25, May 2 and 9, 1977 (Exh 4, p. 197, Record). Similarly, notice of the
hearing of her amended petition of May 26, 1977 for the settlement of the
estate was, by order of the court, published in "Bagong Kasanag" (New
Light) issues of May 27, June 3 and 10, 1977 (pp. 182-305, Record). The
publication of the notice of the proceedings was constructive notice to the
whole world. Concordia was not deprived of her right to intervene in the
proceedings for she had actual, as well as constructive notice of the same.
As pointed out by the probate court in its order of October 27, 1978:
... . The move of Concordia Javellana, however, was filed about five months
after Celedonia Solivio was declared as the sole heir. ... .
Considering that this proceeding is one in rem and had been duly published
as required by law, despite which the present movant only came to court
now, then she is guilty of laches for sleeping on her alleged right. (p. 22,
Record)
The court noted that Concordia's motion did not comply with the requisites of a petition for relief
from judgment nor a motion for new trial.
The rule is stated in 49 Corpus Juris Secundum 8030 as follows:

Where petition was sufficient to invoke statutory jurisdiction of probate court

and proceeding was in rem no subsequent errors or irregularities are
available on collateral attack. (Bedwell v. Dean 132 So. 20)
Celedonia's allegation in her petition that she was the sole heir of Esteban within the third
degree on his mother's side was not false. Moreover, it was made in good faith and in the honest
belief that because the properties of Esteban had come from his mother, not his father, she, as
Esteban's nearest surviving relative on his mother's side, is the rightful heir to them. It would
have been self-defeating and inconsistent with her claim of sole heirshipif she stated in her
petition that Concordia was her co-heir. Her omission to so state did not constitute extrinsic
fraud.
Failure to disclose to the adversary, or to the court, matters which would
defeat one's own claim or defense is not such extrinsic fraud as will justify or
require vacation of the judgment. (49 C.J.S. 489, citing Young v. Young, 2
SE 2d 622; First National Bank & Trust Co. of King City v. Bowman, 15 SW
2d 842; Price v. Smith, 109 SW 2d 1144, 1149)
It should be remembered that a petition for administration of a decedent's estate may be filed by
any "interested person" (Sec. 2, Rule 79, Rules of Court). The filing of Celedonia's petition did
not preclude Concordia from filing her own.
III. On the question of reserva troncal
We find no merit in the petitioner's argument that the estate of the deceased was subject
to reserva troncal and that it pertains to her as his only relative within the third degree on his
mother's side. The reserva troncalprovision of the Civil Code is found in Article 891 which reads
as follows:
ART. 891. The ascendant who inherits from his descendant any property
which the latter may have acquired by gratuitous title from another
ascendant, or a brother or sister, is obliged to reserve such property as he
may have acquired by operation of law for the benefit of relatives who are
within the third degree and who belong to the line from which said property
came.
The persons involved in reserva troncal are:
1. The person obliged to reserve is the reservor (reservista)the ascendant
who inherits by operation of law property from his descendants.
2. The persons for whom the property is reserved are the
reservees (reservatarios)relatives within the third degree counted from
the descendant (propositus), and belonging to the line from which the
property came.

3. The propositusthe descendant who received by gratuitous title and died

without issue, making his other ascendant inherit by operation of law. (p.
692, Civil Law by Padilla, Vol. II, 1956 Ed.)
Clearly, the property of the deceased, Esteban Javellana, Jr., is not reservable property, for
Esteban, Jr. was not an ascendant, but the descendant of his mother, Salustia Solivio, from
whom he inherited the properties in question. Therefore, he did not hold his inheritance subject
to a reservation in favor of his aunt, Celedonia Solivio, who is his relative within the third degree
on his mother's side. The reserva troncal applies to properties inherited by an ascendant from a
descendant who inherited it from another ascendant or 9 brother or sister. It does not apply to
property inherited by a descendant from his ascendant, the reverse of the situation covered by
Article 891.
Since the deceased, Esteban Javellana, Jr., died without descendants, ascendants, illegitimate
children, surviving spouse, brothers, sisters, nephews or nieces, what should apply in the
distribution of his estate are Articles 1003 and 1009 of the Civil Code which provide:
ART. 1003. If there are no descendants, ascendants, illegitimate children, or
a surviving spouse, the collateral relatives shall succeed to the entire estate
of the deceased in accordance with the following articles.
ART. 1009. Should there be neither brothers nor sisters, nor children of
brothers or sisters, the other collateral relatives shall succeed to the estate.
The latter shall succeed without distinction of lines or preference among
them by reason of relationship by the whole blood.
Therefore, the Court of Appeals correctly held that:
Both plaintiff-appellee and defendant-appellant being relatives of the
decedent within the third degree in the collateral line, each, therefore, shall
succeed to the subject estate 'without distinction of line or preference
among them by reason of relationship by the whole blood,' and is entitled
one-half (1/2) share and share alike of the estate. (p. 57, Rollo)
IV. The question of Concordia's one-half share
However, inasmuch as Concordia had agreed to deliver the estate of the deceased to the
foundation in honor of his mother, Salustia Solivio Vda. de Javellana (from whom the estate
came), an agreement which she ratified and confirmed in her "Motion to Reopen and/or
Reconsider Order dated April 3, 1978" which she filed in Spl. Proceeding No. 2540:
4. That ... prior to the filing of the petition they (petitioner Celedonia Solivio
and movant Concordia Javellana) have agreed to make the estate of the
decedent a foundation, besides they have closely known each other due to
their filiation to the decedent and they have been visiting each other's house
which are not far away for (sic) each other. (p. 234, Record; Emphasis
supplied)

she is bound by that agreement. It is true that by that agreement, she did not waive her
inheritance in favor of Celedonia, but she did agree to place all of Esteban's estate in the
"Salustia Solivio Vda. de Javellana Foundation" which Esteban, Jr., during his lifetime, planned
to set up to honor his mother and to finance the education of indigent but deserving students as
well.
Her admission may not be taken lightly as the lower court did. Being a judicial admission, it is
conclusive and no evidence need be presented to prove the agreement (Cunanan v. Amparo, 80
Phil. 227; Granada v. Philippine National Bank, L-20745, Sept. 2, 1966, 18 SCRA 1; Sta. Ana v.
Maliwat, L-23023, Aug. 31, 1968, 24 SCRA 1018; People v. Encipido, G.R.70091, Dec. 29, 1986,
146 SCRA 478; and Rodillas v. Sandiganbayan, G.R. 58652, May 20, 1988, 161 SCRA 347).
The admission was never withdrawn or impugned by Concordia who, significantly, did not even
testify in the case, although she could have done so by deposition if she were supposedly
indisposed to attend the trial. Only her husband, Narciso, and son-in-law, Juanito Domin,
actively participated in the trial. Her husband confirmed the agreement between his wife and
Celedonia, but he endeavored to dilute it by alleging that his wife did not intend to give all, but
only one-half, of her share to the foundation (p. 323, Record).
The records show that the "Salustia Solivio Vda. de Javellana Foundation" was established and
duly registered in the Securities and Exchange Commission under Reg. No. 0100027 for the
following principal purposes:
1. To provide for the establishment and/or setting up of scholarships for
such deserving students as the Board of Trustees of the Foundation may
decide of at least one scholar each to study at West Visayas State College,
and the University of the Philippines in the Visayas both located in Iloilo City.
2. To provide a scholarship for at least one scholar for St. Clements
Redemptorist Community for a deserving student who has the religious
vocation to become a priest.
3. To foster, develop, and encourage activities that will promote the
advancement and enrichment of the various fields of educational
endeavors, especially in literary arts. Scholarships provided for by this
foundation may be named after its benevolent benefactors as a token of
gratitude for their contributions.
4. To direct or undertake surveys and studies in the community to determine
community needs and be able to alleviate partially or totally said needs.

5. To maintain and provide the necessary activities for the proper care of the
Solivio-Javellana mausoleum at Christ the King Memorial Park, Jaro, Iloilo
City, and the Javellana Memorial at the West Visayas State College, as a
token of appreciation for the contribution of the estate of the late Esteban S.
Javellana which has made this foundation possible. Also, in perpetuation of
his Roman Catholic beliefs and those of his mother, Gregorian masses or
their equivalents will be offered every February and October, and Requiem
masses every February 25th and October llth, their death anniversaries, as
part of this provision.
6. To receive gifts, legacies, donations, contributions, endowments and
financial aids or loans from whatever source, to invest and reinvest the
funds, collect the income thereof and pay or apply only the income or such
part thereof as shall be determined by the Trustees for such endeavors as
may be necessary to carry out the objectives of the Foundation.
7. To acquire, purchase, own, hold, operate, develop, lease, mortgage,
pledge, exchange, sell, transfer, or otherwise, invest, trade, or deal, in any
manner permitted by law, in real and personal property of every kind and
description or any interest herein.
8. To do and perform all acts and things necessary, suitable or proper for the
accomplishments of any of the purposes herein enumerated or which shall
at any time appear conducive to the protection or benefit of the corporation,
including the exercise of the powers, authorities and attributes concerned
upon the corporation organized under the laws of the Philippines in general,
and upon domestic corporation of like nature in particular. (pp. 9-10, Rollo)
As alleged without contradiction in the petition' for review:
The Foundation began to function in June, 1982, and three (3) of its eight
Esteban Javellana scholars graduated in 1986, one (1) from UPV graduated
Cum Laude and two (2) from WVSU graduated with honors; one was a Cum
Laude and the other was a recipient of Lagos Lopez award for teaching for
being the most outstanding student teacher.
The Foundation has four (4) high school scholars in Guiso Barangay High
School, the site of which was donated by the Foundation. The School has
been selected as the Pilot Barangay High School for Region VI.
The Foundation has a special scholar, Fr. Elbert Vasquez, who would be
ordained this year. He studied at St. Francis Xavier Major Regional
Seminary at Davao City. The Foundation likewise is a member of the
Redemptorist Association that gives yearly donations to help poor students
who want to become Redemptorist priests or brothers. It gives yearly
awards for Creative writing known as the Esteban Javellana Award.

Further, the Foundation had constructed the Esteban S. Javellana Multipurpose Center at the West Visayas State University for teachers' and
students' use, and has likewise contributed to religious civic and cultural
fund-raising drives, amongst other's. (p. 10, Rollo)
Having agreed to contribute her share of the decedent's estate to the Foundation, Concordia is
obligated to honor her commitment as Celedonia has honored hers.
WHEREFORE, the petition for review is granted. The decision of the trial court and the Court of
Appeals are hereby SET ASIDE. Concordia J. Villanueva is declared an heir of the late Esteban
Javellana, Jr. entitled to one-half of his estate. However, comformably with the agreement
between her and her co-heir, Celedonia Solivio, the entire estate of the deceased should be
conveyed to the "Salustia Solivio Vda. de Javallana Foundation," of which both the petitioner
and the private respondent shall be trustees, and each shall be entitled to nominate an equal
number of trustees to constitute the Board of Trustees of the Foundation which shall administer
the same for the purposes set forth in its charter. The petitioner, as administratrix of the estate,
shall submit to the probate court an inventory and accounting of the estate of the deceased
preparatory to terminating the proceedings therein.
SO ORDERED.
Narvasa, Cruz, Gancayco and Grio-Aquino, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 24168

September 22, 1925

FLORENCIO MANALO, as guardian of the minors Lazaro Mendieta and Daria

Mendieta, petitioner,
vs.
Honorable ISIDRO PAREDES, Judge of First Instance of Laguna, and PHILIPPINE FOOD
COMPANY,respondents.
Francisco, Lualhati and Lopez and Juan S. Rustia for petitioner.
Claro M. Recto, Ross, Lawrence and Selph and Antonio T. Carrascoso, Jr., for respondents.
J.E. Blanco for the intervenor Hidalgo.

January 18, 1924, which he signed at my request and inducement in order that my
children begotten by him might have a share in his estate, as said deceased did in fact
sign said will only in my presence and compelled by the pressure exerted by me and
for my aforesaid children. (Rec. No. 4031, file 1, fol. 70.)
Notwithstanding the foregoing motions, the court, on September 3, 1924, ordered the publication
in the newspaper El Debate, of Manila, of the application of Melecio Fule and of Justina
Mendieta, Lazaro Mendieta, and Daria Mendieta for the probate of the supposed will of the
deceased Francisco Villegas, setting said application for hearing on the 3rd day of October,
1924 (rec. No. 4031, file 1, fol. 192).

VILLA-REAL, J.:
This is a proceeding for mandamus commenced originally in this court by Florencio Manalo, as
guardian of the minors Lazaro and Daria Mendieta, for the issuance of a writ
of mandamus addressed to the Honorable Isidro Paredes, Judge of the Court of First Instance of
Laguna, and the Philippine Food Co., ordering the publication of the petition for the probate of
the will of the deceased Francisco Villegas, case No. 4217 of the Court of First Instance of
Laguna; and injunction commanding the respondent judge, Honorable Isidro Paredes, to
suspend the proceedings in the registration case No. 954 of the Court of First Instance of
Laguna, wherein the Philippine Food Co. is the applicant and the minors Lazaro and Daria
Mendieta opponents, until the termination of the proceeding for the probate of the will of
Francisco Villegas, in which said minors are named legatees of the land involved in said
registration case.
On March 22, 1924, Laureana Hidalgo, surviving spouse of Francisco Villegas, filed with the
Court of First Instance of Laguna an application for letters of administration of the estate left by
her deceased husband, who, according to the application, died intestate (rec. No. 4031, file 1, of
the Court of First Instance of Laguna).
In the course of said administration and on May 5, 1924, Justina Mendieta, Lazaro Mendieta,
Daria Mendieta and Melecio Fule, supposed testamentary executor, through their attorney, Mr.
Eusebio Lopez, filed a motion with the court, praying for the probate of the supposed will of
Francisco Villegas, wherein most of his property was given as a legacy to said Justina Mendieta,
the latter's children and the legitimate wife of the deceased Francisco Villegas (rec. No. 4031,
file 1. fol. 47).
On August 8, 1924, Messrs. E.M. Lopez and V.F. Reyes, attorneys, on behalf of the executor
Melecio Fule, filed a motion (Exhibit 3) wherein they stated that the attesting witnesses, Exequiel
Evidente and Albino Villegas, had assured them that the supposed will had not been executed
by Francisco Villegas in accordance with law, and that the executor Melecio Fule no longer took
interest in the case (rec. No. 4031, fol. 116).
On June 5, 1924, having received an order of the court requiring her to produce the supposed
will of Francisco Villegas, Justina Mendieta filed a motion wherein, among other things, she said:
That having learned of the aforesaid order of this court, I hereby freely and
spontaneously state that I know not of any will executed by the deceased Francisco
Villegas, except the one that I had had said deceased Francisco Villegas sign on

On September 5, 1924, Justina Mendieta, together with her children Lazaro Mendieta and Daria
Mendieta, filed another application for the probate of the same will through their attorneys,
Messrs. Azada and Veluz (rec. No. 4031, file 1, fol. 199), and on October 13, 1924, the same
attorneys and Attorney Marcelino Lontok, on behalf of Justina Mendieta and her minor children,
filed a motion for the appointment of a guardian ad litem for said minors (rec. No. 4031, file 2,
fol. 117).
At the trial which was held October 16, 1924, the court below appointed Justina Mendieta,
natural mother of said minors, as their guardian ad litem. Laureana Hidalgo entered her
objection to the probate of the will (rec. No. 4031, file 2, fol. 136) and immediately the court
proceeded to hear the evidence of the parties, each and everyone of the attesting witnesses of
the supposed will, named Tomas Dizon, Albino Villegas, and Exequiel Evidente having testified,
and the applicants having introduced Exhibits A, B, C, D, E, F, G, H, I, J, K, L, M, and N and the
opponent Exhibits 1, 2, 3, and 4, the trial having been suspended thereafter, to be continued on
October 24, 1924.
When the case was filed on October 24, 1924, for the continuation of the trial, Justina Mendieta,
for herself and in her capacity as guardian ad litem of her minor children Lazaro Mendieta and
Daria Mendieta, represented by their attorneys, Messrs. Marcelino Lontok and Marcial Azada,
on the one hand, and Laureana Hidalgo, represented by her attorney, Mr. J.E. Blanco, on the
other, submitted to the court an agreement wherein Justina Mendieta stated that she withdrew
her application for the probate of the supposed will of the deceased Francisco Villegas on the
ground that the evidence was insufficient to justify the probate of said will, and consequently, she
prayed that said will be held not allowable to probate and that the deceased died intestate,
without leaving any more heirs than his legitimate wife, Laureana Hidalgo, and his two
adulterous children, Lazaro and Daria Mendieta, and that the property of the deceased be
distributed in accordance with said agreement (rec. No. 4031, file 2, fol. 171).
By an order dated October 25, 1924, the court approved said stipulation and rendered judgment,
holding that the supposed will of Francisco Villegas could not be probated, and awarding to the
heirs of the deceased the estate left by Francisco Villegas in accordance with said agreement
(rec. No. 4031, file 2, fol. 173). From this order no appeal has been taken.
On January 7, 1925, one Gelacio Malihan, who claimed to be first cousin of the deceased
Francisco Villegas, filed with the court a new application for the probate of the same supposed
will of the deceased Francisco Villegas (rec. No. 4217).

As may be seen from the facts above stated, the will, the probate of which is applied for in the
petition dated January 7, 1925, is the same one that was the subject of the application of May 5,
1924, and of September 5, 1924. The only difference lies in that the first application was filed by
Justina Mendieta and her minor children Lazaro Mendieta and Daria Mendieta and Melecio Fule,
supposed testamentary executor, all represented by the attorney, Mr. Eusebio M. Lopez; the
second by Justina Mendieta and her minor children Lazaro Mendieta and Daria Mendieta,
represented by the attorneys Messrs. Azada and Veluz; and the third and last by one Gelacio
Malihan who claimed to be first cousin of the deceased Francisco Villegas.
The proceeding for the probate of a will is a proceeding in rem (40 Cyc., p. 1265), and the court
acquires jurisdiction over all the persons interested through the publication of the notice
prescribed by section 630 of the Code of Civil Procedure, and any order that may be entered is
binding against all of them. Through the publication ordered by the Court of First Instance of
Laguna of the application for the probate of the supposed will of Francisco Villegas, filed by
Justina Mendieta and her minor children Lazaro and Daria Mendieta and Melecio Fule,
testamentary executor, through their attorney, Mr. Eusebio Lopez, said court acquired jurisdiction
over all such persons as were interested in the supposed will, including Gelacio Malihan. The
court having tried said application for probate, hearing all the testimony of the attesting
witnesses of the said supposed will, the applicant Justina Mendieta for herself and as
guardian ad litem of her minor children, represented by their attorneys, Messrs. Marcelino
Lontok and Marcial Azada, on the one hand, and Laureana Hidalgo, widow of Francisco
Villegas, represented by her attorney, Jesus. E. Blanco, on the other, having submitted a
stipulation wherein the former withdrew her application and the latter reserved certain rights over
the estate left by Francisco Villegas in favor of Justina Mendieta and her minor children; and the
court having approved said stipulation and declared that Francisco Villegas died intestate
according to said agreement, all the parties became bound by said judgment; and if any of them
or other persons interested were not satisfied with the court's decision, they had the remedy of
appeal to correct any injustice that might have been committed, and cannot now through the
special remedy of mandamus, obtain a review of the proceeding upon a new application for the
probate of the same will in order to compel the respondent judge to comply with his ministerial
duty imposed by section 330 of the Code of Civil Procedure; because this remedy, being
extraordinary, cannot be used in lieu of appeal, or writ of error (26 Cyc., 177; 18 R.C.L., par.
443); especially when the parties interested have agreed to disregard the testamentary
provisions and divide the estate as they pleased, each of them taking what pertained to him (25
R.C.L., 359).
The first ground of the petition for mandamus is a consequence of the second and we need not
deal with it.
As to the motion of the petitioner that the record of the proceeding be transmitted to the
Attorney-General for investigation, in order to discover any irregularity or fraud that may have
been committed, and to institute the proper proceeding against those who may be found guilty,
this court will take no action unless specific charges are filed.
For all the foregoing, the petition for mandamus is denied with the costs against the petitioner.
So ordered.
Avancea, C.J., Johnson, Street, Malcolm, Villamor, Ostrand, Johns and Romualdez,
JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 14851

Owing to the great distance between Palma de Mallorca and the city of Manila and to the lack of
adequate means of communication between the two places a difficulty then greatly
exaggerated by conditions incident to the European War the petitioner received no
information of the probate proceedings until after November 14, 1918. She had, however,
received information of the fact of her husband's death on or before June 19, 1918, for upon that
date an attorney employed by her in Palma de Mallorca addressed a letter to Wolfson &
Wolfson, attorneys in the city of Manila, requesting them to look after the interests of the
petitioner in the estate of her deceased husband. Said communication was not received by the
attorneys mentioned until November 11, 1918, when promptly began the investigations
necessary to enable them to act in the matter; and on November 29, 1918, they appeared in the
Court of First Instance in behalf of the petitioner and moved that the order of probate of May 20,
1918, be set aside in order to allow the petitioner to enter opposition. This application was made
under section 113 of the Code of Civil Procedure and was denied by the Court of First Instance
on the ground that more than six months had elapsed since the date of the order of probate and
prior to the filing of the motion.
The present application was thereupon made to the Supreme Court on December 21, 1918,
under section 513 of the Code of Civil Procedure, as already stated.

September 13, 1919

ANTONIA RIERA Y BOTELLAS, petitioner,

vs.
VICENTE PALMAROLI, Consul General for Spain, VICENTE PALMAROLI, Administrator of
the Estate of Juan Pons y Coll, and the Honorable Pedro Concepcion, Judge of the Court
of First Instance of the city of Manila, respondents.
Wolfson and Wolfson for petitioner.
Antonio V. Herrero for respondents.

The will to which reference has been made purports, for reasons stated therein, to deprive the
petitioner of participation in the testator's estate a step which the test at or says he was
authorized to take under the foral regimen prevailing in the Balearic Islands. It is therefore,
apparent that the probate of the will was in fact prejudicial to the petitioner, as alleged; and the
petitioner claims that, as a party interested in the estate, she is entitled to be heard in the matter
of the probate of the will, having been prevented from appearing and contesting the original
application by circumstances over which she had no control.

For the purpose of the solution of the questions arising in this case, the facts may be taken to be
as follows: Juan Pons y Coll, a Spanish subject resident in the Philippine Islands, died on April
16, 1918, in the city of Manila. The petitioner is the widow of the deceased and was at the time
of her husband's death residing in Palma de Mallorca in the Balearic Islands.

The order of the Court of First Instance of May 20, 1918, against which relief is sought, is
attacked by the petitioner on grounds having relation chiefly to the formalities incident to the
execution of the will. In the first place it is said that if the will be considered with reference to our
statutes generally applicable to wills, it is void for failure to comply with the requirements of Act
No. 2645 of the Philippine Legislature. In this connection attention is directed to the fact that the
will is not signed on the left margin of each page by the attesting witnesses and the pages are
not numbered as Act No. 2645 requires. In the second place it is said that if the will in question
be considered as the will of a Spanish subject, provable under the special provisions of section
636 of the Code of Civil Procedure, then it must be treated as void, for failure to comply with
various requirements unnecessary to be here stated in detail of the Spanish laws in
respect to the manner of execution of wills. As will be at once apparent from an examination of
section 636 of the Code of Civil Procedure, if the will was in fact provable as the will of a Spanish
subject, under that section, and was admitted to probate as such, compliance with the
requirements of our local laws relative to the execution of wills was not necessary. In such case
the provisions governing the execution of the will are to be sought in the laws of the country of
which the testator was a subject.

On April 19, 1918, the respondent Vicente Palmaroli, Consul General for Spain in the Philippine
Islands, produced in the Court of First Instance in the city of Manila a document dated on March
16, 1918, purporting to be the will of Juan Pons y Coll, and asked that it be admitted to probate.
Publication was accordingly made, and on May 20, 1918, order was entered admitting the will to
probate.

Another irregularity in the admission of the will in question to probate, as stated in the petition, is
that the document produced in court and actually proved as the will of the decedent was not the
original but a copy certified by the Spanish Consul General in this city from the records of his
own office, the will having been executed before him on April 16, 1918, pursuant to authority
contained in the Treaty between the United States and Spain proclaimed on April 20, 1903.

STREET, J.:
This is an original petition filed in the Supreme Court under section 513 of the Code of Civil
Procedure by Antonio Riera y Botellas, the purpose of which is to vacate an order of the Court of
First Instance of the city of Manila admitting to probate the will of Juan Pons y Coll, and to cause
the application for probate to be set for rehearing in the Court of First Instance. The respondents
having been required to answer, the cause is now here heard on petition and answer, no formal
proof having been as yet submitted.

The question here presented in therefore this: Can a party who is interested in the estate of a
deceased person, and who has been prevented by inevitable conditions from opposing the
probate of the will, obtain from the Supreme Court, under section 513 of the Code of Civil
Procedure, an order for a rehearing in the Court of First Instance, it being alleged that she will
was not executed with the formalities required by law and hence was improperly admitted to
probate?
In the case of the Estate of Johnson (39 Phil. Rep., 156),we held that a Court of First Instance
has the power, under section 113 of the Code of Civil Procedure, to set aside an order admitting
a will to probate and to grant a rehearing of the application to admit the will, upon a showing
from a person interested in the estate to the effect that the order of probate was erroneous and
that the applicant had been prevented by conditions over which he had no control from
appearing at the original hearing and opposing the probate of the will. It was also suggested
in Banco Espaol-Filipino vs. Palanca (37 Phil. Rep., 921) that the remedy conceded in section
513 of the Code of Civil Procedure is supplementary to that conceded in section 113 of the same
Code; and it was added that apart from these remedies there is no other means recognized in
our procedure whereby a defeated party can, by a proceeding in the same cause, procure a
judgment to be set aside with a view to the renewal of the litigation.
We shall now proceed to consider somewhat more closely the effect of the two sections of the
Code of Civil Procedure above cited, in relation to each other and with special reference to the
facts now before us. To this end it is desirable to confront the text of the provisions in question:
SEC. 113. Upon such terms as may be just the court may relieve a party or his legal
representative from a judgment, order, or other proceeding taken against him through
his mistake, inadvertence, surprise, or excusable neglect: Provided, That application
therefor be made within a reasonable time, but in no case exceeding six months after
such judgment, order, or proceeding was taken.
SEC. 513. When a judgment is rendered by a Court of First Instance upon default,
and a party thereto is unjustly deprived of a hearing by fraud, accident, mistake, or
excusable negligence, and the Court of First Instance which rendered the judgment
has finally adjourned so that no adequate remedy exists in that court, the party so
deprived of a hearing may present his petition to the Supreme Court within sixty days
after he first learns of the rendition of such judgment, and not thereafter, setting forth
the facts and praying to have such judgment set aside. . . .
By comparing these two provisions it will be seen that the operative equity which is
contemplated as the basis of relief is similar, if not identical, in both cases, inasmuch as the
"mistake, inadvertence, surprise or excusable neglect, "contemplated in section 113, is
substantially the same as the "fraud, accident, mistake or excusable negligence" of section 513.
It is true that fraud is not mentioned as aground of relief in section 113; but as was indicated in
Mortera and Eceiza vs. West of Scotland Insurance Office, Ltd. (36 Phil. Rep., 994), if a
judgment is procured by concealed fraudulent practices the party injured may sometimes at
least be relieved on the ground that there was an excusable neglect on his part in failing to
discover and defeat such practice. With this prefatory observation we proceed to consider the
restrictions placed upon the use of the remedy conceded in section 513.

The first point to which we direct our comment has reference to the lack of an adequate remedy
in the Court of First Instance. It is expressly declared in section 513 that the remedy granted
thereby is available only in case "the Court of First Instance which rendered the judgment has
finally adjourned so that no adequate remedy exists in that court." A moment's inspection of the
entire section is sufficient to show that the quoted words are not homogeneous with the
remainder of the section, and moreover they are not well adjusted to the sense and effect of
section 113. The inference is plain that they were inserted in section 513 probably by way of
amendment and by a person other than the original author. The person who wrote these words
evidently supposed that by the mere fact of adjournment a Court of First Instance loses the
power to entertain an application for relief of the character here contemplated. It is quite obvious,
however, that the power granted in section 113 continues for six months regardless of the
adjournment of the court. In our judicial system a Court of First Instance exists in each province,
and a clerk is maintained at the place appointed for the holding of court, whose duty it is to
receive and file applications, petitions, and complaints of all sorts. Consequently when an
application for relief against any judgment is properly made under section 113, and filed in the
court, the matter is before the judge for action upon the convening of the next session. The mere
fact of adjournment cannot really have the effect of shortening the period of six months allowed
in section 113. In many American jurisdictions, however, the ending of the term of court
terminates absolutely the power of the court over its judgments. To a person whose mind is
imbued with this idea, the words "When . . . the Court of First Instance which rendered the
judgment has finally adjourned" can only be understood as referring loosely to cases where the
Court of First Instance has by the affluxion of time lost all power to set aside or modify its
judgment; and this we consider to be its true meaning. The consequence is that the remedy
conceded in section 513 is available, other conditions concurring, whenever the Court of First
Instance is powerless to grant relief, without regard to the six months limitation fixed in section
113. The sense of this construction may perhaps be further elucidated by saying that the
controlling idea is the want of adequate remedy in the Court of First Instance; and the reference
to final adjournment in section 513 is to be taken merely as explanatory of the want of remedy in
that court and not as embodying any absolute restriction upon the remedy conceded in section
513.
It may be argued that the words "and the Court of First Instance which rendered the judgment
has finally adjourned so that no adequate remedy exists in that court" were intended to be
applicable exclusively to the case where the Court of First Instance might, if not already
adjourned, grant relief under section 113, but is prevented from so doing solely by reason of the
fact of adjournment. This would seem at first blush to be the literal sense of the words used, but
it gives to the provision an application so narrow as to defeat the manifest purpose of the
legislator; for under section 113 the power of the Court of First Instance to grant relief is limited
to applications made within six months after entry of the judgment against which relief is sought.
If the meaning be as here suggested, the relief grantable by the Supreme Court under section
513 would also be necessarily limited to applications made within six months, or at most, within
sixty days after the expiration of six months, and then only when it should appear that the lower
court had finally adjourned before the six months within which it could have granted relief had
expired. In this view the sole function served by section 513 is to make sure that a person may
obtain relief in the Supreme Court whenever the Court of First Instance had adjourned before six
months after judgment entered; and no relief could be granted by the Supreme Court upon
applications made after the expiration of eight months from the date of the judgment.
We consider this interpretation incorrect. It can hardly be supposed that section 513 would have
been incorporated in the Code if the only idea was to enable a party having a right to relief in the

Court of First Instance under section 113 to direct his petition to the Supreme Court only when
the Court of First Instance has adjourned prior to the end of six months after judgment entered.
If such were the idea, the provision in question is, as we have already seen, superfluous. The
real purpose of section 513 in our opinion is to enable an injured party under the conditions
stated to apply to the Supreme Court without reference to the six months limitation expressed in
section 113; and the expression "when the Court of First Instance . . . has finally adjourned," as
used in section 513, must not be understood as referring exclusively to adjournment within six
months after judgment entered.
It is generally recognized that if a statute is ambiguous and capable of more than one
construction, the literal meaning of the words used may be rejected if the result of adopting such
meaning would be to defeat the purpose of the legislature had in view. It is declared in article
1281 of the Civil Code that if the words of a contract appear to be contrary to the evident
intention of the contracting parties, the intention shall prevail. This rule is there stated with
respect to the interpretation of contracts; but the same idea may be accepted, though guardedly,
as applicable in the interpretation of statutes, and more especially those of a remedial nature.
Statutes of this kind are liberally construed to promote the object which the legislature may be
supposed to have had in view.
From what has been said it will be seen that the jurisdiction of the Supreme Court to entertain a
petition of the character of that now before us begins in point of time when the period has
passed within which it was competent for the Court of First Instance to entertain an application
under section 113; and apart from the requirement that the application must be made to the
Supreme Court within two months after the petitioner first learns of the rendition of judgment
against which relief is sought, there is no absolute limit to the period within which the application
may be made. But of course if relief from a judgment is sought by timely application in the Court
of First Instance, and the application is there denied, no petition based on the same ground will
thereafter be entertained in the Supreme Court under section 513, as the proper remedy in that
case would be to appeal from the action of the Court of First Instance. (Rabajante vs. Moir and
Rances, 28 Phil. Rep., 161.)
Proceeding now to a further comparison of sections 113 and 513, it is noteworthy that while the
power of the Court of First Instance to grant relief under section 113 extends to the setting aside
of any judgment, order or proceeding whatever, the power of the Supreme Court under section
513 is limited to granting a new trial upon judgments rendered upon default.
Now what is the meaning of "judgment rendered upon default," as used in section 513? The
reference is of course to the default mentioned in section 128 of the Code of Civil Procedure.
(Simon vs. Castro and Castro, 6 Phil. Rep., 335,337.) A default, such as is there intended, can
only arise in contentious litigation where a party who has been impleaded as a defendant and
served with process fails to appear at the time required in the summons or to answer at the time
provided by the rules of the court. The proceeding to probate a will is not a contentious litigation
in any sense, because nobody is impleaded or served with process. It is a special proceeding,
and although notice of the application is published, nobody is bound to appear and no order for
judgment by default, is ever entered. If the application is not opposed, the court may allow the
will on the testimony of one of the subscribing witnesses only (sec. 631, Code Civ. Proc.),
provided none of the reasons specified in section 634 of the Code of Civil Procedure for
disallowing the will are found to exist. If any interested person opposes the probate, the court
hears the testimony and allows or disallows the will accordingly. From such judgment any
interested person may appeal to the Supreme Court within twenty days. (Sec. 781, Code Civ

Proc.) Though the action taken by a Court of First Instance in thus allowing or disallowing a will
is properly denominated a judgment, it is not a judgment rendered upon default even though no
person appears to oppose the probate.
It is manifest from this that the remedy given in section 513 can have no application to the order
of May 20, 1918, legalizing the will of Juan Pons y Coll; and this is necessarily fatal to the
petition before us. This consequence follows regardless of any irregularities that may have
occurred in the Court of First Instance in admitting the will to probate and regardless of any error
which that court may have committed in the action taken upon the proof submitted at the
hearing. It is not alleged that any fraud has been attempted or committed, or that the document
probated is any other than a testamentary memorial in which the decedent actually gave
expression to his desires with regard to the disposition of his property. But if fraud had been
charged as, for instance, if it were alleged that the purported will is forged document the
remedy, if any exists, would not be found in a proceeding under section 513, but in an original
action in the Court of First Instance. It thus becomes unneccessary to inquire whether the will in
question was in fact executed in conformity with the requirements of law either of these
Islands or of Spain.
As a result of this decision it cannot be denied that, without any fault on the part of the petitioner
or her attorneys, she has been deprived not only of the opportunity of opposing the will and
appealing from the order of probate but also of the opportunity of applying to the Court of First
Instance for relief under section 113. Even assuming that she could have procured the
disallowance of the will by either of those methods a point upon which no pronouncement can
here be made it is obvious that the impossibility of her thus obtaining relief was due to
circumstances peculiar to this case; and the possibility of occassional hardship cannot affect the
validity of our procedure for the probate of wills (Estate of Johnson, supra.)
A will is nothing more than a species of conveyance whereby a person is permitted, with the
formalities prescribed by law, to control in a certain degree the disposition of his property after
his death. Out of consideration for the important interests involved the execution and proof of
wills has been surrounded by numerous safeguards, among which is the provisions that after
death of the testator his will may be judicially established in court. The action of the court in
admitting a will to probate has all the effect of a judgment; and as such is entitled to full faith and
credit in other courts. The proceeding by which this is accomplished is considered to be in the
nature of a proceeding in rem, and upon this idea the decree of probate is held binding on all
persons in interest, whether they appear to contest the probate or not. The proceeding is not a
contentious litigation; and though the persons in interest are given an opportunity to appear and
reasonable precautions are taken for publicity, they are not impleaded or required to answer.
As has been repeatedly stated in the decisions of this court, the probate of a will, while
conclusive as to its due execution, in no wise involves the intrinsic validity of its provisions. If,
therefore, upon the distribution of the estate of Juan Pons y Coll, it should appear that any
provision of his will is contrary to the law applicable to his case, the will must necessarily yield
upon that point and the disposition made by law must prevail. The petitioner is therefore free to
appear in the Court of First Instance at the proper juncture and discuss the questions of the
validity of such provisions of the will as affect her interests adversely; and so far as we can see,
on the facts before us, this is her only recourse. But if the will in question was in fact proved as
the will of a Spanish subject under section 636 of the Code of Civil Procedure, the intrinsic
validity of its provisions must be determined under the Spanish law applicable to this testator.

After the resolution embodied in the preceding opinion had been adopted by the court, but
before the decision had been promulgated, the attorneys for the petitioner moved that an order
be entered for the submission of evidence and that the clerk of this court be appointed
commissioner to take the same, upon designation by him of the time and place therefor.
The step indicated would be proper if the facts stated in the petition had been found sufficient to
entitle the petitioner to relief, but inasmuch as the petition is in our opinion insufficient, the
making of the order suggested becomes unneccessary.
In this connection it may be well to estate that when a petition for relief in the exercise of our
original jurisdiction is presented to this court, we are accustomed to consider the case as being
at all times before us for the purpose of determining the legal sufficiency of the petition; and
when it is found at any stage of the proceeding that the allegations of the complaint are
insufficient to entitle the petitioner to relief of any sort, it is our practice to enter an order upon
our own motion dismissing the petition. Where the defect apparent in the petition is of a sort that
might be cured by amendment, the order of dismissal is made conditional upon the failure of the
petitioner to amend within a period stated. On the other hand where the defect is manifestly
incurable it is proper to make the order of dismissal absolute, and such appears to be the correct
practice.
In the course of the preceding discussion we have, for the purpose of explaining the situation
more clearly, permitted ourselves to refer to at least one detail not stated in the petition, as
where we state that the will purports to disinherit the petitioner. This fact, however, if not
admitted, is incontrovertible and apparent from the copy of the will exhibited with the answer.
Moreover, the point that no decisive influence on the decision. Our opinion therefore is to be
taken as an expression of our opinion upon the legal sufficiency of the petition exclusively upon
the statements contained therein.
As will be discovered from the opinion, the inability of this court to grant relief in the case before
us is really due to the fact that the remedy conceded in section 513 admitting wills to probate.
The defect from which the petition suffers is therefore not curable by amendment and cannot be
aided by the taking of proof. The request for an order allowing proof to be submitted must
therefore be denied, and judgment absolute will be entered dismissing the petition with costs.
Arellano, C.J., Torres, Johnson, Araullo, Malcolm, Avancea and Moir, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC

G.R. No. 38050

September 22, 1933

In the matter of the will of Donata Manahan. TIBURCIA MANAHAN, petitioner-appellee,

vs.
ENGRACIA MANAHAN, opponent-appellant.
J. Fernando Rodrigo for appellant.
Heraclio H. del Pilar for appellee.
IMPERIAL, J.:
This is an appeal taken by the appellant herein, Engracia Manahan, from the order of the Court
of the First Instance of Bulacan dated July 1, 1932, in the matter of the will of the deceased
Donata Manahan, special proceedings No. 4162, denying her motion for reconsideration and
new trial filed on May 11, 1932.
The fact in the case are as follows:
On August 29, 1930, Tiburcia Manahan instituted special proceedings No. 4162, for the probate
of the will of the deceased Donata Manahan, who died in Bulacan, Province of Bulacan, on
August 3, 1930. The petitioner herein, niece of the testatrix, was named the executrix in said will.
The court set the date for the hearing and the necessary notice required by law was accordingly
published. On the day of the hearing of the petition, no opposition thereto was filed and, after the
evidence was presented, the court entered the decree admitting the will to probate as prayed for.
The will was probated on September 22, 1930. The trial court appointed the herein petitioner
executrix with a bond of P1,000, and likewise appointed the committed on claims and appraisal,
whereupon the testamentary proceedings followed the usual course. One year and seven
months later, that is, on My 11, 1932, to be exact, the appellant herein filed a motion for
reconsideration and a new trial, praying that the order admitting the will to probate be vacated
and the authenticated will declared null and void ab initio. The appellee herein, naturally filed her
opposition to the petition and, after the corresponding hearing thereof, the trial court erred its
over of denial on July 1, 1932. Engracia Manahan, under the pretext of appealing from this last
order, likewise appealed from the judgment admitting the will to probate.
In this instance, the appellant assigns seven (7) alleged errors as committed by the trial court.
Instead of discussing them one by one, we believe that, essentially, her claim narrows down to
the following: (1) That she was an interested party in the testamentary proceedings and, as
such, was entitled to and should have been notified of the probate of the will; (2) that the court,
in its order of September 22, 1930, did not really probate the will but limited itself to decreeing its
authentication; and (3) that the will is null and void ab initio on the ground that the external
formalities prescribed by the Code of Civil Procedure have not been complied with in the
execution thereof.
The appellant's first contention is obviously unfounded and untenable. She was not entitled to
notification of the probate of the will and neither had she the right to expect it, inasmuch as she
was not an interested party, not having filed an opposition to the petition for the probate thereof.
Her allegation that she had the status of an heir, being the deceased's sister, did not confer on
her the right to be notified on the ground that the testatrix died leaving a will in which the

appellant has not been instituted heir. Furthermore, not being a forced heir, she did not acquire
any successional right.
The second contention is puerile. The court really decreed the authentication and probate of the
will in question, which is the only pronouncement required of the trial court by the law in order
that the will may be considered valid and duly executed in accordance with the law. In the
phraseology of the procedural law, there is no essential difference between the authentication of
a will and the probate thereof. The words authentication and probate are synonymous in this
case. All the law requires is that the competent court declared that in the execution of the will the
essential external formalities have been complied with and that, in view thereof, the document,
as a will, is valid and effective in the eyes of the law.
The last contention of the appellant may be refuted merely by stating that, once a will has been
authenticated and admitted to probate, questions relative to the validity thereof can no more be
raised on appeal. The decree of probate is conclusive with respect to the due execution thereof
and it cannot impugned on any of the grounds authorized by law, except that of fraud, in any
separate or independent action or proceedings (sec. 625, Code of Civil Procedure;
Castaeda vs. Alemany, 3 Phil., 426; Pimentel vs. Palanca, 5 Phil., 436; Sahagun vs. De
Gorostiza, 7 Phil., 347; Limjuco vs. Ganara, 11 Phil., 393; Montaano vs. Suesa, 14 Phil.,
676; In re Estate of Johnson, 39 Phil., 156; Riera vs. Palmaroli, 40 Phil., 105; Austria vs.
Ventenilla, 21 Phil., 180; Ramirez vs. Gmur, 42 Phil., 855; and Chiong Joc-Soy vs. Vao, 8 Phil.,
119).
But there is another reason which prevents the appellant herein from successfully maintaining
the present action and it is that inasmuch as the proceedings followed in a testamentary case
are in rem, the trial court's decree admitting the will to probate was effective and conclusive
against her, in accordance with the provisions of section 306 of the said Code of Civil Procedure
which reads as follows:

SEC. 306. EFFECT OF JUDGMENT. . . . .

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