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, oppositorsappellants.
Gatchalian and Sison and J. A. Bardelosa, Jr. for petitioner-appellee.
Jose L. Desvarro Jr. for oppositors-appellants
Remedial law; Probate of wills.In petitions for probate, the Courts area of
inquiry is limited to the extrinsic validity of the will, as the 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 intrinsic validity or efficacy of the provisions thereof
or the legality of any devise or legacy is premature.
Same; Implied revocation does not warrant dismissal of petition for probate.
An alleged disposal by testator prior tohis death of the properties involved
in his will is no ground for the dismissal of the petition for probate. Probate is
one thing; the validity of the testamentary provisions is another. The first
decides the execution of the document and the testamentary capacity of the
testator; the second relates to descent and distribution.
Same; Lack of interest bars opposition to probate.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,
L-17091, Sept. 30, 1963) and an interested party is on 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, L-18753, March 26, 1965). Where
oppositors do not take issue with the probate courts finding that they are
totally strangers to the deceased, or do not attempt to show that they have
some interest in the estate which must be protected, the order striking out
their opposition and all other pleadings pertinent thereto must be affirmed.
Same; Appeals; Order striking out opposition to probate not interlocutory.
An order striking out an opposition to the probate of the will on the ground
that the oppositors have no personality to intervene in the case is final, and
therefore appealable insofar as they are concerned.
APPEAL from an order of the Court of First Instance of Quezon. [Sumilang
vs. Ramagosa, 21 SCRA 1369(1967)]
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 intrinsic validity or efficacy of the provisions of the will or the
legality of any devise or legacy is premature. (Nuguid vs. Nuguid, G.R. No. L23445, 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.itc-alf (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 oppositorsappellants.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar,
Sanchez, Castro, Angeles and Fernando, JJ., concur.

G.R. No. 72706 October 27, 1987

CONSTANTINO C. ACAIN, petitioner,
vs.
HON. INTERMEDIATE APPELLATE COURT (Third Special Cases
Division), VIRGINIA A. FERNANDEZ and ROSA DIONGSON,
respondents.
Civil Law; Succession; Preterition, meaning of; Article 854 of the Civil Code
not applicable to the surviving spouse; Adoption makes the adopted the legal
heir of the adopter.Preterition consists in the omission in the testators will
of the forced heirs or anyone of them either because they are not mentioned
therein, or, though mentioned, they are neither instituted as heirs nor are
expressly disinherited (Nuguid v. Nuguid, 17 SCRA 450 [1966]; Maninang v.
Court of Appeals, 114 SCRA [1982]. Insofar as the widow is concerned,
Article 854 of the Civil Code may not apply as she does not ascend or
descend from the testator, although she is a compulsory heir. Stated
otherwise, even if the surviving spouse is a compulsory heir, there is no
preterition even if she is omitted from the inheritance, for she is not in the
direct line. (Art. 854, Civil Code) However, the same thing cannot be said of
the other respondent Virginia A. Fernandez, whose legal adoption by the
testator has not been questioned by petitioner (Memorandum for the
Petitioner, pp. 8-9). Under Article 39 of P.D. No. 603, known as the Child and
Youth Welfare Code, adoption gives to the adopted person the same rights
and duties as if he were a legitimate child of the adopter and makes the
adopted person a legal heir of the adopter. It cannot be denied that she was
totally omitted and preterited in the will of the testator and that both adopted
child and the widow were deprived of at least their legitime. Neither can it be
denied that they were not expressly disinherited. Hence, this is a clear case
of preterition of the legally adopted child.
Same; Same; Same; Preterition annuls the institution of an heir and creates
intestate succession but legacies and devises are valid and respected insofar
as they are not inofficious.Preterition annuls the institution of an heir and
annulment throws open to intestate succession the entire inheritance
including la portion libre (que) no hubiese dispuesto en virtual de legado,
mejora o donation (Manresa, as cited in Nuguid v. Nuguid, supra; Maninang
v. Court of Appeals, 114 SCRA [1982]). The only provisions which do not
result in intestacy are the legacies and devises made in the will for they
should stand valid and respected, except in so far as the legitimes are
concerned.
Same; Same; Same; Same; Institution of petitioner and his brothers and
sisters to the entire inheritance totally abrogates the will.The universal
institution of petitioner together with his brothers and sisters to the entire
inheritance of the testator results in totally abrogating the will because the
nullification of such institution of universal heirswithout any other
testamentary disposition in the willamounts to a declaration that nothing at

all was written. Carefully worded and in clear terms, Article 854 of the Civil
Code offers no leeway for inferential interpretation (Nuguid v. Nuguid), supra.
No legacies nor devises having been provided in the will the whole property
of the deceased has been left by universal title to petitioner and his brothers
and sisters. The effect of annulling theinstitution of heirs will be, necessarily,
the opening of a total intestacy (Neri v. Akutin, 74 Phil. 185 [1943]) except
that proper legacies and devises must, as already stated above, be
respected.
Same; Same; Probate of a will; Petitioner has no legal standing to petition for
the probate of the will of the deceased, hence Special Proceeding No. 591-ACEB must be dismissed.In order that a person may be allowed to intervene
in a probate proceeding he must have an interest in the estate, or in the will,
or in the property to be affected by it either as executor or as a claimant of
the estate and an interested party is one who would be benefited by the
estate such as an heir or one who has a claim against the estate like a
creditor (Sumilang v. Ramagosa, 21 SCRA 1369/1967). Petitioner is not the
appointed executor, neither a devisee or a legatee there being no mention in
the testamentary disposition of any gift of an individual item of personal or
real property he is called upon to receive (Article 782, Civil Code). At the
outset, he appears to have an interest in the will as an heir, defined under
Article 782 of the Civil Code as a person called to the succession either by
the provision of a will or by operation of law. However, intestacy having
resulted from the preterition of respondent adopted child and the universal
institution of heirs, petitioner is in effect not an heir of the testator. He has no
legal standing to petition for the probate of the will left by the deceased and
Special Proceedings No. 591-A-CEB must be dismissed.
Same; Same; Same; Rule that probate Courts authority is limited only to the
extrinsic validity of the will, not inflexible and absolute; Court may pass upon
the intrinsic validity of the will under exceptional circumstances.Special
Proceedings No. 591-CEB is for the probate of a will. As stated by
respondent Court, the general rule is that the probate courts authority is
limited only to the extrinsic validity of the will, the due execution thereof, the
testators testamentary capacity and the compliance with the requisites or
solemnities prescribed by law. The intrinsic validity of the will normally come
only after the Court has declared that the will has been duly authenticated.
Said court at this stage of the proceedings is not called upon to rule on the
intrinsic validity or efficacy of the provisions of the will (Nuguid v. Nuguid, 17
SCRA 449 [1966]; Sumilang v. Ramagosa, supra; Maninang v. Court of
Appeals, 114 SCRA 478 [1982]; Cayetano v. Leonidas, 129 SCRA 522
[1984]); and Nepomuceno v. Court of Appeals, 139 SCRA 206 [1985]). The
rule, however, is not inflexible and absolute. Under exceptional
circumstances, the probate court is not powerless to do what the situation
constrains it to do and pass upon certain provisions of the will (Nepomuceno
v. Court of Appeals, supra). In Nuguid v. Nuguid the oppositors to the probate
moved to dismiss on the ground of absolute preterition. The probate court
acting on the motion held that the will in question was a complete nullity and

dismissed the petition without costs. On appeal the Supreme Court upheld
the decision of the probate court, induced by practical considerations.
Same; Same; Same; Same; Trial Court could have denied outright the
probate of the will or have passed upon its intrinsic validity where on its face
it appears to be intrinsically void.For private respondents to have tolerated
the probate of the will and allowed the case to progress when on its face the
will appears to be intrinsically void as petitioner and his brothers and sisters
were instituted as universal heirs coupled with the obvious fact that one of
the private respondents had been preterited would have been an exercise in
futility. It would have meant a waste of time, effort, expense, plus added
futility. The trial court could have denied its probate outright or could have
passed upon the intrinsic validity of the testamentary provisions before the
extrinsic validity of the will was resolved (Cayetano v. Leonidas, supra;
Nuguid v. Nuguid, supra). The remedies of certiorari and prohibition were
properly availed of by private respondents.
Certiorari; Remedy of Certiorari cannot be a substitute for appeal, exception.
As a general rule certiorari cannot be a substitute for appeal, except when
the questioned order is an oppressive exercise of judicial authority (People v.
Villanueva, 110 SCRA 465 [1981]; Vda. de Caldito v. Segundo, 117 SCRA
573 [1982]; Co Chuan Seng v. Court of Appeals, 128 SCRA 308 [1984]; and
Bautista v. Sarmiento, 138 SCRA 587 [1985]). It is axiomatic that the
remedies of certiorari and prohibition are not available where the petitioner
has the remedy of appeal or some other plain, speedy and adequate remedy
in the course of law (D.D. Comendador Construction Corporation v. Sayo
(118 SCRA 590 [1982]). They are, however, proper remedies to correct a
grave abuse of discretion of the trial court in not dismissing a case where the
dismissal is founded on valid grounds (Vda. de Bacang v. Court of Appeals,
125 SCRA 137 [1983]).
Same; Same; Certiorari may be entertained where appeal will not afford a
speedy and adequate relief.Thus, this Court ruled that where the grounds
for dismissal are indubitable, the defendants had the right to resort to the
more speedy, and adequate remedies of certiorari and prohibition to correct a
grave abuse of discretion, amounting to lack of jurisdiction, committed by the
trial court in not dismissing the case, (Vda. de Bacang v. Court of Appeals,
supra) and even assuming the existence of the remedy of appeal, the Court
harkens to the rule that in the broader interests of justice, a petition for
certiorari may be entertained, particularly where appeal would not afford
speedy and adequate relief.
PETITION for certiorari to review the decision of the Court of Appeals. Melo,
J.
The facts are stated in the opinion of the Court. [Acain vs. Intermediate
Appellate Court, 155 SCRA 100(1987)]
PARAS, J.:

This is a petition for review on certiorari of the decision * of respondent. Court

of Appeals in AC-G.R. SP No. 05744 promulgated on August 30, 1985 (Rollo,
p. 108) ordering the dismissal of the petition in Special Proceedings No, 591
ACEB and its Resolution issued on October 23, 1985 (Rollo, p. 72) denying
respondents' (petitioners herein) motion for reconsideration.
The dispositive portion of the questioned decision reads as follows:
WHEREFORE, the petition is hereby granted and respondent Regional Trial
Court of the Seventh Judicial Region, Branch XIII (Cebu City), is hereby
ordered to dismiss the petition in Special Proceedings No. 591 ACEB No
special pronouncement is made as to costs.
The antecedents of the case, based on the summary of the Intermediate
Appellate Court, now Court of Appeals, (Rollo, pp. 108-109) are as follows:
On May 29, 1984 petitioner Constantino Acain filed on the Regional Trial
Court of Cebu City Branch XIII, a petition for the probate of the will of the late
Nemesio Acain and for the issuance to the same petitioner of letters
testamentary, docketed as Special Proceedings No. 591 ACEB (Rollo, p. 29),
on the premise that Nemesio Acain died leaving a will in which petitioner and
his brothers Antonio, Flores and Jose and his sisters Anita, Concepcion,
Quirina and Laura were instituted as heirs. The will allegedly executed by
Nemesio Acain on February 17, 1960 was written in Bisaya (Rollo, p. 27) with
a translation in English (Rollo, p. 31) submi'tted by petitioner without
objection raised by private respondents. The will contained provisions on
burial rites, payment of debts, and the appointment of a certain Atty. Ignacio
G. Villagonzalo as the executor of the testament. On the disposition of the
testator's property, the will provided:
THIRD: All my shares that I may receive from our properties. house, lands
and money which I earned jointly with my wife Rosa Diongson shall all be
given by me to my brother SEGUNDO ACAIN Filipino, widower, of legal age
and presently residing at 357-C Sanciangko Street, Cebu City. In case my
brother Segundo Acain pre-deceased me, all the money properties, lands,
houses there in Bantayan and here in Cebu City which constitute my share
shall be given to me to his children, namely: Anita, Constantino, Concepcion,
Quirina, laura, Flores, Antonio and Jose, all surnamed Acain.
Obviously, Segundo pre-deceased Nemesio. Thus it is the children of
Segundo who are claiming to be heirs, with Constantino as the petitioner in
Special Proceedings No. 591 ACEB
After the petition was set for hearing in the lower court on June 25, 1984 the
oppositors (respondents herein Virginia A. Fernandez, a legally adopted

daughter of tile deceased and the latter's widow Rosa Diongson Vda. de
Acain filed a motion to dismiss on the following grounds for the petitioner has
no legal capacity to institute these proceedings; (2) he is merely a universal
heir and (3) the widow and the adopted daughter have been pretirited. (Rollo,
p. 158). Said motion was denied by the trial judge.
After the denial of their subsequent motion for reconsideration in the lower
court, respondents filed with the Supreme Court a petition for certiorari and
prohibition with preliminary injunction which was subsequently referred to the
Intermediate Appellate Court by Resolution of the Court dated March 11,
1985 (Memorandum for Petitioner, p. 3; Rollo, p. 159).
Respondent Intermediate Appellate Court granted private respondents'
petition and ordered the trial court to dismiss the petition for the probate of
the will of Nemesio Acain in Special Proceedings No. 591 ACEB
His motion for reconsideration having been denied, petitioner filed this
present petition for the review of respondent Court's decision on December
18, 1985 (Rollo, p. 6). Respondents' Comment was filed on June 6, 1986
(Rollo, p. 146).
On August 11, 1986 the Court resolved to give due course to the petition
(Rollo, p. 153). Respondents' Memorandum was filed on September 22,
1986 (Rollo, p. 157); the Memorandum for petitioner was filed on September
29, 1986 (Rollo, p. 177).
Petitioner raises the following issues (Memorandum for petitioner, p. 4):
(A)
The petition filed in AC-G.R. No. 05744 for certiorari and prohibition
with preliminary injunction is not the proper remedy under the premises;
(B)
The authority of the probate courts is limited only to inquiring into the
extrinsic validity of the will sought to be probated and it cannot pass upon the
intrinsic validity thereof before it is admitted to probate;
(C)
The will of Nemesio Acain is valid and must therefore, be admitted to
probate. The preterition mentioned in Article 854 of the New Civil Code refers
to preterition of "compulsory heirs in the direct line," and does not apply to
private respondents who are not compulsory heirs in the direct line; their
omission shall not annul the institution of heirs;
(D)
DICAT TESTATOR ET MERIT LEX. What the testator says will be
the law;
(E)
There may be nothing in Article 854 of the New Civil Code, that
suggests that mere institution of a universal heir in the will would give the heir

so instituted a share in the inheritance but there is a definite distinct intention

of the testator in the case at bar, explicitly expressed in his will. This is what
matters and should be in violable.
(F)
As an instituted heir, petitioner has the legal interest and standing to
file the petition in Sp. Proc. No. 591 ACEB for probate of the will of Nemesio
Acain and
(G)
Article 854 of the New Civil Code is a bill of attainder. It is therefore
unconstitutional and ineffectual.
The pivotal issue in this case is whether or not private respondents have
been pretirited.
Article 854 of the Civil Code provides:
Art. 854.
The preterition or omission of one, some, or all of the
compulsory heirs in the direct line, whether living at the time of the execution
of the will or born after the death of the testator, shall annul the institution of
heir; but the devisees and legacies shall be valid insofar as they are not;
inofficious.
If the omitted compulsory heirs should die before the testator, the institution
shall he effectual, without prejudice to the right of representation.
Preterition consists in the omission in the testator's will of the forced heirs or
anyone of them either because they are not mentioned therein, or, though
mentioned, they are neither instituted as heirs nor are expressly disinherited
(Nuguid v. Nuguid, 17 SCRA 450 [1966]; Maninang v. Court of Appeals, 114
SCRA 478 [1982]). Insofar as the widow is concerned, Article 854 of the Civil
Code may not apply as she does not ascend or descend from the testator,
although she is a compulsory heir. Stated otherwise, even if the surviving
spouse is a compulsory heir, there is no preterition even if she is omitted
from the inheritance, for she is not in the direct line. (Art. 854, Civil code)
however, the same thing cannot be said of the other respondent Virginia A.
Fernandez, whose legal adoption by the testator has not been questioned by
petitioner (.Memorandum for the Petitioner, pp. 8-9). Under Article 39 of P.D.
No. 603, known as the Child and Youth Welfare Code, adoption gives to the
adopted person the same rights and duties as if he were a legitimate child of
the adopter and makes the adopted person a legal heir of the adopter. It
cannot be denied that she has totally omitted and preterited in the will of the
testator and that both adopted child and the widow were deprived of at least
their legitime. Neither can it be denied that they were not expressly
disinherited. Hence, this is a clear case of preterition of the legally adopted
child.

Pretention annuls the institution of an heir and annulment throws open to

intestate succession the entire inheritance including "la porcion libre (que) no
hubiese dispuesto en virtual de legado mejora o donacion" Maniesa as cited
in Nuguid v. Nuguid, supra; Maninang v. Court of Appeals, 114 SCRA [1982]).
The only provisions which do not result in intestacy are the legacies and
devises made in the will for they should stand valid and respected, except
insofar as the legitimes are concerned.
The universal institution of petitioner together with his brothers and sisters to
the entire inheritance of the testator results in totally abrogating the will
because the nullification of such institution of universal heirs-without any
other testamentary disposition in the will-amounts to a declaration that
nothing at all was written. Carefully worded and in clear terms, Article 854 of
the Civil Code offers no leeway for inferential interpretation (Nuguid v.
Nuguid), supra. No legacies nor devises having been provided in the will the
whole property of the deceased has been left by universal title to petitioner
and his brothers and sisters. The effect of annulling the "Institution of heirs
will be, necessarily, the opening of a total intestacy (Neri v. Akutin, 74 Phil.
185 [1943]) except that proper legacies and devises must, as already stated
above, be respected.
We now deal with another matter. In order that a person may be allowed to
intervene in a probate proceeding he must have an interest iii the estate, or
in the will, or in the property to be affected by it either as executor or as a
claimant of the estate and an interested party is one who would be benefited
by the estate such as an heir or one who has a claim against the estate like a
creditor (Sumilang v. Ramagosa, 21 SCRA 1369/1967). Petitioner is not the
appointed executor, neither a devisee or a legatee there being no mention in
the testamentary disposition of any gift of an individual item of personal or
real property he is called upon to receive (Article 782, Civil Code). At the
outset, he appears to have an interest in the will as an heir, defined under
Article 782 of the Civil Code as a person called to the succession either by
the provision of a will or by operation of law. However, intestacy having
resulted from the preterition of respondent adopted child and the universal
institution of heirs, petitioner is in effect not an heir of the testator. He has no
legal standing to petition for the probate of the will left by the deceased and
Special Proceedings No. 591 A-CEB must be dismissed.
As a general rule certiorari cannot be a substitute for appeal, except when
the questioned order is an oppressive exercise of j judicial authority (People
v. Villanueva, 110 SCRA 465 [1981]; Vda. de Caldito v. Segundo, 117 SCRA
573 [1982]; Co Chuan Seng v. Court of Appeals, 128 SCRA 308 [1984]; and
Bautista v. Sarmiento, 138 SCRA 587 [1985]). It is axiomatic that the
remedies of certiorari and prohibition are not available where the petitioner
has the remedy of appeal or some other plain, speedy and adequate remedy
in the course of law (DD Comendador Construction Corporation v. Sayo (118

SCRA 590 [1982]). They are, however, proper remedies to correct a grave
abuse of discretion of the trial court in not dismissing a case where the
dismissal is founded on valid grounds (Vda. de Bacang v. Court of Appeals,
125 SCRA 137 [1983]).
Special Proceedings No. 591 ACEB is for the probate of a will. As stated by
respondent Court, the general rule is that the probate court's authority is
limited only to the extrinsic validity of the will, the due execution thereof, the
testator's testamentary capacity and the compliance with the requisites or
solemnities prescribed by law. The intrinsic validity of the will normally comes
only after the Court has declared that the will has been duly authenticated.
Said court at this stage of the proceedings is not called upon to rule on the
intrinsic validity or efficacy of the provisions of the will (Nuguid v. Nuguid, 17
SCRA 449 [1966]; Sumilang v. Ramagosa, supra; Maninang v. Court of
Appeals, 114 SCRA 478 [1982]; Cayetano v. Leonides, 129 SCRA 522
[1984]; and Nepomuceno v. Court of Appeals, 139 SCRA 206 [1985]).
The rule, however, is not inflexible and absolute. Under exceptional
circumstances, the probate court is not powerless to do what the situation
constrains it to do and pass upon certain provisions of the will (Nepomuceno
v. Court of Appeals, supra). In Nuguid v. Nuguid the oppositors to the probate
moved to dismiss on the ground of absolute preteriton The probate court
acting on the motion held that the will in question was a complete nullity and
dismissed the petition without costs. On appeal the Supreme Court upheld
the decision of the probate court, induced by practical considerations. The
Court said:
We pause to reflect. If the case were to be remanded for probate of the will,
nothing will be gained. On the contrary, this litigation will be protracted. And
for aught that appears in the record, in the event of probate or if the court
rejects the will, probability exists that the case will come up once again
before us on the same issue of the intrinsic validity or nullity of the will.
Result: waste of time, effort, expense, plus added anxiety. These are the
practical considerations that induce us to a belief that we might as well meet
head-on the issue of the validity of the provisions of the will in question. After
all there exists a justiciable controversy crying for solution.
In Saguimsim v. Lindayag (6 SCRA 874 [1962]) the motion to dismiss the
petition by the surviving spouse was grounded on petitioner's lack of legal
capacity to institute the proceedings which was fully substantiated by the
evidence during the hearing held in connection with said motion. The Court
upheld the probate court's order of dismissal.
In Cayetano v. Leonides, supra one of the issues raised in the motion to
dismiss the petition deals with the validity of the provisions of the will.
Respondent Judge allowed the probate of the will. The Court held that as on

its face the will appeared to have preterited the petitioner the respondent
judge should have denied its probate outright. Where circumstances demand
that intrinsic validity of testamentary provisions be passed upon even before
the extrinsic validity of the will is resolved, the probate court should meet the
issue. (Nepomuceno v. Court of Appeals, supra; Nuguid v. Nuguid, supra).
In the instant case private respondents filed a motion to dismiss the petition
in Sp. Proceedings No. 591 ACEB of the Regional Trial Court of Cebu on the
following grounds: (1) petitioner has no legal capacity to institute the
proceedings; (2) he is merely a universal heir; and (3) the widow and the
adopted daughter have been preterited (Rollo, p. 158). It was denied by the
trial court in an order dated January 21, 1985 for the reason that "the
grounds for the motion to dismiss are matters properly to be resolved after a
hearing on the issues in the course of the trial on the merits of the case
(Rollo, p. 32). A subsequent motion for reconsideration was denied by the
trial court on February 15, 1985 (Rollo, p. 109).
For private respondents to have tolerated the probate of the will and allowed
the case to progress when on its face the will appears to be intrinsically void
as petitioner and his brothers and sisters were instituted as universal heirs
coupled with the obvious fact that one of the private respondents had been
preterited would have been an exercise in futility. It would have meant a
waste of time, effort, expense, plus added futility. The trial court could have
denied its probate outright or could have passed upon the intrinsic validity of
the testamentary provisions before the extrinsic validity of the will was
resolved (Cayetano v. Leonides, supra; Nuquid v. Nuguid, supra. The
remedies of certiorari and prohibition were properly availed of by private
respondents.
Thus, this Court ruled that where the grounds for dismissal are indubitable,
the defendants had the right to resort to the more speedy, and adequate
remedies of certiorari and prohibition to correct a grave abuse of discretion,
amounting to lack of jurisdiction, committed by the trial court in not dismissing
the case, (Vda. de Bacang v. Court of Appeals, supra) and even assuming
the existence of the remedy of appeal, the Court harkens to the rule that in
the broader interests of justice, a petition for certiorari may be entertained,
particularly where appeal would not afford speedy and adequate relief.
(Maninang Court of Appeals, supra).
PREMISES CONSIDERED, the petition is hereby DENIED for lack of merit
and the questioned decision of respondent Court of Appeals promulgated on
August 30, 1985 and its Resolution dated October 23, 1985 are hereby
AFFIRMED.
SO ORDERED.

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

Gancayco, Padilla, Bidin, Sarmiento and Cortes, JJ., concur.

G.R. No. L-53546

June 25, 1992

THE HEIRS OF THE LATE JESUS FRAN and CARMEN MEJIA

RODRIGUEZ, petitioners,
vs.
HON. BERNARDO LL. SALAS, CONCEPCION MEJIA ESPINA and MARIA
MEJIA GANDIONGCO, respondents.
Wills and Testaments; Due Process; Formal notice an idle ceremony where
adverse party had actual knowledge.After the probate court rendered its
decision on 13 November 1972, and there having been no claim presented
despite publication of notice to creditors, petitioner Fran submitted a Project
of Partition which private respondent Maria M. Vda. de Gandiongco
voluntarily signed and to which private respondent Espina expressed her
conformity through a certification filed with the probate court. Assuming for
the sake of argument that private respondents did not receive a formal notice
of the decision as they claim in their Omnibus Motion for Reconsideration,
these acts nevertheless constitute indubitable proof of their prior actual
knowledge of the same. A formal notice would have been an idle ceremony.
In testate proceedings, a decision logically precedes the project of partition,
which is normally an implementation of the will and is among the last
operative acts to terminate the proceedings. If private respondents did not
have actual knowledge of the decision, they should have desisted from
performing the above acts and instead demanded from petitioner Fran the
fulfillment of his alleged promise to show them the will. The same conclusion
refutes and defeats the plea that they were not notified of the order
authorizing the Clerk of Court to receive the evidence and that the Clerk of
Court did not notify them of the date of the reception of evidence. Besides,
such plea must fail because private respondents were present when the
court dictated the said order.
Same; Evidence; Due Process; Clerks of Court are now authorized to receive
evidence ex parte. Contrary rule in Lim Tanhu vs. Ramolete abandoned.
Lim Tanhu then cannot be used as authority to nullify the order of the probate
court authorizing the Clerk of Court to receive the evidence for the rule is
settled that when a doctrine of this Court is overruled and a different view is
adopted, the new doctrine should be applied prospectively, and should not
apply to parties who had relied on the old doctrine and acted on the faith
thereof. It may also be emphasized in this connection that Lim Tanhu did not
live long; it was subsequently overruled in Gochangco vs. Court of First
Instance of Negros Occidental, wherein this Court, en banc, through Justice,
now Chief Justice, Andres R. Narvasa, in reference to what the trial court
termed as the doctrinal rule laid down in the recent case of Lim Tan Hu (sic)
vs. Ramolete, ruled: Now, that declaration does not reflect long observed
and established judicial practice with respect to default cases. It is not quite
consistent, too, with the several explicitly authorized instances under the
Rules where the function of receiving evidence and even of making

recommendatory findings of facts on the basis thereof may be delegated to

commissioners, inclusive of the Clerk of Court. These instances are set out in
Rule 33, x x x; Rules 67 and 69, x x x; Rule 86, x x x; Rule 136, x x x. In all
these instances, the competence of the clerk of court is assumed.
Same; Same; Same; Clerk of Court need not take oath before receiving
evidence ex parte.The alternative claim that the proceedings before the
Clerk of Court were likewise void because said official did not take an oath is
likewise untenable. The Clerk of Court acted as such when he performed the
delegated task of receiving evidence. It was not necessary for him to take an
oath for that purpose; he was bound by his oath of office as a Clerk of Court.
Private respondents are obviously of the impression that by the delegation of
the reception of evidence to the Clerk of Court, the latter became a
commissioner as defined under Rule 33 of the Rules of Court entitled Trial by
Commissioner.
Same; It is not necessary to attach original will to petition for probate.In
Santos vs. Castillo and Salazar vs. Court of First Instance of Laguna,
decided six (6) months apart in 1937, this Court already ruled that it is not
necessary that the original of the will be attached to the petition. In the first, it
ruled: The original of said document [the will] must be presented or sufficient
reasons given to justify the nonpresentation of said original and the
acceptance of the copy or duplicate thereof.
Same; Failure to attach original of will to petition not critical where will itself
was adduced in evidence.It is not likewise disputed that the original of the
will was submitted in evidence and marked as Exhibit F. It forms part of the
records of the special proceedingsa fact which private respondents admit
in their Omnibus Motion for Reconsideration.
Same; Judgments; Due Process; Fraud as ground for relief must be based
on extrinsic fraud.Granting for the sake of argument that the non-fulfillment
of said promise constitutes fraud, such fraud is not of the kind which provides
sufficient justification for a motion for reconsideration or a petition for relief
from judgment under Rule 37 and Rule 38, respectively, of the Rules of
Court, or even a separate action for annulment of judgment. It is settled that
for fraud to be invested with such sufficiency, it must be extrinsic or collateral
to the matters involved in the issues raised during the trial which resulted in
such judgment.
Judgments; Various methods to attack validity of a judgment.In Our
jurisdiction, the following courses of action are open to an aggrieved party to
set aside or attack the validity of a final judgment: (1) Petition for relief under
Rule 38 of the Rules of Court which must be filed within sixty (60) days after
learning of the decision, but not more than six (6) months after such decision
is entered; (2) By direct action, via a special civil action for certiorari, or by
collateral attack, assuming that the decision is void for want of jurisdiction; (3)
By an independent civil action under Article 1114 of the Civil Code, assuming
that the decision was obtained through fraud and Rule 38 can not be applied.
Same; Wills and testaments; A probate judgment long closed cannot be
attacked by mere motion for reconsideration.The probate judgment of 13

November 1972, long final and undisturbed by any attempt to unsettle it, had
inevitably passed beyond the reach of the court below to annul or set the
same aside, by mere motion, on the ground that the will is a forgery. Settled
is the rule that the decree of probate is conclusive with respect to the due
execution of the will 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. We wish also to advert to the related doctrine which holds that
final judgments are entitled to respect and should not be disturbed;
otherwise, there would be a wavering of trust in the courts.
Same; Same; Where part of estate not distributed, recourse is not to re-open
probate proceedings, but motion for execution or action for reconveyance.
The non-distribution of the estate, which is vigorously denied by the
petitioners, is not a ground for the re-opening of the testate proceedings. A
seasonable motion for execution should have been filed. In De Jesus vs.
Daza, this Court ruled that if the executor or administrator has possession of
the share to be delivered, the probate court would have jurisdiction within the
same estate proceeding to order him to transfer that possession to the
person entitled thereto. This is authorized under Section 1, Rule 90 of the
Rules of Court. However, if no motion for execution is filed within the
reglementary period, a separate action for the recovery of the shares would
be in order.
PETITION for certiorari and prohibition to review the orders of the then Court
of First Instance of Cebu, Br. 8. Salas, J.
The facts are stated in the opinion of the Court. [Heir of the Late Jesus Fran
vs. Salas, 210 SCRA 303(1992)]
DAVIDE, JR., J.:
This is a petition for certiorari and prohibition under Rule 65 of the Revised
Rules of Court, with prayer for a writ of preliminary injunction, to annul and
set aside, for having been issued without jurisdiction or with grave abuse of
discretion amounting to lack of jurisdiction, the following Orders of the
respondent Judge in Special Proceedings No. 3309-R of Branch VIII of the
then Court of First Instance (now Regional Trial Court) of Cebu entitled "In
The Matter of the Petition for Probate of the Last Will and Testament of
Remedios Mejia Vda. de Tiosejo:"
1.
The Order of 26 February 1980 setting for hearing private
respondents' Omnibus Motion for Reconsideration 1 which was filed six (6)
years, ten (10) months and eighteen (18) days after the probate judgment
was rendered and six (6) years and twenty-one (21) days after the testate
proceedings was declared closed and terminated; and

2.
The Order of 2 June 1980 finding the signature of the testatrix in the
last will and testament to be a forgery and (a) declaring the testatrix as
having died intestate; (b) declaring the testamentary dispositions in said last
will and testament as null and void; (c) setting aside the order dated 10
September 1973 declaring the testate proceedings closed and terminated;
(d) revoking the appointment of Jesus Fran as executor while appointing
respondent Concepcion M. Espina as administratrix; and (e) ordering the
conversion of the proceedings to one of intestacy. 2 This Order effectively
annulled and set aside the probate judgment of 13 November 1972.
Petitioners would also have this Court nullify all other actions of respondent
Judge in said Sp. Proc. No. 3309-R; restore the status quo therein prior to
the issuance of the foregoing orders; and permanently enjoin respondent
Judge from reopening said proceedings.
The following facts are not controverted:
Remedios M. Vda. de Tiosejo, a widow, died on 10 July 1972 in Cebu City
with neither descendants nor ascendants; she left real and personal
properties located in Cebu City, Ormoc City and Puerto Bello, Merida, Leyte.
Earlier, on 23 April 1972, she executed a last will and testament 3 wherein
she bequeathed to her collateral relatives (brothers, sisters, nephews and
nieces) all her properties, and designated Rosario Tan or, upon the latter's
death, Jesus Fran, as executor to serve without bond. Instrumental
witnesses to the will were Nazario Pacquiao, Alcio Demerre and Primo Miro.
On 15 July 1972, Jesus Fran filed a petition with the Court of First instance of
Cebu for the probate of Remedios' last will and testament. 4 The case was
raffled to the original Branch VIII thereof which was then presided over by
Judge Antonio D. Cinco. The petition alleged that Rosario Tan is not
physically well and, therefore, will not be assuming the position of
administratrix. Tan signed a waiver in favor of Jesus Fran on the third page of
the said petition. The probate court issued an order setting the petition for
hearing on 18 September 1972. Meanwhile, on 31 July 1972, the court
appointed petitioner Jesus Fran as special administrator.
On 10 August 1972, the private respondents, who are sisters of the
deceased, filed a manifestation 5 alleging that they needed time to study the
petition because some heirs who are entitled to receive their respective
shares have been intentionally omitted therein, and praying that they be
given ample time to file their opposition, after which the hearing be reset to
another date.
Private respondents did not file any opposition. Instead, they filed on 18
September 1972 a "Withdrawal of Opposition to the Allowance of Probate
(sic) of the Will" wherein they expressly manifested, with their "full knowledge

and consent that . . . they have no objection of (sic) the allowance of the . . .
will of the late Remedios Mejia Vda. de Tiosejo," and that they have "no
objection to the issuance of letters testamentary in favor of petitioner, Dr.
Jesus Fran." 6

Fran, Remedios C. Mejia and respondent Concepcion M. Espina, was

submitted by the executor for the court's approval. 10 Said legatees and
devisees submitted certifications wherein they admit receipt of a copy of the
Project of Partition together with the notice of hearing, and state that they
had no objection to its approval. 11

No other party filed an opposition. The petition thus became uncontested.

During the initial hearing, petitioner Fran introduced the requisite evidence to
establish the jurisdictional facts.

The notice of hearing referred to in these certifications is the 6 August 1973

notice issued by the Clerk of Court setting the hearing on the Project of
Partition for 29 August 1973. 12

Upon a determination that the court had duly acquired jurisdiction over the
uncontested petition for probate, Judge Cinco issued in open court an order
directing counsel for petitioner to present evidence proving the authenticity
and due execution of the will before the Clerk of Court who was, accordingly,
so authorized to receive the same.

After the hearing on the Project of Partition, the court issued its Order of 10
September 1973 13 approving the same, declaring the parties therein as the
only heirs entitled to the estate of Remedios Mejia Vda. de Tiosejo, directing
the administrator to deliver to the said parties their respective shares and
decreeing the proceedings closed. The dispositive portion thereof reads:

The reception of evidence by the Clerk of Court immediately followed.

Petitioner Fran's first witness was Atty. Nazario R. Pacquiao, one at the
subscribing witnesses to the will. The original of the will, marked as Exhibit
"F", and its English translation, marked as Exhibit "F-Translation", were
submitted to the Clerk of Court. 7 Petitioner Fran was the second and also
the last witness. He enumerated the names of the surviving heirs of the
deceased.

WHEREFORE, the signers (sic) to the project of partition are declared the
only, heirs entitled to the estate; the project of partition submitted is ordered
approved and the administrator is ordered to deliver to each one of them
their respective aliquot parts as distributed in the said project of partition. It is
understood that if there are expenses incurred or to be incurred as expenses
of partition, Section 3 of Rule 90 shall be followed.
Let this proceedings be now declared closed.

On 13 November 1972, the probate court rendered a decision admitting to

probate the will of the testatrix, Remedios Mejia Vda. de Tiosejo, and
appointing petitioner Fran as executor thereof. 8 The dispositive portion of
the decision reads:
WHEREFORE, in view of all the foregoing, judgment is hereby rendered
declaring the last will and testament of the deceased Remedios Mejia Vda.
de Tiosejo marked as Exhibit F as admitted to probate. Dr. Jesus Fran is
hereby appointed as executor of the will. Let letters testamentary be issued
in favor of Dr. Jesus Fran. The special administrator's bond put up by Dr.
Jesus Fran as special administrator duly approved by this Court shall serve
and be considered as the executor's bond considering that the special
administrator and executor are one and the same person.
The requisite notice to creditors was issued, but despite the expiration of the
period therein fixed, no claim was presented against the estate.
On 4 January 1973, petitioner Fran filed an Inventory of the Estate; 9 copies
thereof were furnished each of the private respondents.
Subsequently, a Project of Partition based on the dispositions made in the
will and signed by all the devisees and legatees, with the exception of Luis

SO ORDERED.
Thereafter, the aforesaid Branch VIII of the Court of First Instance of Cebu
was converted to a Juvenile and Domestic Relations Court. On November
1978, by virtue of Presidential Decree No. 1439, Branch XVII (Davao City) of
the Court of First Instance of Cebu, presided over by herein respondent
Judge, was officially transferred to Cebu City and renumbered as Branch
VIII.
On 1 October 1979, private respondents filed with the new Branch VIII an
Omnibus Motion for Reconsideration of the probate judgment of 13
November 1972 and the Order of partition of 10 September 1973, in said
motion, they ask the court to declare the proceedings still open and admit
their opposition to the allowance of the will, 14 which they filed on 1 October
1979. They allege that: (a) they were not furnished with a copy of the will; (b)
the will is a forgery; (c) they were not notified of any resolution or order on
their manifestation requesting time within which to file their opposition, or of
the order authorizing the clerk of court to receive the evidence for the
petitioner, or of the order closing the proceedings; (d) the reception of
evidence by the clerk of court was void per the ruling in Lim Tanhu vs.
Ramolete; 15 (e) the project of partition contains no notice of hearing and

they were not notified thereof; (f) the petitioner signed the project of partition
as administrator and not as executor, thereby proving that the decedent died
intestate; (g) the petitioner did not submit any accounting as required by law;
and (h) the petitioner never distributed the estate to the devisees and
legatees.
In a detailed opposition 16 to the above Omnibus Motion for
Reconsideration, petitioner Fran refuted all the protestations of private
respondents. Among other reasons, he stresses therein that: (a) private
respondents are in estoppel to question the will because they filed their
Withdrawal Of Opposition To The Allowance of Will which states that after
thoroughly studying the petition, to which was attached a copy of the English
translation of the will, they have no objection to its allowance; the order
directing the clerk of court to receive the evidence was dictated in open court
in the presence of private respondents; private respondent Maria M.
Gandiongco signed the Project of Partition and private respondent
Concepcion M. Espina submitted a certification stating therein that she
received the notice of hearing therefor and has no objection to its approval;
(b) except for some properties, either covered by a usufruct under the will or
agreed upon by the parties to be held in common by reason of its special
circumstance, there was an actual distribution of the estate in accordance
with the Project of Partition; insofar as private respondents are concerned,
they not only received their respective shares, they even purchased the
shares of the other devisees. To top it all, private respondents' children,
namely Rodrigo M. Gandiongco, Jr. and Victor Espina, mortgaged their
respective shares in favor of a bank
Notwithstanding petitioners' objections, respondent Judge issued on 26
February 1980 an Order setting for hearing the said Omnibus Motion for
Reconsideration on 8 April 1980 so that "the witnesses and the exhibits (may
be) properly ventilated." 17
On 25 March 1980, petitioners filed a Motion to Dismiss the Omnibus and to
Reconsider the 26 February 1980 Order setting it for hearing on 17 April
1980, 18 but the respondent Judge prematurely denied it for lack of merit in
his Order of 31 March 1980. 19
Consequently, on 8 April 1980, the instant petition was filed challenging the
jurisdiction of the lower court in taking cognizance of the Omnibus Motion for
Reconsideration considering that the probate judgment and the order
approving the Project of Partition and terminating the proceedings had long
become final and had in fact been executed. Private respondents had long
lost their right to appeal therefrom. The Omnibus Motion for Reconsideration
cannot likewise be treated as a petition for relief from judgment for under
Rule 38 of the Revised Rules of Court, the same must be filed within sixty

(60) days from receipt of notice of the judgment/order and within six (6)
months from the date of said judgment. Therefore, this remedy can no longer
be availed of.
On 8 April 1980, the date the instant petition was filed, respondent Judge
proceeded with the hearing of the Omnibus Motion for Reconsideration. He
received the testimonies of private respondents and one Romeo O. Varena,
an alleged handwriting expert from the Philippine Constabulary, who averred
that the signature of the testatrix on the will is a forgery. The respondent
Judge likewise issued an Order on the same date stating that unless he
received a restraining order from this Court within twenty (20) days
therefrom, he will reopen Sp. Proc. No. 3309-R.
On 14 April 1980, petitioners filed a Supplemental Petition asking this Court
to restrain respondent Judge from reopening the case. 20
In their voluminous Comments and Opposition to the petition and
Supplemental Petition, 21 private respondents not only amplify in great detail
the grounds raised in their Omnibus Motion for Reconsideration, they also
squarely raise for the first time the following issues.
(a)
The probate court never acquired jurisdiction over the case since
petitioner Jesus Fran failed to submit to the court the original of the will.
(b)
They were deprived of the opportunity to examine the will as
petitioner Jesus Fran did not attach it to the petition; what was attached was
only the English translation of the will.
(c)
Even assuming that the probate judge could validly delegate the
reception of evidence to the Clerk of Court, the proceeding before the latter
would still be void as he failed to take an oath of office before entering upon
his duties as commissioner and failed to render a report on the matters
submitted to him.
(d)
Respondent Maria M. Vda. de Gandiongco was defrauded into (sic)
signing the Project of Partition and respondent Concepcion M. Espina, her
certification, when they were misled by petitioner Fran into believing that the
Agreement of Petition to be submitted to the court is the Extra Judicial
Partition they signed on 7 May 1973.
(e)
Petitioner Fran is guilty of fraud in urdervaluing the estate of the late
Remedios M. Vda. de Tiosejo by reporting properties worth only P400,000.00
when in truth and in fact the estate has an aggregate value of P2,094,333.00.
In the Resolution dated 2 June 1980, We issued a restraining order enjoining
respondent Judge from reopening Sp. Proc. No. 3309-R. 22

However, on the same date, before the restraining order was served on him;
respondent Judge issued the impugned order declaring the testamentary
dispositions of the will void, finding the signature of the late Remedios M.
Vda. de Tiosejo to be a forgery, decreeing the reopening of Sp. Proc. No.
3309-R and converting the same into an intestate proceeding. 23
Hence, on 6 June 1980, petitioners filed their Second Supplemental Petition
24 asking this Court to declare as null and void the Order of 2 June 1980
and, pending such declaration, to restrain respondent Judge from enforcing
the same. Private respondents filed their Comment and Opposition to the
Second Supplemental Petition on 9 July 1980.
Thereafter, as mandated in the resolution of 30 June 1980, 25 this Court
gave due course to this case and required the parties to file their respective
Memoranda, which private respondents complied with on 16 August 1980; 26
petitioners filed theirs on 27 August 1980. 27 Consequently, the parties
continued to file several pleadings reiterating substantially the same
allegations and arguments earlier submitted to this Court.
On 22 March 1984, counsel for petitioners filed a manifestation informing this
Court of the death of petitioner Fran on 29 February 1984 and enumerating
therein his surviving heirs. On 2 April 1984, this Court resolved to have said
heirs substitute him in this case.
Over a year later, respondent Maria M. Vda.de Gandiongco filed an affidavit,
28 sworn to before the acting Clerk of Court of the Regional Trial Court in
Cebu City, disclosing the following material facts: (a) she signed the Omnibus
Motion for Reconsideration dated 1 October 1979 without knowing or reading
the contents thereof; (b) she saw the will of the late Remedios M. Vda. de
Tiosejo written in the Cebuano dialect after the same was executed by the
latter; the said will bearing the authentic signature of Remedios was the very
one presented to the probate court by petitioner's counsel; (c) she received
the notice of hearing of the petition for probate and because she was
convinced that the signature of the testatrix was genuine, she, together with
Concepcion M. Espina, withdrew her opposition; (d) she received her share
of the estate of the late Remedios M. Vda. de Tiosejo which was distributed
in accordance with the provisions of the latter's will; and (e) she did not
authorize Atty. Numeriano Estenzo or other lawyers to present a motion to
this Court after 25 February 1981 when Estenzo withdrew as counsel for
private respondents. She then asks this Court to consider as withdrawn her
Opposition to the Allowance of the Will, her participation in the Omnibus
Motion for Reconsideration and her Opposition to this petition.

Due to this development, We required private respondent Concepcion M.

Espina to comment on the affidavit of private respondent Maria M. Vda. de
Gandiongco.
On 17 August 1985, private respondents filed a joint manifestation 29
wherein they claim that Maria M. Vda. de Gandiongco does not remember,
executing the affidavit. A few weeks before the affidavit was filed, particularly
on 17 June 1985, Maria M. Vda. de Gandiongco was confined in the hospital;
she could not recall having signed, during this period, any affidavit or
recognized her sisters and other relatives.
On 19 September 1985, respondent Maria M. Vda.de Gandiongco, through
special counsel, filed a Manifestation/Motion with a second Affidavit attached
thereto 30 confessing that she signed the Joint Manifestation dated 16
August 1985 "without knowing or being informed of its contents, and only
upon Mrs. Concepcion Espina's request." She reiterated her desire to
withdraw from the Omnibus Motion for Reconsideration filed in Sp. Proc. No,
3309-R as well as from the instant petition.
Despite the valiant attempt of private respondent Concepcion M. Espina to
influence and control the action of Maria Gandiongco, there is nothing in the
records that would cast any doubt on the irrevocability of the latter's decision
to withdraw her participation in the Omnibus Motion for Reconsideration and
Opposition to this case. That decision, however, is not a ground for dropping
her as a private respondent as the respondent Judge had already issued the
abovementioned Order of 2 June 1980.
The petition and the supplemental petitions are impressed with merit.
We do not hesitate to rule that the respondent Judge committed grave abuse
of discretion amounting to lack of jurisdiction when he granted the Omnibus
Motion for Reconsideration and thereafter set aside the probate judgment of
13 November 1972 in Sp. Proc. No. 3309-R, declared the subject will of the
testatrix a forgery, nullified the testamentary dispositions therein and ordered
the conversion of the testate proceedings into one of intestacy.
It is not disputed that private respondents filed on the day of the initial
hearing of the petition their "Withdrawal of Opposition To Allowance of
Probate (sic) Will" wherein they unequivocally state that they have no
objection to the allowance of the will. For all legal intents and purposes, they
became proponents of the same.
After the probate court rendered its decision on 13 November 1972, and
there having been no claim presented despite publication of notice to
creditors, petitioner Fran submitted a Project of Partition which private
respondent Maria M. Vda. de Gandiongco voluntarily signed and to which

private respondent Espina expressed her conformity through a certification

filed with the probate court. Assuming for the sake of argument that private
respondents did not receive a formal notice of the decision as they claim in
their Omnibus Motion for Reconsideration, these acts nevertheless constitute
indubitable proof of their prior actual knowledge of the same. A formal notice
would have been an idle ceremony. In testate proceedings, a decision
logically precedes the project of partition, which is normally an
implementation of the will and is among the last operative acts to terminate
the proceedings. If private respondents did not have actual knowledge of the
decision, they should have desisted from performing the above acts and
instead demanded from petitioner Fran the fulfillment of his alleged promise
to show them the will. The same conclusion refutes and defeats the plea that
they were not notified of the order authorizing the Clerk of Court to receive
the evidence and that the Clerk of Court did not notify them of the date of the
reception of evidence. Besides, such plea must fail because private
respondents were present when the court dictated the said order.
Neither do We give any weight to the contention that the reception of
evidence by the Clerk of Court is null and void per the doctrine laid, down in
Lim Tanhu vs. Ramolete. 31 In the first place, Lim Tanhu was decided on 29
August 1975, nearly four (4) years after the probate court authorized the
Clerk of Court to receive the evidence for the petitioner in this case. A month
prior to Lim Tanhu, or on 30 July 1975, this Court, in Laluan vs. Malpaya, 32
recognized and upheld the practice of delegating the reception of evidence to
Clerks of Court. Thus:
No provision of law or principle of public policy prohibits a court from
authorizing its clerk of court to receive the evidence of a party litigant. After
all, the reception of evidence by the clerk of court constitutes but a ministerial
task the taking down of the testimony of the witnesses and the marking of
the pieces of documentary evidence, if any, adduced by the party present.
This task of receiving evidence precludes, on the part of the clerk of court the
exercise of judicial discretion usually called for when the other party who is
present objects to questions propounded and to the admission of the
documentary evidence proffered. 33 More importantly, the duty to render
judgment on the merits of the case still rests with the judge who is obliged to
personally and directly prepare the decision based upon the evidence
reported. 34
But where the proceedings before the clerk of court and the concomitant
result thereof, i.e., the judgment rendered by the court based on the evidence
presented in such limited proceedings, prejudice the substantial rights of the
aggrieved party, then there exists, sufficient justification to grant the latter
complete opportunity to thresh out his case in court. 35

Monserrate vs. Court of Appeals, 36 decided on 29 September 1989,

reiterated this rule. Lim Tanhu then cannot be used as authority to nullify the
order of the probate court authorizing the Clerk of Court to receive the
evidence for the rule is settled that "when a doctrine of this Court is overruled
and a different view is adopted, the new doctrine should be applied
prospectively, and should not apply to parties who had relied on the old
doctrine and acted on the faith thereof." 37 It may also be emphasized in this
connection that Lim Tanhu did not live long; it was subsequently overruled in
Gochangco vs. Court of First Instance of Negros Occidental, 38 wherein this
Court, en banc, through Justice, now Chief Justice, Andres R. Narvasa, in
reference to what the trial court termed as "the doctrinal rule laid down in the
recent case of Lim Tan Hu (sic) vs. Ramolete," ruled:
Now, that declaration does not reflect long observed and established judicial
practice with respect to default cases. It is not quite consistent, too, with the
several explicitly authorized instances under the Rules where the function of
receiving evidence and even of making recommendatory findings of facts on
the basis thereof may be delegated to commissioners, inclusive of the Clerk
of Court. These instances are set out in Rule 33, . . . ; Rule 67 and 69, . . . ;
Rule 86, . . . ; Rule 136, . . . . In all these instances, the competence of the
clerk of court is assumed. Indeed, there would seem, to be sure, nothing
intrinsically wrong in allowing presentation of evidence ex parte before a
Clerk of Court. Such a procedure certainly does not foreclose relief to the
party adversely affected who, for valid cause and upon appropriate and
seasonable application, may bring about the undoing thereof or the
elimination of prejudice thereby caused to him; and it is, after all, the Court
itself which is duty bound and has the ultimate responsibility to pass upon the
evidence received in this manner, discarding in the process such proofs as
are incompetent and then declare what facts have thereby been established.
In considering and analyzing the evidence preparatory to rendition of
judgment on the merits, it may not unreasonably be assumed that any
serious error in the ex-parte presentation of evidence, prejudicial to any
absent party, will be detected and duly remedied by the Court, and/or may
always, in any event, be drawn to its attention by any interested party.
xxx

xxx

xxx

It was therefore error for the Court a quo to have declared the judgment by
default to be fatally flawed by the fact that the plaintiff's evidence had been
received not by the Judge himself but by the clerk of court.
The alternative claim that the proceedings before the Clerk of Court were
likewise void because said official did not take an oath is likewise untenable.
The Clerk of Court acted as such when he performed the delegated task of
receiving evidence. It was not necessary for him to take an oath for that
purpose; he was bound by his oath of office as a Clerk of Court. Private

respondents are obviously of the impression that by the delegation of the

reception of evidence to the Clerk of Court, the latter became a
commissioner as defined under Rule 33 of the Rules of Court entitled Trial by
Commissioner. This is not correct; as this Court said in Laluan:

permit attachment of a mere copy of the will to the application, without

prejudice to producing the original thereof at the hearing or when the court so
requires. This precaution has been adopted by some attorneys to forestall its
disappearance, which has taken place in certain cases. 42

The provisions of Rule 33 of the Rules of Court invoked by both parties

properly relate to the reference by a court of any or all of the issues in a case
to a person so commissioned to act or report thereon. These provisions
explicitly spell out the rules governing the conduct of the court, the
commissioner, and the parties before, during, and after the reference
proceedings. Compliance with these rules of conduct becomes imperative
only when the court formally orders a reference of the case to a
commissioner. Strictly speaking then, the provisions of Rule 33 find no
application to the case at bar where the court a quo merely directed the clerk
of court to take down the testimony of the witnesses presented and to mark
the documentary evidence proferred on a date previously set for hearing.

That the annexing of the original will to the petition is not a jurisdictional
requirement is clearly evident in Section 1, Rule 76 of the Rules of Court
which allows the filing of a petition for probate by the person named therein
regardless of whether or not he is in possession of the will, or the same is
lost or destroyed. The section reads in full as follows:

Belatedly realizing the absence of substance of the above grounds, private

respondents now claim in their Comments to the Petition and the
Supplemental Petition that the trial court never acquired jurisdiction over the
petition because only the English translation of the will and not a copy of
the same was attached to the petition; the will was not even submitted to
the court for their examination within twenty (20) days after the death of the
testatrix; and that there was fraud in the procurement of the probate
judgment principally because they were not given any chance to examine the
signature of the testatrix and were misled into signing the withdrawal of their
opposition on the assurance of petitioner Fran and their sister, Rosario M.
Tan, that the will would be shown to them during the trial. These two grounds
easily serve as the bases for the postulation that the decision is null and void
and so, therefore, their omnibus motion became all the more timely and
proper.

In the instant case, a copy of the original will and its English translation were
attached to the petition as Annex "A" and Annex "A-1", respectively, and
made integral parts of the same. It is to be presumed that upon the filing of
the petition the Clerk of Court, or his duly authorized subordinate, examined
the petition and found that the annexes mentioned were in fact attached
thereto. If they were not, the petition cannot be said to have been properly
presented and the Clerk of Court would not have accepted it for docketing.
Under Section 6, Rule 136 of the Rules of Court, the Clerk of Court shall
receive and file all pleadings and other papers properly presented, endorsing
on each such paper the time when it was filed. The presumption of regularity
in the performance of official duty militates against private respondents' claim
that Annex "A" of the petition was not in fact attached thereto.

The contentions do not impress this Court.

In Santos vs. Castillo 39 and Salazar vs. Court of First Instance of Laguna,
40 decided six (6) months apart in 1937, this Court already ruled that it is not
necessary that the original of the will be attached to the petition. In the first, it
ruled: "The original of said document [the will] must be presented or sufficient
reasons given to justify the nonpresentation of said original and the
acceptance of the copy or duplicate thereof." 41 In the second case, this
Court was more emphatic in holding that:
The law is silent as to the specific manner of bringing the jurisdictional
allegations before the court, but practice and jurisprudence have established
that they should be made in the form of an application and filed with the
original of the will attached thereto. It has been the practice in some courts to

Sec. 1. Who may petition for the allowance of will. Any executor, devisee,
or legatee named in a will, or any other person interested in the estate, may,
at any time after the death of the testator, petition the court having jurisdiction
to have the will allowed, whether the same be in his possession or not, or is
lost or destroyed.

The certification of the Assistant Clerk of Court issued on 8 April

1980, 43 or SIX (6) months after the filing of the motion for reconsideration,
to the effect that as per examination of the records of Sp. Proc. No. 3309-R,
"the copy of the Will mentioned in the petition as Annex "A" is not found to be
attached as of this date in the said petition; only the English Translation of
said Will is attached thereof (sic) as Annex "A-1" does not even save the day
for private respondents. It is not conclusive because it fails to state the fact
that as hereafter shown, the pages of the records which correspond to the
four (4) pages of Annex "A" were missing or were detached therefrom. As
emphatically asserted by the petitioners in their Reply to the Comments of
private respondents, 44 duly supported by a certification of the former Clerk
of Court of the original Branch VIII of the court below, 45 and which private
respondents merely generally denied in their motion for reconsideration with
comments and opposition to consolidated reply, 46 the four-page xerox copy
of will, marked as Annex "A" of the petition, became, as properly marked by
the personnel of the original Branch VIII of the court below upon the filing of

the petition, pages 5, 6, 7 and 8 while the translation thereof, marked as

Annex "A-1", became pages 9, 10, 11 and 12 of the records. The markings
were done in long hand. The records of the case were thereafter sent to the
Clerk of Court, 14th Judicial District, Cebu City on 9 February 1978. These
records, now in the possession of the respondent Judge, show that said
pages 5, 6, 7 and 8 in long are missing. As a consequence thereof,
petitioners filed with the Executive Judge of the court below an administrative
complaint.
It is not likewise disputed that the original of the will was submitted in
evidence and marked as Exhibit "F". It forms part of the records of the
special proceedings a fact which private respondents admit in their
Omnibus Motion for Reconsideration, thus:

(3)
By an independent civil action under Article 1114 of the Civil Code,
assuming that the decision was obtained through fraud and Rule 38 can not
be applied. 49
It is not difficult to see that private respondents had lost their right to file a
petition for relief from judgment, it appearing that their omnibus motion for
reconsideration was filed exactly six (6) years, ten (10) months and twentytwo (22) days after the rendition of the decision, and six (6) years, one (1)
month and thirteen (13) days after the court issued the order approving the
Project of Partition, to which they voluntarily expressed their conformity
through their respective certifications, and closing the testate proceedings.
Private respondents did not avail of the other two (2) modes of attack.

9.
That an examination of the alleged will of our deceased sister has
revealed that the signatures at the left hand margin of Exhibit "F", are written
by (sic) different person than the signature appearing at the bottom of said
alleged will . . . 47
The availability of the will since 18 September 1972 for their examination
renders completely baseless the private respondents' claim of fraud on
petitioner Fran's part in securing the withdrawal of their opposition to the
probate of the will. If indeed such withdrawal was conditioned upon Fran's
promise that the private respondents would be shown the will during the trial,
why weren't the appropriate steps taken by the latter to confront Fran about
this promise before certifications of conformity to the project of partition were
filed?
Granting for the sake of argument that the non-fulfillment of said promise
constitutes fraud, such fraud is not of the kind which provides sufficient
justification for a motion for reconsideration or a petition for relief from
judgment under Rule 37 and Rule 38, respectively, of the Rules of Court, or
even a separate action for annulment of judgment. It is settled that for fraud
to be invested with, sufficiency, it must be extrinsic or collateral to the matters
involved in the issues raised during the trial which resulted in such judgment.
48
In Our jurisdiction, the following courses of action are open to an aggrieved
party to set aside or attack the validity of a final judgment:
(1)
Petition for relief under Rule 38 of the Rules of Court which must be
filed within sixty (60) days after learning of the decision, but not more than six
(6) months after such decision is entered;
(2)
By direct action, via a special civil action for certiorari, or by collateral
attack, assuming that the decision is void for want of jurisdiction;

The probate judgment of 13 November 1972, long final and undisturbed by

any attempt to unsettle it, had inevitably passed beyond the reach of the
court below to annul or set the same aside, by mere motion, on the ground
that the will is a forgery. Settled is the rule that the decree of probate is
conclusive with respect to the due execution of the will 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. 50 We wish also to advert
to the related doctrine which holds that final judgments are entitled to respect
and should not be disturbed; otherwise, there would be a wavering of trust in
the courts. 51 In Lee Bun Ting vs. Aligaen, 52 this Court had the occasion to
state the rationale of this doctrine, thus:
Reasons of public policy, judicial orderliness, economy and judicial time and
the interests of litigants, as well as the peace and order of society, all require
that stability be accorded the solemn and final judgments of the courts or
tribunals of competent jurisdiction.
This is so even if the decision is incorrect 53 or, in criminal cases, the penalty
imposed is erroneous. 54
Equally baseless and unmeritorious is private respondents' contention that
the order approving the Project of Partition and closing the proceedings is
null and void because the Project of Partition did not contain a notice of
hearing and that they were not notified of the hearing thereon. In truth, in her
own certification 55 dated 5 September 1973, private respondent
Concepcion M. Espina admitted that she "received a copy of the Project of
Partition and the Notice of Hearing in the above-entitled proceeding, and that
she has no objection to the approval of the said Project of Partition." The
notice of hearing she referred to is the Notice of Hearing For Approval of
Project of Partition issued on 6 August 1973 by the Clerk of Court. 56 Private
respondent Espina was lying through her teeth when she claimed otherwise.

The non-distribution of the estate, which is vigorously denied by the

petitioners, is not a ground for the re-opening of the testate proceedings. A
seasonable motion for execution should have been filed. In De Jesus vs.
Daza, 57 this Court ruled that if the executor or administrator has possession
of the share to be delivered, the probate court would have jurisdiction within
the same estate proceeding to order him to transfer that possession to the
person entitled thereto. This is authorized under Section 1, Rule 90 of the
Rules of Court. However, if no motion for execution is filed within the
reglementary period, a separate action for the recovery of the shares would
be in order. As We see it, the attack of 10 September 1973 on the Order was
just a clever ploy to give asemblance of strength and substance to the
Omnibus Motion for Reconsideration by depicting therein a probate court
committing a series of fatal, substantive and procedural blunders, which We
find to be imaginary, if not deliberately fabricated.
WHEREFORE, the instant petition and supplemental petitions are
GRANTED. The Order of respondent Judge of 2 June 1980 and all other
orders issued by him in Sp. Proc. No. 3309-R, as well as all other
proceedings had therein in connection with or in relation to the Omnibus
Motion for Reconsideration, are hereby ANNULLED and SET ASIDE.
The restraining order issued on 2 June 1980 is hereby made PERMANENT.
Costs against private respondent Concepcion M. Espina.
SO ORDERED.
Gutierrez, Jr., Bidin and Romero, JJ., concur.
Feliciano, J., took no part.

G.R. No. 78590 June 20, 1988

PEDRO DE GUZMAN, petitioner,
vs.
THE HONORABLE JUDGE ZOSIMO Z. ANGELES, RTC BRANCH 58,
MAKATI, METRO, MANILA; DEPUTY SHERIFFS JOSE B. FLORA and
HONORIO SANTOS and ELAINE G. DE GUZMAN, respondents.
Bautista, Picazo, Cruz, Buyco and Tan for private respondent.
Ponce Enrile, Cayetano, Bautista, Picaso and Reyes, collaborating
counsel for private respondent.
Civil Procedure; Probate of will; Jurisdiction; Facts to be alleged in the
application before a court may acquire jurisdiction over the case for probate
of will.As early as March 18, 1937, in the case of Santos v. Castillo (64
Phil. 211) we ruled that before a court may acquire jurisdiction over the case
for the probate of a will and the administration of the properties left by a
deceased person, the application must allege the residence of the deceased
and other indispensable facts or circumstances and that the applicant is the
executor named in the will or is the person who had custody of the will to be
probated.
Same; Same; Same; Court had acquired jurisdiction over the proceedings in
the instant case.In the instant case, there is no doubt that the respondent
court acquired jurisdiction over the proceedings upon the filing of a petition
for the settlement of an intestate estate by the private respondent since the
petition had alleged all the jurisdictional facts, the residence of the deceased
person, the possible heirs and creditors and the probable value of the estate
of the deceased Manolito de Guzman pursuant to Section 2, Rule 79 of the
Revised Rules of Court.
Same; Same; Same; Need to differentiate between jurisdiction of the probate
court over the proceedings for the administration of an estate and its
jurisdiction over the persons interested in the settlement of the estate of the
deceased person.We must, however, differentiate between the jurisdiction
of the probate court over the proceedings for the administration of an estate
and its jurisdiction over the persons who are interested in the settlement of
the estate of the deceased person. The court may also have jurisdiction over
the estate of the deceased person but the determination of the properties
comprising that estate must follow established rules. Section 3, Rule 79 of
the Revised Rules of Court provides: Court to set time for hearing.Notice
thereof.When a petition for letters of administration is filed in the court
having jurisdiction, such court shall fix a time and place for hearing the
petition, and shall cause notice thereof to be given to theknown heirs and
creditors of the decedent, and to any other persons believed to have an
interest in the estate, in the manner provided in sections 3 and 4 of Rule 76.

Same; Same; Same; Same; Probate court must cause notice through
publication of the petition after receiving the same otherwise the proceeding
for the settlement of the estate is void and should be annulled.It is very
clear from this provision that the probate court must cause notice through
publication of the petition after it receives the same. The purpose of this
notice is to bring all the interested persons within the courts jurisdiction so
that the judgment therein becomes binding on all the world. (Manalo v.
Paredes, 47 Phil. 938; Moran, Comment on the Rules of Court Volume 3,
1980 Edition) Where no notice as required by Section 3, Rule 79 of the Rules
of Court has been given to persons believed to have an interest in the estate
of the deceased person; the proceeding for the settlement of the estate is
void and should be annulled. The requirement as to notice is essential to the
validity of the proceeding in order that no person may be deprived of his right
to property without due process of law.
Same; Same; Same; Same; Same; Notice through publication of the petition
is jurisdictional.Verily, notice through publication of the petition for the
settlement of the estate of a deceased person is jurisdictional, the absence of
which makes court orders affecting other persons, subsequent to the petition
void and subject to annulment.
Same; Same; Same; Same; Same; Same; No notice was caused to be given
by the probate court in the instant case.In the instant case, no notice as
mandated by section 3, Rule 79 of the Revised Rules of Court was caused to
be given by the probate court before it acted on the motions of the private
respondent to be appointed as special administratrix, to issue a writ of
possession of alleged properties of the deceased person in the widows
favor, and to grant her motion for assistance to preserve the estate of
Manolito de Guzman.
Same; Same; Same; Same; Same; Same; Same; Explanation of respondent
Judge while seemingly plausible does not sufficiently explain the disregard of
the Rule.The explanation which we required of the respondent Judge for
his apparent haste in issuing the questioned orders, states: xxx xxx xxx 10.
In issuing the subject Orders, undersigned acted in the honest conviction that
it would be to the best interest of the estate without unduly prejudicing any
interested party or third person. Any delay in issuing the said Orders might
have prejudiced the estate for the properties may be lost, wasted or
dissipated in the meantime. (Rollo, p. 86) xxx xxx xxx This explanation while
seemingly plausible does not sufficiently explain the disregard of the Rule. If
indeed, the respondent court had the welfare of both the estate and the
persons who have interest in the estate, then it could have caused notice to
be given immediately as mandated by the Revised Rules of Court. All
interested persons including herein petitioner who is the biggest creditor of
the estate listed in the petition (P850,240.80) could have participated in the
proceedings especially so, because the respondent immediately filed a
motion to have herself appointed as administratrix. A special administrator
has been defined as the representative of decedent appointed by the
probate court to care for and preserve his estate until an executor or general

administrator is appointed. (Jones v. Minnesota Transfer R. Co. 1965 ed., at

106 cited in Fule v. Court of Appeals, 74 SCRA 189). The petitioner as
creditor of the estate has a similar interest in the preservation of the estate as
the private respondent who happens to be the widow of deceased Manolito
de Guzman. Hence, the necessity of notice as mandated by the Rules of
Court. It is not clear from the records exactly what emergency would have
ensued if the appointment of an administrator was deferred at least until the
most interested parties were given notice of the proposed action. No
unavoidable delay in the appointment of a regular administrator is apparent
from the records.
PETITION to review the orders of the Regional Trial Court of Makati, Br. 58.
Angeles, J. [De Guzman vs. Angeles, 162 SCRA 347(1988)]
GUTIERREZ, JR., J.:
May a probate court act on and/or grant motions for the appointment of a
special administrator, for the issuance of a writ of possession of alleged
properties of the deceased person, and for assistance to preserve the estate
in a petition for the settlement of the intestate estate even before the court
has caused notice to be served upon all interested parties pursuant to
section 3, Rule 79 of the Revised Rules of Court?
On May 5, 1987, private respondent Elaine G. de Guzman filed a petition for
the settlement of the intestate estate of Manolito de Guzman, before the
Regional Trial Court of Makati, Metro Manila. The case was docketed as
Special Proceedings .No. M-1436.
The petition alleges that: (1) on March 22,1987, Manolito de Guzman died in
Makati, Metro Manila; (2) at the time of his death, the decedent was a
resident of Makati, Metro Manila; (3) decedent left personal and real
properties as part of his estate, listed in Annexes "A," "B," "C" and "D;" (4) the
properties were acquired after the marriage of the petitioner to the decedent
and therefore are included in their conjugal partnership; (5) the estate of -the
decedent has a probable net value which may be provisionally assessed at
P4,000,000.00 more or less; (6) the possible creditors of the estate, who
have accounts payable. and existing claims against the firm C. SANTOS
Construction are listed in Annex "E;" (7) the compulsory heirs of the decedent
are the as the surviving spouse and their two (2) minor children namely:
Charmane Rose de Guzman 11 years and Peter Brian de Guzman, 9 years
old; (8) after diligent search and inquiry to ascertain whether the decedent
left a last will and testament, none has been found and according to the best
knowledge information and belief of the petitioner, Manolito de Guzman died
intestate; and (9) the petitioner as the survey surviving spouse of the
decedent, is most qualified and entitled to the grant of letters of
administration.

On May 22, 1987, the private respondent filed a motion for writ of possession
over five (5) vehicles registered under the name of Manolito de Guzman,
alleged to be conjugal properties of the de Guzman's but which are at
present in the possession of the private respondent's father-in- law, herein
petitioner Pedro de Guzman. The motion stated that as co-owner and heir,
the private respondent must have the possession of said vehicles in order to
preserve the assets of her late husband. On the same day, the lower court
issued an order setting for hearing the motion on May 27, 1987 directing the
deputy sheriff to notify petitioner Pedro de Guzman at the expense of the
private respondent.
The scheduled May 27, 1987 hearing was postponed on motion of
petitioner's counsel, Atty. Ricardo Fojas. The petitioner was also given three
(3) days from May 27, 1987 to give his comment on the motion for a writ of
possession. The hearing was reset to June 5, 1987 at 3:00 p.m.
On May 29, 1987, the petitioner's counsel filed a notice of appearance and
an "Urgent Motion For Extension of Time to File an Opposition and for
Resetting of the Hearing."
The motion was granted and the petitioner was given five (5) days from
receipt of the order within which to file his opposition to the motion for a writ
of possession. The hearing was reset to June 15, 1987 at 2:00 in the
afternoon.
In the meantime, on May 28, 1987, the private respondent filed her "Ex-Parte
Motion to Appoint Petitioner as Special Administratrix of the Estate of
Manolito de Guzman."
In an order dated May 28,1987, the aforesaid motion was set for hearing on
June 5, 1987. In this same order, the lower court directed that all parties in
the case be notified. However, no notice of the order was given to the
petitioner.
In an order dated June 5, 1987, the lower court granted the private
respondent's motion to be appointed as special administratrix, to wit:
Finding the motion for appointment of special administratrix, on the ground
alleged therein to be well-founded, and finding further that it is to be the best
interest of the Estate of Manolito de Guzman that petitioner-movant Elaine G.
de Guzman, be appointed as Special Administratrix in this case, said motion
is granted.
WHEREFORE, Elaine G. de Guzman, petitioner-movant, is hereby appointed
as Special Administratrix of the Estate of the deceased Manolito de Guzman,

pending appointment of a regular administrator. The bond for the said special
administratrix is hereby fixed in the amount of P200,000.00. (Rollo, p. 40)
On June 8, 1987, the lower court issued another order, to wit:
Acting on the Urgent Ex-Parte Motion for Assistance" filed by PetitionerSpecial Administratrix Elaine de Guzman for appointment of Deputy Sheriffs
Honorio Santos and Jose B. Flora together with some military men and/or
policemen to assist her in preserving the estate of Manolito de Guzman, the
motion is granted and the Deputy Sheriffs Honorio Santos and Jose B. Flora
are hereby appointed for that purpose, provided that the subject matter of the
motion for writ of possession pending before this Court shall not be affected.
(Rollo, p. 41)
Trouble ensued when the respondents tried to enforce the above order. The
petitioner resisted when Deputy Sheriffs Jose B. Flora and Honorio Santos
tried to take the subject vehicles on the ground that they were his personal
properties. According to the petitioner, this resulted in a "near shoot-out
between members of the Makati Police, who were to maintain peace and
order, and the CAPCOM soldiers who were ostensibly aiding respondent
sheriffs and Elaine G. de Guzman" and that "the timely arrival of Mayor
Jejomar Binay of Makati defused the very volatile situation which resulted in
an agreement between the parties that the bulldozer, sought to be taken, be
temporarily placed in the custody of Mayor Binay, while the parties seek
clarification of the order from respondent Judge Zosimo Angeles the next
day, June 9, 1981 at 10:30 a.m."
In the conference held before the respondent court attended by the counsels
for both parties, the June 8, 1987 order was clarified to the effect that the
order "must be merely to take and preserve assets admittedly belonging to
the estate, but not properties, the ownership of which is claimed by third
persons."
The petitioner then filed a manifestation listing properties which he claimed to
be his own.
Thereafter, the instant petition was filed to annul the lower court's orders
dated June 5, 1987 and June 8, 1987.
In a resolution dated June 10, 1987, we issued a temporary restraining order
enjoining the respondent court from enforcing the two questioned orders. In
another resolution dated October 28, 1987, we gave due course to the
petition.
The petitioner contends that the June 5, 1987 order is a patent nullity, the
respondent court not having acquired jurisdiction to appoint a special

administratrix because the petition for the settlement of the estate of Manolito
de Guzman was not yet set for hearing and published for three consecutive
weeks, as mandated by the Rules of Court. The petitioner also stresses that
the appointment of a special administratrix constitutes an abuse of discretion
for having been made without giving petitioner and other parties an
opportunity to oppose said appointment.
Anent the June 8, 1987 order, the petitioner alleges that the immediate grant
of the motion praying for the court's assistance in the preservation of the
estate of the deceased, "without notice to the petitioner Pedro de Guzman,
and its immediate implementation on the very same day by respondent
Elaine G. de Guzman with the assistance of respondents deputy sheriffs, at
no other place but at the home of the petitioner Pedro de Guzman, are
eloquent proofs that all the antecedent events were intended solely to
deprive petitioner de Guzman of his property without due process of law." He
also prays that the respondent Judge be disqualified from further continuing
the case.
As stated earlier, the pivotal issue in the instant petition hinges on whether or
not a probate court may appoint a special administratrix and issue a writ of
possession of alleged properties of a decedent for the preservation of the
estate in a petition for the settlement of the intestate estate of the said
deceased person even before the probate court causes notice to be served
upon all interested parties pursuant to section 3, Rule 79 of the Revised
Rules of Court.
As early as March 18, 1937, in the case of Santos v. Castillo (64 Phil. 211)
we ruled that before a court may acquire jurisdiction over the case for the
probate of a will and the administration of the properties left by a deceased
person, the application must allege the residence of the deceased and other
indispensable facts or circumstances and that the applicant is the executor
named in the will or is the person who had custody of the will to be probated.
In the instant case, there is no doubt that the respondent court acquired
jurisdiction over the proceedings upon the filing of a petition for the
settlement of an intestate estate by the private respondent since the petition
had alleged all the jurisdictional facts, the residence of the deceased person,
the possible heirs and creditors and the probable value of the estate of the
deceased Manolito de Guzman pursuant to Section 2, Rule 79 of the
Revised Rules of Court.
We must, however, differentiate between the jurisdiction of the probate court
over the proceedings for the administration of an estate and its jurisdiction
over the persons who are interested in the settlement of the estate of the
deceased person. The court may also have jurisdiction over the "estate" of

the deceased person but the determination of the properties comprising that
estate must follow established rules.

Orders might have prejudiced the estate for the properties may be lost,
wasted or dissipated in the meantime. (Rollo, p. 86)

Section 3, Rule 79 of the Revised Rules of Court provides:

xxx

Court to set time for hearing. Notice thereof. When a petition for letters
of administration is filed in the court having jurisdiction, such court shall fix a
time and place for hearing the petition, and shall cause notice thereof to be
given to the known heirs and creditors of the decedent, and to any other
persons believed to have an interest in the estate, in the manner provided in
sections 3 and 4 of Rule 76.

This explanation while seemingly plausible does not sufficiently explain the
disregard of the Rule. If indeed, the respondent court had the welfare of both
the estate and the person who have interest in the estate, then it could have
caused notice to be given immediately as mandated by the Revised Rules of
Court. All interested persons including herein petitioner who is the biggest
creditor of the estate listed in the Petition (P850,240.80) could have
participated in the proceedings especially so, because the respondent
immediately filed a motion to have herself appointed as administratrix. A
special administrator has been defined as the "representative of decedent
appointed by the probate court to care for and preserve his estate until an
executor or general administrator is appointed." (Jones v. Minnesota Transfer
R. Co. 1965 ed., at 106 cited in Fule v. Court of Appeals, 74 SCRA 189). The
petitioner as creditor of the estate has a similar interest in the preservation of
the estate as the private respondent who happens to be the widow of
deceased Manolito de Guzman. Hence, the necessity of notice as mandated
by the Rules of Court. It is not clear from the records exactly what emergency
would have ensued if the appointment of an administrator was deferred at
least until the most interested parties were given notice of the proposed
action. No unavoidable delay in the appointment of a regular administrator is
apparent from the records.

It is very clear from this provision that the probate court must cause notice
through publication of the petition after it receives the same. The purpose of
this notice is to bring all the interested persons within the court's jurisdiction
so that the judgment therein becomes binding on all the world. (Manalo v.
Paredes, 47 Phil. 938; Moran, Comment on the Rules of Court Volume
3,1980 Edition) Where no notice as required by Section 3, Rule 79 of the
Rules of Court has been given to persons believed to have an interest in the
estate of the deceased person; the proceeding for the settlement of the
estate is void and should be annulled. The requirement as to notice is
essential to the validity of the proceeding in that no person may be deprived
of his right to property without due process of law. (Eusebio v. Valmores, 96
Phil. 163).
Verily, notice through publication of the petition for the settlement of the
estate of a deceased person is jurisdictional, the absence of which makes
court orders affecting other persons, subsequent to the petition void and
subject to annulment. (See Eusebio v. Valmores, supra)
In the instant case, no notice as mandated by section 3, Rule 79 of the
Revised Rules of Court was caused to be given by the probate court before it
acted on the motions of the private respondent to be appointed as special
administratrix, to issue a writ of possession of alleged properties of the
deceased person in the widow's favor, and to grant her motion for assistance
to preserve the estate of Manolito de Guzman.
The "explanation" which we required of the respondent Judge for his
apparent haste in issuing the questioned orders, states:
xxx

xxx

xxx

10.
In issuing the subject Orders, undersigned acted in the honest
conviction that it would be to the best interest of the estate without unduly
prejudicing any interested party or third person. Any delay in issuing the said

xxx

xxx

As argued by the petitioner:

The position of special administrator, by the very nature of the powers
granted thereby, is one of trust and confidence. It is a fiduciary position and,
therefore, requires a comprehensive determination of the suitability of the
applicant to such position. Hence, under Philippine jurisprudence, it has been
settled that the same fundamental and legal principles governing the choice
of a regular administrator should be taken in choosing the special
administrator (Francisco, Vol. VB, page 46 citing the cases of Ozaeta v.
Pecson, Ibid. and Roxas v. Pecson, Ibid.)
In order to fully and correctly ascertain the suitability of the applicant to the
trust, a hearing is obviously necessary wherein the applicant can prove his
qualifications and at the same time affording oppositors, given notice of such
hearing and application, the opportunity to oppose or contest such
application.
The requirement of a hearing and the notification to all the known heirs and
other interested parties as to the date thereof is essential to the validity of the
proceeding for the appointment of an administrator "in order that no person

may be deprived of his right or property without due process of law" (Eusebio
v. Valmores, 97 Phil. 163). Moreover, a hearing is necessary in order to fully
determine the suitability of the applicant to the trust, by giving him the
opportunity to prove his qualifications and affording oppositors, if any, to
contest the said application. (Matute v. Court of Appeals, 26 SCRA 770;
emphasis supplied).
Since the position of special administrator is a very sensitive one which
requires trust and confidence, it is essential that the suitability of the
applicant be ascertained in a hearing with due notice to all oppositors who
may object precisely to the applicant's suitability to the trust. (Rollo, pp. 103104)
If emergency situations threatening the dissipation of the assets of an estate
justify a court's immediately taking some kind of temporary action even
without the required notice, no such emergency is shown in this case. The
need for the proper notice even for the appointment of a special administrator
is apparent from the circumstances of this case.
The respondent Judge himself explains that the order for the preservation of
the estate was limited to properties not claimed by third parties. If certain
properties are already in the possession of the applicant for special
administratrix and are not claimed by other persons, we see no need to hurry
up and take special action to preserve those properties. As it is, the sheriffs
took advantage of the questioned order to seize by force, properties found in
the residence of the petitioner which he vehemently claims are owned by him
and not by the estate of the deceased person.
The petitioner also asks that the respondent Judge be disqualified from
continuing with the proceedings of the case on the ground that he is partial to
the private respondent.
In view of the fact that the respondent Judge in his "Explanation" requests
that he be inhibited from further active on the case, this issue has now
become academic. We accept Judge Angeles" voluntary inhibition in line with
our ruling in Pimentel v. Salanga (21 SCRA 160). As we stated in Query of
Executive Judge Estrella T. Estrada, Regional Trial Court of Malolos, Bulacan
on the conflicting views of Regional Trial CourtJudges Manalo and Elisaga
Re: Criminal Case No. 4954 M Administrative Matter No. 87-9-3918-RTC,
October 26, 1987:
xxx

xxx

xxx

... A judge may not be legally prohibited from sitting in a litigation. But when
suggestion is made of record that he might be induced to act in favor of one
party or with bias or prejudice against a litigant arising out of circumstances

reasonably capable of inciting such a state of mind, he should conduct a

careful self-examination. He should exercise his discretion in a way that the
people's faith in the courts of justice is not impaired. A salutary norm is that
he reflect on the probability that a losing party might nurture at the back of his
mind the thought that the judge had unmeritoriously tilted the scales of justice
against him. That passion on the part of a judge may be generated because
of serious charges of misconduct against him by a suitor or his counsel, is
not altogether remote. He is a man, subject to the frailties of other men. He
should, therefore, exercise great care and caution before making up his mind
to act or withdraw from a suit Where that party or counsel is involved. He
could in good grace inhibit himself where that case could be heard by
another judge and where no appreciable prejudice would be occasioned to
others involved thereon. On the result of his decisions to sit or not sit may
depend to a great extent that all-important confidence in the impartiality of
the judiciary. If after reflection he should resolve to voluntarily desist from
sitting in a case where his motives or fairness might be seriously impugned,
his action is to be interpreted as giving meaning and substance to the second
paragraph of Section 1, Rule 137. He serves the cause of the law who
forestalls miscarriage of justice.
Considering the foregoing, we find no need to discuss the other issues raised
in the petition.
WHEREFORE, the instant petition is GRANTED. The questioned orders of
the Regional Trial Court, Branch 58 of Makati are hereby set aside. The case
is ordered remanded to the lower court for the hearing of the petition with
previous notice to all interested parties as required by law. In view of the
voluntary inhibition of the respondent Judge, the Executive Judge of the
Regional Trial Court, Makati is directed to re-raffle the case to another branch
of the court. The Temporary Restraining Order dated June 10, 1987 is made
permanent. No costs.
SO ORDERED.
Fernan (Chairman), Feliciano, Bidin and Cortes, JJ., concur.

[G.R. No.L-23225. February 27, 1971.]

IN THE MATTER OF THE PETITION TO PROBATE OF THE WILL OF
DIGNA MARAVILLA, HERMINIO MARAVILLA, petitioner-appellant, and
ADELINA SAJO, legatee-appellant, v. PEDRO MARAVILLA, ASUNCION
MARAVILLA
and
REGINA
MARAVILLA,
oppositors-appellees,
CONCEPCION KOHLHAAS and ROSE MARY KOHLHAAS, intervenors.
Felino A. Garcia for legatee-appellant.
Salonga, Ordoez, Yap, Sicat & Associates and Paredes, Poblador, Cruz
& Nazareno for Petitioner-Appellant.
Jose Gutierrez David, Placido C. Ramos, Augurio Abeto, Alex Mirasol
and Alex Umadhay, for oppositors-appellees.
Jose M. Luison for intervenors.
Evidence; Testimony of witnesses; Variations in expressions badge of
truthfulness.The variation in the expressions used by the witness is the
best evidence that he was being candid and careful, and it is a clear badge of
truthfulness rather than the reverse.
Same; Due execution of the will shown by the evidence; Failure of witness to
identify his signature does not bar probate.A will may be allowed even if
some witnesses do not remember having attested it, if other evidence
satisfactorily show due execution, and that failure of witness to identify his
signature does not bar probate.
Civil law; When witnesses to a will deemed to have signed in the presence of
each other.It should be remembered, in this connection, that the test is not
whether a witness did see the signing of the will but whether he was in a
position to see if he chose to do so.
Remedial law; Statement of attorney on the due execution of the will entitled
to great weight.In weighing the testimony of the attesting witnesses to a
will, the statements of a competent attorney, who has been charged with the
responsibility of seeing to the proper execution of the instrument, is entitled
to greater weight than the testimony of a person casually called to participate
in the act, supposing of course that no motive is revealed that should induce
the attorney to prevaricate. The reason is that the mind of the attorney, being
conversant with the requisites of proper execution of the instrument, is more
likely to become fixed on details, and he is more likely than other persons to
retain those incidents in his memory.
Civil law; Test of soundness of mind of testator.To be of sound mind, it is
not necessary that the testator be in full possession of all his reasoning
faculties or that his mind be wholly unbroken, unimpaired or unshattered by
disease, injury or other cause.

APPEALS from a decision of the Court of First Instance of Negros

Occidental. Fernandez, J .
The facts are stated in the opinion of the Court. [Maravilla vs. Maravilla, 37
SCRA 672(1971)]
DECISION
REYES, J.B.L., J.:
These are appeals (before Republic Act 5440) from the decision of the Court
of First Instance of Negros Occidental, in its Special Proceeding No. 4977,
denying the probate of the will of the deceased, Digna Maravilla. These
appeals were brought to the Court of Appeals, but said court certified the
same to this Supreme Court on 26 May 1964, in accord with the latters prior
decision in Fernandez, etc., Et. Al. v. Maravilla, L-18799, 31 March 1964, 1
which settled the question of appellate jurisdiction in favor of the Supreme
Court over that of the Court of Appeals, on the appeal from the appointment
of a special co-administrator in the same Special Proceeding No. 4977 in
view of the value of the estate.
Appellant Herminio Maravilla, probate petitioner and husband of the
decedent, died on 16 July 1966, after the case was submitted for decision.
Upon motion for intervention filed by Concepcion Maravilla Kohlhaas and
Rose Mary Kohlhaas, this Supreme Court allowed their intervention on 24
July 1967, upon showing that their interest as substitute heirs was vested
definitely upon the death of Herminio Maravilla, and that said movants for
intervention merely adopt the pleadings and briefs filed in behalf of the
deceased Herminio Maravilla so that the intervention will not delay the
disposition of the case. 2
Appellees Pedro, 3 Asuncion and Regina, all surnamed "Maravilla," who are
allegedly the brother and sisters of the deceased Digna Maravilla and
oppositors to the probate, had moved to require the P. C. Laboratory to
submit explanations of the photographs of the will and the signatures thereon
previously filed, 4 but this Court, considering that such explanation would
amount to new evidence not heard at the trial, denied the motion on 3 August
1967. 5
Herminio Maravillas petition for probate was opposed by the appellees in an
amended opposition filed in the course of the trial in the court below and
admitted without objection. The opposition alleged the following
grounds:jgc:chanrobles.com.ph

"a)
That the deceased, Digna Maravilla, the alleged testatrix and the
instrumental witnesses did not sign the alleged will, each and every page
thereof, in the presence of each other;
"b)
That the deceased, Digna Maravilla, the alleged testatrix, affixed her
signature to her alleged will under undue and improper pressure and
influence and/or duress brought to bear upon her by the petitioner, for his
own personal benefit and advantage and that of his nieces, Adelina Sajo and
Rose Marie Kohlhaas and his half-sister Conchita Maravilla Kohlhaas;
"c)
That the deceased, Digna Maravilla, at the time she affixed her
signature to her alleged will was not of sound and disposing mind;
"d)
That the alleged will, now being offered for probate had already been
revoked by the deceased, Digna Maravilla." 6
After trial, the court below rendered judgment, holding as unsubstantiated the
last three (3) grounds above-enumerated, but sustaining the first, that is, that
the will was not executed in accordance with Section 618 of Act 190, and,
therefore, denied the probate of the will.
The petitioner and one Adelina Sajro, who was named a devisee under the
questioned will, appealed the judgment, as aforesaid, assigning errors of fact
and law. The oppositors-appellees did not appeal but counter-assigned
errors their brief.
There is no controversy that the late Digna Maravilla died in Manapla,
Negros Occidental, on 12 August 1958, leaving an extensive estate. Prior to
her death, she was a resident of Saravia, same province. It is, likewise,
undisputed that, at the time of the probate proceedings, only one (1)
(Aquilino Mansueto) of the three (3) attesting witnesses to the will had
survived, the two (2) others (Timoteo Hernaez and Mariano Buenaflor)
having died previously.
The will submitted for probate, Exhibit "A," which is typewritten in the Spanish
language, purports to have been executed in Manila on the 7th day of
October, 1944; it consists of five (5) pages, including the page on which the
attestation clause was completed. The purported signatures of the testatrix
appear at the logical end of the will on page four and at the left margin of all
the
other
pages.
The
attestation
clause
reads
as
follows:jgc:chanrobles.com.ph
"CLAUSULA DE ATESTIGUAMIENTO
"Nosotros, TIMOTEO HERNAEZ, AQUILINO MANSUETO y MARIANO
BUENAFLOR los abajo firmantes todos mayores de edad y sin impedimento

alguno para ser testigo de este testamento, certificamos y atestiguamos:

Que en la fecha y lugar arriba mencionados Da. DIGNA MARAVILLA ha
otorgado el presente documento como su testamento y ultima voluntad que
consta de cinco paginas utiles incluyendo esta pagina de atestiguamiento,
escrito a maquinilla en una sola cara de cada hoja, todas paginadas
correlativamente en letras de puo y letra de la testadora, habiendo dicha
testadora, despues de leido el mismo en nuestra presencia, firmado por
triplicado al pie de este testamento y al margen izquierdo de cada una de las
cinco paginas de que se compone en presencia de todos y cada uno de
nosotros que tambien firmamos en el margen izquierdo de cada pagina y al
pie de este atestiguamiento los unos en presencia de los otros y todos en
presencia de lo testadora, quien en el acto del otorgamiento y firma de este
documento se halla en plena capacidad intelectual, amenazada ni enganada
par otorgar y firmar este testamento.
"Asi lo atestiguamos y firmamos por triplicado de nuestro puo y letra en
Manila hoy a siete de Octubre de mil novecientos cuarenta y cuatro."cralaw
virtua1aw library
At the bottom thereof appear the purported signatures of Timoteo Hernaez,
Aquilino Mansueto and Mariano Buenaflor, attesting witnesses. Their
signatures appear also on the left margin of all the five (5) pages. The paging
of the will is by handwritten words, such as "Pagina Primera," "Pagina
Segunda," etc., written at the top of each page. On the lower half of the third
page, before the name "CONCEPCION P. MARAVILLA," is the typewritten
word "hermana," which was crossed out, and over it was handwritten the
word "cuada," bearing, at the left hereof, the initials "D. M."cralaw virtua1aw
library
After the legacies in favor of herein appellant Adelina Sajo, a niece of Digna
Maravilla, the latters sister-in-law, Concepcion P. Maravilla de Kohlhaas, and
Concepcions daughter, Rose Mary Kohlhaas, the will named appellant
Herminio Maravilla as universal heir and executor. In case of the heirs death,
or if he should not become heir for any reason, he is to be substituted by the
legatee Adelina Sajo in one-half of the properties bequeathed, the other half
to pass collectively to legatees Concepcion P. Maravilla and the daughter of
the latter, Rose Mary Kohlhaas. All previous wills are declared revoked.
In view of the trial courts decision of 8 February 1960 (Record on Appeal,
pages 25-51) refusing probate of the will, the instituted heir, Herminio
Maravilla, and the legatee, Adelina Sajo, perfected their appeal, assigning as
errors the findings of the trial court that (a) instrumental witness Aquilino
Mansueto did not actually see Digna Maravilla sign the will; (b) that Digna
Maravilla was not present when Mansueto signed the will as witness; (c) that
Mansueto "most probably" did not see Mariano Buenaflor sign as witness to
the will; (d) the testimony of attorney Manuel Villanueva on the due execution

of Digna Maravillas testament was biased and not deserving of credit; and
(e) in refusing probate to the alleged will for not having been executed with
the requisites prescribed by Section 618 of Act 190.
At the hearing before the court a quo, only one of the three instrumental
witnesses, Col. (ret.) Aquilino Mansueto, appeared and testified, inasmuch as
the other two witnesses (Timoteo Hernaez and Mariano Buenaflor)
concededly died prior to the trial of the case. Col. Mansueto identified his
own signature and those of Dr. Timoteo Hernaez and of Digna Maravilla, and
asserted that the latter did sign in the presence of all three witnesses and
attorney Villanueva; 7 that Hernaez signed in his presence and in the
presence of the other witnesses and of Digna Maravilla and that present at
the signing were "Dr. Timoteo Hernaez, Mr. Mariano Buenaflor, attorney
Manuel Villanueva and both Herminio Maravilla and Mrs. Digna Maravilla,
(the testatrix) and identified his signature and those of Digna and Hernaez 8
although, subsequently, the witness admitted that he could not remember
very well whether Mr. Maravilla was there at the time he signed the will. The
witness explained that he could not remember some details because
fourteen years had elapsed, and when he signed as a witness, he did not
give it any importance and because of the time he (Col. Mansueto) was very
worried because of rumours that the Japanese Kempeitai would arrest
officers of the USAFFE who did not want to collaborate. 9
Colonel Mansuetos testimony was supported by that of the husband of the
testatrix, Herminio Maravilla, and of attorney Manuel Villanueva. Herminio
Maravillas evidence is that a week before 7 October 1944 his wife, Digna
Maravilla, told him of her desire to "renew" her will because of the critical
period in Manila before the liberation; 10 he invited Buenaflor, Hernaez and
Mansueto to attest to the will; 11 sent his messenger, Mariano Buenaflor, to
ask attorney Manuel Villanueva to come to his house at Mabini, Ermita,
Manila, in order to prepare the will; 12 at his wifes request, he gave the list of
properties to Villanueva; 13 he knew that the will was executed in the dining
room while he remained in the sala; 14 and Villanueva, Mansueto, Hernaez
and Buenaflor were in his house in the morning of 7 October 1944 and sat
with his wife around the table in the dining room, with Villanueva at one end,
Digna beside him and the witnesses facing each other; 15 and after the
signing they had lunch, at his invitation, and when they were eating,
petitioner Maravilla saw the three (3) copies of the will on the dining table. 16
However, he did not see there sign. 17
Attorney Manuel Villanueva, as third witness for the proponent asserted that
he had been the lawyer of the Maravillas; that 5 or 6 days before 7 October
1944 he had been summoned through Mariano Buenaflor to the house of the
Maravillas at 222 Mabini, Ermita, Manila, and there met Digna who requested
him to draft a new will, revoking her old one, to include as additional
beneficiaries Adelina Sajo, Concepcion Maravilla, and the latters youngest

daughter, Rose Mary Kohlhaas, who lived with her (Digna) and whom she
considered as her real children, having cared for them since childhood.
Digna gave Villanueva instructions concerning the will, and handed him her
old will and a handwritten list of the certificates of title of her properties, which
list she asked and obtained from her husband. Before leaving, Villanueva
asked Digna to look for three witnesses; their names were furnished him two
or three days later and he sent word that the will could be executed on 7
October 1944 (as it actually was); on that day he brought one original and 2
copies with him, and handed them to Digna; she read the document and
while doing so the witnesses Mansueto, Hernaez and Buenaflor came.
Villanueva talked with them and satisfied himself that they were competent,
whereupon all proceeded to the dining room table. Attorney Villanueva sat at
the head thereof, Digna at his right, and Hernaez at the right of Digna; at his
left was first Mansueto and then Buenaflor. At the lawyers behest Digna
Maravilla read the will in the presence of the witnesses; after reading she
called his attention to a clerical error on page 3, at the second to the last line
of paragraph 9, where Concepcion Maravilla was designated as "hermana" ;
the word was cancelled by the testatrix who wrote "cuada" above the
cancelled word, and placed her initials "D. M." beside it. She also wrote on
top of each page the words "Pagina primera," "Pagina Segunda" and so on,
upon Villanuevas instructions, and then Digna and the witnesses signed in
the presence of one another and of attorney Villanueva. 18 The latter did not
ask the husband (Herminio) to join the group when the will was executed,
and Herminio remained near the window in the sala. 19 Digna appeared to
the witness very healthy and spoke in Spanish intelligently. The signing
ended around 12:30 p.m., and after it all ate lunch. 20
Upon the evidence, the trial judge concluded that Mansueto did not actually
see Digna Maravilla sign the will in question, basing such conclusion upon
the fact that while Mansueto positively identified his own signature ("I identify
this as my signature") but not that of the testatrix, his five answers to the
questions of counsel, in reference thereto, being "this must be the signature
of Mrs. Digna Maravilla."cralaw virtua1aw library
In our opinion, the trial courts conclusion is far fetched, fanciful and
unwarranted. It was but natural that witness Mansueto should be positive
about his own signature, since he was familiar with it. He had to be less
positive about Digna Maravillas signature since he could not be closely
acquainted with the same: for aught the record shows, the signing of the will
was the only occasion he saw her sign; he had no opportunity to study her
signature before or after the execution of Exhibit "A." Furthermore, he
witnessed Dignas signing not less than fourteen years previously. To
demand that in identifying Dignas signature Mansueto should display a
positiveness equal to the certainty shown by him in recognizing his own,
exceeds the bounds of the reasonable. The variation in the expressions used

by the witness is the best evidence that he was being candid and careful,
and it is a clear badge of truthfulness rather than the reverse.

improper motives to proponents witnesses. This Court, in Sotelo v. Luzan, 59

Phil. 908, has remarked that

The trial courts error gains no support from Mansuetos statement on crossexamination that "I remember and (I) signed the will in the presence of all the
witnesses and in the presence of attorney Villanueva" (page 29, Volume 1,
T.s.n., Amago). In the absence of an assurance that no one else was
present, this assertion does not really contradict Mansuetos testimony in
chief that "I have read the entire document before I signed it in the presence
of the other witnesses, Digna Maravilla and Attorney Villanueva" (t.s.n.,
Amago, Volume 1, pages 18-19). It is well to note that the cross examiner did
not ask Mansueto if no one else besides those mentioned by him had seen
him sign. Any contradiction inferred from both statements is purely
conjectural; it did not come from the witness and is insufficient to impeach his
veracity, the difference in the answers being due to no more than an
accidental lapse of memory. A will may be allowed even if some witnesses
not remember having attested it, if other evidence satisfactorily show due
execution (V. Act 190, Section 632), and that failure of witness to identify his
signature does not bar probate. 21

"It is hardly conceivable that any attorney of any standing would risk his
professional reputation by falsifying a will and then go before a court and give
false testimony."cralaw virtua1aw library

That Mansueto, Hernaez and Buenaflor, together with the testatrix and the
lawyer, sat next to one another around one table when the will was signed is
clearly established by the uncontradicted testimony of both attorney
Villanueva and Herminio Maravilla; and that detail proves beyond doubt that
each one of the parties concerned did sign in the presence of all the others. It
should be remembered, in this connection, that the test is not whether a
witness did see the signing of the will but whether he was in a position to see
if he chose to do so. 22

Appellees endeavoured to sustain the courts refusal to probate the will by

referring to the evidence of their witness Marino Tupas, a man of "no
permanent job", 23 who narrated that on the last week of September, 1944
one Mariano Buenaflor had been introduced to him by one Lt. Garaton at his
guerrilla outpost in Montalban and described as a man wanted by the
Japanese. Tupas patently exaggerated testimony is that this Buenaflor
stayed with him at his outpost camp until January, 1945, living and sleeping
with him, and was never for a single moment out of his sight. 24 Why a
civilian refugee should remain at a guerrilla outpost for four months; without
engaging in any particular helpful activity on his part, was not explained.
Shown photographs and asked to identify Buenaflor, Tupas hedged by
pleading that the Buenaflor who stayed with him had a long beard. Thus,
oppositor-appellees reverse alibi for the instrumental witness, Mariano
Buenaflor, was not only patently mendacious but did not establish any
reliable connection between the instrumental witness of Dignas will and the
Buenaflor who, according to Tupas, stuck to him as a burr in 1944. No
wonder the trial court gave no credit to such evidence.

The trial court rejected the evidence of both Herminio Maravilla and Manuel
Villanueva, giving as a reason that they were biased and interested in having
the probate succeed. The reasoning is not warranted: for Herminio Maravilla
certainly stood to gain more under the previous will of his wife (Exhibit "G")
where he was made the sole beneficiary, As to attorney Villanueva, while he
had been a friend of Herminio from boyhood, he also had been the family
lawyer, and his intervention in the execution of the will of one of his clients
became inevitable, for it is not to be expected that the testatrix should call
upon a stranger for the purpose. If Villanueva wished to perjure in favor of
Herminio, all he needed was to color his testimony against the due execution
of the will (Exhibit "A") and not in favor thereof, since, as previously
observed, Dignas first will (Exhibit "G") was more advantageous to the
widower.
We find it difficult to understand the trial courts distrust of a lawyer who did
no more than discharge his professional duty, or its readiness to attribute

And in the Fernandez

ruled:jgc:chanrobles.com.ph

v.

Tantoco,

49

Phil.

380,

385,

We

"In weighing the testimony of the attesting witnesses to a will, the statements
of a competent attorney, who has been charged with the responsibility of
seeing to the proper execution of the instrument, is entitled to greater weight
than the testimony of a person casually called to participate in the act,
supposing of course that no motive is revealed that should induce the
attorney to prevaricate. The reason is that the mind of the attorney, being
conversant with the requisites of proper execution of the instrument, is more
likely to become fixed on details, and he is more likely than other persons to
retain those incidents in his memory." (Italics supplied)

Oppositors attempts to establish that the testatrix Digna Maravilla was

mentally incompetent to validly execute the will in question met no better fate
in the court below. They introduced one Eufrocina Berja who qualified Digna
Maravilla as insane because she saw Digna Maravilla acting strangely one
morning in 1921 (23 years before the will was executed). In Berjas own
words

"Would you not call a person insane who is waving a bunch of flowers and
singing along a road, especially taking into consideration their reputation in
the Community?" (t.s.n., 21 May 1959, page 19)
Even if to this ridiculous appraisal were to be added the fact that (according
to this witness) Digna saw her in 1946, but would not answer her questions
and "was in a deep thought (sic) and her tongue was coming out of her
mouth" (Do., pages 14-15), her evidence would certainly not justify a finding
that Digna Maravilla was not competent to execute the testament in 1944. By
Berjas standards, any one could be held insane.
Nor is the case for the oppositors improved by the evidence of their witness
Eleazar Lopez, who asserted having visited his aunt, Digna Maravilla (whom
he had not seen since he was four years old), two days after the first
bombing of Manila by the American planes in September, 1944. Lopez
claimed to have seen Digna on that occasion laughing and crying and then
staring blankly at the ceiling, without recognizing the witness; and that he
visited her again toward mid-October of the same year and she had
worsened. 25 Coming from a nephew who expected to succeed if the will in
question * were denied probate, and who sought to become administrator of
the estate, even offering to resign from his position in the government if
appointed, 26 this testimony of Lopez was evidently colored by his monetary
interest, thus leading to its correct discrediting by the trial court. His
recollection after 15 years of the alleged symptoms of his aunt is very
suspicious, as it does not even appear that Lopez at the time bothered to
inquire from other persons what caused his aunts alleged abnormal
condition. Moreover, the courts duty to reconcile conflicts of evidence should
lead it to hold that the symptoms described by Lopez were due to a
temporary disturbance of the nerves caused by the unsettling effect of a
bombardment not previously experienced, compatible with the due execution
of the will on 7 October 1944. As between the testimony of Lopez and that of
attorney Villanueva, who repeatedly visited and talked to the testatrix around
the time her will was executed, We have no hesitation in accepting the
latters view that Digna Maravilla was competent to make the will when it was
signed. The law itself declares that
"To be of sound mind, it is not necessary that the testator be in full
possession of all his reasoning faculties or that his mind be wholly unbroken,
unimpaired or unshattered by disease, injury or other cause." (Civil Code,
Article 799; Bugnao v. Ubag, 14 Phil. 163.)
We are satisfied that the preponderance of evidence is to the effect that the
testament, Exhibit "A," was duly executed by a qualified testatrix and
competent witnesses, in conformity with the statutory requirements.

IN VIEW OF THE FOREGOING, the decree of the court below denying

probate of the 1944 will of Digna Maravilla (Exhibit "A") is reversed and the
said testament is hereby ordered probated. Let the records be returned to the
Court of origin for further proceedings conformable to law. Costs against
oppositors-appellees.
Concepcion, C.J., Dizon, Zaldivar, Castro, Fernando, Teehankee, Barredo,
Villamor and Makasiar, JJ., concur.
Makalintal, J., did not take part.

G.R. No. L-29184 January 30, 1989

BENEDICTO LEVISTE, petitioner,
vs.
THE COURT OF APPEALS, HON. JUDGE LUIS B. REYES, COURT OF
FIRST INSTANCE OF MANILA, ROSA DEL ROSARIO, RITA BANU,
CARMEN DE GUZMAN-MARQUEZ, JESUS R. DE GUZMAN, RAMON R.
DE GUZMAN, JACINTO R. DE GUZMAN and ANTONIO R. DE GUZMAN,
respondents.
Benedicto Leviste for and in his own behalf.
Gatchalian, Ignacio & Associates for respondents de Guzman.
Attorneys fees; Probate of will; Article 1052 of the Civil Code which protects
the creditor of a repudiating heir, does not apply to case at bar as petitioner is
not entitled to his contingent attorneys fees as the contingency did not occur
due to the dismissal of the petition for probate.The argument is devoid of
merit. Article 1052 of the Civil Code does not apply to this case. That legal
provision protects the creditor of a repudiating heir. Petitioner is not a creditor
of Rosa del Rosario. The payment of his fees is contingent and dependent
upon the successful probate of the holographic will. Since the petition for
probate was dismissed by the lower court, the contingency did not occur.
Attorney Leviste is not entitled to his fee.
Same; Same; Same; Art. 1052 of the Civil Code presupposes that the obligor
is an heir; Private respondent is not a legal heir of the deceased; The
dismissal of the petition for probate of the deceaseds will renders her right to
inherit as lost.Furthermore, Article 1052 presupposes that the obligor is an
heir. Rosa del Rosario is not a legal heir of the late Maxima C. Reselva.
Upon the dismissal of her petition for probate of the decedents will, she lost
her right to inherit any part of the latters estate. There is nothing for the
petitioner to accept in her name.
Same; Same; Same; The contract for contigent attorneys fees does not give
the lawyer any right to the share in the conjugal partnership as the amount is
simply a basis for computation of the fees.This Court had ruled in the case
of Recto vs. Harden, 100 Phil. 1427, that the contract (for contingent
attorneys fees) neither gives, nor purports to give, to the appellee (lawyer)
any right whatsoever, personal or real, in and to her (Mrs. Hardens)
aforesaid share in the conjugal partnership. The amount thereof is simply a
basis for the computation of said fees.
Same; Same; Same; While public policy favors the probate of a will, it does
not follow that every will presented for probate should be allowed; The
procedures and requirements were not followed in the case at bar resulting in
the disallowance of the will.The Court of Appeals did not err in dismissing
the petition for mandamus, for while it is true that, as contended by the
petitioner, public policy favors the probate of a will, it does not necessarily

follow that every will that is presented for probate, should be allowed. The
law lays down procedures which should be observed and requisites that
should be satisfied before a will may be probated. Those procedures and
requirements were not followed in this case resulting in the disallowance of
the will. There being no valid will, the motion to withdraw the probate petition
was inconsequential.
Same; Same; Same; Petitioners interest in the estate is an indirect interest
as former counsel for a prospective heir; One who is only indirectly interested
in a will may not interfere in its probate.Petitioner was not a party to the
probate proceeding in the lower court. He had no direct interest in the
probate of the will. His only interest in the estate is an indirect interests as
former counsel for a prospective heir. In Paras vs. Narciso, 35 Phil. 244, We
had occasion to rule that one who is only indirectly interested in a will may
not interfere in its probate.
PETITION for certiorari to review the decision of the Court of Appeals.
[Leviste vs. Court of Appeals, 169 SCRA 580(1989)]
GRIO-AQUINO, J.:
The issue in this case is whether or not an attorney who was engaged on a
contingent fee basis may, in order to collect his fees, prosecute an appeal
despite his client's refusal to appeal the decision of the trial court.
On September 7, 1963, the petitioner, a practicing attorney, entered into a
written agreement with the private respondent Rosa del Rosario to appear as
her counsel in a petition for probate of the holographic will of the late Maxima
C. Reselva. Under the will, a piece of real property at Sales Street, Quiapo,
Manila, was bequeathed to Del Rosario. It was agreed that petitioner's
contigent fee would be thirty-five per cent (35%) of the property that Rosa
may receive upon the probate of the will (Annex "A", p. 59, Rollo).
In accordance with their agreement, Leviste performed the following services
as Del Rosario's counsel:
(1) Thoroughly researched and studied the law on probate and succession;
(2) Looked for and interviewed witnesses, and took their affidavits;
(3) Filed the petition for. probate is Special Proceeding No. 58325;
(4) Made the proper publications;
(5) Presented at the trial the following witnesses:
a) Eleuterio de Jesus

b) Lucita de Jesus
c) Purita L. Llanes
d) Rita Banu
e) Jesus Lulod.
On August 20, 1965, Leviste received a letter from Ms. Del Rosario,
informing him that she was terminating his services as her counsel due to
"conflicting interest." This consisted, according to the letter, in petitioner's
moral obligation to protect the interest of his brother-in-law, Gaudencio M.
Llanes, whom Del Rosario and the other parties in the probate proceeding
intended to eject as lessee of the property which was bequeathed to Del
Rosario under the will (Annex "B", p. 60, Rollo).
On September 20, 1965, petitioner filed a "Motion to Intervene to Protect His
Rights to Fees for Professional Services." (Annex "B", p. 60, Rollo.)
In an order dated November 12, 1965 the trial court denied his motion on the
ground that he had "not filed a claim for attorney's fees nor recorded his
attorney's lien." (p. 3, Rollo.)
On November 23, 1965, petitioner filed a "Formal Statement of Claim for
Attorney's Fees and Recording of Attorney's Lien,' which was noted in the
court's order of December 20, 1965 (Annexes "D" and "E", pp. 63 & 64,
Rollo).
Although the order denying his motion to intervene had become final,
petitioner continued to receive copies of the court's orders, as well the
pleadings of the other parties in the case. He also continued to file pleadings.
The case was submitted for decision without the respondents' evidence.
On November 23, 1966, Del Rosario and Rita Banu, the special
administratrix-legatee, filed a "Motion To Withdraw Petition for Probate"
alleging that Del Rosario waived her rights to the devise in her favor and
agreed that the De Guzman brothers and sisters who opposed her petition
for probate, shall inherit all the properties left by the decedent. (Annex "F", p.
65, Rollo.)
In an order of April 13, 1967 the trial court denied the motion to withdraw the
petition for being contrary to public policy (Annex "G", pp. 66-67, Rollo).
Nonetheless, on August 28, 1967, the court disallowed the will, holding that
the legal requirements for its validity were not satisfied as only two witnesses

testified that the will and the testatrix's signature were in the handwriting of
Maxima Reselva.
The petitioner filed an appeal bond, notice of appeal, and record on appeal.
The private respondents filed a motion to dismiss the appeal on the ground
that petitioner was not a party in interest.
The petitioner opposed the motion to dismiss his appeal, claiming that he has
a direct and material interest in the decision sought to be reviewed. He also
asked that he be substituted as party-petitioner, in lieu of his former client,
Ms. Del Rosario.
On March 28, 1968, the trial judge dismissed the appeal and denied
petitioner's motion for substitution.
The petitioner filed in the Court of Appeals a petition for mandamus (CA-G.R.
No. 41248) praying that the trial court be ordered to give due course to his
appeal and to grant his motion for substitution.
On May 22, 1968, the Court of Appeals dismissed the petition for being
insufficient in form and substance as the petitioner did not appear to be the
proper party to appeal the decision in Special Proceeding No. 58325 (Annex
1, p. 77, Rollo).
Upon the denial of his motion for reconsideration, petitioner appealed by
certiorari to this Court, assigning the following errors against the Court of
Appeals' resolution:
1. The Court of Appeals erred in finding that the petitioner appears not to be
the proper party to appeal the decision in Sp. Proc. No. 58325 of the Court of
First Instance of Manila.
2. Assuming the petitioner's right of appeal is doubtful, the Court of Appeals
erred in dismissing his petition for mandamus; and
3. The Court of Appeals erred in not reversing the decision in Sp. Proc. No.
58325 denying the probate of the holographic will of the late Maxima C.
Reselva, said decision being patently erroneous.
Under his first assignment of error, petitioner argues that by virtue of his
contract of services with Del Rosario, he is a creditor of the latter, and that
under Article 1052 of the Civil Code which provides:
ART. 1052. If the heir repudiates the inheritance to the prejudice of his own
creditors, the latter may petition the court to authorize them to accept it in the
name of the heir.

The acceptance shall benefit the creditors only to an extent sufficient to cover
the amount of their credits. The excess, should there be any, shall in no case
pertain to the renouncer, but shall be adjudicated to the persons to whom, in
accordance with the rules established in this Code, it may belong.

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, 246.)
Similary, in Morente vs. Firmalino, 40 O.G. 21st Supp. 1, We held:

he has a right to accept for his client Del Rosario to the extent of 35% thereof
the devise in her favor (which she in effect repudiated) to protect his
contigent attorney's fees.
The argument is devoid of merit. Article 1052 of the Civil Code does not
apply to this case. That legal provision protects the creditor of a repudiating
heir. Petitioner is not a creditor of Rosa del Rosario. The payment of his fees
is contingent and dependent upon the successful probate of the holographic
will. Since the petition for probate was dismissed by the lower court, the
contingency did not occur. Attorney Leviste is not entitled to his fee.
Furthermore, Article 1052 presupposes that the obligor is an heir. Rosa del
Rosario is not a legal heir of the late Maxima C. Reselva. Upon the dismissal
of her petition for probate of the decedent's will, she lost her right to inherit
any part of the latter's estate. There is nothing for the petitioner to accept in
her name.
This Court had ruled in the case of Recto vs. Harden, 100 Phil. 1427, that
"the contract (for contingent attorney's fees) neither gives, nor purports to
give, to the appellee (lawyer) any right whatsoever, personal or real, in and to
her (Mrs. Harden's) aforesaid share in the conjugal partnership. The amount
thereof is simply a basis for the computation of said fees."
The Court of Appeals did not err in dismissing the petition for mandamus, for
while it is true that, as contended by the petitioner, public policy favors the
probate of a will, it does not necessarily follow that every will that is
presented for probate, should be allowed. The law lays down procedures
which should be observed and requisites that should be satisfied before a will
may be probated. Those procedures and requirements were not followed in
this case resulting in the disallowance of the will. There being no valid will,
the motion to withdraw the probate petition was inconsequential.
Petitioner was not a party to the probate proceeding in the lower court. He
had no direct interest in the probate of the will. His only interest in the estate
is an indirect interest as former counsel for a prospective heir. In Paras vs.
Narciso, 35 Phil. 244, We had occassion to rule that one who is only
indirectly interested in a will may not interfere in its probate. Thus:
... the reason for the rule excluding strangers from contesting the will, is not
that thereby the court maybe prevented from learning facts which would

We are of the opinion that the lower court did not err in holding that notice of
an attorney's lien did not entitle the attorney-appellant to subrogate himself in
lieu of his client. It only gives him the right to collect a certain amount for his
services in case his client is awarded a certain sum by the court.
WHEREFORE, the petition for certiorari is denied for lack of merit. Costs
against the petitioner.
SO ORDERED.
Narvasa, Cruz, Gancayco and Medialdea, JJ, concur.

G.R. Nos. 83843-44

April 5, 1990

IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF

MELECIO LABRADOR. SAGRADO LABRADOR (Deceased), substituted
by ROSITA LABRADOR, ENRICA LABRADOR, and CRISTOBAL
LABRADOR, petitioners-appellants,
vs.
COURT OF APPEALS, 1 GAUDENCIO LABRADOR, and JESUS
LABRADOR, respondents-appellees.
Benjamin C. Santos Law Offices for petitioners.
Rodrigo V. Fontelera for private respondents.
Wills; Date of holographic will can be placed in the main body thereof.The
will has been dated in the hand of the testator himself in perfect compliance
with Article 810. It is worthy of note to quote the first paragraph of the second
page of the holographic will, viz: And this is the day in which we agreed that
we are making the partitioning and assigning the respective assignment of
the said fishpond, and this being in the month of March, 17th day, in the year
1968, and this decision and or instruction of mine is the matter to be
followed. And the one who made this writing is no other than MELECIO
LABRADOR, their father. (italics supplied) (p. 46, Rollo) The law does not
specify a particular location where the date should be placed in the will. The
only requirements are that the date be in the will itself and executed in the
hand of the testator. These requirements are present in the subject will.
Same; Words & Phrases; Intention to execute a will, not a partition
agreement plain from the words of the holographic will at bar.Respondents
are in error. The intention to show 17 March 1968 as the date of the
execution of the will is plain from the tenor of the succeeding words of the
paragraph. As aptly put by petitioner, the will was not an agreement but a
unilateral act of Melecio Labrador who plainly knew that what he was
executing was a will. The act of partitioning and the declaration that such
partitioning was the testators instruction or decision to be followed reveal
that Melecio Labrador was fully aware of the nature of the estate property to
be disposed of and of the character of the testamentary act as a means to
control the disposition of his estate.
PETITION to review the decision of the Court of Appeals. Imperial, J.
[Labrador vs. Court of Appeals, 184 SCRA 170(1990)]
PARAS, J.:
The sole issue in this case is whether or not the alleged holographic will of
one Melecio Labrador is dated, as provided for in Article 8102 of the New
Civil Code.

The antecedent and relevant facts are as follows: On June 10, 1972, Melecio
Labrador died in the Municipality of Iba, province of Zambales, where he was
residing, leaving behind a parcel of land designated as Lot No. 1916 under
Original Certificate of Title No. P-1652, and the following heirs, namely:
Sagrado, Enrica, Cristobal, Jesus, Gaudencio, Josefina, Juliana, Hilaria and
Jovita, all surnamed Labrador, and a holographic will.
On July 28, 1975, Sagrado Labrador (now deceased but substituted by his
heirs), Enrica Labrador and Cristobal Labrador, filed in the court a quo a
petition for the probate docketed as Special Proceeding No. 922-I of the
alleged holographic will of the late Melecio Labrador.
Subsequently, on September 30, 1975, Jesus Labrador (now deceased but
substituted by his heirs), and Gaudencio Labrador filed an opposition to the
petition on the ground that the will has been extinguished or revoked by
implication of law, alleging therein that on September 30, 1971, that is, before
Melecio's death, for the consideration of Six Thousand (P6,000) Pesos,
testator Melecio executed a Deed of Absolute Sale, selling, transferring and
conveying in favor of oppositors Jesus and Gaudencio Lot No. 1916 and that
as a matter of fact, O.C.T. No. P-1652 had been cancelled by T.C.T. No. T21178. Earlier however, in 1973, Jesus Labrador sold said parcel of land to
Navat for only Five Thousand (P5,000) Pesos. (Rollo, p. 37)
Sagrado thereupon filed, on November 28, 1975, against his brothers,
Gaudencio and Jesus, for the annulment of said purported Deed of Absolute
Sale over a parcel of land which Sagrado allegedly had already acquired by
devise from their father Melecio Labrador under a holographic will executed
on March 17, 1968, the complaint for annulment docketed as Civil Case No.
934-I, being premised on the fact that the aforesaid Deed of Absolute Sale is
fictitious.
After both parties had rested and submitted their respective evidence, the
trial court rendered a joint decision dated February 28, 1985, allowing the
probate of the holographic will and declaring null and void the Deed of
Absolute sale. The court a quo had also directed the respondents (the
defendants in Civil Case No. 934-I) to reimburse to the petitioners the sum of
P5,000.00 representing the redemption price for the property paid by the
plaintiff-petitioner Sagrado with legal interest thereon from December 20,
1976, when it was paid to vendee a retro.
Respondents appealed the joint decision to the Court of Appeals, which on
March 10, 1988 modified said joint decision of the court a quo by denying the
allowance of the probate of the will for being undated and reversing the order
of reimbursement. Petitioners' Motion for Reconsideration of the aforesaid

decision was denied by the Court of Appeals, in the resolution of June 13,
1988. Hence, this petition.
Petitioners now assign the following errors committed by respondent court, to
wit:
I
THE COURT OF APPEALS ERRED IN NOT ALLOWING AND APPROVING
THE PROBATE OF THE HOLOGRAPHIC WILL OF THE TESTATOR
MELECIO LABRADOR; and
II
THE COURT OF APPEALS ERRED IN FINDING THAT THE ORDER OF
THE LOWER COURT DIRECTING THE REIMBURSEMENT OF THE FIVE
THOUSAND PESOS REPRESENTING THE REDEMPTION PRICE WAS
ERRONEOUS.
The alleged undated holographic will written in Ilocano translated into
English, is quoted as follows:
ENGLISH INTERPRETATION OF THE WILL OF THE
LATE MELECIO LABRADOR WRITTEN IN ILOCANO
BY ATTY. FIDENCIO L. FERNANDEZ
I First Page
This is also where it appears in writing of the place which is assigned and
shared or the partition in favor of SAGRADO LABRADOR which is the
fishpond located and known place as Tagale.
And this place that is given as the share to him, there is a measurement of
more or less one hectare, and the boundary at the South is the property and
assignment share of ENRICA LABRADOR, also their sister, and the
boundary in the West is the sea, known as the SEA as it is, and the boundary
on the NORTH is assignment belonging to CRISTOBAL LABRADOR, who
likewise is also their brother. That because it is now the time for me being
now ninety three (93) years, then I feel it is the right time for me to partition
the fishponds which were and had been bought or acquired by us, meaning
with their two mothers, hence there shall be no differences among
themselves, those among brothers and sisters, for it is I myself their father
who am making the apportionment and delivering to each and everyone of
them the said portion and assignment so that there shall not be any cause of
troubles or differences among the brothers and sisters.

II Second Page
And this is the day in which we agreed that we are making the partitioning
and assigning the respective assignment of the said fishpond, and this being
in the month of March, 17th day, in the year 1968, and this decision and or
instruction of mine is the matter to be followed. And the one who made this
writing is no other than MELECIO LABRADOR, their father.
Now, this is the final disposition that I am making in writing and it is this that
should be followed and complied with in order that any differences or
troubles may be forestalled and nothing will happen along these troubles
among my children, and that they will be in good relations among
themselves, brothers and sisters;
And those improvements and fruits of the land; mangoes, bamboos and all
coconut trees and all others like the other kind of bamboo by name of Bayog,
it is their right to get if they so need, in order that there shall be nothing that
anyone of them shall complain against the other, and against anyone of the
brothers and sisters.
III THIRD PAGE
And that referring to the other places of property, where the said property is
located, the same being the fruits of our earnings of the two mothers of my
children, there shall be equal portion of each share among themselves, and
or to be benefitted with all those property, which property we have been able
to acquire.
That in order that there shall be basis of the truth of this writing (WILL) which
I am here hereof manifesting of the truth and of the fruits of our labor which
their two mothers, I am signing my signature below hereof, and that this is
what should be complied with, by all the brothers and sisters, the children of
their two mothers JULIANA QUINTERO PILARISA and CASIANA
AQUINO VILLANUEVA Your father who made this writing (WILL), and he is,
MELECIO LABRADOR y RALUTIN (p. 46, Rollo)
The petition, which principally alleges that the holographic will is really dated,
although the date is not in its usual place, is impressed with merit.
The will has been dated in the hand of the testator himself in perfect
compliance with Article 810.1wphi1 It is worthy of note to quote the first
paragraph of the second page of the holographic will, viz:
And this is the day in which we agreed that we are making the partitioning
and assigning the respective assignment of the said fishpond, and this being
in the month of March, 17th day, in the year 1968, and this decision and or

instruction of mine is the matter to be followed. And the one who made this
writing is no other than MELECIO LABRADOR, their father. (emphasis
supplied) (p. 46, Rollo)
The law does not specify a particular location where the date should be
placed in the will. The only requirements are that the date be in the will itself
and executed in the hand of the testator. These requirements are present in
the subject will.
Respondents claim that the date 17 March 1968 in the will was when the
testator and his beneficiaries entered into an agreement among themselves
about "the partitioning and assigning the respective assignments of the said
fishpond," and was not the date of execution of the holographic will; hence,
the will is more of an "agreement" between the testator and the beneficiaries
thereof to the prejudice of other compulsory heirs like the respondents. This
was thus a failure to comply with Article 783 which defines a will as "an act
whereby a person is permitted, with the formalities prescribed by law, to
control to a certain degree the disposition of his estate, to take effect after his
death."
Respondents are in error. The intention to show 17 March 1968 as the date
of the execution of the will is plain from the tenor of the succeeding words of
the paragraph. As aptly put by petitioner, the will was not an agreement but a
unilateral act of Melecio Labrador who plainly knew that what he was
executing was a will. The act of partitioning and the declaration that such
partitioning as the testator's instruction or decision to be followed reveal that
Melecio Labrador was fully aware of the nature of the estate property to be
disposed of and of the character of the testamentary act as a means to
control the disposition of his estate.
Anent the second issue of finding the reimbursement of the P5,000
representing the redemption price as erroneous, respondent court's
conclusion is incorrect. When private respondents sold the property
(fishpond) with right to repurchase to Navat for P5,000, they were actually
selling property belonging to another and which they had no authority to sell,
rendering such sale null and void. Petitioners, thus "redeemed" the property
from Navat for P5,000, to immediately regain possession of the property for
its disposition in accordance with the will. Petitioners therefore deserve to be
reimbursed the P5,000.
PREMISES CONSIDERED, the decision of the Court of Appeals dated
March 10, 1988 is hereby REVERSED. The holographic will of Melecio
Labrador is APPROVED and ALLOWED probate. The private respondents
are directed to REIMBURSE the petitioners the sum of Five Thousand Pesos
(P5,000.00).

SO ORDERED.
Melencio-Herrera, Padilla, Sarmiento and Regalado, JJ., concur.

G.R. No. L-38338

January 28, 1985

IN THE MATTER OF THE INTESTATE ESTATE OF ANDRES G. DE JESUS

AND BIBIANA ROXAS DE JESUS, SIMEON R. ROXAS & PEDRO ROXAS
DE JESUS, petitioners,
vs.
ANDRES R. DE JESUS, JR., respondent.
Raul S. Sison Law Office for petitioners.
Rafael Dinglasan, Jr. for heir M. Roxas.
Ledesma, Guytingco Velasco and Associates for Ledesa and A. R. de
Jesus.
Civil Law; Wills; Execution of Wills; Purpose of liberal trend of the Civil Code
in the manner of execution of wills in case of doubt is to prevent intestacy.
This will not be the first time that this Court departs from a strict and literal
application of the statutory requirements regarding the due execution of
Wills. We should not overlook the liberal trend of the Civil Code in the
manner of execution of Wills, the purpose of which, in case of doubt is to
prevent intestacy.
Same; Same; Same; Admission to probate of the will which has been
executed in substantial compliance with the formalities of the law, and the
possibility of bad faith and fraud is obviated.Thus, the prevailing policy is to
require satisfaction of the legal requirements in order to guard against fraud
and bad faith but without undue or unnecessary curtailment of testamentary
privilege (Icasiano v. Icasiano, 11 SCRA 422). If a Will has been executed in
substantial compliance with the formalities of the law, and the possibility of
bad faith and fraud in the exercise thereof is obviated, said Will should be
admitted to probate (Rey v. Cartagena, 56 Phil. 282).
Same; Same; Same; Purpose of the solemnities surrounding the execution of
wills.The purpose of the solemnities surrounding the execution of Wills has
been expounded by this Court in Abangan v. Abangan, 40 Phil. 476) where
we ruled that: The object of the solemnities surrounding the execution of
wills is to close the door against bad faith and fraud, to avoid substitution of
wills and testaments and to guaranty their truth and authenticity. x x x
Same; Same; Same; Holographic Will; Absence of evidence of bad faith and
fraud in the execution of a holographic will and absence of any substitution of
wills and testaments; Finding that the will was entirely written, dated and
signed and no question of its genuineness and due execution, correct.We
have carefully reviewed the records of this case and found no evidence of
bad faith and fraud in its execution nor was there any substitution of Wills
and Testaments. There is no question that the holographic Will of the
deceased Bibiana Roxas de Jesus was entirely written, dated, and signed by
the testatrix herself and in a language known to her. There is also no

question as to its genuineness and due execution. All the children of the
testatrix agree on the genuineness of the holographic Will of their mother and
that she had the testamentary capacity at the time of the execution of said
Will.
Same; Same; Same; General rule that the date in a holographic will should
include the day, month and year of execution; Exception, is the absence of
appearance of fraud, bad faith, undue influence and pressure and the
authenticity of the will; Date Feb./61 appearing in a holographic will, valid,
under the principle of substantial compliance.As a general rule, the date
in a holographic Will should include the day, month, and year of its execution.
However, when as in the case at bar, there is no appearance of fraud, bad
faith, undue influence and pressure and the authenticity of the Will is
established and the only issue is whether or not the date FEB./61
appearing on the holographic Will is a valid compliance with Article 810 of the
Civil Code, probate of the holographic Will should be allowed under the
principle of substantial compliance.
PETITION for certiorari to review the order of the Court of First Instance of
Manila, Br. XXI. Colayco, J. [Roxas vs. De Jesus, Jr., 134 SCRA 245(1985)]
GUTIERREZ, JR., J.:
This is a petition for certiorari to set aside the order of respondent Hon. Jose
C. Colayco, Presiding Judge Court of First Instance of Manila, Branch XXI
disallowing the probate of the holographic Will of the deceased Bibiana
Roxas de Jesus.
The antecedent facts which led to the filing of this petition are undisputed.
After the death of spouses Andres G. de Jesus and Bibiana Roxas de Jesus,
Special Proceeding No. 81503 entitled "In the Matter of the Intestate Estate
of Andres G. de Jesus and Bibiana Roxas de Jesus" was filed by petitioner
Simeon R. Roxas, the brother of the deceased Bibiana Roxas de Jesus.
On March 26, 1973, petitioner Simeon R. Roxas was appointed
administrator. After Letters of Administration had been granted to the
petitioner, he delivered to the lower court a document purporting to be the
holographic Will of the deceased Bibiana Roxas de Jesus. On May 26, 1973,
respondent Judge Jose Colayco set the hearing of the probate of the
holographic Win on July 21, 1973.
Petitioner Simeon R. Roxas testified that after his appointment as
administrator, he found a notebook belonging to the deceased Bibiana R. de
Jesus and that on pages 21, 22, 23 and 24 thereof, a letter-win addressed to
her children and entirely written and signed in the handwriting of the
deceased Bibiana R. de Jesus was found. The will is dated "FEB./61 " and

states: "This is my win which I want to be respected although it is not written

by a lawyer. ...

subject to no other form, and may be made in or out of the Philippines, and
need not be witnessed.

The testimony of Simeon R. Roxas was corroborated by the testimonies of

Pedro Roxas de Jesus and Manuel Roxas de Jesus who likewise testified
that the letter dated "FEB./61 " is the holographic Will of their deceased
mother, Bibiana R. de Jesus. Both recognized the handwriting of their mother
and positively Identified her signature. They further testified that their
deceased mother understood English, the language in which the holographic
Will is written, and that the date "FEB./61 " was the date when said Will was
executed by their mother.

The petitioners contend that while Article 685 of the Spanish Civil Code and
Article 688 of the Old Civil Code require the testator to state in his
holographic Win the "year, month, and day of its execution," the present Civil
Code omitted the phrase Ao mes y dia and simply requires that the
holographic Will should be dated. The petitioners submit that the liberal
construction of the holographic Will should prevail.

Respondent Luz R. Henson, another compulsory heir filed an "opposition to

probate" assailing the purported holographic Will of Bibiana R. de Jesus
because a it was not executed in accordance with law, (b) it was executed
through force, intimidation and/or under duress, undue influence and
improper pressure, and (c) the alleged testatrix acted by mistake and/or did
not intend, nor could have intended the said Will to be her last Will and
testament at the time of its execution.
On August 24, 1973, respondent Judge Jose C. Colayco issued an order
allowing the probate of the holographic Will which he found to have been
duly executed in accordance with law.

Respondent Luz Henson on the other hand submits that the purported
holographic Will is void for non-compliance with Article 810 of the New Civil
Code in that the date must contain the year, month, and day of its execution.
The respondent contends that Article 810 of the Civil Code was patterned
after Section 1277 of the California Code and Section 1588 of the Louisiana
Code whose Supreme Courts had consistently ruled that the required date
includes the year, month, and day, and that if any of these is wanting, the
holographic Will is invalid. The respondent further contends that the
petitioner cannot plead liberal construction of Article 810 of the Civil Code
because statutes prescribing the formalities to be observed in the execution
of holographic Wills are strictly construed.
We agree with the petitioner.

Respondent Luz Roxas de Jesus filed a motion for reconsideration alleging

inter alia that the alleged holographic Will of the deceased Bibiana R. de
Jesus was not dated as required by Article 810 of the Civil Code. She
contends that the law requires that the Will should contain the day, month
and year of its execution and that this should be strictly complied with.

This will not be the first time that this Court departs from a strict and literal
application of the statutory requirements regarding the due execution of
Wills. We should not overlook the liberal trend of the Civil Code in the
manner of execution of Wills, the purpose of which, in case of doubt is to
prevent intestacy

On December 10, 1973, respondent Judge Colayco reconsidered his earlier

order and disallowed the probate of the holographic Will on the ground that
the word "dated" has generally been held to include the month, day, and
year. The dispositive portion of the order reads:

The underlying and fundamental objectives permeating the provisions of the

law on wigs in this Project consists in the liberalization of the manner of their
execution with the end in view of giving the testator more freedom in
expressing his last wishes, but with sufficien safeguards and restrictions to
prevent the commission of fraud and the exercise of undue and improper
pressure and influence upon the testator.

WHEREFORE, the document purporting to be the holographic Will of Bibiana

Roxas de Jesus, is hereby disallowed for not having been executed as
required by the law. The order of August 24, 1973 is hereby set aside.
The only issue is whether or not the date "FEB./61 " appearing on the
holographic Will of the deceased Bibiana Roxas de Jesus is a valid
compliance with the Article 810 of the Civil Code which reads:
ART. 810.
A person may execute a holographic will which must be
entirely written, dated, and signed by the hand of the testator himself. It is

This objective is in accord with the modem tendency with respect to the
formalities in the execution of wills. (Report of the Code Commission, p. 103)
In Justice Capistrano's concurring opinion in Heirs of Raymundo Castro v.
Bustos (27 SCRA 327) he emphasized that:
xxx

xxx

xxx

... The law has a tender regard for the will of the testator expressed in his last
will and testament on the ground that any disposition made by the testator is
better than that which the law can make. For this reason, intestate
succession is nothing more than a disposition based upon the presumed will
of the decedent.
Thus, the prevailing policy is to require satisfaction of the legal requirements
in order to guard against fraud and bad faith but without undue or
unnecessary curtailment of testamentary privilege Icasiano v. Icasiano, 11
SCRA 422). If a Will has been executed in substantial compliance with the
formalities of the law, and the possibility of bad faith and fraud in the exercise
thereof is obviated, said Win should be admitted to probate (Rey v.
Cartagena 56 Phil. 282). Thus,
xxx

xxx

xxx

... More than anything else, the facts and circumstances of record are to be
considered in the application of any given rule. If the surrounding
circumstances point to a regular execution of the wilt and the instrument
appears to have been executed substantially in accordance with the
requirements of the law, the inclination should, in the absence of any
suggestion of bad faith, forgery or fraud, lean towards its admission to
probate, although the document may suffer from some imperfection of
language, or other non-essential defect. ... (Leynez v. Leynez 68 Phil. 745).
If the testator, in executing his Will, attempts to comply with all the requisites,
although compliance is not literal, it is sufficient if the objective or purpose
sought to be accomplished by such requisite is actually attained by the form
followed by the testator.
The purpose of the solemnities surrounding the execution of Wills has been
expounded by this Court in Abangan v. Abanga 40 Phil. 476, where we ruled
that:
The object of the solemnities surrounding the execution of wills is to close the
door against bad faith and fraud, to avoid substitution of wills and testaments
and to guaranty their truth and authenticity. ...
In particular, a complete date is required to provide against such
contingencies as that of two competing Wills executed on the same day, or of
a testator becoming insane on the day on which a Will was executed
(Velasco v. Lopez, 1 Phil. 720). There is no such contingency in this case.
We have carefully reviewed the records of this case and found no evidence
of bad faith and fraud in its execution nor was there any substitution of Wins
and Testaments. There is no question that the holographic Will of the

deceased Bibiana Roxas de Jesus was entirely written, dated, and signed by
the testatrix herself and in a language known to her. There is also no
question as to its genuineness and due execution. All the children of the
testatrix agree on the genuineness of the holographic Will of their mother and
that she had the testamentary capacity at the time of the execution of said
Will. The objection interposed by the oppositor-respondent Luz Henson is
that the holographic Will is fatally defective because the date "FEB./61 "
appearing on the holographic Will is not sufficient compliance with Article 810
of the Civil Code. This objection is too technical to be entertained.
As a general rule, the "date" in a holographic Will should include the day,
month, and year of its execution. However, when as in the case at bar, there
is no appearance of fraud, bad faith, undue influence and pressure and the
authenticity of the Will is established and the only issue is whether or not the
date "FEB./61" appearing on the holographic Will is a valid compliance with
Article 810 of the Civil Code, probate of the holographic Will should be
allowed under the principle of substantial compliance.
WHEREFORE, the instant petition is GRANTED. The order appealed from is
REVERSED and SET ASIDE and the order allowing the probate of the
holographic Will of the deceased Bibiana Roxas de Jesus is reinstated.
SO ORDERED.
Teehankee (Chairman), Melencio-Herrera, Plana, Relova and De la Fuente,
JJ., concur.

G.R. No. L-40207

September 28, 1984

ROSA K. KALAW, petitioner,

vs.
HON. JUDGE BENJAMIN RELOVA, Presiding Judge of the CFI of
Batangas, Branch VI, Lipa City, and GREGORIO K. KALAW,
respondents.
Leandro H. Fernandez for petitioner.
Antonio Quintos and Jose M. Yacat for respondents.
Settlement of Estate; Ordinarily erasures or alterations in a holographic will
does not invalidate the will itselfOrdinarily, when a number of erasures,
corrections, and interlineations made by the testator in a holographic Will
have not been noted under his signature, x x x the Will is not thereby
invalidated as a whole, but at most only as respects the particular words
erased, corrected or interlined. Manresa gave an identical commentary when
he said la omision de la salvedad no anula el testamento, segun la regla de
jurisprudencia establecida en la sentencia de 4 de Abril de 1895.
Same; Where a holographic will has designate only one heir to the entire
estate and the designation was cancelled and another sole heir designated,
without the cancellation being authenticated by full signature of testator,
entire will is void.However, when as in this case, the holographic Will in
dispute had only one substantial provision, which was altered by substituting
the original heir withanother, but which alteration did not carry the requisite of
full authentication by the full signature of the testator, the effect must be that
the entire Will is voided or revoked for the simple reason that nothing
remains in the Will after that which could remain valid. To state that the Will
as first written should be given efficacy is to disregard the seeming change of
mind of the testatrix. But that change of mind can neither be given effect
because she failed to authenticate it in the manner required by law by affixing
her full signature.
Same; Same.The ruling in Velasco, supra, must be held confined to such
insertions, cancellations, erasures or alterations in a holographic Will, which
affect only the efficacy of the altered words themselves but not the essence
and validity of the Will itself. As it is, with the erasures, cancellations and
alterations made by the testatrix herein, her real intention cannot be
determined with certitude.
TEEHANKEE, J., concurring:
Settlement of Estate; Certiorari; Petitioner Rosa is bound by the factual
finding of the trial court that testator herself crossed-out Rosas name as sole
heir. Hence, the substitution of Gregorio as sole heir even if void for not being
authenticated as prescribed by law will not result in Rosa being declared heir.
I concur. Rosa, having appealed to this Court on a sole question of law, is

bound by the trial courts factual finding that the peculiar alterations in the
holographic will crossing out Rosas name and instead inserting her brother
Gregorios name as sole heir and sole executrix were made by the testatrix
in her own handwriting. (I find it peculiar that the testatrix who was obviously
an educated person would unthinkingly make such crude alterations instead
of consulting her lawyer and writing an entirely new holographic will in order
to avoid any doubts as to her change of heir. It should be noted that the first
alteration crossing out sister Rosa K. Kalaw and inserting brother Gregorio
Kalaw as sole heir is not even initialed by the testatrix. Only the second
alteration crossing out sister Rosa K. Kalaw and inserting brother Gregorio
Kalaw as sole executrix is initialed.) Probate of the radically altered will
replacing Gregorio for Rosa as sole heir is properly denied, since the same
was not duly authenticated by the full signature of the executrix as
mandatorily required by Article 814 of the Civil Code. The original unaltered
will naming Rosa as sole heir cannot, however, be given effect in view of the
trial courts factual finding that the testatrix had by her own handwriting
substituted Gregorio for Rosa, so that there is no longer any will naming
Rosa as sole heir. The net result is that the testatrix left no valid will and both
Rosa and Gregorio as her next of kin succeed to her intestate estate.
PETITION for certiorari to review the decision of the Court of First Instance of
Batangas, Br. VI. Relova, J. [Kalaw vs. Relova, 132 SCRA 237(1984)]
MELENCIO-HERRERA, J.:
On September 1, 1971, private respondent GREGORIO K. KALAW, claiming
to be the sole heir of his deceased sister, Natividad K. Kalaw, filed a petition
before the Court of First Instance of Batangas, Branch VI, Lipa City, for the
probate of her holographic Will executed on December 24, 1968.
The holographic Will reads in full as follows:
My Last will and Testament
In the name of God, Amen.
I Natividad K. Kalaw Filipino 63years of age, single, and a resident of Lipa
City, being of sound and disposing mind and memory, do hereby declare thus
to be my last will and testament.
1.
It is my will that I'll be burried in the cemetery of the catholic church
of Lipa City. In accordance with the rights of said Church, and that my
executrix hereinafter named provide and erect at the expose of my state a
suitable monument to perpetuate my memory.
xxx

xxx

xxx

The holographic Will, as first written, named ROSA K. Kalaw, a sister of the
testatrix as her sole heir. Hence, on November 10, 1971, petitioner ROSA K.
Kalaw opposed probate alleging, in substance, that the holographic Will
contained alterations, corrections, and insertions without the proper
authentication by the full signature of the testatrix as required by Article 814
of the Civil Code reading:
Art. 814.
In case of any insertion, cancellation, erasure or alteration in
a holographic will the testator must authenticate the same by his full
signature.
ROSA's position was that the holographic Will, as first written, should be
given effect and probated so that she could be the sole heir thereunder.
After trial, respondent Judge denied probate in an Order, dated September 3,
197 3, reading in part:
The document Exhibit "C" was submitted to the National Bureau of
Investigation for examination. The NBI reported that the handwriting, the
signature, the insertions and/or additions and the initial were made by one
and the same person. Consequently, Exhibit "C" was the handwriting of the
decedent, Natividad K. Kalaw. The only question is whether the win, Exhibit
'C', should be admitted to probate although the alterations and/or insertions
or additions above-mentioned were not authenticated by the full signature of
the testatrix pursuant to Art. 814 of the Civil Code. The petitioner contends
that the oppositors are estopped to assert the provision of Art. 814 on the
ground that they themselves agreed thru their counsel to submit the
Document to the NBI FOR EXAMINATIONS. This is untenable. The parties
did not agree, nor was it impliedly understood, that the oppositors would be
in estoppel.
The Court finds, therefore, that the provision of Article 814 of the Civil Code
is applicable to Exhibit "C". Finding the insertions, alterations and/or
additions in Exhibit "C" not to be authenticated by the full signature of the
testatrix Natividad K. Kalaw, the Court will deny the admission to probate of
Exhibit "C".
WHEREFORE, the petition to probate Exhibit "C" as the holographic will of
Natividad K. Kalaw is hereby denied.
SO ORDERED.
From that Order, GREGORIO moved for reconsideration arguing that since
the alterations and/or insertions were the testatrix, the denial to probate of
her holographic Will would be contrary to her right of testamentary

disposition. Reconsideration was denied in an Order, dated November 2,

1973, on the ground that "Article 814 of the Civil Code being , clear and
explicit, (it) requires no necessity for interpretation."
From that Order, dated September 3, 1973, denying probate, and the Order
dated November 2, 1973 denying reconsideration, ROSA filed this Petition
for Review on certiorari on the sole legal question of whether or not the
original unaltered text after subsequent alterations and insertions were
voided by the Trial Court for lack of authentication by the full signature of the
testatrix, should be probated or not, with her as sole heir.
Ordinarily, when a number of erasures, corrections, and interlineations made
by the testator in a holographic Will litem not been noted under his signature,
... the Will is not thereby invalidated as a whole, but at most only as respects
the particular words erased, corrected or interlined.1 Manresa gave an
Identical commentary when he said "la omision de la salvedad no anula el
testamento, segun la regla de jurisprudencia establecida en la sentencia de
4 de Abril de 1895." 2
However, when as in this case, the holographic Will in dispute had only one
substantial provision, which was altered by substituting the original heir with
another, but which alteration did not carry the requisite of full authentication
by the full signature of the testator, the effect must be that the entire Will is
voided or revoked for the simple reason that nothing remains in the Will after
that which could remain valid. To state that the Will as first written should be
given efficacy is to disregard the seeming change of mind of the testatrix. But
that change of mind can neither be given effect because she failed to
authenticate it in the manner required by law by affixing her full signature,
The ruling in Velasco, supra, must be held confined to such insertions,
cancellations, erasures or alterations in a holographic Will, which affect only
the efficacy of the altered words themselves but not the essence and validity
of the Will itself. As it is, with the erasures, cancellations and alterations
made by the testatrix herein, her real intention cannot be determined with
certitude. As Manresa had stated in his commentary on Article 688 of the
Spanish Civil Code, whence Article 814 of the new Civil Code was derived:
... No infringe lo dispuesto en este articulo del Codigo (el 688) la sentencia
que no declara la nulidad de un testamento olografo que contenga palabras
tachadas, enmendadas o entre renglones no salvadas por el testador bajo
su firnia segun previene el parrafo tercero del mismo, porque, en realidad, tal
omision solo puede afectar a la validez o eficacia de tales palabras, y nunca
al testamento mismo, ya por estar esa disposicion en parrafo aparte de
aquel que determine las condiciones necesarias para la validez del
testamento olografo, ya porque, de admitir lo contrario, se Ilegaria al absurdo
de que pequefias enmiendas no salvadas, que en nada afectasen a la parte

esencial y respectiva del testamento, vinieran a anular este, y ya porque el

precepto contenido en dicho parrafo ha de entenderse en perfecta armonia y
congruencia con el art. 26 de la ley del Notariado que declara nulas las
adiciones apostillas entrerrenglonados, raspaduras y tachados en las
escrituras matrices, siempre que no se salven en la forma prevenida, paro
no el documento que las contenga, y con mayor motivo cuando las palabras
enmendadas, tachadas, o entrerrenglonadas no tengan importancia ni
susciten duda alguna acerca del pensamiento del testador, o constituyan
meros accidentes de ortografia o de purez escrituraria, sin trascendencia
alguna(l).
Mas para que sea aplicable la doctrina de excepcion contenida en este
ultimo fallo, es preciso que las tachaduras, enmiendas o entrerrenglonados
sin salvar saan de pala bras que no afecter4 alteren ni uarien de modo
substancial la express voluntad del testador manifiesta en el documento. Asi
lo advierte la sentencia de 29 de Noviembre de 1916, que declara nulo un
testamento olografo por no estar salvada por el testador la enmienda del
guarismo ultimo del ao en que fue extendido 3 (Emphasis ours).
WHEREFORE, this Petition is hereby dismissed and the Decision of
respondent Judge, dated September 3, 1973, is hereby affirmed in toto. No
costs.
SO ORDERED.
Plana, Gutierrez, Jr. and De la Fuente, JJ., concur.
Relova, J., took no part.

G.R. Nos. 75005-06

February 15, 1990

JOSE RIVERA petitioner,

vs.
INTERMEDIATE APPELLATE COURT and ADELAIDO J. RIVERA,
respondents.
Lorenzo O. Navarro, Jr. for petitioner.
Regalado P. Morales for private respondent.
Evidence; Disputable Presumptions; Adelaidos failure to present his parents
marriage certificate, not fatal to his case, as he could still rely on the
presumption of marriage.It is true that Adelaido could not present his
parents marriage certificate because, as he explained it, the marriage
records for 1942 in the Mabalacat civil registry were burned during the war.
Even so, he could still rely on the presumption of marriage, since it is not
denied that Venancio Rivera and Maria Jocson lived together as husband
and wife and for many years, beget-ting seven children in all during that time.
Special Proceedings; Probate of Holographic Will; When the authenticity of
the will is not being questioned, there is no necessity of presenting the three
witnesses required under Art. 811; An opposition made by a mere stranger
did not have the legal effect of requiring the three witnesses.Now for the
holographic wills. The respondent court considered them valid because it
found them to have been written, dated and signed by the testator himself in
accordance with Article 810 of the Civil Code. It also held there was no
necessity of presenting the three witnesses required under Article 811
because the authenticity of the wills had not been questioned. The existence
and therefore also the authenticity of the holographic wills were questioned
by Jose Rivera. In his own petition in SP No. 1076, he declared that
Venancio Rivera died intestate; and in SP No. 1091, he denied the existence
of the holographic wills presented by Adelaido Rivera for probate. In both
proceedings, Jose Rivera opposed the holographic wills submitted by
Adelaido Rivera and claimed that they were spurious. Consequently, it may
be argued, the respondent court should have applied Article 811 of the Civil
Code, providing as follows: In the probate of a holographic will, 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 of such
witnesses shall be required. The flaw in this argument is that, as we have
already determined, Jose Rivera is not the son of the deceased Venancio
Rivera whose estate is in question. Hence, being a mere stranger, he had no
personality to contest the wills and his opposition thereto did not have the
legal effect of requiring the three witnesses. The testimony of Zenaida and
Venancio Rivera, Jr., who authenticated the wills as having been written and
signed by their father, was sufficient.

PETITION to review the decision of the then Intermediate Appellate Court.

Coquia, J. [Rivera vs. Intermediate Appellate Court, 182 SCRA 322(1990)]
CRUZ, J.:
Was there only one Venancio Rivera in Mabalacat, Pampanga, or were there
two?
On May 30, 1975, a prominent and wealthy resident of that town named
Venancio Rivera died. On July 28, 1975, Jose Rivera, claiming to be the only
surviving legitimate son of the deceased, filed a petition for the issuance of
letters of administration over Venancio's estate. Docketed as SP No. 1076,
this petition was opposed by Adelaido J. Rivera, who denied that Jose was
the son of the decedent. Adelaido averred that Venancio was his father and
did not die intestate but in fact left two holographic wills. 1
On November 7, 1975, Adelaido J. Rivera filed, also with the Regional Trial
Court of Angeles City, a petition for the probate of the holographic wills.
Docketed as SP No. 1091, this petition was in turn opposed by Jose Rivera,
who reiterated that he was the sole heir of Venancio's intestate estate. 2
On November 11, 1975, the two cases were consolidated. Adelaido J. Rivera
was later appointed special administrator. After joint trial, Judge Eliodoro B.
Guinto found that Jose Rivera was not the son of the decedent but of a
different Venancio Rivera who was married to Maria Vital. The Venancio
Rivera whose estate was in question was married to Maria Jocson, by whom
he had seven children, including Adelaido. Jose Rivera had no claim to this
estate because the decedent was not his father. The holographic wills were
also admitted to probate. 3
On appeal, the decision of the trial court was affirmed by the then
Intermediate Appellate Court. 4 Its decision is now the subject of this petition,
which urges the reversal of the respondent court.
In support of his claim that he was the sole heir of the late Venancio Rivera,
Jose sought to show that the said person was married in 1928 to Maria Vital,
who was his mother. He submitted for this purpose Exhibit A, the marriage
certificate of the couple, and Exhibit B, his own baptismal certificate where
the couple was indicated as his parents. The petitioner also presented
Domingo Santos, who testified that Jose was indeed the son of the couple
and that he saw Venancio and Jose together several times. 5 Jose himself
stressed that Adelaido considered him a half-brother and kissed his hand as
a sign of respect whenever they met. He insisted that Adelaido and his
brothers and sisters were illegitimate children, sired by Venancio with Maria
Jocson. 6

Adelaido, for his part, maintained that he and his brothers and sisters were
born to Venancio Rivera and Maria Jocson, who were legally married and
lived as such for many years. He explained that he could not present his
parents' marriage certificate because the record of marriages for 1942 in
Mabalacat were destroyed when the town was burned during the war, as
certified by Exhibit 6. 7 He also submitted his own birth certificate and those
of his sisters Zenaida and Yolanda Rivera, who were each described therein
as the legimitate children of Venancio Rivera and Maria Jocson. 8 Atty.
Regalado P. Morales, then 71 years of age, affirmed that he knew the
deceased and his parents, Magno Rivera and Gertrudes de los Reyes, and it
was during the Japanese occupation that Venancio introduced to him Maria
Jocson as his wife. 9 To prove that there were in fact two persons by the
same name of Venancio Rivera, Adelaido offered Venancio Rivera's
baptismal certificate showing that his parents were Magno Rivera and
Gertrudes de los Reyes, 10 as contrasted with the marriage certificate
submitted by Jose, which indicated that the Venancio Rivera subject thereof
was the son of Florencio Rivera and Estrudez Reyes. 11 He also denied
kissing Jose's hand or recognizing him as a brother. 12
We find in favor of Adelaido J. Rivera.
It is true that Adelaido could not present his parents' marriage certificate
because, as he explained it, the marriage records for 1942 in the Mabalacat
civil registry were burned during the war. Even so, he could still rely on the
presumption of marriage, since it is not denied that Venancio Rivera and
Maria Jocson lived together as husband and wife for many years, begetting
seven children in all during that time.
According to Article 220 of the Civil Code:
In case of doubt, all presumptions favor the solidarity of the family. Thus
every intendment of the law or fact leans toward the validity of marriage, the
indissolubility of the marriage bonds, the legitimacy of children, ... .
The Rules of Court, in Rule 131, provides:
SEC. 3. Disputable presumptions. The following presumptions are
satisfactory if uncontradicted, but may be contradicted and overcome by
other evidence:
xxx

xxx

xxx

(aa)
That a man and woman deporting themselves as husband and wife
have entered into a lawful contract of marriage.

By contrast, although Jose did present his parents' marriage certificate,

Venancio was described therein as the son of Florencio Rivera. Presumably,
he was not the same Venancio Rivera described in Exhibit 4, his baptismal
certificate, as the son of Magno Rivera. While we realize that such baptismal
certificate is not conclusive evidence of Venancio's filiation (which is not the
issue here) it may nonetheless be considered to determine his real identity.
Jose insists that Magno and Florencio are one and the same person, arguing
that it is not uncommon for a person to be called by different names. The
Court is not convinced. There is no evidence that Venancio's father was
called either Magno or Florencio. What is more likely is that two or more
persons may live at the same time and bear the same name, even in the
same community. That is what the courts below found in the cases at bar.
What this Court considers particularly intriguing is why, if it is true that he was
the legitimate son of Venancio Rivera, Jose did not assert his right as such
when his father was still alive. By his own account, Jose supported himself
and presumably also his mother Maria Vital as a gasoline attendant and
driver for many years. All the time, his father was residing in the same town
and obviously prospering and available for support. His alleged father
was openly living with another woman and raising another family, but this
was apparently accepted by Jose without protest, taking no step whatsoever
to invoke his status. If, as he insists, he and Venancio Rivera were on cordial
terms, there is no reason why the father did not help the son and instead left
Jose to fend for himself as a humble worker while his other children by Maria
Jocson enjoyed a comfortable life. Such paternal discrimination is difficult to
understand, especially if it is considered assuming the claims to be true
that Jose was the oldest and, by his own account, the only legitimate child of
Venancio Rivera.
And there is also Maria Vital, whose attitude is no less incomprehensible. As
Venancio's legitimate wife if indeed she was she should have objected
when her husband abandoned her and founded another family by another
woman, and in the same town at that. Seeing that the children of Maria
Jocson were being raised well while her own son Jose was practically
ignored and neglected, she nevertheless did not demand for him at least
support, if not better treatment, from his legitimate father. It is unnatural for a
lawful wife to say nothing if she is deserted in favor of another woman and for
a caring mother not to protect her son's interests from his wayward father's
neglect. The fact is that this forsaken wife never demanded support from her
wealthy if errant husband. She did not file a complaint for bigamy or
concubinage against Venancio Rivera and Maria Jocson, the alleged
partners in crime and sin. Maria Vital was completely passive and
complaisant.
Significantly, as noted by the respondent court, Maria Vital was not even
presented at the trial to support her son's allegations that she was the

decedent's lawful wife. Jose says this was not done because she was
already old and bedridden then. But there was no impediment to the taking of
her deposition in her own house. No effort was made toward this end
although her testimony was vital to the petitioner's cause. Jose dismisses
such testimony as merely "cumulative," but this Court does not agree. Having
alleged that Maria Jocson's marriage to Venancio Rivera was null and void,
Jose had the burden of proving that serious allegation.
We find from the evidence of record that the respondent court did not err in
holding that the Venancio Rivera who married Maria Jocson in 1942 was not
the same person who married Maria Vital, Jose's legitimate mother, in 1928.
Jose belonged to a humbler family which had no relation whatsoever with the
family of Venancio Rivera and Maria Vital. This was more prosperous and
prominent. Except for the curious Identity of names of the head of each,
there is no evidence linking the two families or showing that the deceased
Venancio Rivera was the head of both.
Now for the holographic wills. The respondent court considered them valid
because it found them to have been written, dated and signed by the testator
himself in accordance with Article 810 of the Civil Code. It also held there
was no necessity of presenting the three witnesses required under Article
811 because the authenticity of the wills had not been questioned.
The existence and therefore also the authenticity of the holographic wills
were questioned by Jose Rivera. In his own petition in SP No. 1076, he
declared that Venancio Rivera died intestate; and in SP No. 1091, he denied
the existence of the holographic wills presented by Adelaido Rivera for
probate. In both proceedings, Jose Rivera opposed the holographic wills
submitted by Adelaido Rivera and claimed that they were spurious.
Consequently, it may be argued, the respondent court should have applied
Article 811 of the Civil Code, providing as follows:
In the probate of a holographic will, 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 of such witnesses shall be required.
The flaw in this argument is that, as we have already determined, Jose
Rivera is not the son of the deceased Venancio Rivera whose estate is in
question. Hence, being a mere stranger, he had no personality to contest the
wills and his opposition thereto did not have the legal effect of requiring the
three witnesses. The testimony of Zenaida and Venancio Rivera, Jr., who
authenticated the wills as having been written and signed by their father, was
sufficient.

WHEREFORE, the petition is DENIED and the challenged decision is

AFFIRMED, with costs against the petitioner.
SO ORDERED.
Narvasa (Chairman), Gancayco, Grio-Aquino and Medialdea, JJ., concur.

G.R. No. 123486

August 12, 1999

EUGENIA RAMONAL CODOY, and MANUEL RAMONAL, petitioners,

vs.
EVANGELINE R. CALUGAY, JOSEPHINE SALCEDO, and UEFEMIA
PATIGAS, respondents.
Wills and Succession; Holographic Wills; Statutory Construction; Words and
Phrases; Article 811 of the Civil Code is mandatory; Shall in a statute
commonly denotes an imperative obligation and is inconsistent with the idea
of discretion and that the presumption is that the word shall, when used in
a statute, is mandatory.We are convinced, based on the language used,
that Article 811 of the Civil Code is mandatory. The word shall connotes a
mandatory order. We have ruled that shall in a statute commonly denotes
an imperative obligation and is inconsistent with the idea of discretion and
that the presumption is that the word shall, when used in a statute, is
mandatory.
Same; Same; Same; The goal to be achieved by Article 811 is to give effect
to the wishes of the deceased and the evil to be prevented is the possibility
that unscrupulous individuals who for their benefit will employ means to
defeat the wishes of the testator.Laws are enacted to achieve a goal
intended and to guide against an evil or mischief that aims to prevent. In the
case at bar, the goal to achieve is to give effect to the wishes of the
deceased and the evil to be prevented is the possibility that unscrupulous
individuals who for their benefit will employ means to defeat the wishes of the
testator.
Same; Same; Same; The possibility of a false document being adjudged as
the will of the testator cannot be eliminated, which is why if the holographic
will is contested, the law requires three witnesses to declare that the will was
in the handwriting of the deceased.In the case of Ajero vs. Court of Appeals,
we said that the object of the solemnities surrounding the execution of wills
is to close the door against bad faith and fraud, to avoid substitution of wills
and testaments and to guaranty 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. However, we cannot eliminate the possibility of a
false document being adjudged as the will of the testator, which is why if the
holographic will is contested, that law requires three witnesses to declare that
the will was in the handwriting of the deceased.
PETITION for review on certiorari of a decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
Amadeo D. Seno for petitioners.

Roderico C. Villaroya for private respondents. [Codoy vs. Calugay, 312

SCRA 333(1999)]
PARDO, J.:
Before us is a petition for review on certiorari of the decision of the Court of
Appeals1 and its resolution denying reconsideration, ruling:
Upon the unrebutted testimony of appellant Evangeline Calugay and witness
Matilde Ramonal Binanay, the authenticity of testators holographic will has
been established and the handwriting and signature therein (exhibit S) are
hers, enough to probate said will. Reversal of the judgment appealed from
and the probate of the holographic will in question be called for. The rule is
that after plaintiff has completed presentation of his evidence and the
defendant files a motion for judgment on demurrer to evidence on the ground
that upon the facts and the law plaintiff has shown no right to relief, if the
motion is granted and the order to dismissal is reversed on appeal, the
movant loses his right to present evidence in his behalf (Sec, 1 Rule 35
Revised Rules of Court). Judgment may, therefore, be rendered for appellant
in the instant case.
Wherefore, the order appealed from is REVERSED and judgment rendered
allowing the probate of the holographic will of the testator Matilde Seo Vda.
de Ramonal.2
The facts are as follows:
On April 6, 1990, Evangeline Calugay, Josephine Salcedo and Eufemia
Patigas, devisees and legatees of the holographic will of the deceased
Matilde Seo Vda. de Ramonal, filed with the Regional Trial Court, Misamis
Oriental, Branch 18, a petition3 for probate of the holographic will of the
deceased, who died on January 16, 1990.
In the petition, respondents claimed that the deceased Matilde Seo Vda. de
Ramonal, was of sound and disposing mind when she executed the will on
August 30, 1978, that there was no fraud, undue influence, and duress
employed in the person of the testator, and will was written voluntarily.
The assessed value of the decedent's property, including all real and
personal property was about P400,000.00, at the time of her death.4
On June 28, 1990, Eugenia Ramonal Codoy and Manuel Ramonal filed an
opposition5 to the petition for probate, alleging that the holographic will was a
forgery and that the same is even illegible. This gives an impression that a
"third hand" of an interested party other than the "true hand" of Matilde Seo
Vda. de Ramonal executed the holographic will.

Petitioners argued that the repeated dates incorporated or appearing on will

after every disposition is out of the ordinary. If the deceased was the one who
executed the will, and was not forced, the dates and the signature should
appear at the bottom after the dispositions, as regularly done and not after
every disposition. And assuming that the holographic will is in the handwriting
of the deceased, it was procured by undue and improper pressure and
influence on the part of the beneficiaries, or through fraud and
trickery.1wphi1.nt
Respondents presented six (6) witnesses and various documentary
evidence. Petitioners instead of presenting their evidence, filed a demurrer6
to evidence, claiming that respondents failed to establish sufficient factual
and legal basis for the probate of the holographic will of the deceased
Matilde Seo Vda. de Ramonal.
On November 26, 1990, the lower Court issued an order, the dispositive
portion of which reads:
WHEREFORE, in view of the foregoing consideration, the Demurrer to
Evidence having being well taken, same is granted, and the petition for
probate of the document (Exhibit "S") on the purported Holographic Will of
the late Matilde Seo Vda. de Ramonal, is denied for insufficiency of
evidence and lack of merits.7
On December 12, 1990, respondents filed a notice of appeal,8 and in support
of their appeal, the respondents once again reiterated the testimony of the
following witnesses, namely: (1) Augusto Neri; (2) Generosa Senon; (3)
Matilde Ramonal Binanay; (4) Teresita Vedad; (5) Fiscal Rodolfo Waga; and
(6) Evangeline Calugay.
To have a clear understanding of the testimonies of the witnesses, we recite
an account of their testimonies.
Augusto Neri, Clerk of Court, Court of First Instance of Misamis Oriental,
where the special proceedings for the probate of the holographic will of the
deceased was filed. He produced and identified the records of the case. The
documents presented bear the signature of the deceased, Matilde Seo Vda.
de Ramonal, for the purpose of laying the basis for comparison of the
handwriting of the testatrix, with the writing treated or admitted as genuine by
the party against whom the evidence is offered.

Matilde Ramonal Binanay, testified that the deceased Matilde Seo Vda. de
Ramonal was her aunt, and that after the death of Matilde's husband, the
latter lived with her in her parent's house for eleven (11) years from 1958 to
1969. During those eleven (11) years of close association the deceased, she
acquired familiarity with her signature and handwriting as she used to
accompany her (deceased Matilde Seo Vda. de Ramonal) in collecting
rentals from her various tenants of commercial buildings, and deceased
always issued receipts. In addition to this, she (witness Matilde Binanay)
assisted the deceased in posting the records of the accounts, and carried
personal letters of the deceased to her creditors.
Matilde Ramonal Binanay further testified that at the time of the death of
Matilde Vda. de Ramonal, she left a holographic will dated August 30, 1978,
which was personally and entirely written, dated and signed, by the
deceased and that all the dispositions therein, the dates, and the signatures
in said will, were that of the deceased.
Fiscal Rodolfo Waga testified that before he was appointed City Fiscal of
Cagayan de Oro, he was a practicing lawyer, and handled all the pleadings
and documents signed by the deceased in connection with the proceedings
of her late husband, as a result of which he is familiar with the handwriting of
the latter. He testified that the signature appearing in the holographic will was
similar to that of the deceased, Matilde Seo Vda. de Ramonal, but he can
not be sure.
The fifth witness presented was Mrs. Teresita Vedad, an employee of the
Department of Environment and Natural Resources, Region 10. She testified
that she processed the application of the deceased for pasture permit and
was familiar with the signature of the deceased, since the signed documents
in her presence, when the latter was applying for pasture permit.
Finally, Evangeline Calugay, one of the respondents, testified that she had
lived with the deceased since birth, and was in fact adopted by the latter.
That after a long period of time she became familiar with the signature of the
deceased. She testified that the signature appearing in the holographic will is
the true and genuine signature of Matilde Seo Vda. de Ramonal.
The holographic will which was written in Visayan, is translated in English as
follows:
Instruction

Generosa Senon, election registrar of Cagayan de Oro, was presented to

produced and identify the voter's affidavit of the decedent. However, the
voters' affidavit was not produced for the same was already destroyed and
no longer available.

August 30, 1978

1. My share at Cogon, Raminal Street, for Evangeline Calugay.

Follow my instruction in order that I will rest peacefully.

(Sgd) Matilde Vda de Ramonal
Mama
August 30, 1978
Matilde Vda de Ramonal
2. Josefina Salcedo must be given 1,500 square meters at Pinikan Street.
(Sgd) Matilde Vda de Ramonal
August 30, 1978
3. My jewelry's shall be divided among:
1. Eufemia Patigas
2. Josefina Salcedo
3. Evangeline Calugay
(Sgd) Matilde Vda de Ramonal
August 30, 1978
4. I bequeath my one (1) hectare land at Mandumol, Indahag to Evangeline
R. Calugay
(Sgd) Matilde Vda de Ramonal

On October 9, 1995, the Court of Appeals, rendered decision9 ruling that the
appeal was meritorious. Citing the decision in the case of Azaola vs.
Singson, 109 Phil. 102, penned by Mr. Justice J. B. L. Reyes, a recognized
authority in civil law, the Court of Appeals held:
. . . even if the genuineness of the holographic will were contested, we are of
the opinion that Article 811 of our present civil code can not be interpreted as
to require the compulsory presentation of three witnesses to identify the
handwriting of the testator, under penalty of having the probate denied. Since
no witness may have been present at the execution of the holographic will,
none being required by law (art. 810, new civil code), it becomes obvious that
the existence of witnesses possessing the requisite qualifications is a matter
beyond the control of the proponent. For it is not merely a question of finding
and producing any three witnesses; they must be witnesses "who know the
handwriting and signature of the testator" and who can declare (truthfully, of
course, even if the law does not express) "that the will and the signature are
in the handwriting of the testator." There may be no available witness
acquainted with the testator's hand; or even if so familiarized, the witness
maybe unwilling to give a positive opinion. Compliance with the rule of
paragraph 1 of article 811 may thus become an impossibility. That is
evidently the reason why the second paragraph of article 811 prescribes that

August 30, 1978

5. Give the 2,500 Square Meters at Sta. Cruz Ramonal Village in favor of
Evangeline R. Calugay, Helen must continue with the Sta. Cruz, once I am
no longer around.
(Sgd) Matilde Vda de Ramonal
August 30, 1978
6. Bury me where my husband Justo is ever buried.
(Sgd) Matilde Vda de Ramonal
August 30, 1978
Gene and Manuel:

in the absence of any competent witness referred to in the preceding

paragraph, and if the court deems it necessary, expert testimony may be
resorted to.
As can be see, the law foresees, the possibility that no qualified witness ma
be found (or what amounts to the same thing, that no competent witness may
be willing to testify to the authenticity of the will), and provides for resort to
expert evidence to supply the deficiency.
It may be true that the rule of this article (requiring that three witnesses be
presented if the will is contested and only one if no contest is had) was
derived from the rule established for ordinary testaments (CF Cabang vs.
Delfianado, 45 PHIL 291; Tolentino v. Francisco, 57 PHIL 742). But it can not
be ignored that the requirement can be considered mandatory only in case of
ordinary testaments, precisely because the presence of at least three
witnesses at the execution of ordinary wills is made by law essential to their
validity (Art. 805). Where the will is holographic, no witness need be present

(art. 10), and the rule requiring production of three witnesses must be
deemed merely permissive if absurd results are to be avoided.
Again, under Art. 811, the resort to expert evidence is conditioned by the
words "if the court deem it necessary", which reveal that what the law deems
essential is that the court should be convinced of the will's authenticity.
Where the prescribed number of witnesses is produced and the court is
convinced by their testimony that the will is genuine, it may consider it
unnecessary to call for expert evidence. On the other hand, if no competent
witness is available, or none of those produced is convincing, the court may
still, and in fact it should resort to handwriting experts. The duty of the court,
in fine, is to exhaust all available lines of inquiry, for the state is as much
interested as the proponent that the true intention of the testator be carried
into effect.
Paraphrasing Azaola vs. Singson, even if the genuineness of the holographic
will were contested, Article 811 of the civil code cannot be interpreted as to
require the compulsory presentation of three witnesses to identify the
handwriting of the testator, under penalty of the having the probate denied.
No witness need be present in the execution of the holographic will. And the
rule requiring the production of three witnesses is merely permissive. What
the law deems essential is that the court is convinced of the authenticity of
the will. Its duty is to exhaust all available lines of inquiry, for the state is as
much interested in the proponent that the true intention of the testator be
carried into effect. And because the law leaves it to the trial court to decide if
experts are still needed, no unfavorable inference can be drawn from a
party's failure to offer expert evidence, until and unless the court expresses
dissatisfaction with the testimony of the lay witnesses.10
According to the Court of Appeals, Evangeline Calugay, Matilde Ramonal
Binanay and other witnesses definitely and in no uncertain terms testified
that the handwriting and signature in the holographic will were those of the
testator herself.
Thus, upon the unrebutted testimony of appellant Evangeline Calugay and
witness Matilde Ramonal Binanay, the Court of Appeals sustained the
authenticity of the holographic will and the handwriting and signature therein,
and allowed the will to probate.
Hence, this petition.

(2) Whether or not the Court of Appeals erred in holding that private
respondents had been able to present credible evidence to that the date,
text, and signature on the holographic will written entirely in the hand of the
testatrix.
(3) Whether or not the Court of Appeals erred in not analyzing the signatures
in the holographic will of Matilde Seo Vda. de Ramonal.
In this petition, the petitioners ask whether the provisions of Article 811 of the
Civil Code are permissive or mandatory. The article provides, as a
requirement for the probate of a contested holographic will, that at least three
witnesses explicitly declare that the signature in the will is the genuine
signature of the testator.1wphi1.nt
We are convinced, based on the language used, that Article 811 of the Civil
Code is mandatory. The word "shall" connotes a mandatory order. We have
ruled that "shall" in a statute commonly denotes an imperative obligation and
is inconsistent with the idea of discretion and that the presumption is that the
word "shall," when used in a statute is mandatory.11
Laws are enacted to achieve a goal intended and to guide against an evil or
mischief that aims to prevent. In the case at bar, the goal to achieve is to give
effect to the wishes of the deceased and the evil to be prevented is the
possibility that unscrupulous individuals who for their benefit will employ
means to defeat the wishes of the testator.
So, we believe that the paramount consideration in the present petition is to
determine the true intent of the deceased. An exhaustive and objective
consideration of the evidence is imperative to establish the true intent of the
testator.
It will be noted that not all the witnesses presented by the respondents
testified explicitly that they were familiar with the handwriting of testator. In
the case of Augusto Neri, clerk of court, Court of First Instance, Misamis
Oriental, he merely identified the record of Special Proceedings No. 427
before said court. He was not presented to declare explicitly that the
signature appearing in the holographic was that of the deceased.
Generosa E. Senon, the election registrar of Cagayan de Oro City, was
presented to identify the signature of the deceased in the voter's affidavit,
which was not even produced as it was no longer available.

The petitioners raise the following issues:

Matilde Ramonal Binanay, on the other hand, testified that:
(1) Whether or not the ruling of the case of Azaola vs. Singson, 109 Phil. 102,
relied upon by the respondent Court of Appeals, was applicable to the case.

Q. And you said for eleven (11) years Matilde Vda de Ramonal resided with
your parents at Pinikitan, Cagayan de Oro City. Would you tell the court what

was your occupation or how did Matilde Vda de Ramonal keep herself busy
that time?

Q. How is this record of accounts made? How is this reflected?

A. In handwritten.14

A. Collecting rentals.
xxx

xxx

xxx

Q. From where?
A.
From the land rentals and commercial buildings at Pabayo-Gomez
streets.12

Q. In addition to collection of rentals, posting records of accounts of tenants

and deed of sale which you said what else did you do to acquire familiarity of
the signature of Matilde Vda De Ramonal?

xxx

A. Posting records.

xxx

xxx

Q. Who sometime accompany her?

Q. Aside from that?

A. I sometimes accompany her.

A. Carrying letters.

Q. In collecting rentals does she issue receipts?

Q. Letters of whom?

A. Yes, sir.13

A. Matilde.

xxx

xxx

xxx

Q. Showing to you the receipt dated 23 October 1979, is this the one you
are referring to as one of the receipts which she issued to them?

Q. To whom?
A. To her creditors.15
xxx

xxx

xxx

A. Yes, sir.
Q.
Now there is that signature of Matilde vda. De Ramonal, whose
signature is that Mrs. Binanay?

Q. You testified that at time of her death she left a will. I am showing to you
a document with its title "tugon" is this the document you are referring to?
A. Yes, sir.

A. Matilde vda. De Ramonal.

Q. Why do you say that is the signature of Matilde Vda.De Ramonal?

Q. Showing to you this exhibit "S", there is that handwritten "tugon", whose
handwriting is this?

A. I am familiar with her signature.

A. My Aunt.

Q. Now, you tell the court Mrs. Binanay, whether you know Matilde vda de
Ramonal kept records of the accounts of her tenants?

Q. Why do you say this is the handwriting of your aunt?

A. Because I am familiar with her signature.16

A. Yes, sir.
Q. Why do you say so?
A. Because we sometimes post a record of accounts in behalf of Matilde
Vda. De Ramonal.

What Ms. Binanay saw were pre-prepared receipts and letters of the
deceased, which she either mailed or gave to her tenants. She did not
declare that she saw the deceased sign a document or write a note.

Further, during the cross-examination, the counsel for petitioners elicited the
fact that the will was not found in the personal belongings of the deceased
but was in the possession of Ms. Binanay. She testified that:
Q. Mrs. Binanay, when you were asked by counsel for the petitioners if the
late Matilde Seno vda de Ramonal left a will you said, yes?
A. Yes, sir.

In her testimony it was also evident that Ms. Binanay kept the fact about the
will from petitioners, the legally adopted children of the deceased. Such
actions put in issue her motive of keeping the will a secret to petitioners and
revealing it only after the death of Matilde Seo Vda. de Ramonal.
In the testimony of Ms. Binanay, the following were established:
Q. Now, in 1978 Matilde Seno Vda de Ramonal was not yet a sickly person
is that correct?

Q. Who was in possession of that will?

A. Yes, sir.
A. I.
Q. Since when did you have the possession of the will?

Q. She was up and about and was still uprightly and she could walk agilely
and she could go to her building to collect rentals, is that correct?

A. It was in my mother's possession.

A. Yes, sir.19

Q. So, it was not in your possession?

xxx

A. Sorry, yes.

Q. Now, let us go to the third signature of Matilde Ramonal. Do you know

that there are retracings in the word Vda.?

xxx

xxx

Q. And when did you come into possession since as you said this was
originally in the possession of your mother?

A. Yes, a little. The letter L is continuous.

A. 1985.17

Q. And also in Matilde the letter L is continued to letter D?

xxx

xxx

xxx

A. Yes, sir.

Q. Now, Mrs. Binanay was there any particular reason why your mother left
that will to you and therefore you have that in your possession?

Q. Again the third signature of Matilde Vda de Ramonal the letter L in

Matilde is continued towards letter D.

A. It was not given to me by my mother, I took that in the aparador when

she died.

A. Yes, sir.
Q. And there is a retracing in the word Vda.?

Q. After taking that document you kept it with you?

A. Yes, sir.20
A. I presented it to the fiscal.
xxx

xxx

xxx

Q. For what purpose?

A. Just to seek advice.
Q. Advice of what?

Q. Now, that was 1979, remember one year after the alleged holographic
will. Now, you identified a document marked as Exhibit R. This is dated
January 8, 1978 which is only about eight months from August 30, 1978. Do
you notice that the signature Matilde Vda de Ramonal is beautifully written
and legible?

A. About the will.18

A. Yes, sir the handwriting shows that she was very exhausted.

Q. You just say that she was very exhausted while that in 1978 she was
healthy was not sickly and she was agile. Now, you said she was exhausted?

Q. In the course of your stay for 22 years did you acquire familiarity of the
handwriting of Matilde Vda de Ramonal?
A. Yes, sir.

A. In writing.
Q. How come that you acquired familiarity?
Q. How did you know that she was exhausted when you were not present
and you just tried to explain yourself out because of the apparent
inconsistencies?

A. Because I lived with her since birth.22

xxx

xxx

xxx

A. That was I think. (sic).

Q. Now, you already observed this signature dated 1978, the same year as
the alleged holographic will. In exhibit I, you will notice that there is no
retracing; there is no hesitancy and the signature was written on a fluid
movement. . . . And in fact, the name Eufemia R. Patigas here refers to one
of the petitioners?

Q. Now, I am showing to you Exhibit S which is captioned "tugon" dated

Agosto 30, 1978 there is a signature here below item No. 1, will you tell this
court whose signature is this?
A. Yes, sir, that is her signature.
Q. Why do you say that is her signature?

A. Yes, sir.
A. I am familiar with her signature.23
Q. You will also notice Mrs. Binanay that it is not only with the questioned
signature appearing in the alleged holographic will marked as Exhibit X but in
the handwriting themselves, here you will notice the hesitancy and tremors,
do you notice that?

So, the only reason that Evangeline can give as to why she was familiar with
the handwriting of the deceased was because she lived with her since birth.
She never declared that she saw the deceased write a note or sign a
document.

A. Yes, sir.21
The former lawyer of the deceased, Fiscal Waga, testified that:
Evangeline Calugay declared that the holographic will was written, dated and
signed in the handwriting of the testator. She testified that:
Q. You testified that you stayed with the house of the spouses Matilde and
Justo Ramonal for the period of 22 years. Could you tell the court the
services if any which you rendered to Matilde Ramonal?

Q. Do you know Matilde Vda de Ramonal?

A. Yes, sir I know her because she is my godmother the husband is my
godfather. Actually I am related to the husband by consanguinity.
Q. Can you tell the name of the husband?

A. During my stay I used to go with her to the church, to market and then to
her transactions.

A. The late husband is Justo Ramonal.24

Q. What else? What services that you rendered?

xxx

A. After my college days I assisted her in going to the bank, paying taxes
and to her lawyer.

Q. Can you tell this court whether the spouses Justo Ramonal and Matilde
Ramonal have legitimate children?

Q. What was your purpose of going to her lawyer?

A. As far as I know they have no legitimate children.25

A. I used to be her personal driver.

xxx

xxx

xxx

xxx

xxx

Q. You said after becoming a lawyer you practice your profession? Where?
A. Here in Cagayan de Oro City.

A. I think this signature here it seems to be the signature of Mrs. Matilde

vda de Ramonal.

Q.
Do you have services rendered with the deceased Matilde vda de
Ramonal?

Q.
Now, in item No. 2 there is that signature here of Matilde Vda de
Ramonal, can you tell the court whose signature is this?

A. I assisted her in terminating the partition, of properties.

A. Well, that is similar to that signature appearing in the project of partition.

Q. When you said assisted, you acted as her counsel? Any sort of counsel
as in what case is that, Fiscal?

Q. Also in item no. 3 there is that signature Matilde Vda de Ramonal, can
you tell the court whose signature is that?

A. It is about the project partition to terminate the property, which was under
the court before.26

A. As I said, this signature also seems to be the signature of Matilde vda de

Ramonal.

xxx

Q. Why do you say that?

xxx

xxx

Q. Appearing in special proceeding no. 427 is the amended inventory which

is marked as exhibit N of the estate of Justo Ramonal and there appears a
signature over the type written word Matilde vda de Ramonal, whose
signature is this?

A. Because there is a similarity in the way it is being written.

A. That is the signature of Matilde Vda de Ramonal.

A. The same is true with the signature in item no. 4. It seems that they are
similar.29

Q. How about this signature in item no. 4, can you tell the court whose
signature is this?

Q. Also in exhibit n-3, whose signature is this?

xxx

xxx

xxx

A. This one here that is the signature of Mrs. Matilde vda de Ramonal.27
xxx

xxx

xxx

Q. Mr. Prosecutor, I heard you when you said that the signature of Matilde
Vda de Ramonal Appearing in exhibit S seems to be the signature of Matilde
vda de Ramonal?

Q. Aside from attending as counsel in that Special Proceeding Case No.

427 what were the other assistance wherein you were rendering professional
service to the deceased Matilde Vda de Ramonal?

A. Yes, it is similar to the project of partition.

A. I can not remember if I have assisted her in other matters but if there are
documents to show that I have assisted then I can recall.28

Q. So you are not definite that this is the signature of Matilde vda de
Ramonal. You are merely supposing that it seems to be her signature
because it is similar to the signature of the project of partition which you have
made?

xxx

xxx

xxx
A. That is true.30

Q. Now, I am showing to you exhibit S which is titled "tugon", kindly go over

this document, Fiscal Waga and tell the court whether you are familiar with
the handwriting contained in that document marked as exhibit "S"?
A. I am not familiar with the handwriting.
Q. This one, Matilde Vda de Ramonal, whose signature is this?

From the testimonies of these witnesses, the Court of Appeals allowed the
will to probate and disregard the requirement of three witnesses in case of
contested holographic will, citing the decision in Azaola vs. Singson,31 ruling
that the requirement is merely directory and not mandatory.

In the case of Ajero vs. Court of Appeals,32 we said that "the object of the
solemnities surrounding the execution of wills is to close the door against bad
faith and fraud, to avoid substitution of wills and testaments and to guaranty
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.
However, we cannot eliminate the possibility of a false document being
adjudged as the will of the testator, which is why if the holographic will is
contested, that law requires three witnesses to declare that the will was in the
handwriting of the deceased.
The will was found not in the personal belongings of the deceased but with
one of the respondents, who kept it even before the death of the deceased.
In the testimony of Ms. Binanay, she revealed that the will was in her
possession as early as 1985, or five years before the death of the deceased.
There was no opportunity for an expert to compare the signature and the
handwriting of the deceased with other documents signed and executed by
her during her lifetime. The only chance at comparison was during the crossexamination of Ms. Binanay when the lawyer of petitioners asked Ms.
Binanay to compare the documents which contained the signature of the
deceased with that of the holographic will and she is not a handwriting
expert. Even the former lawyer of the deceased expressed doubts as to the
authenticity of the signature in the holographic will.
A visual examination of the holographic will convince us that the strokes are
different when compared with other documents written by the testator. The
signature of the testator in some of the disposition is not readable. There
were uneven strokes, retracing and erasures on the will.
Comparing the signature in the holographic will dated August 30, 1978,33
and the signatures in several documents such as the application letter for
pasture permit dated December 30, 1980,34 and a letter dated June 16,
1978,35 the strokes are different. In the letters, there are continuous flows of
the strokes, evidencing that there is no hesitation in writing unlike that of the
holographic will. We, therefore, cannot be certain that ruling holographic will
was in the handwriting by the deceased.
IN VIEW WHEREOF, the decision appealed from is SET ASIDE. The records
are ordered remanded to the court of origin with instructions to allow
petitioners to adduce evidence in support of their opposition to the probate of
the holographic will of the deceased Matilde Seo vda. de
Ramonal.1wphi1.nt

No costs.
SO ORDERED.
Davide, Jr., C.J., Puno, Kapunan and Ynares-Santiago, JJ., concur.

G.R. No. 106720

September 15, 1994

SPOUSES ROBERTO AND THELMA AJERO, petitioners,

vs.
THE COURT OF APPEALS AND CLEMENTE SAND, respondents.
Miguel D. Larida for petitioners.
Montilla Law Office for private respondent.
Succession; Wills; Holographic Wills; Probate Proceedings; The grounds
enumerated in the Civil Code and Rules of Court for the disallowance of wills
are exclusive; Issues in a petition to admit a holographic will to probate.
Section 9, Rule 76 of the Rules of Court provides the cases in which wills
shall be disallowed. In the same vein, Article 839 of the New Civil Code
enumerates the grounds for disallowance of wills. These lists are exclusive;
no other grounds can serve to disallow a will. Thus, in a petition to admit a
holographic will to probate, the only issues to be resolved are: (1) whether
the instrument submitted is, indeed, the decedents last will and testament;
(2) whether said will was executed in accordance with the formalities
prescribed bylaw; (3) whether the decedent had the necessary testamentary
capacity at the time the will was executed; and, (4) whether the execution of
the will and its signing were the voluntary acts of the decedent.
Same; Same; Same; Same; Statutory Construction; The object of the
solemnities surrounding the execution of wills is to close the door against bad
faith and fraud, accordingly, laws on this subject should be interpreted to
attain these primordial ends.We reiterate what we held in Abangan vs.
Abangan, 40 Phil. 476, 479 (1919), that: The object of the solemnities
surrounding the execution of wills is to close the door against bad faith and
fraud, to avoid substitution of wills and testaments and to guaranty 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 testators last will, must be
disregarded. For purposes of probating non-holographic wills, these formal
solemnities include the subscription, attestation, and acknowledgment
requirements under Articles 805 and 806 of the New Civil Code.
Same; Same; Same; Same; Failure to strictly observe other formalities will
not result in the disallowance of a holographic will that is unquestionably
handwritten by the testator.In the case of holographic wills, on the other
hand, what assures authenticity is the requirement that they be totally
autographic or handwritten by the testator himself, as provided under Article
810 of the New Civil Code. Failure to strictly observe other formalities will not

result in the disallowance of a holographic will that is unquestionably

handwritten by the testator.
Same; Same; Same; Same; The requirement of Article 813 of the New Civil
Code affects the validity of the dispositions contained in the holographic will,
but not its probate.A reading of Article 813 of the New Civil Code shows
that its requirement affects the validity of the dispositions contained in the
holographic will, but not its probate. If the testator fails to sign and date some
of the dispositions, the result is that these dispositions cannot be effectuated.
Such failure, however, does not render the whole testament void.
Same; Same; Same; Same; Unauthenticated alterations, cancellations or
insertions do not invalidate a holographic will, unless they were made on the
date or on testators signature.Likewise, a holographic will can still be
admitted to probate, notwithstanding noncompliance with the provisions of
Article 814. Thus, unless the unauthenticated alterations, cancellations or
insertions were made on the date of the holographic will or on testators
signature, their presence does not invalidate the will itself. The lack of
authentication will only result in disallowance of such changes.
Same; Same; Same; Same; Only the requirements of Article 810 of the New
Civil Codeand not those found in Articles 813 and 814are essential to
the probate of a holographic will.It is also proper to note that the
requirements of authentication of changes and signing and dating of
dispositions appear in provisions (Articles 813 and 814) separate from that
which provides for the necessary conditions for the validity of the holographic
will (Article 810). The distinction can be traced to Articles 678 and 688 of the
Spanish Civil Code, from which the present provisions covering holographic
wills are taken. This separation and distinction adds support to the
interpretation that only the requirements of Article 810 of the New Civil Code
and not those found in Article 813 and 814 of the same Codeare
essential to the probate of a holographic will.
Same; Same; Same; Same; Probate Courts; While courts in probate
proceedings are generally limited to pass only upon the extrinsic validity of
the will sought to be probated, in exceptional cases, courts are not powerless
to do what the situation constrains them to do, and pass upon certain
provisions of the will.As a general rule, courts in probate proceedings are
limited to pass only upon the extrinsic validity of the will sought to be
probated. However, in exceptional instances, courts are not powerless to do
what the situation constrains them to do, and pass upon certain provisions of
the will. In the case at bench, decedent herself indubitably stated in her
holographic will that the Cabadbaran property is in the name of her late
father, John H. Sand (which led oppositor Dr. Jose Ajero to question her
conveyance of the same in its entirety). Thus, as correctly held by
respondent court, she cannot validly dispose of the whole property, which
she shares with her fathers other heirs.
PETITION for review on certiorari of a decision of the Court of Appeals.
[Ajero vs. Court of Appeals, 236 SCRA 488(1994)]

PUNO, J.:
This is an appeal by certiorari from the Decision of the Court of
Appeals 1 in CA-G.R. CV No. 22840, dated March 30, 1992, the dispositive
portion of which reads;
PREMISES CONSIDERED, the questioned decision of November 19, 1988
of the trial court is hereby REVERSED and SET ASIDE, and the petition for
probate is hereby DISMISSED. No costs.
The earlier Decision was rendered by the RTC of Quezon City, Branch 94, 2
in Sp. Proc. No. Q-37171, and the instrument submitted for probate is the
holographic will of the late Annie Sand, who died on November 25, 1982.
In the will, decedent named as devisees, the following: petitioners Roberto
and Thelma Ajero, private respondent Clemente Sand, Meriam S. Arong,
Leah Sand, Lilia Sand, Edgar Sand, Fe Sand, Lisa S. Sand, and Dr. Jose
Ajero, Sr., and their children.
On January 20, 1983, petitioners instituted Sp. Proc. No. Q-37171, for
allowance of decedent's holographic will. They alleged that at the time of its
execution, she was of sound and disposing mind, not acting under duress,
fraud or undue influence, and was in every respect capacitated to dispose of
her estate by will.
Private respondent opposed the petition on the grounds that: neither the
testament's body nor the signature therein was in decedent's handwriting; it
contained alterations and corrections which were not duly signed by
decedent; and, the will was procured by petitioners through improper
pressure and undue influence. The petition was likewise opposed by Dr. Jose
Ajero. He contested the disposition in the will of a house and lot located in
Cabadbaran, Agusan Del Norte. He claimed that said property could not be
conveyed by decedent in its entirety, as she was not its sole owner.
Notwithstanding the oppositions, the trial court admitted the decedent's
holographic will to probate. It found, inter alia:
Considering then that the probate proceedings herein must decide only the
question of identity of the will, its due execution and the testamentary
capacity of the testatrix, this probate court finds no reason at all for the
disallowance of the will for its failure to comply with the formalities prescribed
by law nor for lack of testamentary capacity of the testatrix.
For one, no evidence was presented to show that the will in question is
different from the will actually executed by the testatrix. The only objections

raised by the oppositors . . . are that the will was not written in the
handwriting of the testatrix which properly refers to the question of its due
execution, and not to the question of identity of will. No other will was alleged
to have been executed by the testatrix other than the will herein presented.
Hence, in the light of the evidence adduced, the identity of the will presented
for probate must be accepted, i.e., the will submitted in Court must be
deemed to be the will actually executed by the testatrix.
xxx

xxx

xxx

While the fact that it was entirely written, dated and signed in the handwriting
of the testatrix has been disputed, the petitioners, however, have
satisfactorily shown in Court that the holographic will in question was indeed
written entirely, dated and signed in the handwriting of the testatrix. Three (3)
witnesses who have convincingly shown knowledge of the handwriting of the
testatrix have been presented and have explicitly and categorically identified
the handwriting with which the holographic will in question was written to be
the genuine handwriting and signature of the testatrix. Given then the
aforesaid evidence, the requirement of the law that the holographic will be
entirely written, dated and signed in the handwriting of the testatrix has been
complied with.
xxx

xxx

xxx

As to the question of the testamentary capacity of the testratix, (private

respondent) Clemente Sand himself has testified in Court that the testatrix
was completely in her sound mind when he visited her during her birthday
celebration in 1981, at or around which time the holographic will in question
was executed by the testatrix. To be of sound mind, it is sufficient that the
testatrix, at the time of making the will, knew the value of the estate to be
disposed of, the proper object of her bounty, and the character of the
testamentary act . . . The will itself shows that the testatrix even had detailed
knowledge of the nature of her estate. She even identified the lot number and
square meters of the lots she had conveyed by will. The objects of her
bounty were likewise identified explicitly. And considering that she had even
written a nursing book which contained the law and jurisprudence on will and
succession, there is more than sufficient showing that she knows the
character of the testamentary act.
In this wise, the question of identity of the will, its due execution and the
testamentary capacity of the testatrix has to be resolved in favor of the
allowance of probate of the will submitted herein.
Likewise, no evidence was presented to show sufficient reason for the
disallowance of herein holographic will. While it was alleged that the said will
was procured by undue and improper pressure and influence on the part of

the beneficiary or of some other person, the evidence adduced have not
shown any instance where improper pressure or influence was exerted on
the testatrix. (Private respondent) Clemente Sand has testified that the
testatrix was still alert at the time of the execution of the will, i.e., at or around
the time of her birth anniversary celebration in 1981. It was also established
that she is a very intelligent person and has a mind of her own. Her
independence of character and to some extent, her sense of superiority,
which has been testified to in Court, all show the unlikelihood of her being
unduly influenced or improperly pressured to make the aforesaid will. It must
be noted that the undue influence or improper pressure in question herein
only refer to the making of a will and not as to the specific testamentary
provisions therein which is the proper subject of another proceeding. Hence,
under the circumstances, this Court cannot find convincing reason for the
disallowance of the will herein.

(b)
If the testator was insane, or otherwise mentally incapable to make a
will, at the time of its execution;
(c)

If it was executed under duress, or the influence of fear, or threats;

(d)
If it was procured by undue and improper pressure and influence, on
the part of the beneficiary, or of some other person for his benefit;
(e)
If the signature of the testator was procured by fraud or trick, and he
did not intend that the instrument should be his will at the time of fixing his
signature thereto.
In the same vein, Article 839 of the New Civil Code reads:

Considering then that it is a well-established doctrine in the law on

succession that in case of doubt, testate succession should be preferred over
intestate succession, and the fact that no convincing grounds were presented
and proven for the disallowance of the holographic will of the late Annie
Sand, the aforesaid will submitted herein must be admitted to probate. 3
(Citations omitted.)

Art. 839:

On appeal, said Decision was reversed, and the petition for probate of
decedent's will was dismissed. The Court of Appeals found that, "the
holographic will fails to meet the requirements for its validity." 4 It held that
the decedent did not comply with Articles 813 and 814 of the New Civil Code,
which read, as follows:

(3)
If it was executed through force or under duress, or the influence of
fear, or threats;

Art. 813:
When a number of dispositions appearing in a holographic
will are signed without being dated, and the last disposition has a signature
and date, such date validates the dispositions preceding it, whatever be the
time of prior dispositions.

(5)

Art. 814:
In case of insertion, cancellation, erasure or alteration in a
holographic will, the testator must authenticate the same by his full signature.

These lists are exclusive; no other grounds can serve to disallow a will. 5
Thus, in a petition to admit a holographic will to probate, the only issues to be
resolved are: (1) whether the instrument submitted is, indeed, the decedent's
last will and testament; (2) whether said will was executed in accordance with
the formalities prescribed by law; (3) whether the decedent had the
necessary testamentary capacity at the time the will was executed; and, (4)
whether the execution of the will and its signing were the voluntary acts of
the decedent. 6

It alluded to certain dispositions in the will which were either unsigned and
undated, or signed but not dated. It also found that the erasures, alterations
and cancellations made thereon had not been authenticated by decedent.
Thus, this appeal which is impressed with merit.
Section 9, Rule 76 of the Rules of Court provides that will shall be disallowed
in any of the following cases:
(a)

If not executed and attested as required by law;

(1)

The will shall be disallowed in any of the following cases;

If the formalities required by law have not been complied with;

(2)
If the testator was insane, or otherwise mentally incapable of making
a will, at the time of its execution;

(4)
If it was procured by undue and improper pressure and influence, on
the part of the beneficiary or of some other person;
If the signature of the testator was procured by fraud;

(6)
If the testator acted by mistake or did not intend that the instrument
he signed should be his will at the time of affixing his signature thereto.

In the case at bench, respondent court held that the holographic will of Anne
Sand was not executed in accordance with the formalities prescribed by law.
It held that Articles 813 and 814 of the New Civil Code, ante, were not
complied with, hence, it disallowed the probate of said will. This is erroneous.

We reiterate what we held in Abangan vs. Abangan, 40 Phil. 476, 479 (1919),
that:
The object of the solemnities surrounding the execution of wills is to close the
door against bad faith and fraud, to avoid substitution of wills and testaments
and to guaranty 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.
For purposes of probating non-holographic wills, these formal solemnities
include the subscription, attestation, and acknowledgment requirements
under Articles 805 and 806 of the New Civil Code.
In the case of holographic wills, on the other hand, what assures authenticity
is the requirement that they be totally autographic or handwritten by the
testator himself, 7 as provided under Article 810 of the New Civil Code, thus:
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. (Emphasis supplied.)
Failure to strictly observe other formalities will not result in the disallowance
of a holographic will that is unquestionably handwritten by the testator.
A reading of Article 813 of the New Civil Code shows that its requirement
affects the validity of the dispositions contained in the holographic will, but
not its probate. If the testator fails to sign and date some of the dispositions,
the result is that these dispositions cannot be effectuated. Such failure,
however, does not render the whole testament void.
Likewise, a holographic will can still be admitted to probate, notwithstanding
non-compliance with the provisions of Article 814. In the case of Kalaw vs.
Relova 132 SCRA 237 242 (1984), this Court held:
Ordinarily, when a number of erasures, corrections, and interlineations made
by the testator in a holographic Will have not been noted under his signature,
. . . the Will is not thereby invalidated as a whole, but at most only as
respects the particular words erased, corrected or interlined. Manresa gave
an identical commentary when he said "la omission de la salvedad no anula

el testamento, segun la regla de jurisprudencia establecida en la sentencia

de 4 de Abril de 1985." 8 (Citations omitted.)
Thus, unless the unauthenticated alterations, cancellations or insertions were
made on the date of the holographic will or on testator's signature, 9 their
presence does not invalidate the will itself. 10 The lack of authentication will
only result in disallowance of such changes.
It is also proper to note that the requirements of authentication of changes
and signing and dating of dispositions appear in provisions (Articles 813 and
814) separate from that which provides for the necessary conditions for the
validity of the holographic will (Article 810). The distinction can be traced to
Articles 678 and 688 of the Spanish Civil Code, from which the present
provisions covering holographic wills are taken. They read as follows:
Art. 678:
A will is called holographic when the testator writes it himself
in the form and with the requisites required in Article 688.
Art. 688:
age.

Holographic wills may be executed only by persons of full

In order that the will be valid it must be drawn on stamped paper

corresponding to the year of its execution, written in its entirety by the
testator and signed by him, and must contain a statement of the year, month
and day of its execution.
If it should contain any erased, corrected, or interlined words, the testator
must identify them over his signature.
Foreigners may execute holographic wills in their own language.
This separation and distinction adds support to the interpretation that only the
requirements of Article 810 of the New Civil Code and not those found in
Articles 813 and 814 of the same Code are essential to the probate of a
holographic will.
The Court of Appeals further held that decedent Annie Sand could not validly
dispose of the house and lot located in Cabadbaran, Agusan del Norte, in its
entirety. This is correct and must be affirmed.
As a general rule, courts in probate proceedings are limited to pass only
upon the extrinsic validity of the will sought to be probated. However, in
exceptional instances, courts are not powerless to do what the situation
constrains them to do, and pass upon certain provisions of the will. 11 In the
case at bench, decedent herself indubitably stated in her holographic will that
the Cabadbaran property is in the name of her late father, John H. Sand

(which led oppositor Dr. Jose Ajero to question her conveyance of the same
in its entirety). Thus, as correctly held by respondent court, she cannot validly
dispose of the whole property, which she shares with her father's other heirs.
IN VIEW WHEREOF, the instant petition is GRANTED. The Decision of the
Court of Appeals in CA-G.R. CV No. 22840, dated March 30, 1992, is
REVERSED and SET ASIDE, except with respect to the invalidity of the
disposition of the entire house and lot in Cabadbaran, Agusan del Norte. The
Decision of the Regional Trial Court of Quezon City, Branch 94 in Sp. Proc.
No. Q-37171, dated November 19, 1988, admitting to probate the
holographic will of decedent Annie Sand, is hereby REINSTATED, with the
above qualification as regards the Cabadbaran property. No costs.
SO ORDERED.
Narvasa, C.J., Padilla, Regalado and Mendoza, JJ., concur.

G.R. No. 169144

January 26, 2011

The Facts and the Case

IN RE: IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF

RUPERTA PALAGANAS WITH PRAYER FOR THE APPOINTMENT OF
SPECIAL ADMINISTRATOR, MANUEL MIGUEL PALAGANAS and
BENJAMIN GREGORIO PALAGANAS, Petitioners,
vs.
ERNESTO PALAGANAS, Respondent.
Civil Law; Probate Proceedings; Wills and Succession; Our laws do not
prohibit the probate of wills executed by foreigners abroad although the same
have not as yet been probated and allowed in the countries of their
execution.But our laws do not prohibit the probate of wills executed by
foreigners abroad although the same have not as yet been probated and
allowed in the countries of their execution. A foreign will can be given legal
effects in our jurisdiction. Article 816 of the Civil Code states that the will of
an alien who is abroad produces effect in the Philippines if made in
accordance with the formalities prescribed by the law of the place where he
resides, or according to the formalities observed in his country.
Same; Same; Same; The rules do not require proof that the foreign will has
already been allowed and probated in the country of its execution.Our
rules require merely that the petition for the allowance of a will must show, so
far as known to the petitioner: (a) the jurisdictional facts; (b) the names, ages,
and residences of the heirs, legatees, and devisees of the testator or
decedent; (c) the probable value and character of the property of the estate;
(d) the name of the person for whom letters are prayed; and (e) if the will has
not been delivered to the court, the name of the person having custody of it.
Jurisdictional facts refer to the fact of death of the decedent, his residence at
the time of his death in the province where the probate court is sitting, or if he
is an inhabitant of a foreign country, the estate he left in such province. The
rules do not require proof that the foreign will has already been allowed and
probated in the country of its execution.
PETITION for review on certiorari of a decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
Alan Ramiro L. Guevara for petitioners.
Fernandez, Fernandez and Associates Law Offices for respondent.
[Palaganas vs. Palaganas, 640 SCRA 538(2011)]
DECISION
ABAD, J.:
This case is about the probate before Philippine court of a will executed
abroad by a foreigner although it has not been probated in its place of
execution.

On November 8, 2001 Ruperta C. Palaganas (Ruperta), a Filipino who

became a naturalized United States (U.S.) citizen, died single and childless.
In the last will and testament she executed in California, she designated her
brother, Sergio C. Palaganas (Sergio), as the executor of her will for she had
left properties in the Philippines and in the U.S.
On May 19, 2003 respondent Ernesto C. Palaganas (Ernesto), another
brother of Ruperta, filed with the Regional Trial Court (RTC) of Malolos,
Bulacan, a petition for the probate of Rupertas will and for his appointment
as special administrator of her estate.1 On October 15, 2003, however,
petitioners Manuel Miguel Palaganas (Manuel) and Benjamin Gregorio
Palaganas (Benjamin), nephews of Ruperta, opposed the petition on the
ground that Rupertas will should not be probated in the Philippines but in the
U.S. where she executed it. Manuel and Benjamin added that, assuming
Rupertas will could be probated in the Philippines, it is invalid nonetheless
for having been executed under duress and without the testators full
understanding of the consequences of such act. Ernesto, they claimed, is
also not qualified to act as administrator of the estate.
Meantime, since Rupertas foreign-based siblings, Gloria Villaluz and Sergio,
were on separate occasions in the Philippines for a short visit, respondent
Ernesto filed a motion with the RTC for leave to take their deposition, which it
granted. On April, 13, 2004 the RTC directed the parties to submit their
memorandum on the issue of whether or not Rupertas U.S. will may be
probated in and allowed by a court in the Philippines.
On June 17, 2004 the RTC issued an order:2 (a) admitting to probate
Rupertas last will; (b) appointing respondent Ernesto as special
administrator at the request of Sergio, the U.S.-based executor designated in
the will; and (c) issuing the Letters of Special Administration to Ernesto.
Aggrieved by the RTCs order, petitioner nephews Manuel and Benjamin
appealed to the Court of Appeals (CA),3 arguing that an unprobated will
executed by an American citizen in the U.S. cannot be probated for the first
time in the Philippines.
On July 29, 2005 the CA rendered a decision,4 affirming the assailed order of
the RTC,5 holding that the RTC properly allowed the probate of the will,
subject to respondent Ernestos submission of the authenticated copies of
the documents specified in the order and his posting of required bond. The
CA pointed out that Section 2, Rule 76 of the Rules of Court does not require
prior probate and allowance of the will in the country of its execution, before it
can be probated in the Philippines. The present case, said the CA, is different

from reprobate, which refers to a will already probated and allowed abroad.
Reprobate is governed by different rules or procedures. Unsatisfied with the
decision, Manuel and Benjamin came to this Court.
The Issue Presented
The key issue presented in this case is whether or not a will executed by a
foreigner abroad may be probated in the Philippines although it has not been
previously probated and allowed in the country where it was executed.
The Courts Ruling
Petitioners Manuel and Benjamin maintain that wills executed by foreigners
abroad must first be probated and allowed in the country of its execution
before it can be probated here. This, they claim, ensures prior compliance
with the legal formalities of the country of its execution. They insist that local
courts can only allow probate of such wills if the proponent proves that: (a)
the testator has been admitted for probate in such foreign country, (b) the will
has been admitted to probate there under its laws, (c) the probate court has
jurisdiction over the proceedings, (d) the law on probate procedure in that
foreign country and proof of compliance with the same, and (e) the legal
requirements for the valid execution of a will.
But our laws do not prohibit the probate of wills executed by foreigners
abroad although the same have not as yet been probated and allowed in the
countries of their execution. A foreign will can be given legal effects in our
jurisdiction. Article 816 of the Civil Code states that the will of an alien who is
abroad produces effect in the Philippines if made in accordance with the
formalities prescribed by the law of the place where he resides, or according
to the formalities observed in his country.6
In this connection, Section 1, Rule 73 of the 1997 Rules of Civil Procedure
provides that if the decedent is an inhabitant of a foreign country, the RTC of
the province where he has an estate may take cognizance of the settlement
of such estate. Sections 1 and 2 of Rule 76 further state that the executor,
devisee, or legatee named in the will, or any other person interested in the
estate, may, at any time after the death of the testator, petition the court
having jurisdiction to have the will allowed, whether the same be in his
possession or not, or is lost or destroyed.
Our rules require merely that the petition for the allowance of a will must
show, so far as known to the petitioner: (a) the jurisdictional facts; (b) the
names, ages, and residences of the heirs, legatees, and devisees of the
testator or decedent; (c) the probable value and character of the property of
the estate; (d) the name of the person for whom letters are prayed; and (e) if
the will has not been delivered to the court, the name of the person having

custody of it. Jurisdictional facts refer to the fact of death of the decedent, his
residence at the time of his death in the province where the probate court is
sitting, or if he is an inhabitant of a foreign country, the estate he left in such
province.7 The rules do not require proof that the foreign will has already
been allowed and probated in the country of its execution.
In insisting that Rupertas will should have been first probated and allowed by
the court of California, petitioners Manuel and Benjamin obviously have in
mind the procedure for the reprobate of will before admitting it here. But,
reprobate or re-authentication of a will already probated and allowed in a
foreign country is different from that probate where the will is presented for
the first time before a competent court. Reprobate is specifically governed by
Rule 77 of the Rules of Court. Contrary to petitioners stance, since this latter
rule applies only to reprobate of a will, it cannot be made to apply to the
present case. In reprobate, the local court acknowledges as binding the
findings of the foreign probate court provided its jurisdiction over the matter
can be established.
Besides, petitioners stand is fraught with impractically.1wphi1 If the
instituted heirs do not have the means to go abroad for the probate of the
will, it is as good as depriving them outright of their inheritance, since our law
requires that no will shall pass either real or personal property unless the will
has been proved and allowed by the proper court.8
Notably, the assailed RTC order of June 17, 2004 is nothing more than an
initial ruling that the court can take cognizance of the petition for probate of
Rupertas will and that, in the meantime, it was designating Ernesto as
special administrator of the estate. The parties have yet to present evidence
of the due execution of the will, i.e. the testators state of mind at the time of
the execution and compliance with the formalities required of wills by the
laws of California. This explains the trial courts directive for Ernesto to
submit the duly authenticated copy of Rupertas will and the certified copies
of the Laws of Succession and Probate of Will of California.
WHEREFORE, the Court DENIES the petition and AFFIRMS the Court of
Appeals decision in CA-G.R. CV 83564 dated July 29, 2005.
SO ORDERED.

G.R. No. 76714 June 2, 1994

SALUD TEODORO VDA. DE PEREZ, petitioner,
vs.
HON. ZOTICO A. TOLETE in his capacity as Presiding Judge, Branch
18, RTC, Bulacan, respondent.
Natividad T. Perez for petitioner.
Benedicto T. Librojo for private respondents.
Succession; Probate of Wills; Conflict of Laws; Proof that wills executed
abroad conform with the formalities prescribed by laws in the foreign
jurisdiction or by Philippine laws is imperative.The respective wills of the
Cunanan spouses, who were American citizens, will only be effective in this
country upon compliance with the followingprovision of the Civil Code of the
Philippines: Art. 816. The will of an alien who is abroad produces effect in
the Philippines if made with the formalities prescribed by the law of the place
in which he resides, or according to the formalities observed in his country, or
in conformity with those which this Code prescribes. Thus, proof that both
wills conform with the formalities prescribed by New York laws or by
Philippine laws is imperative.
Same; Same; Same; Evidence necessary for the reprobate or allowance of
wills which have been probated outside the Philippines.The evidence
necessary for the reprobate or allowance of wills which have been probated
outside of the Philippines are as follows: (1) the due execution of the will in
accordance with the foreign laws; (2) the testator has his domicile in the
foreign country and not in the Philippines; (3) the will has been admitted to
probate in such country; (4) the fact that the foreign tribunal is a probate
court, and (5) the laws of a foreign country on procedure and allowance of
wills (III Moran Commentaries on the Rules of Court, 1970 ed., pp. 419-429;
Suntay v. Suntay, 95 Phil. 500 [1954]; Fluemer v. Hix, 54 Phil. 610 [1930]).
Same; Same; Same; Philippine courts cannot take judicial notice of foreign
laws.The necessity of presenting evidence on the foreign laws upon which
the probate in the foreign country is based is impelled by the fact that our
courts cannot take judicial notice of them (Philippine Commercial and
Industrial Bank v. Escolin, 56 SCRA 266 [1974]).
Same; Same; Same; Evidence; In the probate of wills, the courts should
relax the rules on evidence, as the goal is to receive the best evidence of
which the matter is susceptible before a purported will is probated or denied
probate.Petitioner must have perceived this omission as in fact she moved
for more time to submit the pertinent procedural and substantive New York
laws but which request respondent Judge just glossed over. While the
probate of a will is a special proceeding wherein courts should relax the rules
on evidence, the goal is to receive the best evidence of which the matter is

susceptible before a purported will is probated or denied probate (Vda. de

Ramos v. Court of Appeals, 81 SCRA 393 [1978]).
Same; Same; Same; The separate wills of the spouses may be probated
jointly.There is merit in petitioners insistence that the separate wills of the
Cunanan spouses should be probated jointly. Respondent Judges view that
the Rules on allowance of wills is couched in singular terms and therefore
should be interpreted to mean that there should be separate probate
proceedings for the wills of theCunanan spouses is too literal and simplistic
an approach. Such view overlooks the provisions of Section 2, Rule 1 of the
Revised Rules of Court, which advise that the rules shall be liberally
construed in order to promote their object and to assist the parties in
obtaining just, speedy, and inexpensive determination of every action and
proceeding. A literal application of the Rules should be avoided if they would
only result in the delay in the administration of justice (Acain v. Intermediate
Appellate Court, 155 SCRA 100 [1987]; Roberts v. Leonidas, 129 SCRA 33
[1984]).
Same; Same; Same; Joint Wills; What the law expressly prohibits is the
making of joint wills, not the joint probate of separate wills containing
essentially the same provisions and pertaining to property which in all
probability are conjugal in nature.What the law expressly prohibits is the
making of joint wills either for the testators reciprocal benefit or for the
benefit of a third person (Civil Code of the Philippines, Article 818). In the
case at bench, the Cunanan spouses executed separate wills. Since the two
wills contain essentially the same provisions and pertain to property which in
all probability are conjugal in nature, practical considerations dictate their
joint probate. As this Court has held a number of times, it will always strive to
settle the entire controversy in a single proceeding leaving no root or branch
to bear the seeds of future litigation (Motoomull v. Dela Paz, 187 SCRA 743
[1990]).
Same; Same; Same; With regard to notices, the will probated abroad should
be treated as if it were an original will or a will that is presented for probate
for the first time and accordingly must comply with Sections 3 and 4 of Rule
76, which require publication and notice to the known heirs, legatees and
devisees, and to the executor, if he is not the petitioner.The rule that the
court having jurisdiction over the reprobate of a will shall cause notice
thereof to be given as in case of an original will presented for allowance
(Revised Rules of Court, Rule 27, Section 2) means that with regard to
notices, the will probated abroad should be treated as if it were an original
will or a will that is presented for probate for the first time. Accordingly,
compliance with Sections 3 and 4 of Rule 76, which require publication and
notice by mail or personally to the known heirs, legatees, and devisees of
the testator resident in the Philippines and to the executor, if he is not the
petitioner, are required.
Same; Same; Certiorari; Parties; A judge whose order is being assailed is
merely a nominal or formal party.This petition cannot be completely
resolved without touching on a very glaring factpetitioner has always

considered herself the sole heir of Dr. Evelyn Perez Cunanan and because
she does not consider herself an heir of Dr. Jose F. Cunanan, she noticeably
failed to notify his heirs of the filing of the proceedings. Thus, even in the
instant petition, she only impleaded respondent Judge, forgetting that a judge
whose order is being assailed is merely a nominal or formal party (Calderon
v. Solicitor General, 215 SCRA 876 [1992]).
SPECIAL CIVIL ACTION in the Supreme Court.Certiorari. [Vda. de Perez vs.
Tolete, 232 SCRA 722(1994)]
QUIASON, J.:
This is a petition for certiorari under Rule 65 of the Revised Rules of Court to
set aside the Order dated November 19, 1986 of the Regional Trial Court,
Branch 18, Bulacan presided by respondent Judge Zotico A. Tolete, in
Special Proceedings No. 1793-M.
We grant the petition.
II
Dr. Jose F. Cunanan and his wife, Dr. Evelyn Perez-Cunanan, who became
American citizens, established a successful medical practice in New York,
U.S.A. The Cunanans lived at No. 2896 Citation Drive, Pompey, Syracuse,
New York, with their children, Jocelyn, 18; Jacqueline, 16; and Josephine, 14.
On August 23, 1979, Dr. Cunanan executed a last will and testament,
bequeathing to his wife "all the remainder" of his real and personal property
at the time of his death "wheresoever situated" (Rollo, p. 35). In the event he
would survive his wife, he bequeathed all his property to his children and
grandchildren with Dr. Rafael G. Cunanan, Jr. as trustee. He appointed his
wife as executrix of his last will and testament and Dr. Rafael G. Cunanan, Jr.
as substitute executor. Article VIII of his will states:
If my wife, EVELYN PEREZ-CUNANAN, and I shall die under such
circumstances that there is not sufficient evidence to determine the order of
our deaths, then it shall be presumed that I predeceased her, and my estate
shall be administered and distributed, in all respects, in accordance with such
presumption (Rollo, p. 41).
Four days later, on August 27, Dr. Evelyn P. Cunanan executed her own last
will and testament containing the same provisions as that of the will of her
husband. Article VIII of her will states:
If my husband, JOSE F. CUNANAN, and I shall die under such
circumstances that there is not sufficient evidence to determine the order of
our deaths, then it shall be presumed that he predeceased me, and my

estate shall be administered and distributed in all respects, in accordance

with such presumption. (Rollo, p. 31).
On January 9, 1982, Dr. Cunanan and his entire family perished when they
were trapped by fire that gutted their home. Thereafter, Dr. Rafael G.
Cunanan, Jr. as trustee and substitute executor of the two wills, filed
separate proceedings for the probate thereof with the Surrogate Court of the
County of Onondaga, New York. On April 7, these two wills were admitted to
probate and letters testamentary were issued in his favor.
On February 21, 1983, Salud Teodoro Perez, the mother of Dr. Evelyn P.
Cunanan, and petitioner herein, filed with the Regional P. Cunanan, and
petitioner herein, filed with the Regional Trial Court, Malolos, Bulacan a
petition for the reprobate of the two bills ancillary to the probate proceedings
in New York. She also asked that she be appointed the special administratrix
of the estate of the deceased couple consisting primarily of a farm land in
San Miguel, Bulacan.
On March 9, the Regional Trial Court, Branch 16, Malolos, Bulacan, presided
by Judge Gualberto J. de la Llana, issued an order, directing the issuance of
letters of special administration in favor of petitioner upon her filing of a
P10,000.00 bond. The following day, petitioner posted the bond and took her
oath as special administration.
As her first act of administration, petitioner filed a motion, praying that the
Philippine Life Insurance Company be directed to deliver the proceeds in the
amount of P50,000.00 of the life insurance policy taken by Dr. Jose F.
Cunanan with Dr. Evelyn Perez-Cunanan and their daughter Jocelyn as
beneficiaries. The trial court granted the motion.
Counsel for the Philippine American Life Insurance Company then filed a
manifestation, stating that said company then filed a manifestation, stating
that said company had delivered to petitioner the amount of P49,765.85,
representing the proceeds of the life insurance policy of Dr. Jose F. Cunanan.
In a motion dated May 19, 1983, petitioner asked that Dr. Rafael Cunanan,
Sr. be ordered to deliver to her a Philippine Trust Company passbook with
P25,594.00 in savings deposit, and the Family Savings Bank time deposit
certificates in the total amount of P12,412.52.
On May 31, Atty. Federico Alday filed a notice of appearance as counsel for
the heirs of Dr. Jose F. Cunanan, namely, Dr. Rafael Cunanan, Sr., Priscilla
Cunanan Bautista, Lydia Cunanan Ignacio, Felipe F. Cunanan and Loreto
Cunanan Concepcion (Cunanan heirs). He also manifested that before
receiving petitioner's motion of May 19, 1983, his clients were unaware of the
filing of the testate estate case and therefore, "in the interest of simple fair

play," they should be notified of the proceedings (Records, p. 110). He

prayed for deferment of the hearing on the motions of May 19, 1983.
Petitioner then filed a counter manifestation dated June 13, 1983, asserting:
(1) that the "Cunanan collaterals are neither heirs nor creditors of the late Dr.
Jose F. Cunanan" and therefore, they had "no legal or proprietary interests to
protect" and "no right to intervene"; (2) that the wills of Dr. Jose F. Cunanan
and Dr. Evelyn Perez-Cunanan, being American citizens, were executed in
accordance with the solemnities and formalities of New York laws, and
produced "effects in this jurisdiction in accordance with Art. 16 in relation to
Art. 816 of the Civil Code"; (3) that under Article VIII of the two wills, it was
presumed that the husband predeceased the wife; and (4) that "the Cunanan
collaterals are neither distributees, legatees or beneficiaries, much less, heirs
as heirship is only by institution" under a will or by operation of the law of
New York (Records, pp. 112-113).
On June 23, the probate court granted petitioner's motion of May 19, 1983.
However, on July 21, the Cunanan heirs filed a motion to nullify the
proceedings and to set aside the appointment of, or to disqualify, petitioner
as special administratrix of the estates of Dr. Jose F. Cunanan and Dr. Evelyn
Perez-Cunanan. The motion stated: (1) that being the "brothers and sisters
and the legal and surviving heirs" of Dr. Jose F. Cunanan, they had been
"deliberately excluded" in the petition for the probate of the separate wills of
the Cunanan spouses thereby misleading the Bulacan court to believe that
petitioner was the sole heir of the spouses; that such "misrepresentation"
deprived them of their right to "due process in violation of Section 4, Rule 76
of the Revised Rules of Court; (2) that Dr. Rafael G. Cunanan, Jr., the
executor of the estate of the Cunanan spouses, was likewise not notified of
the hearings in the Bulacan court; (3) that the "misrepresentation and
concealment committed by" petitioner rendered her unfit to be a special
administratrix; (4) that Dr. Rafael G. Cunanan, Jr. had, by virtue of a verified
power of attorney, authorized his father,
Dr. Rafael Cunanan, Sr., to be his attorney-in-fact; and (5) that Dr. Rafael
Cunanan, Sr. is qualified to be a regular administrator "as practically all of the
subject estate in the Philippines belongs to their brother, Dr. Jose F.
Cunanan" (Records, pp. 118-122). Hence, they prayed: (1) that the
proceedings in the case be declared null and void; (2) that the appointment
of petitioner as special administratrix be set aside; and (3) that Dr. Rafael
Cunanan, Sr. be appointed the regular administrator of the estate of the
deceased spouses.
Thereafter, the Cunanan heirs filed a motion requiring petitioner to submit an
inventory or accounting of all monies received by her in trust for the estate.
In her opposition, petitioner asserted: (1) that she was the "sole and only
heir" of her daughter, Dr. Evelyn Perez-Cunanan to the exclusion of the

"Cunanan collaterals"; hence they were complete strangers to the

proceedings and were not entitled to notice; (2) that she could not have
"concealed" the name and address of Dr. Rafael G. Cunanan, Jr. because
his name was prominently mentioned not only in the two wills but also in the
decrees of the American surrogate court; (3) that the rule applicable to the
case is Rule 77, not Rule 76, because it involved the allowance of wills
proved outside of the Philippines and that nowhere in Section 2 of Rule 77 is
there a mention of notice being given to the executor who, by the same
provision, should himself file the necessary ancillary proceedings in this
country; (4) that even if the Bulacan estate came from the "capital" of Dr.
Jose F. Cunanan, he had willed all his worldly goods to his wife and nothing
to his brothers and sisters; and (5) that Dr. Rafael G. Cunanan, Jr. had
unlawfully disbursed $215,000.00 to the Cunanan heirs, misappropriated
$15,000.00 for himself and irregularly assigned assets of the estates to his
American lawyer (Records, pp. 151-160).
In their reply, the Cunanan heirs stressed that on November 24, 1982,
petitioner and the Cunanan heirs had entered into an agreement in the
United States "to settle and divide equally the estates," and that under
Section 2 of Rule 77 the "court shall fix a time and place for the hearing and
cause notice thereof to be given as in case of an original will presented for
allowance" (Records, pp. 184-185).
Petitioner asked that Dr. Rafael G. Cunanan, Jr. be cited for contempt of
court for failure to comply with the Order of June 23, 1983 and for
appropriating money of the estate for his own benefit. She also alleged that
she had impugned the agreement of November 24, 1982 before the
Surrogate Court of Onondaga, New York which rendered a decision on April
13, 1983, finding that "all assets are payable to Dr. Evelyn P. Cunanans
executor to be then distributed pursuant to EPTL4-1.1 subd [a] par [4]"
(Rollo, p. 52).
On their part, the Cunanan heirs replied that petitioner was estopped from
claiming that they were heirs by the agreement to divide equally the estates.
They asserted that by virtue of Section 2 of Rule 77 of the Rules of Court, the
provisions of Sections 3, 4 and 5 of Rule 76 on the requirement of notice to
all heirs, executors, devisees and legatees must be complied with. They
reiterated their prayer: (1) that the proceedings in the case be nullified; (2)
that petitioner be disqualified as special administratrix; (3) that she be
ordered to submit an inventory of all goods, chattels and monies which she
had received and to surrender the same to the court; and (4) that Dr. Rafael
Cunanan, Sr. be appointed the regular administrator.
Petitioner filed a rejoinder, stating that in violation of the April 13, 1983
decision of the American court Dr. Rafael G. Cunanan, Jr. made
"unauthorized disbursements from the estates as early as July 7, 1982"

(Records, p. 231). Thereafter, petitioner moved for the suspension of the

proceedings as she had "to attend to the settlement proceedings" of the
estate of the Cunanan spouses in New York (Records, p. 242). The
Cunanans heirs opposed this motion and filed a manifestation, stating that
petitioner had received $215,000.00 "from the Surrogates Court as part of
legacy" based on the aforesaid agreement of November 24, 1982 (Records,
p. 248).
On February 21, 1984, Judge de la Llana issued an order, disallowing the
reprobate of the two wills, recalling the appointment of petitioner as special
administratrix, requiring the submission of petitioner of an inventory of the
property received by her as special administratrix and declaring all pending
incidents moot and academic. Judge de la Llana reasoned out that petitioner
failed to prove the law of New York on procedure and allowance of wills and
the court had no way of telling whether the wills were executed in
accordance with the law of New York. In the absence of such evidence, the
presumption is that the law of succession of the foreign country is the same
as the law of the Philippines. However, he noted, that there were only two
witnesses to the wills of the Cunanan spouses and the Philippine law
requires three witnesses and that the wills were not signed on each and
every page, a requirement of the Philippine law.
On August 27, 1985, petitioner filed a motion for reconsideration of the Order
dated February 21, 1984, where she had sufficiently proven the applicable
laws of New York governing the execution of last wills and testaments.
On the same day, Judge de la Llana issued another order, denying the
motion of petitioner for the suspension of the proceedings but gave her 15
days upon arrival in the country within which to act on the other order issued
that same day. Contending that the second portion of the second order left its
finality to the discretion of counsel for petitioner, the Cunanans filed a motion
for the reconsideration of the objectionable portion of the said order so that it
would conform with the pertinent provisions of the Judiciary Reorganization
Act of 1980 and the Interim Rules of Court.
On April 30, 1985, the respondent Judge of Branch 18 of the Regional Trial
Court, Malolos, to which the reprobate case was reassigned, issued an order
stating that "(W)hen the last will and testament . . . was denied probate," the
case was terminated and therefore all orders theretofore issued should be
given finality. The same Order amended the February 21, 1984 Order by
requiring petitioner to turn over to the estate the inventoried property. It
considered the proceedings for all intents and purposes, closed (Records,
p. 302).
On August 12, petitioner filed a motion to resume proceedings on account of
the final settlement and termination of the probate cases in New York. Three

days later, petitioner filed a motion praying for the reconsideration of the
Order of April 30, 1985 on the strength of the February 21, 1984 Order
granting her a period of 15 days upon arrival in the country within which to
act on the denial of probate of the wills of the Cunanan spouses. On August
19, respondent Judge granted the motion and reconsidered the Order of April
30, 1985.
On August 29, counsel for petitioner, who happens to be her daughter,
Natividad, filed a motion praying that since petitioner was ailing in Fort Lee,
New Jersey, U.S.A. and therefore incapacitated to act as special
administratrix, she (the counsel) should be named substitute special
administratrix. She also filed a motion for the reconsideration of the Order of
February 21, 1984, denying probate to the wills of the Cunanan spouses,
alleging that respondent Judge "failed to appreciate the significant probative
value of the exhibits . . . which all refer to the offer and admission to probate
of the last wills of the Cunanan spouses including all procedures undertaken
and decrees issued in connection with the said probate" (Records, pp. 313323).
Thereafter, the Cunanans heirs filed a motion for reconsideration of the Order
of August 19, 1985, alleging lack of notice to their counsel.
On March 31, 1986, respondent Judge to which the case was reassigned
denied the motion for reconsideration holding that the documents submitted
by petitioner proved "that the wills of the testator domiciled abroad were
properly executed, genuine and sufficient to possess real and personal
property; that letters testamentary were issued; and that proceedings were
held on a foreign tribunal and proofs taken by a competent judge who
inquired into all the facts and circumstances and being satisfied with his
findings issued a decree admitting to probate the wills in question." However,
respondent Judge said that the documents did not establish the law of New
York on the procedure and allowance of wills (Records, p. 381).
On April 9, 1986, petitioner filed a motion to allow her to present further
evidence on the foreign law. After the hearing of the motion on April 25, 1986,
respondent Judge issued an order wherein he conceded that insufficiency of
evidence to prove the foreign law was not a fatal defect and was curable by
adducing additional evidence. He granted petitioner 45 days to submit the
evidence to that effect.
However, without waiting for petitioner to adduce the additional evidence,
respondent Judge ruled in his order dated June 20, 1986 that he found "no
compelling reason to disturb its ruling of March 31, 1986" but allowed
petitioner to "file anew the appropriate probate proceedings for each of the
testator" (Records, p. 391).

The Order dated June 20, 1986 prompted petitioner to file a second motion
for reconsideration stating that she was "ready to submit further evidence on
the law obtaining in the State of New York" and praying that she be granted
"the opportunity to present evidence on what the law of the State of New York
has on the probate and allowance of wills" (Records, p. 393).
On July 18, respondent Judge denied the motion holding that to allow the
probate of two wills in a single proceeding "would be a departure from the
typical and established mode of probate where one petition takes care of one
will." He pointed out that even in New York "where the wills in question were
first submitted for probate, they were dealt with in separate proceedings"
(Records, p. 395).
On August 13, 1986, petitioner filed a motion for the reconsideration of the
Order of July 18, 1986, citing Section 3, Rule 2 of the Rules of Court, which
provides that no party may institute more than one suit for a single cause of
action. She pointed out that separate proceedings for the wills of the spouses
which contain basically the same provisions as they even named each other
as a beneficiary in their respective wills, would go against "the grain of
inexpensive, just and speedy determination of the proceedings" (Records,
pp. 405-407).
On September 11, 1986, petitioner filed a supplement to the motion for
reconsideration, citing Benigno v. De La Pea, 57 Phil. 305 (1932) (Records,
p. 411), but respondent Judge found that this pleading had been filed out of
time and that the adverse party had not been furnished with a copy thereof.
In her compliance, petitioner stated that she had furnished a copy of the
motion to the counsel of the Cunanan heirs and reiterated her motion for a
"final ruling on her supplemental motion" (Records, p. 421).
On November 19, respondent Judge issued an order, denying the motion for
reconsideration filed by petitioner on the grounds that "the probate of
separate wills of two or more different persons even if they are husband and
wife cannot be undertaken in a single petition" (Records, pp. 376-378).
Hence, petitioner instituted the instant petition, arguing that the evidence
offered at the hearing of April 11, 1983 sufficiently proved the laws of the
State of New York on the allowance of wills, and that the separate wills of the
Cunanan spouses need not be probated in separate proceedings.
II
Petitioner contends that the following pieces of evidence she had submitted
before respondent Judge are sufficient to warrant the allowance of the wills:

(a)
two certificates of authentication of the respective wills of Evelyn and
Jose by the Consulate General of the Philippines (Exhs. "F" and "G");
(b)
two certifications from the Secretary of State of New York and
Custodian of the Great Seal on the facts that Judge Bernard L. Reagan is the
Surrogate of the Country of Onondaga which is a court of record, that his
signature and seal of office are genuine, and that the Surrogate is duly
authorized to grant copy of the respective wills of Evelyn and Jose
(Exhs. "F-1" and "G-1");
(c)
two certificates of Judge Reagan and Chief Clerk Donald E. Moore
stating that they have in their records and files the said wills which were
recorded on April 7, 1982 (Exhs. "F-2" and "G-2");
(d)
the respective wills of Evelyn and Jose (Exhs. "F-3", "F-6" and Exh.
"G-3" "G-6");
(e)
certificates of Judge Reagan and the Chief Clerk certifying to the
genuineness and authenticity of the exemplified copies of the two wills (Exhs.
"F-7" and "F-7");
(f)
two certificates of authentication from the Consulate General of the
Philippines in New York (Exh. "H" and "F").
(g)
certifications from the Secretary of State that Judge Reagan is duly
authorized to grant exemplified copies of the decree of probate, letters
testamentary and all proceedings had and proofs duly taken
(Exhs. "H-1" and "I-1");
(h)
certificates of Judge Reagan and the Chief Clerk that letters
testamentary were issued to Rafael G. Cunanan (Exhs. "H-2" and "I-2");
(i)
certification to the effect that it was during the term of Judge Reagan
that a decree admitting the wills to probate had been issued and appointing
Rafael G. Cunanan as alternate executor (Exhs. "H-3" and
"I-10");
(j)
the decrees on probate of the two wills specifying that proceedings
were held and proofs duly taken (Exhs. "H-4" and "I-5");
(k)
decrees on probate of the two wills stating that they were properly
executed, genuine and valid and that the said instruments were admitted to
probate and established as wills valid to pass real and personal property
(Exhs. "H-5" and "I-5"); and

(l)
certificates of Judge Reagan and the Chief Clerk on the genuineness
and authenticity of each others signatures in the exemplified copies of the
decrees of probate, letters testamentary and proceedings held in their court
(Exhs. "H-6" and "I-6") (Rollo, pp. 13-16).
Petitioner adds that the wills had been admitted to probate in the Surrogate
Courts Decision of April 13, 1983 and that the proceedings were terminated
on November 29, 1984.
The respective wills of the Cunanan spouses, who were American citizens,
will only be effective in this country upon compliance with the following
provision of the Civil Code of the Philippines:
Art. 816.
The will of an alien who is abroad produces effect in the
Philippines if made with the formalities prescribed by the law of the place in
which he resides, or according to the formalities observed in his country, or in
conformity with those which this Code prescribes.
Thus, proof that both wills conform with the formalities prescribed by New
York laws or by Philippine laws is imperative.
The evidence necessary for the reprobate or allowance of wills which have
been probated outside of the Philippines are as follows: (1) the due execution
of the will in accordance with the foreign laws; (2) the testator has his
domicile in the foreign country and not in the Philippines; (3) the will has
been admitted to probate in such country; (4) the fact that the foreign tribunal
is a probate court, and (5) the laws of a foreign country on procedure and
allowance of wills (III Moran Commentaries on the Rules of Court, 1970 ed.,
pp. 419-429; Suntay v. Suntay, 95 Phil. 500 [1954]; Fluemer v. Hix, 54 Phil.
610 [1930]). Except for the first and last requirements, the petitioner
submitted all the needed evidence.
The necessity of presenting evidence on the foreign laws upon which the
probate in the foreign country is based is impelled by the fact that our courts
cannot take judicial notice of them (Philippine Commercial and Industrial
Bank v. Escolin, 56 SCRA 266 [1974]).
Petitioner must have perceived this omission as in fact she moved for more
time to submit the pertinent procedural and substantive New York laws but
which request respondent Judge just glossed over. While the probate of a will
is a special proceeding wherein courts should relax the rules on evidence,
the goal is to receive the best evidence of which the matter is susceptible
before a purported will is probated or denied probate (Vda. de Ramos v.
Court of Appeals, 81 SCRA 393 [1978]).

There is merit in petitioners insistence that the separate wills of the Cunanan
spouses should be probated jointly. Respondent Judges view that the Rules
on allowance of wills is couched in singular terms and therefore should be
interpreted to mean that there should be separate probate proceedings for
the wills of the Cunanan spouses is too literal and simplistic an approach.
Such view overlooks the provisions of Section 2, Rule 1 of the Revised Rules
of Court, which advise that the rules shall be "liberally construed in order to
promote their object and to assist the parties in obtaining just, speedy, and
inexpensive determination of every action and proceeding."
A literal application of the Rules should be avoided if they would only result in
the delay in the administration of justice (Acain v. Intermediate Appellate
Court, 155 SCRA 100 [1987]; Roberts v. Leonidas, 129 SCRA 33 [1984]).
What the law expressly prohibits is the making of joint wills either for the
testators reciprocal benefit or for the benefit of a third person (Civil Code of
the Philippines, Article 818). In the case at bench, the Cunanan spouses
executed separate wills. Since the two wills contain essentially the same
provisions and pertain to property which in all probability are conjugal in
nature, practical considerations dictate their joint probate. As this Court has
held a number of times, it will always strive to settle the entire controversy in
a single proceeding leaving no root or branch to bear the seeds of future
litigation (Motoomull v. Dela Paz, 187 SCRA 743 [1990]).
This petition cannot be completely resolved without touching on a very
glaring fact petitioner has always considered herself the sole heir of
Dr. Evelyn Perez Cunanan and because she does not consider herself an
heir of Dr. Jose F. Cunanan, she noticeably failed to notify his heirs of the
filing of the proceedings. Thus, even in the instant petition, she only
impleaded respondent Judge, forgetting that a judge whose order is being
assailed is merely a nominal or formal party (Calderon v. Solicitor General,
215 SCRA 876 [1992]).
The rule that the court having jurisdiction over the reprobate of a will shall
"cause notice thereof to be given as in case of an original will presented for
allowance" (Revised Rules of Court, Rule 27, Section 2) means that with
regard to notices, the will probated abroad should be treated as if it were an
"original will" or a will that is presented for probate for the first time.
Accordingly, compliance with Sections 3 and 4 of Rule 76, which require
publication and notice by mail or personally to the "known heirs, legatees,
and devisees of the testator resident in the Philippines" and to the executor, if
he is not the petitioner, are required.
The brothers and sisters of Dr. Jose F. Cunanan, contrary to petitioner's
claim, are entitled to notices of the time and place for proving the wills. Under
Section 4 of Rule 76 of the Revised Rules of Court, the "court shall 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, . . . "
WHEREFORE, the questioned Order is SET ASIDE. Respondent Judge shall
allow petitioner reasonable time within which to submit evidence needed for
the joint probate of the wills of the Cunanan spouses and see to it that the
brothers and sisters of Dr. Jose F. Cunanan are given all notices and copies
of all pleadings pertinent to the probate proceedings.
SO ORDERED.

G.R. No. L-19759

December 20, 1922

B. E. JOHANNES, principal administrator, CARLOS D'ALMEIDA, JOHN

E. JOHANNES and IDA D'ALMEIDA, petitioners-appellees,
vs.
ALFRED D'ALMEIDA, ancillary administrator, opponent-appellant.
Fisher, DeWitt, Perkins and Brady for appellant.
Amzi B. Kelly for appellees.
1.DUTY OF ANCILLARY ADMINISTRATOR.After an
ancillary
administration has been completed and upon the tender of a proper receipt, it
is the duty of the ancillary administrator to deliver the assets in his
possession to the domiciliary administrator of a foreign country.
2.ON PROPER SHOWING COURTS WILL PROTECT CITIZENS.As in
this case sometimes in the orderly administration of justice, and to protect its
own citizens, the courts will retain a sufficient amount of the assets of the
estate in custodia legis within the Philippine Islands, pending the final
decision of a foreign court as to whether or not a local resident is entitled to
share in the distribution of the estate.
APPEAL from a judgment of the Court of First Instance of Manila. Harvey, J.
[Johannes vs. D'Almeida, 44 Phil. 212(1922)]
STATEMENT
This is an appeal by the defendant from the following decision of Judge
Harvey of the Court of First Instance:
This refers to a petition presented by B. E. Johannes in his capacity as
administrator appointed by the Supreme Court of Singapore, Straits
Settlements, where the deceased Carmen D'Almeida resided on the date of
her death, to order the delivery to him of the balance of the funds of this
estate.

to him as the domicile administrator appointed in the residence of the

deceased all the cash money, liberty bonds and Spanish shares pertaining to
said estate.
Ordinarily the court would have been justified in transmitting the funds of this
estate to the probate court of the last residence of the deceased for
distribution in accordance with the laws of said jurisdiction, but in this case
the administrator B. E. Johannes is temporarily within this jurisdiction and ask
the court, through his attorney, to deliver to him the balance of the funds of
the estate in his capacity as administrator appointed by the court of the last
residence of the deceased and the court is of the opinion that it is proper to
deliver the funds to said administrator.
By virtue of which, the administrator Alfred D'Almeida is authorized to
withdraw the deposit slips and all the money deposited in the bank and, after
payment of the corresponding inheritance tax, make delivery of same to the
referred B. E. Johannes in his capacity as administrator of the estate of
Carmen D'Almeida Johannes, together with the liberty bonds and Casino
Espanol shares, and after making the delivery of the funds and the payment
of the tax, administrator Alfred D'Almeida shall be relieved of his duties and
responsibilities.
The appellant contends that the court erred in considering the application of
B. E. Johannes, the principals administrator, and the motion of August 25,
1922, for the reason that it was not presented within the rules of the court; in
ordering the ancillary administrator to pay the inheritance tax; and in ordering
him to deliver the property of the estate to B. E. Johannes, as administrator,
and in denying the motion of reconsideration.

JOHNS, J.:

The records show that the administrator has presented his final report in
which it appears that he has paid all the debts and expenses of the
administration and which report was approved by this court.

In different forms this is the third time this case has been before this court.
The proceedings had their origin in the death of Carmen D'Almeida, who was
then a resident of Singapore, Straits Settlements. The plaintiff B. E.
Johannes, her surviving husband, was duly appointed administrator of her
estate by the Supreme Court of Singapore, qualified and entered upon the
discharge of his duties.

It appears of record that Mr. B. E. Johannes is the lawful husband of the

deceased Carmen D'Almeida Johannes and the legally appointed
administrator of the estate of Carmen D'Almeida Johannes in Singapore,
Strait Settlements; that the said B. E. Johannes is actually within the
jurisdiction of this court and by request of his attorney of record asks the
court to direct the administrator here (the ancillary administrator) to turn over

At the time of her death Carmen D'Almeida left an estate in the Philippine
Islands, consisting of liquid assets of about P100,000, over which Alfred
D'Almeida was appointed ancillary administrator by the Court of First
Instance of Manila. It appears that the deceased left few, if any, debts or
claims in the Philippine Islands, and that all of the duties of the defendant
were simple, and that there was nothing to do but to comply with the

formalities of law. It also appears that the administrator in the Philippine

Islands has been completed, and that any and all debts and expenses of
administration have been paid, and that the only remaining thing to be done
is to turn over the remaining assets to someone that is legally authorized to
receive them. Apparently, about the only question involved on this appeal is
as to whether the defendant should turn over the assets in Manila, or
whether they should be forwarded to the Supreme Court of Singapore for
distribution.lawphil.net
The record is conclusive that the plaintiff is the surviving husband of Carmen
D'Almeida, and in the absence of any will, it is very apparent that, under the
laws of Singapore, as such, he is entitled to have and receive all the
proceeds of her estate. The defendant is a resident of the Philippine Islands,
and claims or asserts that he is an heir of the deceased and is entitled to
share in the distribution of the estate.
Be that as it may, that question is not before this court, and under the law
and the decisions of this court, after the administrator has been completed, it
is the duty of the defendant to deliver the assets to the plaintiff as domiciliary
administrator of the Supreme Court of Singapore, and, in legal effect, that
was the decision of the Court of First Instance.
It is the inherent duty of courts to protect property rights of its own citizens in
so far as it can legally be done.
The record before us clearly indicated that the defendant Alfred D'Almeida is
not an heir of Carmen D'Almeida, and is not entitled to share in her estate.
But no harm or injustice will be done in retaining a sufficient amount of the
assets of the estate in custodia legis within the Philippine Islands pending a
final decision of the question as to whether or not he is entitled to share in
the estate. To that extent and for that purpose, the decision of the lower court
will be modified, so that P40,000 of the estate of the deceased now within the
jurisdiction of the Philippine Islands shall be and remain here in custodia
legis pending the final decision as to who is entitled to share in the estate of
the deceased Carmen D'Almeida, and subject to the control and jurisdiction
of the Court of First Instance in which the probate proceedings were
instituted. Such money to be placed as a special deposit in some good bank
in the city of Manila to be selected by the Judge presiding over the probate
proceedings in the city of Manila, and to remain there subject to the approval
and order of such Judge. The bank so selected shall receipt the defendant
for the money, and such receipt shall be a full and complete voucher to the
defendant for the amount in the settlement of the estate. It is further ordered
that at any time pending the final decision of such heirship when the plaintiff
shall file a good bond to be approved by the Judge presiding in the branch of
the Court of First Instance to which probate matters are assigned, that he
shall then be entitled to have and receive any and all of the proceeds of the

estate. In all other things and respects the decision of the lower court is
affirmed, with costs in favor of the plaintiffs, and the defendant is peremptorily
ordered to turn over and deliver all other assets to the plaintiff, as the
principal administrator of Carmen D'Almeida, or his order. So ordered.
Araullo, C. J., Street, Malcolm, Avancea, Villamor, Ostrand, and Romualdez,
JJ., concur.

G.R. No. L-23145

November 29, 1968

TESTATE ESTATE OF IDONAH SLADE PERKINS, deceased. RENATO D.

TAYAG, ancillary administrator-appellee,
vs.
BENGUET CONSOLIDATED, INC., oppositor-appellant.
Cirilo F. Asperillo, Jr., for ancillary administrator-appellee.
Ross, Salcedo, Del Rosario, Bito and Misa for oppositor-appellant.
Special proceedings; Principal administration and ancillary administration
distinguished; When ancillary administration is proper; Reason.It is often
necessary to have more than one administration of an estate. When a person
dies intestate owning property in the country of his domicile as well as in a
foreign country, administration is had in both countries. That which is granted
in the jurisdiction of decedent's last domicile is termed the principal
administration, while any other administration is termed the ancillary
administration.
The ancillary administration is proper, whenever a person dies, leaving in a
country other than that of his last domicile, property to be administered in the
nature of assets of the deceased liable for his individual debts or to be
distributed among his heirs (Johannes v. Harvey, 43 Phil. 175). Ancillary
administration is necessary or the reason for such administration is because
a grant of administration does not ex proprio vigore have any effect beyond
the limits of the country in which it is granted. Hence, an administrator
appointed in a foreign state has no authority in the Philippines,
Settlement of estate of a decedent; Ancillary administrator; Scope of his
power and authority.No one could dispute the power of an ancillary
administrator to gain control and possession of all assets of the decedent
within the jurisdiction of the Philippines. Such a power is inherent in his duty
to settle her estate and satisfy the claims of local creditors (Rule 84, Sec. 3,
Rules of Court. Cf. Pavia v. De la Rosa, 8 Phil. 70; Liwanag v. Reyes, L19159, Sept. 29, 1964; Ignacio v. Elchico, L-18937, May 16, 1967; etc.). It is
a general rule universally recognized that administration, whether principal or
ancillary, certainly extends to the assets of a decedent found within the state
or country where it was granted, the corollary being "that an administrator
appointed in one state or country has no power over property la another state
or country" (Leon and Ghezzi v. Manufacturers Life Ins. Co., 90 Phil. 459).
Same; Refusal of domiciliary administrator to deliver shares of stock despite
judicial order; Case at bar.Since, in the case at bar, there is a refusal,
persistently adhered to by the domiciliary administrator in New York, to
deIiver the shares of stocks of appellant corporation owned by the decedent
to fee ancillary administrator in the Philippines, there was nothing
unreasonable or arbitrary in considering them as lost and requiring the
appellant to issue new certificates in lieu thereof Thereby, the task incumbent
under the law on the ancillary administrator could be discharged and his

responsibility fulfilled. Any other view would result in the compliance to a valid
judicial order being made to depend on the uncontrolled discretion of a party
or entity.
In this connection, our Supreme Court held: "Our attention has not been
called to any law or treaty that would make the findings of the Veterans'
Administrator (of the United States), in actions where he is a party,
conclusive on our courts. That, in effect, would deprive our tribunals of
judicial descretion and render them subordinate instrumentalities of the
Veterans' Administrator" (Viloria v. Administrator of Veterans Affairs, 101 Phil.
762).
It is bad enough as the Viloria decision made patent for our judiciary to
accept as final and conclusive, determinations made by foreign governmental
agencies. It is infinitely worse if through the absence of any coercive power
by our courts over juridical persons within our jurisdiction, the force and
effectivity of their orders could be made to depend on the whim or caprice of
alien entities. It is difficult to imagine of a situation more offensive to the
dignity of the bench or the honor of the country.
Corporation law; Corporation; Concept and nature.A corporation is an
artificial being created by operation of law (Sec. 2, Act No. 1459). A
corporation as known to Philippine jurisprudence is a creature without any
existence until it has received the imprimatur of the state acting according to
law. It is logically inconceivable therefore that it will have rights and privileges
of a higher priority than that of its creator. More than that, it cannot
legitimately refuse to yield obedience to acts of its state organs, certainly not
excluding the judiciary. whenever called upon .to do so.
A corporation is not in fact and in reality a person, but the law treats it as
though it were a person by process of fiction, or by regarding it as an artificial
icial person distinct and separate from its individual stockholders (1 Fletcher,
Cyclopedia Corporations, pp. 19-20).
APPEAL from an order of the Court of First Instance of Manila. [Tayag vs.
Benguet Consolidated, Inc., 26 SCRA 242(1968)]
FERNANDO, J.:
Confronted by an obstinate and adamant refusal of the domiciliary
administrator, the County Trust Company of New York, United States of
America, of the estate of the deceased Idonah Slade Perkins, who died in
New York City on March 27, 1960, to surrender to the ancillary administrator
in the Philippines the stock certificates owned by her in a Philippine
corporation, Benguet Consolidated, Inc., to satisfy the legitimate claims of
local creditors, the lower court, then presided by the Honorable Arsenio
Santos, now retired, issued on May 18, 1964, an order of this tenor: "After
considering the motion of the ancillary administrator, dated February 11,
1964, as well as the opposition filed by the Benguet Consolidated, Inc., the
Court hereby (1) considers as lost for all purposes in connection with the

administration and liquidation of the Philippine estate of Idonah Slade

Perkins the stock certificates covering the 33,002 shares of stock standing in
her name in the books of the Benguet Consolidated, Inc., (2) orders said
certificates cancelled, and (3) directs said corporation to issue new
certificates in lieu thereof, the same to be delivered by said corporation to
either the incumbent ancillary administrator or to the Probate Division of this
Court."1
From such an order, an appeal was taken to this Court not by the domiciliary
administrator, the County Trust Company of New York, but by the Philippine
corporation, the Benguet Consolidated, Inc. The appeal cannot possibly
prosper. The challenged order represents a response and expresses a policy,
to paraphrase Frankfurter, arising out of a specific problem, addressed to the
attainment of specific ends by the use of specific remedies, with full and
ample support from legal doctrines of weight and significance.
The facts will explain why. As set forth in the brief of appellant Benguet
Consolidated, Inc., Idonah Slade Perkins, who died on March 27, 1960 in
New York City, left among others, two stock certificates covering 33,002
shares of appellant, the certificates being in the possession of the County
Trust Company of New York, which as noted, is the domiciliary administrator
of the estate of the deceased.2 Then came this portion of the appellant's
brief: "On August 12, 1960, Prospero Sanidad instituted ancillary
administration proceedings in the Court of First Instance of Manila; Lazaro A.
Marquez was appointed ancillary administrator, and on January 22, 1963, he
was substituted by the appellee Renato D. Tayag. A dispute arose between
the domiciary administrator in New York and the ancillary administrator in the
Philippines as to which of them was entitled to the possession of the stock
certificates in question. On January 27, 1964, the Court of First Instance of
Manila ordered the domiciliary administrator, County Trust Company, to
"produce and deposit" them with the ancillary administrator or with the Clerk
of Court. The domiciliary administrator did not comply with the order, and on
February 11, 1964, the ancillary administrator petitioned the court to "issue
an order declaring the certificate or certificates of stocks covering the 33,002
shares issued in the name of Idonah Slade Perkins by Benguet
Consolidated, Inc., be declared [or] considered as lost."3
It is to be noted further that appellant Benguet Consolidated, Inc. admits that
"it is immaterial" as far as it is concerned as to "who is entitled to the
possession of the stock certificates in question; appellant opposed the
petition of the ancillary administrator because the said stock certificates are
in existence, they are today in the possession of the domiciliary
administrator, the County Trust Company, in New York, U.S.A...."4
It is its view, therefore, that under the circumstances, the stock certificates
cannot be declared or considered as lost. Moreover, it would allege that there

was a failure to observe certain requirements of its by-laws before new stock
certificates could be issued. Hence, its appeal.
As was made clear at the outset of this opinion, the appeal lacks merit. The
challenged order constitutes an emphatic affirmation of judicial authority
sought to be emasculated by the wilful conduct of the domiciliary
administrator in refusing to accord obedience to a court decree. How, then,
can this order be stigmatized as illegal?
As is true of many problems confronting the judiciary, such a response was
called for by the realities of the situation. What cannot be ignored is that
conduct bordering on wilful defiance, if it had not actually reached it, cannot
without undue loss of judicial prestige, be condoned or tolerated. For the law
is not so lacking in flexibility and resourcefulness as to preclude such a
solution, the more so as deeper reflection would make clear its being
buttressed by indisputable principles and supported by the strongest policy
considerations.
It can truly be said then that the result arrived at upheld and vindicated the
honor of the judiciary no less than that of the country. Through this
challenged order, there is thus dispelled the atmosphere of contingent
frustration brought about by the persistence of the domiciliary administrator
to hold on to the stock certificates after it had, as admitted, voluntarily
submitted itself to the jurisdiction of the lower court by entering its
appearance through counsel on June 27, 1963, and filing a petition for relief
from a previous order of March 15, 1963.
Thus did the lower court, in the order now on appeal, impart vitality and
effectiveness to what was decreed. For without it, what it had been decided
would be set at naught and nullified. Unless such a blatant disregard by the
domiciliary administrator, with residence abroad, of what was previously
ordained by a court order could be thus remedied, it would have entailed,
insofar as this matter was concerned, not a partial but a well-nigh complete
paralysis of judicial authority.
1.
Appellant Benguet Consolidated, Inc. did not dispute the power of
the appellee ancillary administrator to gain control and possession of all
assets of the decedent within the jurisdiction of the Philippines. Nor could it.
Such a power is inherent in his duty to settle her estate and satisfy the claims
of local creditors.5 As Justice Tuason speaking for this Court made clear, it is
a "general rule universally recognized" that administration, whether principal
or ancillary, certainly "extends to the assets of a decedent found within the
state or country where it was granted," the corollary being "that an
administrator appointed in one state or country has no power over property in
another state or country."6

It is to be noted that the scope of the power of the ancillary administrator

was, in an earlier case, set forth by Justice Malcolm. Thus: "It is often
necessary to have more than one administration of an estate. When a person
dies intestate owning property in the country of his domicile as well as in a
foreign country, administration is had in both countries. That which is granted
in the jurisdiction of decedent's last domicile is termed the principal
administration, while any other administration is termed the ancillary
administration. The reason for the latter is because a grant of administration
does not ex proprio vigore have any effect beyond the limits of the country in
which it is granted. Hence, an administrator appointed in a foreign state has
no authority in the [Philippines]. The ancillary administration is proper,
whenever a person dies, leaving in a country other than that of his last
domicile, property to be administered in the nature of assets of the deceased
liable for his individual debts or to be distributed among his heirs."7
It would follow then that the authority of the probate court to require that
ancillary administrator's right to "the stock certificates covering the 33,002
shares ... standing in her name in the books of [appellant] Benguet
Consolidated, Inc...." be respected is equally beyond question. For appellant
is a Philippine corporation owing full allegiance and subject to the
unrestricted jurisdiction of local courts. Its shares of stock cannot therefore
be considered in any wise as immune from lawful court orders.
Our holding in Wells Fargo Bank and Union v. Collector of Internal Revenue8
finds application. "In the instant case, the actual situs of the shares of stock is
in the Philippines, the corporation being domiciled [here]." To the force of the
above undeniable proposition, not even appellant is insensible. It does not
dispute it. Nor could it successfully do so even if it were so minded.
2.
In the face of such incontrovertible doctrines that argue in a rather
conclusive fashion for the legality of the challenged order, how does
appellant, Benguet Consolidated, Inc. propose to carry the extremely heavy
burden of persuasion of precisely demonstrating the contrary? It would
assign as the basic error allegedly committed by the lower court its
"considering as lost the stock certificates covering 33,002 shares of Benguet
belonging to the deceased Idonah Slade Perkins, ..."9 More specifically,
appellant would stress that the "lower court could not "consider as lost" the
stock certificates in question when, as a matter of fact, his Honor the trial
Judge knew, and does know, and it is admitted by the appellee, that the said
stock certificates are in existence and are today in the possession of the
domiciliary administrator in New York."10
There may be an element of fiction in the above view of the lower court. That
certainly does not suffice to call for the reversal of the appealed order. Since
there is a refusal, persistently adhered to by the domiciliary administrator in
New York, to deliver the shares of stocks of appellant corporation owned by

the decedent to the ancillary administrator in the Philippines, there was

nothing unreasonable or arbitrary in considering them as lost and requiring
the appellant to issue new certificates in lieu thereof. Thereby, the task
incumbent under the law on the ancillary administrator could be discharged
and his responsibility fulfilled.
Any other view would result in the compliance to a valid judicial order being
made to depend on the uncontrolled discretion of the party or entity, in this
case domiciled abroad, which thus far has shown the utmost persistence in
refusing to yield obedience. Certainly, appellant would not be heard to
contend in all seriousness that a judicial decree could be treated as a mere
scrap of paper, the court issuing it being powerless to remedy its flagrant
disregard.
It may be admitted of course that such alleged loss as found by the lower
court did not correspond exactly with the facts. To be more blunt, the quality
of truth may be lacking in such a conclusion arrived at. It is to be
remembered however, again to borrow from Frankfurter, "that fictions which
the law may rely upon in the pursuit of legitimate ends have played an
important part in its development."11
Speaking of the common law in its earlier period, Cardozo could state fictions
"were devices to advance the ends of justice, [even if] clumsy and at times
offensive."12 Some of them have persisted even to the present, that eminent
jurist, noting "the quasi contract, the adopted child, the constructive trust, all
of flourishing vitality, to attest the empire of "as if" today."13 He likewise noted
"a class of fictions of another order, the fiction which is a working tool of
thought, but which at times hides itself from view till reflection and analysis
have brought it to the light."14
What cannot be disputed, therefore, is the at times indispensable role that
fictions as such played in the law. There should be then on the part of the
appellant a further refinement in the catholicity of its condemnation of such
judicial technique. If ever an occasion did call for the employment of a legal
fiction to put an end to the anomalous situation of a valid judicial order being
disregarded with apparent impunity, this is it. What is thus most obvious is
that this particular alleged error does not carry persuasion.
3.
Appellant Benguet Consolidated, Inc. would seek to bolster the
above contention by its invoking one of the provisions of its by-laws which
would set forth the procedure to be followed in case of a lost, stolen or
destroyed stock certificate; it would stress that in the event of a contest or the
pendency of an action regarding ownership of such certificate or certificates
of stock allegedly lost, stolen or destroyed, the issuance of a new certificate
or certificates would await the "final decision by [a] court regarding the
ownership [thereof]."15

Such reliance is misplaced. In the first place, there is no such occasion to

apply such by-law. It is admitted that the foreign domiciliary administrator did
not appeal from the order now in question. Moreover, there is likewise the
express admission of appellant that as far as it is concerned, "it is
immaterial ... who is entitled to the possession of the stock certificates ..."
Even if such were not the case, it would be a legal absurdity to impart to such
a provision conclusiveness and finality. Assuming that a contrariety exists
between the above by-law and the command of a court decree, the latter is
to be followed.
It is understandable, as Cardozo pointed out, that the Constitution overrides
a statute, to which, however, the judiciary must yield deference, when
appropriately invoked and deemed applicable. It would be most highly
unorthodox, however, if a corporate by-law would be accorded such a high
estate in the jural order that a court must not only take note of it but yield to
its alleged controlling force.
The fear of appellant of a contingent liability with which it could be saddled
unless the appealed order be set aside for its inconsistency with one of its
by-laws does not impress us. Its obedience to a lawful court order certainly
constitutes a valid defense, assuming that such apprehension of a possible
court action against it could possibly materialize. Thus far, nothing in the
circumstances as they have developed gives substance to such a fear.
Gossamer possibilities of a future prejudice to appellant do not suffice to
nullify the lawful exercise of judicial authority.
4.
What is more the view adopted by appellant Benguet Consolidated,
Inc. is fraught with implications at war with the basic postulates of corporate
theory.
We start with the undeniable premise that, "a corporation is an artificial being
created by operation of law...."16 It owes its life to the state, its birth being
purely dependent on its will. As Berle so aptly stated: "Classically, a
corporation was conceived as an artificial person, owing its existence through
creation by a sovereign power."17 As a matter of fact, the statutory language
employed owes much to Chief Justice Marshall, who in the Dartmouth
College decision defined a corporation precisely as "an artificial being,
invisible, intangible, and existing only in contemplation of law."18
The well-known authority Fletcher could summarize the matter thus: "A
corporation is not in fact and in reality a person, but the law treats it as
though it were a person by process of fiction, or by regarding it as an artificial
person distinct and separate from its individual stockholders.... It owes its
existence to law. It is an artificial person created by law for certain specific
purposes, the extent of whose existence, powers and liberties is fixed by its

charter."19 Dean Pound's terse summary, a juristic person, resulting from an

association of human beings granted legal personality by the state, puts the
matter neatly.20
There is thus a rejection of Gierke's genossenchaft theory, the basic theme of
which to quote from Friedmann, "is the reality of the group as a social and
legal entity, independent of state recognition and concession."21 A
corporation as known to Philippine jurisprudence is a creature without any
existence until it has received the imprimatur of the state according to law. It
is logically inconceivable therefore that it will have rights and privileges of a
higher priority than that of its creator. More than that, it cannot legitimately
refuse to yield obedience to acts of its state organs, certainly not excluding
the judiciary, whenever called upon to do so.
As a matter of fact, a corporation once it comes into being, following
American law still of persuasive authority in our jurisdiction, comes more
often within the ken of the judiciary than the other two coordinate branches. It
institutes the appropriate court action to enforce its right. Correlatively, it is
not immune from judicial control in those instances, where a duty under the
law as ascertained in an appropriate legal proceeding is cast upon it.
To assert that it can choose which court order to follow and which to
disregard is to confer upon it not autonomy which may be conceded but
license which cannot be tolerated. It is to argue that it may, when so minded,
overrule the state, the source of its very existence; it is to contend that what
any of its governmental organs may lawfully require could be ignored at will.
So extravagant a claim cannot possibly merit approval.
5.
One last point. In Viloria v. Administrator of Veterans Affairs,22 it was
shown that in a guardianship proceedings then pending in a lower court, the
United States Veterans Administration filed a motion for the refund of a
certain sum of money paid to the minor under guardianship, alleging that the
lower court had previously granted its petition to consider the deceased
father as not entitled to guerilla benefits according to a determination arrived
at by its main office in the United States. The motion was denied. In seeking
a reconsideration of such order, the Administrator relied on an American
federal statute making his decisions "final and conclusive on all questions of
law or fact" precluding any other American official to examine the matter
anew, "except a judge or judges of the United States court."23
Reconsideration was denied, and the Administrator appealed.
In an opinion by Justice J.B.L. Reyes, we sustained the lower court. Thus:
"We are of the opinion that the appeal should be rejected. The provisions of
the U.S. Code, invoked by the appellant, make the decisions of the U.S.
Veterans' Administrator final and conclusive when made on claims property
submitted to him for resolution; but they are not applicable to the present

case, where the Administrator is not acting as a judge but as a litigant. There
is a great difference between actions against the Administrator (which must
be filed strictly in accordance with the conditions that are imposed by the
Veterans' Act, including the exclusive review by United States courts), and
those actions where the Veterans' Administrator seeks a remedy from our
courts and submits to their jurisdiction by filing actions therein. Our attention
has not been called to any law or treaty that would make the findings of the
Veterans' Administrator, in actions where he is a party, conclusive on our
courts. That, in effect, would deprive our tribunals of judicial discretion and
render them mere subordinate instrumentalities of the Veterans'
Administrator."
It is bad enough as the Viloria decision made patent for our judiciary to
accept as final and conclusive, determinations made by foreign governmental
agencies. It is infinitely worse if through the absence of any coercive power
by our courts over juridical persons within our jurisdiction, the force and
effectivity of their orders could be made to depend on the whim or caprice of
alien entities. It is difficult to imagine of a situation more offensive to the
dignity of the bench or the honor of the country.
Yet that would be the effect, even if unintended, of the proposition to which
appellant Benguet Consolidated seems to be firmly committed as shown by
its failure to accept the validity of the order complained of; it seeks its
reversal. Certainly we must at all pains see to it that it does not succeed. The
deplorable consequences attendant on appellant prevailing attest to the
necessity of negative response from us. That is what appellant will get.
That is all then that this case presents. It is obvious why the appeal cannot
succeed. It is always easy to conjure extreme and even oppressive
possibilities. That is not decisive. It does not settle the issue. What carries
weight and conviction is the result arrived at, the just solution obtained,
grounded in the soundest of legal doctrines and distinguished by its
correspondence with what a sense of realism requires. For through the
appealed order, the imperative requirement of justice according to law is
satisfied and national dignity and honor maintained.
WHEREFORE, the appealed order of the Honorable Arsenio Santos, the
Judge of the Court of First Instance, dated May 18, 1964, is affirmed. With
costs against oppositor-appelant Benguet Consolidated, Inc.
Makalintal, Zaldivar and Capistrano, JJ., concur.
Concepcion, C.J., Reyes, J.B.L., Dizon, Sanchez and Castro, JJ., concur in
the result.

G.R. No. L-54919

May 30, 1984

POLLY CAYETANO, petitioner,

vs.
HON. TOMAS T. LEONIDAS, in his capacity as the Presiding Judge of
Branch XXXVIII, Court of First Instance of Manila and NENITA CAMPOS
PAGUIA, respondents.
Ermelo P. Guzman for petitioner.
Armando Z. Gonzales for private respondent.
Succession; Due Process; Attorneys; There being a proper substitution of
attorneys where the Motion to Dismiss Opposition to reprobate of will was
filed, trial judge acted properly in hearing evidence ex parte on probate of will
in question.We find no grave abuse of discretion on the part of the
respondent judge. No proof was adduced to support petitioners contention
that the motion to withdraw was secured through fraudulent means and that
Atty. Franco Loyola was not his counsel of record. The records show that
after the filing of the contested motion, the petitioner at a later date, filed a
manifestation wherein he confirmed that the Motion to Dismiss Opposition
was his voluntary act and deed. Moreover, at the time the motion was filed,
the petitioners former counsel, Atty. Jose P. Lagrosa had long withdrawn
from the case and had been substituted by Atty. Franco Loyola who in turn
filed the motion. The present petitioner cannot, therefore, maintain that the
old mans attorney of record was Atty. Lagrosa at the time of filing the motion.
Since the withdrawal was in order, the respondent judge acted correctly in
hearing the probate of the will ex-parte, there being no other opposition to the
same.
Same; Where circumstances demand that intrinsic validity of testamentary
provisions be passed upon even before the extrinsic validity of will is
resolved, probate court should meet the issue.The third issue raised deals
with the validity of the provisions of the will. As a general rule, the probate
courts authority is limited only to the extrinsic validity of the will, the due
execution thereof, the testatrixs testamentary capacity and the compliance
with the requisites or solemnities prescribed by law. The intrinsic validity of
the will normally comes only after the court has declared that the will has
been duly authenticated. However, 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. (Maninang v. Court of Appeals,
114 SCRA 478).
Same; The U.S. law on succession in the state of Pennsylvania applies to
the intrinsic and extrinsic validity of the last will and testament of a U.S.
national and resident of Pennsylvania under whose laws a person may give
his entire estate to a complete stranger.Although on its face, the will
appeared to have preterited the petitioner and thus, the respondent judge

should have denied its reprobate outright, the private respondents have
sufficiently established that Adoracion was, at the time of her death, an
American citizen and a permanent resident of Philadelphia, Pennsylvania,
U.S.A. Therefore, under Article 16 par. (2) and 1039 of the Civil Code which
respectively provide: x x x x the law which governs Adoracion Campos will is
the law of Pennsylvania, U.S.A., which is the national law of the decedent.
Although the parties admit that the Pennsylvania law does not provide for
legitimes and that all the estate may be given away by the testatrix to a
complete stranger, the petitioner argues that such law should not apply
because it would be contrary to the sound and established public policy and
would run counter to the specific provisions of Philippine Law.
Same; Same.It is a settled rule that as regards the intrinsic validity of the
provisions of the will, as provided for by Article 16 (2) and 1039 of the Civil
Code, the national law of the decedent must apply. This was squarely applied
in the case of Bellis v. Bellis (20 SCRA 358).
Motions; Due Process; There was no denial of due process as what the court
repeatedly set for hearing was the Petition for Relief, not the Motion to
Vacate Order of Jan. 10, 1979.As regards the alleged absence of notice of
hearing for the petition for relief, the records will bear the fact that what was
repeatedly scheduled for hearing on separate dates until June 19, 1980 was
the petitioners petition for relief and not his motion to vacate the order of
January 10, 1979. There is no reason why the petitioner should have been
led to believe otherwise. The court even admonished the petitioners failing to
adduce evidence when his petition for relief was repeatedly set for hearing.
There was no denial of due process. The fact that he requested for the
future setting of the case for hearing x x x did not mean that at the next
hearing, the motion to vacate would be heard and given preference in lieu of
the petition for relief. Furthermore, such request should be embodied in a
motion and not in a mere notice of hearing.
Succession; Jurisdiction; Probate of Will of American citizen who left an
estate in the Philippines was properly filed in the City of Manila where estate
is located.Therefore, the settlement of the estate of Adoracion Campos
was correctly filed with the Court of First Instance of Manila where she had
an estate since it was alleged and proven that Adoracion at the time of her
death was a citizen and permanent resident of Pennsylvania, United States
of America and not a usual resident of Cavite as alleged by the petitioner.
Moreover, petitioner is now estopped from questioning the jurisdiction of the
probate court in the petition for relief. It is a settled rule that a party cannot
invoke the jurisdiction of a court to secure affirmative relief, against his
opponent and after failing to obtain such relief, repudiate or question that
same jurisdiction.
PETITION for review on certiorari the order of the Court of First Instance of
Manila, Br. XXXVIII. Leonidas, J. [Cayetano vs. Leonidas, 129 SCRA
522(1984)]
GUTIERREZ, JR., J.:

This is a petition for review on certiorari, seeking to annul the order of the
respondent judge of the Court of First Instance of Manila, Branch XXXVIII,
which admitted to and allowed the probate of the last will and testament of
Adoracion C. Campos, after an ex-parte presentation of evidence by herein
private respondent.
On January 31, 1977, Adoracion C. Campos died, leaving her father,
petitioner Hermogenes Campos and her sisters, private respondent Nenita
C. Paguia, Remedios C. Lopez and Marieta C. Medina as the surviving heirs.
As Hermogenes Campos was the only compulsory heir, he executed an
Affidavit of Adjudication under Rule 74, Section I of the Rules of Court
whereby he adjudicated unto himself the ownership of the entire estate of the
deceased Adoracion Campos.
Eleven months after, on November 25, 1977, Nenita C. Paguia filed a petition
for the reprobate of a will of the deceased, Adoracion Campos, which was
allegedly executed in the United States and for her appointment as
administratrix of the estate of the deceased testatrix.
In her petition, Nenita alleged that the testatrix was an American citizen at the
time of her death and was a permanent resident of 4633 Ditman Street,
Philadelphia, Pennsylvania, U.S.A.; that the testatrix died in Manila on
January 31, 1977 while temporarily residing with her sister at 2167 Leveriza,
Malate, Manila; that during her lifetime, the testatrix made her last wig and
testament on July 10, 1975, according to the laws of Pennsylvania, U.S.A.,
nominating Wilfredo Barzaga of New Jersey as executor; that after the
testatrix death, her last will and testament was presented, probated, allowed,
and registered with the Registry of Wins at the County of Philadelphia,
U.S.A., that Clement L. McLaughlin, the administrator who was appointed
after Dr. Barzaga had declined and waived his appointment as executor in
favor of the former, is also a resident of Philadelphia, U.S.A., and that
therefore, there is an urgent need for the appointment of an administratrix to
administer and eventually distribute the properties of the estate located in the
Philippines.
On January 11, 1978, an opposition to the reprobate of the will was filed by
herein petitioner alleging among other things, that he has every reason to
believe that the will in question is a forgery; that the intrinsic provisions of the
will are null and void; and that even if pertinent American laws on intrinsic
provisions are invoked, the same could not apply inasmuch as they would
work injustice and injury to him.
On December 1, 1978, however, the petitioner through his counsel, Atty.
Franco Loyola, filed a Motion to Dismiss Opposition (With Waiver of Rights or
Interests) stating that he "has been able to verify the veracity thereof (of the

will) and now confirms the same to be truly the probated will of his daughter
Adoracion." Hence, an ex-parte presentation of evidence for the reprobate of
the questioned will was made.
On January 10, 1979, the respondent judge issued an order, to wit:
At the hearing, it has been satisfactorily established that Adoracion C.
Campos, in her lifetime, was a citizen of the United States of America with a
permanent residence at 4633 Ditman Street, Philadelphia, PA 19124, (Exhibit
D) that when alive, Adoracion C. Campos executed a Last Will and
Testament in the county of Philadelphia, Pennsylvania, U.S.A., according to
the laws thereat (Exhibits E-3 to E-3-b) that while in temporary sojourn in the
Philippines, Adoracion C. Campos died in the City of Manila (Exhibit C)
leaving property both in the Philippines and in the United States of America;
that the Last Will and Testament of the late Adoracion C. Campos was
admitted and granted probate by the Orphan's Court Division of the Court of
Common Pleas, the probate court of the Commonwealth of Pennsylvania,
County of Philadelphia, U.S.A., and letters of administration were issued in
favor of Clement J. McLaughlin all in accordance with the laws of the said
foreign country on procedure and allowance of wills (Exhibits E to E-10); and
that the petitioner is not suffering from any disqualification which would
render her unfit as administratrix of the estate in the Philippines of the late
Adoracion C. Campos.
WHEREFORE, the Last Will and Testament of the late Adoracion C. Campos
is hereby admitted to and allowed probate in the Philippines, and Nenita
Campos Paguia is hereby appointed Administratrix of the estate of said
decedent; let Letters of Administration with the Will annexed issue in favor of
said Administratrix upon her filing of a bond in the amount of P5,000.00
conditioned under the provisions of Section I, Rule 81 of the Rules of Court.
Another manifestation was filed by the petitioner on April 14, 1979,
confirming the withdrawal of his opposition, acknowledging the same to be
his voluntary act and deed.
On May 25, 1979, Hermogenes Campos filed a petition for relief, praying that
the order allowing the will be set aside on the ground that the withdrawal of
his opposition to the same was secured through fraudulent means. According
to him, the "Motion to Dismiss Opposition" was inserted among the papers
which he signed in connection with two Deeds of Conditional Sales which he
executed with the Construction and Development Corporation of the
Philippines (CDCP). He also alleged that the lawyer who filed the withdrawal
of the opposition was not his counsel-of-record in the special proceedings
case.

The petition for relief was set for hearing but the petitioner failed to appear.
He made several motions for postponement until the hearing was set on May
29, 1980.
On May 18, 1980, petitioner filed another motion entitled "Motion to Vacate
and/or Set Aside the Order of January 10, 1979, and/or dismiss the case for
lack of jurisdiction. In this motion, the notice of hearing provided:
Please include this motion in your calendar for hearing on May 29, 1980 at
8:30 in the morning for submission for reconsideration and resolution of the
Honorable Court. Until this Motion is resolved, may I also request for the
future setting of the case for hearing on the Oppositor's motion to set aside
previously filed.
The hearing of May 29, 1980 was re-set by the court for June 19, 1980.
When the case was called for hearing on this date, the counsel for petitioner
tried to argue his motion to vacate instead of adducing evidence in support of
the petition for relief. Thus, the respondent judge issued an order dismissing
the petition for relief for failure to present evidence in support thereof.
Petitioner filed a motion for reconsideration but the same was denied. In the
same order, respondent judge also denied the motion to vacate for lack of
merit. Hence, this petition.
Meanwhile, on June 6,1982, petitioner Hermogenes Campos died and left a
will, which, incidentally has been questioned by the respondent, his children
and forced heirs as, on its face, patently null and void, and a fabrication,
appointing Polly Cayetano as the executrix of his last will and testament.
Cayetano, therefore, filed a motion to substitute herself as petitioner in the
instant case which was granted by the court on September 13, 1982.
A motion to dismiss the petition on the ground that the rights of the petitioner
Hermogenes Campos merged upon his death with the rights of the
respondent and her sisters, only remaining children and forced heirs was
denied on September 12, 1983.
Petitioner Cayetano persists with the allegations that the respondent judge
acted without or in excess of his jurisdiction when:
1)
He ruled the petitioner lost his standing in court deprived the Right to
Notice (sic) upon the filing of the Motion to Dismiss opposition with waiver of
rights or interests against the estate of deceased Adoracion C. Campos,
thus, paving the way for the hearing ex-parte of the petition for the probate of
decedent will.
2)
He ruled that petitioner can waive, renounce or repudiate (not made
in a public or authenticated instrument), or by way of a petition presented to

the court but by way of a motion presented prior to an order for the
distribution of the estate-the law especially providing that repudiation of an
inheritance must be presented, within 30 days after it has issued an order for
the distribution of the estate in accordance with the rules of Court.
3)
He ruled that the right of a forced heir to his legitime can be divested
by a decree admitting a will to probate in which no provision is made for the
forced heir in complete disregard of Law of Succession
4)
He denied petitioner's petition for Relief on the ground that no
evidence was adduced to support the Petition for Relief when no Notice nor
hearing was set to afford petitioner to prove the merit of his petition a
denial of the due process and a grave abuse of discretion amounting to lack
of jurisdiction.
5)
He acquired no jurisdiction over the testate case, the fact that the
Testator at the time of death was a usual resident of Dasmarias, Cavite,
consequently Cavite Court of First Instance has exclusive jurisdiction over
the case (De Borja vs. Tan, G.R. No. L-7792, July 1955).
The first two issues raised by the petitioner are anchored on the allegation
that the respondent judge acted with grave abuse of discretion when he
allowed the withdrawal of the petitioner's opposition to the reprobate of the
will.
We find no grave abuse of discretion on the part of the respondent judge. No
proof was adduced to support petitioner's contention that the motion to
withdraw was secured through fraudulent means and that Atty. Franco Loyola
was not his counsel of record. The records show that after the firing of the
contested motion, the petitioner at a later date, filed a manifestation wherein
he confirmed that the Motion to Dismiss Opposition was his voluntary act and
deed. Moreover, at the time the motion was filed, the petitioner's former
counsel, Atty. Jose P. Lagrosa had long withdrawn from the case and had
been substituted by Atty. Franco Loyola who in turn filed the motion. The
present petitioner cannot, therefore, maintain that the old man's attorney of
record was Atty. Lagrosa at the time of filing the motion. Since the withdrawal
was in order, the respondent judge acted correctly in hearing the probate of
the will ex-parte, there being no other opposition to the same.
The third issue raised deals with the validity of the provisions of the will. As a
general rule, the probate court's authority is limited only to the extrinsic
validity of the will, the due execution thereof, the testatrix's testamentary
capacity and the compliance with the requisites or solemnities prescribed by
law. The intrinsic validity of the will normally comes only after the court has
declared that the will has been duly authenticated. However, 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. (Maninang vs.
Court of Appeals, 114 SCRA 478).
In the case at bar, the petitioner maintains that since the respondent judge
allowed the reprobate of Adoracion's will, Hermogenes C. Campos was
divested of his legitime which was reserved by the law for him.
This contention is without merit.
Although on its face, the will appeared to have preterited the petitioner and
thus, the respondent judge should have denied its reprobate outright, the
private respondents have sufficiently established that Adoracion was, at the
time of her death, an American citizen and a permanent resident of
Philadelphia, Pennsylvania, U.S.A. Therefore, under Article 16 par. (2) and
1039 of the Civil Code which respectively provide:
Art. 16 par. (2).
xxx

xxx

xxx

However, intestate and testamentary successions, both with respect to the

order of succession and to the amount of successional rights and to the
intrinsic validity of testamentary provisions, shall be regulated by the national
law of the person whose succession is under consideration, whatever may
be the nature of the property and regardless of the country wherein said
property may be found.
Art. 1039.

same to the succession of foreign nationals. For it has specifically chosen to

leave, inter alia, the amount of successional rights, to the decedent's national
law. Specific provisions must prevail over general ones.
xxx

xxx

xxx

The parties admit that the decedent, Amos G. Bellis, was a citizen of the
State of Texas, U.S.A., and under the law of Texas, there are no forced heirs
or legitimes. Accordingly, since the intrinsic validity of the provision of the will
and the amount of successional rights are to be determined under Texas law,
the Philippine Law on legitimes cannot be applied to the testacy of Amos G.
Bellis.
As regards the alleged absence of notice of hearing for the petition for relief,
the records wig bear the fact that what was repeatedly scheduled for hearing
on separate dates until June 19, 1980 was the petitioner's petition for relief
and not his motion to vacate the order of January 10, 1979. There is no
reason why the petitioner should have been led to believe otherwise. The
court even admonished the petitioner's failing to adduce evidence when his
petition for relief was repeatedly set for hearing. There was no denial of due
process. The fact that he requested "for the future setting of the case for
hearing . . ." did not mean that at the next hearing, the motion to vacate
would be heard and given preference in lieu of the petition for relief.
Furthermore, such request should be embodied in a motion and not in a
mere notice of hearing.
Finally, we find the contention of the petition as to the issue of jurisdiction
utterly devoid of merit. Under Rule 73, Section 1, of the Rules of Court, it is
provided that:

Capacity to succeed is governed by the law of the nation of the decedent.

the law which governs Adoracion Campo's will is the law of Pennsylvania,
U.S.A., which is the national law of the decedent. Although the parties admit
that the Pennsylvania law does not provide for legitimes and that all the
estate may be given away by the testatrix to a complete stranger, the
petitioner argues that such law should not apply because it would be contrary
to the sound and established public policy and would run counter to the
specific provisions of Philippine Law.
It is a settled rule that as regards the intrinsic validity of the provisions of the
will, as provided for by Article 16(2) and 1039 of the Civil Code, the national
law of the decedent must apply. This was squarely applied in the case of
Bellis v. Bellis (20 SCRA 358) wherein we ruled:
It is therefore evident that whatever public policy or good customs may be
involved in our system of legitimes, Congress has not intended to extend the

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
resided at the time of his death, and if he is an inhabitant of a foreign country,
the Court of First Instance of any province in which he had estate. The court
first taking cognizance of the settlement of the estate of a decedent, shall
exercise jurisdiction to the exclusion of all other courts. The jurisdiction
assumed by a court, so far as it depends on the place of residence of the
decedent, or of the location of his estate, shall not be contested in a suit or
proceeding, except in an appeal from that court, in the original case, or when
the want of jurisdiction appears on the record.
Therefore, the settlement of the estate of Adoracion Campos was correctly
filed with the Court of First Instance of Manila where she had an estate since
it was alleged and proven that Adoracion at the time of her death was a

citizen and permanent resident of Pennsylvania, United States of America

and not a "usual resident of Cavite" as alleged by the petitioner. Moreover,
petitioner is now estopped from questioning the jurisdiction of the probate
court in the petition for relief. It is a settled rule that a party cannot invoke the
jurisdiction of a court to secure affirmative relief, against his opponent and
after failing to obtain such relief, repudiate or question that same jurisdiction.
(See Saulog Transit, Inc. vs. Hon. Manuel Lazaro, et al., G. R. No. 63 284,
April 4, 1984).

WHEREFORE, the petition for certiorari and prohibition is hereby dismissed

for lack of merit.
SO ORDERED.
Melencio-Herrera, Plana, Relova and De la Fuente, JJ., concur.
Teehankee, J., (Chairman), took no part.