1.

INTRODUCTION
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 133000

October 2, 2001

PATRICIA NATCHER, petitioner,

vs.
HON. COURT OFAPPEALS AND THE HEIR OF GRACIANO DEL ROSARIO LETICIA DEL ROSARIO, EMILIA
DEL RESORIO MANANGAN, ROSALINDA FUENTES LLANA, RODOLFO FUENTES, ALBERTO FUENTES,
EVELYN DEL ROSARIO, and EDUARDO DEL ROSARIO, respondent..
BUENA, J.:
May a Regional Trial Court, acting as a court of general jurisdiction in an action for reconveyance
annulment of title with damages, adjudicate matters relating to the settlement of the estate of a
deceased person particularly on questions as to advancement of property made by the decedent to
any of the heirs?
Sought to be reversed in this petition for review on certiorari under Rule 45 is the decision1 of public
respondent Court of Appeals, the decretal portion of which declares:
"Wherefore in view of the foregoing considerations, judgment appealed from is reversed and set aside
and another one entered annulling the Deed of Sale executed by Graciano Del Rosario in favor of
defendant-appellee Patricia Natcher, and ordering the Register of Deeds to Cancel TCT No. 186059 and
reinstate TCT No. 107443 without prejudice to the filing of a special proceeding for the settlement of
the estate of Graciano Del Rosario in a proper court. No costs.
"So ordered."
Spouses Graciano del Rosario and Graciana Esguerra were registered owners of a parcel of land with
an area of 9,322 square meters located in Manila and covered by Transfer Certificate of Title No.
11889. Upon the death of Graciana in 1951, Graciano, together with his six children, namely: Bayani,
Ricardo, Rafael, Leticia, Emiliana and Nieves, entered into an extrajudicial settlement of Graciana's
estate on 09 February 1954 adjudicating and dividing among themselves the real property subject of
TCT No. 11889. Under the agreement, Graciano received 8/14 share while each of the six children
received 1/14 share of the said property. Accordingly, TCT No. 11889 was cancelled, and in lieu thereof,
TCT No. 35980 was issued in the name of Graciano and the Six children.1wphi1.nt
Further, on 09 February 1954, said heirs executed and forged an "Agreement of ConsolidationSubdivision of Real Property with Waiver of Rights" where they subdivided among themselves the
parcel of land covered by TCT No. 35980 into several lots. Graciano then donated to his children, share
and share alike, a portion of his interest in the land amounting to 4,849.38 square meters leaving only
447.60 square meters registered under Graciano's name, as covered by TCT No. 35988. Subsequently,
the land subject of TCT No. 35988 was further subdivided into two separate lots where the first lot with
a land area of 80.90 square meter was registered under TCT No. 107442 and the second lot with a land
area of 396.70 square meters was registered under TCT No. 107443. Eventually, Graciano sold the first
lot2 to a third person but retained ownership over the second lot. 3
On 20 March 1980, Graciano married herein petitioner Patricia Natcher. During their marriage,
Graciano sold the land covered by TCT No. 107443 to his wife Patricia as a result of which TCT No.

1860594 was issued in the latter's name. On 07 October 1985,Graciano died leaving his second wife
Patricia and his six children by his first marriage, as heirs.
In a complaint5 filed in Civil Case No. 71075 before the Regional Trial Court of Manila, Branch 55, herein
private respondents alleged that upon Graciano's death, petitioner Natcher, through the employment
of fraud, misrepresentation and forgery, acquired TCT No. 107443, by making it appear that Graciano
executed a Deed of Sale dated 25 June 19876 in favor herein petitioner resulting in the cancellation of
TCT No. 107443 and the issuance of TCT no. 186059 in the name of Patricia Natcher. Similarly, herein
private respondents alleged in said complaint that as a consequence of such fraudulent sale, their
legitimes have been impaired.
In her answer7 dated 19 August 1994, herein petitioner Natcher averred that she was legally married to
Graciano in 20 March 1980 and thus, under the law, she was likewise considered a compulsory heir of
the latter. Petitioner further alleged that during Graciano's lifetime, Graciano already distributed, in
advance, properties to his children, hence, herein private respondents may not anymore claim against
Graciano's estate or against herein petitioner's property.
After trial, the Regional Trial Court of Manila, Branch 55, rendered a decision dated 26 January 1996
holding:8
"1) The deed of sale executed by the late Graciano del Rosario in favor of Patricia Natcher is prohibited
by law and thus a complete nullity. There being no evidence that a separation of property was agreed
upon in the marriage settlements or that there has been decreed a judicial separation of property
between them, the spouses are prohibited from entering (into) a contract of sale;
"2) The deed as sale cannot be likewise regarded as a valid donation as it was equally prohibited by
law under Article 133 of the New Civil Code;
"3) Although the deed of sale cannot be regarded as such or as a donation, it may however be
regarded as an extension of advance inheritance of Patricia Natcher being a compulsory heir of the
deceased."
On appeal, the Court of Appeals reversed and set aside the lower court's decision ratiocinating, inter
alia:
"It is the probate court that has exclusive jurisdiction to make a just and legal distribution of the estate.
The court a quo, trying an ordinary action for reconveyance / annulment of title, went beyond its
jurisdiction when it performed the acts proper only in a special proceeding for the settlement of estate
of a deceased person. XXX
"X X X Thus the court a quo erred in regarding the subject property as advance inheritance. What the
court should have done was merely to rule on the validity of (the) sale and leave the issue on
advancement to be resolved in a separate proceeding instituted for that purpose. XXX"
Aggrieved, herein petitioner seeks refuge under our protective mantle through the expediency of Rule
45 of the Rules of Court and assails the appellate court's decision "for being contrary to law and the
facts of the case."
We concur with the Court of Appeals and find no merit in the instant petition.
Section 3, Rule 1 of the 1997 Rules of Civil Procedure defines civil action and special proceedings, in
this wise:
"XXX a) A civil action is one by which a party sues another for the enforcement or protection of a right,
or the prevention or redress of a wrong.

"A civil action may either be ordinary or special. Both are government by the rules for ordinary civil
actions, subject to specific rules prescribed for a special civil action.
"XXX
"c) A special proceeding is a remedy by which a party seeks to establish a status, a right or a particular
fact."
As could be gleaned from the foregoing, there lies a marked distinction between an action and a
special proceeding. An action is a formal demand of one's right in a court of justice in the manner
prescribed by the court or by the law. It is the method of applying legal remedies according to definite
established rules. The term "special proceeding" may be defined as an application or proceeding to
establish the status or right of a party, or a particular fact. Usually, in special proceedings, no formal
pleadings are required unless the statute expressly so provides. In special proceedings, the remedy is
granted generally upon an application or motion."9
Citing American Jurisprudence, a noted authority in Remedial Law expounds further:
"It may accordingly be stated generally that actions include those proceedings which are instituted and
prosecuted according to the ordinary rules and provisions relating to actions at law or suits in equity,
and that special proceedings include those proceedings which are not ordinary in this sense, but is
instituted and prosecuted according to some special mode as in the case of proceedings commenced
without summons and prosecuted without regular pleadings, which are characteristics of ordinary
actions. XXX A special proceeding must therefore be in the nature of a distinct and independent
proceeding for particular relief, such as may be instituted independently of a pending action, by
petition or motion upon notice."10
Applying these principles, an action for reconveyance and annulment of title with damages is a civil
action, whereas matters relating to settlement of the estate of a deceased person such as
advancement of property made by the decedent, partake of the nature of a special proceeding, which
concomitantly requires the application of specific rules as provided for in the Rules of Court.
Clearly, matters which involve settlement and distribution of the estate of the decedent fall within the
exclusive province of the probate court in the exercise of its limited jurisdiction.
Thus, under Section 2, Rule 90 of the Rules of Court, questions as to advancement made or alleged to
have been made by the deceased to any heir may be heard and determined by the court having
jurisdiction of the estate proceedings; and the final order of the court thereon shall be binding on the
person raising the questions and on the heir.
While it may be true that the Rules used the word "may", it is nevertheless clear that the same
provision11contemplates a probate court when it speaks of the "court having jurisdiction of the estate
proceedings".
Corollarily, the Regional Trial Court in the instant case, acting in its general jurisdiction, is devoid of
authority to render an adjudication and resolve the issue of advancement of the real property in favor
of herein petitioner Natcher, inasmuch as Civil Case No. 471075 for reconveyance and annulment of
title with damages is not, to our mind, the proper vehicle to thresh out said question. Moreover, under
the present circumstances, the RTC of Manila, Branch 55 was not properly constituted as a probate
court so as to validly pass upon the question of advancement made by the decedent Graciano Del
Rosario to his wife, herein petitioner Natcher.
At this point, the appellate court's disquisition is elucidating:

"Before a court can make a partition and distribution of the estate of a deceased, it must first settle the
estate in a special proceeding instituted for the purpose. In the case at hand, the court a quo
determined the respective legitimes of the plaintiffs-appellants and assigned the subject property
owned by the estate of the deceased to defendant-appellee without observing the proper proceedings
provided (for) by the Rules of Court. From the aforecited discussions, it is clear that trial courts trying
an ordinary action cannot resolve to perform acts pertaining to a special proceeding because it is
subject to specific prescribed rules. Thus, the court a quo erred in regarding the subject property as an
advance inheritance."12
In resolving the case at bench, this Court is not unaware of our pronouncement in Coca vs.
Borromeo13 andMendoza vs. Teh14 that whether a particular matter should be resolved by the Regional
Trial Court (then Court of First Instance) in the exercise of its general jurisdiction or its limited probate
jurisdiction is not a jurisdictional issue but a mere question of procedure. In essence, it is procedural
question involving a mode of practice "which may be waived". 15
Notwithstanding, we do not see any waiver on the part of herein private respondents inasmuch as the
six children of the decedent even assailed the authority of the trail court, acting in its general
jurisdiction, to rule on this specific issue of advancement made by the decedent to petitioner.
Analogously, in a train of decisions, this Court has consistently enunciated the long standing principle
that although generally, a probate court may not decide a question of title or ownership, yet if the
interested parties are all heirs, or the question is one of collation or advancement, or the parties
consent to the assumption of jurisdiction by the probate court and the rights of third parties are not
impaired, then the probate court is competent to decide the question of ownership. 16
Similarly in Mendoza vs. Teh, we had occasion to hold:
"In the present suit, no settlement of estate is involved, but merely an allegation seeking appointment
as estate administratrix which does not necessarily involve settlement of estate that would have
invited the exercise of the limited jurisdiction of a probate court. 17 (emphasis supplied)
Of equal importance is that before any conclusion about the legal share due to a compulsory heir may
be reached, it is necessary that certain steps be taken first. 18 The net estate of the decedent must be
ascertained, by deducting all payable obligations and charges from the value of the property owned by
the deceased at the time of his death; then, all donations subject to collation would be added to it.
With the partible estate thus determined, the legitime of the compulsory heir or heirs can be
established; and only thereafter can it be ascertained whether or not a donation had prejudiced the
legitimes.19
A perusal of the records, specifically the antecedents and proceedings in the present case, reveals that
the trial court failed to observe established rules of procedure governing the settlement of the estate
of Graciano Del Rosario. This Court sees no cogent reason to sanction the non-observance of these
well-entrenched rules and hereby holds that under the prevailing circumstances, a probate court, in
the exercise of its limited jurisdiction, is indeed the best forum to ventilate and adjudge the issue of
advancement as well as other related matters involving the settlement of Graciano Del Rosario's
estate.1wphi1.nt
WHEREFORE, premises considered, the assailed decision of the Court of Appeals is
hereby AFFIRMED and the instant petition is DISMISSED for lack of merit.
SO ORDERED.
Bellosillo, Mendoza, Quisumbing, De Leon, Jr., Davide, Jr., JJ., concur.
Footnote

C.A. Decision in C.A. GR No.CV No. 51390, promulgated on 09 December 1997, penned by Justice
Quirino D. Abad Santos, Jr. and concurred in by JJ. Ruben T. Reyes and Hilarion L. Aquino; Rollo, pp. 2331.
1

TCT No.107442.

TCT No.107443.

Annex "C"; Records, p. 5.

Records, pp.1-7.

Exhibit E; Decision in Civil Case No. 94-71075; p. 205.

Records, pp. 20-23.

Rollo, p. 25.

Hagans vs. Wislizenus, 42 Phil. 880 [1920].

Francisco, V.J., Revised Rules of Court in the Philippines, Vol. V-A, 1970 ed., p. 596 citing 1 CJS 10941095.
10

11

Section 2, Rule 90.

12

Rollo, p.30; CA Decision, p.8.

13

81 SCRA 278 [1978].

14

269 SCRA 764 [1997].

15

Cunanan vs. Amparo, 80 Phil. 227 [1948].

Coca vs. Borromeo, supra; Pascual vs. Pascual, 73 Phil. 561 [1942]; Alvarez vs. Espiritu, L-1883,
August 14, 1965, 14 SCRA 892 [1965]; Cunanan vs. Amparo, 80 Phil 227 [1948]; 3 Moran's Comments
on the Rules of Court, 1970 ed., p. 473.
16

17

269 SCRA 764, 769 [1997].

18

Pagkatipunan vs. Intermediate Appellate Court, 198 SCRA 718 [1991].

19

Mateo vs. Laguna, 29 SCRA 864 [1969].

SECOND DIVISION
[G.R. No. 109373. March 27, 1998]
PACIFIC BANKING CORPORATION EMPLOYEES ORGANIZATION, PAULA S. PAUG, and its
officers and members, petitioners, vs. THE HONORABLE COURT OF APPEALS and VITALIANO
N. NAAGAS II, as Liquidator of Pacific Banking Corporation, respondents.
[G.R. No. 112991. March 27, 1998]
THE PRESIDENT OF THE PHILIPPINE DEPOSIT INSURANCE CORPORATION, as Liquidator of
the Pacific Banking Corporation, petitioner, vs. COURT OF APPEALS, HON. JUDGE REGINO T.
VERIDIANO II, DEPUTY SHERIFF RAMON ENRIQUEZ and ANG ENG JOO, ANG KEONG LAN and
E.J ANG INTL. LTD., represented by their Attorney-in-fact, GONZALO C. SY,respondents.
RESOLUTION
MENDOZA, J.:
For consideration are (1) petitioner's Omnibus Motion in G.R. No. 112991 seeking reconsideration of
the Court's resolution dated October 9, 1995, which denied the reconsideration of the decision in this
case promulgated on March 20, 1995, and the resolution of October 13, 1995 which absolved the
branch clerk of court of the RTC of Manila, Branch 31, of charges of wrongdoing; and (2) the
manifestation and motions for clarification filed by the Land Bank of the Philippines (LBP) concerning

the request of petitioner in G.R. No. 112991 for the transfer of the funds of the Pacific Banking
Corporation (PaBC) to its other account in another branch of LBP and the alleged garnishment of the
funds of PaBC deposited in LBP in favor of the Bureau of Internal Revenue.
The antecedent facts are as follows:
On March 20, 1995, the Court rendered a decision holding that a petition for liquidation under Sec. 29
of the Central Bank Act, R.A.No. 265[1] is a special proceeding and , therefore, the rules prescribing a
period of 30 days for appealing and requiring a record on appeal apply. Accordingly, the appeal in G.R.
No. 109373 was held to have been duly perfected but the appeal in G.R. No. 112991 had not been
perfected because of petitioner's failure to file a record on appeal.
Petitioner in G.R. No. 112991 moved for a reconsideration of the aforesaid decision but the Court
denied his motion in its resolution of October 9, 1995 on the following grounds (1) the clerks of the RTC
and the Court of Appeals certified that no record on appeal had been filed; (2) the branch clerk denied
that the signature on the alleged copy of the record on appeal was his; (3) counsel for private
respondents and his clerk denied in their respective affidavits that they had been served a copy of the
record on appeal; (4) the identity of the person who allegedly received the record on appeal filed in the
trial court and whose initials appear on the first page of the alleged copy of the said record had never
been established; and (5) the copy of the record on appeal allegedly filed did not bear the stamp of the
RTC showing due receipt thereof.
In the resolution of October 13, 1995, the Court held Judge Regino Veridiano II, Deputy Sheriff Carmelo
Cachero and private respondent's counsel, Atty. Marino Eslao, guilty of indirect contempt for executing
the decision of the trial court despite the temporary restraining order issued by this Court. The Court,
however, found no basis of holding branch clerk Antonio Valencia Jr. guilty of any wrongdoing in
certifying that petitioner failed to file a record on appeal.
On November 6, 1995, petitioner then filed the Omnibus Motion in question seeking to (1) reopen the
case and/or consider the resolution of October 9, 1995 which denied his motion for reconsideration,
and (2) reconsider the October 13, 1995 resolution absolving the branch clerk of the trial court from
contempt charges.
In his omnibus motion, petitioner insists that he filed a record on appeal. As proof, he presents a
photocopy of the record on appeal allegedly received by the branch clerk of the trial court bearing the
handwritten notation "Received, 10-15-92, 3:45 PM" and the alleged initials of the said clerk. Petitioner
explains that the record on appeal does not have the RTC stamp "Received" because the trial court
does not use a stamp but receipt of pleadings is acknowledged simply by nothing this fact by
hand. Petitioner submitted certain pleadings filed in the trial court which were acknowledged by the
branch clerk in the same way he allegedly acknowledged by the branch clerk in the same way he
allegedly acknowledged receipt of petitioner's record on appeal. These are the notice of appeal filed by
petitioner on October 14, 1992 (Annex E, Omnibus Motion), Motion to Strike Out the Notice of Appeal
with Motion for Issuance of Writ of Execution filed by the private respondents (Annex G) and Comment
filed by another claimant (Solid Bank) dated May 26, 1995 (Annex H).
In addition, petitioner claims that the certifications by the clerks of the RTC and the Court of Appeals
that no record on appeal was filed are unreliable, that his record on appeal was suppressed from the
records of the case, and that the certification of the Court of Appeals that no record on appeal was filed
therein was to be expected because the record on appeal was filed with the RTC and not with the Court
of Appeals.
Commenting, private respondents contend that the Omnibus Motion is actually a second motion for
reconsideration which is not allowed by the rules since the issues raised therein had been fully
considered and passed upon by the Court and that there is no compelling reason to grant the
motion. They maintain that petitioner's appeal was not perfected because of the non-filing of a record

on appeal. Branch Clerk of court Antonio Valencia, on the other hand, maintains that "no record on
appeal was filed and therefore none could be found in the expediente (records of the case)." He claims
that the record on appeal allegedly filed in the trial court could not have been unlawfully removed from
the records because all pleadings received by the court are immediately attached to the records. He
denies that the signature appearing on the alleged record on appeal was his.
Because of the serious ness of the petitioner's allegation that its record on appeal had been
suppressed, the Court on December 11, 1996, referred the question to the Office of the Court
Administrator (OCA) for investigation, report and recommendation.
On June 18, 1997, the OCA submitted its report and recommendation, the pertinent portions of which
state:[2]
In the formal investigation conducted (please see attached transcript) it was disclosed that Atty.
Antonio Valencia Jr. was appointed as the Clerk of Court V on June 18, 1992 and officially assumed
office on July 1, 1992.
As the Clerk of Court of RTC, Branch 31, it is his duty to exercise control and supervision over the
personnel of the said court; examines records of all cases filed and calendared; issues court processes,
prepares drafts of orders and other matters which are assigned by the Judge Regino Verediano.
In their sala each personnel have their respective duties , from receipt of pleadings that are being filed
to their safekeeping. In no case is anyone allowed to interfere with the duties of each personnel except
under extreme urgency. Thus, receiving of pleadings is normally entrusted to the receiving clerk and
no one else. It is, as claimed by Atty. Valencia, only in the absence of the said receiving clerk that other
employees are authorized to receive pleadings.
For his part, Atty. Valencia claims that he rarely receives pleadings since before it reaches his table, the
same are already duly received. Besides, it is not one of his duties to receive pleadings.
With respect to the alleged receipt of the record on appeal by their office, specifically to him, Atty.
Valencia vehemently denied having received the same. First, because the stroke of the alphabet
indicating his initials is very different and so with the dates, secondly, if it was actually received it
could have been brought to attention of the late Judge Verediano who thereafter would have made a
notation of the same, like all other pleadings received in their office or simply instruct the preparation
of an order if necessary and lastly, it would have been included in their court calendar as there was a
notice of hearing attached thereto.
In the court's calendar dated October 23, 1992, Sp. Proc. No. 35313 was never scheduled for
hearing. Under normal circumstances, if there was notice of hearing it would be outrightly included in
the court's calendar for October 23, 1992 as requested.
To substantiate the aforesaid allegations Atty. Valencia submitted copies of pleadings filed relative to
the subject case bearing the notation of then Judge Verediano and the Court's calendar for October 22
and 23, 1992.
In addition, he pointed out that if the Notice of Appeal (Record on Appeal) was actually filed in their
sala, why was it raised for the first time only in PDIC's Motion for Reconsideration. This according to
him is suspicious. He even insinuated that nobody could have done this (meaning inserted the notice
of appeal [record on appeal] in their pleadings) except the interested lawyer/s.
Moreover, Atty. Valencia vouches for the honesty and integrity of his staff, and if there be a need for
the examination of their signatures they would be very willing to go for a specimen signature
examination only to clear his/their names.

The office of the undersigned believes the claim of Atty. Valencia that no Notice of Appeal [Record on
Appeal] was filed at RTC Branch 31, Manila. As a CPA/lawyer, he was very well aware of his duties and
responsibilities as a Branch Clerk of Court. This is evidenced by the fact that in his more than five (5)
years stay as a Branch Clerk of Court, no single administrative complaint has ever been lodged against
him, be it a harassment suit or otherwise.
Moreover, if it has been actually filed it would not have passed unnoticed by then Judge Verediano who
had to approve the same.
The undersigned is in accord with the claim of Atty. Valencia as presented by him to Atty. Cunanan of
this Office that indeed no record on appeal was filed by the counsels of PDIC in the subject case, thus
no administrative action should be taken against him. (Memorandum dated June 5, 1997, pp. 12; Rollo, p. 538-539)
On July 23, 1997, after considering the report and it appearing that the investigation conducted by the
OCA was limited to hearing the evidence of the branch clerk of court and his witnesses, the required
the OCA to hear the evidence of petitioner that he had filed a record on appeal but it was suppressed
and, after considering that totality of the evidence presented, to determine liability for any wrongful
act committed, and to submit its findings and recommendations.
On January 27, 1998, the OCA submitted its report and recommendation on the additional investigation
it conducted from which it appears that hearings were held on three dates; the parties, through their
counsel, were duly notified of the same; and that at the first scheduled hearing on October 7, 1997,
only Atty. Marino E. Eslao, counsel for private respondent, appeared. In order to expidite the
proceedings, he was allowed to present documentary evidence without prejudice to the right of the
petitioner to comment thereon. During the hearing on November 5, 1997, the parties agreed to file
position papers after the testimony of branch clerk Atty. Valencia. On November 6, 1997, the
respective testimonies of Atty. Valencia and Atty. Pablo Romero, the sole witness for petitioner, were
taken. In his report dated December 1, 1997,[3] Senior Deputy Court Administrator Reynaldo L. Suarez
summarized the evidence presented by the parties and his findings on the same, to wit:
Atty. Pablo Romero, Manager of R&L Litigation Center, PDIC testifies that he was the one who prepared
the subject Record on Appeal. He likewise confirmed the fact that the President of the PDIC, Mr. Ernest
Leung, Atty. Rosalinda Casiguran and he then went to see Judge Veridiano and was informed by Atty.
Valencia that he cannot find a copy of the Record on Appeal which was allegedly filed. He cannot recall
if Atty. Valencia ever demanded from him a copy of said record (pp. 28-29, TSN dated November 6,
1997). No other relevant information were given by Atty. Romero.
Atty. Antonio Valencia, Branch Clerk of Court, RTC, Branch 31, Manila, was invited to testify as to
whether a Record on Appeal was actually filed before their court and the same was duly received by
him. He was examined by the parties, principally the counsel for PDIC.
In his testimony, Atty. Valencia, reiterated his previous stand that he never saw a copy of the Record on
Appeal and he was positive that indeed there was no Record on Appeal having been filed in his
court. Counsel of PDIC however insinuated that record on appeal might have been filed but the same
was misplaced. Atty. Valencia assured that "this is very remote". (TSN, p. 8, November 6, 1997).
He even stressed that when he was made earlier to comment on whether or not a record on appeal
was actually filed, he checked and double checked the original records, inquired from the employees of
RTC, Manila including the Judge whether they have knowledge of any record on appeal which was filed
in their sala but all answered in the negative. (pp. 21 & 22, TSN, Nov. 6, 1997).
Moreover, he also firmly denied having received the alleged copy of the record on appeal which was
presented to him for identification during his direct testimony since the signatures appearing therein
are totally different from his actual signature (pp. 23, TSN, November 6, 1997).

It is to be noted that the alleged duplicate original copy of the Notice of Appeal [Record on Appeal]
which is supposed to be with the counsels of PDIC was not presented as evidence. In fact when the
counsel of PDIC Atty. Romero was asked if the PDIC employee who allegedly filed the Record on Appeal
could testify he answered in the negative and claimed that the said employee is already in Riyadh,
Saudi Arabia. No evidence was likewise presented to prove the same. No effort was exerted by PDIC to
prove the authenticity of the signature of Clerk of Court Valencia appearing in PDIC's copy of the
Record on Appeal.
It is also worthy to note that other than the bare testimony of Atty. Romero, no other evidence were
presented by petitioner PDIC to substantiate their claim that a Record on Appeal was filed at the RTC of
Manila and the same was duly received by Atty. Valencia. The testimony was not even corroborated.
Be that as it may this Office still has to determine as to whether a Record on Appeal was actually filed
at the court a quo.
A review of the record impels a rejection of the petitioner's claim that a Record on Appeal was filed.
The private respondent was able to present proof which are affirmative, unequivocal convincing, and
consistent. In fact the testimony alone of Atty. Valencia which was a reiteration of his previous
testimonies were very clear, concise, and moreover consistent. For the record Atty. Valencia is viewed
by the undersigned who personally conducted the investigation as a plain, sincere and honest man
who, not having been shown of any reason to be bias or to favor any party, had no reason to
deliberately tell a falsehood relative to his official functions. The fact therefore that he submitted
himself to an investigatin twice and in different occassions shows his determination to vindicate his
honor by proving the integrity of the records of his office.
From all indications and as the records of the case will show NO RECORD ON APPEAL was actually filed
in the court a quo.
Apparently, RTC, Branch 31, Manila has an effective records management (system) and it is
improbable to have missed one important document (RECORD ON APPEAL). In the absence of any
convincing proof to the contrary, the regularity of official function must be upheld.
Far from the assertions of the petitioner we conclude that there was no Record on Appeal actually
filed. (Memorandum dated December 11, 1997, pp. 3-5; Rollo, pp. 557-559)
The findings of the OCA are well taken.
In civil cases, the burden of proof is on the party who would be defeated if no evidence is given on the
either side. Plaintiff must therefore establish his case by a preponderance of evidence, i.e. evidence as
a whole which is superior to that of the defendant. [4] In other words, the party who alleges a fact has
the burden of proving it.[5] In this case, petitioner, as the party claiming affirmative relief from this
Court by contending that he had filed a record on appeal in the trial court, must discharge the burden
of convincingly proving his claim.[6] As found by the OCA, however, the evidence of the respondents
even outweighs that of petitioner. Private respondents presented proof which are affirmative,
unequivocal, convincing, and consistent that no record on appel had been filed. As the OCA noted,
petitioner not only failed to present the PDIC employee who allegedly filed on the record appeal in the
trial court but more importantly, he failed to prove the authenticity of the alleged signature of Branch
Clerk Antonio Valencia appearing in his copy of the record on appeal.
The firm and consistent denial of the branch clerk that he was the one who received the record on
appeal and acknowledged its filing was disputed by petitioner. But petitioner's witness, Atty. Romero,
who allegedly prepared the said record did not file it in the trial court. Nor did he have any personal
knowledge of the actual filing of the record on appeal in the trial court. According to Atty. Romero, the
PDIC employee who allegedly filed the record on appeal in the trial court could not testify because the

said employee was already in Riyadh, Saudi Arabia. This allegation is not persuasive since no evidence
was presented to prove the same.[7]
Even the documentary evidence submitted by petitioner to prove the authenticity of the signature of
the branch clerk on the alleged duplicate original copy of the record on appeal [8] is not convincing. The
signature and notation on the alleged duplicate original copy of the record on appeal do not match the
actual signature and handwriting of the branch clerk as shown in the pleadings submitted by petitioner
himself, namely, the notice of appeal filed by petitioner (Annex E, Omnibus Motion), motion to strike
out notice of appeal filed by private respondents (Annex G) and comment filed by another claimant
(Annex H). The branch clerk's alleged signature and notation are markedly different from his signature
and handwriting appearing in the submitted documentary evidence. [9] For one, the branch clerk's initial
"AV" appear "HV" in the alleged duplicate original copy of the record. In addition, numeral "5" was
written with a rounded stroke instead of a sharp one. Clearly, petitioner failed to discharge the required
burden of proof. Hence, petitioner's assertion that he had filed a record on appeal is not worthy of
belief.
As regards petitioner's prayer that the Court reconsider its resolution of October 13, 1995 absolving
the branch clerk of court of charges of wrongdoing, suffice it to state here that no ground exists to
impute bad faith on the part of the branch clerk. Good faith is presumed and the complainant has the
burden of proving any wrongdoing.[10] Petitioner simply failed to prove that the branch clerk either
suppressed the record on appeal allegedly filed by petitioner did not file the said record. The Court
cannot find the branch clerk guilty of any wrongdoing in certifying that petitioner failed to file a record
on appeal in the trial court in the face of petitioner's failure to adduce convincing proof that such a
record was in fact filed therein.
Also for consideration are two (2) manifestations and motions for clarification filed by the Land Bank of
the Philippines (LBP). In its Manifestation/Motion dated May 20, 1996, LBP alleges that on or about
March 24, 1995, petitioner's deposit accounts in LBP were garnished by Sheriff Carmelo Cachero in
favor of private respondents pursuant to the writ of execution issued by RTC Branch 31, Manila acting
as the liquidation court; that on April 10, 1995, it received from petitioner a copy of the April 7, 1995
order of this Court directing the parties to maintain the status quo in the case; that on November 20,
1995, the Court issued another resolution directing the parties to maintain the status quo until further
orders; and that on April 1, 1996, it received as request from the petitioner to transfer the garnished
funds to a different account maintained by petitioner in another branch of LBP. LBP seeks clarification
whether or not the garnishment of petitioner's deposit accounts on March 24, 1995 is null and void
considering the status quo orders issued by the Court. It further inquires whether or not it may
acquiesce to petitioner's request to transfer the garnished funds to petitioner's other account in
another branch of LBP.[11] In its Manifestation dated October 7, 1996, on the other hand, LBP alleges
that on September 9, 1996, it received from Sheriff Adolfo Garcia a notice of garnishment over the
same deposit accounts of petitioner implementing the writ of execution issued also by the RTC, Branch
31, Manila, but for another claimant, the Bureau of Internal Revenue (BIR); that on September 25,
1996, it wrote Sheriff Garcia informing him that the accounts sought to be garnished were already
garnished pursuant to the processes of the same court for another claimant (herein private
respondents); that on September 27, 1996, it received a letter from petitioner urging it to effect the
immediate release of the garnished funds to the BIR and that on October 2, 1996, it received from
Sheriff Garcia the order to deliver to him the garnished amount ofP179,971,860.13. LBP manifests that
it is holding in abeyance action on the order to Sheriff Garcia and the letter of petitioner until the
incidents in this case are finally resolved by this Court. [12]
These are matters largely relating to the execution of the decision of the trial court. As far as this Court
is concerned, its decision is now final and it no longer has any jurisdiction to pass upon these incidents,
not to mention the fact that the manifestation filed by LBP are in the nature of consultation by one not
a party to this case.

WHEREFORE, the Court RESOLVED to DENY petitioner's Omnibus Motion for lack of merit. The
manifestations and motions dated May 20, 1996 and October 7, 1996 by the Land Bank of the
Philippines are NOTED.
SO ORDERED.
Regalado, (Chairman), Melo, Puno, and Martinez, JJ., concur.

As amended by E.O. No. 289, July 25, 1987; now, Sec. 30 of the New Central Bank Act, R.A. No. 7653,
June 14, 1993.
[2]
Rollo, pp. 538-540.
[3]
Id., pp. 555-559.
[4]
Summa Insurance Corp. v. Court of Appeals, 253 SCRA 641 (1996).
[5]
Trans-Pacific Supplies, Inc. v. Court of Appeals, 235 SCRA 494 (1994).
[6]
Sadhwani v. Court of appeals, G.R. No. 128119, October 17, 1997; Javier v. Court of Appeals, 231
SCRA 498 (1994).
[7]
Rollo, p. 558.
[8]
Id., p. 502; Cover Page of the alleged duplicate original of the record on appeal, Annex E, Reply.
[9]
Id, p. 539.
[10]
Bernardino v. Ignacio, 253 SCRA 641 (1996); Santiago v. Court of Appeals, 248 SCRA 336 (1995).
[11]
G.R. No. 109373, Rollo, p. 534.
[12]
G.R. No. 112991, Rollo, pp. 475-477.
Republic of the Philippines
[1]

Supreme Court
Manila
THIRD DIVISION

ALAN JOSEPH A. SHEKER,

G.R. No. 157912

Petitioner,
Present:

YNARES-SANTIAGO, J.,
- versus -

Chairperson,
AUSTRIA-MARTINEZ,
CHICO-NAZARIO,
NACHURA, and

ESTATE OF ALICE O. SHEKER,

REYES, JJ.

VICTORIA S. MEDINAAdministratrix,

Promulgated:

Respondent.

December 13, 2007

x------------------------------------------------x
DECISION

AUSTRIA-MARTINEZ, J.:
This resolves the Petition for Review on Certiorari seeking the reversal of the Order[1] of
the Regional Trial Court of Iligan City, Branch 6 (RTC) dated January 15, 2003 and its Omnibus Order
dated April 9, 2003.

The undisputed facts are as follows.

The RTC admitted to probate the holographic will of Alice O. Sheker and thereafter issued an order for
all the creditors to file their respective claims against the estate. In compliance therewith, petitioner
filed on October 7, 2002 a contingent claim for agent's commission due him amounting to
approximately P206,250.00 in the event of the sale of certain parcels of land belonging to the estate,
and the amount of P275,000.00, as reimbursement for expenses incurred and/or to be incurred by
petitioner in the course of negotiating the sale of said realties.

The executrix of the Estate of Alice O. Sheker (respondent) moved for the dismissal of said money
claim against the estate on the grounds that (1) the requisite docket fee, as prescribed in Section 7(a),
Rule 141 of the Rules of Court, had not been paid; (2) petitioner failed to attach a certification against
non-forum shopping; and (3) petitioner failed to attach a written explanation why the money claim was
not filed and served personally.

On January 15, 2003, the RTC issued the assailed Order dismissing without prejudice the money claim
based on the grounds advanced by respondent. Petitioner's motion for reconsideration was denied per
Omnibus Order dated April 9, 2003.

Petitioner then filed the present petition for review on certiorari, raising the following questions:

(a) must a contingent claim filed in the probate proceeding contain a certification against non-forum
shopping, failing which such claim should be dismissed?

(b) must a contingent claim filed against an estate in a probate proceeding be dismissed for failing to
pay the docket fees at the time of its filing thereat?

(c) must a contingent claim filed in a probate proceeding be dismissed because of its failure to contain
a written explanation on the service and filing by registered mail? [2]

Petitioner maintains that the RTC erred in strictly applying to a probate proceeding the rules requiring a
certification of non-forum shopping, a written explanation for non-personal filing, and the payment of

docket fees upon filing of the claim. He insists that Section 2, Rule 72 of the Rules of Court provides
that rules in ordinary actions are applicable to special proceedings only in a suppletory manner.

The Court gave due course to the petition for review on certiorari although directly filed with this Court,
pursuant to Section 2(c), Rule 41 of the Rules of Court. [3]

The petition is imbued with merit.

However, it must be emphasized that petitioner's contention that rules in ordinary actions are only
supplementary to rules in special proceedings is not entirely correct.

Section 2, Rule 72, Part II of the same Rules of Court provides:

Sec. 2. Applicability of rules of Civil Actions. - In the absence of special provisions, the rules
provided for in ordinary actions shall be, as far as practicable, applicable in special proceedings.

Stated differently, special provisions under Part II of the Rules of Court govern special proceedings; but
in the absence of special provisions, the rules provided for in Part I of the Rules governing ordinary civil
actions shall be applicable to special proceedings, as far as practicable.

The word practicable is defined as: possible to practice or perform; capable of being put into practice,
done or accomplished.[4] This means that in the absence of special provisions, rules in ordinary actions
may be applied in special proceedings as much as possible and where doing so would not pose an
obstacle to said proceedings. Nowhere in the Rules of Court does it categorically say that rules in
ordinary actions are inapplicable or merely suppletory to special proceedings. Provisions of the Rules of
Court requiring a certification of non-forum shopping for complaints and initiatory pleadings, a
written explanation for non-personal service and filing, and the payment of filing fees for money claims
against an estate would not in any way obstruct probate proceedings, thus, they are applicable to
special proceedings such as the settlement of the estate of a deceased person as in the present case.

Thus, the principal question in the present case is: did the RTC err in dismissing petitioner's contingent
money claim against respondent estate for failure of petitioner to attach to his motion a certification
against non-forum shopping?

The Court rules in the affirmative.

The certification of non-forum shopping is required only for complaints and other initiatory
pleadings. The RTC erred in ruling that a contingent money claim against the estate of a decedent is
an initiatory pleading. In the present case, the whole probate proceeding was initiated upon the
filing of the petition for allowance of the decedent's will. Under Sections 1 and 5, Rule 86 of the
Rules of Court, after granting letters of testamentary or of administration, all persons having money
claims against the decedent are mandated to file or notify the court and the estate administrator of
their respective money claims; otherwise, they would be barred, subject to certain exceptions. [5]

Such being the case, a money claim against an estate is more akin to a motion for creditors' claims to
be recognized and taken into consideration in the proper disposition of the properties of the
estate. In Arquiza v. Court of Appeals,[6] the Court explained thus:

x x x The office of a motion is not to initiate new litigation, but to bring a material but
incidental matter arising in the progress of the case in which the motion is filed. A motion
is not an independent right or remedy, but is confined to incidental matters in the progress of a
cause. It relates to some question that is collateral to the main object of the action and is
connected with and dependent upon the principal remedy.[7] (Emphasis supplied)

A money claim is only an incidental matter in the main action for the settlement of the decedent's
estate; more so if the claim is contingent since the claimant cannot even institute a separate action for
a mere contingent claim. Hence, herein petitioner's contingent money claim, not being an
initiatory pleading, does not require a certification against non-forum shopping.

On the issue of filing fees, the Court ruled in Pascual v. Court of Appeals,[8] that the trial court has
jurisdiction to act on a money claim (attorney's fees) against an estate for services rendered by a
lawyer to theadministratrix to assist her in fulfilling her duties to the estate even without payment of
separate docket fees because the filing fees shall constitute a lien on the judgment pursuant to Section
2, Rule 141 of the Rules of Court, or the trial court may order the payment of such filing fees within a
reasonable time.[9] After all, the trial court had already assumed jurisdiction over the action for
settlement of the estate. Clearly, therefore, non-payment of filing fees for a money claim against the
estate is not one of the grounds for dismissing a money claim against the estate.

With regard to the requirement of a written explanation, Maceda v. De

Guzman Vda. de Macatangay[10] is squarely in point. Therein, the Court held thus:

In Solar Team Entertainment, Inc. v. Ricafort, this Court, passing upon Section 11 of Rule 13 of the
Rules of Court, held that a court has the discretion to consider a pleading or paper as not filed if said
rule is not complied with.
Personal service and filing are preferred for obvious reasons. Plainly, such should expedite action or
resolution on a pleading, motion or other paper; and conversely, minimize, if not eliminate, delays
likely to be incurred if service or filing is done by mail, considering the inefficiency of the postal
service. Likewise, personal service will do away with the practice of some lawyers who, wanting to
appear clever, resort to the following less than ethical practices: (1) serving or filing pleadings by mail

to catch opposing counsel off-guard, thus leaving the latter with little or no time to prepare, for
instance, responsive pleadings or an opposition; or (2) upon receiving notice from the post office that
the registered mail containing the pleading of or other paper from the adverse party may be claimed,
unduly procrastinating before claiming the parcel, or, worse, not claiming it at all, thereby causing
undue delay in the disposition of such pleading or other papers.

If only to underscore the mandatory nature of this innovation to our set of adjective rules requiring
personal service whenever practicable, Section 11 of Rule 13 then gives the court the discretion to
consider a pleading or paper as not filed if the other modes of service or filing were not
resorted to and no written explanation was made as to why personal service was not done
in the first place. The exercise of discretion must, necessarily consider the practicability of
personal service, for Section 11 itself begins with the clause whenever practicable.

We thus take this opportunity to clarify that under Section 11, Rule 13 of the 1997 Rules of Civil
Procedure, personal service and filing is the general rule, and resort to other modes of service and
filing, the exception. Henceforth, whenever personal service or filing is practicable, in the light of the
circumstances of time, place and person, personal service or filing is mandatory. Only when personal
service or filing is not practicable may resort to other modes be had, which must then be accompanied
by a written explanation as to why personal service or filing was not practicable to begin with. In
adjudging the plausibility of an explanation, a court shall likewise consider the importance of the
subject matter of the case or the issues involved therein, and the prima facie merit of the pleading
sought to be expunged for violation of Section 11. (Emphasis and italics supplied)

In Musa v. Amor, this Court, on noting the impracticality of personal service, exercised its discretion
and liberally applied Section 11 of Rule 13:

As [Section 11, Rule 13 of the Rules of Court] requires, service and filing of pleadings must be done
personally whenever practicable. The court notes that in the present case, personal service
would not be practicable. Considering the distance between the Court of Appeals
and Donsol, Sorsogon where the petition was posted, clearly, service by registered mail
[sic] would have entailed considerable time, effort and expense. A written explanation why
service was not done personally might have been superfluous. In any case, as the rule is so
worded with the use of may, signifying permissiveness, a violation thereof gives the court
discretion whether or not to consider the paper as not filed. While it is true that procedural
rules are necessary to secure an orderly and speedy administration of justice, rigid
application of Section 11, Rule 13 may be relaxed in this case in the interest of substantial
justice. (Emphasis and italics supplied)

In the case at bar, the address of respondents counsel is Lopez, Quezon, while petitioner
Sonias counsels is Lucena City. Lopez, Quezon is 83 kilometers away from Lucena City. Such distance
makes personal service impracticable. As in Musa v.Amor, a written explanation why service was not
done personally might have been superfluous.

As this Court held in Tan v. Court of Appeals, liberal construction of a rule of procedure has been
allowed where, among other cases, the injustice to the adverse party is not commensurate with the
degree of his thoughtlessness in not complying with the procedure prescribed. [11] (Emphasis supplied)

In the present case, petitioner holds office in Salcedo Village, Makati City, while counsel for respondent
and the RTC which rendered the assailed orders are both in Iligan City. The lower court should have
taken judicial notice of the great distance between said cities and realized that it is indeed not
practicable to serve and file the money claim personally. Thus, following Medina v. Court of Appeals,
[12]
the failure of petitioner to submit a written explanation why service has not been done personally,
may be considered as superfluous and the RTC should have exercised its discretion under Section 11,
Rule 13, not to dismiss the money claim of petitioner, in the interest of substantial justice.

The ruling spirit of the probate law is the speedy settlement of estates of deceased persons for the
benefit of creditors and those entitled to residue by way of inheritance or legacy after the debts and
expenses of administration have been paid.[13] The ultimate purpose for the rule on money claims was
further explained in Union Bank of the Phil. v. Santibaez,[14] thus:

The filing of a money claim against the decedents estate in the probate court is mandatory. As we held
in the vintage case of Py Eng Chong v. Herrera:

x x x This requirement is for the purpose of protecting the estate of the deceased by
informing the executor or administrator of the claims against it, thus enabling him to examine
each claim and to determine whether it is a proper one which should be allowed. The plain and obvious
design of the rule is the speedy settlement of the affairs of the deceased and the early delivery of the
property to the distributees, legatees, or heirs. The law strictly requires the prompt presentation
and disposition of the claims against the decedent's estate in order to settle the affairs of
the estate as soon as possible, pay off its debts and distribute the residue.[15] (Emphasis supplied)

The RTC should have relaxed and liberally construed the procedural rule on the requirement of a
written explanation for non-personal service, again in the interest of substantial justice.

WHEREFORE, the petition is GRANTED. The Orders of the Regional Trial Court of Iligan City, Branch 6
dated January 15, 2003 and April 9, 2003, respectively,
are REVERSED and SET ASIDE. The RegionalTrial Court of Iligan City, Branch 6, is
hereby DIRECTED to give due course and take appropriate action on petitioner's money claim in
accordance with Rule 82 of the Rules of Court.
No pronouncement as to costs.
SO ORDERED

[1]

Penned by Presiding Judge Valerio M. Salazar, rollo, pp. 35 and 40.

[2]

Rollo, pp. 12-13

[3]

RULES OF COURT, Rule 41, Sec. 2(c).

Sec. 2. Modes of appeal.

xxxx
(c) Appeal by certiorari. In all cases where only questions of law are raised or involved, the appeal shall
be to the Supreme Court by petition for review on certiorari in accordance with Rule 45.
[4]

Webster's Third New International Dictionary, p. 1780

[5]

RULES OF COURT, RULE 86, Sec. 5.

Sec. 5. Claims which must be filed under the notice. If not filed, bated; exceptions. All claims for money
against the decedent, arising from contract, express or implied, whether the same be due, not due, or
contingent, all claims for funeral expenses and expenses for the last sickness of the decedent, and
judgment for money against the decedent, must be filed within the time limited in the notice;
otherwise, they are barred forever, except that they may be set forth as counterclaims in any action
that the executor or administrator may bring against the claimants. Where an executor or
administrator commences an action, or prosecutes an action already commenced by the deceased in
his lifetime, the debtor may set forth by answer the claims he has against the decedent, instead of
presenting them independently to the court as herein provided, and mutual claims may be set off
against each other in such action; and if final judgment is rendered in favor of the defendant, the
amount so determined shall be considered the true balance against the estate, as though the claims
had been presented directly before the court in the administration proceedings. Claims not yet due, or
contingent, may be approved at the present value.
[6]

G.R. No. 160479, June 8, 2005, 459 SCRA 753.

[7]

Id. at 762-763.

[8]

G.R. No. 120575, December 16, 1998, 300 SCRA 214.

[9]

Pascual v. Court of Appeals, supra note 8, at 228-229.

[10]

G.R. No. 164947, January 31, 2006, 481 SCRA 415.

[11]

Maceda v. De Guzman Vda. de Macatangay, supra note 10, at 423-425.

[12]

Medina v. Court of Appeals, No. L-34760, September 28, 1973, 53 SCRA 206.

[13]

Medina v. Court of Appeals, supra note 12, at 215.

[14]

G.R. No. 149926, February 23, 2005, 452 SCRA 228.

[15]

Union Bank of the Phil. v. Santibaez, id. at 240-241.

THIRD DIVISION
[G.R. No. 163604. May 6, 2005]
REPUBLIC OF THE PHILIPPINES, petitioner, vs. THE HON. COURT OF APPEALS (Twentieth
Division), HON. PRESIDING JUDGE FORTUNITO L. MADRONA, RTC-BR. 35 and APOLINARIA
MALINAO JOMOC, respondents.

DECISION
CARPIO-MORALES, J.:
In In the Matter of Declaration of Presumptive Death of Absentee Spouse Clemente P. Jomoc, Apolinaria
Malinao Jomoc, petitioner, the Ormoc City, Regional Trial Court, Branch 35, by Order of September 29,
1999,[1] granted the petition on the basis of the Commissioners Report[2] and accordingly declared the
absentee spouse, who had left his petitioner-wife nine years earlier, presumptively dead.
In granting the petition, the trial judge, Judge Fortunito L. Madrona, cited Article 41, par. 2 of the Family
Code. Said article provides that for the purpose of contracting a valid subsequent marriage during the
subsistence of a previous marriage where the prior spouse had been absent for four consecutive years,
the spouse present must institute summary proceedings for the declaration of presumptive death of
the absentee spouse, without prejudice to the effect of the reappearance of the absent spouse.
The Republic, through the Office of the Solicitor General, sought to appeal the trial courts order by
filing a Notice of Appeal.[3]
By Order of November 22, 1999s,[4] the trial court, noting that no record of appeal was filed and served
as required by and pursuant to Sec. 2(a), Rule 41 of the 1997 Rules of Civil Procedure, the present case
being a special proceeding, disapproved the Notice of Appeal.
The Republics Motion for Reconsideration of the trial courts order of disapproval having been denied
by Order of January 13, 2000,[5] it filed a Petition for Certiorari[6] before the Court of Appeals, it
contending that the declaration of presumptive death of a person under Article 41 of the Family Code
is not a special proceeding or a case of multiple or separate appeals requiring a record on appeal.
By Decision of May 5, 2004,[7] the Court of Appeals denied the Republics petition on procedural and
substantive grounds in this wise:
At the outset, it must be stressed that the petition is not sufficient in form. It failed to attach to its
petition a certified true copy of the assailed Order dated January 13, 2000 [denying its Motion for
Reconsideration of the November 22, 1999 Order disapproving its Notice of Appeal]. Moreover, the
petition questioned the [trial courts] Order dated August 15, 1999, which declared Clemente Jomoc
presumptively dead, likewise for having been issued with grave abuse of discretion amounting to lack
of jurisdiction, yet, not even a copy could be found in the records. On this score alone, the petition
should have been dismissed outright in accordance with Sec. 3, Rule 46 of the Rules of Court.
However, despite the procedural lapses, the Court resolves to delve deeper into the substantive issue
of the validity/nullity of the assailed order.
The principal issue in this case is whether a petition for declaration of the presumptive
death of a person is in the nature of a special proceeding. If it is, the period to appeal is 30
days and the party appealing must, in addition to a notice of appeal, file with the trial court a record on
appeal to perfect its appeal. Otherwise, if the petition is an ordinary action, the period to appeal is 15
days from notice or decision or final order appealed from and the appeal is perfected by filing a notice
of appeal (Section 3, Rule 41, Rules of Court).
As defined in Section 3(a), Rule 1 of the Rules of Court, a civil action is one by which a party sues
another for the enforcement or protection of a right, or the prevention of redress of a wrong while a
special proceeding under Section 3(c) of the same rule is defined as a remedy by which a party seeks
to establish a status, a right or a particular fact (Heirs of Yaptinchay, et al. v. Del Rosario, et al., G.R.
No. 124320, March 2, 1999).

Considering the aforementioned distinction, this Court finds that the instant petition is in the
nature of a special proceeding and not an ordinary action. The petition merely seeks for a
declaration by the trial court of the presumptive death of absentee spouse Clemente Jomoc. It does not
seek the enforcement or protection of a right or the prevention or redress of a wrong. Neither does it
involve a demand of right or a cause of action that can be enforced against any person.
On the basis of the foregoing discussion, the subject Order dated January 13, 2000 denying OSGs
Motion for Reconsideration of the Order dated November 22, 1999 disapproving its Notice of Appeal
was correctly issued. The instant petition, being in the nature of a special
proceeding, OSG should have filed, in addition to its Notice of Appeal, a record on appeal in
accordance with Section 19 of the Interim Rules and Guidelines to Implement BP Blg. 129 and Section
2(a), Rule 41 of the Rules of Court . . . (Emphasis and underscoring supplied)
The Republic (petitioner) insists that the declaration of presumptive death under Article 41 of the
Family Code is not a special proceeding involving multiple or separate appeals where a record on
appeal shall be filed and served in like manner.
Petitioner cites Rule 109 of the Revised Rules of Court which enumerates the cases wherein multiple
appeals are allowed and a record on appeal is required for an appeal to be perfected. The petition for
the declaration of presumptive death of an absent spouse not being included in the enumeration,
petitioner contends that a mere notice of appeal suffices.
By Resolution of December 15, 2004, [8] this Court, noting that copy of the September 27, 2004
Resolution[9] requiring respondent to file her comment on the petition was returned unserved with
postmasters notation Party refused, Resolved to consider that copy deemed served upon her.
The pertinent provisions on the General Provisions on Special Proceedings, Part II of the Revised
Rules of Court entitled SPECIAL PROCEEDINGS, read:
RULE 72
SUBJECT MATTER AND APPLICABILITY
OF GENERAL RULES
Section 1. Subject matter of special proceedings. Rules of special proceedings are provided for in the
following:
(a) Settlement of estate of deceased persons;
(b) Escheat;
(c) Guardianship and custody of children;
(d) Trustees;
(e) Adoption;
(f) Rescission and revocation of adoption;
(g) Hospitalization of insane persons;
(h) Habeas corpus;
(i) Change of name;
(j) Voluntary dissolution of corporations;
(k) Judicial approval of voluntary recognition of minor natural children;
(l) Constitution of family home;
(m) Declaration of absence and death;

(n) Cancellation or correction of entries in the civil registry.

Sec. 2. Applicability of rules of civil actions. In the absence of special provisions, the rules provided for
in ordinary actions shall be, as far as practicable, applicable in special proceedings. (Underscoring
supplied)
The pertinent provision of the Civil Code on presumption of death provides:
Art. 390. After an absence of seven years, it being unknown whether or not the absentee still lives, he
shall be presumed dead for all purposes, except for those of succession.
x x x (Emphasis and underscoring supplied)
Upon the other hand, Article 41 of the Family Code, upon which the trial court anchored its grant of the
petition for the declaration of presumptive death of the absent spouse, provides:
Art. 41. A marriage contracted by any person during the subsistence of a previous marriage shall be
null and void, unless before the celebration of the subsequent marriage, the prior spouses had been
absent for four consecutive years and the spouse present had a well-founded belief that the absent
spouses was already dead. In case of disappearance where there is danger of death under the
circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of only two years
shall be sufficient.
For the purpose pf contracting the subsequent marriage under the preceding paragraph, the spouses
present must institute a summary proceeding as provided in this Code for the declaration of
presumptive death of the absentee, without prejudice to the effect of a reappearance of the absent
spouse. (Emphasis and underscoring supplied)
Rule 41, Section 2 of the Revised Rules of Court, on Modes of Appeal, invoked by the trial court in
disapproving petitioners Notice of Appeal, provides:
Sec. 2. Modes of appeal. (a) Ordinary appeal. - The appeal to the Court of Appeals in cases decided by the Regional Trial Court
in the exercise of its original jurisdiction shall be taken by filing a notice of appeal with the court which
rendered the judgment or final order appealed from and serving a copy thereof upon the adverse
party. No record on appeal shall be required except in special proceedings and other cases of
multiple or separate appeals where the law or these Rules so require. In such cases, the
record on appeal shall be filed and served in like manner. (Emphasis and underscoring supplied)
xxx
By the trial courts citation of Article 41 of the Family Code, it is gathered that the petition of Apolinaria
Jomoc to have her absent spouse declared presumptively dead had for its purpose her desire to
contract a valid subsequent marriage. Ergo, the petition for that purpose is a summary proceeding,
following above-quoted Art. 41, paragraph 2 of the Family Code.
Since Title XI of the Family Code, entitled SUMMARY JUDICIAL PROCEEDING IN THE FAMILY LAW,
contains the following provision, inter alia:
xxx
Art. 238. Unless modified by the Supreme Court, the procedural rules in this Title shall apply in all
cases provided for in this Codes requiring summary court proceedings. Such cases shall be
decided in an expeditious manner without regard to technical rules. (Emphasis and
underscoring supplied)

x x x,
there is no doubt that the petition of Apolinaria Jomoc required, and is, therefore, a summary
proceeding under the Family Code, not a special proceeding under the Revised Rules of Court appeal
for which calls for the filing of a Record on Appeal. It being a summary ordinary proceeding, the filing
of a Notice of Appeal from the trial courts order sufficed.
That the Family Code provision on repeal, Art. 254, provides as follows:
Art. 254. Titles III, IV, V, VI, VII, VIII, IX, XI and XV of Book I of Republic Act No. 386, otherwise known as
the Civil Code of the Philippines, as amended, and Articles 17, 18, 19, 27, 28, 29, 30, 31, 39, 40, 41
and 42 of Presidential Decree No. 603, otherwise known as the Child and Youth Welfare Code, as
amended, and all laws, decrees, executive orders, proclamations rules and regulations, or parts
thereof, inconsistent therewith are hereby repealed, (Emphasis and underscoring supplied),
seals the case in petitioners favor.
Finally, on the alleged procedural flaw in petitioners petition before the appellate court. Petitioners
failure to attach to his petition before the appellate court a copy of the trial courts order denying its
motion for reconsideration of the disapproval of its Notice of Appeal is not necessarily fatal, for the
rules of procedure are not to be applied in a technical sense. Given the issue raised before it by
petitioner, what the appellate court should have done was to direct petitioner to comply with the rule.
As for petitioners failure to submit copy of the trial courts order granting the petition for declaration of
presumptive death, contrary to the appellate courts observation that petitioner was also assailing it,
petitioners 8-page petition[10] filed in said court does not so reflect, it merely having assailed the order
disapproving the Notice of Appeal.
WHEREFORE, the assailed May 5, 2004 Decision of the Court of Appeals is hereby REVERSED and SET
ASIDE. Let the case be REMANDED to it for appropriate action in light of the foregoing discussion.
SO ORDERED.
Panganiban, (Chairman), Sandoval-Gutierrez, Corona, and Garcia, JJ., concur.
[1]

Annex F to Petition, Rollo at 47-50.

[2]

Annex E to Petition, Id. at 44-45.

[3]

Annex A to Petition for Certiorari, CA Rollo at 11.

[4]

Annex B to Petition, Rollo at 41.

[5]

Annex C to Petition, Id. at 42.

[6]

CA Rollo at 1-8.

[7]

Id. at 51-54.

[8]

Rollo at 100.

[9]

Id. at 97.

[10]

Vide note 6.

2. SETTLEMENT OF DECEDENTS ESTATES

2.1 Non-probate modes of settlement

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-33172 October 18, 1979
ERNESTO CEASE, CECILIA CEASE, MARION CEASE, TERESA CEASE-LACEBAL and the F.L.
CEASE PLANTATION CO., INC. as Trustee of properties of the defunct TIAONG MILLING &
PLANTATION CO.,petitioners,
vs.
HONORABLE COURT OF APPEALS, (Special Seventh Division), HON. MANOLO L. MADDELA,
Presiding Judge, Court of First Instance of Quezon, BENJAMIN CEASE and FLORENCE
CEASE, respondents.
GUERRERO, J:
Appeal by certiorari from the decision of the Court of Appeals in CA-G.R. No. 45474, entitled "Ernesto
Cease, et al. vs. Hon. Manolo L. Maddela, Judge of the Court of First Instance of Quezon, et al." 1 which
dismissed the petition for certiorari, mandamus, and prohibition instituted by the petitioners against
the respondent judge and the private respondents.
The antecedents of the case, as found by the appellate court, are as follows:
IT RESULTING: That the antecedents are not difficult to understand; sometime in June 1908, one Forrest
L. Cease common predecessor in interest of the parties together with five (5) other American citizens
organized the Tiaong Milling and Plantation Company and in the course of its corporate existence the
company acquired various properties but at the same time all the other original incorporators were
bought out by Forrest L. Cease together with his children namely Ernest, Cecilia, Teresita, Benjamin,
Florence and one Bonifacia Tirante also considered a member of the family; the charter of the
company lapsed in June 1958; but whether there were steps to liquidate it, the record is silent; on 13
August 1959, Forrest L. Cease died and by extrajudicial partition of his shares, among the children, this
was disposed of on 19 October 1959; it was here where the trouble among them came to arise
because it would appear that Benjamin and Florence wanted an actual division while the other children
wanted reincorporation; and proceeding on that, these other children Ernesto, Teresita and Cecilia and
aforementioned other stockholder Bonifacia Tirante proceeded to incorporate themselves into the F.L.
Cease Plantation Company and registered it with the Securities and Exchange Commission on 9
December, 1959; apparently in view of that, Benjamin and Florence for their part initiated a Special
Proceeding No. 3893 of the Court of First Instance of Tayabas for the settlement of the estate of Forest
L. Cease on 21 April, 1960 and one month afterwards on 19 May 1960 they filed Civil Case No. 6326
against Ernesto, Teresita and Cecilia Cease together with Bonifacia Tirante asking that the Tiaong
Milling and Plantation Corporation be declared Identical to F.L. Cease and that its properties be divided
among his children as his intestate heirs; this Civil Case was resisted by aforestated defendants and
notwithstanding efforts of the plaintiffs to have the properties placed under receivership, they were not
able to succeed because defendants filed a bond to remain as they have remained in possession; after
that and already, during the pendency of Civil Case No. 6326 specifically on 21 May, 1961 apparently
on the eve of the expiry of the three (3) year period provided by the law for the liquidation of
corporations, the board of liquidators of Tiaong Milling executed an assignment and conveyance of
properties and trust agreement in favor of F.L. Cease Plantation Co. Inc. as trustee of the Tiaong Milling
and Plantation Co. so Chat upon motion of the plaintiffs trial Judge ordered that this alleged trustee be
also included as party defendant; now this being the situation, it will be remembered that there were
thus two (2) proceedings pending in the Court of First Instance of Quezon namely Civil Case No. 6326
and Special Proceeding No. 3893 but both of these were assigned to the Honorable Respondent Judge
Manolo L. Maddela p. 43 and the case was finally heard and submitted upon stipulation of facts pp, 34110, rollo; and trial Judge by decision dated 27 December 1969 held for the plaintiffs Benjamin and
Florence, the decision containing the following dispositive part:

VIEWED IN THE LIGHT OF ALL THE FOREGOING, judgment is hereby rendered in favor of plaintiffs and
against the defendants declaring that:
1) The assets or properties of the defunct Tiaong Milling and Plantation Company now appearing under
the name of F.L. Cease Plantation Company as Trustee, is the estate also of the deceased Forrest L.
Cease and ordered divided, share and share alike, among his six children the plaintiffs and the
defendants in accordance with Rule 69, Rules of Court;
2) The Resolution to Sell dated October 12, 1959 and the Transfer and Conveyance with Trust
Agreement is hereby set aside as improper and illegal for the purposes and effect that it was intended
and, therefore, null and void;
3) That F.L. Cease Plantation Company is removed as 'Trustee for interest against the estate and
essential to the protection of plaintiffs' rights and is hereby ordered to deliver and convey all the
properties and assets of the defunct Tiaong Milling now under its name, custody and control to
whomsoever be appointed as Receiver - disqualifying and of the parties herein - the latter to act
accordingly upon proper assumption of office; and
4) Special Proceedings No. 3893 for administration is terminated and dismissed; the instant case to
proceed but on issues of damages only and for such action inherently essential for partition.
SO ORDERED.
Lucena City, December 27, 1969., pp. 122-a-123, rollo.
upon receipt of that, defendants there filled a notice of appeal p. 129, rollo together with an appeal
bond and a record on appeal but the plaintiffs moved to dismiss the appeal on the ground that the
judgment was in fact interlocutory and not appealable p. 168 rollo and this position of defendants was
sustained by trial Judge, His Honor ruling that
IN VIEW OF THE FOREGOING, the appeal interposed by plaintiffs is hereby dismissed as premature and
the Record on Appeal is necessarily disapproved as improper at this stage of the proceedings.
SO ORDERED.
Lucena City, April 27, 1970.
and so it was said defendants brought the matter first to the Supreme Court, on mandamus on 20 May,
1970 to compel the appeal and certiorari and prohibition to annul the order of 27 April, 1970 on the
ground that the decision was "patently erroneous" p. 16, rollo; but the Supreme Court remanded the
case to this Court of Appeals by resolution of 27 May 1970, p. 173, and this Court of Appeals on 1 July
1970 p. 175 dismissed the petition so far as the mandamus was concerned taking the view that the
decision sought to be appealed dated 27 December, 1969 was interlocutory and not appealable but on
motion for reconsideration of petitioners and since there was possible merit so far as its prayer for
certiorari and prohibition was concerned, by resolution of the Court on 19 August, 1970, p. 232, the
petition was permitted to go ahead in that capacity; and it is the position of petitioners that the
decision of 27 December, 1969 as well as the order of 27 April, 1970 suffered of certain fatal defects,
which respondents deny and on their part raise the preliminary point that this Court of Appeals has no
authority to give relief to petitioners because not
in aid of its appellate jurisdiction,
and that the questions presented cannot be raised for the first time before this Court of Appeals;

Respondent Court of Appeals in its decision promulgated December 9, 1970 dismissed the petition with
costs against petitioners, hence the present petition to this Court on the following assignment of
errors:
THE COURT OF APPEALS ERRED I. IN SANCTIONING THE WRONGFUL EXERCISE OF JURISDICTION BEYOND THE LIMITS OF AUTHORITY
CONFERRED BY LAW UPON THE LOWER COURT, WHEN IT PROCEEDED TO HEAR, ADJUDGE AND
ADJUDICATE (a) Special Proceedings No. 3893 for the settlement of the Estate of Forrest L. Cease, simultaneously
and concurrently with (b) Civil Case No. 6326, wherein the lower Court ordered Partition under Rule 69, Rules of Court THE ISSUE OF LEGAL OWNERSHIP OF THE PROPERTIES COMMONLY INVOLVED IN BOTH ACTIONS
HAVING BEEN RAISED AT THE OUTSET BY THE TIAONG MILLING AND PLANTATION COMPANY, AS THE
REGISTERED OWNER OF SUCH PROPERTIES UNDER ACT 496.
II. IN AFFIRMING - UNSUPPORTED BY ANY EVIDENCE WHATSOEVER NOR CITATION OF ANY LAW TO
JUSTIFY - THE UNWARRANTED CONCLUSION THAT SUBJECT PROPERTIES, FOUND BY THE LOWER COURT
AND THE COURT OF APPEALS AS ACTUALLY REGISTERED IN THE NAME OF PETITIONER CORPORATION
AND/OR ITS PREDECESSOR IN INTEREST, THE TIAONG MILLING AND PLANTATION COMPANY, DURING
ALL THE 50 YEARS OF ITS CORPORATE EXISTENCE "ARE ALSO PROPERTIES OF THE ESTATE OF FOREST
L. CEASE."
III. IN AFFIRMING THE ARBITRARY CONCLUSION OF THE LOWER COURT THAT ITS DECISION OF
DECEMBER 27,1969 IS AN "INTERLUCUTORY DECISION." IN DISMISSED NG THE PETITION FOR WRIT OF
MANDAMUS, AND IN AFFIRMING THE MANIFESTLY UNJUST JUDGMENT RENDERED WHICH CONTRADICTS
THE FINDINGS OF ULTIMATE FACTS THEREIN CONTAINED.
During the period that ensued after the filing in this Court of the respective briefs and the subsequent
submission of the case for decision, some incidents had transpired, the summary of which may be
stated as follows:
1. Separate from this present appeal, petitioners filed a petition for certiorari and prohibition in this
Court, docketed as G.R. No. L-35629 (Ernesto Cease, et al. vs. Hon. Manolo L. Maddela, et al.) which
challenged the order of respondent judge dated September 27, 1972 appointing his Branch Clerk of
Court, Mr. Eleno M. Joyas, as receiver of the properties subject of the appealed civil case, which order,
petitioners saw as a virtual execution of the lower court's judgment (p. 92, rollo). In Our resolution of
November 13, 1972, issued in G.R. No. L-35629, the petition was denied since respondent judge
merely appointed an auxilliary receiver for the preservation of the properties as well as for the
protection of the interests of all parties in Civil Case No. 6326; but at the same time, We expressed Our
displeasure in the appointment of the branch clerk of court or any other court personnel for that
matter as receiver. (p. 102, rollo).
2. Meanwhile, sensing that the appointed receiver was making some attempts to take possession of
the properties, petitioners filed in this present appeal an urgent petition to restrain proceedings in the
lower court. We resolved the petition on January 29, 1975 by issuing a corresponding temporary
restraining order enjoining the court a quo from implementing its decision of December 27, 1969, more
particularly, the taking over by a receiver of the properties subject of the litigation, and private
respondents Benjamin and Florence Cease from proceeding or taking any action on the matter until
further orders from this Court (pp. 99-100, rollo). Private respondents filed a motion for reconsideration
of Our resolution of January 29, 1975. After weighing the arguments of the parties and taking note of
Our resolution in G.R. No. L-35629 which upheld the appointment of a receiver, We issued another

resolution dated April 11, 1975 lifting effective immediately Our previous temporary restraining order
which enforced the earlier resolution of January 29, 1975 (pp. 140-141, rollo).
3. On February 6, 1976, private respondents filed an urgent petition to restrain proceedings below in
view of the precipitate replacement of the court appointed receiver Mayor Francisco Escueta (vice Mr.
Eleno M. Joyas) and the appointment of Mr. Guillermo Lagrosa on the eve of respondent Judge
Maddela's retirement (p. 166, rollo). The urgent petition was denied in Our resolution of February 18,
1976 (p. 176, rollo).
4. Several attempts at a compromise agreement failed to materialize. A Tentative Compromise
Agreement dated July 30, 1975 was presented to the Court on August 6, 1976 for the signature of the
parties, but respondents "unceremoniously" repudiated the same by leaving the courtroom without the
permission of the court (Court of First Instance of Quezon, Branch 11) as a result of which respondents
and their counsel were cited for contempt (p. 195, 197, rollo) that respondents' reason for the
repudiation appears to be petitioners' failure to render an audited account of their administration
covering the period from May 31, 1961 up to January 29, 1974, plus the inclusion of a provision on
waiver and relinquishment by respondents of whatever rights that may have accrued to their favor by
virtue of the lower court's decision and the affirmative decision of the appellate court.
We go now to the alleged errors committed by the respondent Court of Appeals.
As can be gleaned from petitioners' brief and the petition itself, two contentions underlie the first
assigned error. First, petitioners argue that there was an irregular and arbitrarte termination and
dismissal of the special proceedings for judicial administration simultaneously ordered in the lower
court . s decision in Civil Case No. 6326 adjudicating the partition of the estate, without categorically,
reasoning the opposition to the petition for administration Second, that the issue of ownership had
been raised in the lower court when Tiaong Milling asserted title over the properties registered in its
corporate name adverse to Forrest L. Cease or his estate, and that the said issue was erroneously
disposed of by the trial court in the partition proceedings when it concluded that the assets or
properties of the defunct company is also the estate of the deceased proprietor.
The propriety of the dismissal and termination of the special proceedings for judicial administration
must be affirmed in spite of its rendition in another related case in view of the established
jurisprudence which favors partition when judicial administration become, unnecessary. As observed
by the Court of Appeals, the dismissal at first glance is wrong, for the reason that what was actually
heard was Civil Case No. 6326. The technical consistency, however, it is far less importance than the
reason behind the doctrinal rule against placing an estate under administration. Judicial rulings
consistently hold the view that where partition is possible, either judicial or extrajudicial, the estate
should not be burdened with an administration proceeding without good and compelling reason. When
the estate has no creditors or pending obligations to be paid, the beneficiaries in interest are not
bound to submit the property to judicial administration which is always long and costly, or to apply for
the appointment of an administrator by the court, especially when judicial administration is
unnecessary and superfluous. Thus When a person dies without leaving pending obligations to be paid, his heirs, whether of age or not,
are bound to submit the property to a judicial administration, which is always long and costly, or to
apply for the appointment of an administrator by the court. It has been uniformly held that in such
case the judicial administration and the appointment of an administrator are superfluous and
unnecessary proceedings (Ilustre vs. Alaras Frondosa, 17 Phil., 321; Malahacan vs. Ignacio, 19 Phil,
434; Bondad vs. Bondad, 34 Phil., 232; Baldemor vs. Malangyaon, 34 Phil., 367; Fule vs. Fule, 46 Phil.,
317). Syllabus, Intestate estate of the deceased Luz Garcia. Pablo G. Utulo vs. Leona Pasion Viuda de
Garcia, 66 Phil. 302.
Where the estate has no debts, recourse may be had to an administration proceeding only if the heirs
have good reasons for not resorting to an action for partition. Where partition is possible, either in or

out of court, the estate should not be burdened with an administration proceeding without good and
compelling reasons. (Intestate Estate of Mercado vs. Magtibay, 96 Phil. 383)
In the records of this case, We find no indication of any indebtedness of the estate. No creditor has
come up to charge the estate within the two-year period after the death of Forrest L. Cease, hence, the
presumption under Section 1, Rule 74 that the estate is free from creditors must apply. Neither has the
status of the parties as legal heirs, much less that of respondents, been raised as an issue. Besides,
extant in the records is the stipulation of the parties to submit the pleadings and contents of the
administration proceedings for the cognizance of the trial judge in adjudicating the civil case for
partition (Respondents' Brief, p, 20, rollo). As respondents observe, the parties in both cases are the
same, so are the properties involved; that actual division is the primary objective in both actions; the
theory and defense of the respective parties are likewise common; and that both cases have been
assigned to the same respondent judge. We feel that the unifying effect of the foregoing circumstances
invites the wholesome exception to the structures of procedural rule, thus allowing, instead, room for
judicial flexibility. Respondent judge's dismissal of the administration proceedings then, is a judicious
move, appreciable in today's need for effective and speedy administration of justice. There being
ample reason to support the dismissal of the special proceedings in this appealed case, We cannot see
in the records any compelling reason why it may not be dismissed just the same even if considered in
a separate action. This is inevitably certain specially when the subject property has already been found
appropriate for partition, thus reducing the petition for administration to a mere unnecessary
solicitation.
The second point raised by petitioners in their first assigned error is equally untenable. In effect,
petitioners argue that the action for partition should not have prospered in view of the repudiation of
the co-ownership by Tiaong Milling and Plantation Company when, as early in the trial court, it already
asserted ownership and corporate title over the properties adverse to the right of ownership of Forrest
L. Cease or his estate. We are not unmindful of the doctrine relied upon by petitioners in Rodriguez vs.
Ravilan, 17 Phil. 63 wherein this Court held that in an action for partition, it is assumed that the parties
by whom it is prosecuted are all co-owners or co-proprietors of the property to be divided, and that the
question of common ownership is not to be argued, not the fact as to whether the intended parties are
or are not the owners of the property in question, but only as to how and in what manner and
proportion the said property of common ownership shall be distributed among the interested parties by
order of the Court. Consistent with this dictum, it has been field that if any party to a suit for partition
denies thepro-indiviso character of the estate whose partition is sought, and claims instead, exclusive
title thereto the action becomes one for recovery of property cognizable in the courts of ordinary
jurisdiction. 2
Petitioners' argument has only theoretical persuasion, to say the least, rather apparent than real. It
must be remembered that when Tiaong Milling adduced its defense and raised the issue of ownership,
its corporate existence already terminated through the expiration of its charter. It is clear in Section 77
of Act No. 1459 (Corporation Law) that upon the expiration of the charter period, the corporation
ceases to exist and is dissolvedipso facto except for purposes connected with the winding up and
liquidation. The provision allows a three year, period from expiration of the charter within which the
entity gradually settles and closes its affairs, disposes and convey its property and to divide its capital
stock, but not for the purpose of continuing the business for which it was established. At this terminal
stage of its existence, Tiaong Milling may no longer persist to maintain adverse title and ownership of
the corporate assets as against the prospective distributees when at this time it merely holds the
property in trust, its assertion of ownership is not only a legal contradiction, but more so, to allow it to
maintain adverse interest would certainly thwart the very purpose of liquidation and the final distribute
loll of the assets to the proper, parties.
We agree with the Court of Appeals in its reasoning that substance is more important than form when
it sustained the dismissal of Special Proceedings No. 3893, thus -

a) As to the dismissal of Special Proceedings No. 3893, of course, at first glance, this was wrong, for
the reason that the case trial had been heard was Civil Case No. 6326; but what should not be
overlooked either is Chat respondent Judge was the same Judge that had before him in his own sala,
said Special Proceedings No. 3893, p. 43 rollo, and the parties to the present Civil Case No. 6326 had
themselves asked respondent Judge to take judicial notice of the same and its contents page 34, rollo;
it is not difficult to see that when respondent Judge in par. 4 of the dispositive part of his decision
complained of, ordered that,
4) Special Proceedings No. 3893 for administration is terminated and dismissed; the instant case to
proceed but on issues of damages only and for such action inherently essential or partition. p. 123,
rollo,
in truth and in fact, His Honor was issuing that order also within Civil Case No. 632 but in connection
with Special Proceedings No. 389:3: for substance is more important Chan form, the contending par
ties in both proceedings being exactly the same, but not only this, let it not be forgotten that when His
Honor dismissed Special Proceedings No. 3893, that dismissal precisely was a dismissal that
petitioners herein had themselves sought and solicited from respondent Judge as petitioners
themselves are in their present petition pp. 5-6, rollo; this Court must find difficulty in reconciling
petitioners' attack with the fact that it was they themselves that had insisted on that dismissal; on the
principle that not he who is favored but he who is hurt by a judicial order is he only who should be
heard to complain and especially since extraordinary legal remedies are remedies in extermies granted
to parties ' who have been the victims not merely of errors but of grave wrongs, and it cannot be seen
how one who got what he had asked could be heard to claim that he had been the victim of a wrong,
petitioners should not now complain of an order they had themselves asked in order to attack such an
order afterwards; if at all, perhaps, third parties, creditors, the Bureau of Internal Revenue, might have
been prejudiced, and could have had the personality to attack that dismissal of Special Proceedings
No. 3893, but not petitioners herein, and it is not now for this Court of Appeals to protect said third
persons who have not come to the Court below or sought to intervene herein;
On the second assigned error, petitioners argue that no evidence has been found to support the
conclusion that the registered properties of Tiaong Milling are also properties of the estate of Forrest L.
Cease; that on the contrary, said properties are registered under Act No. 496 in the name of Tiaong
Milling as lawful owner and possessor for the last 50 years of its corporate existence.
We do not agree. In reposing ownership to the estate of Forrest L. Cease, the trial court indeed found
strong support, one that is based on a well-entrenched principle of law. In sustaining respondents'
theory of "merger of Forrest L. Cease and The Tiaong Milling as one personality", or that "the company
is only the business conduit and alter ego of the deceased Forrest L. Cease and the registered
properties of Tiaong Milling are actually properties of Forrest L. Cease and should be divided equally,
share and share alike among his six children, ... ", the trial court did aptly apply the familiar exception
to the general rule by disregarding the legal fiction of distinct and separate corporate personality and
regarding the corporation and the individual member one and the same. In shredding the fictitious
corporate veil, the trial judge narrated the undisputed factual premise, thus:
While the records showed that originally its incorporators were aliens, friends or third-parties in relation
of one to another, in the course of its existence, it developed into a close family corporation. The Board
of Directors and stockholders belong to one family the head of which Forrest L. Cease always retained
the majority stocks and hence the control and management of its affairs. In fact, during the
reconstruction of its records in 1947 before the Security and Exchange Commission only 9 nominal
shares out of 300 appears in the name of his 3 eldest children then and another person close to them.
It is likewise noteworthy to observe that as his children increase or perhaps become of age, he
continued distributing his shares among them adding Florence, Teresa and Marion until at the time of
his death only 190 were left to his name. Definitely, only the members of his family benefited from the
Corporation.

The accounts of the corporation and therefore its operation, as well as that of the family appears to be
indistinguishable and apparently joined together. As admitted by the defendants (Manifestation of
Compliance with Order of March 7, 1963 [Exhibit "21"] the corporation 'never' had any account with
any banking institution or if any account was carried in a bank on its behalf, it was in the name of Mr.
Forrest L. Cease. In brief, the operation of the Corporation is merged with those of the majority
stockholders, the latter using the former as his instrumentality and for the exclusive benefits of all his
family. From the foregoing indication, therefore, there is truth in plaintiff's allegation that the
corporation is only a business conduit of his father and an extension of his personality, they are one
and the same thing. Thus, the assets of the corporation are also the estate of Forrest L. Cease, the
father of the parties herein who are all legitimate children of full blood.
A rich store of jurisprudence has established the rule known as the doctrine of disregarding or piercing
the veil of corporate fiction. Generally, a corporation is invested by law with a personality separate and
distinct from that of the persons composing it as well as from that of any other legal entity to which it
may be related. By virtue of this attribute, a corporation may not, generally, be made to answer for
acts or liabilities of its stockholders or those of the legal entities to which it may be connected,
and vice versa. This separate and distinct personality is, however, merely a fiction created by law for
convenience and to promote the ends of justice (Laguna Transportation Company vs. Social Security
System, L-14606, April 28, 1960; La Campana Coffee Factory, Inc. vs. Kaisahan ng mga Manggagawa
sa La Campana, L-5677, May 25, 1953). For this reason, it may not be used or invoked for ends
subversive of the policy and purpose behind its creation (Emiliano Cano Enterprises, Inc. vs. CIR, L20502, Feb. 26, 1965) or which could not have been intended by law to which it owes its being
McConnel vs. Court of Appeals, L- 10510, March 17, 1961, 1 SCRA 722). This is particularly true where
the fiction is used to defeat public convenience, justify wrong, protect fraud, defend crime (Yutivo Sons
Hardware Company vs. Court of Tax Appeals, L-13203, Jan. 28, 1961, 1 SCRA 160), confuse legitimate
legal or judicial issues (R. F. Sugay & Co. vs. Reyes, L-20451, Dec. 28, 1964), perpetrate deception or
otherwise circumvent the law (Gregorio Araneta, Inc. vs. reason de Paterno, L-2886, Aug. 22, 1952, 49
O.G. 721). This is likewise true where the corporate entity is being used as an alter ego, adjunct, or
business conduit for the sole benefit of the stockholders or of another corporate entity (McConnel vs.
Court of Appeals, supra; Commissioner of Internal Revenue vs. Norton Harrison Co., L-7618, Aug. 31,
1964).
In any of these cases, the notion of corporate entity will be pierced or disregarded, and the corporation
will be treated merely as an association of persons or, where there are two corporations, they will be
merged as one, the one being merely regarded as part or the instrumentality of the otter (Koppel
[Phil.] Inc. vs. Yatco, 77 Phil. 496, Yutivo Sons Hardware Company vs. Court of Tax Appeals, supra).
So must the case at bar add to this jurisprudence. An indubitable deduction from the findings of the
trial court cannot but lead to the conclusion that the business of the corporation is largely, if not
wholly, the personal venture of Forrest L. Cease. There is not even a shadow of a showing that his
children were subscribers or purchasers of the stocks they own. Their participation as nominal
shareholders emanated solely from Forrest L. Cease's gratuitous dole out of his own shares to the
benefit of his children and ultimately his family.
Were we sustain the theory of petitioners that the trial court acted in excess of jurisdiction or abuse of
discretion amounting to lack of jurisdiction in deciding Civil Case No. 6326 as a case for partition when
the defendant therein, Tiaong Milling and Plantation Company, Inc. as registered owner asserted
ownership of the assets and properties involved in the litigation, which theory must necessarily be
based on the assumption that said assets and properties of Tiaong Milling and Plantation Company,
Inc. now appearing under the name of F. L. Cease Plantation Company as Trustee are distinct and
separate from the estate of Forrest L. Cease to which petitioners and respondents as legal heirs of said
Forrest L. Cease are equally entitled share and share alike, then that legal fiction of separate corporate
personality shall have been used to delay and ultimately deprive and defraud the respondents of their
successional rights to the estate of their deceased father. For Tiaong Milling and Plantation Company

shall have been able to extend its corporate existence beyond the period of its charter which lapsed in
June, 1958 under the guise and cover of F. L, Cease Plantation Company, Inc. as Trustee which would
be against the law, and as Trustee shall have been able to use the assets and properties for the benefit
of the petitioners, to the great prejudice and defraudation. of private respondents. Hence, it becomes
necessary and imperative to pierce that corporate veil.
Under the third assigned error, petitioners claim that the decision of the lower court in the partition
case is not interlocutory but rather final for it consists of final and determinative dispositions of the
contentions of the parties. We find no merit in petitioners' stand.
Under the 1961 pronouncement and ruling of the Supreme Court in Vda. de Zaldarriaga vs. Enriquez, 1
SCRA 1188 (and the sequel case of Vda. de Zaldarriaga vs. Zaldarriaga, 2 SCRA 356), the lower court's
dismissal of petitioners' proposed appeal from its December 27, 1969 judgment as affirmed by the
Court of Appeals on the ground of prematurity in that the judgment was not final but interlocutory was
in order. As was said in said case:
It is true that in Africa vs. Africa, 42 Phil. 934 and other cases it was held - contrary to the rule laid
down in Ron vs. Mojica, 8 Phil. 328; Rodriguez vs. Ravilan, 17 Phil. 63 - that in a partition case where
defendant relies on the defense of exclusive ownership, the action becomes one for title and the
decision or order directing partition is final, but the ruling to this effect has been expressly reversed in
the Fuentebella case which, in our opinion, expresses the correct view, considering that a decision or
order directing partition is not final because it leaves something more to be done in the trial court for
the complete disposition of the case, namely, the appointment of commissioners, the proceedings to
be had before them, the submission of their report which, according to law, must be set for hearing. In
fact, it is only after said hearing that the court may render a final judgment finally disposing of the
action (Rule 71, section 7, Rules of Court). (1 SCRA at page 1193).
It should be noted, however, that the said ruling in Zaldarriaga as based on Fuentebella vs. Carrascoso,
XIV Lawyers Journal 305 (May 27, 1942), has been expressly abandoned by the Court in Miranda vs.
Court of Appeals, 71 SCRA 295; 331-333 (June 18, 1976) wherein Mr. Justice Teehankee, speaking for
the Court, laid down the following doctrine:
The Court, however, deems it proper for the guidance of the bench and bar to now declare as is clearly
indicated from the compelling reasons and considerations hereinabove stated:
- that the Court considers the better rule to be that stated in H. E. Heacock Co. vs. American Trading
Co., to wit, that where the primary purpose of a case is to ascertain and determine who between
plaintiff and defendant is the true owner and entitled to the exclusive use of the disputed property,
"the judgment . . . rendered by the lower court [is] a judgment on the merits as to those questions, and
[that] the order of the court for an accounting was based upon, and is incidental to the judgment on
the merits. That is to say, that the judgment . . . [is] a final judgment ... that in this kind of a case an
accounting is a mere incident to the judgment; that an appeal lies from the rendition of the judgment
as rendered ... "(as is widely held by a great number of judges and members of the bar, as shown by
the cases so decided and filed and still pending with the Court) for the fundamental reasons therein
stated that "this is more in harmony with the administration of justice and the spirit and intent of the
[Rules]. If on appeal the judgment of the lower court is affirmed, it would not in the least work an
injustice to any of the legal rights of [appellee]. On the other hand, if for any reason this court should
reverse the judgment of the lower court, the accounting would be a waste of time and money, and
might work a material injury to the [appellant]; and
- that accordingly, the contrary ruling in Fuentebella vs. Carrascoso which expressly reversed the
Heacock case and a line of similar decisions and ruled that such a decision for recovery of property
with accounting "is not final but merely interlocutory and therefore not appealable" and subsequent
cases adhering to the same must be now in turn abandoned and set aside.

Fuentebella adopted instead the opposite line of conflicting decisions mostly in partition proceedings
and exemplified by Ron vs. Mojica 8 Phil. 928 (under the old Code of Civil Procedure) that an order for
partition of real property is not final and appealable until after the actual partition of the property as
reported by the court appointed commissioners and approved by the court in its judgmentaccepting
the report. lt must be especially noted that such rule governing partitions is now so expressly provided
and spelled out in Rule 69 of the Rules of Court, with special reference to Sections 1, 2, 3, 6, 7 and 11,
to wit, that there must first be a preliminar, order for partition of the real estate (section 2) and where
the parties-co-owners cannot agree, the court appointed commissioners make a plan of actual partition
which must first be passed upon and accepted by the trial court and embodied in a judgment to be
rendered by it (sections 6 and 11). In partition cases, it must be further borne in mind that Rule 69,
section 1 refers to "a person having the right to compel the partition of real estate," so that the general
rule of partition that an appeal will not lie until the partition or distribution proceedings are terminated
will not apply where appellant claims exclusive ownership of the whole property and denies the
adverse party's right to any partition, as was the ruling in Villanueva vs. Capistrano and Africa vs
.Africa, supra, Fuentebellas express rehearsal of these cases must likewise be deemed now also
abandoned in view of the Court's expressed preference for the rationale of the Heacock case.
The Court's considered opinion is that imperative considerations of public policy and of sound
practice in the courts and adherence to the constitutional mandate of simplified, just, speedy and
inexpensive determination of every action call for considering such judgments for recovery of property
with accounting as final judgments which are duly appealable (and would therefore become final and
executory if not appealed within the reglementary period) with the accounting as a mere incident of
the judgment to be rendered during the course of the appeal as provided in Rule 39, section 4 or to be
implemented at the execution stage upon final affirmance on appeal of the judgment (as in Court of
Industrial Relations unfair labor practice cases ordering the reinstatement of the worker with
accounting, computation and payment of his backwages less earnings elsewhere during his layoff) and
that the only reason given in Fuentebelia for the contrary ruling, viz, "the general harm that would
follow from throwing the door open to multiplicity of appeals in a single case" of lesser import and
consequence. (Emphasis copied).
The miranda ruling has since then been applied as the new rule by a unanimous Court in Valdez vs.
Bagasao, 82 SCRA 22 (March 8, 1978).
If there were a valid genuine claim of Exclusive ownership of the inherited properties on the part of
petitioners to respondents' action for partition, then under the Miranda ruling, petitioners would be
sustained, for as expressly held therein " the general rule of partition that an appeal will not lie until
the partition or distribution proceedings are terminated will not apply where appellant claims exclusive
ownership of the whole property and denies the adverse party's right to any partition."
But this question has now been rendered moot and academic for the very issue of exclusive ownership
claimed by petitioners to deny and defeat respondents' right to partition - which is the very core of
their rejected appeal - has been squarely resolved herein against them, as if the appeal had been
given due course. The Court has herein expressly sustained the trial court's findings, as affirmed by the
Court of Appeals, that the assets or properties of the defunct company constitute the estate of the
deceased proprietor (supra at page 7) and the defunct company's assertion of ownership of the
properties is a legal contradiction and would but thwart the liquidation and final distribution and
partition of the properties among the parties hereof as children of their deceased father Forrest L.
Cease. There is therefore no further hindrance to effect the partition of the properties among the
parties in implementation of the appealed judgment.
One last consideration. Parties are brothers and sisters, legal heirs of their deceased father, Forrest L.
Cease. By all rights in law and jurisprudence, each is entitled to share and share alike in the estate,
which the trial court correctly ordained and sustained by the appellate court. Almost 20 years have
lapsed since the filing of Special Proceedings No. 3893 for the administration of the Estate of Forrest L.

Cease and Civil Case No. 6326 for liquidation and partition of the assets of the defunct Tiaong Milling
and Plantation Co., Inc. A succession of receivers were appointed by the court to take, keep in
possession, preserve and manage properties of the corporation which at one time showed an income
of P386,152.90 and expenses of P308,405.01 for the period covering January 1, 1960 to August 31,
1967 as per Summary of Operations of Commissioner for Finance appointed by the Court (Brief for
Respondents, p. 38). In the meantime, ejectment cases were filed by and against the heirs in
connection with the properties involved, aggravating the already strained relations of the parties. A
prudent and practical realization of these circumstances ought and must constrain the parties to give
each one his due in law and with fairness and dispatch that their basic rights be enjoyed. And by
remanding this case to the court a quo for the actual partition of the properties, the substantial rights
of everyone of the heirs have not been impaired, for in fact, they have been preserved and
maintained.
WHEREFORE, IN VIEW OF THE FOREGOING, the judgment appealed from is hereby AFFIRMED with
costs against the petitioners.
SO ORDERED.
Teehankee, Actg. C.J., (Chairman), Makasiar, Fernandez, De Castro and Melencio-Herrera, JJ., concur.
#Footnotes
1 Special Seventh Division; Gatmaitan, J., ponente; Perez, J., concurring in the result; Reyes, A., J.,
concurring.
2 See Martin, Rules of Court, Vol. 111, 308 (1973) citing the cases of Africa v. Africa, 42 Phil. 902;
Bargayo v. Camumot, 40 Phil. 856; Rodriguez v. Ravilan, 17 Phil. 63; De Castro vs. Echarri, 20 Phil. 23;
Ferrer vs. Inchausti, 38 Phil. 905, Reyes vs. Cordero, 46 Phil. 658; Villanueva vs. Capistrano, 49 Phil.
460; Hilario vs. Dilla, et al., CA-G.R. No. 5266-R, Feb. 28, 1951.
Republic of the Philippines
SUPREME COURT
Manila FIRST DIVISION
G.R. No. L-81147 June 20, 1989
VICTORIA BRINGAS PEREIRA, petitioner,
vs.
THE HONORABLE COURT OF APPEALS and RITA PEREIRA NAGAC, respondents.
Benjamin J. Quitoriano for petitioner.
Linzag-Arcilla & Associates Law Offices for private respondent.
GANCAYCO, J.:
Is a judicial administration proceeding necessary when the decedent dies intestate without leaving any
debts? May the probate court appoint the surviving sister of the deceased as the administratrix of the
estate of the deceased instead of the surviving spouse? These are the main questions which need to
be resolved in this case.
Andres de Guzman Pereira, an employee of the Philippine Air Lines, passed away on January 3, 1983 at
Bacoor, Cavite without a will. He was survived by his legitimate spouse of ten months, the herein
petitioner Victoria Bringas Pereira, and his sister Rita Pereira Nagac, the herein private respondent.
On March 1, 1983, private respondent instituted before Branch 19 of the Regional Trial Court of Bacoor,
Cavite, Special Proceeding No. RTC-BSP-83-4 for the issuance of letters of administration in her favor
pertaining to the estate of the deceased Andres de Guzman Pereira. 1 In her verified petition, private
respondent alleged the following: that she and Victoria Bringas Pereira are the only surviving heirs of
the deceased; that the deceased left no will; that there are no creditors of the deceased; that the
deceased left several properties, namely: death benefits from the Philippine Air Lines (PAL), the PAL
Employees Association (PALEA), the PAL Employees Savings and Loan Association, Inc. (PESALA) and
the Social Security System (SSS), as well as savings deposits with the Philippine National Bank (PNB)
and the Philippine Commercial and Industrial Bank (PCIB), and a 300 square meter lot located at

Barangay Pamplona, Las Pinas, Rizal and finally, that the spouse of the deceased (herein petitioner)
had been working in London as an auxiliary nurse and as such one-half of her salary forms part of the
estate of the deceased.
On March 23,1983, petitioner filed her opposition and motion to dismiss the petition of private
respondent 2alleging that there exists no estate of the deceased for purposes of administration and
praying in the alternative, that if an estate does exist, the letters of administration relating to the said
estate be issued in her favor as the surviving spouse.
In its resolution dated March 28, 1985, the Regional Trial Court, appointed private respondent Rita
Pereira Nagac administratrix of the intestate estate of Andres de Guzman Pereira upon a bond posted
by her in the amount of Pl,000.00. The trial court ordered her to take custody of all the real and
personal properties of the deceased and to file an inventory thereof within three months after receipt
of the order. 3
Not satisfied with the resolution of the lower court, petitioner brought the case to the Court of Appeals.
The appellate court affirmed the appointment of private respondent as administratrix in its decision
dated December 15, 1987. 4
Hence, this petition for review on certiorari where petitioner raises the following issues: (1) Whether or
not there exists an estate of the deceased Andres de Guzman Pereira for purposes of administration;
(2) Whether or not a judicial administration proceeding is necessary where there are no debts left by
the decedent; and, (3) Who has the better right to be appointed as administratrix of the estate of the
deceased, the surviving spouse Victoria Bringas Pereira or the surviving sister Rita Pereira Nagac?
Anent the first issue, petitioner contends that there exists no estate of the deceased for purposes of
administration for the following reasons: firstly, the death benefits from PAL, PALEA, PESALA and the
SSS belong exclusively to her, being the sole beneficiary and in support of this claim she submitted
letter-replies from these institutions showing that she is the exclusive beneficiary of said death
benefits; secondly, the savings deposits in the name of her deceased husband with the PNB and the
PCIB had been used to defray the funeral expenses as supported by several receipts; and, finally, the
only real property of the deceased has been extrajudicially settled between the petitioner and the
private respondent as the only surviving heirs of the deceased.
Private respondent, on the other hand, argues that it is not for petitioner to decide what properties
form part of the estate of the deceased and to appropriate them for herself. She points out that this
function is vested in the court in charge of the intestate proceedings.
Petitioner asks this Court to declare that the properties specified do not belong to the estate of the
deceased on the basis of her bare allegations as aforestated and a handful of documents. Inasmuch as
this Court is not a trier of facts, We cannot order an unqualified and final exclusion or non-exclusion of
the property involved from the estate of the deceased. 5
The resolution of this issue is better left to the probate court before which the administration
proceedings are pending. The trial court is in the best position to receive evidence on the discordant
contentions of the parties as to the assets of the decedent's estate, the valuations thereof and the
rights of the transferees of some of the assets, if any. 6 The function of resolving whether or not a
certain property should be included in the inventory or list of properties to be administered by the
administrator is one clearly within the competence of the probate court. However, the court's
determination is only provisional in character, not conclusive, and is subject to the final decision in a
separate action which may be instituted by the parties. 7
Assuming, however, that there exist assets of the deceased Andres de Guzman Pereira for purposes of
administration, We nonetheless find the administration proceedings instituted by private respondent to
be unnecessary as contended by petitioner for the reasons herein below discussed.
The general rule is that when a person dies leaving property, the same should be judicially
administered and the competent court should appoint a qualified administrator, in the order
established in Section 6, Rule 78, in case the deceased left no will, or in case he had left one, should he
fail to name an executor therein. 8 An exception to this rule is established in Section 1 of Rule
74. 9 Under this exception, when all the heirs are of lawful age and there are no debts due from the
estate, they may agree in writing to partition the property without instituting the judicial administration
or applying for the appointment of an administrator.
Section 1, Rule 74 of the Revised Rules of Court, however, does not preclude the heirs from instituting
administration proceedings, even if the estate has no debts or obligations, if they do not desire to

resort for good reasons to an ordinary action for partition. While Section 1 allows the heirs to divide the
estate among themselves as they may see fit, or to resort to an ordinary action for partition, the said
provision does not compel them to do so if they have good reasons to take a different course of
action. 10 It should be noted that recourse to an administration proceeding even if the estate has no
debts is sanctioned only if the heirs have good reasons for not resorting to an action for partition.
Where partition is possible, either in or out of court, the estate should not be burdened with an
administration proceeding without good and compelling reasons. 11
Thus, it has been repeatedly held that when a person dies without leaving pending obligations to be
paid, his heirs, whether of age or not, are not bound to submit the property to a judicial administration,
which is always long and costly, or to apply for the appointment of an administrator by the Court. It
has been uniformly held that in such case the judicial administration and the appointment of an
administrator are superfluous and unnecessary proceedings . 12
Now, what constitutes "good reason" to warrant a judicial administration of the estate of a deceased
when the heirs are all of legal age and there are no creditors will depend on the circumstances of each
case.
In one case,

13

We said:

Again the petitioner argues that only when the heirs do not have any dispute as to the bulk of the
hereditary estate but only in the manner of partition does section 1, Rule 74 of the Rules of Court apply
and that in this case the parties are at loggerheads as to the corpus of the hereditary estate because
respondents succeeded in sequestering some assets of the intestate. The argument is unconvincing,
because, as the respondent judge has indicated, questions as to what property belonged to the
deceased (and therefore to the heirs) may properly be ventilated in the partition proceedings,
especially where such property is in the hands of one heir.
In another case, We held that if the reason for seeking an appointment as administrator is merely to
avoid a multiplicity of suits since the heir seeking such appointment wants to ask for the annulment of
certain transfers of property, that same objective could be achieved in an action for partition and the
trial court is not justified in issuing letters of administration. 14 In still another case, We did not find so
powerful a reason the argument that the appointment of the husband, a usufructuary forced heir of his
deceased wife, as judicial administrator is necessary in order for him to have legal capacity to appear
in the intestate proceedings of his wife's deceased mother, since he may just adduce proof of his being
a forced heir in the intestate proceedings of the latter. 15
We see no reason not to apply this doctrine to the case at bar. There are only two surviving heirs, a
wife of ten months and a sister, both of age. The parties admit that there are no debts of the deceased
to be paid. What is at once apparent is that these two heirs are not in good terms. The only
conceivable reason why private respondent seeks appointment as administratrix is for her to obtain
possession of the alleged properties of the deceased for her own purposes, since these properties are
presently in the hands of petitioner who supposedly disposed of them fraudulently. We are of the
opinion that this is not a compelling reason which will necessitate a judicial administration of the
estate of the deceased. To subject the estate of Andres de Guzman Pereira, which does not appear to
be substantial especially since the only real property left has been extrajudicially settled, to an
administration proceeding for no useful purpose would only unnecessarily expose it to the risk of being
wasted or squandered. In most instances of a similar nature, 16 the claims of both parties as to the
properties left by the deceased may be properly ventilated in simple partition proceedings where the
creditors, should there be any, are protected in any event.
We, therefore, hold that the court below before which the administration proceedings are pending was
not justified in issuing letters of administration, there being no good reason for burdening the estate of
the deceased Andres de Guzman Pereira with the costs and expenses of an administration proceeding.
With the foregoing ruling, it is unnecessary for us to delve into the issue of who, as between the
surviving spouse Victoria Bringas Pereira and the sister Rita Pereira Nagac, should be preferred to be
appointed as administratrix.
WHEREFORE, the letters of administration issued by the Regional Trial Court of Bacoor to Rita Pereira
Nagac are hereby revoked and the administration proceeding dismissed without prejudice to the right
of private respondent to commence a new action for partition of the property left by Andres de
Guzman Pereira. No costs.
SO ORDERED.

Narvasa, Cruz, Grio-Aquino and Medialdea, JJ., concur.

Footnotes
1 Page 27, Rollo.
2 Page 29, Supra.
3 Page 3, Rollo.
4 Page 33, Supra.
5 Ortega v. Court of Appeals (1987).
6 Sebial v. Sebial, 64 SCRA 385 (1975).
7 Ortega v. Court of Appeals, Supra; Valera v. Inserts, 149 SCRA
553 (1987); Vda. de Rodriguez v. Court of Appeals, 91 SCRA 540 (1979); Cuizon v. Remolete; 129 SCRA
495 (1984); Lachenal v. Salas, 71 SCRA 262 (1976); Coca v. Borromeo, 81 SCRA 278 (1978); Garcia v.
Garcia, 67 Phil. 353 (1939); Guinguin v. Abuton, 48 Phil 144 (1925).
8 Utulo v. Pasion vda. de Garcia, 66 Phil. 303 (1938).
9 Section 1. Extra-judicial settlement by agreement between heirs. If the decedent left no will and no
debts and the heirs are all of age, or the minors are represented by their judicial or legal
representatives duly authorized for the purpose, the parties may, without securing letters of
administration, divide the estate among themselves as they see fit by means of a public instrument
filed in the office of the register of deeds, and should they disagree, they may do so in an ordinary
action of partition. ..." 10
10 Rodriguez, et al. v. Tan, etc. and Rodriguez, 92 Phil. 273 (1952).
11 Intestate Estate of Mercado v. Magtibay, 96 Phil, 383 (1953) citing Monserrat v. lbanez, G.R No. L3369, May 24,1950.
12 Utulo v. Pasion de Garcia, supra; Fule v. Fule, 46 Phil. 317 (1924); Baldemor v. Malangyaon, 34 Phil.
367 (1916); Bondad v. Bondad, 34 Phil. 232 (1916); Malafasan v. Ignacio; 19 Phil. 434 (1911); Ilustre v.
Alaras Frondora; 17 Phil. 321 (1910). In Orozco vs. Garcia, 50 Phil 149, it was held that there is nothing
in Section 1, Rule 74 which prohibits the heirs from instituting special proceeding for the administration
of the intestate estate, if they cannot agree in the extrajudicial partition and apportionment of the
same. Utulo v. Pasion Vda. de Garcia, Supra reaffirmed the doctrine laid down in the cases previous to
Orozco.
13 Monserrat v. Ibanez, Supra cited in Intestate Estate of Mercado v. Magtibay, Supra.
14 Intestate Estate of Mercado v. Magtibay, supra.
15 Utulo v. Pasion vda. de Garcia, supra.
16 Intestate Estate of Mercado v. Magtibay, supra.
THIRD DIVISION
[G.R. No. 155555. August 16, 2005]
ISABEL P. PORTUGAL and JOSE DOUGLAS PORTUGAL JR., petitioners, vs. LEONILA
PORTUGAL-BELTRAN, respondent.
DECISION
CARPIO MORALES, J.:
Petitioners Isabel P. Portugal and her son, Jose Douglas Portugal Jr., assail the September 24,
2002[1] Decision of the Court of Appeals affirming that of the Regional Trial Court (RTC) of Caloocan
City, Branch 124[2] which dismissed, after trial, their complaint for annulment of title for failure to
state a cause of action and lack of jurisdiction.
From the records of the case are gathered the following material allegations claims of the parties
which they sought to prove by testimonial and documentary evidence during the trial of the case:

On November 25, 1942, Jose Q. Portugal (Portugal) married Paz Lazo. [3]
On May 22, 1948, Portugal married petitioner Isabel de la Puerta. [4]
On September 13, 1949, petitioner Isabel gave birth to a boy whom she named Jose Douglas Portugal
Jr., her herein co-petitioner.[5]
On April 11, 1950, Paz gave birth to a girl, Aleli, [6] later baptized as Leonila Perpetua Aleli Portugal,
herein respondent.[7]
On May 16, 1968, Portugal and his four (4) siblings executed a Deed of Extra-Judicial Partition and
Waiver of Rights[8] over the estate of their father, Mariano Portugal, who died intestate on November 2,
1964.[9] In the deed, Portugals siblings waived their rights, interests, and participation over a 155 sq.
m. parcel of land located in Caloocan in his favor. [10]
On January 2, 1970, the Registry of Deeds for Caloocan City issued Transfer Certificate of Title (TCT)
No. 34292 covering the Caloocan parcel of land in the name of Jose Q. Portugal, married to Paz C.
Lazo.[11]
On February 18, 1984, Paz died.
On April 21, 1985, Portugal died intestate.
On February 15, 1988, respondent executed an Affidavit of Adjudication by Sole Heir of Estate of
Deceased Person[12] adjudicating to herself the Caloocan parcel of land. TCT No. 34292/T-172 [13] in
Portugals name was subsequently cancelled and in its stead TCT No. 159813 [14] was issued by the
Registry of Deeds for Caloocan City on March 9, 1988 in the name of respondent, Leonila PortugalBeltran, married to Merardo M. Beltran, Jr.
Later getting wind of the death in 1985 of Portugal and still later of the 1988 transfer by respondent of
the title to the Caloocan property in her name, petitioners filed before the RTC of Caloocan City on July
23, 1996 a complaint[15] against respondent for annulment of the Affidavit of Adjudication executed by
her and the transfer certificate of title issued in her name.
In their complaint, petitioners alleged that respondent is not related whatsoever to the deceased
Portugal, hence, not entitled to inherit the Caloocan parcel of land and that she perjured herself when
she made false representations in her Affidavit of Adjudication.
Petitioners accordingly prayed that respondents Affidavit of Adjudication and the TCT in her name be
declared void and that the Registry of Deeds for Caloocan be ordered to cancel the TCT in respondents
name and to issue in its stead a new one in their (petitioners) name, and that actual, moral and
exemplary damages and attorneys fees and litigation expenses be awarded to them.
Following respondents filing of her answer, the trial court issued a Pre-Trial Order chronicling, among
other things, the issues as follows:
a. Which of the two (2) marriages contracted by the deceased Jose Q. Portugal Sr., is valid?
b. Which of the plaintiff . . . Jose Portugal Jr. and defendant Leonila P. Beltran is the legal heir of the
deceased Jose Q. Portugal Sr.?
c. Whether or not TCT No. 159813 was issued in due course and can still be contested by plaintiffs.
d. Whether or not plaintiffs are entitled to their claims under the complaint. [16] (Underscoring supplied)
After trial, the trial court, by Decision of January 18, 2001, [17] after giving an account of the testimonies
of the parties and their witnesses and of their documentary evidence, without resolving the issues
defined during pre-trial, dismissed the case for lack of cause of action on the ground that petitioners
status and right as putative heirs had not been established before a probate (sic) court, and lack of
jurisdiction over the case, citing Heirs of Guido and Isabel Yaptinchay v. Del Rosario. [18]
In relying on Heirs of Guido and Isabel Yaptinchay, the trial court held:
The Heirs of Yaptinchay case arose from facts not dissimilar to the case at bar.
xxx
In the instant case, plaintiffs presented a Marriage Contract, a Certificate of Live Birth, pictures
(sic) and testimonial evidence to establish their right as heirs of the decedent. Thus, the preliminary
act of having a status and right to the estate of the decedent, was sought to be determined herein.

However, the establishment of a status, a right, or a particular fact is remedied through a

special proceeding (Sec. 3(c), Rule 1, 1997 Rules of Court), not an ordinary civil action whereby a
party sues another for the enforcement or protection of a right, or the protection or redress of a wrong
(ibid, a). The operative term in the former is to establish, while in the latter, it is to enforce, a
right. Their status and right as putative heirs of the decedent not having been established, as yet, the
Complaint failed to state a cause of action.
The court, not being a probate (sic) court, is without jurisdiction to rule on plaintiffs cause to
establish their status and right herein. Plaintiffs do not have the personality to sue (Secs. 1 and 2, Rule
3, in relation to Secs. 1 and 2, Rule 2, supra).[19] (Italics in the original; emphasis and underscoring
supplied).
Petitioners thereupon appealed to the Court of Appeals, questioning the trial courts ratio decedendi in
dismissing the case as diametrically opposed to this Courts following ruling in Cario v. Cario,[20] viz:
Under Article 40 of the Family Code, the absolute nullity of a previous marriage may be invoked for
purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void.
Meaning, where the absolute nullity of a previous marriage is sought to be invoked for purposes of
contracting a second marriage, the sole basis acceptable in law, for said projected marriage to be free
from legal infirmity, is a final judgment declaring the previous void. (Domingo v. Court of Appeals, 226
SCRA 572, 579 [1993]) However, for purposes other than remarriage, no judicial action is necessary to
declare a marriage an absolute nullity. For other purposes, such as but not limited to the determination
of heirship, legitimacy or illegitimacy of a child, settlement of estate, dissolution of property regime, or
a criminal case for that matter, the court may pass upon the validity of marriage even after the death
of the parties thereto, and even in a suit not directly instituted to question the validity of said
marriage, so long as it is essential to the determination of the case. (Nial, et al. v. Bayadog, GR
No. 13378, March 14, 2000). In such cases, evidence must be adduced, testimonial or documentary, to
prove the existence of grounds rendering such a previous marriage an absolute nullity. These need not
be limited solely to an earlier final judgment of a court declaring such previous marriage void.
(Domingo v. Court of Appeals, supra) (Emphasis and underscoring supplied).
Conceding that the ruling in Cario was promulgated (in 2001) subsequent to that of Heirs of Guido and
Isabel Yaptinchay (in 1999), the appellate court found Cario to be inapplicable, however, to the case in
this wise:
To be borne in mind is the fact that the main issue in the Cario case was the validity of the two
marriages contracted by the deceased SPO4 Santiago Cario, whose death benefits was the bone of
contention between the two women both named Susan (viz., Susan Nicdao Cario and Susan Yee Cario)
both of whom he married. It is not disputed in said case that SPO4 S. Cario contracted two marriages
with said two women during his lifetime, and the only question was: which of these two marriages was
validly celebrated? The award of the death benefits of the deceased Cario was thus, merely
an incident to the question of which of the two marriages was valid. Upon the other hand, the case at
bench is of a different milieu. The main issue here is the annulment of title to property. The only
undisputed fact in this case is that the deceased Jose Portugal, during his lifetime, owned a parcel of
land covered by Transfer Certificate of Title (TCT) No. T-34292. However, here come two contending
parties, herein plaintiffs-appellants and defendant-appellee, both now insisting to be the legal heir(s) of
the decedent. x x x. The status and rights of the parties herein have not, therefore, been definitively
established, as yet. x x x. Necessarily and naturally, such questions as to such status or right must be
properly ventilated in an appropriate special proceeding, not in an ordinary civil action, whereunder a
party sues another for the enforcement or protection of a right, or the protection or redress of a
wrong. The institution of an ordinary civil suit for that purpose in the present case is thus
impermissible. For it is axiomatic that what the law prohibits or forbids directly, it cannot permit or
allow indirectly. To permit, or allow, a declaration of heirship, or the establishment of the legitimacy or
illegitimacy of a child to be determined in an ordinary civil action, not in an appropriate special
proceeding brought for that purpose, is thus to impinge upon this axiom. x x x [21] (Emphasis in the
original, underscoring supplied).
The appellate court, by Decision of September 24, 2002, [22] thus affirmed the trial courts dismissal of
the case.
Hence, the present Petition for Review on Certiorari,[23] faulting the appellate court to have erred when
I.

. . . it affirmed the RTC decision dismissing the initiatory complaint as it failed to state a cause of
action.
II.
. . . (i) it applied the ruling in Heirs of Guido [and Isabel] Yaptingchay despite the existence of a later
and contrary ruling in Cario, and (ii) when the Honorable CA and the lower court failed to render
judgment based on the evidence presented relative to theissues raised during pre-trial, . . .
[24]
(Emphasis and underscoring supplied).
Petitioners thus prayed as follows:
WHEREFORE, it is respectfully prayed of this Honorable Supreme Court that the questioned CA decision
be reversed, and a new one entered in accordance with the prayers set forth in the instant complaint
based on the above disquisition and evidence adduced by petitioners in the court a quo.
IN THE ALTERNATIVE, should the Honorable Supreme Court find that the pronouncements
in Cario apply, a decision be entered remanding to the court a quo the determination of the issues of
which of the two marriages is valid, and the determination of heirship and legitimacy of Jose Jr. and
Leonila preparatory to the determination of the annulment of title issued in the name of Leonila.
Other relief and remedy just and equitable in the premises are likewise prayed for. [25] (Underscoring
supplied).
Petitioners, in the main, argue that the appellate court misapplied Heirs of Guido and Isabel
Yaptinchay and in effect encouraged multiplicity of suits which is discouraged by this Court as a
reading of Cario shows; that Carioallows courts to pass on the determination of heirship and the
legitimacy or illegitimacy of a child so long as it is necessary to the determination of the case; and that
contrary to the appellate courts ruling, they had established their status as compulsory heirs.
In the main, the issue in the present petition is whether petitioners have to institute a special
proceeding to determine their status as heirs before they can pursue the case for annulment of
respondents Affidavit of Adjudication and of the TCT issued in her name.
In the above-cited case of Heirs of Guido and Isabel Yaptinchay,[26] the therein petitioners executed on
March 17, 1994 an extrajudicial settlement of the estate of the deceased Guido and Isabel Yaptinchay,
owners-claimants of the two lots mentioned therein. They later discovered on August 26, 1994 that a
portion, if not all, of the two lots had been titled in the name of the therein respondent Golden Bay
Realty and Development Corporation which in turn sold portions thereof to the therein individual
respondents. The therein petitioners Heirs thus filed a complaint for annulment of titles. The therein
respondents moved to dismiss the case for failure of the therein petitioners to, inter alia, state a cause
of action and prove their status as heirs. The trial court granted the motion to dismiss in this wise:
But the plaintiffs who claimed to be the legal heirs of the said Guido and Isabel Yaptinchay have not
shown any proof or even a semblance of itexcept the allegations that they are the legal heirs of the
aforementioned Yaptinchaysthat they have been declared the legal heirs of the deceased couple. Now,
the determination of who are the legal heirs of the deceased couple must be made in the proper
special proceedings in court, and not in an ordinary suit for reconveyance of property. This must take
precedence over the action for reconveyance . . .[27] (Italics in the original; underscoring supplied).
On petition for certiorari by the Heirs, this Court, albeit holding that the petition was an improper
recourse, found that the trial court did not commit grave abuse of discretion in dismissing the case.
Citing Litam et al. v. Rivera[28] andSolivio v. Court of Appeals,[29] this Court held that the declaration of
heirship can be made only in a special proceeding inasmuch as the petitioners here are seeking the
establishment of a status or right.
In the above-cited case of Litam,[30] Gregorio Dy Tam instituted a special proceeding for issuance of
letters of administration before the then Court of First Instance (CFI) of Rizal, alleging in his petition
that he is the son of Rafael Litam who died in Manila on January 10, 1951 and is survived by him and
his therein named seven (7) siblings who are children of the decedent by his marriage to Sia Khin
celebrated in China in 1911; that the decedent contracted in 1922 in the Philippines another marriage
with Marcosa Rivera; and that the decedent left neither a will nor debt. Dy Tam thus prayed for the
issuance of letters of administration to Marcosa Rivera, the surviving spouse of the decedent. The CFI
granted the petition and issued letters of administration to, on Marcosas request, her nephew Arminio
Rivera.

While the special proceeding was pending, Dy Tam and his purported siblings filed a civil case before
the same court, against the estate of Rafael Litam administrator Arminio Rivera and Remedios R.
Espiritu, duly appointed guardian of Marcosa. In their complaint, Dy Tam and his purported siblings
substantially reproduced the allegations made in his petition in the special proceeding, with the
addition of a list of properties allegedly acquired during the marriage of the decedent and Marcosa.
Finding the issue raised in the civil case to be identical to some unresolved incidents in the special
proceeding, both were jointly heard by the trial court, following which it rendered a decision in the civil
case dismissing it, declaring, inter alia, that the plaintiffs Dy Tam et al. are not the children of the
decedent whose only surviving heir is Marcosa.
On appeal to this Court by Dy Tam et al., one of the two issues raised for determination was whether
they are the legitimate children of Rafael Litam.
This Court, holding that the issue hinged on whether Rafael Litam and Sia Khin were married in 1911,
and whether Rafael Litam is the father of appellants Dy Tam et al., found substantially correct the trial
courts findings of fact and its conclusion that, among other things, the birth certificates of Dy Tam et
al. do not establish the identity of the deceased Rafael Litam and the persons named therein as father
[and] it does not appear in the said certificates of birth that Rafael Litam had in any manner intervened
in the preparation and filing thereof; and that [t]he other documentary evidence presented by [them]
[is] entirely immaterial and highly insufficient to prove the alleged marriage between the deceased
Rafael Litam and Sia Khin and [their] alleged status . . . as children of said decedent.
This Court went on to opine in Litam, however, that the lower court should not have declared, in the
decision appealed from, that Marcosa is the only heir of the decedent, for such declaration is improper
in the [civil case], it being within the exclusive competence of the court in [the] [s]pecial [p]roceeding.
In Solivio,[31] also cited in Heirs of Guido and Isabel Yaptinchay, there was a special proceeding for the
settlement of the estate of the deceased, who was a soltero, filed before the RTC of Iloilo. In the special
proceeding, Branch 23 of said court declared as sole heir Celedonia Solivio, the decedents maternal
aunt-half sister of his mother. Concordia Javellana-Villanueva, the decedents paternal aunt-sister of his
father, moved to reconsider the courts order declaring Celedonia Solivio as sole heir of the decedent,
she claiming that she too was an heir. The court denied the motion on the ground of tardiness. Instead
of appealing the denial of her motion, Concordia filed a civil caseagainst Celedonia before the same
RTC, for partition, recovery of possession, ownership and damages. The civil case was raffled to Branch
26 of the RTC, which rendered judgment in favor of Concordia. On appeal by Celedonia, the appellate
court affirmed the said judgment.
On petition for review filed before this Court by Celedonia who posed, among other issues, whether
Branch 26 of the RTC of Iloilo had jurisdiction to entertain [the civil action] for partition and recovery of
Concordia Villanuevas share of the estate of [the deceased] while the [estate] proceedings . . . were
still pending . . . in Branch 23 of the same court, this Court held that [i]n the interest of orderly
procedure and to avoid confusing and conflicting dispositions of a decedents estate, a
court should not interfere with [estate] proceedings pending in a co-equal
court, citing Guilas v. CFI Judge of Pampanga.[32]
This Court, however, in Solivio, upon [c]onsidering that the estate proceedings are still pending, but
nonetheless [therein private respondent-Concordia Villanueva] had lost her right to have herself
declared as co-heir in said proceedings, opted to proceed to discuss the merits of her claim in the
interest of justice, and declared her an heir of the decedent.
In Guilas[33] cited in Solivio, a project of partition between an adopted daughter, the therein petitioner
Juanita Lopez Guilas (Juanita), and her adoptive father was approved in the proceedings for the
settlement of the testate estateof the decedent-adoptive mother, following which the probate court
directed that the records of the case be archived.
Juanita subsequently filed a civil action against her adoptive father to annul the project of partition on
the ground of lesion, preterition and fraud, and prayed that her adoptive father immediately deliver to
her the two lots allocated to her in the project of partition. She subsequently filed a motion in the
testate estate proceedings for her adoptive father to deliver to her, among other things, the same two
lots allotted to her.
After conducting pre-trial in the civil case, the trial court, noting the parties agreement to suspend
action or resolution on Juanitas motion in the testate estate proceedings for the delivery to her of the
two lots alloted to her until after her complaint in the civil case had been decided, set said case for
trial.

Juanita later filed in the civil case a motion to set aside the order setting it for trial on the ground that
in the amended complaint she, in the meantime, filed, she acknowledged the partial legality and
validity of the project of partition insofar as she was allotted the two lots, the delivery of which she was
seeking. She thus posited in her motion to set aside the April 27, 1966 order setting the civil case for
hearing that there was no longer a prejudicial question to her motion in the testate estate proceedings
for the delivery to her of the actual possession of the two lots. The trial court, by order of April 27,
1966, denied the motion.
Juanita thereupon assailed the April 27, 1966 order before this Court.
The probate courts approval of the project of partition and directive that the records of the case be
sent to the archives notwithstanding, this Court held that the testate estate proceedings had not been
legally terminated as Juanitas share under the project of partition had not been delivered to her.
Explained this Court:
As long as the order of the distribution of the estate has not been complied with, the probate
proceedings cannot be deemed closed and terminated (Siguiong vs. Tecson, supra.); because a judicial
partition is not final and conclusive and does not prevent the heir from bringing an action to obtain his
share, provided the prescriptive period therefor has not elapse (Mari vs. Bonilla, 83 Phil., 137). The
better practice, however, for the heir who has not received his share, is to demand his share
through a proper motion in the same probate or administration proceedings, or for reopening of the probate or administrative proceedings if it had already been closed, and not through
an independent action, which would be tried by another court or Judge which may thus
reverse a decision or order of the probate o[r] intestate court already final and
executed and re-shuffle properties long ago distributed and disposed of (Ramos vs. Ortuzar, 89 Phil.
730, 741-742; Timbol vs. Cano, supra,; Jingco vs. Daluz, L-5107, April 24, 1953, 92 Phil. 1082; Roman
Catholic vs. Agustines, L-14710, March 29, 1960, 107 Phil., 455, 460-461). [34] (Emphasis and
underscoring supplied).
This Court thus set aside the assailed April 27, 1966 order of the trial court setting the civil case for
hearing, but allowed the civil case to continue because it involves no longer the two lots adjudicated to
Juanita.
The common doctrine in Litam, Solivio and Guilas in which the adverse parties are putative heirs to the
estate of a decedent or parties to the special proceedings for its settlement is that if the special
proceedings are pending, or if there are no special proceedings filed but there is, under the
circumstances of the case, a need to file one, then the determination of, among other issues, heirship
should be raised and settled in said special proceedings. Where special proceedings had been
instituted but had been finally closed and terminated, however, or if a putative heir has lost the right
to have himself declared in the special proceedings as co-heir and he can no longer ask for its reopening, then an ordinary civil action can be filed for his declaration as heir in order to bring about the
annulment of the partition or distribution or adjudication of a property or properties belonging to the
estate of the deceased.
In the case at bar, respondent, believing rightly or wrongly that she was the sole heir to Portugals
estate, executed on February 15, 1988[35] the questioned Affidavit of Adjudication under the second
sentence of Rule 74, Section 1 of the Revised Rules of Court. [36] Said rule is an exception to the general
rule that when a person dies leaving a property, it should be judicially administered and the competent
court should appoint a qualified administrator, in the order established in Sec. 6, Rule 78 in case the
deceased left no will, or in case he did, he failed to name an executor therein. [37]
Petitioners claim, however, to be the exclusive heirs of Portugal. A probate or intestate court, no doubt,
has jurisdiction to declare who are the heirs of a deceased.
It appearing, however, that in the present case the only property of the intestate estate of Portugal is
the Caloocan parcel of land,[38] to still subject it, under the circumstances of the case, to a special
proceeding which could be long, hence, not expeditious, just to establish the status of petitioners as
heirs is not only impractical; it is burdensome to the estate with the costs and expenses of an
administration proceeding. And it is superfluous in light of the fact that the parties to the civil case
subject of the present case, could and had already in fact presented evidence before the trial court
which assumed jurisdiction over the case upon the issues it defined during pre-trial.
In fine, under the circumstances of the present case, there being no compelling reason to still subject
Portugals estate to administration proceedings since a determination of petitioners status as heirs
could be achieved in the civil case filed by petitioners, [39] the trial court should proceed to evaluate the

evidence presented by the parties during the trial and render a decision thereon upon the issues it
defined during pre-trial, which bear repeating, to wit:
1. Which of the two (2) marriages contracted by the deceased Jose Q. Portugal, is valid;
2. Which of the plaintiff, Jose Portugal Jr. and defendant Leonila P. Beltran is the legal heir of the
deceased Jose Q. Portugal (Sr.);
3. Whether or not TCT No. 159813 was issued in due course and can still be contested by plaintiffs;
4. Whether or not plaintiffs are entitled to their claim under the complaint. [40]
WHEREFORE, the petition is hereby GRANTED. The assailed September 24, 2002 Decision of the Court
of Appeals is hereby SET ASIDE.
Let the records of the case be REMANDED to the trial court, Branch 124 of the Regional Trial Court of
Caloocan City, for it to evaluate the evidence presented by the parties and render a decision on the
above-enumerated issues defined during the pre-trial.
No costs.
SO ORDERED.
Panganiban, (Chairman), Sandoval-Gutierrez, Corona, and Garcia, JJ., concur.

Rollo at 49-56.
Records at 212-230.
[3]
Exh. 3, Folder of Exhibits.
[4]
Exh. A, Folder of Exhibits.
[5]
Exh. B, Folder of Exhibits.
[6]
Exh. 4, Folder of Exhibits.
[7]
Exh. 5, Folder of Exhibits.
[8]
Exh. G, Folder of Exhibits.
[9]
Ibid.
[10]
Ibid.
[11]
Exh. C, Folder of Exhibits.
[12]
Exh. E, Folder of Exhibits.
[13]
Exh. C, Folder of Exhibits
[14]
Exh. D, Folder of Exhibits.
[15]
Records at 1-5.
[16]
Id. at 78-80.
[17]
Id. at 212-230.
[18]
304 SCRA 18 (1999).
[19]
Records at 228-230.
[20]
351 SCRA 127 (2001).
[21]
CA Decision, Rollo at 49, 52-54.
[22]
Id. at 49-56.
[23]
Id. at 3-46.
[24]
Id. at 14.
[25]
Id. at 43-44.
[26]
Supra, note 18.
[27]
Id. at 22.
[28]
100 Phil. 364 (1956).
[29]
182 SCRA 119 (1990).
[30]
Supra, note 28.
[31]
Supra, note 29.
[32]
43 SCRA 111 (1972).
[33]
Ibid.
[34]
Guilas v. Judge of the Court of First Instance of Pampanga, supra at 117 (1972).
[35]
Exh. E, Folder of Exhibits.
[36]
SEC. 1 Extrajudicial settlement by agreement between heirs. If the decedent left no will and no
debts and the heirs are all of age, or the minors are represented by their judicial or legal
representatives duly authorized for the purpose, the parties may, without securing letters of
administration, divide the estate among themselves as they see fit by means of a public instrument
[1]
[2]

filed in the office of the register of deeds, and should they disagree, they may do so in an ordinary
action of partition. If there is only one heir, he may adjudicate to himself the entire estate by means of
an affidavit filed in the office of the register of deeds. The parties to an extrajudicial settlement,
whether by public instrument or by stipulation in a pending action for partition, or the sole heir who
adjudicates the entire estate to himself by means of an affidavit shall file, simultaneously with and as a
condition precedent to the filing of the public instrument, or stipulation in the action for partition, or of
the affidavit in the office of the register of deeds, a bond with the said register of deeds, in an amount
equivalent to the value of the personal property involved as certified to under oath by the parties
concerned and conditioned upon the payment of any just claim that may be filed under section 4 of
this rule. It shall be presumed that the decedent left no debts if no creditor files a petition for letters of
administration within two (2) years after the death of the decedent.
The fact of the extrajudicial settlement or administration shall be published in a newspaper of general
circulation in the manner provided in the next succeeding section; but no extrajudicial settlement shall
be binding upon any person who has not participated therein or had no notice thereof. (Underscoring
supplied).
[37]
HERRERA, REMEDIAL LAW III-A, p. 31 (2005), citing Utulo v. Leona Pasion Vda. de Garcia, 66 Phil.
302 (1938).
[38]
Vide Affidavit of Adjudication by Sole Heir of Estate of [Portugal], supra, note 12.
[39]
Vide Pereira v. Court of Appeals, 174 SCRA 154 (1989); Intestate Estate of Mercado v. Magtibay, 96
Phil. 383 (1955).
[40]
Supra, note 16.
[G.R. No. 115181. March 31, 2000]
MARIA SOCORRO AVELINO, petitioner, vs. COURT OF APPEALS, ANGELINA AVELINO, SHARON
AVELINO, ANTONIO AVELINO, JR., TRACY AVELINO, PATRICK MICHAEL AVELINO and MARK
ANTHONY AVELINO, respondents.
RESOLUTION
QUISUMBING, J.:
Before us is a petition for review on certiorari of the Decision of the Court of Appeals dated February
16, 1994 in CA-G.R. SP No. 31574 as well as its Resolution dated April 28, 1994 denying petitioner's
Motion for Reconsideration. The assailed Decision affirmed the Order of the Regional Trial Court of
Quezon City, Branch 78, in Sp. Proc. No. Q-91-10441 converting petitioner's petition for the issuance of
letters of administration to an action for judicial partition.

Petitioner Maria Socorro Avelino is a daughter and compulsory heir of the late Antonio Avelino, Sr., and
his first wife private respondent Angelina Avelino.

The other private respondents, Sharon, Antonio Jr., Tracy, Patrick and Mark Anthony all surnamed
Avelino are likewise compulsory heirs of Avelino, Sr. Sharon, an American, is the second wife of Avelino,
Sr. The other private respondents are siblings of petitioner Ma. Socorro.

The records reveal that on October 24, 1991, Ma. Socorro filed before the Regional Trial Court of
Quezon City, Branch 78, docketed as SP Proc. No. Q-91-10441, a petition for the issuance of letters of
administration of the estate of Antonio Avelino, Sr., who died intestate on April 10, 1989. She asked
that she be appointed the administrator of the estate.

On December 3, 1992, Angelina, and the siblings filed their opposition by filing a motion to convert the
said judicial proceedings to an action for judicial partition which petitioner duly opposed.

On February 16, 1993, public respondent judge issued the assailed Order which reads:

"Acting on the Motion to Convert Proceedings to Action for Judicial Partition, considering that the
petitioner is the only heir not amenable to a simple partition, and all the other compulsory heirs

manifested their desire for an expeditious settlement of the estate of the deceased Antonio Avelino,
Sr., the same is granted.

"WHEREFORE, the petition is converted into judicial partition of the estate of deceased Antonio Avelino,
Sr. The parties are directed to submit a complete inventory of all the real and personal properties left
by the deceased. Set the hearing of the judicial partition on APRIL 13, 1993, at 8:30 o'clock in the
morning. Notify all the parties and their counsel of this assignment.

"SO ORDERED."[1]

On March 17, 1993, petitioner filed a motion for reconsideration which was denied in an Order dated
June 16, 1993.

On July 23, 1993, Ma. Socorro filed before the Court of Appeals, a petition for certiorari, prohibition, and
mandamus alleging grave abuse of discretion amounting to lack or excess of jurisdiction on the part of
the trial court, in granting private respondents' motion to convert the judicial proceeding for the
issuance of letters of administration to an action for judicial partition. Her petition was docketed as CAG.R. SP No. 31574. Sdaad

On February 18, 1994, the respondent appellate court rendered the assailed decision, stating that the
"petition is DENIED DUE COURSE" and accordingly dismissed."[2]

On March 1, 1994, petitioner duly moved for reconsideration, but it was denied on April 28, 1994.

Hence, this petition. Petitioner assigns the following errors:

THE COURT OF APPEALS ERRED IN UPHOLDING THE LOWER COURT'S FINDING THAT PARTITION IS
PROPER UNDER THE PREMISES.

ADMINISTRATION SHOULD BE THE PROPER REMEDY PENDING THE DETERMINATION OF THE

CHARACTER AND EXTENT OF THE DECEDENT'S ESTATE.[3]

For resolution, we find that given the circumstances in this case, the sole issue here is whether
respondent appellate court committed an error of law and gravely abused its discretion in upholding
the trial court's finding that a partition is proper.

Petitioner submits that: First, no partition of the estate is possible in the instant case as no
determination has yet been made of the character and extent of the decedent's estate. She points to
the Court's ruling in Arcilles v. Montejo, 26 SCRA 197 (1969), where we held that when the existence of
other properties of the decedent is a matter still to be reckoned with, administration proceedings are
the proper mode of resolving the same.[4] In addition, petitioner contends that the estate is in danger
of being depleted for want of an administrator to manage and attend to it.

Second, petitioner insists that the Rules of Court does not provide for conversion of a motion for the
issuance of letters of administration to an action for judicial partition. The conversion of the motion
was, thus, procedurally inappropriate and should be struck down for lack of legal basis.

When a person dies intestate, or, if testate, failed to name an executor in his will or the executor so
named is incompetent, or refuses the trust, or fails to furnish the bond required by the Rules of Court,
then the decedent's estate shall be judicially administered and the competent court shall appoint a
qualified administrator in the order established in Section 6 of Rule 78.[5] The exceptions to this rule
are found in Sections 1 and 2 of Rule 74[6] which provide:

"SECTION 1. Extrajudicial settlement by agreement between heirs. - If the decedent left no will and no
debts and the heirs are all of age or the minors are represented by their judicial or legal
representatives duly authorized for the purpose, the parties may, without securing letters of
administration, divide the estate among themselves as they see fit by means of a public instrument
filed in the office of the register of deeds, and should they disagree, they may do so in an ordinary
action of partition.. Scs daad

"SEC. 2. Summary settlement of estates of small value.- Whenever the gross value of the estate of a
deceased person, whether he died testate or intestate, does not exceed ten thousand pesos, and that
fact if made to appear to the Regional Trial Court having jurisdiction of the estate by the petition of an
interested person and upon hearing, which shall be held not less than one (1) month nor more than
three (3) months from the date of the last publication of a notice which shall be published once a week
for three (3) consecutive weeks in a newspaper of general circulation in the province, and after such
other notice to interested persons as the court may direct, the court may proceed summarily, without
the appointment of an executor or administrator, and without delay, to grant, if proper, allowance of
the will, if any there be, to determine who are the persons legally entitled to participate in the estate
and to apportion and divide it among them after the payment of such debts of the estate as the court
shall then find to be due; and such persons, in their own right, if they are lawful age and legal capacity,
or by their guardians or trustees legally appointed and qualified, if otherwise, shall thereupon be
entitled to receive and enter into the possession of the portions of the estate so awarded to them
respectively. The court shall make such order as may be just respecting the costs of the proceedings,
and all orders and judgments made or rendered in the course thereof shall be recorded in the office of
the clerk, and the order of partition or award, if it involves real estate, shall be recorded in the proper
register's office."

The heirs succeed immediately to all of the rights and properties of the deceased at the moment of the
latter's death.[7] Section 1, Rule 74 of the Rules of Court, allows heirs to divide the estate among
themselves without need of delay and risks of being dissipated. When a person dies without leaving
pending obligations, his heirs, are not required to submit the property for judicial administration, nor
apply for the appointment of an administrator by the court.[8]

We note that the Court of Appeals found that in this case "the decedent left no debts and the heirs and
legatees are all of age."[9] With this finding, it is our view that Section 1, Rule 74 of the Rules of Court
should apply.

In a last-ditch effort to justify the need for an administrator, petitioner insists that there is nothing to
partition yet, as the nature and character of the estate have yet to be determined. We find, however,
that a complete inventory of the estate may be done during the partition proceedings, especially since
the estate has no debts. Hence, the Court of Appeals committed no reversible error when it ruled that
the lower court did not err in converting petitioner's action for letters of administration into an action
for judicial partition. Sup rema

Nor can we sustain petitioner's argument that the order of the trial court converting an action for
letters of administration to one for judicial partition has no basis in the Rules of Court, hence
procedurally infirm. The basis for the trial court's order is Section 1, Rule 74 of the Rules of Court. It
provides that in cases where the heirs disagree as to the partition of the estate and no extrajudicial
settlement is possible, then an ordinary action for partition may be resorted to, as in this case. We
have held that where the more expeditious remedy of partition is available to the heirs, then the heirs

or the majority of them may not be compelled to submit to administration proceedings.[10] The trial
court appropriately converted petitioner's action for letters of administration into a suit for judicial
partition, upon motion of the private respondents. No reversible error may be attributed to the Court of
Appeals when it found the trial court's action procedurally in order.

WHEREFORE, the petition is DENIED for lack of merit, and the assailed decision and resolution of the
Court of Appeals is CA-G.R. SP No. 31574 are AFFIRMED. Costs against petitioner.
SO ORDERED.
Bellosillo, (Chairman), Mendoza, Buena, and De Leon, Jr., JJ., concur. Juris
[1] Rollo, pp. 15-16.
[2] Id. at 18.
[3] Id. at 5.
[4] 26 SCRA 197, 201-202 (1969).
[5] Utulo v. Pasion vda. De Garcia, 66 Phil. 302, 305 (1938).
[6] Supra.
[7] Art. 777, Civil Code.
[8] Intestate Estate of Mercado v. Magtibay, 96 Phil. 383, 387 (1954); Utulo v. Pasion vda. De Garcia, 66
Phil. 302, 305 (1938); Fule v. Fule, 46 Phil 317, 323 (1924), Baldemor v. Malangyaon, 34 Phil. 367, 369370 (1916); Bondad v. Bondad, 34 Phil. 232, 235-236 (1916); Malahacan v. Ignacio, 19 Phil. 434, 436
(1911); Ilustre v. Alaras Frondosa, 17 Phil. 321, 323 (1910).
[9] Rollo, p. 18.
[10] Intestate of Mercado v. Magtibay, supra.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
A.M. No. P-11-2980
June 10, 2013
(Formerly OCA I.P.I. No. 08-3016-P)
LETICIA A. ARIENDA, Complainant,
vs.
EVELYN A. MONILLA, COURT STENOGRAPHER III, REGIONAL TRIAL COURT, BRANCH 4,
LEGAZPI CITY,Respondent.
DECISION
LEONARDO-DE CASTRO, J.:
This is an administrative complaint for conduct unbecoming a court employee and abuse of authority
filed by complainant Leticia A. Arienda against respondent Evelyn A. Monilla, Court Stenographer Ill of
the Regional Trial Court (RTC), Branch 4 of Legazpi City.
In her letter-complaint1 dated October 8, 2008, complainant alleged that respondent and Atty. Zaldy
Monilla (Atty. Monilla), respondent's husband (together referred to as the spouses Monilla), went to
complainants house on January 13, 2002 and offered their services in settling the estate of
complainants deceased mother. According to the spouses Monilla, they would prepare an extrajudicial
settlement for complainant and the latters siblings, while respondents brother, Engineer Matias A.
Arquero (Engr. Arquero), would conduct the survey of the estate. Everytime the spouses Monilla went
to complainants house, they would ask for partial payment. Six Temporary Receipts show that
complainant had paid the spouses Monilla a total of P49,800.00. Complainant repeatedly requested
from the spouses Monilla the approved survey plan prepared by Engr. Arquero, but the spouses Monilla
demanded that complainant first pay the P20,000.00 she still owed them before they give her the
approved survey plan and extrajudicial settlement of estate. Complainant subsequently learned that
the spouses Monilla had no authority to settle her deceased mothers estate as Atty. Monilla was
currently employed at the Department of Agrarian Reform (DAR) and respondent was not even a
lawyer but an ordinary court employee.
In her comment2 dated May 23, 2009, respondent denied that it was she and her husband who offered
complainant their services in settling the estate of complainants deceased mother. Respondent
averred that it was complainant and her sister, Ester, who came to respondents house sometime in
December 2000 and requested respondent to convince her brother Engr. Arquero, a geodetic engineer,
to partition the four lots left by complainants parents situated in Bigaa, Legazpi City. Respondent was
initially hesitant to accede to complainants request because of complainants reputation in their

locality as a troublemaker. However, respondents husband, upon learning that complainant was a
relative, urged respondent to assist the complainant.
Respondent alleged that she was not privy to the agreement between Engr. Arquero and complainant.
Complainant scheduled the survey of one of the lots, Lot No. 5489, on January 13, 2001. After Engr.
Arquero conducted the survey, complainant was nowhere to be found and respondent had to shoulder
the expenses for the same.
Respondent further narrated that without her knowledge, complainant and her siblings filed a case for
partition of estate before the RTC, Branch 7 of Legazpi City, on May 24, 2001. When their case was
dismissed by the RTC, complainant and her siblings argued at the Hall of Justice, thus, disrupting court
proceedings. Knowing that respondent was a court employee, complainant approached and asked
respondent to intervene. Respondent, during her lunch break, met with complainant and the latters
siblings at respondents residence located near the Hall of Justice. Complainant and her siblings,
already wishing to partition their deceased parents estate out of court, pleaded that respondent
prepare an extrajudicial settlement. Respondent declined to get involved at first because complainant
and her siblings were represented by a lawyer in the partition case before the RTC, but complainant
and her siblings said that they had no more money to pay for the continued services of their lawyer.
Respondent understood the predicament of complainant and her siblings, so respondent agreed to
help them. Respondent called her brother, Engr. Arquero, and requested him to bring the sketch plan
of Lot No. 5489 he had previously prepared. In the presence of Engr. Arquero, complainant and her
siblings chose their respective shares in the property. Respondent prepared and finalized the
extrajudicial settlement and handed the said document to complainant and her siblings. After a year,
complainant, her sister Ester, and a buyer of their shares in Lot No. 5489, Marlyn Dominguez
(Dominguez), again approached respondent. Complainant asked that Engr. Arquero continue with the
partition of Lot No. 5489 as Dominguez advanced the money to pay for the expenses, including the
preparation of the lot plan. Engr. Arquero, despite his misgivings and persuaded by respondent,
conducted the survey, but complainant did not show up and respondent had to shoulder the expenses
once more.
Respondent went on to recount that on January 20, 2003, complainant, Ester, and a sales agent came
to respondents house, asking respondent to again convince her brother Engr. Arquero to re-survey Lot
No. 5489 because the boundaries were no longer visible. According to complainant, the new buyer,
Galahad O. Rubio (Rubio), wanted to see the exact location and the boundaries of the lot. Respondent
refused and told complainant to directly negotiate with Engr. Arquero. When complainant and her
companions returned in the afternoon, complainant tendered P9,000.00 to respondents husband, Atty.
Monilla, as partial payment for the latters services. The following day, complainant and her
companions came back and complainant handed over anotherP9,000.00 as partial payment for the
services of respondents brother, Engr. Arquero.
Respondent admitted receiving from complainant payments amounting to P49,800.00, all made at
respondents residence in Rawis, not at complainants house in Bigaa. The P25,000.00 was for the
preparation by Atty. Monilla of the following documents: (a) four deeds of sale to different buyers; (b)
two copies of extrajudicial settlement; (c) two contracts to sell; (d) two authorities to sell; and (e) one
demand letter. The remaining P24,800.00 was for Engr. Arqueros services in subdividing Lot No. 5489
into 13 lots.
Respondent asserted that she had already turned over to complainant on March 30, 2003 the notarized
extrajudicial settlement for Lot No. 5489, the blueprint of the subdivision plan for the said lot, and the
deed of sale between complainant and Rubio. The subdivision plan was not approved by the Bureau of
Lands because of complainants failure to submit other requirements. Because of complainants broken
promises, respondent and her husband, Atty. Monilla, no longer prepared the other documents
complainant was requesting for, and respondents brother, Engr. Arquero, discontinued his services as
a surveyor.
Lastly, respondent maintained that complainant knew that Atty. Monilla was a DAR employee.
Complainant and her siblings had often consulted Atty. Monilla regarding the properties left by their
parents, as well as their ongoing family feud. Complainant was likewise aware that respondent was not
a lawyer and was a mere court stenographer since complainant and respondent are neighbors and
they are related to one another. Respondent had already filed for early retirement effective April 23,
2007, and she claimed that her former co-employees at the RTC, Branch 4 of Legazpi City conspired
and confederated with one another to induce complainant to file the instant complaint against her.
In a Resolution3 dated June 23, 2010, the Court referred the instant administrative matter to Vice
Executive Judge Pedro R. Soriao (Investigating Judge Soriao) of RTC, Branch 5 of Legazpi City, for
investigation, report, and recommendation.
In his report4 dated September 22, 2010, Investigating Judge Soriao made the following findings and
recommendations:

Substantial evidence appearing of record demonstrates that Evelyn A. Monilla committed a simple
misconduct unbecoming of court personnel while she was a court stenographer. The imposition upon
her of an administrative penalty of fine equivalent to two months of the salary that she was receiving
when she resigned to be deducted from her retirement benefits is hereby recommended.
Finally, it is submitted that Evelyn A. Monillas liability over the amount of 49,800 pesos that she
received from Leticia Arienda is a legal matter that can be properly ventilated in a separate
appropriate judicial proceeding.5
After evaluation of Investigating Judge Sariaos report, the Office of the Court Administrator (OCA)
submitted to the Court its Memorandum6 dated July 14, 2011, likewise recommending that respondent
be found guilty of simple misconduct but that the amount of fine imposed against her be increased to
four months salary, to be deducted from her retirement benefits.
In her Manifestation7 dated May 2, 2012, respondent informed the Court that Dominguez filed a case
against complainant for a sum of money and damages, docketed as Civil Case No. 5287, before the
Municipal Trial Court in Cities (MTCC), Branch 2 of Legazpi City. Dominguez wanted to recover the
partial payments she had made on Lot No. 5489, plus other damages, after complainant sold the very
same property to someone else. In a Decision dated July 7, 2006, the MTCC ruled in Dominguezs favor.
Respondent wanted this Court to note that neither complainant nor Dominguez mentioned in Civil Case
No. 5287 the participation of respondent or her brother in the transaction involving Lot No. 5489.
It bears to note that respondent admitted in her comment that she prepared and finalized the
extrajudicial settlement of the estate of complainants deceased mother. The preparation of an
extrajudicial settlement of estate constitutes practice of law as defined in Cayetano v. Monsod, 8 to wit:
Practice of law means any activity, in or out of court, which requires the application of law, legal
procedure, knowledge, training and experience. "To engage in the practice of law is to perform those
acts which are characteristics of the profession. Generally, to practice law is to give notice or render
any kind of service, which device or service requires the use in any degree of legal knowledge or skill."
x x x.
Not being a lawyer, respondent had no authority to prepare and finalize an extrajudicial settlement of
estate. Worse, respondent also admitted receiving money from complainant for her services. Being a
court employee, respondent ought to have known that it was improper for her to prepare and finalize
the extrajudicial settlement of estate, a service only a lawyer is authorized to perform, and to receive
money therefor.
It is true that respondent prepared and finalized the extrajudicial settlement of estate pursuant to a
private agreement between her and complainant. However, respondent is an employee of the court
whose conduct must always be beyond reproach and circumscribed with the heavy burden of
responsibility as to let her be free from any suspicion that may taint the judiciary. She is expected to
exhibit the highest sense of honesty and integrity not only in the performance of her official duties but
also in her personal and private dealings with other people to preserve the courts good name and
standing.9
Respondents behavior and conduct, which led other people to believe that she had the authority and
capability to prepare and finalize an extrajudicial settlement of estate even when she is not a lawyer,
clearly fall short of the exacting standards of ethics and morality imposed upon court employees.
Respondents mention of Civil Case No. 5287 before the MTCC does not help her defense.1wphi1 That
case is irrelevant herein for it is between complainant and Dominguez.
Misconduct generally means wrongful, unlawful conduct, motivated by a premeditated, obstinate or
intentional purpose. Thus, any transgression or deviation from the established norm, whether it be
work-related or not, amounts to misconduct.10 In preparing and finalizing the extrajudicial settlement of
estate and receiving compensation for the same even when she is not a lawyer, respondent is guilty of
simple misconduct, punishable under Section 52(B)(2) of the Revised Uniform Rules on Administrative
Cases in the Civil Service with suspension for one month and one day to six months. Considering that
this is respondent's first offense and that she had served the judiciary for almost 16 years, a
suspension of four months would have been proper. Since respondent had already retired, the Court
instead imposes the penalty of a fine equivalent to her salary for four months, to be deducted from her
retirement benefits.
WHEREFORE, in view of the foregoing, the Court finds respondent Evelyn Monilia, retired Stenographer
III of RTC, Branch 4 of Legazpi City, GUILTY of simple misconduct and imposes upon said respondent a
FINE equivalent to four months salary to be deducted from her retirement benefits.
SO ORDERED.
Footnotes
1
Rollo, pp. 3-4.
2
Id. at 22-27.

Id. at 88-89.
Id. at 91-94.
5
Id. at 94.
6
Id. at 207-213.
7
Id. at 217-218.
8
278 Phil. 235, 243 (1991).
9
Spouses Tiples, Jr. v. Montoyo, 523 Phil. 404, 407 (2006).
10
Hernando v. Bengson, A.M. No. P-09-2686, March 10, 2010, 615 SCRA 7, II.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 181508
October 2, 2013
OSCAR CONSTANTINO, MAXIMA CONSTANTINO and CASIMIRA MATURINGAN, Petitioners,
vs.
HEIRS OF PEDRO CONSTANTINO, JR., represented by ASUNCION
LAQUINDANUM, Respondents.
DECISION
PEREZ, J.:
Before the Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court assailing the
31 May 2007 Decision1 of the Court of Appeals in CA-G.R. CV No. 81329, which reversed the 27
October 2003 Decision2of the Regional Trial Court (RTC), Branch 18 of Malolos City, Bulacan, in a
complaint for Declaration of Nullity of "Pagmamana sa Labas ng Hukuman," Tax Declaration Nos. 9610022-02653 & 1002655, With Prayer for a Writ of Preliminary Injunction & Damages docketed as Civil
Case No. 630-M-99.
The facts
This involves a controversy over a parcel of land claimed to be part of an estate which needed to be
proportionally subdivided among heirs.
Pedro Constantino, Sr., (Pedro Sr.) ancestors of the petitioners and respondents, owned several parcels
of land, one of which is an unregistered parcel of land declared for taxation purposes under Tax
Declaration 208143consisting of 240 square meters situated at Sta. Monica, Hagonoy, Bulacan. Pedro,
Sr., upon his death, was survived by his six (6) children, namely: 1) PEDRO CONSTANTINO, JR. (Pedro
Jr.), the grandfather of the respondents; 2) ANTONIA CONSTANTINO, who later died without issue; 3)
CLARA CONSTANTINO, who also later died without issue; 4) BRUNOCONSTANTINO, who was survived
by his 6 children including petitioner Casimira Constantino-Maturingan; 5) EDUARDO CONSTANTINO,
who is survived by his daughter Maura; and 6) SANTIAGO CONSTANTINO, who was survived by his five
(5) children which includes petitioner Oscar Constantino. 4
On 17 June 1999, respondents Asuncion Laquindanum (Asuncion)and Josefina Cailipan (Josefina), great
grandchildren of Pedro Sr., in representation of Pedro, Jr. filed a complaint 5
against petitioners Oscar Constantino, Maxima Constantino and Casimira Maturingan, grandchildren of
Pedro Sr., for the nullification of a document denominated as "Pagmamana sa Labas ng Hukuman"
dated 10 August 1992,6Tax Declaration Nos. 96-10022 (02653)7 and 96-10022 (02655)8 and
reinstatement of Tax Declaration No. 208149 in the name of Pedro Sr.
In the said complaint, respondents alleged that sometime in October 1998, petitioners asserted their
claim of ownership over the whole parcel of land (240 sq m) owned by the late Pedro Sr., to the
exclusion of respondents who are occupying a portion thereof. Upon verification, respondents learned
that a Tax Declaration No. 02010-2170-33235 in the name of petitioner Oscar Constantino and his
cousin Maxima Constantino was unlawfully issued, which in effect canceled Tax Declaration No. 20814
in the name of their ancestor Pedro Sr. The issuance of the new tax declaration was allegedly due to
the execution of a simulated, fabricated and fictitious document denominated as "Pagmamana sa
Labas ng Hukuman," wherein the petitioners misrepresented themselves as the sole and only heirs of
Pedro Sr. It was further alleged that subsequently, the subject land was divided equally between
petitioners Oscar and Maxima resulting in the issuance of Tax Declaration No. 96-10022-02653 10 in the
name of Oscar, with an area of 120sq m and the other half in the name of Maxima covered by Tax
Declaration No. 96-10022-02652.11 The share of Maxima was eventually conveyed to her sister,
petitioner Casimira in whose name a new Tax Declaration No. 96-10022-02655 12 was issued.
Thus, respondents sought to annul the "Pagmamana sa Labas ngHukuman" as well as the Tax
Declarations that were issued on the basis of such document.
The petitioners, on the other hand, averred in their Answer With Counterclaim 13 that Pedro Sr., upon his
death, left several parcels of land, namely: 1) a lot with an area of 240 sq m covered by Tax
Declaration No.20814; 2) a lot with an area of 192 sq m also situated at Sta. Monica,Hagonoy, Bulacan,
3
4

previously covered by Tax Declaration No. 9534; and 3)an agricultural land with an area of Four (4)
hectares, more or less. The petitioners claimed that the document "Pagmamana sa Labas ng
Hukuman" pertaining to the 240 sq m lot was perfectly valid and legal, as it was a product of mutual
and voluntary agreement between and among the descendants of the deceased Pedro Sr.
Further, petitioners alleged that the respondents have no cause of action against them considering
that the respondents lawful share over the estate of Pedro Sr., had already been transferred to them
as evidenced by the Deed of Extrajudicial Settlement with Waiver 14 dated 5 December 1968,executed
by Angelo Constantino, Maria Constantino (mother of respondent Asuncion), Arcadio Constantino and
Mercedes Constantino, all heirs of Pedro Jr. In the said deed, respondents adjudicated unto themselves
to the exclusion of other heirs, the parcel of land with an area of 192 sq m by misrepresenting that
they were "the only legitimate heirs of Pedro Sr. Thus, petitioners claimed that in the manner similar to
the assailed "Pagmamana sa Labas ng Hukuman," they asserted their rights and ownership over the
subject 240 sq m lot without damage to the respondents.
In essence, petitioners position was that the Deed of Extrajudicial Settlement with Waiver which led to
the issuance of Tax Declaration No.9534 was acquiesced in by the other heirs of Pedro Sr., including
the petitioners, on the understanding that the respondent heirs of Pedro Jr. would no longer share and
participate in the settlement and partition of the remaining lot covered by the "
Pagmamana sa Labas ng Hukuman."
On 15 August 2000, pre-trial conference15 was conducted wherein the parties entered into stipulations
and admissions as well as identification of the issues to be litigated. Thereupon, trial on the merits
ensued.
On 27 October 2003, the RTC rendered a Decision16 in favor of the respondents finding that:
As a result of execution of "Extrajudicial Settlement with Waiver" dated December 5, 1968 (Exh. "2")
executed by the heirs of Pedro Constantino, Jr., a son of Pedro Constantino, Sr. and the subsequent
execution of another deed denominated as "Pagmamana sa Labas ng Hukuman" dated August 10,
1992 (Exh. "E") executed by the heirs of Santiago and Bruno Constantino, also other sons of Pedro
Constantino, Sr., to the exclusion of the other heirs, namely, those of ANTONIA, CLARA, and EDUARDO
CONSTANTINO, both plaintiffs and defendants acted equally at fault. They are in pari delicto, whereby
the law leaves them as they are and denies recovery by either one of them. (See:Yu Bun Guan v. Ong,
367 SCRA 559). Parties who are equally guilty cannot complain against each other. (Sarmiento v. Salud,
45 SCRA 213.)
Supplementing the law on the matter, that is, the provision of Article 19 of the New Civil Code whereby
every person must, in the exercise of his rights and in the performance of his duties, act with justice,
give everyone his due, and observe honesty and good faith, is the legal maxim that "he who comes to
court to demand equity must come with clean hands." (LBC Express, Inc. v. Court of Appeals, 236 SCRA
602).
Although, plaintiffs-heirs of Pedro Constantino, Jr., including Asuncion Laquindanum and Josefina
Cailipan, are not parties or signatories to the "Extrajudicial Settlement with Waiver" dated December 5,
1968, they are successors-in-interest of Pedro Constantino, Jr. They areconsidered "privies" to said
deed, and are bound by said extrajudicial settlement. (See: Cabresos v. Tiro, 166 SCRA 400). In other
words, they are "PRIVIES IN ESTATE". (Correa v. Pascual, 99 Phil. 696, 703).
Consequently, plaintiffs are now estopped from claiming otherwise. (See: PNB v. CA, 94 SCRA 357).
They are estopped to share in the real property subject matter of this case. In fine, they are not
entitled to the reliefs prayed for.1wphi1 (Communication Materials & Design, Inc. v. CA, 260 SCRA
673).
With respect to alleged damages claimed by plaintiffs against defendants in their Complaint and
counterclaim for damages by defendants against plaintiffs in their Answer, both claims are hereby
dismissed for lack of valid factual and legal foundations.
Disposition
WHEREFORE, in view of the foregoing premises and disquisition, the deed denominated as
"Pagmamana sa Labas ng Hukuman" of August10, 1992 and Tax Declaration No. 96-10022-02653 in
the name of Oscar Constantino and Tax Declaration No. 96-10022-02655 in the name of Casimira C.
Maturingan (from Maxima Constantino to Casimira C. Maturingan) stand. Plaintiffs Complaint for
nullification thereof with damages is hereby DISMISSED. 17
Not convinced, the respondents appealed the afore quoted decision to the Court of Appeals (CA)
raising, among others, the erroneous application by the trial court of the doctrine of "in pari delicto" in
declaring the validity of the document "Pagmamana sa Labas ng Hukuman."
In its 31 May 2007 Decision,18 the CA ruled in favor of the respondents heirs of Pedro, Jr., declaring that
the "Extrajudicial Settlement with Waiver" dated 5 December 1968 they executed covering the 192 sq
mlot actually belongs to Pedro Jr., hence, not part of the estate of Pedro Sr. The CA rationated in this
wise:

The 192 square meters lot which was adjudicated in the "Extrajudicial Settlement with Waiver" dated 5
December 1968 among the heirs of Pedro Jr. namely Angelo, Maria, Arcadio and Mercedes is a property
belonging to Pedro Jr. although there is a typographical error in that the name of Pedro Jr. was
inadvertently typed only as Pedro Constantino. It is clear from the reading of the document that a
typographical error was committed because the four (4) children of PedroJr. by Felipa dela Cruz were
specifically identified. Further, during the presentation of evidence of the plaintiffs-appellants, it was
rebutted that Pedro Sr. had six (6) legitimate children namely: Pedro Jr., Antonia, Clara, Santiago, Bruno
and Eduardo19 and Pedro Jr. had four (4).20
Thus, the CA went on to state that the respondents, heirs of Pedro Jr., did not adjudicate the 192 sq m
lot unto themselves to the exclusion of all the other heirs of Pedro Sr. Rather, the adjudication in the
document entitled "Extrajudicial Settlement with Waiver dated 5 December 1968 pertains to a different
property and is valid absent any evidence to the contrary. Hence, it is erroneous for the trial court to
declare the parties in pari delicto.
The Issue
The petitioners now question the said ruling assigning as error, among others, the failure of the CA to
appreciate the existence of misrepresentation in both documents, thereby ignoring the propriety of the
application of the in pari delicto doctrine. Likewise assailed is the erroneous disregard by the CA of
stipulations and admissions during the pre-trial conference on which the application of the doctrine of
in pari delicto was based.
Our Ruling
Latin for "in equal fault," in pari delicto connotes that two or more people are at fault or are guilty of a
crime. Neither courts of law nor equity will interpose to grant relief to the parties, when an illegal
agreement has been made, and both parties stand in pari delicto. 21 Under the pari delicto doctrine, the
parties to a controversy are equally culpable or guilty, they shall have no action against each other,
and it shall leave the parties where it finds them. This doctrine finds expression in the maxims "ex dolo
malo nonoritur actio" and "in pari delicto potior est conditio defendentis." 22
When circumstances are presented for the application of such doctrine, courts will take a hands off
stance in interpreting the contract for or against any of the parties. This is illustrated in the case of
Packaging Products Corporation v. NLRC,23 where this Court pronounced that:
This Court cannot give positive relief to either petitioner or respondent because we are asked to
interpret and enforce an illegal and immoral arrangement. (See Articles 1409, 1411, and 1412 of the
Civil Code). Kickback arrangements in the purchase of raw materials, equipment, supplies and other
needs of offices, manufacturers, and industrialists are so widespread and pervasive that nobody seems
to know how to eliminate them. x x x.
Both the petitioners and the private respondent are in pari delicto. Neither one may expect positive
relief from courts of justice in the interpretation of their contract. The courts will leave them as they
were at the time the case was filed.24
As a doctrine in civil law, the rule on pari delicto is principally governed by Articles 1411 and 1412 of
the Civil Code, which state that:
Article 1411. When the nullity proceeds from the illegality of the cause or object of the contract, and
the act constitutes a criminal offense, both parties being in pari delicto, they shall have no action
against each other, and both shall be prosecuted.
xxx xxx
Article 1412. If the act in which the unlawful or forbidden cause consists does not constitute a criminal
offense, the following rules shall be observed:
xxx xxx
1. When the fault is on the part of both contracting parties, neither may recover what he has given by
virtue of the contract, or demand the performance of the others undertaking;
xxx xxx.
The petition at bench does not speak of an illegal cause of contract constituting a criminal offense
under Article 1411. Neither can it be said that Article 1412 finds application although such provision
which is part of Title II, Book IV of the Civil Code speaks of contracts in general, as well as contracts
which are null and void ab initio pursuant to Article 1409 of the Civil Code such as the subject
contracts, which as claimed, are violative of the mandatory provision of the law on legitimes.
We do not dispute that herein parties, through the Deeds they separately executed deprived each
other of rightful shares in the two lots subject of the separate contracts that is, if the two (2) parcels
of land subject matter thereof, form part of the estate of the late Pedro Sr.
It is asserted by the petitioners that their execution in 1992 of the contract denominated as
"Pagmamana sa Labas ng Hukuman" which excluded other heirs of Pedro Sr., was with an underlying
agreement with the other heirs including Maria Constantino, daughter of Pedro Jr. and grandmother of
respondents.25 The agreement was for the other heirs to recognize the 192 square meters lot subject

matter of the "Extrajudicial Settlement with Waiver" executed in 1968 as the share of the heirs of
Pedro Sr. in the estate of Pedro Sr., Petitioners respected such agreement, as in fact, Maria
Laquindanum and that of her heirs, herein respondents, were not disturbed in their possession or
ownership over the said parcel of land; thus, the heirs of Pedro Jr. were said to have acquiesced 26 to the
"Pagmamana sa Labas ng Hukuman" and the underlying agreement and therefore they have no
recourse or reason to question it taking cue from the doctrine of in paridelicto. This was the basis of
the trial courts findings that respondents are now estopped from claiming otherwise. 27
We find that the trial court erroneously applied the doctrine.
This is not to say, however, that the CA was correct in upholding the validity of the contract
denominated as "Pagmamana sa Labas ng Hukuman." The CA decision being, likewise, based on pari
delicto, is also incorrect.
Finding the inapplicability of the in pari delicto doctrine, We find occasion to stress that Article 1412 of
the Civil Code that breathes life to the doctrine speaks of the rights and obligations of the parties to
the contract with an illegal cause or object which does not constitute a criminal offense. It applies to
contracts which are void for illegality of subject matter and not to contracts rendered void for being
simulated,28 or those in which the parties do not really intend to be bound thereby. Specifically, in pari
delicto situations involve the parties in one contract who are both at fault, such that neither can
recover nor have any action against each other.
In this case, there are two Deeds of extrajudicial assignments unto the signatories of the portions of
the estate of an ancestor common to them and another set of signatories likewise assigning unto
themselves portions of the same estate. The separate Deeds came into being out of an identical
intention of the signatories in both to exclude their co-heirs of their rightful share in the entire estate of
Pedro Sr. It was, in reality, an assignment of specific portions of the estate of Pedro Sr., without
resorting to a lawful partition of estate as both sets of heirs intended to exclude the other heirs.
Clearly, the principle of in pari delicto cannot be applied. The inapplicability is dictated not only by the
fact that two deeds, not one contract, are involved, but because of the more important reason that
such an application would result in the validation of both deeds instead of their nullification as
necessitated by their illegality. It must be emphasized that the underlying agreement resulting in the
execution of the deeds is nothing but a void agreement. Article 1409 of the Civil Code provides that:
ART. 1409. The following contracts are in existent and void from the beginning:
(1) Those whose cause, object or purpose is contrary to law; morals, good customs, public order or
public policy;
xxx
xxx
xxx
Corollarily, given the character and nature of the deeds as being void and in existent, it has, as a
consequence, of no force and effect from the beginning, as if it had never been entered into and which
cannot be validated either by time or ratification.29
That said, we cannot give credence to the contention of respondents that no fault can be attributed to
them or that they are free from the effects of violation of any laws arising from the supposed unlawful
agreement entered into between Maria Laquindanum, their predecessor-in-interest, and the other
heirs, including petitioners herein, based on the fact that they are not signatories to said agreement,
thus, the lack of any binding effect to them. Respondents argued and set forth as an issue during the
trial that they were not signatories to any of the contract or privies to such an arrangement. It is not
disputed, however, that respondents are successors-in-interest of Maria Laquindanum, one of the
signatories in the Extrajudicial Settlement with Waiver who was also allegedly in agreement with the
petitioners.
On this note, We agree with the trial court that respondents are "privies" to Maria Laquindanum. By the
term "privies" is meant those between whom an action is deemed binding although they are not
literally parties to the said action.30 This Court, in Correa v. Pascual,31 had occasion to explain that
"privity in estate denotes the privity between assignor and assignee, donor and donee, grantor and
grantee, joint tenant for life and remainderman or reversioner and their respective assignees, vendor
by deed of warranty and a remote vendee or assignee. A privy in estate is one, it has been said, who
derives his title to the property in question by purchase; one who takes by conveyance." In fine,
respondents, as successors-in-interest, derive their right from and are in the same position as their
predecessor in whose shoes they now stand. As such successors, respondents situation is analogous
to that of a transferee pendente lite illustrated in Santiago Land Development Corporation v. Court of
Appeals,32reiterating Fetalino v. Sanz33 where this Court held:
As such, he stands exactly in the shoes of his predecessor in interest, the original defendant, and is
bound by the proceedings had in the case before the property was transferred to him. He is a proper,
but not an indispensable, party as he would, in any event, have been bound by the judgment against
his predecessor.34

Thus, any condition attached to the property or any agreement precipitating the execution of the Deed
of Extrajudicial Settlement with Waiver which was binding upon Maria Laquindanum is applicable to
respondents who merely succeeded Maria.
This notwithstanding, it must however be shown that the Deed of Extrajudicial Settlement with Waiver,
referred to a property owned by Pedro Sr. There is such basis from the facts of this case.
The records show that apart from respondent Asuncion Laquindanumss statement that the parcel of
land subject matter of the Deed of Extrajudicial Settlement with Waiver is not part of the estate of
Pedro Sr., their common ancestor, no other evidence was offered to support it. The CA in giving
credence to the respondents claim, merely relied on the alleged typographical error in the Deed. The
basis for the CAs conclusion was the inclusion of the wife of Pedro Jr. and that of their children, which
the CA considered as proof that the property was owned by Pedro Jr. and not part of the estate of Pedro
Sr. As pointed out by the petitioners, the mention of the names of the children of Pedro Jr. in the
Extrajudicial Settlement is not proof that the subject of the deed is the property of Pedro Jr. Meant to
exclude all the other heirs of Pedro Sr., only the children of Pedro Jr. appeared in the Extrajudicial
Settlement as heirs.
Weak as the reasoning is, the CA actually contradicted the admissions made no less by the
respondents during the pre-trial conference where they stipulated that the land covered by Tax
Declaration No. 9534 consisting of 192 sq. m belongs to Pedro Sr. 35
A portion of the admission and stipulations made by both parties during the pre-trial is hereunder
quoted, thus:
Respondents admissions:
"1. That the land covered by Tax Declaration No. 9534 previously owned by Pedro Constantino, Sr. was
transferred to Maria Constantino under Tax Declaration No. 9535; (highlighting ours)
1. The existence of Extrajudicial Settlement with Waiver per Doc. No.319, Page No. 44, Book No. 11,
Series of 1968 by Notary Public Romerico Flores, Jr."
Clearly, the above stipulation is an admission against respondents interest of the fact of ownership by
Pedro Sr. of the 192 sq m lot covered by Tax Declaration No. 9534, which was transferred to
respondents mother, the daughter of Pedro Jr. Such that, in one of the issues submitted to be resolved
by the trial court, this was included: "Whether or not the "Deed of Extrajudicial Settlement with
Waiver" is enforceable against the plaintiffs, thus curing the legal infirmities, if any, of the
"Pagmamana sa Labas ng Hukuman"36 an issue earlier mentioned.
Judicial admissions are legally binding on the party making the admissions. Pre-trial admission in civil
cases is one of the instances of judicial admissions explicitly provided for under Section 7, Rule 18 of
the Rules of Court, which mandates that the contents of the pre-trial order shall control the subsequent
course of the action, thereby, defining and limiting the issues to be tried. In Bayas, et. al. v.
Sandiganbayan, et. al.,37 this Court emphasized that:
Once the stipulations are reduced into writing and signed by the parties and their counsels, they
become binding on the parties who made them. They become judicial admissions of the fact or facts
stipulated.38 Even if placed at a disadvantageous position, a party may not be allowed to rescind them
unilaterally, it must assume the consequences of the disadvantage. 39 (Highlighting ours)
Moreover, in Alfelor v. Halasan,40 this Court declared that:
A party who judicially admits a fact cannot later challenge the fact as judicial admissions are a waiver
of proof; production of evidence is dispensed with. A judicial admission also removes an admitted fact
from the field of controversy. Consequently, an admission made in the pleadings cannot be
controverted by the party making such admission and are conclusive as to such party, and all proofs to
the contrary or inconsistent therewith should be ignored, whether objection is interposed by the party
or not. The allegations, statements or admissions contained in a pleading are conclusive as against the
pleader. A party cannot subsequently take a position contrary of or inconsistent with what was
pleaded.41 (Citations omitted)
We are aware that the last paragraph of Section 7, Rule 18 of the Rules of Court serves as a caveat for
the rule of conclusiveness of judicial admissions for, in the interest of justice, issues that may arise in
the course of the proceedings but which may not have been taken up in the pre-trial can still be taken
up.
Section 7, Rule 18 of the Rules of Court reads:
Section 7. Record of pre-trial. The proceedings in the pre-trial shall be recorded.1awp++i1 Upon the
termination thereof, the court shall issue an order which shall recite in detail the matters taken up in
the conference, the action taken thereon, the amendments allowed to the pleadings, and the
agreements or admissions made by the parties as to any of the matters considered. Should the action
proceed to trial, the order shall, explicitly define and limit the issues to be tried. The contents of the
order shall control the subsequent course of the action, unless modified before trial to prevent
injustice.

In addition, Section 4 of Rule 129 of the Rules of Court, provides that:

An admission, verbal or written, made by a party in the course of the proceedings in the same case,
does not require proof. The admission may be contradicted only by showing that it was made through
palpable mistake or that no such admission was made.
As contemplated in the aforementioned provision of the Rules of Court, the general rule regarding
conclusiveness of judicial admission upon the party making it and the dispensation of proof admits of
two exceptions: 1) when it is shown that the admission was made through palpable mistake, and 2)
when it is shown that no such admission was in fact made. The latter exception allows one to
contradict an admission by denying that he made such an admission. 42
However, respondents failed to refute the earlier admission/stipulation before and during the trial.
While denying ownership by Pedro Sr. of the 192 sq m lot, respondent Asuncion Laquindanum, when
placed on the stand, offered a vague explanation as to how such parcel of land was acquired by Pedro
Jr. A portion of her testimony43is hereto reproduced as follows:
"ATTY. DOMINGO:
Q: Do you know if as part of the estate of the late Pedro Constantino, Sr. is another parcel of land also
situated at Sta. Maria, Hagonoy, Bulacan with an area of 192 square meters?
A: It is not owned by Pedro Constantino, Sr., sir. It is our property owned by Pedro Constantino, Jr. that
was inherited by my mother Maria Constantino.
Q: And do you know how Pedro Constantino, Jr. acquired that parcel of land, the one that you
mentioned a while ago?
A: Kinagisnan ko na po yong lupang yon pagkabata pa na yon e amin." (Highlighting ours)
The above assertion of denial is simply a self-serving declarationunsupported by evidence. This
renders conclusive the stipulations made during the pre-trial conference. Consequently, respondents
are bound by the infirmities of the contract on which they based their right over the property subject
matter thereof. Considering that the infirmities in the two deeds relate to exclusion of heirs, a
circumvention of an heirs right to his or her legitime, it is apt to reiterate our ruling in Neri v. Heirs of
Hadji Yusop Uy,44 disposing that:
Hence, in the execution of the Extra-Judicial Settlement of the Estate with Absolute Deed of Sale in
favour of spouses Uy, all the heirs of Annunciation should have participated. Considering that Eutropia
and Victoria were admittedly excluded and that then minors Rosa and Douglas were not properly
represented therein, the settlement was not valid and binding upon them and consequently, a total
nullity. (Highlighting ours)
Further highlighting the effect of excluding the heirs in the settlement of estate, the case of Segura v.
Segura,45elucidated thus:
It is clear that Section 1 of Rule 74 does not apply to the partition in question which was null and void
as far as the plaintiffs were concerned. The rule covers only partition. The partition in the present case
was invalid because it excluded six of the nine heirs who were entitled to equal shares in the
partitioned property. Under the rule "no extrajudicial settlement shall be binding upon any person who
has not participated therein or had no notice thereof." As the partition was a total nullity and did not
affect the excluded heirs, it was not correct for the trial court to hold that their right to challenge the
partition had prescribed after two years from its execution x x x.
In light of the foregoing, while both parties acted in violation of the law on legitimes, the pari delicto
rule, expressed in the maxims "Ex dolo malo non oritur action" and "in pari delicto potior est condition
defendentis," which refuses remedy to either party to an illegal agreement and leaves them where
they are, does not apply in this case. (Underline supplied) 46 As held in De Leon v. CA:47
In the ultimate analysis, therefore, both acted in violation of laws. However, the pari delicto rule
expressed in the maxims "Ex dolo malo non oritur action" and "In pari delicto potior est condition
defendentis," which refuses remedy to either party to an illegal agreement and leaves them where
they are does not apply in this case.
xxx
xxx
xxx
Since the Letter-Agreement was repudiated before the purpose has been accomplished and to adhere
to the pari delicto rule in this case is to put a premium to the circumvention or the laws, positive relief
should be granted to Macaria. Justice would be served by allowing her to be placed in the position in
which she was before the transaction was entered into.
Accordingly, in order not to put a premium to the circumvention or the laws as contemplated by the
parties in the instant case, we must declare both contracts as void. Indeed, any circumvention of the
law cannot be48countenanced.
WHEREFORE, the 31 May 2007 Decision of the Court of Appeals in CA-G.R. CV No. 81329 is hereby
REVERSED. The Pagmamana sa Lahas ng Hukuman and Extrajudicial Settlement with Waiver are
hereby declared void without prejudice to the partition of the estate of Pedro Constantino Sr. with the
full participation of all the latter's heirs.

SO ORDERED.
Footnotes
1
Penned by Associate Justice Monina Arevalo-Zenarosa and concurred in by Associate Justices Portia
Alio-Hormachuelos and Edgardo F. Sundiam. CA rollo, 40-53.
2
Penned by Judge Victoria C. Fernandez-Bernardo, records, pp. 190-194.
3
Exhibit "F," id. at 10.
4
Id. at 3-4.
5
Id. at 2-8.
6
Exhibit "E," id. at 11.
7
Exhibit "C," id. at 14.
8
Exhibit "D," id. at 16.
9
Exhibit "F," id. at 10.
10
Id. at 98.
11
Id. at 99.
12
Id. at 101.
13
Id. at 24-28.
14
Id. at 30-31.
15
Id. at 70-71.
16
Id. at 190-194.
17
Id. at 193-194.
18
Rollo, pp. 32-45.
19
TSN, 23 October 2000, pp. 4-7.
20
Rollo, page 41.
21
A law Dictionary, Adapted to the Constitution and Laws of the United States. By John Bouvier.
Published 1856.
22
Ubarra v. Mapalad, A.M. No. MTJ-91-622, 22 March 1993, 220 SCRA 224, 235.
23
236 Phil. 225 (1987).
24
Id. at 234-235.
25
Answer with Counterclaim filed by defendants, herein petitioners, records, pp. 24-28.
26
Id. at 26.
27
Page 5 of the Decision dated 27 October 2003, id. at 194.
28
Lecture Notes on Civil Code by Professor Ruben F. Balane, p. 352.
29
Civil Code of the Philippines, Vol. IV, Tolentino, 1973 Ed., p. 592, also cited in Tongoy v. Court of
Appeals, 208 Phil. 95, 113 (1983).
30
Cabresos v. Judge Tiro, 248 Phil. 631, 636-637 (1988).
31
99 Phil. 696, 703 (1956) quoting 50 C.J., 407 and 33 Words and Phrases, 800.
32
334 Phil. 741, 747 (1997).
33
44 Phil. 691(1923).
34
Id. at 694.
35
Records, pp. 70-71.
36
Id. at 71.
37
440 Phil. 54 (2002).
38
Id. at 69, citing Schreiber v. Rickert, 50 NE 2d 879, 13 October 1943.
39
Id.
40
520 Phil. 982 (2006).
41
Id. at 991.
42
Florentino Atillo, III v. Court of Appeals, et. al., 334 Phil. 546, 552 (1997).
43
TSN, 23 November 2000, p. 6.
44
G.R. No. 194366, 10 October 2012, 683 SCRA 553, 560.
45
Id. at 561 citing Segura v. Segura 247-A Phil. 449, 456 (1988).
46
De Leon v. Court of Appeals, G.R. No. 80965, 6 June 1990, 186 SCRA 345, 359.
47
Id.
48
Magsalin v. National Organization of Working Men, et. al., 451 Phil. 254, 262 (2003).

G.R. No. 194066

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
June 4, 2014

REPUBLIC OF THE PHILIPPINES, Petitioner,

vs.
FRANKLIN M. MILLADO, Respondent.
DECISION
VILLARAMA, JR., J.:
Before the Court is a petition for review under Rule 45 which seeks to reverse and set aside the
Decision1 dated October 13, 2010 of the Court of Appeals (CA) in CA-G.R. CV No. 93056. The CA
affirmed the Decision2 dated January 14, 2009 of the Regional Trial Court (RTC) of Iba, Zam bales,
Branch 71 granting the petition for reconstitution in LR.A. Case No. RTC-237-I.
On February 7, 2007, Franklin M. Millado (respondent) filed a petition 3 for reconstitution of Original
Certificate of Title (OCT) No. 2108 issued in favor of the following, in undivided equal shares: Isabel
Bautista, single; Sixto Bautista, married to Elena Ela; and Apolonia Bautista, single. Respondent alleged
that he and his wife are the vendees of the property covered by the said title, by virtue of a Deed of
Extra-Judicial Settlement of Estate with Sale4 executed by the heirs of spouses Sixto and Elena Bautista
on December 29, 2006. He further averred that the owner's duplicate of OCT No. 2108 was in his
possession while he was securing clearances for the transfer of title in their names but he either left or
misplaced the same.
Respondent claimed that despite efforts he exerted to locate the owners duplicate of OCT No. 2108,
he was unable to find it. Upon verification with the Registry of Deeds, the original copy of OCT No.
2108 was likewise not found in the files of said office, as per the certification 5 issued by the Register of
Deeds for the Province of Zambales stating that said title was "declared missing as per Inventory dated
Dec. 17, 1981 and that despite d[i]ligent effort to locate it, the same could not be found."
On March 13, 2007, the trial court ordered respondent to submit the names and addresses of the
occupants or persons in possession of the property, the owners of the adjoining properties and all
persons who may have any interest in the property. In compliance, respondent submitted only the
names and addresses of the owners/actual occupants of the adjoining lots. Thereupon, the trial court
issued an Order setting the hearing of the petition on September 11, 2007. 6
Considering that the National Printing Office could no longer accommodate the publication of the
notice for the scheduled hearing date7, the trial court issued an Amended Order 8 on August 28, 2007
setting a new hearing date for the petition, December 13, 2007, and directing that (a) the notice/order
be published twice in the successive issues of the Official Gazette, posted in the premises of the
subject property, the main entrance of the Provincial Capitol and at the entrance of the municipal
building of San Narciso, Zambales; (b) copies of the notice/order together with the petition be sent to
the Office of the Solicitor General (Makati City), the Provincial Prosecutor (Iba, Zambales), the Register
of Deeds for the Province of Zambales, the Land Registration Authority (National Land Titles and
Deeds, LRA), Atty. Jose T. Pacis (Palanginan, Iba, Zambales), Engr. Franklin M. Millado and the adjoining
lot owners, namely; Remedios Fernandez and Pascual Fernandez (San Vicente, San Narciso, Zambales),
Letecia Mariano (San Juan, San Narciso, Zambales) and Harris Fogata (Candelaria, San Narciso,
Zambales); (c) the LRA thruits Records Section submit its report within 30 days from receipt of the
order/notice, pursuant to Sections 10 and 12 of LRC Circular No. 35; and (d) the Register of Deeds to
submit her verification in accordance with the aforesaid rule, within 30 days from receipt of
notice/order.
At the hearing, Jovito Calimlim, Jr., Records Officer of the Registry of Deeds of Zambales, testified that
based on the inventory files of titles in their office, OCT No. 2108 was declared missing as of December
17, 1981, with no pending transaction, per verification from the Primary Entry Book. Upon being
notified that the owners duplicate copy of said title was likewise lost, they advised respondent to file a
petition for reconstitution with the court. No opposition to the petition was filed by their office and the
LRA. As to the basis of the existence of OCT No. 2108, he said that their office relied on the decree of
registration issued by the LRA. However, he is not aware of the circumstances of the loss of said title in
their office.9
Respondent also took the witness stand and confirmed the loss of the owners duplicate copy of OCT
No. 2108 sometime in February or March 2007 while he was securing clearances from the Bureau of
Internal Revenue for the payment of capital gains tax. He said that at that time he had a bunch of
documents in an envelope but he forgot about it. He went back to the said office looking for the
envelope but there were many people going in and out of said office. He secured a certification from
the Register of Deeds on the lost or missing original OCT No. 2108 in their files, and also a certification
from the LRA regarding the issuance of the decree of registration. 10
After the formal offer of documentary evidence showing compliance with publication and posting of
notice requirements, and receipt of the Report from the LRA, the case was submitted for decision. The
LRA Report stated that: (1) based on the "Record Book of Cadastral Lots" on file at the Cadastral
Decree Section, it appears that Decree No. 295110 was issued for Lot No. 4616, San Narciso Cadastre

on October 8, 1927 in Cadastral Case No. 9, GLRO Cad. Rec. No. 371, and as per copy of said decree
on file at the Vault Section, Docket Division, the decree was issued in favor of Isabel, Sixto and
Apolonia, all surnamed Bautista, in undivided equal shares; (2) the technical description of the
property does not appear to overlap previously plotted/decreed properties inthe area; and (3) an
authenticated copy of Decree No. 295110 which can be secured from the LRA may be used as a source
of reconstitution pursuant to Section 2(d) of Republic Act No. 26 (R.A. 26). 11
On January 14, 2009, the trial court rendered its decision granting the petition for reconstitution, as
follows:
WHEREFORE, the Register of Deeds of Zambales is directed to reconstitute Original Certificate of Title
No. 2108.
Let copies of this decision be furnished the Register of Deeds of Zambales, the Land Registration
Authority, Quezon City, the Solicitor General, Makati City, the Provincial Prosecutor, Iba, Zambales,
Atty. Jose T. Pacis and the petitioner.
SO ORDERED.12
The Republic of the Philippines (petitioner) thru the Solicitor General, appealed to the CA, arguing that
the trial court gravely erred in granting the petition for reconstitution despite non-compliance with all
the jurisdictional requisites. It pointed out that respondent failed to notify all the interested parties,
particularly the heirs of the registered owners.13
By Decision dated October 13, 2010,the CA dismissed petitioners appeal and affirmed the trial courts
ruling. It held that the respondent had satisfactorily complied with the statutory notice requirements so
that the adjoining owners and any other persons who may have an interest in the property may be
duly notified of the proceedings and given the opportunity to oppose the petition.
Petitioner is now before this Court assailing the CA in not ruling that respondent failed to comply with
all the jurisdictional requisites for reconstitution of title.
The appeal is meritorious.
The nature of judicial reconstitution proceedings is the restoration of an instrument which is supposed
to have been lost or destroyed in its original form and condition. 14 The purpose of the reconstitution of
title or any document is to have the same reproduced, after proper proceedings in the same form they
were when the loss or destruction occurred.15
R.A. 26 provides for the special procedure and requirements for the reconstitution of Torrens
certificates of title.
Section 2 of R.A. 26, which governs reconstitution of original certificates of title, provides:
SEC. 2. Original certificates of title shall be reconstituted from such of the sources hereunder
enumerated as may be available, in the following order:
(a) The owners duplicate of the certificate of title;
(b) The co-owners, mortgagees, or lessees duplicate of the certificate of title;
(c) A certified copy of the certificate of title, previously issued by the register of deeds or by a legal
custodian thereof;
(d) An authenticated copy of the decree of registration or patent, as the case may be, pursuant to
which the original certificate of title was issued;
(e) A document, on file in the registry of deeds, by which the property, the description of which is given
in said document, is mortgaged, leased or encumbered, or an authenticated copy of said document
showing that its original had been registered; and
(f) Any other document which, in the judgment of the court, is sufficient and proper basis for
reconstituting the lost or destroyed certificate of title.
In order for the court to acquire jurisdiction over the petition for reconstitution, the following provisions
must be observed, to wit:
SEC. 12. Petitions for reconstitution from sources enumerated in Sections 2(c), 2(d), 2(e), 2(f), 3(c),
3(d), 3(e), and/or 3(f) of this Act, shall be filed with the proper Court of First Instance, by the registered
owner, his assigns, or any person having an interest in the property. The petition shall state or contain,
among other things, the following: (a) that the owners duplicate of the certificate of title had been lost
or destroyed; (b) that no co-owners, mortgagees or lessees duplicate had been issued, or, if any had
been issued, the same had been lost or destroyed; (c) the location, area and boundaries of the
property; (d) the nature and description of the buildings or improvements, if any, which do not belong
to the owner of the land, and the names and addresses of the owners of such buildings or
improvements; (e) the names and addresses of the occupants or persons in possession of the property,
of the owners of the adjoining properties and of all persons who may have any interest in the property;
(f) a detailed description of the encumbrances, if any, affecting the property; and (g) a statement that
no deeds or other instruments affecting the property have been presented for registration, or, if there
be any, the registration thereof has not been accomplished, as yet. All the documents, or
authenticated copies thereof, to be introduced in evidence in support of the petition for reconstitution

shall be attached thereto and filed with the same: Provided, That in case the reconstitution is to be
made exclusively from sources enumerated in Section 2(f) or 3(f) of this Act, the petition shall be
further accompanied with a plan and technical description of the property duly approved by the Chief
of the General Land Registration Office, [now Commission of Land Registration] or with a certified copy
of the description taken from a prior certificate of title covering the same property.
SEC. 13. The court shall cause a notice of the petition, filed under the preceding section, to be
published, at the expense of the petitioner, twice in successive issues of the Official Gazette, and to be
posted on the main entrance of the provincial building and of the municipal building of the municipality
or city in which the land is situated, at least thirty days prior to the date of hearing. The court shall
likewise cause a copy of the notice to be sent, by registered mail or otherwise, at the expense of the
petitioner, to every person named therein whose address is known, at least thirty days prior to the
date of hearing. Said notice shall state, among other things, the number of the lost or destroyed
Certificate of Title, if known, the name of the registered owner, the names of the occupants or persons
in possession of the property, the owners of the adjoining properties and all other interested parties,
the location, area and boundaries of the property, and the date on which all persons having any
interest therein must appear and file their claim or objections to the petition. The petitioner shall, at
the hearing, submit proof of the publication, posting and service of the notice as directed by the
court.16 (Emphasis supplied.)1wphi1
In this case, the source of reconstitution is an authenticated copy of Decree No. 295110 under Section
2(d), which as certified by the LRA, was issued on October 8, 1927 in favor of Isabel, Sixto and
Apolonia, all surnamed Bautista, covering Lot 4616,San Narciso Cadastre in Cad. Case No. 9, GLRO
Cad. Record No. 371. The said co-owners pro indiviso are supposedly the registered owners named in
OCT No. 2108. The Deed of Extra-Judicial Settlement of Estate with Sale stated that Apolonia and
Isabel died single and without any children and only the alleged heirs of spouses Sixto and Elena
Bautista executed the said document conveying the 7,594-square meter lot to respondent. These
supposed vendors claiming to be heirs of one of the registered owners were not notified of the judicial
reconstitution proceedings.
The registered owners appearing in the title sought to be reconstituted, or in this case, their surviving
heirs, are certainly interested parties who should be notified of reconstitution proceeding under Section
12 in relation to Section 13 of R.A. 26. Indeed, for petitions based on sources enumerated in Sections
2(c), 2(d), 2(e), 2(f), 3(c), 3(d), 3(e) and 3(f), Section 13 adds another requirement aside from
publication and posting of notice of hearing: that the notice be mailed to occupants, owners of
adjoining lots, and all other persons who may have an interest in the property. 17 Notwithstanding the
sale supposedly effected by vendors claiming to be heirs of the registered owners, they remain as
interested parties entitled to notice of judicial reconstitution proceedings.
It is settled that the actual notice requirement in Section 13 in relation to Section 12 of R.A. 26 is
mandatory and jurisdictional.18 In the early case of Manila Railroad Company v. Hon. Moya, et al., 19 this
Court categorically declared:
It is clear from section 13 of Republic Act No. 26 that notice by publication is not sufficient under the
circumstances. Notice must be actually sent or delivered to parties affected by the petition for
reconstitution. The order of reconstitution, therefore, having been issued without compliance with the
said requirement, has never become final as it was null and void. The Manila Railroad cannot then
complain that the motion to set aside was filed beyond the reglementary period. (Emphasis and
underscoring supplied.)
Where the authority to proceed is conferred by a statute and the manner of obtaining jurisdiction is
mandatory, the same must be strictly complied with, or the proceedings will be void. As such, the court
upon which the petition for reconstitution of title is filed is duty-bound to examine thoroughly the
petition for reconstitution of title and review the record and the legal provisions laying down the
germane jurisdictional requirements.20 Thus, we have held that notwithstanding compliance with the
notice publication, the requirement of actual notice to the occupants and the owners of the adjoining
property under Sections 12 and 13 of R.A. 26 is itself mandatory to vest jurisdiction upon the court in a
petition for reconstitution of title and essential in order to allow said court to take the case on its
merits. The non-observance of the requirement invalidates the whole reconstitution proceedings in the
trial court.21
For non-compliance with the actual notice requirement to all other persons who may have interest in
the property, in this case the registered owners and/or their heirs, in accordance with Section 13 in
relation to Section 12 of RA 26, the trial court did not acquire jurisdiction over L.R.A. Case No. RTC-237I. The proceedings therein were therefore a nullity and the January 14, 2009 Decision was void.
WHEREFORE, the petition for review on certiorari is GRANTED. The Decision dated October 13, 2010 of
the Court of Appeals in CA-G.R. CV No. 93056 is hereby SET ASIDE. We ENTER a new judgment
declaring the reconstitution proceedings in L.R.A. Case No. RTC-237-1, as well as the January 14, 2009

Decision of the Regional Trial Court of Iba, Zambales, Branch 71 granting the petition for reconstitution,
NULL and VOID.
Let a copy of this Decision be served on the Register of Deeds for the Province of Zambales.
No pronouncement as to costs.
SO ORDERED.
Footnotes
1
Rollo, pp. 21-34. Penned by Associate Justice Josefina Guevara-Salonga with Associate Justices
Mariflor P. Punzalan Castillo and Franchito N. Diamante concurring.
2
Records, pp. 98-101. Penned by Presiding Judge Consuelo Amog-Bocar.
3
Id. at 2-4.
4
Id. at 7-8.
5
Id. at 9.
6
Id. at 11-12, 14.
7
Id. at 22.
8
Id. at 24.
9
Id. at 50, 52; TSN, April 8, 2008, pp. 2-8 (records, pp. 56-62).
10
Id. at 64; TSN, May 22, 2008, pp. 3-13 (id. at 70-A to 80).
11
Id. at 82-90, 94-97.
12
Id. at 100-101.
13
CA rollo, pp. 25-29.
14
Heirs of de Guzman Tuazon v. Court of Appeals, 465 Phil. 114, 126 (2004).
15
Puzon v. Sta. Lucia Realty and Development, Inc., 406 Phil. 263, 277 (2001).
16
Cited in Republic of the Phil. v. Court of Appeals, 368 Phil. 412, 422-423 (1999).
17
Puzon v. Sta. Lucia Realty and Development, Inc., supra note 15, at 275; Republic of the Phils. v. Sps.
Sanchez, 527 Phil. 571, 588 (2006).
18
Republic of the Phils. v. Sps. Sanchez, id. at 595, citing Director of Lands v. Court of Appeals, 190
Phil. 311, 369 (1981). See also Ortigas & Company Limited Partnership v. Velasco, G.R. Nos. 109645 &
112564, July 25, 1994, 234 SCRA 455, 482 and Subido v. Republic of the Philippines, 522 Phil. 155, 165
(2006).
19
121 Phil. 1122, 1128 (1965).
20
Heirs of Marcela Navarro v. Go, 577 Phil. 523, 532 (2008), citing The Government of the Philippines v.
Aballe, 520 Phil. 181, 191-192 (2006).
21
Republic of the Phil. v. Court of Appeals, supra note 16, at 424.

2.2 Initiation of probate proceedings

Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-40502 November 29, 1976
VIRGINIA GARCIA FULE, and HONORABLE SEVERO A. MALVAR, Presiding Judge, Court of
First Instance of Laguna, Branch Vl, petitioners,
vs.
THE HONORABLE COURT OF APPEALS, * PRECIOSA B. GARCIA and AGUSTINA B.
GARCIA, respondents.
G.R. No. L-42670 November 29, 1976
VIRGINIA GARCIA FULE, petitioner,
vs.
HONORABLE ERNANI C. PAO, Presiding Judge of Court of First Instance of Rizal, Quezon
City, Branch XVIII, and PRECIOSA B. GARCIA, respondents.
Francisco Carreon for petitioners.
Augusto G. Gatmaytan for private respondents.

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

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

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

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

manner in which the power or authority shall be fully and justly exercised. There are cases though that
if the power is not exercised conformably with the provisions of the procedural law, purely, the court
attempting to exercise it loses the power to exercise it legally. However, this does not amount to a loss
of jurisdiction over the subject matter. Rather, it means that the court may thereby lose jurisdiction
over the person or that the judgment may thereby be rendered defective for lack of something
essential to sustain it. The appearance of this provision in the procedural law at once raises a strong
presumption that it has nothing to do with the jurisdiction of the court over the subject matter. In plain
words, it is just a matter of method, of convenience to the parties. 5
The Judiciary Act of 1948, as amended, confers upon Courts of First Instance jurisdiction over all
probate cases independently of the place of residence of the deceased. Because of the existence of
numerous Courts of First Instance in the country, the Rules of Court, however, purposedly fixes the
venue or the place where each case shall be brought. A fortiori, the place of residence of the deceased
in settlement of estates, probate of will, and issuance of letters of administration does not constitute
an element of jurisdiction over the subject matter. It is merely constitutive of venue. And it is upon this
reason that the Revised Rules of Court properly considers the province where the estate of a deceased
person shall be settled as "venue." 6
2. But, the far-ranging question is this: What does the term "resides" mean? Does it refer to the actual
residence or domicile of the decedent at the time of his death? We lay down the doctrinal rule that the
term "resides" connotes ex vi termini "actual residence" as distinguished from "legal residence or
domicile." This term "resides," like, the terms "residing" and "residence," is elastic and should be
interpreted in the light of the object or purpose of the statute or rule in which it is employed. 7 In the
application of venue statutes and rules Section 1, Rule 73 of the Revised Rules of Court is of such
nature residence rather than domicile is the significant factor. Even where the statute uses the word
"domicile" still it is construed as meaning residence and not domicile in the technical sense. Some
cases make a distinction between the terms "residence" and "domicile" but as generally used in
statutes fixing venue, the terms are synonymous, and convey the same meaning as the term
"inhabitant." 8 In other words, "resides" should be viewed or understood in its popular sense, meaning,
the personal, actual or physical habitation of a person, actual residence or place of abode. It signifies
physical presence in a place and actual stay thereat. In this popular sense, the term means merely
residence, that is, personal residence, not legal residence or domicile. 9 Residence simply requires
bodily presence as an inhabitant in a given place, while domicile requires bodily presence in that place
and also an intention to make it one's domicile. 10 No particular length of time of residence is required
though; however, the residence must be more than temporary. 11
3. Divergent claims are maintained by Virginia G. Fule and Preciosa B. Garcia on the residence of the
deceased Amado G. Garcia at the time of his death. In her original petition for letters of administration
before the Court of First Instance of Calamba, Laguna, Virginia G. Fule measely stated "(t)hat on April
26,1973, Amado G. Garcia, a property owner of Calamba, Laguna, died intestate in the City of Manila,
leaving real estate and personal properties in Calamba, Laguna, and in other places within the
jurisdiction of this Honorable Court." Preciosa B. Garcia assailed the petition for failure to satisfy the
jurisdictional requirement and improper laying of venue. For her, the quoted statement avers no
domicile or residence of the deceased Amado G. Garcia. To say that as "property owner of Calamba,
Laguna," he also resides in Calamba, Laguna, is, according to her, non sequitur. On the contrary,
Preciosa B. Garcia claims that, as appearing in his death certificate presented by Virginia G. Fule
herself before the Calamba court and in other papers, the last residence of Amado G. Garcia was at 11
Carmel Avenue, Carmel Subdivision, Quezon City. Parenthetically, in her amended petition, Virginia G.
Fule categorically alleged that Amado G. Garcia's "last place of residence was at Calamba, Laguna."
On this issue, We rule that the last place of residence of the deceased Amado G. Garcia was at 11
Carmel Avenue, Carmel Subdivision, Quezon City, and not at Calamba, Laguna. A death certificate is
admissible to prove the residence of the decedent at the time of his death. 12 As it is, the death
certificate of Amado G. Garcia, which was presented in evidence by Virginia G. Fule herself and also by

Preciosa B. Garcia, shows that his last place of residence was at 11 Carmel Avenue, Carmel
Subdivision, Quezon City. Aside from this, the deceased's residence certificate for 1973 obtained three
months before his death; the Marketing Agreement and Power of Attorney dated November 12, 1971
turning over the administration of his two parcels of sugar land to the Calamba Sugar Planters
Cooperative Marketing Association, Inc.; the Deed of Donation dated January 8, 1973, transferring part
of his interest in certain parcels of land in Calamba, Laguna to Agustina B. Garcia; and certificates of
titles covering parcels of land in Calamba, Laguna, show in bold documents that Amado G. Garcia's last
place of residence was at Quezon City. Withal, the conclusion becomes imperative that the venue for
Virginia C. Fule's petition for letters of administration was improperly laid in the Court of First Instance
of Calamba, Laguna. Nevertheless, the long-settled rule is that objection to improper venue is subject
to waiver. Section 4, Rule 4 of the Revised Rules of Court states: "When improper venue is not objected
to in a motion to dismiss, it is deemed waived." In the case before Us the Court of Appeals had reason
to hold that in asking to substitute Virginia G. Fule as special administratrix, Preciosa B. Garcia did not
necessarily waive her objection to the jurisdiction or venue assumed by the Court of First Instance of
Calamba, Laguna, but availed of a mere practical resort to alternative remedy to assert her rights as
surviving spouse, while insisting on the enforcement of the Rule fixing the proper venue of the
proceedings at the last residence of the decedent.
4. Preciosa B. Garcia's challenge to Virginia G. Fule's appointment as special administratrix is another
issue of perplexity. Preciosa B. Garcia claims preference to the appointment as surviving spouse.
Section 1 of Rule 80 provides that "(w)hen there is delay in granting letters testamentary or of
administration by any cause including an appeal from the allowance or disallowance of a will, the court
may appoint a special administrator to take possession and charge of the estate of the deceased until
the questions causing the delay are decided and executors or administrators appointed. 13 Formerly,
the appointment of a special administrator was only proper when the allowance or disallowance of a
will is under appeal. The new Rules, however, broadened the basis for appointment and such
appointment is now allowed when there is delay in granting letters testamentary or administration by
any cause e.g., parties cannot agree among themselves. 14 Nevertheless, the discretion to appoint a
special administrator or not lies in the probate court. 15That, however, is no authority for the judge to
become partial, or to make his personal likes and dislikes prevail over, or his passions to rule, his
judgment. Exercise of that discretion must be based on reason, equity, justice and legal principle.
There is no reason why the same fundamental and legal principles governing the choice of a regular
administrator should not be taken into account in the appointment of a special
administrator. 16 Nothing is wrong for the judge to consider the order of preference in the appointment
of a regular administrator in appointing a special administrator. After all, the consideration that
overrides all others in this respect is the beneficial interest of the appointee in the estate of the
decedent. 17 Under the law, the widow would have the right of succession over a portion of the
exclusive property of the decedent, besides her share in the conjugal partnership. For such reason, she
would have as such, if not more, interest in administering the entire estate correctly than any other
next of kin. The good or bad administration of a property may affect rather the fruits than the naked
ownership of a property. 18
Virginia G. Fule, however, disputes the status of Preciosa B. Garcia as the widow of the late Amado G.
Garcia. With equal force, Preciosa B. Garcia maintains that Virginia G. Fule has no relation whatsoever
with Amado G. Garcia, or that, she is a mere illegitimate sister of the latter, incapable of any
successional rights. 19 On this point, We rule that Preciosa B. Garcia is prima facie entitled to the
appointment of special administratrix. It needs be emphasized that in the issuance of such
appointment, which is but temporary and subsists only until a regular administrator is appointed, 20 the
appointing court does not determine who are entitled to share in the estate of the decedent but who is
entitled to the administration. The issue of heirship is one to be determined in the decree of
distribution, and the findings of the court on the relationship of the parties in the administration as to
be the basis of distribution. 21 The preference of Preciosa B. Garcia is with sufficient reason. In a
Donation Inter Vivos executed by the deceased Amado G. Garcia on January 8, 1973 in favor of
Agustina B. Garcia, he indicated therein that he is married to Preciosa B. Garcia. 22 In his certificate of

candidacy for the office of Delegate to the Constitutional Convention for the First District of Laguna
filed on September 1, 1970, he wrote therein the name of Preciosa B. Banaticla as his spouse. 23 Faced
with these documents and the presumption that a man and a woman deporting themselves as
husband and wife have entered into a lawful contract of marriage, Preciosa B. Garcia can be
reasonably believed to be the surviving spouse of the late Amado G. Garcia. Semper praesumitur pro
matrimonio. 24
5. Under these circumstances and the doctrine laid down in Cuenco vs. Court of Appeals, 25 this Court
under its supervisory authority over all inferior courts may properly decree that venue in the instant
case was properly assumed by and transferred to Quezon City and that it is in the interest of justice
and avoidance of needless delay that the Quezon City court's exercise of jurisdiction over the
settlement of the estate of the deceased Amado G. Garcia and the appointment of special
administratrix over the latter's estate be approved and authorized and the Court of First Instance of
Laguna be disauthorized from continuing with the case and instead be required to transfer all the
records thereof to the Court of First Instance of Quezon City for the continuation of the proceedings.
6. Accordingly, the Order of Judge Ernani Cruz Pano of December 17, 1975, granting the "Urgent
Petition for Authority to Pay Estate Obligations" filed by Preciosa B. Garcia in Sp. Proc. No. Q-19738,
subject matter of G.R. No. L-42670, and ordering the Canlubang Sugar Estate to deliver to her as
special administratrix the sum of P48,874.70 for payment of the sum of estate obligations is hereby
upheld.
IN VIEW OF THE FOREGOING, the petitions of petitioner Virginia Garcia Fule in G.R. No. L-40502 and in
G.R. No. L42670 are hereby denied, with costs against petitioner.
SO ORDERED.
Teehankee (Chairman), Makasiar, Aquino and Concepcion, Jr., JJ., concur.
Muoz Palma, J., took no part.
Footnotes
* Court of Appeals, Special First Division, composed of JJ. Reyes, L.B., Gaviola, Jr. and De Castro.
1 Sec. 2. Powers and duties of special administrator. Such special administrator shall take
possession and charge of the goods, chattels, rights, credits, and estate of the deceased and preserve
the same for the executor or administrator afterwards appointed, and for that purpose may commence
and maintain suits as administrator. He may sell only such perishable and other property as the court
orders sold. A special administrator shall not be liable to pay any debts of the deceased unless so
ordered by the court.
2 July 2, 1973, July 26, 1973, August 9, 1973, July 17, 1974, July 25, 1974, at 270-391, Rollo of No. L40502.
3 Diez v. Serra, 51 Phil. 286 (1927).
4 See Malig v. Bush, L-22761, May 31, 1969, 28 SCRA 453-454.
5 Manila Railroad Co. v. Attorney-General, 20 Phil. 530-32 (1911).
6 In re Kaw Singco. Sy Oa v. Co Ho, 74 Phil. 241-242 (1943); Rodriguez v. Borja, L-21993, June 21,
1966, 17 SCRA 442.
7 McGrath v. Stevenson, 77 P 2d 608; In re Jones, 19 A 2d 280.
8 See 92 C.J.S. 813-14; See also Cuenco v. Court of Appeals, L-24742, October 26,1973, 53 SCRA 377.
9 See 77 C.J.S. 286.
10 Kemp v. Kemp, 16 NYS 2d 34.
11 See 92 C.J.S. 816.
12 See Rules of Court, Francisco, Vol. V-B, 1970 Ed., at 32; Manzanero v. Bongon, 67 Phil. 602 (1939).
13 A special administrator is a 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., 121 NW 606, cited in Jacinto, Special Proceedings, 1965 ed., at 106.
14 See Proceedings of the Institute on the Revised Rules of Court, UP Law Center, 1963, at 99.
15 J.M. Tuason & Co., Inc. v. De Guzman, 99 Phil. 281 (1956); Hon. Alcasid v. Samson, 102 Phil. 736
(1957).

16 Ozaeta v. Pecson, 93 Phil. 419-20 (1953).

17 Roxas v. Pecson, 92 Phil. 410 (1948).
18 Idem, at 411.
19 Article 992 of the Civil Code provides: An illegitimate child has no right to inherit ab intestato from
the legitimate children and relatives of his father or mother; nor shall such children or relatives inherit
in the same manner from the illegitimate child.
20 Fernandez v. Maravilla, L-18799, March 31, 1964, 10 SCRA 597.
21 Ngo The Hua v. Chung Kiat Hua, L-17091, September 30, 1963, 9 SCRA 113.
22 Vide, Rollo of No. L-40502, at 219, Annex "SS" to Petition for certiorari and/or Prohibition and
Preliminary Injunction by Preciosa B. Garcia in CA-G.R. No. 03221-SP.
23 Vide, Rollo of No. L-40502, at 268; Annex 5 to Answer filed by Virginia G. Fule to petition of Preciosa
B. Garcia in C.A.-G.R. No. 03221-SP.
24 See Perido vs. Perido, L-28248, March 12, 1975, Makalintal, C.J. ponente, First Division, 63 SCRA 97.
25 53 SCRA 381.

SECOND DIVISION
EMILIA FIGURACION-GERILLA, G.R. No. 154322
Petitioner,
Present:
PUNO, J., Chairperson,
SANDOVAL-GUTIERREZ,
- v e r s u s - CORONA,
AZCUNA and
GARCIA, JJ.
CAROLINA VDA. DE FIGURACION,*
ELENA FIGURACION-ANCHETA,*
HILARIA A. FIGURACION, FELIPA
FIGURACION-MANUEL, QUINTIN
FIGURACION and
MARY FIGURACION-GINEZ,
Respondents. Promulgated:
August 22, 2006
x--------------------------------------------------DECISION
CORONA, J.:
In this petition for review on certiorari,[1] petitioner Emilia Figuracion-Gerilla challenges the
decision[2] and resolution[3] of the Court of Appeals (CA) affirming the decision of the Regional Trial
Court (RTC) of Urdaneta City, Pangasinan, Branch 49, which dismissed her complaint for partition. The
properties involved are two parcels of land which belonged to her late father, Leandro Figuracion.
The facts of the case follow.[4]
Spouses Leandro and respondent Carolina Figuracion (now both deceased) had six children: petitioner
and respondents Elena Figuracion-Ancheta (now deceased), Hilaria Figuracion, Felipa FiguracionManuel,Quintin Figuracion and Mary Figuracion-Ginez.
On August 23, 1955, Leandro executed a deed of quitclaim over his real properties in favor of his six
children. When he died in 1958, he left behind two parcels of land: (1) Lot 2299 of the Cadastral Survey
ofUrdaneta consisting of 7,547 square meters with Transfer Certificate of Title (TCT) No. 4221-P in the
name of Leandro Figuracion, married to Carolina Adviento and (2) Lot 705 of the Cadastral Survey
of Urdanetawith an area of 2,900 sq. m. with TCT No. 4220-P also in the name of Leandro Figuracion,

married to Carolina Adviento. Leandro had inherited both lots from his deceased parents, [5] as
evidenced by Original Certificate of Title (OCT) Nos. 16731 and 16610, respectively, issued by the
Register of Deeds of the Province of Pangasinan.
Leandro sold a portion of Lot 2299 to Lazaro Adviento, as a result of which TCT No. 4221-P was
cancelled and TCT No. 101331 was issued to Lazaro Adviento, married to Rosenda Sagueped as owner
of the 162 sq. m. and Leandro Figuracion, married to Carolina Adviento as owner of 7,385 sq. m. This
lot continued to be in the name of Leandro in Tax Declaration No. 616 for the year 1985.
What gave rise to the complaint for partition, however, was a dispute between petitioner and her
sister, respondent Mary, over the eastern half of Lot 707 of the Cadastral Survey of Urdaneta with an
area of 3,164 sq. m.
Lot 707 belonged to Eulalio Adviento, as evidenced by OCT No. 15867 issued on February 9,
1916. When Adviento died, his two daughters, Agripina Adviento (his daughter by his first wife) and
respondent Carolina (his daughter by his second wife), succeeded him to it. On November 28,
1961, Agripina executed a quitclaim in favor of petitioner over the one-half eastern portion of Lot
707. Agripina died on July 28, 1963, single and without any issue. Before her half-sisters death,
however, respondent Carolina adjudicated unto herself, via affidavit under Rule 74 of the Rules of
Court, the entire Lot 707 which she later sold to respondentsFelipa and Hilaria. The latter two
immediately had OCT No. 15867 cancelled, on December 11, 1962. A new title, TCT No. 42244, was
then issued in the names of Felipa and Hilaria for Lot 707.
In February 1971, petitioner and her family went to the United States where they stayed for ten
years. Returning in 1981,[6] she built a house made of strong materials on the eastern half-portion of
Lot 707. She continued paying her share of the realty taxes thereon.
It was sometime later that this dispute erupted. Petitioner sought the extrajudicial partition of all
properties held in common by her and respondents. On May 23, 1994, petitioner filed a complaint in
the RTC ofUrdaneta City, Branch 49, for partition, annulment of documents, reconveyance, quieting of
title and damages against respondents, praying, among others,
for: (1) the partition of Lots 2299 and 705; (2) the nullification of the affidavit of self-adjudication
executed by respondent Carolina over Lot 707, the deed of absolute sale in favor of
respondents Felipa and Hilaria, and TCT No. 42244; (3) a declaration that petitioner was the owner of
one-half of Lot 707 and (4) damages. The case was docketed as Civil Case No. U-5826.
On the other hand, respondents took the position that Leandros estate should first undergo settlement
proceedings before partition among the heirs could take place. And they claimed that an accounting of
expenses chargeable to the estate was necessary for such settlement.
On June 26, 1997,[7] the RTC[8] rendered judgment nullifying Carolinas affidavit of self-adjudication and
deed of absolute sale of Lot 707. It also declared Lots 2299 and 705 as exclusive properties
of LeandroFiguracion and therefore part of his estate. The RTC, however, dismissed the complaint for
partition, reconveyance and damages on the ground that it could not grant the reliefs prayed for by
petitioner without any (prior) settlement proceedings wherein the transfer of title of the properties
should first be effected.
On appeal, the CA upheld the dismissal of petitioners action for partition for being premature. The CA
reversed the decision, however, with respect to the nullification of the self-adjudication and the deed of
sale.Upholding the validity of the affidavit of self-adjudication and deed of sale as to Carolinas onehalf pro-indiviso share, it instead partitioned Lot 707. Dissatisfied, respondents elevated the CA
decision to this Court in G.R. No. 151334, entitled Carolina vda. de Figuracion, et al.
v. Emilia Figuracion-Gerilla.[9]

The issue for our consideration is whether or not there needs to be a prior settlement
of Leandros intestate estate (that is, an accounting of the income of Lots 2299 and 705, the payment
of expenses, liabilities and taxes, plus compliance with other legal requirements, etc.) before the
properties can be partitioned or distributed.
Respondents claim that: (1) the properties constituting Leandros estate cannot be partitioned before
his estate is settled and (2) there should be an accounting before anything else, considering that they
(respondents) had to spend for the maintenance of the deceased Leandro Figuracion and his wife in
their final years, which support was supposed to come from the income of the properties. Among other
things, respondents apparently wanted petitioner to share in the expenses incurred for the care of
their parents during the ten years she stayed in the United States, before she could get her part of the
estate while petitioner apparently wanted her gross share, without first contributing to the expenses.
In any event, there appears to be a complication with respect to the partition of Lot 705. The records
refer to a case entitled Figuracion, et al. v. Alejo currently pending in the CA. The records, however,
give no clue or information regarding what exactly this case is all about. Whatever the issues may be,
suffice it to say that partition is premature when ownership of the lot is still in dispute. [10]
Petitioner faces a different problem with respect to Lot 2299. Section 1, Rule 69 of the Rules of Court
provides:

SECTION 1. Complaint in action for partition of real estate. A person having the right to compel the
partition of real estate may do so as provided in this Rule, setting forth in his complaint the nature and
extent of his title and an adequate description of the real estate of which partition is demanded and
joining as defendants all other persons interested in the property.
The right to an inheritance is transmitted immediately to the heirs by operation of law, at the moment
of death of the decedent. There is no doubt that, as one of the heirs of Leandro Figuracion, petitioner
has a legal interest in Lot 2299. But can she compel partition at this stage?
There are two ways by which partition can take place under Rule 69: by agreement under Section
2[11] and through commissioners when such agreement cannot be reached, under Sections 3 to 6. [12]

Neither method specifies a procedure for determining expenses chargeable to the decedents estate.
While Section 8 of Rule 69 provides that there shall be an accounting of the real propertys income
(rentals and profits) in the course of an action for partition, [13] there is no provision for the accounting
of expenses for which property belonging to the decedents estate may be answerable, such as funeral
expenses, inheritance taxes and similar expenses enumerated under Section 1, Rule 90 of the Rules of
Court.
In a situation where there remains an issue as to the expenses chargeable to the estate, partition is
inappropriate. While petitioner points out that the estate is allegedly without any debt and she and
respondents areLeandro Figuracions only legal heirs, she does not dispute the finding of the CA that
certain expenses including those related to her fathers final illness and burial have not been properly
settled.[14] Thus, the heirs (petitioner and respondents) have to submit their fathers estate to
settlement because the determination of these expenses cannot be done in an action for partition.
In estate settlement proceedings, there is a proper procedure for the accounting of all expenses for
which the estate must answer. If it is any consolation at all to petitioner, the heirs or distributees of the
properties may take possession thereof even before the settlement of accounts, as long as they first
file a bond conditioned on the payment of the estates obligations. [15]

WHEREFORE, the petition is hereby DENIED. The Court of Appeals decision and resolution in CA-G.R.
CV No. 58290 are AFFIRMED in so far as the issue of the partition of Lots 2299 and 705 is concerned.
But with respect to Lot 707, we make no ruling on the validity of Carolina vda. de Figuracions affidavit
of self-adjudication and deed of sale in favor of Felipa and Hilaria Figuracion in view of the fact
thatCarolina vda. de Figuracion, et al. v. Emilia Figuracion-Gerilla (G.R. No. 151334) is still pending in
this Division.
Costs against petitioner.
SO ORDERED.
THIRD DIVISION
[G.R. No. 129163. April 22, 2003]
VOLTAIRE ARBOLARIO, LUCENA ARBOLARIO TA-ALA, FE ARBOLARIO, EXALTACION
ARBOLARIO, CARLOS ARBOLARIO, and Spouses ROSALITA RODRIGUEZ and CARLITO
SALHAY, petitioners, vs. COURT OF APPEALS, IRENE COLINCO, RUTH COLINCO, ORPHA
COLINCO and GOLDELINA COLINCO, respondents.
DECISION
PANGANIBAN, J.:
Once a valid marriage is established, it is deemed to continue until proof that it has been legally ended
is presented. Thus, the mere cohabitation of the husband with another woman will not give rise to a
presumption of legitimacy in favor of the children born of the second union, until and unless there be
convincing proof that the first marriage had been lawfully terminated; and the second, lawfully entered
into.
The Case
Before us is a Petition for Review[1] under Rule 45 of the Rules of Court, challenging the February 28,
1995 Decision[2] and the March 5, 1997 Resolution[3] of the Court of Appeals (CA) in CA-GR No.
38583. The assailed Decision disposed as follows:
WHEREFORE, premises considered, the judgment appealed from is hereby REVERSED and a new one is
accordingly entered
(a) in Civil Case No. 385, DISMISSING the complaint and [counter-claim];
(b) in Civil Case No. 367, ORDERING the defendant spouses to vacate the premises occupied within Lot
323, Ilog Cadastre, registered under T.C.T. No. 140081 in favor of Irene Colinco, Ruth Colinco, Orpha
Colinco and Goldelina Colinco.[4]
On the other hand, the assailed Resolution denied reconsideration: [5]
The Facts
The facts of the case are summarized by the CA as follows:
The original owners of the controverted lot, spouses Anselmo Baloyo and Macaria Lirazan had five (5)
children, namely: (1) Agueda Colinco, (2) Catalina Baloyo, (3) Eduardo Baloyo, (4) Gaudencia Baloyo,
and (5) Julian Baloyo. All of the above-named persons are now dead.

The first child, Agueda Colinco, was survived by her two children, namely, Antonio Colinco and
[respondent] Irene Colinco. Antonio Colinco predeceased his three daughters, herein [respondents],
Ruth, Orpha, and Goldelina, all surnamed Colinco.
The second child, Catalina Baloyo, was married to Juan Arbolario. Their union was blessed with the
birth of only one child, Purificacion Arbolario, who, in 1985, died a spinster and without issue.
Records disclose moreover that decedent Purificacions father, Juan Arbolario, consorted with another
woman by the name of Francisca Malvas. From this cohabitation was born the [petitioners], viz, Voltaire
Arbolario, Lucena Arbolario Taala, Fe Arbolario, Exaltacion Arbolario, and Carlos Arbolario (referred to
hereinafter as Arbolarios). It is significant to note, at this juncture, that all the foregoing [petitioners]
were born well before the year 1951.
In 1946, it appears that the third child, Eduardo Baloyo, sold his entire interest in Lot 323 to his sister,
Agueda Baloyo Colinco, by virtue of a notarized document acknowledged before Notary Public
Deogracias Riego.
In 1951, a notarized declaration of heirship was executed by and between Agueda, Catalina,
Gaudencia, and their brothers Eduardo and Julian, who extrajudicially declared themselves to be the
only heirs of the late spouses Anselmo Baloyo and Macaria Lirazan. The fourth child, Gaudencia
Baloyo, conveyed her interest in the said lot in favor of her two nieces, Irene Colinco to one-half (1/2)
and Purificacion Arbolario to the other half.
And as far as Julian Baloyo -- the fifth and last child --was concerned, records could only show that he
was married to a certain Margarita Palma; and that he died, presumably after 1951 without any issue.
Purificacion Arbolario was then allowed to take possession of a portion of the disputed parcel until her
death sometime in 1984 or 1985.
It was under the foregoing set of facts that [respondents] Irene Colinco, Ruth Colinco, Orpha Colinco,
and Goldelina Colinco, believing themselves to be the only surviving heirs of Anselmo Baloyo and
Macaria Lirazan, executed a Declaration of Heirship and Partition Agreement, dated May 8, 1987 where
they adjudicated upon themselves their proportionate or ideal shares in O.C.T. No. 16361, viz: Irene
Colinco, to one-half (1/2); while the surviving daughters of her (Irenes) late brother Antonio, namely
Ruth, Orpha, and Goldelina Colinco, to share in equal, ideal proportions to the remaining half (1/2). This
forthwith brought about the cancellation of O.C.T. No. 16361, and the issuance of T.C.T. No. T-140018 in
their names and conformably with the aforesaid distribution.
On October 2, 1987, the Colincos filed Civil Case No. 367 against Spouses Rosalita Rodriguez Salhay
and Carlito Salhay, seeking to recover possession of a portion of the aforesaid lot occupied by
[respondent] spouses (Salhays hereinafter) since 1970.
The Salhays alleged in their defense that they have been the lawful lessees of the late Purificacion
Arbolario since 1971 up to 1978; and that said spouses allegedly purchased the disputed portion of Lot
No. 323 from the deceased lessor sometime in [September] 1978.
Meanwhile, or on May 9, 1988 -- before Civil Case No. 367 was heard and tried on the merits -- Voltaire
M. Arbolario, Fe Arbolario, Lucena Arbolario Ta-ala, Exaltacion Arbolario, Carlos Arbolario (Arbolarios,
collectively) and spouses Carlito Salhay and Rosalita Rodriguez Salhay (the same defendants in Civil
Case No. 367), filed Civil Case No. 385 [f]or Cancellation of Title with Damages, against the plaintiffs in
Civil Case No. 367. The Arbolarios, joined by the Salhays, contend that the Declaration of Heirship and
Partition Agreement executed by the Colincos was defective and thus voidable as they (Arbolarios)
were excluded therein. The Arbolarios claim that they succeeded intestate to the inheritance of their
alleged half-sister, Purificacion Arbolario; and, as forced heirs, they should be included in the
distribution of the aforesaid lot.[6]

Ruling of the Trial Court

After a full-blown trial on the consolidated cases, the Regional Trial Court (RTC) of Kabankalan, Negros
Occidental (Branch 61)[7] rendered its judgment, the dispositive portion of which reads thus:
WHEREFORE, premises considered, judgment is hereby rendered in favor of the [Arbolarios] and
against the [Colincos] in Civil Case No. 385 -1) Declaring that the Declaration of Heirship and Partition Agreement, dated May 8, 1987, executed by
Irene, Ruth, Orpha and Goldelina, all surnamed Colinco, as null and void and of no effect insofar as the
share of Purificacion Arbolario in Lot No. 323 is concerned[;]
2) Ordering the Register of Deeds of Negros Occidental to cancel Transfer Certificate of Title No. T140018 and issue a new one in the names of Voltaire Arbolario, Lucena Arbolario Ta-ala, Carlos
Arbolario, Fe Arbolario and Exaltacion Arbolario, 3/8 share or One thousand Six Hundred Forty Three
Point Five (1,643.5) square meters, and the remaining 5/8 share or One Thousand Seventy Two Point
Five (1,072.5) square meters in the names of Irene Colinco, Ruth Colinco, Orpha Colinco and Goldelina
Colingco or other heirs, if any[;]
3) Ordering the [Respondents] Irene, Ruth, Orpha and Goldelina, all surnamed Colinco, to pay jointly
and severally to [Petitioners] Voltaire M. Arbolario, et al., the sum of Ten Thousand Pesos (P10,000.00)
as moral damages, Five Thousand Pesos (P5,000.00) as attorneys fees and the x x x sum of One
Thousand Pesos (P1,500.00) as appearance fees; and
in Civil Case No. 367 -1) Ordering the dismissal of [respondents] complaint and the [petitioners] counter-claim for lack of
legal basis.
In both cases -1) Ordering the Colincos to pay costs.[8]
The trial court held that the Arbolarios were the brothers and the sisters of the deceased Purificacion
Arbolario, while the Colincos were her cousins and nieces. Pursuant to Article 1009 of the Civil Code,
the Colincos could not inherit from her, because she had half-brothers and half-sisters. Their 1987
Declaration of Heirship and Partition Agreement was made in bad faith, because they knew all along
the existence of, and their relationship with, the Arbolarios. The Salhays, on the other hand, had no
document to prove their acquisition and possession of a portion of the disputed lot.
Ruling of the Court of Appeals
On appeal, the CA rejected the contention of petitioners that the cohabitation of their father with their
natural mother, Francisca Malvas, was by virtue of a valid marriage. The appellate court observed that
the Arbolarios had all been born before the death of Catalina Baloyo, as shown by the Deed of
Declaration of Heirship, which she had executed in 1951. No evidence was ever presented showing
that her conjugal union with Juan Arbolario had been judicially annulled or lawfully ended before that
year. Because it was also in 1951 when Juan Arbolario cohabited with Francisca Malvas, their union was
presumably extramarital. Consequently, their children are illegitimate half-brothers and half-sisters of
Purificacion, the daughter of Juan and Catalina.
Illegitimate children are barred by Article 992 of the Civil Code from inheriting intestate from the
legitimate children and relatives of their father or mother. As the illegitimate siblings of the late
Purificacion Arbolario, petitioners cannot conveniently undermine the legal limitations by insisting that
they were treated as half-brothers and half-sisters by the deceased.

On the other hand, there is no impediment for respondents to declare themselves as the sole and
forced heirs of Anselmo Baloyo and Macaria Lirazan. Moreover, there is no clear and reliable evidence
to support the allegation of the Salhays that they purchased from the decedent, Purificacion Arbolario,
the lot that they have been occupying since 1970.
Hence, this Petition.[9]
Issues
In their Memorandum, petitioners raise the following issues for our consideration:
I The Honorable Court of Appeals committed grave and serious error in considering the Arbolarios
illegitimate children and not entitled to inherit from their half-sister Purificacion Arbolario.
II The Honorable Court of Appeals committed grave and serious error in considering the purchase of
the property by Rosela Rodriguez and subsequent acquisition by Petitioners Rosalita Rodriguez and
Carlito Salhay improper.
III The Honorable Court of Appeals committed grave and serious error in deciding that the court a quo
had no right to distribute the said property.[10]
In other words, petitioners are questioning the CA pronouncements on (1) the illegitimacy of their
relationship with Purificacion; (2) the validity of the Salhays purchase of a portion of the disputed lot;
and (3) the impropriety of the RTC Order partitioning that lot.
This Courts Ruling
The Petition has no merit.
First Issue:
Illegitimacy of Petitioners
Petitioners contend that their illegitimacy is a far-fetched and scurrilous claim that is not supported by
the evidence on record. They maintain that the CA declared them illegitimate on the unproven
allegation that Catalina Baloyo had signed the Declaration of Heirship in 1951. They aver that this
1951 Declaration does not contain her signature, and that she died in 1903:
Que Agueda Baloyo, Catalina Baloyo y Eduardo Baloyo murieron ab intestate en Ilog, Negros Occ.; la
primera fallecio en 11 de Noviembre de 1940, la segunda murio el ano 1903 y el ultimo en 28 de
Marzo de 1947 x x x.[11]
We are not persuaded.
We begin our ruling with the general principle that the Supreme Court is not a trier of facts.
[12]
However, where the trial court and the CA arrived at different factual findings, a review of the
evidence on record may become necessary.[13]
Petitioners, in effect, are asking us to evaluate the 1951 Declaration of Heirship, deduce that Catalina
Baloyo had long been dead before it was ever executed, and conclude that the Arbolarios are
legitimate half-brothers and half-sisters of Juan and Catalinas only daughter, Purificacion. What we see,
on the other hand, is a series of non sequiturs.
First, a review of the 1951 Declaration reveals that the year of Catalinas death was intercalated. The
first two numbers (1 and 9) and the last digit (3) are legible; but the third digit has been written over to
make it look like a 0.Further, the paragraph quoted by petitioners should show a chronological

progression in the heirs years of death: Agueda died in 1940 and Eduardo in 1947. Hence, if Catalina
had indeed died in 1903, why then was her name written after Aguedas and not before it? Moreover,
the document, being in Spanish, requires an official translation. We cannot readily accept the English
translation proffered by petitioners, since respondents did not agree to its correctness. Besides, it
consisted of only a paragraph of the whole document.
Second, there is no solid basis for the argument of petitioners that Juan Arbolarios marriage to
Francisca Malvas was valid, supposedly because Catalina Baloyo was already dead when they were
born. It does not follow that just because his first wife has died, a man is already conclusively married
to the woman who bore his children. A marriage certificate or other generally accepted proof is
necessary to establish the marriage as an undisputable fact.
Third, clear and substantial evidence is required to support the claim of petitioners that they were
preterited from the 1951 Declaration of Heirship. The RTC Decision merely declared that they were
half-brothers and half-sisters of Purificacion, while respondents were her cousins and nieces (collateral
relatives). It made no pronouncement as to whether they were her legitimate or illegitimate
siblings. We quote the appellate court:
x x x. Therefore, in the absence of any fact that would show that conjugal union of Juan Arbolario and
Catalina Baloyo had been judicially annulled before 1951, or before Juan Arbolario cohabited with
Francisca Malvas, it would only be reasonable to conclude that the foregoing union which resulted in
the birth of the [Arbolarios] was extra-marital. And consequently, x x x Voltaire Arbolario, et al., are
illegitimate children of Juan Arbolario.
There is no presumption of legitimacy or illegitimacy in this jurisdiction (Article 261, New Civil Code);
and whoever alleges the legitimacy or illegitimacy of a child born after the dissolution of a prior
marriage or the separation of the spouses must introduce such evidence to prove his or her
allegation (Ibid.; Sec. 4, Rule 131, New Rules on Evidence). It is the x x x Arbolarios, claiming to be
born under a validly contracted subsequent marriage, who must show proof of their legitimacy. But
this, they have miserably failed to do.[14]
Paternity or filiation, or the lack of it, is a relationship that must be judicially established. [15] It stands to
reason that children born within wedlock are legitimate. [16] Petitioners, however, failed to prove the fact
(or even the presumption) of marriage between their parents, Juan Arbolario and Francisca Malvas;
hence, they cannot invoke a presumption of legitimacy in their favor.
As it is, we have to follow the settled rule that the CAs factual findings cannot be set aside, because
they are supported by the evidence on record.[17] As held by the appellate court, without proof that
Catalina died in 1903, her marriage to Juan is presumed to have continued. Even where there is actual
severance of the filial companionship between spouses, their marriage subsists, and either spouses
cohabitation with any third party cannot be presumed to be between husband and wife. [18]
Second Issue:
Evidence of Purchase
Petitioners contend that the CA committed a serious error when it disregarded the testimony that the
Salhays had purchased the portion of the lot they had been occupying since 1970. This issue,
according to them, was not even raised by respondents in the latters appeal to the CA.
We disagree. Although the sale was not expressly assigned as an error in their Brief, respondents (as
petitioners in the CA) still assailed the existence of the sale when they argued thus:
As to the spouses Carlito Salhay and Rosalita R. Salhay, they could not present any written contract to
support their claim to having purchased a portion of Lot 323 where their house stands. Rosalita R.

Salhay on the witness stand testified under oath that she has no contract of sale in her favor because
it was her mother, Rosela Rodriguez who had purchased the land, but she was not able to produce any
evidence of such sale in favor of her mother. She declared that she has never paid land taxes for the
land.[19]
Hence, they prayed for the reversal of the appealed RTC Decision in toto. The CA, on the other hand,
categorically ruled that no clear and reliable evidence had been introduced to prove such bare
[allegation] that a portion of the disputed lot had ever been purchased by the Salhays. Besides, no
favorable supporting evidence was cited by petitioners in their Memorandum. Thus, we find no reason
to overturn the CAs factual finding on this point.
Third Issue:
Partition
Petitioners also contend that the Court of Appeals overstepped its bounds when it ruled that since
respondents did not raise the issue of partition on appeal, the RTC had no jurisdiction to divide the
disputed lot. The CA held, however, that the partition of the property had not been contemplated by
the parties, because respondents merely sought recovery of possession of the parcel held by the
Salhays, while petitioners sought the annulment of the Deed of Partition respondents had entered into.
We agree with the appellate court. The purpose of partition is to put an end to co-ownership. It seeks a
severance of the individual interests of co-owners, vesting in each of them a sole estate in a specific
property and a right to enjoy the allotted estate without supervision or interference. [20]
Petitioners in this case were unable to establish any right to partition, because they had failed to
establish that they were legitimate half-brothers and half-sisters of the deceased
Purificacion. Questions as to the determination of the heirs of a decedent, the proof of filiation, and the
determination of the estate of a decedent and claims thereto should be brought up before the proper
probate court or in special proceedings instituted for the purpose. Such issues cannot be adjudicated in
an ordinary civil action for the recovery of ownership and possession. [21]
WHEREFORE, the Petition is DENIED, and the appealed Decision AFFIRMED. Costs against petitioners.
SO ORDERED.
Puno, (Chairman), Sandoval-Gutierrez, Corona and Carpio-Morales, JJ., concur.
Rollo, pp. 10-22.
Promulgated by the Twelfth Division of the Court of Appeals; penned by Justice Ricardo P. Galvez and
concurred in by Justices Alfredo L. Benipayo (Division chairman) and Romeo J. Callejo Sr. (member, now
a justice of this Court).
[3]
Penned by Justice Ricardo P. Galvez and concurred in by Justices Romeo J. Callejo Sr. and Celia L.
Reyes.
[4]
Assailed Decision, p. 8; rollo, p. 35.
[5]
Rollo, p. 39.
[6]
Assailed Decision, pp. 1-3; rollo, pp. 28-30. Citations omitted.
[7]
Presided by Judge Rodolfo S. Layumas.
[8]
RTC Decision, pp. 14-15; CA rollo, pp. 48-49.
[9]
The case was deemed submitted for decision on December 11, 2001, upon this Courts receipt of
private respondents Memorandum and Compliance signed by Atty. Ivan G. Nemenzo. Petitioners
Memorandum and Compliance, signed by Atty. Raymundo T. Pandan Jr. of the Valencia Law Offices, was
received by this Court on July 19, 2000.
[10]
Petitioners Memorandum and Compliance, p. 5; rollo, p. 108. Original in upper case.
[11]
Id., pp. 7-8 & 110-111.
[12]
Tecson v. Sandiganbayan, 318 SCRA 80, 91, November 16, 1999; Union Insurance Society of
Canton v. Court of Appeals, 260 SCRA 431, 440, August 8, 1996.
[13]
Lustan v. Court of Appeals, 266 SCRA 663, 670, January 27, 1997.
[1]
[2]

[14]
[15]
[16]
[17]
[18]
[19]
[20]
[21]

Assailed Decision, p. 6; rollo, p. 33.

De Asis v. Court of Appeals, 303 SCRA 176, 183, February 15, 1999.
Tison v. Court of Appeals, 276 SCRA 582, 591, July 31, 1997.
Ceremonia v. Court of Appeals, 314 SCRA 731, 739, September 21, 1999.
Nial v. Bayadog, 328 SCRA 122, 133, March 14, 2000.
Appellants Brief, p. 9; CA rollo, p. 25.
Noceda v. Court of Appeals, 313 SCRA 504, September 2, 1999.
Agapay v. Palang, 276 SCRA 340, 350-351, July 28, 1997.

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 122880

April 12, 2006

FELIX AZUELA, Petitioner,

vs.
COURT OF APPEALS, GERALDA AIDA CASTILLO substituted by ERNESTO G.
CASTILLO, Respondents.
DECISION
TINGA, J.:
The core of this petition is a highly defective notarial will, purportedly executed by Eugenia E. Igsolo
(decedent), who died on 16 December 1982 at the age of 80. In refusing to give legal recognition to
the due execution of this document, the Court is provided the opportunity to assert a few important
doctrinal rules in the execution of notarial wills, all self-evident in view of Articles 805 and 806 of the
Civil Code.
A will whose attestation clause does not contain the number of pages on which the will is
written is fatally defective. A will whose attestation clause is not signed by the
instrumental witnesses is fatally defective. And perhaps most importantly, a will which
does not contain an acknowledgment, but a merejurat, is fatally defective. Any one of
these defects is sufficient to deny probate. A notarial will with all three defects is just
aching for judicial rejection.
There is a distinct and consequential reason the Civil Code provides a comprehensive catalog of
imperatives for the proper execution of a notarial will. Full and faithful compliance with all the detailed
requisites under Article 805 of the Code leave little room for doubt as to the validity in the due
execution of the notarial will. Article 806 likewise imposes another safeguard to the validity of notarial
wills that they be acknowledged before a notary public by the testator and the witnesses. A notarial
will executed with indifference to these two codal provisions opens itself to nagging questions as to its
legitimacy.
The case stems from a petition for probate filed on 10 April 1984 with the Regional Trial Court (RTC) of
Manila. The petition filed by petitioner Felix Azuela sought to admit to probate the notarial will of
Eugenia E. Igsolo, which was notarized on 10 June 1981. Petitioner is the son of the cousin of the
decedent.
The will, consisting of two (2) pages and written in the vernacular Pilipino, read in full:
HULING HABILIN NI EUGENIA E. IGSOLO

SA NGALAN NG MAYKAPAL, AMEN:

AKO, si EUGENIA E. IGSOLO, nakatira sa 500 San Diego St., Sampaloc, Manila, pitongput siyam (79) na
gulang, nasa hustong pagi-isip, pag-unawa at memoria ay nag-hahayag na ito na ang aking huling
habilin at testamento, at binabali wala ko lahat ang naunang ginawang habilin o testamento:
Una-Hinihiling ko na ako ay mailibing sa Sementerio del Norte, La Loma sang-ayong sa kaugalian at
patakaran ng simbahang katoliko at ang taga-pag-ingat (Executor) ng habiling ito ay magtatayo ng
bantayog upang silbing ala-ala sa akin ng aking pamilya at kaibigan;
Pangalawa-Aking ipinagkakaloob at isinasalin ang lahat ng karapatan sa aking pamangkin na si Felix
Azuela, na siyang nag-alaga sa akin sa mahabang panahon, yaong mga bahay na nakatirik sa lote
numero 28, Block 24 at nakapangalan sa Pechaten Korporasyon, ganoon din ibinibigay ko ang lahat ng
karapatan sa bahay na nakatirik sa inoopahan kong lote, numero 43, Block 24 na pag-aari ng Pechaten
Corporation. Ipinagkakaloob kong buong buo ang lahat ng karapatan sa bahay at lupa na nasa 500 San
Diego St., Lot 42, Block 24, Sampaloc, Manila kay Felix Azuela at ang pagkakaloob kong ito ay walang
pasubalit at kondiciones;
Pangatlo- Na ninunumbrahan ko si VART PAGUE na siyang nagpapatupad ng huling habiling ito at
kagustuhan ko rin na hindi na kailanman siyang mag-lagak ng piyansiya.
Aking nilagdaan ang Huling Habilin na ito dito sa Maynila ika 10 ng Hunyo, 1981.
(Sgd.)
EUGENIA E. IGSOLO
(Tagapagmana)
PATUNAY NG MGA SAKSI
Ang kasulatang ito, na binubuo ng ____ dahon pati ang huling dahong ito, na ipinahayag sa amin ni
Eugenia E. Igsolo, tagapagmana na siya niyang Huling Habilin, ngayon ika-10 ng Hunyo 1981, ay
nilagdaan ng nasabing tagapagmana sa ilalim ng kasulatang nabanggit at sa kaliwang panig ng lahat
at bawat dahon, sa harap ng lahat at bawat sa amin, at kami namang mga saksi ay lumagda sa harap
ng nasabing tagapagmana at sa harap ng lahat at bawat isa sa amin, sa ilalim ng nasabing kasulatan
at sa kaliwang panig ng lahat at bawat dahon ng kasulatan ito.
EUGENIA E. IGSOLO
address: 500 San Diego St.
Sampaloc, Manila Res. Cert. No. A-7717-37
Issued at Manila on March 10, 1981.
QUIRINO AGRAVA
address: 1228-Int. 3, Kahilum
Pandacan, Manila Res. Cert. No. A-458365
Issued at Manila on Jan. 21, 1981
LAMBERTO C. LEAO
address: Avenue 2, Blcok 7,
Lot 61, San Gabriel, G.MA., Cavite Res.
Cert. No. A-768277 issued at Carmona, Cavite on Feb. 7, 1981
JUANITO ESTRERA
address: City Court Compound,
City of Manila Res. Cert. No. A574829
Issued at Manila on March 2, 1981.

Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10, 1981 dito sa Lungsod ng Maynila.

(Sgd.)
PETRONIO Y. BAUTISTA
Doc. No. 1232 ; NOTARIO PUBLIKO
Page No. 86 ; Until Dec. 31, 1981
Book No. 43 ; PTR-152041-1/2/81-Manila
Series of 1981 TAN # 1437-977-81
The three named witnesses to the will affixed their signatures on the left-hand margin of both pages of
the will, but not at the bottom of the attestation clause.
The probate petition adverted to only two (2) heirs, legatees and devisees of the decedent, namely:
petitioner himself, and one Irene Lynn Igsolo, who was alleged to have resided abroad. Petitioner
prayed that the will be allowed, and that letters testamentary be issued to the designated executor,
Vart Prague.
The petition was opposed by Geralda Aida Castillo (Geralda Castillo), who represented herself as the
attorney-in-fact of "the 12 legitimate heirs" of the decedent. 2 Geralda Castillo claimed that the will is a
forgery, and that the true purpose of its emergence was so it could be utilized as a defense in several
court cases filed by oppositor against petitioner, particularly for forcible entry and usurpation of real
property, all centering on petitioners right to occupy the properties of the decedent. 3 It also asserted
that contrary to the representations of petitioner, the decedent was actually survived by 12 legitimate
heirs, namely her grandchildren, who were then residing abroad. Per records, it was subsequently
alleged that decedent was the widow of Bonifacio Igsolo, who died in 1965, 4 and the mother of a
legitimate child, Asuncion E. Igsolo, who predeceased her mother by three (3) months. 5
Oppositor Geralda Castillo also argued that the will was not executed and attested to in accordance
with law. She pointed out that decedents signature did not appear on the second page of the will, and
the will was not properly acknowledged. These twin arguments are among the central matters to this
petition.
After due trial, the RTC admitted the will to probate, in an Order dated 10 August 1992. 6 The RTC
favorably took into account the testimony of the three (3) witnesses to the will, Quirino Agrava,
Lamberto Leano, and Juanito Estrada. The RTC also called to fore "the modern tendency in respect to
the formalities in the execution of a will x x x with the end in view of giving the testator more freedom
in expressing his last wishes;"7 and from this perspective, rebutted oppositors arguments that the will
was not properly executed and attested to in accordance with law.
After a careful examination of the will and consideration of the testimonies of the subscribing and
attesting witnesses, and having in mind the modern tendency in respect to the formalities in the
execution of a will, i.e., the liberalization of the interpretation of the law on the formal requirements of
a will with the end in view of giving the testator more freedom in expressing his last wishes, this Court
is persuaded to rule that the will in question is authentic and had been executed by the testatrix in
accordance with law.
On the issue of lack of acknowledgement, this Court has noted that at the end of the will after the
signature of the testatrix, the following statement is made under the sub-title, "Patunay Ng Mga Saksi":
"Ang kasulatang ito, na binubuo ng _____ dahon pati ang huling dahong ito, na ipinahayag sa amin ni
Eugenia N. Igsolo, tagapagmana na siya niyang Huling Habilin, ngayong ika-10 ng Hunyo 1981, ay
nilagdaan ng nasabing tagapagmana sa ilalim ng kasulatang nabanggit at sa kaliwang panig ng lahat
at bawat dahon, sa harap ng lahat at bawat sa amin, at kami namang mga saksi ay lumagda sa harap

ng nasabing tagapagmana at sa harap ng lahat at bawat isa sa amin, sa ilalim ng nasabing kasulatan
at sa kaliwang panig ng lahat at bawat dahon ng kasulatan ito."
The aforequoted declaration comprises the attestation clause and the acknowledgement and is
considered by this Court as a substantial compliance with the requirements of the law.
On the oppositors contention that the attestation clause was not signed by the subscribing witnesses
at the bottom thereof, this Court is of the view that the signing by the subscribing witnesses on the left
margin of the second page of the will containing the attestation clause and acknowledgment, instead
of at the bottom thereof, substantially satisfies the purpose of identification and attestation of the will.
With regard to the oppositors argument that the will was not numbered correlatively in letters placed
on upper part of each page and that the attestation did not state the number of pages thereof, it is
worthy to note that the will is composed of only two pages. The first page contains the entire text of
the testamentary dispositions, and the second page contains the last portion of the attestation clause
and acknowledgement. Such being so, the defects are not of a serious nature as to invalidate the will.
For the same reason, the failure of the testatrix to affix her signature on the left margin of the second
page, which contains only the last portion of the attestation clause and acknowledgment is not a fatal
defect.
As regards the oppositors assertion that the signature of the testatrix on the will is a forgery, the
testimonies of the three subscribing witnesses to the will are convincing enough to establish the
genuineness of the signature of the testatrix and the due execution of the will. 8
The Order was appealed to the Court of Appeals by Ernesto Castillo, who had substituted his since
deceased mother-in-law, Geralda Castillo. In a Decision dated 17 August 1995, the Court of Appeals
reversed the trial court and ordered the dismissal of the petition for probate. 9 The Court of Appeals
noted that the attestation clause failed to state the number of pages used in the will, thus rendering
the will void and undeserving of probate.10
Hence, the present petition.
Petitioner argues that the requirement under Article 805 of the Civil Code that "the number of pages
used in a notarial will be stated in the attestation clause" is merely directory, rather than mandatory,
and thus susceptible to what he termed as "the substantial compliance rule." 11
The solution to this case calls for the application of Articles 805 and 806 of the Civil Code, which we
replicate in full.
Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the
testator himself or by the testator's name written by some other person in his presence, and by his
express direction, and attested and subscribed by three or more credible witnesses in the presence of
the testator and of one another.
The testator or the person requested by him to write his name and the instrumental witnesses of the
will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin, and
all the pages shall be numbered correlatively in letters placed on the upper part of each page.
The attestation shall state the number of pages used upon which the will is written, and the fact that
the testator signed the will and every page thereof, or caused some other person to write his name,
under his express direction, in the presence of the instrumental witnesses, and that the latter
witnessed and signed the will and all the pages thereof in the presence of the testator and of one
another.
If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them.

Art. 806. Every will must be acknowledged before a notary public by the testator and the witnesses.
The notary public shall not be required to retain a copy of the will, or file another with the office of the
Clerk of Court.
The appellate court, in its Decision, considered only one defect, the failure of the attestation clause to
state the number of pages of the will. But an examination of the will itself reveals several more
deficiencies.
As admitted by petitioner himself, the attestation clause fails to state the number of pages of the
will.12 There was an incomplete attempt to comply with this requisite, a space having been allotted for
the insertion of the number of pages in the attestation clause. Yet the blank was never filled in; hence,
the requisite was left uncomplied with.
The Court of Appeals pounced on this defect in reversing the trial court, citing in the process Uy Coque
v. Navas L. Sioca13 and In re: Will of Andrada.14 In Uy Coque, the Court noted that among the defects of
the will in question was the failure of the attestation clause to state the number of pages contained in
the will.15 In ruling that the will could not be admitted to probate, the Court made the following
consideration which remains highly relevant to this day: "The purpose of requiring the number of
sheets to be stated in the attestation clause is obvious; the document might easily be so
prepared that the removal of a sheet would completely change the testamentary
dispositions of the will and in the absence of a statement of the total number of sheets
such removal might be effected by taking out the sheet and changing the numbers at the
top of the following sheets or pages. If, on the other hand, the total number of sheets is stated in
the attestation clause the falsification of the document will involve the inserting of new pages and the
forging of the signatures of the testator and witnesses in the margin, a matter attended with much
greater difficulty."16
The case of In re Will of Andrada concerned a will the attestation clause of which failed to state the
number of sheets or pages used. This consideration alone was sufficient for the Court to declare
"unanim[ity] upon the point that the defect pointed out in the attesting clause is fatal." 17 It was further
observed that "it cannot be denied that the x x x requirement affords additional security against the
danger that the will may be tampered with; and as the Legislature has seen fit to prescribe this
requirement, it must be considered material."18
Against these cited cases, petitioner cites Singson v. Florentino19 and Taboada v. Hon. Rosal,20 wherein
the Court allowed probate to the wills concerned therein despite the fact that the attestation clause did
not state the number of pages of the will. Yet the appellate court itself considered the import of these
two cases, and made the following distinction which petitioner is unable to rebut, and which we adopt
with approval:
Even a cursory examination of the Will (Exhibit "D"), will readily show that the attestation does not
state the number of pages used upon which the will is written. Hence, the Will is void and undeserving
of probate.
We are not impervious of the Decisions of the Supreme Court in "Manuel Singson versus Emilia
Florentino, et al., 92 Phil. 161 and Apolonio [Taboada] versus Hon. Avelino Rosal, et al., 118 SCRA 195,"
to the effect that a will may still be valid even if the attestation does not contain the number of pages
used upon which the Will is written. However, the Decisions of the Supreme Court are not applicable in
the aforementioned appeal at bench. This is so because, in the case of "Manuel Singson versus Emilia
Florentino, et al., supra," although the attestation in the subject Will did not state the number of pages
used in the will, however, the same was found in the last part of the body of the Will:
"x x x

The law referred to is article 618 of the Code of Civil Procedure, as amended by Act No. 2645, which
requires that the attestation clause shall state the number of pages or sheets upon which the will is
written, which requirement has been held to be mandatory as an effective safeguard against the
possibility of interpolation or omission of some of the pages of the will to the prejudice of the heirs to
whom the property is intended to be bequeathed (In re Will of Andrada, 42 Phil. 180; Uy Coque vs.
Navas L. Sioca, 43 Phil., 405; Gumban vs. Gorcho, 50 Phil. 30; Quinto vs. Morata, 54 Phil. 481;
Echevarria vs. Sarmiento, 66 Phil. 611). The ratio decidendi of these cases seems to be that the
attestation clause must contain a statement of the number of sheets or pages composing the will and
that if this is missing or is omitted, it will have the effect of invalidating the will if the deficiency cannot
be supplied, not by evidence aliunde, but by a consideration or examination of the will itself. But here
the situation is different. While the attestation clause does not state the number of sheets or pages
upon which the will is written, however, the last part of the body of the will contains a statement that it
is composed of eight pages, which circumstance in our opinion takes this case out of the rigid rule of
construction and places it within the realm of similar cases where a broad and more liberal view has
been adopted to prevent the will of the testator from being defeated by purely technical
considerations." (page 165-165, supra) (Underscoring supplied)
In "Apolonio Tabaoda versus Hon. Avelino Rosal, et al." supra, the notarial acknowledgement in the Will
states the number of pages used in the:
"x x x
We have examined the will in question and noticed that the attestation clause failed to state the
number of pages used in writing the will. This would have been a fatal defect were it not for the fact
that, in this case, it is discernible from the entire will that it is really and actually composed of only two
pages duly signed by the testatrix and her instrumental witnesses. As earlier stated, the first page
which contains the entirety of the testamentary dispositions is signed by the testatrix at the end or at
the bottom while the instrumental witnesses signed at the left margin. The other page which is marked
as "Pagina dos" comprises the attestation clause and the acknowledgment. The acknowledgment itself
states that "this Last Will and Testament consists of two pages including this page" (pages 200-201,
supra) (Underscoring supplied).
However, in the appeal at bench, the number of pages used in the will is not stated in any part of the
Will. The will does not even contain any notarial acknowledgment wherein the number of pages of the
will should be stated.21
Both Uy Coque and Andrada were decided prior to the enactment of the Civil Code in 1950, at a time
when the statutory provision governing the formal requirement of wills was Section
618 of the Code of Civil Procedure.22 Reliance on these cases remains apropos, considering that the
requirement that the attestation state the number of pages of the will is extant from Section
618.23 However, the enactment of the Civil Code in 1950 did put in force a rule of interpretation of the
requirements of wills, at least insofar as the attestation clause is concerned, that may vary from the
philosophy that governed these two cases. Article 809 of the Civil Code states: "In the absence of bad
faith, forgery, or fraud, or undue and improper pressure and influence, defects and imperfections in the
form of attestation or in the language used therein shall not render the will invalid if it is proved that
the will was in fact executed and attested in substantial compliance with all the requirements of article
805."
In the same vein, petitioner cites the report of the Civil Code Commission, which stated that "the
underlying and fundamental objective permeating the provisions on the [law] on [wills] 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. This objective is in accord with the [modern
tendency] in respect to the formalities in the execution of wills." 24 However, petitioner conveniently
omits the qualification offered by the Code Commission in the very same paragraph he cites from their

report, that such liberalization be "but with sufficient safeguards and restrictions to prevent the
commission of fraud and the exercise of undue and improper pressure and influence upon the
testator."25
Caneda v. Court of Appeals26 features an extensive discussion made by Justice Regalado, speaking for
the Court on the conflicting views on the manner of interpretation of the legal formalities required in
the execution of the attestation clause in wills. 27 Uy Coque and Andrada are cited therein, along with
several other cases, as examples of the application of the rule of strict construction. 28 However, the
Code Commission opted to recommend a more liberal construction through the "substantial
compliance rule" under Article 809. A cautionary note was struck though by Justice J.B.L. Reyes as to
how Article 809 should be applied:
x x x The rule must be limited to disregarding those defects that can be supplied by an examination of
the will itself: whether all the pages are consecutively numbered; whether the signatures appear in
each and every page; whether the subscribing witnesses are three or the will was notarized. All these
are facts that the will itself can reveal, and defects or even omissions concerning them in the
attestation clause can be safely disregarded. But the total number of pages, and whether all
persons required to sign did so in the presence of each other must substantially appear in
the attestation clause, being the only check against perjury in the probate
proceedings.29 (Emphasis supplied.)
The Court of Appeals did cite these comments by Justice J.B.L. Reyes in its assailed decision,
considering that the failure to state the number of pages of the will in the attestation clause is one of
the defects which cannot be simply disregarded. In Caneda itself, the Court refused to allow the
probate of a will whose attestation clause failed to state that the witnesses subscribed their respective
signatures to the will in the presence of the testator and of each other, 30 the other omission cited by
Justice J.B.L. Reyes which to his estimation cannot be lightly disregarded.
Caneda suggested: "[I]t may thus be stated that the rule, as it now stands, is that omission which can
be supplied by an examination of the will itself, without the need of resorting to extrinsic evidence, will
not be fatal and, correspondingly, would not obstruct the allowance to probate of the will being
assailed. However, those omissions which cannot be supplied except by evidence aliunde would result
in the invalidation of the attestation clause and ultimately, of the will itself." 31 Thus, a failure by the
attestation clause to state that the testator signed every page can be liberally construed, since that
fact can be checked by a visual examination; while a failure by the attestation clause to state that the
witnesses signed in one anothers presence should be considered a fatal flaw since the attestation is
the only textual guarantee of compliance.32
The failure of the attestation clause to state the number of pages on which the will was written
remains a fatal flaw, despite Article 809. The purpose of the law in requiring the clause to state the
number of pages on which the will is written is to safeguard against possible interpolation or omission
of one or some of its pages and to prevent any increase or decrease in the pages. 33 The failure to state
the number of pages equates with the absence of an averment on the part of the instrumental
witnesses as to how many pages consisted the will, the execution of which they had ostensibly just
witnessed and subscribed to. Following Caneda, there is substantial compliance with this requirement
if the will states elsewhere in it how many pages it is comprised of, as was the situation
inSingson and Taboada. However, in this case, there could have been no substantial compliance with
the requirements under Article 805 since there is no statement in the attestation clause or anywhere in
the will itself as to the number of pages which comprise the will.
At the same time, Article 809 should not deviate from the need to comply with the formal requirements
as enumerated under Article 805. Whatever the inclinations of the members of the Code Commission
in incorporating Article 805, the fact remains that they saw fit to prescribe substantially the same
formal requisites as enumerated in Section 618 of the Code of Civil Procedure, convinced that these

remained effective safeguards against the forgery or intercalation of notarial wills. 34 Compliance with
these requirements, however picayune in impression, affords the public a high degree of comfort that
the testator himself or herself had decided to convey property post mortem in the manner established
in the will.35 The transcendent legislative intent, even as expressed in the cited comments of
the Code Commission, is for the fruition of the testators incontestable desires, and not for
the indulgent admission of wills to probate.
The Court could thus end here and affirm the Court of Appeals. However, an examination of the will
itself reveals a couple of even more critical defects that should necessarily lead to its rejection.
For one, the attestation clause was not signed by the instrumental witnesses. While the
signatures of the instrumental witnesses appear on the left-hand margin of the will, they do not appear
at the bottom of the attestation clause which after all consists of their averments before the notary
public.
Cagro v. Cagro36 is material on this point. As in this case, "the signatures of the three witnesses to the
will do not appear at the bottom of the attestation clause, although the page containing the same is
signed by the witnesses on the left-hand margin."37 While three (3) Justices38 considered the signature
requirement had been substantially complied with, a majority of six (6), speaking through Chief Justice
Paras, ruled that the attestation clause had not been duly signed, rendering the will fatally defective.
There is no question that the signatures of the three witnesses to the will do not appear at the bottom
of the attestation clause, although the page containing the same is signed by the witnesses on the lefthand margin.
We are of the opinion that the position taken by the appellant is correct. The attestation clause is "a
memorandum of the facts attending the execution of the will" required by law to be made by the
attesting witnesses, and it must necessarily bear their signatures. An unsigned attestation clause
cannot be considered as an act of the witnesses, since the omission of their signatures at the bottom
thereof negatives their participation.
The petitioner and appellee contends that signatures of the three witnesses on the left-hand margin
conform substantially to the law and may be deemed as their signatures to the attestation clause. This
is untenable, because said signatures are in compliance with the legal mandate that the will be signed
on the left-hand margin of all its pages. If an attestation clause not signed by the three witnesses at
the bottom thereof, be admitted as sufficient, it would be easy to add such clause to a will on a
subsequent occasion and in the absence of the testator and any or all of the witnesses. 39
The Court today reiterates the continued efficacy of Cagro. Article 805 particularly segregates the
requirement that the instrumental witnesses sign each page of the will, from the requisite that the will
be "attested and subscribed by [the instrumental witnesses]." The respective intents behind these two
classes of signature are distinct from each other. The signatures on the left-hand corner of every page
signify, among others, that the witnesses are aware that the page they are signing forms part of the
will. On the other hand, the signatures to the attestation clause establish that the witnesses are
referring to the statements contained in the attestation clause itself. Indeed, the attestation clause is
separate and apart from the disposition of the will. An unsigned attestation clause results in an
unattested will. Even if the instrumental witnesses signed the left-hand margin of the page containing
the unsigned attestation clause, such signatures cannot demonstrate these witnesses undertakings in
the clause, since the signatures that do appear on the page were directed towards a wholly different
avowal.
The Court may be more charitably disposed had the witnesses in this case signed the attestation
clause itself, but not the left-hand margin of the page containing such clause. Without diminishing the
value of the instrumental witnesses signatures on each and every page, the fact must be noted that it
is the attestation clause which contains the utterances reduced into writing of the testamentary

witnesses themselves. It is the witnesses, and not the testator, who are required under Article 805 to
state the number of pages used upon which the will is written; the fact that the testator had signed the
will and every page thereof; and that they witnessed and signed the will and all the pages thereof in
the presence of the testator and of one another. The only proof in the will that the witnesses have
stated these elemental facts would be their signatures on the attestation clause.
Thus, the subject will cannot be considered to have been validly attested to by the instrumental
witnesses, as they failed to sign the attestation clause.
Yet, there is another fatal defect to the will on which the denial of this petition should also hinge. The
requirement under Article 806 that "every will must be acknowledged before a notary public by the
testator and the witnesses" has also not been complied with. The importance of this requirement is
highlighted by the fact that it had been segregated from the other requirements under Article 805 and
entrusted into a separate provision, Article 806. The non-observance of Article 806 in this case is
equally as critical as the other cited flaws in compliance with Article 805, and should be treated as of
equivalent import.
In lieu of an acknowledgment, the notary public, Petronio Y. Bautista, wrote "Nilagdaan ko at ninotario
ko ngayong10 ng Hunyo 10 (sic), 1981 dito sa Lungsod ng Maynila."40 By no manner of contemplation
can those words be construed as an acknowledgment. An acknowledgment is the act of one who has
executed a deed in going before some competent officer or court and declaring it to be his act or
deed.41 It involves an extra step undertaken whereby the signor actually declares to the notary that the
executor of a document has attested to the notary that the same is his/her own free act and deed.
It might be possible to construe the averment as a jurat, even though it does not hew to the usual
language thereof. A jurat is that part of an affidavit where the notary certifies that before him/her, the
document was subscribed and sworn to by the executor. 42 Ordinarily, the language of the jurat should
avow that the document was subscribed and sworn before the notary public, while in this case, the
notary public averred that he himself "signed and notarized" the document. Possibly though, the word
"ninotario" or "notarized" encompasses the signing of and swearing in of the executors of the
document, which in this case would involve the decedent and the instrumental witnesses.
Yet even if we consider what was affixed by the notary public as a jurat, the will would nonetheless
remain invalid, as the express requirement of Article 806 is that the will be "acknowledged", and not
merely subscribed and sworn to. The will does not present any textual proof, much less one under
oath, that the decedent and the instrumental witnesses executed or signed the will as their own free
act or deed. The acknowledgment made in a will provides for another all-important legal safeguard
against spurious wills or those made beyond the free consent of the testator. An acknowledgement is
not an empty meaningless act.43 The acknowledgment coerces the testator and the instrumental
witnesses to declare before an officer of the law that they had executed and subscribed to the will as
their own free act or deed. Such declaration is under oath and under pain of perjury, thus allowing for
the criminal prosecution of persons who participate in the execution of spurious wills, or those
executed without the free consent of the testator. It also provides a further degree of assurance that
the testator is of certain mindset in making the testamentary dispositions to those persons he/she had
designated in the will.
It may not have been said before, but we can assert the rule, self-evident as it is under Article 806. A
notarial will that is not acknowledged before a notary public by the testator and the
witnesses is fatally defective, even if it is subscribed and sworn to before a notary public.
There are two other requirements under Article 805 which were not fully satisfied by the will in
question. We need not discuss them at length, as they are no longer material to the
disposition of this case. The provision requires that the testator and the instrumental witnesses sign
each and every page of the will on the left margin, except the last; and that all the pages shall be

numbered correlatively in letters placed on the upper part of each page. In this case, the decedent,
unlike the witnesses, failed to sign both pages of the will on the left margin, her only signature
appearing at the so-called "logical end"44 of the will on its first page. Also, the will itself is not
numbered correlatively in letters on each page, but instead numbered with Arabic numerals. There is a
line of thought that has disabused the notion that these two requirements be construed as
mandatory.45 Taken in isolation, these omissions, by themselves, may not be sufficient to deny probate
to a will. Yet even as these omissions are not decisive to the adjudication of this case, they need not be
dwelt on, though indicative as they may be of a general lack of due regard for the requirements under
Article 805 by whoever executed the will.
All told, the string of mortal defects which the will in question suffers from makes the probate denial
inexorable.
WHEREFORE, the petition is DENIED. Costs against petitioner.
SO ORDERED.
DANTE O. TINGA
Associate Justice
WE CONCUR:
LEONARDO A. QUISUMBING
Associate Justice
Chairperson
ANTONIO T. CARPIO CONCHITA
Associate Justice

CARPIO MORALES
Asscociate Justice

ATTESTATION
I attest that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Courts Division.
LEONARDO A. QUISUMBING
Associate Justice
Chairperson, Third Division
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairpersons Attestation, it is
hereby certified that the conclusions in the above Decision had been reached in consultation before
the case was assigned to the writer of the opinion of the Courts Division.
ARTEMIO V. PANGANIBAN
Chief Justice

Footnotes
1

Rollo, pp. 21-22.

Id. at 35.

Id. at 36.

Records, p. 505.

Id.

Penned by Judge Perfecto Laguio, Jr.

Rollo, p. 41.

Id. at 41-42.

Decision penned by Associate Justice (now Supreme Court Associate Justice) Romeo J. Callejo, Sr., and
concurred in by Associate Justices Jorge S. Imperial and Pacita Caizares-Nye.
9

10

See rollo, pp. 46-50.

11

Id. at 24.

12

See rollo, p. 26.

13

43 Phil. 405 (1922).

14

42 Phil. 180 (1921).

15

Uy Coque v. Navas L. Sioca, supra note 13, at 409.

16

Id.

17

In re: Will of Andrada, supra note 14 at 181.

18

Id. at 182.

19

92 Phil. 161 (1952).

20

No. L-36033, 5 November 1982, 118 SCRA 195.

21

Rollo, pp. 47-49. Underscoring not ours.

22

Section 618 of the Code of Civil Procedure as amended by Act No. 2645 reads:

"No will, except as provided in the preceding section, shall be valid to pass any estate, real or personal,
nor charge or effect the same, unless it be written in the language or dialect known by the testator and
signed by him, or by the testator's name written by some other person in his presence, and by his
express direction, and attested and subscribed by three or more credible witnesses in the presence of
the testator and of each other. The testator or the person requested by him to write his name and the
instrumental witnesses of the will, shall also sign, as aforesaid, each and every page thereof, on the
left margin, and said pages shall be numbered correlatively in letters placed on the upper part of each
sheet. The attestation shall state the number of sheets or pages used, upon which the will is written,
and the fact that the testator signed the will and every page thereof, or caused some other person to
write his name, under his express direction, in the presence of three witnesses, and the latter
witnessed and signed the will and all pages thereof in the presence of the testator and each other."
23

Id.

24

Rollo, pp. 23-25.

25

See Report of the Code Commission, p. 103. The full citation reads:

"The underlying and fundamental objectives permeating the provisions of the law on wills 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 sufficient safeguards and restrictions to
prevent the commission of fraud and the exercise of undue and improper pressure and influence upon
the testator.
This objective is in accord with the modern tendency with respect to the formalities in the execution of
wills. The proposed Code provides for two forms of will, namely, (1) the holographic, and (2) the
ordinary will."
26

G.R. No. 103554, 28 May 1993, 222 SCRA 781.

27

Id. at 795-800.

28

Id. at 796-797.

Id. at 794; citing Lawyers Journal, November 30, 1950, 566. In the same article, Justice J.B.L. Reyes
suggested that Article 809 be reworded in such a manner that the will would not be rendered invalid if
the defects and imperfections in the attestation "can be supplied by an examination of the will itself
and it is proved that the will was in fact executed and attested in substantial compliance with all the
requirements of Article 805." See R. Balane, Jottings and Jurisprudence in Civil Law (1998 ed.) at 87,
citing Lawyers Journal, November 30, 1950.
29

30

Id. at 792-793.

31

Id. at 800.

32

See Balane, supra note 29, at 87.

33

Caneda v. Court of Appeals, supra note 26 at 790; citing Andrada, supra note 14.

The Code Commission did qualify in its Report that the thrust towards liberalization be qualified "with
sufficient safeguards and restrictions to prevent the commission of fraud and the exercise of undue
and improper pressure and influence upon the testator" Supra note 25.
34

"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, 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." A. Tolentino, III Civil Code of the Philippines
(1992 ed.), at 67.
35

36

92 Phil. 1032 (1953)

37

Id. at 1033.

38

Justices Felix Bautista Angelo, Pedro Tuason and Felicisimo R. Feria.

39

Cagro v. Cagro, supra note 36, at 1033-1034.

40

Rollo, p. 22.

41

Tigno v. Aquino, G.R. No. 129416, 25 November 2004, 444 SCRA 61, 72.

See Gamido v. New Bilibid Prisons Officials, 312 Phil. 100, 104; citing Theobald v. Chicago Ry. Co., 75
Ill. App. 208.
42

Protacio v. Mendoza, Adm. Case No. 5764, 13 January 2003, 395 SCRA 10, 15; citing Coronado v.
Felongco, 344 SCRA 565 (2000); Nunga v. Viray, 306 SCRA 487 (1999); Arrieta v. Llosa, 282 SCRA 248
(1997); Dinoy v. Rosal, 235 SCRA 419 (1994).
43

To use the term adopted by eminent civilists Prof. Balane and Dr. Tolentino, who distinguish "the
physical end where the writing stops" from "the logical end where the last testamentary disposition
ends." See Balane, supra note 29 at 60; Tolentino, supra note 35, at 70.
44

45

See e.g., Balane, supra note 28 at 63, 67; Tolentino, supra note 34, at 104.

SECOND DIVISION
CYNTHIA C. ALABAN, G.R. No. 156021
FRANCIS COLLADO, JOSE
P. COLLADO, JUDITH Present:
PROVIDO, CLARITA PROVIDO,
ALFREDO PROVIDO, MANUEL PUNO, J.,
PROVIDO, JR., LORNA DINA Chairman,
E. PROVIDO, SEVERO ARENGA, AUSTRIA-MARTINEZ,
JR., SERGIO ARENGA, EDUARDO CALLEJO, SR.,
ARENGA, CAROL ARENGA, RUTH TINGA, and
BABASA, NORMA HIJASTRO, CHICO-NAZARIO, JJ.
DOLORES M. FLORES, ANTONIO
MARIN, JR., JOSE MARIN, SR., and
MATHILDE MARIN, Promulgated:
Petitioners,
September 23, 2005
- versus COURT OF APPEALS and
FRANCISCO H. PROVIDO,
Respondents.
x-------------------------------------------------------------------x
DECISION
TINGA, J.:
This is a petition for review of the Resolutions[1] of the Court of Appeals (CA) in CA-G.R. SP No. 69221,
[2]
dismissing petitioners petition for annulment of judgment.
On 8 November 2000, respondent Francisco Provido (respondent) filed a petition, docketed as SP Proc.
No. 00-135, for the probate of the Last Will and Testament[3] of the late Soledad Provido Elevencionado
(decedent), who died on 26 October 2000 in Janiuay, Iloilo. [4] Respondent alleged that he was the heir
of the decedent and the executor of her will. On 30 May 2001, the Regional Trial Court (RTC), Branch
68, in P.D. Monfort North, Dumangas, Iloilo, rendered its Decision,[5] allowing the probate of the will of
the decedent and directing the issuance of letters testamentary to respondent. [6]
More than four (4) months later, or on 4 October 2001, herein petitioners filed a motion for the
reopening of the probate proceedings.[7] Likewise, they filed an opposition to the allowance of the will
of the decedent, as well as the issuance of letters testamentary to respondent, [8] claiming that they are
the intestate heirs of the decedent. Petitioners claimed that the RTC did not acquire jurisdiction over
the petition due to non-payment of the correct docket fees, defective publication, and lack of notice to
the other heirs. Moreover, they alleged that the will could not have been probated because: (1) the
signature of the decedent was forged; (2) the will was not executed in accordance with law, that is, the
witnesses failed to sign below the attestation clause; (3) the decedent lacked testamentary capacity to
execute and publish a will; (4) the will was executed by force and under duress and improper pressure;

(5) the decedent had no intention to make a will at the time of affixing of her signature; and (6) she did
not know the properties to be disposed of, having included in the will properties which no longer
belonged to her. Petitioners prayed that the letters testamentary issued to respondent be withdrawn
and the estate of the decedent disposed of under intestate succession. [9]
On 11 January 2002, the RTC issued an Order[10] denying petitioners motion for being unmeritorious.
Resolving the issue of jurisdiction, the RTC held that petitioners were deemed notified of the hearing by
publication and that the deficiency in the payment of docket fees is not a ground for the outright
dismissal of the petition. It merely required respondent to pay the deficiency. [11] Moreover, the
RTCs Decision was already final and executory even before petitioners filing of the motion to reopen.
[12]

Petitioners thereafter filed a petition[13] with an application for preliminary injunction with the CA,
seeking the annulment of the RTCs Decision dated 30 May 2001 and Order dated 11 January 2002.
They claimed that after the death of the decedent, petitioners, together with respondent, held several
conferences to discuss the matter of dividing the estate of the decedent, with respondent agreeing to
a one-sixth (1/6) portion as his share. Petitioners allegedly drafted a compromise agreement to
implement the division of the estate. Despite receipt of the agreement, respondent refused to sign and
return the same. Petitioners opined that respondent feigned interest in participating in the compromise
agreement so that they would not suspect his intention to secure the probate of the will. [14] They
claimed that they learnt of the probate proceedings only in July of 2001, as a result of which they filed
their motion to reopen the proceedings and admit their opposition to the probate of the will only on 4
October 2001. They argued that the RTC Decision should be annulled and set aside on the ground of
extrinsic fraud and lack of jurisdiction on the part of the RTC. [15]
In its Resolution[16] promulgated on 28 February 2002, the CA dismissed the petition. It found that there
was no showing that petitioners failed to avail of or resort to the ordinary remedies of new trial,
appeal, petition for relief from judgment, or other appropriate remedies through no fault of their own.
[17]
Moreover, the CA declared as baseless petitioners claim that the proceedings in the RTC was
attended by extrinsic fraud. Neither was there any showing that they availed of this ground in a motion
for new trial or petition for relief from judgment in the RTC, the CA added. [18] Petitioners sought
reconsideration of the Resolution, but the same was denied by the CA for lack of merit. [19]
Petitioners now come to this Court, asserting that the CA committed grave abuse of discretion
amounting to lack of jurisdiction when it dismissed their petition for the alleged failure to show that
they have not availed of or resorted to the remedies of new trial, appeal, petition for relief from
judgment or other remedies through no fault of their own, and held that petitioners were not denied
their day in court during the proceedings before the RTC. [20] In addition, they assert that this Court has
yet to decide a case involving Rule 47 of the Rules of Court and, therefore, the instant petition should
be given due course for the guidance of the bench and bar. [21]
For his part, respondent claims that petitioners were in a position to avail of the remedies provided in
Rules 37 and 38, as they in fact did when they filed a motion for new trial. [22]Moreover, they could have
resorted to a petition for relief from judgment since they learned of the RTCs judgment only three and
a half months after its promulgation.[23] Respondent likewise maintains that no extrinsic fraud exists to
warrant the annulment of the RTCs Decision, since there was no showing that they were denied their
day in court. Petitioners were not made parties to the probate proceedings because the decedent did
not institute them as her heirs.[24] Besides, assuming arguendo that petitioners are heirs of the
decedent, lack of notice to them is not a fatal defect since personal notice upon the heirs is a matter of
procedural convenience and not a jurisdictional requisite. [25] Finally, respondent charges petitioners of
forumshopping, since the latter have a pending suit involving the same issues as those in SP No. 00135, that is SP No. 1181[26] filed before Branch 23, RTC of General Santos City and subsequently
pending on appeal before the CA in CA-G.R. No.74924.[27]

It appears that one of the petitioners herein, Dolores M. Flores (Flores), who is a niece of the decedent,
filed a petition for letters of administration with the RTC of General Santos City, claiming that the
decedent died intestate without any issue, survived by five groups of collateral heirs. Flores, armed
with a Special Power of Attorney from most of the other petitioners, prayed for her appointment as
administratrix of the estate of the decedent. The RTC dismissed the petition on the ground of lack of
jurisdiction, stating that the probate court in Janiuay, Iloilo has jurisdiction since the venue for a
petition for the settlement of the estate of a decedent is the place where the decedent died. This is
also in accordance with the rule that the first court acquiring jurisdiction shall continue hearing the
case to the exclusion of other courts, the RTC added. [28] On 9 January 2002, Flores filed a Notice of
Appeal [29] and on 28 January 2002, the case was ordered forwarded to the CA. [30]

Petitioners maintain that they were not made parties to the case in which the decision sought to be
annulled was rendered and, thus, they could not have availed of the ordinary remedies of new trial,
appeal, petition for relief from judgment and other appropriate remedies, contrary to the ruling of the
CA. They aver that respondents offer of a false compromise and his failure to notify them of the
probate of the will constitute extrinsic fraud that necessitates the annulment of the RTCs judgment. [31]

The petition is devoid of merit.

Section 37 of the Rules of Court allows an aggrieved party to file a motion for new trial on the ground
of fraud, accident, mistake, or excusable negligence. The same Rule permits the filing of a motion for
reconsideration on the grounds of excessive award of damages, insufficiency of evidence to justify the
decision or final order, or that the decision or final order is contrary to law. [32] Both motions should be
filed within the period for taking an appeal, or fifteen (15) days from notice of the judgment or final
order.

Meanwhile, a petition for relief from judgment under Section 3 of Rule 38 is resorted to when a
judgment or final order is entered, or any other proceeding is thereafter taken, against a party in any
court through fraud, accident, mistake, or excusable negligence. Said party may file a petition in the
same court and in the same case to set aside the judgment, order or proceeding. It must be filed
within sixty (60) days after the petitioner learns of the judgment and within six (6) months after entry
thereof.[33]

A motion for new trial or reconsideration and a petition for relief from judgment are remedies available
only to parties in the judgment is rendered.[34] In fact, it has been held that a person who was never a
party to the case, or even summoned to appear therein, cannot avail of a petition for relief from
judgment.[35]

However, petitioners in this case are mistaken in asserting that they are not or have not become
parties to the probate proceedings.

Under the Rules of Court, 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.[36] Notice of the time and place for proving the will must be
published for three (3) consecutive weeks, in a newspaper of general circulation in the province, [37] as
well as furnished to the designated or other known heirs, legatees, and devisees of the testator.
[38]
Thus, it has been held that a proceeding for the probate of a will is one in rem, such that with the
corresponding publication of the petition the court's jurisdiction extends to all persons interested in
said will or in the settlement of the estate of the decedent. [39]

Publication is notice to the whole world that the proceeding has for its object to bar indefinitely all who
might be minded to make an objection of any sort against the right sought to be established. It is the
publication of such notice that brings in the whole world as a party in the case and vests the court with
jurisdiction to hear and decide it.[40] Thus, even though petitioners were not mentioned in the petition
for probate, they eventually became parties thereto as a consequence of the publication of the notice
of hearing.

As parties to the probate proceedings, petitioners could have validly availed of the remedies of motion
for new trial or reconsideration and petition for relief from judgment. In fact, petitioners filed a motion
to reopen, which is essentially a motion for new trial, with petitioners praying for the reopening of the
case and the setting of further proceedings. However, the motion was denied for having been filed out
of time, long after the Decision became final and executory.
Conceding that petitioners became aware of the Decision after it had become final, they could have
still filed a petition for relief from judgment after the denial of their motion to reopen. Petitioners claim
that they learned of the Decision only on 4 October 2001, or almost four (4) months from the time
the Decision had attained finality. But they failed to avail of the remedy.

For failure to make use without sufficient justification of the said remedies available to them,
petitioners could no longer resort to a petition for annulment of judgment; otherwise, they would
benefit from their own inaction or negligence.[41]
Even casting aside the procedural requisite, the petition for annulment of judgment must still fail for
failure to comply with the substantive requisites, as the appellate court ruled.
An action for annulment of judgment is a remedy in law independent of the case where the judgment
sought to be annulled was rendered.[42] The purpose of such action is to have the final and executory
judgment set aside so that there will be a renewal of litigation. It is resorted to in cases where the
ordinary remedies of new trial, appeal, petition for relief from judgment, or other appropriate remedies
are no longer available through no fault of the petitioner,[43] and is based on only two grounds: extrinsic
fraud, and lack of jurisdiction or denial of due process. [44] A person need not be a party to the judgment
sought to be annulled, and it is only essential that he can prove his allegation that the judgment was
obtained by the use of fraud and collusion and he would be adversely affected thereby. [45]
An action to annul a final judgment on the ground of fraud lies only if the fraud is extrinsic or collateral
in character.[46] Fraud is regarded as extrinsic where it prevents a party from having a trial or from
presenting his entire case to the court, or where it operates upon matters pertaining not to the
judgment itself but to the manner in which it is procured. The overriding consideration when extrinsic
fraud is alleged is that the fraudulent scheme of the prevailing litigant prevented a party from having
his day in court.[47]

To sustain their allegation of extrinsic fraud, petitioners assert that as a result of respondents
deliberate omission or concealment of their names, ages and residences as the other heirs of the
decedent in his petition for allowance of the will, they were not notified of the proceedings, and thus
they were denied their day in court. In addition, they claim that respondents offer of a false
compromise even before the filing of the petition prevented them from appearing and opposing the
petition for probate.
The Court is not convinced.
According to the Rules, notice is required to be personally given to known heirs, legatees, and devisees
of the testator.[48] A perusal of the will shows that respondent was instituted as the sole heir of the
decedent. Petitioners, as nephews and nieces of the decedent, are neither compulsory nor testate
heirs[49] who are entitled to be notified of the probate proceedings under the Rules. Respondent had no
legal obligation to mention petitioners in the petition for probate, or to personally notify them of the
same.
Besides, assuming arguendo that petitioners are entitled to be so notified, the purported infirmity is
cured by the publication of the notice. After all, personal notice upon the heirs is a matter of procedural
convenience and not a jurisdictional requisite.[50]
The non-inclusion of petitioners names in the petition and the alleged failure to personally notify them
of the proceedings do not constitute extrinsic fraud. Petitioners were not denied their day in court, as
they were not prevented from participating in the proceedings and presenting their case before the
probate court.
One other vital point is the issue of forum-shopping against petitioners. Forum-shopping consists of
filing multiple suits in different courts, either simultaneously or successively, involving the same
parties, to ask the courts to rule on the same or related causes and/or to grant the same or
substantially same reliefs,[51] on the supposition that one or the other court would make a favorable
disposition.[52] Obviously, the parties in the instant case, as well as in the appealed case before the CA,
are the same. Both cases deal with the existence and validity of the alleged will of the decedent, with
petitioners anchoring their cause on the state of intestacy. In the probate proceedings, petitioners
position has always been that the decedent left no will and if she did, the will does not comply with the
requisites of a valid will. Indeed, that position is the bedrock of their present petition. Of course,
respondent maintains the contrary stance. On the other hand, in the petition for letters of
administration, petitioner Flores prayed for her appointment as administratrix of the estate on the
theory that the decedent died intestate. The petition was dismissed on the ground of lack of
jurisdiction, and it is this order of dismissal which is the subject of review in CA-G.R. No. 74924. Clearly,
therefore, there is forum-shopping.
Moreover, petitioners failed to inform the Court of the said pending case in their certification against
forum- shopping. Neither have they done so at any time thereafter. The Court notes that even in the
petition for annulment of judgment, petitioners failed to inform the CA of the pendency of their appeal
in CA-G.R. No. 74924, even though the notice of appeal was filed way before the petition for annulment
of judgment was instituted.
WHEREFORE, the petition is DENIED. Costs against petitioners.
SO ORDERED.
Dated 8 February 2002 and 12 November 2002.
Cynthia C. Alaban, et al. v. Gerardo D. Diaz, et al.
[3]
Rollo, pp. 47-52.
[1]

[2]

Entitled In Re: Petition for Probate of Will of Decedent Soledad Provido Elevencionado, Francisco H.
Provido, Petitioner; Id. at 31-32.
[5]
Id. at 34-37.
[6]
Ibid.
[7]
Id. at 38-39.
[8]
Id. at 41-45.
[9]
Id. at 42-44
[10]
Id. at 53-56.
[11]
Id. at 55, 56.
[12]
Id. at 55.
[13]
Docketed as CA-G.R. SP No. 69221.
[14]
Rollo, pp. 58-59.
[15]
Id. at 62.
[16]
Id. at 69.
[17]
Ibid.
[18]
Id. at 70
[19]
Resolution dated 12 November 2002, Id. at 92.
[20]
Id. at 15.
[21]
Id. at 15.
[22]
Id. at 103.
[23]
Id. at 107.
[24]
Id. at 108
[25]
Id. at 109.
[26]
Entitled In the Matter of the Issuance of Letters of Administration in the Intestate Estate of Soledad
Provido-Elevencionado, Dolores M. Flores, Petitioner.
[27]
Rollo, pp. 109-110.
[28]
Id. at 126.
[29]
CA Rollo, p.78.
[30]
Id. at 79.
[31]
Id. at 21.
[32]
Sec. 1, Rule 37.
[33]
Sec. 1, Rule 38.
[34]
Section 1 of Rule 37 of the Rules of Court provides:
Section 1. Grounds of and period for filing motion for new trial or reconsideration.- Within the period for
taking an appeal, the aggrieved party may move the trial court to set aside the judgment or final order
and grant a new trial for one or more of the following causes materially affecting the substantial rights
of said party:
....
Meanwhile, Sections 1 and 2 of Rule 38 state:
[4]

Section 1. Petition for relief from judgment, order, or other proceedings.- When a judgment or final
order is entered, or any other proceeding is thereafter taken against a party in any court through fraud,
accident, mistake or excusable negligence, he may file a petition in such court and in the same case
praying that the judgment, order or proceeding be set aside.
Section 2. Petition for relief from denial of appeal.- When a judgment or final order is rendered by any
court in a case, and a party thereto, by fraud, accident, mistake, or excusable negligence, has been
prevented from taking an appeal, he may file a petition in such court and in the same case praying
that the appeal be given due course.
(Emphasis supplied.)
[35]
Metropolitan Bank and Trust Co. v. Alejo, G.R. No. 141970, 10 September 2001, 364 SCRA 812, 817.
[36]
Sec. 1, Rule 76, Rules of Court.
[37]
Sec. 3, Rule 76, id.
[38]
Sec. 4, Rule 76, id.
[39]
Abut v. Abut, 150-A Phil. 679, 683 (1972).
[40]
Barco v. Court of Appeals, G.R. No. 120587, 20 January 2004, 420 SCRA 162, 174, citing Adez Realty
v. Court of Appeals, G.R. No. 100643, 14 August 1992, 22 SCRA 623, 628.
[41]
Manipor, et al. v. Spouses Ricafort, G.R. No. 150159, 25 July 2003, 407 SCRA 298, 303.
[42]
Islamic DaWah Council of the Philippines v. Court of Appeals, G.R. No. 80892, 29 September 1989,
178 SCRA 185, 184.
[43]
Sec. 1, Rule 47, Rules of Court.

Pinlac v. Court of Appeals, G.R. No. 91486, 19 January 2001, 349 SCRA 635, 650.
Islamic DaWah Council of the Philippines v. Court of Appeals, supra note 42 at 187.
[46]
Bobis et al. v. Court of Appeals, et al., G.R. No. 113796, 14 December 2000, 348 SCRA 23, 27-28.
[47]
Teodoro v. Court of Appeals, 437 Phil. 336, 345 (2002).
[48]
Sec. 3, Rule 76, Rules of Court.
[49]
Art. 842, Civil Code.
[50]
F.D. REGALADO, REMEDIAL LAW COMPENDIUM, Vol. II (2001 ed.) p. 27, citing In Re Estate of Johnson,
39 Phil 156; In Re Testate Estate of Deceased Jose B. Suntay, 95 Phil 500; Abut v. Abut, et al., 150-A
Phil. 679 (1972).
[51]
J. FERIA & M.C.S. NOCHE, CIVIL PROCEDURE ANNOTATED Vol. 1 (2001) p. 297.
[52]
Gatmaytan v. Court of Appeals, 335 Phil. 155, 167 (1997).
[44]
[45]

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-32636
March 17, 1930
In the matter Estate of Edward Randolph Hix, deceased.
A.W. FLUEMER, petitioner-appellant,
vs.
ANNIE COUSHING HIX, oppositor-appellee.
C.A. Sobral for appellant.
Harvey & O' Brien and Gibbs & McDonough for appellee.
MALCOLM, J.:
The special administrator of the estate of Edward Randolph Hix appeals from a decision of Judge of
First Instance Tuason denying the probate of the document alleged to by the last will and testament of
the deceased. Appellee is not authorized to carry on this appeal. We think, however, that the appellant,
who appears to have been the moving party in these proceedings, was a "person interested in the
allowance or disallowance of a will by a Court of First Instance," and so should be permitted to appeal
to the Supreme Court from the disallowance of the will (Code of Civil Procedure, sec. 781, as amended;
Villanueva vs. De Leon [1925], 42 Phil., 780).
It is theory of the petitioner that the alleged will was executed in Elkins, West Virginia, on November 3,
1925, by Hix who had his residence in that jurisdiction, and that the laws of West Verginia Code,
Annotated, by Hogg, Charles E., vol. 2, 1914, p. 1690, and as certified to by the Director of the
National Library. But this was far from a compliance with the law. The laws of a foreign jurisdiction do
not prove themselves in our courts. the courts of the Philippine Islands are not authorized to take
American Union. Such laws must be proved as facts. (In re Estate of Johnson [1918], 39 Phil., 156.)
Here the requirements of the law were not met. There was no was printed or published under the
authority of the State of West Virginia, as provided in section 300 of the Code of Civil Procedure. Nor
was the extract from the law attested by the certificate of the officer having charge of the original,
under the sale of the State of West Virginia, as provided in section 301 of the Code of Civil Procedure.
No evidence was introduced to show that the extract from the laws of West Virginia was in force at the
time the alleged will was executed.
In addition, the due execution of the will was not established. The only evidence on this point is to be
found in the testimony of the petitioner. Aside from this, there was nothing to indicate that the will was
acknowledged by the testator in the presence of two competent witnesses, of that these witnesses
subscribed the will in the presence of the testator and of each other as the law of West Virginia seems
to require. On the supposition that the witnesses to the will reside without the Philippine Islands, it
would then the duty of the petitioner to prove execution by some other means (Code of Civil
Procedure, sec. 633.)

It was also necessary for the petitioner to prove that the testator had his domicile in West Virginia and
not establish this fact consisted of the recitals in the CATHY will and the testimony of the petitioner.
Also in beginning administration proceedings orginally in the Philippine Islands, the petitioner violated
his own theory by attempting to have the principal administration in the Philippine Islands.
While the appeal pending submission in this court, the attorney for the appellant presented an
unverified petition asking the court to accept as part of the evidence the documents attached to the
petition. One of these documents discloses that a paper writing purporting to be the was presented for
probate on June 8, 1929, to the clerk of Randolph Country, State of West Virginia, in vacation, and was
duly proven by the oaths of Dana Wamsley and Joseph L. MAdden, the subscribing witnesses thereto ,
and ordered to be recorded and filed. It was shown by another document that, in vacation, on June 8,
1929, the clerk of court of Randolph Country, West Virginia, appointed Claude W. Maxwell as
administrator, cum testamento annexo, of the estate of Edward Randolph Hix, deceased. In this
connection, it is to be noted that the application for the probate of the will in the Philippines was filed
on February 20, 1929, while the proceedings in West Virginia appear to have been initiated on June 8,
1929. These facts are strongly indicative of an intention to make the Philippines the principal
administration and West Virginia the ancillary administration. However this may be, no attempt has
been made to comply with Civil Procedure, for no hearing on the question of the allowance of a will
said to have been proved and allowed in West Virginia has been requested. There is no showing that
the deceased left any property at any place other than the Philippine Islands and no contention that he
left any in West Virginia.
Reference has been made by the parties to a divorce purported to have been awarded Edward
Randolph Hix from Annie Cousins Hix on October 8, 1925, in the State of West specific
pronouncements on the validity or validity of this alleged divorce.
For all of the foregoing, the judgment appealed from will be affirmed, with the costs of this instance
against the appellant.
Villamor, Ostrand, Johns, Romualdez and Villa-Real, JJ., concur.
FIRST DIVISION
ALONZO Q. ANCHETA, G.R. No. 139868
Petitioner,
Present:
PANGANIBAN, C.J. (Chairperson)
- versus - *YNARES-SANTIAGO,
AUSTRIA-MARTINEZ,
CALLEJO, SR., and
CHICO-NAZARIO, JJ.
CANDELARIA GUERSEYDALAYGON, Promulgated:
Respondent. June 8, 2006
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
AUSTRIA-MARTINEZ, J.:
Spouses Audrey ONeill (Audrey) and W. Richard Guersey (Richard) were American citizens who have
resided in the Philippines for 30 years. They have an adopted daughter, Kyle Guersey Hill
(Kyle). On July 29, 1979, Audrey died, leaving a will. In it, she bequeathed her entire estate to Richard,
who was also designated as executor.[1] The will was admitted to probate before the Orphans Court of
Baltimore, Maryland, U.S.A, which named James N. Phillips as executor due to Richards renunciation of
his appointment.[2] The court also named Atty. Alonzo Q. Ancheta (petitioner) of the Quasha Asperilla
Ancheta Pena & Nolasco Law Offices as ancillary administrator. [3]

In 1981, Richard married Candelaria Guersey-Dalaygon (respondent) with whom he has two children,
namely, Kimberly and Kevin.
On October 12, 1982, Audreys will was also admitted to probate by the then Court of First Instance of
Rizal, Branch 25, Seventh Judicial District, Pasig, in Special Proceeding No. 9625.[4] As administrator of
Audreys estate in the Philippines, petitioner filed an inventory and appraisal of the following properties:
(1) Audreys conjugal share in real estate with improvements located at 28 Pili Avenue, Forbes Park,
Makati, Metro Manila, valued at P764,865.00 (Makati property); (2) a current account in Audreys name
with a cash balance of P12,417.97; and (3) 64,444 shares of stock in A/G Interiors, Inc.
worth P64,444.00.[5]

On July 20, 1984, Richard died, leaving a will, wherein he bequeathed his entire estate to respondent,
save for his rights and interests over the A/G Interiors, Inc. shares, which he left to Kyle. [6] The will was
also admitted to probate by the Orphans Court of Ann Arundel, Maryland, U.S.A, and James N. Phillips
was likewise appointed as executor, who in turn, designated Atty. William Quasha or any member of
the Quasha Asperilla Ancheta Pena & Nolasco Law Offices, as ancillary administrator.

Richards will was then submitted for probate before the Regional Trial Court of Makati, Branch 138,
docketed as Special Proceeding No. M-888. [7] Atty. Quasha was appointed as ancillary administrator
on July 24, 1986.[8]

On October 19, 1987, petitioner filed in Special Proceeding No. 9625, a motion to declare Richard and
Kyle as heirs of Audrey.[9] Petitioner also filed on October 23, 1987, a project of partition of Audreys
estate, with Richard being apportioned the undivided interest in the Makati property, 48.333 shares in
A/G Interiors, Inc., and P9,313.48 from the Citibank current account; and Kyle, the undivided interest in
the Makati property, 16,111 shares in A/G Interiors, Inc., and P3,104.49 in cash.[10]

The motion and project of partition was granted and approved by the trial court in its Order
dated February 12, 1988.[11] The trial court also issued an Order on April 7, 1988, directing the Register
of Deeds of Makati to cancel TCT No. 69792 in the name of Richard and to issue a new title in the joint
names of the Estate of W. Richard Guersey ( undivided interest) and Kyle ( undivided interest);
directing the Secretary of A/G Interiors, Inc. to transfer 48.333 shares to the Estate of W.
Richard Guersey and 16.111 shares to Kyle; and directing the Citibank to release the amount
of P12,417.97 to the ancillary administrator for distribution to the heirs. [12]

Consequently, the Register of Deeds of Makati issued on June 23, 1988, TCT No. 155823 in the names
of the Estate of W. Richard Guersey and Kyle.[13]

Meanwhile, the ancillary administrator in Special Proceeding No. M-888 also filed a project of partition
wherein 2/5 of Richards undivided interest in the Makati property was allocated to respondent,
while 3/5thereof were allocated to Richards three children. This was opposed by respondent on the
ground that under the law of the State of Maryland, a legacy passes to the legatee the entire
interest of the testator in the property subject of the legacy.[14] Since Richard left his entire

estate to respondent, except for his rights and interests over the A/G Interiors, Inc, shares, then his
entire undivided interest in the Makati property should be given to respondent.

The trial court found merit in respondents opposition, and in its Order dated December 6, 1991,
disapproved the project of partition insofar as it affects the Makati property. The trial court also
adjudicated Richards entire undivided interest in the Makati property to respondent.[15]

On October 20, 1993, respondent filed with the Court of Appeals (CA) an amended complaint for the
annulment of the trial courts Orders dated February 12, 1988 and April 7, 1988, issued in Special
Proceeding No. 9625.[16] Respondent contended that petitioner willfully breached his fiduciary duty
when he disregarded the laws of the State of Maryland on the distribution of Audreys estate in
accordance with her will.Respondent argued that since Audrey devised her entire estate to Richard,
then the Makati property should be wholly adjudicated to him, and not merely thereof, and since
Richard left his entire estate, except for his rights and interests over the A/G Interiors, Inc., to
respondent, then the entire Makati property should now pertain to respondent.

Petitioner filed his Answer denying respondents allegations. Petitioner contended that he acted in good
faith in submitting the project of partition before the trial court in Special Proceeding No. 9625, as he
had no knowledge of the State of Marylands laws on testate and intestate succession. Petitioner
alleged that he believed that it is to the best interests of the surviving children that Philippine law be
applied as they would receive their just shares. Petitioner also alleged that the orders sought to be
annulled are already final and executory, and cannot be set aside.

On March 18, 1999, the CA rendered the assailed Decision annulling the trial courts Orders
dated February 12, 1988 and April 7, 1988, in Special Proceeding No. 9625. [17] The dispositive portion
of the assailed Decision provides:

WHEREFORE, the assailed Orders of February 12, 1998 and April 7, 1988 are hereby ANNULLED and, in
lieu thereof, a new one is entered ordering:

(a) The adjudication of the entire estate of Audrey ONeill Guersey in favor of the estate of W. Richard
Guersey; and
(b) The cancellation of Transfer Certificate of Title No. 15583 of the Makati City Registry and the
issuance of a new title in the name of the estate of W. Richard Guersey.
SO ORDERED.[18]

Petitioner filed a motion for reconsideration, but this was denied by the CA per Resolution
dated August 27, 1999.[19]

Hence, the herein petition for review on certiorari under Rule 45 of the Rules of Court alleging that the
CA gravely erred in not holding that:

A) THE ORDERS OF 12 FEBRUARY 1988 AND 07 APRIL 1988 IN SPECIAL PROCEEDINGS NO. 9625 IN THE
MATTER OF THE PETITION FOR PROBATE OF THE WILL OF THE DECEASED AUDREY GUERSEY, ALONZO
Q. ANCHETA, ANCILLARY ADMINISTRATOR, ARE VALID AND BINDING AND HAVE LONG BECOME FINAL
AND HAVE BEEN FULLY IMPLEMENTED AND EXECUTED AND CAN NO LONGER BE ANNULLED.

B) THE ANCILLARY ADMINISTRATOR HAVING ACTED IN GOOD FAITH, DID NOT COMMIT FRAUD, EITHER
EXTRINSIC OR INTRINSIC, IN THE PERFORMANCE OF HIS DUTIES AS ANCILLARY ADMINISTRATOR OF
AUDREY ONEIL GUERSEYS ESTATE IN THE PHILIPPINES, AND THAT NO FRAUD, EITHER EXTRINSIC OR
INTRINSIC, WAS EMPLOYED BY [HIM] IN PROCURING SAID ORDERS. [20]

Petitioner reiterates his arguments before the CA that the Orders dated February 12, 1988 and April 7,
1988 can no longer be annulled because it is a final judgment, which is conclusive upon the
administration as to all matters involved in such judgment or order, and will determine for all time and
in all courts, as far as the parties to the proceedings are concerned, all matters therein determined,
and the same has already been executed. [21]

Petitioner also contends that that he acted in good faith in performing his duties as an ancillary
administrator. He maintains that at the time of the filing of the project of partition, he was not aware of
the relevant laws of the State of Maryland, such that the partition was made in accordance with
Philippine laws. Petitioner also imputes knowledge on the part of respondent with regard to the terms
of Aubreys will, stating that as early as 1984, he already apprised respondent of the contents of the
will and how the estate will be divided.[22]

Respondent argues that petitioners breach of his fiduciary duty as ancillary administrator of Aubreys
estate amounted to extrinsic fraud. According to respondent, petitioner was duty-bound to follow the
express terms of Aubreys will, and his denial of knowledge of the laws of Maryland cannot stand
because petitioner is a senior partner in a prestigious law firm and it was his duty to know the relevant
laws.

Respondent also states that she was not able to file any opposition to the project of partition because
she was not a party thereto and she learned of the provision of Aubreys will bequeathing entirely her
estate to Richard only after Atty. Ancheta filed a project of partition in Special Proceeding No. M-888 for
the settlement of Richards estate.

A decree of distribution of the estate of a deceased person vests the title to the land of the estate in
the distributees, which, if erroneous may be corrected by a timely appeal. Once it becomes final, its
binding effect is like any other judgment in rem.[23] However, in exceptional cases, a final decree of
distribution of the estate may be set aside for lack of jurisdiction or fraud. [24] Further, in Ramon v.
Ortuzar,[25] the Court ruled that a party interested in a probate proceeding may have a final liquidation

set aside when he is left out by reason of circumstances beyond his control or through mistake or
inadvertence not imputable to negligence.[26]

The petition for annulment was filed before the CA on October 20, 1993, before the issuance of the
1997 Rules of Civil Procedure; hence, the applicable law is Batas Pambansa Blg. 129 (B.P. 129) or the
Judiciary Reorganization Act of 1980. An annulment of judgment filed under B.P. 129 may be based on
the ground that a judgment is void for want of jurisdiction or that the judgment was obtained by
extrinsic fraud.[27] For fraud to become a basis for annulment of judgment, it has to be extrinsic or
actual,[28] and must be brought within four years from the discovery of the fraud. [29]

In the present case, respondent alleged extrinsic fraud as basis for the annulment of the RTC Orders
dated February 12, 1988 and April 7, 1988. The CA found merit in respondents cause and found that
petitioners failure to follow the terms of Audreys will, despite the latters declaration of good faith,
amounted to extrinsic fraud. The CA ruled that under Article 16 of the Civil Code, it is the national law
of the decedent that is applicable, hence, petitioner should have distributed Aubreys estate in
accordance with the terms of her will. The CA also found that petitioner was prompted to distribute
Audreys estate in accordance with Philippine laws in order to equally benefit Audrey and Richard
Guerseys adopted daughter, Kyle Guersey Hill.

Petitioner contends that respondents cause of action had already prescribed because as early as 1984,
respondent was already well aware of the terms of Audreys will, [30] and the complaint was filed only in
1993. Respondent, on the other hand, justified her lack of immediate action by saying that she had no
opportunity to question petitioners acts since she was not a party to Special Proceeding No. 9625, and
it was only after Atty.Ancheta filed the project of partition in Special Proceeding No. M-888, reducing
her inheritance in the estate of Richard that she was prompted to seek another counsel to protect her
interest.[31]

It should be pointed out that the prescriptive period for annulment of judgment based on extrinsic
fraud commences to run from the discovery of the fraud or fraudulent act/s. Respondents
knowledge of the terms of Audreys will is immaterial in this case since it is not the fraud complained of.
Rather, it is petitioners failure to introduce in evidence the pertinent law of the State of Maryland that
is the fraudulent act, or in this case, omission, alleged to have been committed against respondent,
and therefore, the four-year period should be counted from the time of respondents discovery thereof.

Records bear the fact that the filing of the project of partition of Richards estate, the opposition
thereto, and the order of the trial court disallowing the project of partition in Special Proceeding No. M888 were all done in 1991.[32] Respondent cannot be faulted for letting the assailed orders to lapse into
finality since it was only through Special Proceeding No. M-888 that she came to comprehend the
ramifications of petitioners acts. Obviously, respondent had no other recourse under the circumstances
but to file the annulment case. Since the action for annulment was filed in 1993, clearly, the same has
not yet prescribed.

Fraud takes on different shapes and faces. In Cosmic Lumber Corporation v. Court of Appeals,[33] the
Court stated that man in his ingenuity and fertile imagination will always contrive new schemes to fool
the unwary.

There is extrinsic fraud within the meaning of Sec. 9 par. (2), of B.P. Blg. 129, where it is one the effect
of which prevents a party from hearing a trial, or real contest, or from presenting all of his case to the
court, or where it operates upon matters, not pertaining to the judgment itself, but to the manner in
which it was procured so that there is not a fair submission of the controversy. In other words, extrinsic
fraud refers to any fraudulent act of the prevailing party in the litigation which is committed outside of
the trial of the case, whereby the defeated party has been prevented from exhibiting fully his side of
the case by fraud or deception practiced on him by his opponent. Fraud is extrinsic where the
unsuccessful party has been prevented from exhibiting fully his case, by fraud or deception practiced
on him by his opponent, as by keeping him away from court, a false promise of a compromise; or
where the defendant never had any knowledge of the suit, being kept in ignorance by the acts of the
plaintiff; or where an attorney fraudulently or without authority connives at his defeat; these and
similar cases which show that there has never been a real contest in the trial or hearing of the case are
reasons for which a new suit may be sustained to set aside and annul the former judgment and open
the case for a new and fair hearing. [34]

The overriding consideration when extrinsic fraud is alleged is that the fraudulent scheme of the
prevailing litigant prevented a party from having his day in court. [35]

Petitioner is the ancillary administrator of Audreys estate. As such, he occupies a position of the
highest trust and confidence, and he is required to exercise reasonable diligence and act in entire good
faith in the performance of that trust. Although he is not a guarantor or insurer of the safety of the
estate nor is he expected to be infallible, yet the same degree of prudence, care and judgment which a
person of a fair average capacity and ability exercises in similar transactions of his own, serves as the
standard by which his conduct is to be judged. [36]

Petitioners failure to proficiently manage the distribution of Audreys estate according to the terms of
her will and as dictated by the applicable law amounted to extrinsic fraud. Hence the CA Decision
annulling the RTC Orders dated February 12, 1988 and April 7, 1988, must be upheld.

It is undisputed that Audrey Guersey was an American citizen domiciled in Maryland, U.S.A. During the
reprobate of her will in Special Proceeding No. 9625, it was shown, among others, that at the time of
Audreys death, she was residing in the Philippines but is domiciled in Maryland, U.S.A.; her Last Will
and Testament dated August 18, 1972 was executed and probated before the Orphans Court in
Baltimore, Maryland, U.S.A., which was duly authenticated and certified by the Register of Wills of
Baltimore City and attested by the Chief Judge of said court; the will was admitted by the Orphans
Court of Baltimore City on September 7, 1979; and the will was authenticated by the Secretary of State
of Maryland and the Vice Consul of the Philippine Embassy.

Being a foreign national, the intrinsic validity of Audreys will, especially with regard as to who are her
heirs, is governed by her national law, i.e., the law of the State of Maryland, as provided in Article 16 of
the Civil Code, to wit:

Art. 16. Real property as well as personal property is subject to the law of the country where it is
situated.
However, intestate and testamentary succession, 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. (Emphasis supplied)

Article 1039 of the Civil Code further provides that capacity to succeed is governed by the law of the
nation of the decedent.

As a corollary rule, Section 4, Rule 77 of the Rules of Court on Allowance of Will Proved Outside the
Philippines and Administration of Estate Thereunder, states:

SEC. 4. Estate, how administered.When a will is thus allowed, the court shall grant letters
testamentary, or letters of administration with the will annexed, and such letters testamentary or of
administration, shall extend to all the estate of the testator in the Philippines. Such estate, after the
payment of just debts and expenses of administration, shall be disposed of according to
such will, so far as such will may operate upon it; and the residue, if any, shall be disposed of as
is provided by law in cases of estates in the Philippines belonging to persons who are inhabitants of
another state or country. (Emphasis supplied)

While foreign laws do not prove themselves in our jurisdiction and our courts are not authorized to take
judicial notice of them;[37] however, petitioner, as ancillary administrator of Audreys estate, was dutybound to introduce in evidence the pertinent law of the State of Maryland.[38]

Petitioner admitted that he failed to introduce in evidence the law of the State of Maryland on Estates
and Trusts, and merely relied on the presumption that such law is the same as the Philippine law on
wills and succession. Thus, the trial court peremptorily applied Philippine laws and totally disregarded
the terms of Audreys will. The obvious result was that there was no fair submission of the case before
the trial court or a judicious appreciation of the evidence presented.

Petitioner insists that his application of Philippine laws was made in good faith. The Court cannot
accept petitioners protestation. How can petitioner honestly presume that Philippine laws apply when
as early as the reprobate of Audreys will before the trial court in 1982, it was already brought to fore
that Audrey was a U.S. citizen, domiciled in the State of Maryland. As asserted by respondent,
petitioner is a senior partner in a prestigious law firm, with a big legal staff and a large library. [39] He

had all the legal resources to determine the applicable law. It was incumbent upon him to exercise his
functions as ancillary administrator with reasonable diligence, and to discharge the trust reposed on
him faithfully. Unfortunately, petitioner failed to perform his fiduciary duties.

Moreover, whether his omission was intentional or not, the fact remains that the trial court failed to
consider said law when it issued the assailed RTC Orders dated February 12, 1988 and April 7, 1988,
declaring Richard and Kyle as Audreys heirs, and distributing Audreys estate according to the project of
partition submitted by petitioner. This eventually prejudiced respondent and deprived her of her
full successional right to theMakati property.

In GSIS v. Bengson Commercial Bldgs., Inc.,[40] the Court held that when the rule that the negligence or
mistake of counsel binds the client deserts its proper office as an aid to justice and becomes a great
hindrance and chief enemy, its rigors must be relaxed to admit exceptions thereto and to prevent a
miscarriage of justice, and the court has the power to except a particular case from the operation of
the rule whenever the purposes of justice require it.

The CA aptly noted that petitioner was remiss in his responsibilities as ancillary administrator of
Audreys estate. The CA likewise observed that the distribution made by petitioner was prompted by his
concern over Kyle, whom petitioner believed should equally benefit from the Makati property. The CA
correctly stated, which the Court adopts, thus:

In claiming good faith in the performance of his duties and responsibilities, defendant Alonzo
H. Ancheta invokes the principle which presumes the law of the forum to be the same as the foreign
law (Beam vs. Yatco, 82 Phil. 30, 38) in the absence of evidence adduced to prove the latter law (Slade
Perkins vs. Perkins, 57 Phil. 205, 210). In defending his actions in the light of the foregoing principle,
however, it appears that the defendant lost sight of the fact that his primary responsibility as ancillary
administrator was to distribute the subject estate in accordance with the will of Audrey
ONeill Guersey. Considering the principle established under Article 16 of the Civil Code of
the Philippines, as well as the citizenship and the avowed domicile of the decedent, it goes without
saying that the defendant was also duty-bound to prove the pertinent laws of Maryland on the matter.
The record reveals, however, that no clear effort was made to prove the national law of Audrey
ONeill Guersey during the proceedings before the court a quo. While there is claim of good faith in
distributing the subject estate in accordance with the Philippine laws, the defendant appears to put his
actuations in a different light as indicated in a portion of his direct examination, to wit:
xxx

It would seem, therefore, that the eventual distribution of the estate of Audrey ONeill Guersey was
prompted by defendant Alonzo H. Anchetas concern that the subject realty equally benefit the
plaintiffs adopted daughter Kyle Guersey.

Well-intentioned though it may be, defendant Alonzo H. Anchetas action appears to have breached his
duties and responsibilities as ancillary administrator of the subject estate. While such breach of

duty admittedly cannot be considered extrinsic fraud under ordinary circumstances, the
fiduciary nature of the said defendants position, as well as the resultant frustration of the
decedents last will, combine to create a circumstance that is tantamount to extrinsic
fraud.Defendant Alonzo H. Anchetas omission to prove the national laws of the decedent and to follow
the latters last will, in sum, resulted in the procurement of the subject orders without a fair submission
of the real issues involved in the case.[41](Emphasis supplied)

This is not a simple case of error of judgment or grave abuse of discretion, but a total disregard of the
law as a result of petitioners abject failure to discharge his fiduciary duties. It does not rest upon
petitioners pleasure as to which law should be made applicable under the circumstances. His onus is
clear. Respondent was thus excluded from enjoying full rights to the Makati property through no fault
or negligence of her own, as petitioners omission was beyond her control. She was in no position to
analyze the legal implications of petitioners omission and it was belatedly that she realized the
adverse consequence of the same. The end result was a miscarriage of justice. In cases like this, the
courts have the legal and moral duty to provide judicial aid to parties who are deprived of their rights.
[42]

The trial court in its Order dated December 6, 1991 in Special Proceeding No. M-888 noted the law of
the State of Maryland on Estates and Trusts, as follows:

Under Section 1-301, Title 3, Sub-Title 3 of the Annotated Code of the Public General Laws of Maryland
on Estates and Trusts, all property of a decedent shall be subject to the estate of decedents law, and
upon his death shall pass directly to the personal representative, who shall hold the legal title for
administration and distribution, while Section 4-408 expressly provides that unless a contrary intent is
expressly indicated in the will, a legacy passes to the legatee the entire interest of the testator in the
property which is the subject of the legacy. Section 7-101, Title 7, Sub-Title 1, on the other hand,
declares that a personal representative is a fiduciary and as such he is under the general duty to settle
and distribute the estate of the decedent in accordance with the terms of the will and the estate of
decedents law as expeditiously and with as little sacrifice of value as is reasonable under the
circumstances.[43]

In her will, Audrey devised to Richard her entire estate, consisting of the following: (1) Audreys
conjugal share in the Makati property; (2) the cash amount of P12,417.97; and (3) 64,444 shares of
stock in A/G Interiors, Inc. worth P64,444.00. All these properties passed on to Richard upon Audreys
death. Meanwhile, Richard, in his will, bequeathed his entire estate to respondent, except for his rights
and interests over the A/G Interiors, Inc. shares, which he left to Kyle. When Richard subsequently died,
the entire Makati property should have then passed on to respondent. This, of course, assumes the
proposition that the law of the State ofMaryland which allows a legacy to pass to the legatee the entire
estate of the testator in the property which is the subject of the legacy, was sufficiently proven in
Special Proceeding No. 9625. Nevertheless, the Court may take judicial notice thereof in view of the
ruling in Bohanan v. Bohanan.[44] Therein, the Court took judicial notice of the law of Nevada despite
failure to prove the same. The Court held, viz.:

We have, however, consulted the records of the case in the court below and we have found that during
the hearing on October 4, 1954 of the motion of Magdalena C. Bohanan for withdrawal of P20,000 as

her share, the foreign law, especially Section 9905, Compiled Nevada Laws, was introduced in
evidence by appellants' (herein) counsel as Exhibit "2" (See pp. 77-79, Vol. II, and t.s.n. pp. 24-44,
Records, Court of First Instance). Again said law was presented by the counsel for the executor and
admitted by the Court as Exhibit "B" during the hearing of the case on January 23, 1950 before Judge
Rafael Amparo (see Records, Court of First Instance, Vol. 1).

In addition, the other appellants, children of the testator, do not dispute the above-quoted provision of
the laws of the State of Nevada. Under all the above circumstances, we are constrained to hold that
the pertinent law of Nevada, especially Section 9905 of the Compiled Nevada Laws of 1925, can be
taken judicial notice of by us, without proof of such law having been offered at the hearing of the
project of partition.

In this case, given that the pertinent law of the State of Maryland has been brought to record before
the CA, and the trial court in Special Proceeding No. M-888 appropriately took note of the same in
disapproving the proposed project of partition of Richards estate, not to mention that petitioner or any
other interested person for that matter, does not dispute the existence or validity of said law, then
Audreys and Richards estate should be distributed according to their respective wills, and not
according to the project of partition submitted by petitioner. Consequently, the entire Makati property
belongs to respondent.

Decades ago, Justice Moreland, in his dissenting opinion in Santos v. Manarang,[45] wrote:

A will is the testator speaking after death. Its provisions have substantially the same force and effect in
the probate court as if the testator stood before the court in full life making the declarations by word of
mouth as they appear in the will. That was the special purpose of the law in the creation of the
instrument known as the last will and testament. Men wished to speak after they were dead and the
law, by the creation of that instrument, permitted them to do so x x x All doubts must be resolved in
favor of the testator's having meant just what he said.

Honorable as it seems, petitioners motive in equitably distributing Audreys estate cannot prevail over
Audreys and Richards wishes. As stated in Bellis v. Bellis:[46]

x x x whatever public policy or good customs may be involved in our system of legitimes, Congress has
not intended to extend the 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.[47]

Before concluding, the Court notes the fact that Audrey and Richard Guersey were American citizens
who owned real property in the Philippines, although records do not show when and how
the Guerseys acquired the Makati property.

Under Article XIII, Sections 1 and 4 of the 1935 Constitution, the privilege to acquire and exploit lands
of the public domain, and other natural resources of the Philippines, and to operate public utilities,
were reserved to Filipinos and entities owned or controlled by them. In Republic v. Quasha,[48] the Court
clarified that the Parity Rights Amendment of 1946, which re-opened to American citizens and business
enterprises the right in the acquisition of lands of the public domain, the disposition, exploitation,
development and utilization of natural resources of the Philippines, does not include the acquisition or
exploitation of private agricultural lands. The prohibition against acquisition of private lands by aliens
was carried on to the 1973 Constitution under Article XIV, Section 14, with the exception of private
lands acquired by hereditary succession and when the transfer was made to a former natural-born
citizen, as provided in Section 15, Article XIV. As it now stands, Article XII, Sections 7 and 8 of the 1986
Constitution explicitly prohibits non-Filipinos from acquiring or holding title to private lands or to lands
of the public domain, except only by way of legal succession or if the acquisition was made by a former
natural-born citizen.

In any case, the Court has also ruled that if land is invalidly transferred to an alien who subsequently
becomes a citizen or transfers it to a citizen, the flaw in the original transaction is considered cured
and the title of the transferee is rendered valid.[49] In this case, since the Makati property had already
passed on to respondent who is a Filipino, then whatever flaw, if any, that attended the acquisition by
the Guerseys of the Makatiproperty is now inconsequential, as the objective of the constitutional
provision to keep our lands in Filipino hands has been achieved.

WHEREFORE, the petition is denied. The Decision dated March 18, 1999 and the Resolution
dated August 27, 1999 of the Court of Appeals are AFFIRMED.

Petitioner is ADMONISHED to be more circumspect in the performance of his duties as an official of

the court.
No pronouncement as to costs.
SO ORDERED.

2.3 Appointment and removal of executor or administrator

Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-26306 April 27, 1988
TESTATE ESTATE OF THE LATE GREGORIO VENTURA MARIA VENTURA, executrix- appellant,
MIGUEL VENTURA and JUANA CARDONA, heirs-appellants,
vs.
GREGORIA VENTURA and HER HUSBAND, EXEQUIEL VICTORIO, MERCEDES VENTURA and
HER HUSBAND, PEDRO D. CORPUZ, oppositors-appellees.
PARAS, J.:

This is an appeal from the order of the Court of First Instance of Nueva Ecija, Guimba, Branch V in
Special Proceedings No. 812, Testate of the late Gregorio Venture, dated October 5, 1965, removing
the appellant Maria Ventura as executrix and administratrix of the estate of the late Gregorio Ventura,
and in her place appointing the appellees Mercedes Ventura and Gregoria Ventura as joint
administratrices of the estate. (Record on Appeal, pp. 120-131.)
Appellant Maria Ventura is the illegitimate daughter of the deceased Gregorio Ventura while Miguel
Ventura and Juana Cardona are his son and saving spouse who are also the brother and mother of
Maria Ventura. On the other hand, appellees Mercedes and Gregoria Ventura are the deceased's
legitimate children with his former wife, the late Paulina Simpliciano (Record on Appeal, p. 122) but the
paternity of appellees was denied by the deceased in his will (Record on Appeal, p. 4).
On December 14,1953, Gregorio Ventura filed a petition for the probate of his will which did not include
the appellees and the petition was docketed as Special Proceedings No. 812 (Record on Appeal, pp. 13). In the said will, the appellant Maria Ventura, although an illegitimate child, was named and
appointed by the testator to be the executrix of his will and the administratrix of his estate (Record on
Appeal, p. 7).
In due course, said will was admitted to probate on January 14,1954 (Record on Appeal, pp. 8-10).
Gregorio Ventura died on September 26,1955. On October 10, 1955, the appellant Maria Ventura filed
a motion for her appointment as executrix and for the issuance of letters testamentary in her favor
(Record on Appeal, pp. 10-11). On October 17, 1955, Maria Ventura was appointed executrix and the
corresponding letters testamentary was issued in her favor (Record on Appeal, pp. 11-12).
On or about July 26, 1956, Maria Ventura submitted an inventory of the estate of Gregorio Ventura
(Record on Appeal, pp. 12-20).
On June 17,1960, she filed her accounts of administration for the years 1955 to 1960, inclusive.
(Record on Appeal, pp. 20-27). Said account of administration was opposed by the spouses Mercedes
Ventura and Pedro Corpuz on July 25, 1960 (Record on Appeal, pp. 27-33) and by Exequiel Victorio and
Gregoria Ventura on August 5,1963 (Record on Appeal, pp. 46-50). Both oppositions assailed the
veracity of the report as not reflecting the true income of the estate and the expenses which allegedly
are not administration expenses. But on January 25, 1961, Maria Ventura filed a motion to hold in
abeyance the approval of the accounts of administration or to have their approval without the
opposition of the spouses Mercedes Ventura and Pedro Corpuz and Gregoria Ventura and Exequiel
Victorio on the ground that the question of the paternity of Mercedes Ventura and Gregoria Ventura is
still pending final determination before the Supreme Court and that should they be adjudged the
adulterous children of testator, as claimed, they are not entitled to inherit nor to oppose the approval
of the counts of administration (Record on Appeals, pp. 33-36). Spouses Mercedes Ventura and Pedro
Corpuz filed on February 2, 1961 their opposition to the motion to hold in abeyance the approval of the
accounts of administration on the ground that Mercedes and Gregoria Ventura had already been
declared by the Court of First Instance in Civil Cases No. 1064 and 1476, which cases are supposed to
be pending before the Supreme Court, as the legitimate children of Gregorio Ventura, hence, they have
reason to protect their interest (Record on Appeal, pp. 36-39). On February 9,1961, the motion to hold
in abeyance the approval of the accounts was denied (Record on Appeal, pp. 39-40).
It appears that on July 12, 1963, the Court set the case for pre-trial on August 7, 1963 in connection
with the accounts of the executrix Maria Ventura dated June 17, 1960 and the Motion to Annul
Provision of Will dated July 14,1962 of Mercedes Ventura (Record on Appeal, p. 45).
On October 22, 1963, four motions were filed by Mercedes Ventura and Gregoria Ventura, namely: (1)
motion to remove the executrix Maria Ventura which was supplemented on April 27, 1965; (2) motion
to require her to deposit the harvest of palay of the property under administration in a bonded
warehouse; (3) motion to render an accounting of the proceeds and expenses of Administration; and
(4) motion to require her to include in the inventory of the estate certain excluded properties (Record

on Appeal, pp. 50-53; 71). An opposition to said motions was filed by the heirs Juana Cardona and
Miguel Ventura and by the executrix Maria Ventura herself (Record on Appeal, pp. 56-61; 61-70 and
71).
On motion of counsel for Exequiel Victorio and Gregoria Ventura the joint motions to require an Up-todate Accounting and to Require Executrix Ventura to Include Excluded Properties in Her Inventory were
ordered withdrawn (Order dated February 2, 1965, Record on Appeal, p. 73). The other two motions
were however set for hearing.
The grounds of aforesaid joint motions to remove the executrix Maria Ventura are: (1) that she is
grossly incompetent; (2) that she has maliciously and purposely concealed certain properties of the
estate in the inventory; (3) that she is merely an illegitimate daughter who can have no harmonious
relations with the appellees; (4) that the executrix has neglected to render her accounts and failed to
comply with the Order of the Court of December 12, 1963, requiring her to file her accounts of
administration for the years 1961 to 1963 (Record on Appeal, pp. 70 and 75-76) and the Order of June
11, 1964, reiterating aforesaid Order of December 12, 1963 (Record on Appeal, p. 76); and (5) that she
is with permanent physical defect hindering her from efficiently performing her duties as an executrix
(Record on Appeal, pp. 50-53 and 74-79).
On May 17, 1965, the executrix Maria Ventura finally submitted her accounts of administration
covering the period 1961 to 1965 (Record on Appeal, pp. 79-84) which were again opposed by the
spouses Exequiel Victorio and Gregoria Ventura on September 21, 1965 and by the spouses Mercedes
Ventura and Pedro Corpuz on September 29, 1965 (Record on Appeal, pp. 106-120). On June 2, 1965,
the executrix filed her supplemental opposition to the aforesaid four motions, and prayed that the joint
supplemental motion to remove the executrix be denied or held in abeyance until after the status of
Mercedes and Gregoria Ventura as heirs of the testator is finally decided (Record on Appeal, pp. 85-1
01). On June 3, 1965, the Court, finding that the estate taxes have not been paid, ordered the
administratrix to pay the same within thirty (30) days. On September 13, 1965, the lower court denied
the suspension of the proceedings and deferred the resolution of the joint motion to remove executrix
Maria Ventura until after the examination of the physical fitness of said executrix to undertake her
duties as such. Also, it ordered the deposit of all palay to be harvested in the next agricultural year and
subsequent years to be deposited in a bonded warehouse to be selected by the Court and the palay so
deposited shall not be withdrawn without the express permission of the Court (Record on Appeal, pp.
103-105). On September 21, 1965, spouses Exequiel Victorio and Gregoria Ventura filed their
opposition to the accounts of administration of Maria Ventura dated May 17, 1965, while that of
spouses Mercedes Ventura and Pedro Corpuz was filed on September 29, 1965, both oppositions
alleging among others that said accounts do not reflect the true and actual income of the estate and
that the expenses reported thereunder are fake, exhorbitant and speculative (Record on Appeal, pp.
106-120).
On October 5, 1965, the court a quo, finding that the executrix Maria Ventura has squandered the
funds of the estate, was inefficient and incompetent, has failed to comply with the orders of the Court
in the matter of presenting up-to-date statements of accounts and neglected to pay the real estate
taxes of the estate, rendered the questioned decision, the dispositive portion of which reads:
WHEREFORE, Maria Ventura is hereby removed as executrix and administratrix of the estate and in her
place Mercedes Ventura and Gregoria Ventura are hereby appointed joint a tratrices of the estate upon
filing by each of them of a bond of P 7,000.00. Let letters of administration be issued to Mercedes
Ventura and Gregoria Ventura upon their qualification.
IT IS SO ORDERED.
(Record on Appeal pp. 120-131).
Hence, this appeal.

In their brief, appellants Maria Ventura and spouses Juana Cardona and Miguel Ventura assign the
following errors allegedly committed by the probate court:
ASSIGNMENT OF ERRORS
I
The lower court erred in ordering the removal of Maria Ventura as executrix and administratrix of the
will and estate of the deceased Gregorio Ventura without giving her full opportunity to be heard and to
present all her evidence.
II
The lower court erred in finding that the executrix Maria Ventura had squandered and dissipated the
funds of the estate under her administration.
III
The lower court erred in finding that the executrix Maria Ventura was inefficient and incompetent.
IV
That, considering the circumtances surrounding the case, the lower court erred in finding that the
failure of Maria Ventura to submit her periodical account had justified her removal as executrix.
V
The lower court erred in considering as an established fact that the appellees Mercedes Ventura and
Gregoria Ventura are the legitimate daughters of the deceased Gregorio Ventura.
VI
The lower court erred in finding that the devises and bequests in favor of Maria Ventura and Miguel
Ventura as specified in paragraph 8 of the last Will and Testament of the late Gregorio Ventura have
ipso facto been annulled.
VII
The lower court erred in allowing the appellees Mercedes Ventura and Gregoria Ventura to intervene in
the hearing of the accounts of administration submitted by the executrix Maria Ventura and/or in not
suspending the hearing of the said accounts until the said appellees have finally established their
status as legitimate children of the deceased Gregorio Ventura.
VIII
The lower court erred in appointing (even without a proper petition for appointment and much less a
hearing on the appointment of) the appellees Mercedes Ventura and Gregoria Ventura who have an
adverse interest as joint administratrices of the estate of the deceased Gregorio Ventura.
IX
The lower court erred in not appointing the surviving widow, Juana Cardona, or Miguel Ventura, as
administratrix of the estate of Gregorio Ventura in case the removal of Maria Ventura as executrix and
administratrix thereof is legally justified.
X

Considering that there are in fact two (2) factions representing opposite interests in the estate, the
lower court erred in not appointing Juana Cardona, or Miguel Ventura, as one of the two (2)
administratrices.' (Joint Brief for the Appellants, pp. 1-4)
On July 19,1967, Atty. Arturo Tolentino (representing appellees Mercedes Ventura and Pedro Corpuz)
and Atty. Jose J. Francisco (representing Gregoria and Exequiel Victoria), having failed to submit their
respective briefs within the period for the purpose, which expired on July 2 and May 29,1967,
respectively, the Supreme Court Resolved to consider this case submitted for decision WITHOUT SAID
APPELLEES' BRIEF (Rollo, p. 152).
The crucial issue in this case is whether or not the removal of Maria Ventura as executrix is legally
justified. This issue has, however, become moot and academic in view of the decision of this Court in
related cases.
At the outset, it is worthy to note that aside from the instant special proceedings, there are two other
civil cases involving the estate of the deceased Gregoria Ventura, namely, Civil Cases Nos. 1064 and
1476. Civil Case No. 1064 was filed on December 2, 1952 by herein appellee Gregoria Ventura in the
Court of First Instance of Nueva Ecija, Branch I, against the other appellees herein Mercedes Ventura
and their father, Gregorio Ventura. Later Mercedes Ventura joined cause with Gregoria Ventura.
(Record on Appeal, p. 95). Gregoria and Mercedes Ventura claimed that they are the legitimate
children of Gregorio Ventura and his wife Paulina Simpliciano, who died in 1943, and asked that onehalf of the properties described in the complaint be declared as the share of their mother in the
conjugal partnership, with them as the only forced heirs of their mother Paulina (Joint Brief for the
Appellants, pp. 53-68).
Subsequently, Civil Case No. 1476 was filed by Alipio, Eufracia and Juliana, all surnamed Simpliciano,
against Gregorio Ventura and the two sisters, Mercedes and Gregoria Ventura, before the Court of First
Instance of Nueva Ecija, Branch I. They alleged that as the only children of Modesto Simpliciano, sole
brother of Paulina Simpliciano, they, instead of Mercedes and Gregoria Ventura, whom they claimed
are adulterous children of Paulina with another man, Teodoro Ventura and as such are not entitled to
inherit from her, are the ones who should inherit the share of Paulina Simpliciano in the conjugal
Partnership with Gregorio Ventura (Joint Brief For The Appealant,pp.69-79)
It appears that on November 4, 1959, after a joint hearing of Civil Cases Nos. 1064 and 1476, the lower
court rendered its judgment, the dispositive portion of which reads as follows:
WHEREFORE, judgment is hereby rendered declaring Mercedes Ventura and Gregoria Ventura to be the
ligitimate daughters of Paulina Simpliciano and Gregorio Ventura; declaring that as such ligitimate
daughters of Paulina Simpliciano they are entitled to 1/2 of the properties described in paragraph six
of the complaint; ordering the defendant Maria Ventura, as administratrix of the estate of Gregorio
Ventura to pay to Mercedes Ventura and Gregorio Ventura the amount of P 19,074.09 which shall be
divided equally between Mercedes and Gregoria Ventura declaring Mercedes Ventura and Pedro Corpuz
are the exclusive owners of the property describe in the certificate of Title Nos. T-1102, 212, T-1213, T1214, Exhibits 32, 33, 34 and 35, respectively; ordering Mercedes Ventura and Pedro D. Corpuz to pay
to the conjugal partnership of Gregorio Ventura and Paulina Simpliciano the sum of P100,000.00, onehalf of which shall pertain to the estate of Gregorio Ventura and the other half to the estate of Paulina
Simpliciano to whom Mercedes and Gregoria Ventura have succeeded, to be divided between
Mercedes and Gregoria in equal parts; and dismissing Civil Case No. 1476. The parties are urged to
arrive at an amicable partition of the properties herein adjudicated within twenty days from receipt of
this decision. Upon their failure to do so, the Court shall appoint commissioners to divide the properties
in accordance with the terms of the decision. Without pronouncements as to costs. (Emphasis
supplied). (Joint Brief for the Appellants, pp. 3738.)
Thereafter, on July 14, 1962, Mercedes Ventura filed a motion to annul the provisions of the will of the
deceased Gregorio Ventura in Special Proceedings No. 812, which motion was opposed by Miguel

Ventura and Juana Cardona and later by Maria Ventura. They claimed that the decision dated
November 4,1959 in Civil Cases Nos. 1064 and 1476 was not yet final.
On February 26,1964, the court annulled the institution of the heirs in the probated will of Gregorio
Ventura. The motion for reconsideration of the aforesaid order filed by executrix Maria Ventura was
denied on June 11, 1964.
Accordingly, Maria Ventura appealed the February 26, 1964 and June 11, 1964 orders of the probate
court in Special Proceedings No. 812 before the Supreme Court and was docketed as G.R. No. L-23878.
On May 27,1977, this Court, through then Associate Justice Antonio P. Barredo, ruled, as follows:
And so, acting on appellees' motion to dismiss appeal, it is Our considered opinion that the decision in
Civil Cases Nos.1064 and 1476 declaring that appellees Mercedes and Gregoria Ventura are the
ligimate children of the deceased Gregorio Ventura and his wife, Paulina Simpliciano, and as such are
entitled to the annulment of the institution of heirs made in the probated will of said deceased became
final and executory upon the finality of the order, approving ther partition directed in the decision in
question. We need not indulge in any discussion as to whether or not, as of the time the orders here in
question were issued by the trial court said decision had the nature of an interlocutory order only. To be
sure, in the case of Miranda, aforementioned, the opinion of the majority of the Court may well be
invoked against appellant's pose. In any event, even if the Court were minded to modify again Miranda
and go back to Fuentebella and Zaldariaga and it is not, as of now there can be no question that
the approval by the trial court in Civil Cases Nos. 1064 and 1476 of the partition report of the
commissioners appointed for the purpose, one of whom, Emmanuel Mariano, is the husband of
appellant, put a definite end to those cases, leaving nothing else to be done in the trial court. That
order of approval is an appealable one, and inasmuch as no appeal has been taken from the same, it is
beyond dispute that the decision in controversy has already become final and executory in all respects.
Hence, the case at bar has become moot and academic. (Ventura vs. Ventura, 77 SCRA 159, May
27,1977)
Under Article 854 of the Civil Code, "the pretention or omission of one, some, or all of the compulsory
heirs in the direct line, whether living at the time of the execution of the will or born after the death of
the testator, shall annul the institution of heir; but the devises and legacies shall be valid insofar as
they are not inofficious," and as a result, intestacy follows, thereby rendering the previous appointment
of Maria Ventura as executrix moot and academic. This would now necessitate the appointment of
another administrator, under the following provision:
Section 6, Rule 78 of the Rules of Court:
When and to whom letters of administration granted.-If no executor is named in the will, or the
executor or executors are incompetent, refuse the trust, or fail to give bond, or a person dies intestate,
a petition shall be granted:
(a) To the surviving husband or wife, as the case may be or next of kin, or both, in the discretion of the
court, or to such person as such surviving husband or wife, or both, in the discretion of the court, or to
such person as such surviving husband or wife, or next of kin, requests to have appointed, if
competent and willing to serve;"
xxx xxx xxx
In the case at bar, the surviving spouse of the deceased Gregorio Ventura is Juana Cardona while the
next of kin are: Mercedes and Gregoria Ventura and Maria and Miguel Ventura. The "next of kin" has
been defined as those persons who are entitled under the statute of distribution to the decedent's
property (Cooper vs. Cooper, 43 Ind. A. 620, 88 NE 341). It is generally said that "the nearest of kin,
whose interest in the estate is more preponderant, is preferred in the choice of administrator. 'Among
members of a class the strongest ground for preference is the amount or preponderance of interest. As

between next of kin, the nearest of kin is to be preferred." (Cabanas, et al. vs. Enage et al., 40 Off. Gaz.
12 Suppl. 227; citing 12 Am. Jur. Sec. 77, p. 416, cited in Francisco Vicente J., The Revised Rules of
Court in the Philippines, Vol. V-B 1970 Ed., p. 23).
As decided by the lower court and sustained by the Supreme Court, Mercedes and Gregoria Ventura
are the legitimate children of Gregorio Ventura and his wife, the late Paulina Simpliciano. Therefore, as
the nearest of kin of Gregorio Ventura they are entitled to preference over the illegitimate children of
Gregorio Ventura, namely: Maria and Miguel Ventura. Hence, under the aforestated preference
provided in Section 6 of Rule 78, the person or persons to be appointed administrator are Juana
Cardona, as the surviving spouse, or Mercedes and Gregoria Ventura as nearest of kin, or Juana
Cardona and Mercedes and Gregoria Ventura in the discretion of the Court, in order to represent both
interests.
PREMISES CONSIDERED, the appeal interposed by appellants Maria Ventura, Juana Cardona and Miguel
Ventura is hereby DISMISSED.
SO ORDERED.
Padilla and Sarmiento, JJ., concur.
Separate Opinions
MELENCIO-HERRERA, J., Disenting:
Consistent with my "concurrence in the result" in Acain vs. IAC, et als., G.r. No. 72706, October 27,
1987, preterition results in total intestacy if it was mistakenly made or through inadvertence. In this
case there was no mistake nor oversight whatsoever. The testator himself sought the probate of his
Will during his lifetime wherein he not only excluded his "forced heirs" but even denied paternity.
Under the circumstances, the omission being obviously intentional, the effect is a defective
disinheritance covered by Article 918 of the Civil Code under which the institution of heir is not wholly
void but only in so far as it prejudices the ligitimes of the persons disinherited. The nullity is partial
unlike in true preterition where the nullity is total.
This conclusion further finds support in the prevailing spirit in the codal provisions, which is to make
the intention of the testator prevail (e.g., Articles 783, 790, 848, 852, 861, Civil Code).
Yap, C.J., dissent.
Separate Opinions
MELENCIO-HERRERA, J., Disenting:
Consistent with my "concurrence in the result" in Acain vs. IAC, et als., G.r. No. 72706, October 27,
1987, preterition results in total intestacy if it was mistakenly made or through inadvertence. In this
case there was no mistake nor oversight whatsoever. The testator himself sought the probate of his
Will during his lifetime wherein he not only excluded his "forced heirs" but even denied paternity.
Under the circumstances, the omission being obviously intentional, the effect is a defective
disinheritance covered by Article 918 of the Civil Code under which the institution of heir is not wholly
void but only in so far as it prejudices the ligitimes of the persons disinherited. The nullity is partial
unlike in true preterition where the nullity is total.
This conclusion further finds support in the prevailing spirit in the codal provisions, which is to make
the intention of the testator prevail (e.g., Articles 783, 790, 848, 852, 861, Civil Code).

Yap, C.J., dissent.

Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. L-41508 June 27, 1988
CANDELARIO VILLAMOR, PILAR DE LA SERNA, BARTOLOME VILLAMOR, RAFAELA RETUYA,
SOFRONIO VILLAMOR, PILAR SEMBLANTE, ELEUTERIO VILLAMOR, CARIDAD GORECHO,
MARCOS OR and GUADALUPE CEDEO petitioners,
vs.
HON. COURT OF APPEALS and DANIELA CENIZA UROT, in her capacity as administratrix of
the estate of Fr. Nicanor Cortes, under Sp. Proc. No. 3062-R, respondents.
BIDIN, J.:
This petition for review on certiorari seeks to annul and set aside the decision of the Court of Appeals
which affirmed that of the then Court of First Instance of Cebu, Branch XL declaring null and void [1]
the Project of Partition in Special Proceedings Nos. 262-C and 343-C executed on December 7, 1946,
[2] the "Order" of April 14, 1948 which approved said Project of Partition, [3] the "Auto" of November
25, 1953 which closed and terminated the two (2) administration proceedings and which authorized
the delivery of seven (7) parcels of land to Ireneo Villamor and Paula Villamor, and [4] the extra-judicial
settlement and partition executed by the petitioners herein on July 28, 1969.
Spouses Victor Cortes and Maria Castaeda had eight (8) children, namely: Rufino, Barbara, Florencio,
Casimira, Brigida, Braulia, Margarita and Eugenia. Of the eight children, six died single and without
issue. Barbara Cortes begot a son by the name of Eustaquio Cortes. Rufino Cortes, who died on June
12, 1909 left two alleged legitimate children, Ireneo Cortes Villamor and Paula Cortes Villamor. The last
to die of the Cortes children was Eugenia Cortes. She died on January 8, 1931.
Eustaquio Cortes, son of Barbara, married one Sixta Ceniza. Born to them were five children, namely:
Dionisio, Bartolome, Nicanor, Agapita and Amancia, all surnamed Cortes. All five remained unmarried
and died without will nor forced heirs. Dionisio, Amancia and Agapita predeceased their father
Eustaquio. Eustaquio died on October 20, 1932, survived by his spouse and two sons, Bartolome and
Nicanor. Bartolome who was a Catholic priest, died on November 14, 1937. Nicanor Cortes, also known
as Father Gabriel Maria Cortes, died as a monk of the Carthusian Order in Barcelona, Spain on August
28, 1969. He was the last of the direct descendants of the Barbara Cortes line.
On the other hand, Paula Villamor, alleged daughter of Rufino Cortes, died single on January 29, 1967
and without issue. Ireneo Villamor married one Bersabela Perez. Said marriage was blessed with five
children, namely: Candelario, Bartolome, Sofronio, Eleuterio and Marcos, all surnamed Villamor, the
petitioners, herein. Ireneo Villamor died on April 21, 1966.
It appears that shortly after the death of Bartolome Cortes, Special Proceedings No. 227 was instituted
for the settlement of his estate. Fr. Diosdado Camomot, a close friend of Bartolome, was named
administrator.
Sometime between 1937 and 1938, Special Proceedings No. 262-C, which relates to the intestate
estates of Eugenia, Casimira Florencio, Braulia, Margarita and Barbara, all surnamed Cortes was filed.
This proceeding evidently did not include a brother, Rufino Cortes. Atty. Primitive Sato was appointed
administrator.
On September 27, 1938, Paula Cortes Villamor and Ireneo Cortes Villamor, claiming to be the
legitimate children of Rufino Cortes, filed a petition for the administration of the estate of Rufino
Cortes, under Special Proceedings No. 343-C, to protect their rights and counteract the effects of

Special Proceedings No. 262-C. Notice of the hearing of the petition was published in the "Nasud," a
newspaper of general circulation on October 13, 20 and 27, 1938. Appointed administrator in this
proceeding was one Moises Mendoza, who thereafter submitted an inventory of the properties
allegedly belonging to the estate of Rufino Cortes. The properties enumerated in the inventory were
the very same properties subject of Special Proceedings Nos. 227 and 262-C.
A scramble over the control and possession of the, properties ensued between the heirs of Barbara
Cortes, represented by Sixta Ceniza with the help of Fr. Camomot, and the Rufino Cortes line
represented by Ireneo and Paula Cortes Villamor. On May 20, 1946, Ireneo and Paula Cortes Villamor
and Father Camomot filed a joint motion in Special Proceedings No. 262-C and Special Proceedings No.
343-C, wherein they manifested that "the heirs have arrived at an agreement to settle the matter
amicably between themselves by partitioning the estate among them" 1 Thus, after six months of
negotiation, or on December 7, 1946, a Project of Partition was executed by Sixta Ceniza and Father
Camomot, in his capacity as administrator of the Estate of Bartolome Cortes, assisted by their counsel,
Attys. Hipolito Alo and Fermin Yap, on one hand, and Ireneo and Paula Cortes Villamor, assisted by Atty.
Gaudencio Juezan, on the other. The Project of Partition was thumbmarked Sixta Ceniza at the house of
a relative, Fortunate vda. de Ceniza, where Sixta Ceniza lived at that time. In said Project of Partition,
seven parcels of land were apportioned and delivered to Ireneo and Paula Cortes Villamor. The said
Project of Partition is reproduced as follows:
REPUBLIC OF THE PHILIPPINE
COURT OF FIRST INSTANCE OF CEBU
IN REPUBLIC ESTATE OF BARBARA CORTES,
FLORENCIO CORTES, RUFINO CORTES,
CASIMIRA CORTES, BRIGIDA CORTES, Sp. Proc. Nos. 262 & 343
BRAULIA CORTES, MARIA CORTES
and EUGENIA CORTES,
Deceased.
-----------------------------------------PROJECT OF PARTITION
Come now Sixta Ceniza and Rev. Diosdado Camomot, the latter as administrator of the estate of
Bartolome Cortes in Sp. Proc. No. 227 of this Court assisted by their Attorneys Hipolito Alo and Fermin
Yap, to be known hereinafter as the First Party; Ireneo Cortes Villamor, assisted by their Attorney
Gaudencio R. Juezan, to be referred hereinafter as the Second Party, to this Hon. Court respectfully
state:
That Sixta Ceniza above referred to is the sole heir of Bartolome Cortes now deceased, being the
legitimate mother of the latter;
That Rev. Diosdado Camomot is the legal administrator of the estate of said Bartolome Cortes in the
Sp. Proc. No. 227 of this Court;
That Barbara, Florencio, Rufino; Casimira, Brigida, Braulia, Maria and Eugenia, all surnamed Cortes,
were brothers and sisters. They died without leaving any parent nor children except Rufino and
Barbara Cortes;
That Barbara Cortes left Bartolome Cortes as a nephew and the latter left his mother Sixta Ceniza as
his heir;
That Rufino Cortes left Ireneo and Paula Cortes as his heirs, being his legitimate children;

That Sixta Ceniza, Ireneo Cortes Villamor and Paula Cortes Villamor are all Filipinos by birth and of legal
ages and residents of Mandaue, Cebu, Philippines;
That the deceased Eugenia Cortes and Rufino Cortes, left no debt, nor will;
That the first and the second Parties hereby acknowledge that all the estate appearing in the
inventories submitted under administration Sp. Proc. Nos. 262 and 343 in this Court, belong to the
deceased Eugenia Cortes and Rufino Cortes, being the real owners thereof, of which Eustaquio and
Bartolome Cortes were extra judicial administrators;
That said Sixta Ceniza, Ireneo Cortes Villamor and Paula Cortes Villamor do hereby declare themselves
as the only heirs of said Eugenia and Rufino Cortes and adjudicate to themselves the above-described
properties and amicably partition same among themselves in the manner, form and share hereinbelow
shown;
That the First and Second Parties have agreed, as they do hereby agree, to partition, as they do hereby
partition, the properties above referred to, amicably between them, in the form, manner, and share, to
wit:
To Sixta Ceniza through Rev. Diosdado Camomot, the latter in his capacity as administrator of the
estate of Bartolome Cortes, the following parcels of land with improvements thereon, are hereby
apportioned and delivered:
1. A parcel of agricultural land with all improvements thereon located in Alang-Alang, Mandaue, Cebu,
bounded as follows:
North, Eustaquio Cortes
East, Geronimo Lambo
South, Conrado Jayme
West, Serafina Mendoza
Area, 47 Area, 37 Centares
Declared in the name of Bartolome
Cortes as per Tax Dec. No. 31520
2. A parcel of agricultural land with all improvements thereon located in Centro, Mandaue, Cebu,
bounded as follows:
North, Calle Gral, Ricarte
East, Riachuelo
South, Mariano del Castillo
West, Juana Mayol
Area, 18 Ares,
Declared in the name of Eustaquio
Cortes as per Tax Dec. No. 31531
3. A parcel of agricultural land with all improvements thereon located in Centro, Mandaue, Cebu,
bounded as follows:
North, Hrs. of Fermin Cortes
East, Riachuelo
South, Hrs. of Pio Mendoza and Juana Mendoza

West, Severino Cabajug and Ceferino Mendoza

Area, 16 Ares, and 80 Centares
Declared in the name of Eustaquio
Cortes as per Tax Dec. No. 31529
4. A parcel of agricultural land with all improvements thereon located in Centro, Mandaue, Cebu,
bounded as follows:
North, Rita Alilin and Ambrocio Cabahug
South, Rita Alilin
West, Ceferino Mendoza
Area, 13 Ares & 40 Centares
Declared in the name of Eustaquio Cortes
as per Tax Dec. No. 31628
5. A parcel of agricultural land with an improvements thereon located in Pagsubungan, Mandaue,
Cebu, bounded as follows:
North, Hrs. of Tomas Osmea and Victor Perez
East, Fernando Atamosa
South, Rio de Butuanon and Hrs. of Tomas Osmea
West, Private Ceniza and Phil. Railway Co.
Declared in the name of Eustaquio Cortes as per Tax Dec. No. 31523
6. A parcel of agricultural land with all improvements thereon located in Pagsabungan, Mandaue, Cebu,
bounded as follows:
North, Hipolito Pareja
East, Francisca Estrera
South, Enrique Diano and Catalina Pareja
West, Blas Retuerto
Area 1 Ha. 38 Area, 21 Centares
Declared in the name of Eugenia Cortes
as per Tax Dec. No. 31536
7. A parcel of agricultural land with all improvements thereon located in Kanduman Mandaue, Cebu,
bounded as follows:
North, Jacinto Mayol
East, Sergio Suyco
South, Martin Seno
West, Mariano Alivio
Area, 1 Ha. 03 Area, 24 Centares
Declared in the name of the heirs of
Casimira Cortes as per Tax Dec. No. 31514
8. A parcel of agricultural land with all improvements thereon located in Kanduman Mandaue, Cebu,
bounded as follows:

North, Jacinto Mayol and Policarpio and Josefa Cortes

East, Claudia Osmea and Camino Vecinal
South, Camino Vecinal and Hrs. of Tomas Osmea
West, Jacinto Mayol
Area, 2 Has, 45 Ares--07 Centares
Declared in the name of the heirs of
Casimira Cortes as per Tax Dec. No. 31515
9. A parcel of agricultural land with all improvements thereon located in Opao, Mandaue, Cebu,
bounded as follows:
North, Brook
East, Hrs. of Cesario Mendoza and Benito Ceniza and Juan Trox
South, Hermenegildo Alivio
West, Basilia Cabahug and Prudencia Cabahug
Area, 4 Has. 96 Area, 05 Centares
Declared in the name of heirs of
Casimira Cortes as per Tax Dec. No. 31516
10. A parcel of land [rural] with all improvements thereon located in Magikay Mandaue, Cebu, bounded
on the North by Ireneo Villamor; East, Ireneo Villamor; South, Marcelo Cortes and Ireneo Villamor;
West, Callejon, with an area of one Ha. 27 Area, and 99 Centares, covered by Tax Dec. No. 31518;
11. A parcel of land with all improvement thereon located in Centro, Mandaue, Cebu, bounded as
follows:
North, Calle Ricarte
East, Riachuelo
South, Riachuelo
West, Mariano del Castillo
Area, 11 Ares
Declared in the name of Bartolome
Cortes as per Tax Dec. No. 31521
12. A mango tree located in the name of Apolonio Soco as per Tax Dec. No. 31527 declared in the
name of Eustaquio Cortes.
*14. A parcel of land [rural] with all improvements thereon located in Magikay Mandaue, Cebu,
bounded on the North by Florentino Perez; East, Pablo Perez; South, Ireneo Villamor; West, Romualdo
Omo, with an area of one Hectare, 39 Ares and 06 Centares, covered by Tax Dec. No. 31317; This is
known as Lot No. 560-A of the plan called Hacienda de Mandaue."
15. A parcel of land [rural] with all improvements thereon located in Magikay Mandue Cebu, bounded
on the north by Susana Cortes and others; East, by Susana Cortes and others; South Ireneo Villamor
and Hermana; and West, Ireneo Villamor and Hermana; with an area of one Hectare, 26 Ares and 99
Centares, covered by Tax Dec. No. 31519.
To Ireneo Cortes Villamor and Paula Cortes Villamor the following are hereby apportioned and
delivered:

1. A parcel of agricultural land with all improvements thereon located in Centro, Mandaue, Cebu,
bounded as follows:
North, Paula Perez
East, Car. Prov. and Pelagia Pintor
South, Rafaela Judilla and D. Mendoza
West, Riachuelo
Area, 1 Ha. 46 Ares and 30 Centares
Declared in the name of Eustaquio
Cortes as per Tax Dec. No. 31533
2. A parcel of residential land with all improvements thereon Centro, Mandaue, Cebu, bounded as
follows:
North, Calle A. del Rosario
East, Fidel Jayme
South, Bartolome Cortes and Martina Soco
West, Carr. Provincial
Area, 5,390 square meters
Declared in the name of Bartolome and
Eustaquio Cortes as per Tax Dec. No. 31522
3. A parcel of agricultural land with all improvements thereon located in Kanzaga Consolacion, Cebu,
bounded as follows:
North, Ignacio Niez
East, Saturnino Quipo y Sixto Ermac
South, Alejandro del Rosario y Doroteo Bolhot
West, Apolinario Palang
Area, 22 Ares and 36 Centares
Declared in the name of Eustaquio Cortes
as per Tax Dec. No. 17031
4. A parcel of agricultural land with all improvements thereon located in Centro, Mandaue, Cebu,
bounded as follows:
North, Camino Vecinal
East, Andres Cabahug
South, Julio Bars and Ciriaco Cortes
West, Eusebio Soco and Phil. Railway Co.
Area 53 Ares and 92 Centares
Declared in the name of Eustaquio Cortes
as per Tax Declaration No. 31534
5. A parcel of agricultural land with all improvements thereon located in Centro, Mandaue, Cebu,
bounded as follows:
North, Severina Cabajug and others

East, Simon Cortes

South, Callejon
West, Calle Gral. del Pilar
Area, 72 Ares & 96 Centares
Declared in the name of Eustaquio Cortes as per Tax Dec. No. 31532
6. A parcel of agricultural land located in Alang-Alang, Mandaue, Cebu, with all improvements thereon,
bounded as follows:
North, Callejon and Marciano Cuison
East, Calle Plaridel and Enrique Capirol
South, Calle P. Burgos and Bernardo A. Flores
West, Eusebio Soco
Area, 4 Has. 53 Ares, 47 Centares
Declared in the name of Eustaquio Cortes
as per Tax Dec. No. 31530
7. A parcel of agricultural land with all improvements thereon located in Centro, Mandaue, Cebu,
bounded as follows:
North, Benito Ceniza, Filomena Pans, Benito Ceniza
East, Emiliano Cuson
South, Calle A. del Rosario
West, Carr. Prov. Rita Alilin and others
Area, 3 Has. 08 Ares, 32 Centares
Declared in the name of Eustaquio Cortes
as per Tax Dec. No. 31524
The parties hereto do hereby give their respective conformity to the foregoing partition and do hereby
accept and receive the properties respectively apportioned to them as indicated above.
That the parties hereto shall take immediate possession and enjoyment of their respective shares
subject to the payment of the honorary fees of administrators Primitive N. Sato and Moises Mendoza
whose claims for such honorary, are still pending determination by the Court, if the personal properties
would not be sufficient to cover such fees.
That the parties hereto shall take immediate possession and enjoyment of their respective shares
subject to the payment of the honorary fees of administrators Primitive N. Sato and Moises Mendoza
whose claims for such honorary, are still pending determination by the Court, if the personal properties
would not be sufficient to cover such fees.
That the Second Party hereby assume the responsibility to pay Atty. Gaudencio R. Juezan, the honorary
fees of the latter.
City of Cebu, Philippines, December 7, 1946.
[Thumbmark]
SIXTA CENIZA

[(SGD.) IRENEO CORTES VILLAMOR]

Heirs of Bartolome Cortes

Heirs of Eugenia & Rufino Cortes et al.

[(SGD.) PAULA CORTES VILLAMOR]

[SGD.] GAUDENCIO R. JUEZAN

HIPOLITO ALO & FERMIN

Atty. for Ireneo Cortes

YAP

Villamor and Paula Cortes

By:

Villamor

[SGD.] FERMIN YAP

Attys. for Sixta Ceniza &

[SGD.] DIOSDADO CAMOMOT

Administrator Diosdado Camomot

Administrator of the

of the estate of Bartolome

estate of Bartolome

Cortes in Sp. Proc. No. 227.

Cortes in Sp. Proc. No.

PRIMITIVO N. SATO

227

In his own behalf and that of Moises

Mendoza, as administrators in
Sp. Proc. Nos. 262 and 343.

REPUBLIC OF THE PHILIPPINES

MANDAUE, CEBU
We, Sixta Ceniza, Rev. Diosdado Camomot, Ireneo Cortes Villamor and Paula Cortes Villamor, after
being first duly sworn to, do hereby depose and say: That we are the parties referred to in the
foregoing Project of Partition, which we have voluntarily made and that the contents thereof are true
and correct.
[Thumbmark]
SIXTA CENIZA

[SGD.] REV. DIOSDADO CAMOMOT

[SGD.] PAULA CORTES

VILLAMOR
MOISES MENDOZA
Ad. in Sp. Proc. No. 343

[SGD.] IRENEO CORTES VILLAMOR

Subscribed and sworn to before me this 7th day of December, 1946, at the municipality of Mandaue,
Cebu, Philippines; Affiants exhibited to me their respective Residence Certificates:
Rev. Diosdado Camomot Res Cert. No. A-1236398 issued on March 11, 1946 at San Fernando, Cebu;
Sixta Ceniza Res Cert. No. A-149873 issued on Dec. 10, 1946 at Mandaue, Cebu; Ireneo Cortes
Villamor-Res. Cert. No. A-419863 issued on Dec. 5, 1946 at Mandaue, Cebu; Paula Cortes Villamor
Res. Cert. No. A-419786 issued on Nov. 7, 1946 at Mandaue, Cebu.
[SGD.) FERMIN YAP
Notary Public
Until December 31, 1946
Doc. No. 53
Page No. 20
Book No. II
Series of 1946
APPROVED:
Cebu City, Feb. 1, 1947.
[SGD.] EDMUNDO S. PICCIO
Judge.

On April 14, 1948, Judge S. C. Moscoso approved the project of partition, and on September 30, 1948,
the administrators delivered the seven parcels of land to Ireneo and Paula Villamor. Special
Proceedings Nos. 262 and 343 were ordered closed and terminated by Judge Florentino Saguin on
November 25, 1953. Entry of judgment was made on March 18, 1954.
On November 23, 1960, Ireneo and Paula Villamor sold the parcel of land described in the Project of
Partition as parcel 5 to Claudia Labos and Gregoria Suico, and on September 23, 1966, Ireneo Villamor
obtained free patent titles over parcels 1, 2, 4, 6 and 7. Only parcel no. 3 remained unregistered.
After Ireneo's death, his children, now petitioners, executed an extra-judicial partition, dividing the
remaining 6 parcels of land among themselves.
Meanwhile, upon the death of Sixta Ceniza on July 28, 1948, one Cristina Ceniza, sister of respondent
Daniela Ceniza Urot instituted Special Proceedings No. 364-R for the administration of the estate of
Sixta Ceniza. One Escolastico Ceniza, brother of respondent, was appointed special administrator. The
latter's appointment, however, was revoked on February 20, 1954 upon petition of Fr. Nicanor Cortes
through his counsel, Atty. Fermin Yap on January 14, 1954, and in his stead, Victorio Perez was
appointed the special administrator. In this proceedings, the nephews and nieces of Sixta Ceniza,
including herein respondent, prayed that they be declared the sole and only forced heirs of Sixta
Ceniza, although at the time, Fr. Nicanor Cortes, the only surviving child of Sixta Ceniza, was still alive.
On October 21, 1954, Fr. Cortes executed a power of attorney before the Vice-Consul of the Republic of
the Philippines in Madrid, Spain, constituting and appointing Fr. Diosdado Camomot as his attorney-infact and giving him the power to appear for me and in my behalf in Special Proceedings No. 364-R of
the Court of First Instance of Cebu, with authority to designate and employ the services of an attorney
or attorneys for the protection of my rights. 3
On January 13, 1955, Victorio Perez submitted an inventory which specifically Identified the properties
which came from the Project of Partition and the corresponding number of such property or parcel of
land in said Project of Partition.

On August 18, 1955, the court, through Judge Clementino Diez, denied the motion of the nephews and
nieces of Sixta Ceniza to be declared her heirs and declared Fr. Nicanor Cortes as the only and
universal heir of Sixta Ceniza.
On May 16, 1962, Fr. Nicanor Cortes executed a Deed of Conveyance in favor of several persons
wherein he conveyed ten parcels of land which included those received by his mother under the
Project of Partition.
On August 28, 1969, Fr. Nicanor Cortes died in Barcelona, Spain. Special Proceedings No. 3062-R of the
Court of First instituted for the settlement Instance of Cebu was thereafter in of his estate. Appointed
administratrix was respondent Daniela Ceniza Urot who, on June 4, 1970 filed Civil Case No. 11726
against petitioners, successors-in-interest of Ireneo Villamor of the seven parcels of land and Paula
Villamor, for recovery received in the Project of Partition, accounting and receivership.
In the complaint, respondent alleged inter alia that upon learning of the death of Fr. Nicanor Cortes,
some of his nearest of kin who are his surviving first cousins, the Cenizas [all from the side of Sixta
Ceniza] initiated Special Proceedings No. 3062-R for the settlement of the estate of the deceased
monk; that prior to and in the course of initiating said proceedings, the surviving first cousins came
upon documents showing that Fr. Cortes during his absence from the Philippines to pursue a monastic
life was deprived of his inheritance by fraud, stealth and stratagem perpetrated by Paula and Ireneo
Villamor; that shortly after the last world war and after the death of Fr. Bartolome Cortes and his sister
Agapita, while Fr. Nicanor Cortes was in the monastery and his mother sick, aging, deaf and blind,
Ireneo and Paula Villamor, who were domestics and protegees in the household of the Cortes family,
initiated Special Proceedings 343-C whereby they fraudulently and falsely represented under oath,
without notice to Fr. Nicanor Cortes or his legal representative, that Rufino Cortes died leaving two
legitimate children, namely Paula Cortes Villamor and Ireneo Cortes Villamor; that Paula and Ireneo
Cortes Villamor are not the legitimate children of Rufino who remained unmarried all his life; that
Moises Mendoza, the administrator in Special Proceedings No. 343 submitted an inventory which
falsely and fraudulently enumerated properties as belonging to Rufino Cortes when the truth is that
Rufino Cortes neither had any property during his lifetime nor inherited any from his wealthy sisters,
Casimira and Eugenia whom said Rufino predeceased; that said properties belonged to Eustaquio
Cortes, Casimira and Eugenia Cortes, Bartolome Cortes, Sixta Cortes and/or Nicanor Cortes; that under
the same false and fraudulent representations without notice to Fr. Cortes or his legal representative,
Ireneo and Paula Villamor prepared a Project of Partition and adjudicated to themselves the seven
parcels of land whereas the rest was apportioned to Sixta Ceniza through Fr. Camomot, as
administrator of the estate of Bartolome Cortes; that on April 14, 1948, Ireneo and Paula Villamor, in
collusion with the administrators in both proceedings, had the project of partition approved by the
court; that Ireneo and Paula Villamor, without benefit of a motion for declaration of heirs, much less a
hearing thereon with proper notice to Fr. Nicanor Cortes or his legal representative, took delivery and
possession of a substantial part of the properties and had the two administration proceedings closed
on November 25, 1953; and that on July 28, 1969, defendants herein petitioners, as heirs of Ireneo and
Paula Villamor, executed an extra-judicial settlement and partition of the lands in question. It was
prayed that judgment be rendered declaring as null and void the project of partition, the orders of April
14, 1948 and November 25, 1953 and the extra-judicial settlement and partition executed on July 28,
1969; that the defendants [petitioners herein] be ordered to reconvey the parcels of land in question to
the administratrix in Special Proceedings No. 3062-R and to render a true and correct accounting of the
income and produce thereof as far back in time as may be legally feasible and that during the
pendency of the case, that the properties be placed under receivership.
Petitioners, instead of filing an answer, filed a motion to dismiss, alleging that the cause of action is
barred by prior judgment and by the statute of limitations. On July 27, 1970, the Court denied the
motion to dismiss. When petitioners' motion for reconsideration was denied on August 19, 1970,
petitioners came to this Court by means of certiorari on August 31 1970, but the same was denied on
September 15, 1970 for "being premature." On October 9, 1970, petitioners filed their answer and

alleged as special defenses that aside from the fact that Special Proceedings No. 343-C was a
proceeding in rem and all the requirements to obtain jurisdiction over the person of anybody have
been complied with, Fr. Nicanor Cortes had personal knowledge of Special Proceedings No. 343-C; that
the question of legitimacy of Ireneo and Paula Villamor had been duly pleaded and raised as the
principal issue in Special Proceedings No. 343-C; that the question of declaration of heirship of the two
Villamor had already been resolved by the court in said proceedings and have long become final, entry
of judgment having been made on March 18, 1954; that with the age, respectability and social
standing of Sixta Ceniza, no court could have tolerated the alleged acts of Ireneo and Paula Sixta
Ceniza Villamor committed against Sixta Ceniza; that Sixta Ceniza had the best legal advice and ample
protection from her counsels, a legal preliminary at the time and a dean of the University of Visayas
and Fr. Diosdado Camomot, then the secretary to the Archbishop of Cebu, and after the death of Sixta
Ceniza, Fr. Nicanor Cortes appeared through counsel in Special Proceedings No. 363 where Escolastico
Ceniza applied as administrator but was denied by the court in favor of Fr. Camomot upon the
recommendation of Fr. Nicanor Cortes; and that all these times, Fr. Nicanor Cortes never complained
nor raised any objection to the inventory of Special Proceedings No. 364 which was taken as a part of
the inventories in Special Proceedings 262-C and 343-C. As affirmative defenses, the petitioners
alleged that the court has no jurisdiction over the nature of the action, intrinsic fraud being the basis of
the complaint; that the cause 6f action is barred by prior judgment and by the statute of limitations;
and, that the complaint states no valid cause of action.
On May 13, 1971, a receiver was appointed by the court in the person of Atty. Andres Taneo, Branch
Clerk of Court. After trial, on January 21, 1972, the court rendered judgment against the petitioners
holding that Ireneo and Paula Villamor took advantage of the helplessness of Sixta Ceniza when they
had the Project of Partition thumbmarked by her; that Ireneo and Paula Villamor resorted to false and
fraudulent representations in Special Proceedings Nos. 262 and 343 in that they misrepresented that
they were the legitimate children of Rufino Cortes, when in truth, they were merely natural children of
Rufino Cortes and that the properties described in the inventory pertained to Rufino Cortes when in
fact, said properties belonged to Eugenia Cortes and after her death, the same passed to Eustaquio
Cortes; that Fr. Nicanor Cortes had no knowledge of the fraudulent proceedings as well as the Project
of Partition; that Ireneo and Paula Villamor, in collusion with the administrator Moises Mendoza and
with the support and encouragement of Fr. Camomot who enjoyed the implicit trust of Fr. Nicanor
Cortes, misled the probate court into authorizing the delivery of the parcels of land to them; that when
the probate court approved the project of partition, there was no hearing for the purpose of
determining the parties lawfully entitled to the estate nor was there an opportunity given to Fr. Nicanor
Cortes to intervene or oppose; that under the circumstances, the fraud committed by Ireneo and Paula
Villamor was extrinsic or collateral; and that the fraud was discovered for the first time by Atty. Ramon
Ceniza, son of Jose Ceniza, one of the heirs at law of Fr. Cortes only in March 1970.
On appeal, the Ninth Division of the Court of Appeals, as adverted to above, affirmed the judgment of
the trial court, hence, the present recourse.
Petitioners maintain that the Court of Appeals, like the trial court, totally ignored the letters of Fr.
Nicanor Cortes disclaiming ownership and acknowledging the fact that petitioners and/or their
predecessors-in-interest are the owners and possessors of the lands in question, which exhibits could
have decided outright all the issues that Fr. Cortes had personal knowledge of Special Proceedings Nos.
262-C and 343-C and that the predecessors-in-interest of petitioners did not commit fraud against him.
Petitioners insist that the helplessness of Sixta Ceniza could not have vitiated the project of partition
for although she had become blind and could not walk by herself at the time she affixed her
thumbmark on the project of partition, her mental faculty was very clear. It is further argued that all
the fraud alleged by private respondent were within the line of deliberation of the probate court or
intrinsic fraud and could not have been extrinsic or collateral fraud; and therefore the cause of action
of private respondent had long prescribed, considering that from September 1948 or some 22 years
since petitioners' predecessors-in-interest came to possess the lands, petitioners have been in
peaceful, notorious, public, actual and continuous possession, adversely against the whole world

in concepto de dueo until they were disturbed in June 1970 when they received copies of the
complaint in Civil Case No. R-11726.
On the other hand, private respondent contends that the issues raised in the petition largely dwell as
challenging the findings of fact of the trial court and/or the Court of Appeals, which cannot be done in a
petition for review on certiorari.
We find for the petitioners.
After a careful consideration of the facts and circumstances of the case, we agree that the courts
below forced their conclusions against the evidence adduced during the trial which error justifies a
review of said evidence. This case is an exception to the general rule that only questions of law may be
reviewed in an appeal by certiorari and that factual findings of the Court of Appeals are binding on this
Court, if supported by substantial evidence.
Thus, while it is settled that the jurisdiction of the Supreme Court in cases brought to it from the Court
of Appeals is limited to reviewing and revising the errors of law imputed to the latter, its findings of
fact being conclusive 4 it is also settled that findings of fact of the Court of Appeals may be set aside:
[1] when the conclusion is a finding grounded entirely on speculation, surmise and conjectures; [2] the
inference made is manifestly mistaken; [3] there is grave abuse of discretion; [4] the judgment is
based on misapprehension of facts; [5] the Court of Appeals went beyond the issues of the case and its
findings are contrary to the admission of both appellant and appellee; [6] the findings of fact of the
Court of Appeals are contrary to those of the trial court; [7] said findings of facts are conclusions
without citation or specific evidence on which they are based; [8] the facts set forth in the petition as
well as in the petitioner's main and reply briefs are not disputed by the respondents; and [9] when the
finding of fact of the Court of Appeals is premised on the absence of evidence and is contradicted by
evidence on record. 5
We cannot sustain the findings of the courts that Fr. Nicanor Cortes had no personal knowledge of
Special Proceedings Nos. 262 and 343 for the evidence on record is abundant to contradict such
findings.
In his testimony, Fr. Diosdado Camomot declared categorically that he informed Fr. Nicanor Cortes
about Special Proceedings No. 343 6 and that he sent him a copy of the project of partition. 7 He
explained that as administrator of the estate of Fr. Bartolome Cortes, he encountered trouble with the
administrator in Sp. Proc. No. 343, Moises Mendoza, who claimed that the properties under his
[Camomot's] administration belonged to Rufino Cortes; that when informed of said problem, Sixta
Ceniza advised him to write Fr. Nicanor Cortes about it, which he did; that in reply to his letter, Fr.
Nicanor Cortes recommended that he settle the case amicably; and that after a long process of
negotiation, the project of partition in question was executed and approved by the court, a copy of
which he sent to Fr. Nicanor Cortes.
Highly significant is the fact that among the witnesses who testified before the trial court, it was only
Fr. Camomot who had personal knowledge of the events leading to the execution of the project of
partition. Notwithstanding, the trial court, instead of according great weight to his testimony,
summarily brushed it aside and even reached the unwarranted conclusion that he was in collusion with
Ireneo and Paula Villamor. The testimony of Fr. Diosdado Camomot, however, is too detailed and
straightforward to be a mere product of concoction or fabrication or a device to cover-up the collusion
imputed to him by the trial court. Furthermore, said testimony is corroborated by other evidence on
record that sustains its veracity. That he communicated with Fr. Nicanor Cortes was corroborated by
Roure Ceniza-Sanchez, a witness for therein plaintiff-administratrix Daniela Ceniza Urot. She testified
that being the administrator, it was Fr. Camomot who informed Fr. Nicanor Cortes about the properties
of his parents. 8 That the petition in Special Proceedings No. 343 was among the matters brought to
the attention of Fr. Nicanor Cortes by Fr. Camomot can be deduced from the letter of Fr. Nicanor Cortes

dated August 20, 1948, addressed to Pesing (Dra. Felicisima Cortes-Veloso]. The pertinent portion of
the letter reads:
As for the administration of Nanay's properties, I received from Atty. Primitive Sato a letter asking my
consent to the appointment of my cousin Escolastico Ceniza as Administrator. Apparently, a new court
trouble is brewing before the old one is completely settled. I cannot meddle on the matter for I am too
far away. You discuss the matter among you [Roure Lucio, Father Camomot and the lawyers.] You had
better select your administrator, whom you could trust implicitly, and submit his name to Father
Camomot. And to avoid ill feeling among the other cousins, make it known that Father Camomot has
taken charge of Nanay's affair, with my consent, about ten years now and I personally keep my hands
off, being in the impossibility of knowing what is going on. 9
If it were not true that Fr. Camomot had informed Fr. Nicanor Cortes about Special Proceedings Nos.
262 and 343 there would be no basis for Fr. Cortes to observe or comment that "apparently, a new
court trouble is brewing before the old one is completely settled. At that time, the only court
proceedings in progress were Special Proceedings Nos. 262, 343 and 227. The "old one" adverted to by
Fr. Nicanor Cortes could not refer exclusively to Special Proceedings No. 227 as surmised by Roure
Ceniza-Sanchez, as the only trouble being encountered by Fr. Camomot as administrator of the estate
of Fr. Bartolome Cortes in Special Proceedings No. 227 was the claim of Moises Mendoza as
administrator in Special Proceedings No. 343 over the properties under Fr. Camomot's administration.
The trial court's conclusion that the "old one" could not refer to Special Proceedings Nos. 262 and 343
for the reason that the project of partition had been executed as early as December 7, 1946, is
erroneous. While it may be true that said project of partition had already been executed, there still
remained some loose ends that needed tieing up, so that it was not until November 25, 1953 that both
proceedings were ordered closed and terminated. 10 The phrase "before the old one is completely
settled" used by Fr. Cortes is thus apropos.
The other evidence on record from which knowledge by Fr. Nicanor Cortes of both Special Proceedings
Nos. 262 and 343 and the project of partition could be in erred are his letters dated April 6, 1967, May
11, 1967, November 29, 1962 and December 1, 1967, addressed to Ipyon [Concepcion Rosal], Mrs.
Dulce Rallos Gitgano, Awang [Paula Villamor] and Mr. and Mrs. Candelario Villamor, respectively, and
the Deed of Conveyance dated May 9,1962.
The letter addressed to Ipyon [Concepcion Rosal] reads in part:
Great is my desire to help there. It would be my pleasure to attend to your needs, especially about the
land where you could build your house.
But now, I have nothing to do with those lands there in our place. It is those who are in Possession of it
who can decide.
Did you not try to talk with Awang and Candelario regarding your old rights and the promises of those
dead as to the place where you had built your house. It is better if you try perhaps they at Ibabao will
respect on your being an old neighbor. 11
The pertinent portion of the letter addressed to Mrs. Dulce Rallos Gitgano, on the other hand, states:
In reply to your letter of last month, I wish to say that I have no longer anything to do with any
property, including the lot on which you have built your house. As a monk, I have made the vow of
poverty and have therefore renounced to all property rights.
I regret to say that I am not in position to help you.
Have you not tried to ask Candelario to reduce the rent of the lot to an amount more proportionate to
your limited earnings? You may submit also to him your desire to buy the lot by monthly installments. 12

In his testimony, Candelario Villamor Identified the land where Concepcion Rosal wanted to build her
house as parcel "No. 1 on page five of the complaint." 13 He further Identified the land which Mrs. Dulce
Rallos Gitgano wanted to buy as "from the land which is the share of Ireneo Cortes Villamor and Paula
Cortes Villamor and found in the project of partition on page four of said project of partition and
boundary number two." 14
The records show that when Fr. Nicanor Cortes left the Philippines to become a monk, he was already
44 years old. He must have known then who the owners of the lands referred to were and certainly at
that time neither Awang [Paula Villamor] nor Candelario was in possession thereof. Yet, in his replies to
the letters of Mesdames Rosal and Gitgano, he stated by name and with certainty the persons whom
the latter should approach and who could properly exercise the right of disposition over said lands. In
the absence of any showing that Awang and Candelario were designated as representatives or
administrators of Fr. Cortes' properties, the only logical conclusion reached is that Fr. Nicanor Cortes
knew the circumstances under which Awang and Candelario acquired ownership and possession of the
lands in question and that he recognized such ownership and possession, otherwise he would not have
given the advice or suggestions found in his letters.
Fr. Nicanor Cortes' letter of November 29, 1962 to Awang reads:
Regarding the land. The share of my late Mother [Nanay] Sixta was divided among those who served
her and those to whom gratitude were due, by means of documents signed on October of 1947 before
Notary Fermin Yap. Those documents were sent to me by Father Camomot with a letter where he
stated that those were the true and voluntary will of my late Mother [Nanay". Because I was unable to
answer his letter he wrote me again, once or twice reiterating that those documents were the true and
voluntary will of Mother [Nanay]. 15
His letter to Mr. and Mrs. Candelario Villamor states:
I have noticed that you have now a poultry farm which must be giving you, "together with the lands,
quite an income. 16
In the Deed of Conveyance dated May 9, 1962 executed by Fr. Nicanor Cortes before the Consul
General of the Republic of the Philippines, Madrid, Spain, wherein he ceded and transferred ten [10]
parcels of land in favor of several persons for and in consideration of One Peso, Philippine currency and
other valuable considerations, he declared:
All parcels of land described above are my exclusive property having acquired the same by succession
from the previous owners, namely: Eustaquio Cortes, Casimira Cortes, Eugenia Cortes, Bartolome
Cortes, Sixta Ceniza de Cortes, as shown in the order of the Honorable Court of First Instance of Cebu
in Special Proceedings No. 364-R, dated August 18, 1955. 17
The above-quoted portions of Fr. Cortes' letters and Deed of Conveyance show beyond any iota of
doubt that he was kept posted on the developments in the Philippines. He know that his mother
received some lands as "share" and that Candelario had acquired lands. He also knew the succession
of ownership of the lands to which he succeeded as sole heir of his mother in Special Proceedings No.
364-P, From these statements, it would not be unreasonable or far-fetched to draw the conclusion that
he knew about Special Proceedings Nos. 262 and 343 as well as the project of partition which were the
root and origin of the "share" of his mother, the lands acquired by Candelario, as well as the lands
inherited by him.
Moreover, stress must be laid on the fact that Fr. Nicanor Cortes intervened in Special Proceedings No.
364-R, the proceedings for the settlement of the estate of his mother, Sixta Ceniza. In the inventory
submitted by the administrator thereof, the origin of some parcels of land included in the estate of his
mother were specified thus:

1 A parcel of land situated in Alang-Alang Mandaue, Cebu-Tax Declaration No. 09343 with an area
of .4737 more or less; and assessed at P70.00. Bounded on the North by Gaudencio R. Juezan; on the
East by Jacinto Engracial; on the South by Roberto Archo and Cristina Cuizon; on the West by Filemon
Pono.
In the Project of Partition in Sp. Proc. Nos. 262 & 343, the said parcel is designated as parcel No. 1.
2. A parcel of land situated in Centro, Mandaue, Cebu-Tax Declaration No. 09347 with an area of .
1347 more or less and assessed at P50.00. Bounded on the North by Rita Alilin; on the East by Jose
Mendoza; on the south by Rita Alilin and on the West by Domingo Ybasitas [Ceferino Mendoza].
In the Project of Partition in Sp. Proc. Nos. 262 & 343, said parcel is designated as parcel No. 4.
3. A parcel of land situated in Pagsabungan, Mandaue, Cebu, Tax Declaration No. 09346 with an area
of .2246 more or less; and assessed at P70.00. Bounded on the North by Prevato Ceniza; on the East
by Fernando Hatamosa on the South by Butuanon River and Prevato Ceniza; and on the West by
Prevato Ceniza and Philippine Rail way.
In the Project of Partition in Sp. Proc. 262 & 343, said parcel is designated as parcel No. 5.
4. A parcel of land situated in Pagsabunga, Mandaue, Cebu, Tax Declaration No. 02232 with an area
of 1.0351 more or less; and assessed at P370.00. Bounded on the North by Hipolito Pareja; on the East
by Cesario Congeon; on the South by Hrs. of Remigio Judilla; on the West by Sotero Judilla.
In the Project of Partition in Sp. Proc. Nos. 262 & 343, Id parcel is designated as parcel No. 6.
5. A parcel of land, situated in Kanduman, Mandaue, Cebu, Tax Declaration No. 09345 with an area
of 1.0324 more or less and assessed at P410.00. Bounded on the North by Jacinto Mayol; on the East
by Sergio Suyco; on the south by Martin Seno; and the West by Mariano Alivio.
In the Project of Partition in Sp. Proc. Nos. 262 & 343, said parcel is designated as parcel No. 7.
6. A parcel of land situted in Kanduman, Mandaue, Cebu, Tax Declaration No. 09344 with an area of
2.4507 more or less; assessed at P980.00. Bounded on the North by Jacinto Mayol, Policarpio and
Josefa Cortes; on the East by Claudio Osmena and Camino Vecinal; on the South by Camino Vecinal
and Hrs. of Tomas Osmena and on the West by Jacinto Mayol;
In the Project of Partition in Sp. Proc. Nos. 262 & 343, said parcel is designated as parcel No. 8.
7. A parcel of land situated in Maguicay Mandaue, Cebu, Tax Declaration No. 09348 with an area of .
2799 more or less; assessed at P320.00. Bounded on the North by Ireneo Villamor; on the East by
Ireneo Villamor; on the South by Marcelo Cortes and Ireneo Villamor; and on the West by Callejon.
In the Project of Partition in Sp. Proc. Nos. 262 & 343, Id parcel is designated as parcel No. 10.
8. A parcel of land situated in Maguicay Mandaue, Cebu Tax Declaration No. 09347 with an area of
1.2996; as at P520.00. Bounded on the North by Lucas Perez and Sebastian Fajardo; on the East by
Juan Cortes; on the South by Paula Villamor; and on the West by Paula Villamor.
In the Project of Partition in Sp. Proc. Nos. 262 & 343, said parcel is designated as parcel No. 13.
9. A parcel of land situated in Maguicay Mandaue, Cebu, Tax Declaration No. 09350 with an area of
1.2699-assessed at P320.00. Bounded on the North by Juan Cortes; on the East by Eutiquiano
Mendoza; on the South by Simon Cortes and Ambrosia Cortes; and on the West by Juan Cortes.
In the Project of Partition in Sp. Proc. Nos. 262 & 343, said parcel is designated as parcel No. 14.

xxx xxx xxx

II. A parcel of land situated in Paknaan Mandaue, Cebu, with an area of 1.000 more or less; assessed at
P260.00. Bounded on the North by Hrs. of Roberto Ceniza and Escolastico Ceniza; on the East by
Raymundo Ceniza; on the South by Eugenia Lumapas, Constancio Ceniza and Butuanon River; and on
the West by Constancio Ceniza and Eugenia Lumapas.
This parcel is not included in the Project of Partition in Sp. Proc. Nos. 262 & 343.
[REMARKS: Parcel No. 2 in the Project of Partition in Sp. Proc. Nos. 262 & 343 Centro Mandaue, Cebu
Bounded on the North by Calle Gral. Ricarte; East Riachuelo South, Mariano del Castillo; West, Juana
Mayol is claimed by Atanasio Marababol who is said to have it declared in his name.
Parcel No. 9 of the Project of Partition in Sp. Proc. Nos. 262 and 343 could not also be taken possession
of as according to reliable information it is under contract of lease with the Bureau of Forestry in favor
of someone.
Parcel No. 11 of the Project of Partition in Sp. Proc. Nos. 262 & 343 is the same parcel No. 2 of said
Project of Partition. 18
By reason of this circumstance, Fr. Nicanor Cortes is charged with knowledge of Special Proceedings
Nos. 262 and 343 as well as the Project of Petition.
The trial court relied heavily on the certification issued by the Clerk of the Court of First Instance of
Cebu Esperanza T. Garcia, that:
... there appears to be:
1. No individual notice to one Fr. Nicanor Cortes or his legal representative nor any intervention on his
part has been recorded; 19
But, as observed by counsel for petitioners, no probative value could be assigned to said certification,
in view of another certification issued by the same Clerk of Court that "the prewar records of Sp. Proc.
No. 262-C of the Court of First Instance of Cebu were lost and/or destroyed during World War II, and
that presently, the records available in this office on said Special Proceedings only begins with a
motion, dated May 22, 1946, filed by Attys. Hipolito Alo and Fermin Yap as attorneys for Rev. D.
Camomot as Administrator in Sp. Proc. No. 227, and Atty. Gaudencio Juezan as attorney for the
administrators Primitive Sato and Moises Mendoza and heirs of the deceased mentioned in Sp. Proc.
Nos. 262-C and 343-C, respectively." 20
The loss and/or destruction of the pre-war records in Special Proceedings No. 262-C renders the
determination of whether or not Fr. Nicanor Cortes was duly notified thereof an impossibility. However,
the probability of his having been notified cannot be totally discounted. On the other hand, no personal
notice was due Fr. Nicanor Cortes in Special Proceedings No. 343-C, not being the presumptive heir of
Rufino Cortes. Thus, if it were true that Fr. Nicanor Cortes had no notice of Special Proceedings Nos.
262 and 343, the failure to give such notice must be attributed to whoever instituted Special
Proceedings No. 262 wherein Fr. Cortes was a presumptive heir, and not to Ireneo and Paula Villamor,
the petitioners in Special Proceedings No. 343, wherein Fr. Cortes was not a presumptive heir and
where the publication of the petition as required by law was sufficient to give notice to the whole world
including Fr. Cortes.
The lower courts portrayed Sixta Ceniza as an old woman, who because of her "helplessness," became
an easy prey to unscrupulous individuals like the predecessors-in-interest of the petitioners. The
petitioners, however, contend that although it is true that Sixta Ceniza was blind and could not walk
without somebody escorting her, her helplessness only affected her physical condition for according to

Roure Ceniza-Sanchez, a granddaughter with whom said Sixta Ceniza lived at that time, Sixta Ceniza's
mental faculty was "very clear". 21
We find this contention tenable. Just because a person is blind or of poor memory, it does not follow
that she is of unsound said. This Court has ruled that where the mind of the testator is in perfectly
sound condition, neither old age, nor is health nor the fact that somebody had to guide his hand in
order that he might sign, is sufficient to invalidate his will. 22
If Sixta Ceniza were really "helpless," in the sense understood by the courts, when she affixed her
thumbmark in the project of partition, on December 7, 1946, how was she able to validly donate lands
to "those who served her and those to whom gratitude were due by means of documents signed on
October of 1947 before Notary Fermin Yap" as Fr. Nicanor Cortes himself communicated to Awang"? 23
The lower courts likewise relied on the alleged absence of evidence showing that Rufino Cortes had at
any time been declared an owner of the lands in question for taxation purpose poses.
The records show, however, that before the project of partition was executed on December 7, 1946,
the contending parties in Special Proceedings Nos. 262 and 343 had been fighting for eight years since
1938 because the properties listed in the inventories submitted by the administrators were Identical.
To settle their differences amicably, the parties who all claim to be the heirs of decedents, all children
of Victor Cortes and Maria Castaeda, decided to partition the properties.
Partition is defined as a division between two or more persons of real or personal property which they
own as co-partners, joint tenants or tenants in common, effected by the setting apart of such interests
so that they may enjoy and possess it in severalty. 24 The purpose of partition is to put an end to the
common tenancy of the land or co-ownership. It seeks a severance of the individual interest of each
joint owner vesting in each a sole estate in specific property and giving to each one the right to enjoy
his estate without supervision or interference from the other. 25 And a partition by deed is a recognized
method of effectuating a separation of interest in property held in common. 26
It is clear therefore that a partition presupposes that the thing to be divided is owned in common. It is
immaterial in whose name the properties were declared for taxation purposes for it is presumed before
hand that the parties to the partition admit the fact of co-ownership and now want to effect a
separation of interest.
We do not consider as "intriguing" the observation of the lower court and concurred in by the Court of
Appeals that in both Special Proceedings in question, the administrators appointed were complete
strangers to the decedents. There is nothing repulsive in this nor is this an indicium of fraud and
collusion as found by the courts. Section 642 of the Code of Civil Procedure enumerates the persons
who can act as executors and administrators. It provides that in case the persons who have the
preferential right to be appointed are not competent or are unwilling to serve, administration may be
granted to such other person as the court may appoint.
What is intriguing is the fact that although Fr. Nicanor Cortes had a number of surviving first cousins,
he chose and preferred a stranger, Fr. Diosdado Camomot as his attorney-in-fact to take charge of his
and his Nanay's affairs. And even more intriguing is the fact that in the proceedings for the settlement
of the estate of his mother, he took steps to have the appointment of Escolastico Ceniza, brother of
private respondent, who was appointed as Special Administrator, revoked 27 and in which he
succeeded.
Another point. Special Proceedings Nos. 262 and 343 lasted for about sixteen years before entry of
judgment was made on March 18, 1954, and during that period, not one but three judges had the
occasion to reflect on the propriety and merits of both proceedings as well as the project of partition. In
the last page of the project of partition appears the signature of Judge Edmundo S. Piccio approving
the same on February 1, 1947. On April 14, 1948, Judge S.C. Moscoso likewise approved the project of

partition. 28 On November 25, 1953, both proceedings were ordered closed by Judge Florentino Saguin,
and entry of judgment was made on March 18, 1954. Against this factual backdrop, it is highly
improbable that any irregularity have attended said proceedings could not have been that might
seasonably unravelled.
The courts also held that the fraud committed by Ireneo and Paula Cortes Villamor in collusion with
Administrator Moises Mendoza, their lawyer Gaudencio Juezan and Fr. Diosdado Camomot was extrinsic
for it has been shown that when the probate court approved the project of partition, there was no
hearing or trial in the Court of First Instance for the purpose of determining the parties lawfully entitled
to the estate in the hands of the administrators; neither was there an opportunity given to Fr. Nicanor
Cortes by giving him prior notice to intervene or oppose, much less present his evidence, nor was
there a declaration of heirs.
Assuming arguendo that extrinsic fraud had been committed by Ireneo and Paula Cortes Villamor, has
the action prescribed?
The courts held that the action has not prescribed for the preponderance of evidence shows that the
fraud was discovered for the first time by Atty. Ramon B. Ceniza, son of Jose C. Ceniza, one of the heirs
of Fr. Nicanor Cortes, only in March, 1970. Since the action was commenced on June 4, 1970, it was
filed well within the four year period fixed by law.
We disagree. Prescription has set in. An action for reconveyance of real property resulting from fraud
may be barred by the statute of limitations, which requires that the action shall be filed within four [4]
years from the discovery of fraud. 29 From what time should fraud be deemed to have been discovered
in the case at bar.
To ascertain what constitutes "a discovery of the facts constituting the fraud," reference must be had
to the principles of equity. In actions in equity, the rule is that the means of knowledge are equivalent
to actual knowledge; that is, that a knowledge of facts which would have put an ordinarily prudent man
upon inquiry which, if followed up, would have resulted in a discovery of the fraud, was equivalent to
actual discovery. 30
In the instant case, the discovery must be deemed to have taken place, at the latest, on August 18,
1955, when Judge Clementino Diez, in Special Proceedings No. 364-R declared Fr. Nicanor Cortes as the
only and universal heir of Sixta Ceniza and granted letters of administration to Fr. Diosdado Camomot,
the person constituted by Fr. Nicanor Cortes as his attorney-in-fact in said proceedings. From that time,
the law imputes to Fr. Cortes knowledge of Special Proceedings Nos. 262 and 343, the project of
partition, and such facts and circumstances as would have him, by the exercise of due diligence, to a
knowledge of the fraud. During the time that Special Proceedings No. 364-R had been pending
circumstances existed which should have aroused Fr. Nicanor Cortes' suspicion or put him on inquiry
considering that the inventory submitted therein specifically made mention of Special Proceedings
Nos. 262 and 343 and the project of partition.
The period of prescription commenced to run from August 18, 1955. However, from said date up to his
death on August 28, 1969, Fr. Nicanor Cortes remained silent and failed to assert his right. He even
conveyed at least three lands which were among those apportioned to Sixta Ceniza in the Project of
Partition to several persons. Her predecessor-in-interest, Fr. Nicanor Cortes, not having filed any action
for reconveyance within the prescriptive period provided by law, neither could private respondent do
so now, for her right cannot rise higher than its source.
Finally, it is well-settled that the negligence or omission to assert a right within a reasonable time
warrants not only a presumption that the party entitled to assert it, either had abandoned it or
declined to assert it, but also casts doubt on the validity of the claim of ownership. Such neglect to
assert a right taken in conjunction with the lapse of time, more or less great, and other circumstances
causing prejudice to the adverse party, operates as a bar in a court of equity. 31

WHEREFORE, the petition is hereby GRANTED. The judgment appealed from is set aside, and another
entered dismissing the complaint in Civil Case No. R-11726 of the then Court of First Instance of Cebu.
No costs.
SO ORDERED.
Feliciano and Cortes, JJ., concur.
Fernan, J., took no part.
Gutierrez, Jr., J., is on leave.
Footnotes
1 Exhs. 58 & 6, pp. 145 and 92, respectively, Folder of Documentary Exhibits for Defendants.
* There is no No. 13.
2 Exhibit B, p. 2, Folder of Documentary Evidence for Plaintiff; Exh. 7, p. 93, Folder of Documentary
Evidence for Defendants.
3 Exh. 20, p. 108, Folder of Documentary Evidence for Defendant defendants.
4 Chan vs. CA, 33 SCRA 737.
5 Tolentino v. De Jesus, 56 SCRA 167.
6 P. 22, tsn, June 24,1971.
7 P. 129, Ibid.
8 P. 4, tsn, January 21, 1971.
9 Exhibit 13-A, p. 99-A, Folder of Documentary Evidence for the Defendants.
10 Exh. D, pp- 4-4-A Folder of Documentary Evidence for Plaintiff
11 Exh. 16-A-Translation, p. 103, Folder of Documentary Evidence for Defendants.
12 Exh. 17 & 17-A p. 104, Ibid.
13 P. 57, tsn, July 22, 1971.
14 Pp. 62-63, tsn., July 22, 1971.
15 Exh. 77 (Trans) p. 162, Ibid.
16 Exh. 78, p. 163, Ibid.
17 Exh. 26, p. 114-B, Ibid.
18 Exh. 21, pp. 109-109-B, Folder of Documentary Evidence for the Defendants.
19 Exh. E, p. 5, Folder of Documentary Evidence for the Plaintiff.
20 Exh. 31, p. 119, Folder of Documentary Evidence for the Defendants.
21 Pp. 20-22, tsn, January 20, 1971.
22 Neyra v. Neyra, 76 Phil. 297 citing Amata v. Tablizo 48 Phil. 485.
23 Exh. 77-Trans., supra.
24 La. Bickham v. Pitts 171 So. 80,185, La. 930.
25 Confesor v. Pelayo, 111 Phil. 416.
26 N.C. Moore v. Baker, S.E. 2d. 526, 224 N.C. 498.
27 Exh. 19, p. 107, Documentary Evidence for the Defendants.
28 Exh. C, pp. 3-3A, Folder of Documentary Evidence for the Plaintiff.
29 Balbin v. Medalla, 108 SCRA 666; Medina v. Court of Appeals, 109 SCRA 437.
30 Smith v. Edwards, 17P [2d] 264, 270.
31 Guerrero v. CA, 126 SCRA 109, citing Heirs of Pedro Guminpin v. CA, 120 SCRA 687; Masagandanga
v. Argamora, 109 SCRA 53.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-21917

November 29, 1966

TESTATE ESTATE OF THE DECEASED CARLOS GURREA Y MONASTERIO. MARCELO

PIJUAN, special administrator-appellee,
vs.
MANUELA RUIZ VDA. DE GURREA, movant-appellant.

Marcos S. Gomez for petitioner and appellee.

Ricardo B. Teruel for respondent and appellant.
CONCEPCION, C.J.:
This is an appeal, taken by Manuela Ruiz Vda. de Gurrea, from two (2) orders of the Court of First
Instance of Negros Occidental.
In 1932, appellant Manuela Ruiz hereinafter referred to as Mrs. Gurrea and Carlos Gurrea were
married in Spain, where they lived together until 1945, when he abandoned her and came, with their
son Teodoro, to the Philippines. Here he lived maritally with Rizalina Perez by whom he had two (2)
children. Having been informed by her son Teodoro, years later, that his father was residing in
Pontevedra, Negros Occidental, Manuela came to the Philippines, in June, 1960; but, Carlos Gurrea
refused to admit her to his residence in said municipality. Hence, she stayed with their son, Teodoro, in
Bacolod City.
Presently, or on July 29, 1960, she instituted, against Carlos Gurrea, Civil Case No. 5820 of the Court of
First Instance of Negros Occidental, for support and the annulment of some alleged donations of
conjugal property, in favor of his common-law wife, Rizalina. In due course, said court issued an order
granting Mrs. Gurrea a monthly alimony, pendente lite, of P2,000.00 which, on May 17, 1961, was
reduced by the Court of Appeals to P1,000.00.
Carlos Gurrea died on March 7, 1962, leaving a document purporting to be his last will and testament,
in which he named Marcelo Pijuan as executor thereof and disinherited Mrs. Gurrea and their son,
Teodoro. Soon thereafter, or on April 24, 1962, Pijuan instituted Special Proceedings No. 6582 of the
Court of First Instance of Negros Occidental, for the probate of said will. Thereafter Pijuan was, upon
his ex parte motion, appointed special administrator of the estate, without bond. Oppositions to the
probate of the will were filed by Mrs. Gurrea, her son, Teodoro, and one Pilar Gurrea, as an alleged
illegitimate daughter of the deceased.
On July 16, 1962, Mrs. Gurrea filed in said Special Proceedings No. 6582, a motion alleging that the
aforementioned alimony, pendente lite, of P1,000 a month, had been suspended upon the death of
Carlos Gurrea, and praying that the Special Administrator be ordered to continue paying it pending the
final determination of the case. This motion having been denied in an order dated February 2, 1963,
Mrs. Gurrea moved for a reconsideration thereof. Moreover, on February 27, 1963, she moved for her
appointment as administratrix of the estate of the deceased. In an order dated April 20, 1963, said
motion for reconsideration was denied. The lower court, likewise, denied, for the time being, the
motion of Mrs. Gurrea for her appointment as administratrix, in view of the provision of the will of the
deceased designating another person as executor thereof. Hence this appeal from said orders of
February 2 and April 20, 1963.
Mrs. Gurrea assails as erroneous the order of the lower court denying her petition for support, as well
as that denying its reconsideration. Both were predicated upon the theory that, pursuant to Article 188
of our Civil Code (Article 1430 of the Spanish Civil Code) the support of a surviving spouse constitutes,
not an encumbrance upon the estate of the decedent, but merely an advance from her share of said
estate, and that Mrs. Gurrea is not entitled to such advance, there being neither allegation nor proof
that she had contributed any paraphernal property to said estate or that the same includes properties
forming part of the conjugal partnership between her and the deceased. In support of this view, His
Honor, the trial Judge cited the opinion of Manresa to the effect that
. . . Probado que ni en concepto de capital propio, ni como gananciales corresponde haber alguno al
conjuge sobreviviente o a los herederos del premuerto, no cabe la concesion de alimentos, pues estos,
en efecto, con arreglo el articulo 1430, son solo un anticipo del respectivo haber de cada participe.

This has, however, been misconstrued by the lower court. The foregoing view of Manresa is predicated
upon the premise that it has been proven that none of the properties under administration belongs to
the surviving spouse either as paraphernal property or as part of the conjugal partnership. Upon the
other hand, the lower court denied support to Mrs. Gurrea because of absence of proof as regards the
status, nature or character of the property now under the custody of the Special Administrator.
Precisely, however, on account of such lack of proof thereon, we are bound by law1 to assume that the
estate of the deceased consists of property belonging to the conjugal partnership, 2 one-half of which
belongs presumptively to Mrs. Gurrea,3 aside from such part of the share of the deceased in said
partnership as may belong to her as one of the compulsory heirs, 4 if his alleged will were not allowed
to probate, or, even if probated, if the provision therein disinheriting her were nullified. Inasmuch as
the aforementioned estate is worth P205,397.64, according to the inventory submitted by the special
administrator, it is clear to us that the continuation of the monthly alimony, pendente lite, of P1,000,
authorized in said Civil Case No. 5820, is fairly justified.
It is next urged by Mrs. Gurrea that the lower court erred in denying her petition for appointment as
administratrix, for, as widow of the deceased, she claims a right of preference under Section 6 of Rule
78 of the Revised Rules of Court. In the language of this provision, said preference exists "if no
executor is named in the will or the executor or executors are incompetent, refuse the trust, or fail to
give bond, or a person dies intestate." None of these conditions obtains, however, in the case at bar.
The deceased Carlos Gurrea has left a document purporting to be his will, seemingly, is still pending
probate. So, it cannot be said, as yet, that he has died intestate. Again, said document names Marcelo
Pijuan as executor thereof, and it is not claimed that he is incompetent therefor. What is more, he has
not only not refused the trust, but, has, also, expressly accepted it, by applying for his appointment as
executor, and, upon his appointment as special administrator, has assumed the duties thereof. It may
not be amiss to note that the preference accorded by the aforementioned provision of the Rules of
Court to the surviving spouse refers to the appoint of a regular administrator or administratrix, not to
that of a special administrator, and that the order appointing the latter lies within the discretion of the
probate court,5and is not appealable.6
WHEREFORE, the orders appealed from are hereby modified, in the sense that Manuela Ruiz Vda. de
Gurrea shall receive from the estate of the deceased a monthly allowance of P1,000.00, by way of
support, from March 7, 1962, and that, in all other respects, said orders are hereby affirmed, without
pronouncement as to costs. It is so ordered.
Reyes, J.B.L., Barrera, Dizon, Regala, Makalintal, Bengzon, J.P., Zaldivar, Sanchez and Castro, JJ., concur.

Footnotes
1
Art. 160, Civil Code of the Philippines.
2
Viloria v. Aquino, 28 Phil. 258; Sison v. Ambalada 30 Phil. 118; Coingco v. Flores, 82 Phil. 284; Harden
v. Pea, 87 Phil. 620; Cruz v. De la Paz, 47 O.G. 3419; Laperal v. Katigbak, L-16991, March 31, 1964;
Alfonso v. Natividad, 6 Phil. 240; Mariaga v. Macabuntoc, 17 Phil. 107; Ahern v. Julian, 39 Phil. 607;
Flores v. Flores, 48 Phil. 288; Guingguing v. Abuton, 48 Phil. 114.
3
Article 142 of the same code.
4
Articles 887 and 892, Civil Code of the Philippines.
5
Roxas v. Pecson, 46 Off. Gaz. 2058; Junquera v. Borromeo, 52 Off. Gaz. 7611; De Gala v. Gonzales, 53
Phil. 106; Garcia v. Flores, L-10392, June 28, 1957; Hon. Alcasid, et al. v. Samson, et al., 54 Off. Gaz.
No. 15, p. 4479.
6
Samson v. Barrios, 63 Phil. 198; Borja v. Tan, G.R. No. L-6476, Nov. 18, 1956; Manila Electric Co. v.
Artiaga and Green, 50 Phil. 144; Garcia v. Hon. Flores, etc., 54 Off. Gaz. No. 13, pp. 4049, 4052; Hon.
Alcasid, et al. v. Samson, et al., 54 Off. Gaz. No. 15, p. 4479.
Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION
G.R. No. L-40517 January 31, 1984
LUZON SURETY COMPANY, INC., plaintiff-appellee,
vs.
PASTOR T. QUEBRAR and FRANCISCO KILAYKO, defendants-appellants.
Tolentino & Garcia & D. R. Cruz for plaintiff-appellee.
Zoilo V. dela Cruz, Jr. for defendants-appellants.

MAKASIAR, J.:
This is an appeal from the judgement of the Court of First Instance of Manila in Civil Case No. 52790
dated November 3, 1964 which was certified to this Court by the Court of Appeals in its resolution
dated March 20, 1975.
On August 9, 1954, plaintiff-appellee issued two administrator's bond in the amount of P15,000.00
each, in behalf of the defendant-appellant Pastor T. Quebrar, as administrator in Special Proceedings
Nos. 3075 and 3076 of the Court of First Instance of Negros Occidental, entitled " Re Testate Estate of
A. B. Chinsuy," and Re Testate Estate of Cresenciana Lipa," respectively, (pp. 8-12, 17-21, ROA; p. 9
rec.). In consideration of the suretyship wherein the plaintiff-appellee Luzon Surety Company, Inc. was
bound jointly and severally with the defendant appellant Pastor T. Quebrar, the latter, together with
Francisco Kilayko, executed two indemnity agreements, where among other things, they agreed jointly
and severally to pay the plaintiff-appellee "the sum of Three Hundred Pesos (P300.00) in advance as
premium thereof for every 12 months or fraction thereof, this ... or any renewal or substitution thereof
is in effect" and to indemnify plaintiff-appellee against any and all damages, losses, costs, stamps
taxes, penalties, charges and expenses, whatsoever, including the 15% of the amount involved in any
litigation, for attomey's fees (pp. 12-16, 21-25. ROA; p. 9, rec.).
For the first year, from August 9, 1954 to August 9, 1955, the defendants-appellants paid P304.50
under each indemnity agreement or a total of P609.00 for premiums and documentary stamps.
On June 6, 1957, the Court of First Instance of Negros Occidental approved the amended Project of
Partition and Accounts of defendant-appellant (p. 87, ROA; p. 9, rec.).
On May 8, 1962, the plaintiff-appellee demanded from the defendants-appellants the payment of the
premiums and documentary stamps from August 9,1955.
On October 17, 1962, the defendants-appellants ordered a motion for cancellation and/or reduction of
executor's bonds on the ground that "the heirs of these testate estates have already received their
respective shares" (pp. 69-70, ROA, p. 9, rec.).
On October 20, 1962, the Court of First Instance of Negros Occidental acting on the motions filed by
the defendants-appellants ordered the bonds cancelled.
Plaintiff-appellee's demand amounted to P2,436.00 in each case, hence, a total of P4,872.00 for the
period of August 9, 1955 to October 20, 1962. The defendants-appellants to pay the said amount of
P4,872.00.
On January 8, 1963, the plaintiff-appellee filed the case with the Court of First Instance of Manila
During the pre-trial the parties presented their documentary evidences and agreed on the ultimate
issue - "whether or not the administrator's bonds were in force and effect from and after the year that

they were filed and approved by the court up to 1962, when they were cancelled." The defendantsappellants offered P1,800.00 by way of amicable settlement which the plaintiff-appellee refused.
The lower court allowed the plaintiff to recover from the defendants-appellants, holding that:
We find for the plaintiff it is clear from the terms of the Order of the Court in which these bond were
filed, that the same were in force and effect from and after filling thereof up to and including 20
October, 1962, when the same werecancelled. It follows that the defendants are liable under the terms
of the Indemnity Agreements, notwithstanding that they have not expressly sought the renewal of
these bonds bemuse the same were in force and effect until they were cancelled by order of the Court.
The renewal of said bonds is presumed from the fact that the defendants did not ask for the
cancellation of the same; and their liability springs from the fact that defendant Administrator Pastor
Quebrar, benefited from the bonds during their lifetime.
We find no merit in defendants' claim that the Administrator's bonds in question are not judicial bonds
but legal or conventional bonds only, since they were constituted by virtue of Rule 82, Sec. 1 of the Old
Rule of Court. Neither is there merit in defendants, claim that payments of premiums and documentary
stamps were conditions precedent to the effectivity of the bonds, since it was the defendants' duty to
pay for the premiums as long as the bonds were in force and effect. Finally, defendants' claim that they
are not liable under the Indemnity Agreements is also without merit since the under of defendants
under said Indemnity Agreements; includes the payment of yearly pre for the bonds.
WHEREFORE, judgment is hereby rendered in favor of the plaintiff and against the defendants,
ordering the tsn the defendant to pay the plaintiff, jointly and severally, the amount of P6,649.36 plus
interest at the legal rate from 27 July 1964 until fully paid and the sum equivalent to 10% of the total
amount due as and or attorney's fees, and costs (pp. 92-94, ROA; p. 9, rec.).
Defendants-appellants appealed to the Court of Appeals. On March 20, 1975, the Court of Appeals in a
resolution certified the herein case to this Court after finding that this case involves only errors or
questions of law.
1. The proper determination of the liability of the surety and of the principal on the bond must depend
primarily upon the language of the bond itself. The bonds herein were required by Section 1 of Rule 81
of the Rules of Court. While a bond is nonetheless a contract because it is required by statute (Midland
Co. vs. Broat 52 NW 972), said statutory bonds are construed in the light of the statute creating the
obligation secured and the purposes for which the bond is required, as expressed in the statute
(Michael vs. Logan, 52 NW 972; Squires vs. Miller, 138 NW 1062). The statute which requires the giving
of a bond becomes a part of the bond and imparts into the bond any conditions prescribed by the
statute (Scott vs. United States Fidelity Co., 252 Ala 373, 41 So 2d 298; Employer's Liability Assurance
Corp. vs. Lunt, 82 Ariz 320, 313 P2d 393).
The bonds in question herein contain practically the very same conditions in Sec. 1, Rule 81 of the
Rules of Court. Pertinent provision of the administrator's bonds is as follows:
Therefore, if the said Pastor T. Quebrar faithfully prepares and presents to the Court, within three
months from the date of his appointment, a correct inventory of all the property of the deceased which
may have come into his possession or into the possession of any other person representing him
according to law, if he administers all the property of the deceased which at any time comes into his
possession or into the possession of any other person representing him; faithfully pays all the debts,
legacies, and bequests which encumber said estate, pays whatever dividends which the Court may
decide should be paid, and renders a just and true account of his administrations to the Court within a
year or at any other date that he may be required so to do, and faithfully executes all orders and
decrees of said Court, then in this case this obligation shall be void, otherwise it shall remain full force
and effect (p. 9, 18, ROA p. 9, rec.).

Section 1 of Rule 81 of the Rules of Court requires the administrator/executor to put up a bond for the
purpose of indemnifying the creditors, heirs, legatees and the estate. It is conditioned upon the faithful
performance of the administrator's trust (Mendoza vs. Pacheco, 64 Phil. 134).
Having in mind the purpose and intent of the law, the surety is then liable under the administrator's
bond, for as long as the administrator has duties to do as such administrator/executor. Since the
liability of the sureties is co-extensive with that of the administrator and embraces the performance of
every duty he is called upon to perform in the course of administration (Deobold vs. Oppermann, 111
NY 531, 19 NE 94), it follows that the administrator is still duty bound to respect the indemnity
agreements entered into by him in consideration of the suretyship
It is shown that the defendant-appellant Pastor T. Quebrar, still had something to do as an
administrator/executor even after the approval of the amended project of partition and accounts on
June 6, 1957.
The contention of the defendants-appellants that the administrator's bond ceased to be of legal force
and effect with the approval of the project of partition and statement of accounts on June 6, 1957 is
without merit. The defendant-appellant Pastor T. Quebrar did not cease as administrator after June 6,
1957, for administration is for the purpose of liquidation of the estate and distribution of the residue
among the heirs and legatees. And liquidation means the determination of all the assets of the estate
and payment of all the debts and expenses(Flores vs. Flores, 48 Phil. 982). It appears that there were
still debts and expenses to be paid after June 6, 1957.
And in the case of Montemayor vs. Gutierrez (114 Phil. 95), an estate may be partitioned even before
the termination of the administration proceedings. Hence, the approval of the project of partition did
not necessarily terminate the administration proceedings. Notwithstanding the approval of the
partition, the Court of First Instance of Negros Occidental still had jurisdiction over the administration
proceedings of the estate of A.B. Chinsuy and Cresenciana Lipa.
2. The sureties of an administration bond are liable only as a rule, for matters occurring during the
term covered by the bond. And the term of a bond does not usually expire until the administration has
been closed and terminated in the manner directed by law (Hartford Accident and Indemnity Co. vs.
White, 115 SW 2d 249). Thus, as long as the probate court retains jurisdiction of the estate, the bond
contemplates a continuing liability (Deobold vs. Oppermann, supra) notwithstanding the non-renewal
of the bond by the defendants-appellants.
It must be remembered that the probate court possesses an all-embracing power over the
administrator's bond and over the administration proceedings and it cannot be devoid of legal
authority to execute and make that bond answerable for the every purpose for which it was
filed (Mendoza vs. Pacheco, 64 Phil. 1-05). It is the duty of the courts of probate jurisdiction to guard
jealously the estate of the deceased persons by intervening in the administration thereof in order to
remedy or repair any injury that may be done thereto (Dariano vs. Fernandez Fidalgo, 14 Phil. 62, 67;
Sison vs. Azarraga, 30 Phil. 129, 134).
3. In cases like these where the pivotal point is the interpretation of the contracts entered into, it is
essential to scrutinize the very language used in the contracts. The two Indemnity Agreements
provided that:
The undersigned, Pastor T. Quebrar and Dr. Francisco Kilayko, jointly and severally, bind ourselves unto
the Luzon Surety Co., Inc. ... in consideration of it having become SURETY upon Civil Bond in the sum
of Fifteen Thousand Pesos (P15,000.00) ... in favor of the Republic of the Philippines in Special
Proceeding ... dated August 9, 1954, a copy of which is hereto attached and made an integral part
hereof (emphasis supplied; pp. 12-13, 21, ROA p. 9, rec.),

To separately consider these two agreements would then be contrary to the intent of the parties in
making them integrated as a whole.
The contention then of the defendants-appellants that both the Administrator's Bonds and the
Indemnity Agreements ceased to have any force and effect, the former since June 6, 1957 with the
approval of the project of partition and the latter since August 9, 1955 with the non-payment of the
stated premiums, is without merit. Such construction of the said contracts entered into would render
futile the purpose for which they were made.
To allow the defendants-appellants to evade their liability under the Indemnity Agreements by nonpayment of the premiums would ultimately lead to giving the administrator the power to diminish or
reduce and altogether nullify his liability under the Administrator's Bonds. As already stated, this is
contrary to the intent and purpose of the law in providing for the administrator's bonds for the
protection of the creditors, heirs, legatees, and the estate.
4. Moreover, the lower court was correct in holding that there is no merit in the defendants' claim that
payments of premiums and documentary stamps are conditions precedent to the effectivity of the
bonds.
It is worthy to note that there is no provision or condition in the bond to the effect that it will terminate
at the end of the first year if the premium for continuation thereafter is not paid. And there is no clause
by which its obligation is avoided or even suspended by the failure of the obligee to pay an annual
premium (U.S. vs. Maryland Casualty Co. DCMD 129 F. Supp; Dale vs. Continental Insurance Co., 31 SW
266; Equitable Insurance C. vs. Harvey, 40 SW 1092).
It was held in the case of Fourth and First Bank and Trust Co. vs. Fidelity and Deposit Co. (281 SW 785),
that "at the end of the first year, the bond went on, whether or not the premium was paid or not ...
Even on a failure to pay an annual premium, the contract ran on until affirmative action was taken to
avoid it. The obligation of the bond was therefore continuous." And in United States vs. American
Surety Co. of New York (172 F2d 135), it was held that "under a surety bond securing faithful
performance of duties by postal employee, liability for default of employee occurring in any one year
would continue, whether or not a renewal premium was paid for a later year."
The payment of the annual premium is to be enforced as part of the consideration, and not as a
condition Woodfin vs. Asheville Mutual Insurance Co., 51 N.C. 558); for the payment was not made a
condition to the attaching or continuing of the contract (National Bank vs. National Surety Co., 144 A
576). The premium is the consideration for furnishing the bonds and the obligation to pay the same
subsists for as long as the liability of the surety shall exist (Reparations Commission vs. Universal
Deep-Sea Fishing Corp., L-21996, 83 SCRA 764, June 27, 1978). And in Arranz vs. Manila Fidelity and
Surety Co., Inc. (101 Phil. 272), the "premium is the consideration for furnishing the bond or the
guaranty. While the liability of the surety subsists the premium is collectible from the principal. Lastly,
in Manila Surety and Fidelity Co., Inc. vs. Villarama (107 Phil. 891), it was held that "the one-year
period mentioned therein refers not to the duration or lifetime of the bond, but merely to the payment
of premiums, and, consequently, does not affect at all the effectivity or efficacy of such bond. But such
non- payment alone of the premiums for the succeeding years ... does not necessarily extinguish or
terminate the effectivity of the counter-bond in the absence of an express stipulation in the contract
making such non-payment of premiums a cause for the extinguishment or termination of the
undertaking. ...There is no necessity for an extension or renewal of the agreement because by specific
provision thereof, the duration of the counter-bond was made dependent upon the existence of the
original bond."
5. It is true that in construing the liability of sureties, the principle of strictissimi juris applies (Asiatic
Petroleum Co. vs, De Pio, 46 Phil. 167; Standard Oil Co. of N.Y. vs. Cho Siong, 53 Phil. 205); but with the
advent of corporate surety, suretyship became regarded as insurance where, usually, provisions are
interpreted most favorably to the insured and against the insurer because ordinarily the bond is

prepared by the insurer who then has the opportunity to state plainly the term of its obligation (Surety
Co. vs. Pauly, 170 US 133, 18 S. Ct. 552.,42 L. Ed. 972).
This rule of construction is not applicable in the herein case because there is no ambiguity in the
language of the bond and more so when the bond is read in connection with the statutory provision
referred to.
With the payment of the premium for the first year, the surety already assumed the risk involved, that
is, in case defendant-appellant Pastor T. Quebrar defaults in his administrative duties. The surety
became liable under the bond for the faithful administration of the estate by the
administrator/executor. Hence, for as long as defendant-appellant Pastor T. Quebrar was administrator
of the estates, the bond was held liable and inevitably, the plaintiff-appellee's liability subsists since
the liability of the sureties is co-extensive with that of the administrator.
WHEREFORE, THE DECISION OF THE COURT OF FIRST INSTANCE OF MANILA DATED NOVEMBER 3, 1964
IS HEREBY AFFIRMED. WITH COSTS AGAINST DEFENDANTS-APPELLANTS.
Concepcion, Jr., Guerrero, Abad Santos, De Castro and Escolin, JJ., concur.
Aquino, J., took no part
SECOND DIVISION
IN THE MATTER OF THE INTESTATE ESTATE OF
CRISTINA AGUINALDO- SUNTAY; EMILIO A.M.
SUNTAY III,
Petitioner,

- versus -

ISABEL COJUANGCO-SUNTAY,
Respondent.

G.R. No. 183053

Present:
CARPIO, J.,
Chairperson,
NACHURA,
PERALTA,
ABAD, and
PEREZ,* JJ.
Promulgated:
June 16, 2010

x------------------------------------------------------------------------------------x
DECISION
NACHURA, J.:
Unlike Pope Alexander VI[1] who, faced with the impasse between Spain and Portugal, deftly and
literally divided the exploration, or more appropriately, the riches of the New World by issuing the Inter
Caetera,[2] we are confronted with the difficult, albeit, all too familiar tale of another family imbroglio
over the estate of a decedent.[3]
This is a petition for review on certiorari under Rule 45 of the Rules of Court, assailing the Decision of
the Court of Appeals (CA) in CA-G.R. CV No. 74949,[4] reversing the decision of the Regional Trial Court
(RTC), Branch 78, Malolos, Bulacan, in Special Proceeding Case No. 117-M-95. [5]

Before anything else, we disentangle the facts.

On June 4, 1990, the decedent, Cristina Aguinaldo-Suntay (Cristina), married to Dr. Federico Suntay
(Federico), died intestate. In 1979, their only son, Emilio Aguinaldo Suntay (Emilio I), predeceased both
Cristina and Federico. At the time of her death, Cristina was survived by her husband, Federico, and
several grandchildren, including herein petitioner Emilio A.M. Suntay III (Emilio III) and respondent
Isabel Cojuangco-Suntay.

During his lifetime, Emilio I was married to Isabel Cojuangco, and they begot three children, namely:
herein respondent, Isabel; Margarita; and Emilio II, all surnamed Cojuangco-Suntay. Emilio Is marriage
to Isabel Cojuangco was subsequently annulled. Thereafter, Emilio I had two children out of wedlock,
Emilio III and Nenita Suntay Taedo (Nenita), by two different women, Concepcion Mendoza and Isabel
Santos, respectively.

Despite the illegitimate status of Emilio III, he was reared ever since he was a mere baby, nine months
old, by the spouses Federico and Cristina and was an acknowledged natural child of Emilio I. Nenita is
an acknowledged natural child of Emilio I and was likewise brought up by the spouses Federico and
Cristina.

As previously adverted to, the marriage between Emilio I and Isabel was annulled. [6] Consequently,
respondent and her siblings Margarita and Emilio II, lived with their mother on Balete Drive, Quezon
City, separately from their father and paternal grandparents.

Parenthetically, after the death of Emilio I, Federico filed a petition for visitation rights over his
grandchildren: respondent Isabel, Margarita, and Emilio II. Although the Juvenile and Domestic
Relations Court in Quezon City granted the petition and allowed Federico one hour of visitation
monthly, initially reduced to thirty minutes, it was altogether stopped because of a manifestation filed
by respondent Isabel, articulating her sentiments on the unwanted visits of her grandparents.

Significantly, Federico, after the death of his spouse, Cristina, or on September 27, 1993, adopted their
illegitimate grandchildren, Emilio III and Nenita.[7]

On October 26, 1995, respondent filed a petition for the issuance of letters of administration in her
favor, containing the following allegations:

[A]t the time of [the decedents] death, [she] was a resident of the Municipality of Hagonoy, Province of
Bulacan; that the [decedent] left an estate of real and personal properties, with a probable gross value
of P29,000,000.00; that the names, ages and residences of the surviving heirs of the [decedent] are:
(1) Federico C. Suntay, 89 years old, surviving spouse and a resident of x x x; (2) Isabel CojuangcoSuntay, 36 years old, legitimate granddaughter and a resident of x x x; (3) Margarita CojuangcoSuntay, 39 years old, legitimate granddaughter and a resident of x x x; and (4) Emilio CojuangcoSuntay, 35 years old, legitimate grandson and a resident of x x x; and that as far as [respondent]
knew, the decedent left no debts or obligation at the time of her death. [8]

Disavowing the allegations in the petition of his grandchild, respondent Isabel, Federico filed his
opposition on December 21, 1995, alleging, among others, that:

[B]eing the surviving spouse of Cristina, he is capable of administering her estate and he should be the
one appointed as its administrator; that as part owner of the mass of conjugal properties left by
Cristina, he must be accorded legal preference in the administration thereof; that Isabel and her family
had been alienated from their grandparents for more than thirty (30) years; that the enumeration of
heirs in the petition was incomplete as it did not mention the other children of his son[,] namely: Emilio
III and Nenita S. Taedo; that he is better situated to protect the integrity of the estate of Cristina as
even before the death of his wife[,] he was already the one who managed their conjugal properties;
that the probable value of the estate as stated in the petition was grossly overstated (sic); and that
Isabels allegation that some of the properties are in the hands of usurpers is untrue. [9]

Meanwhile, after a failed attempt by the parties to settle the proceedings amicably, Federico filed a
Manifestation dated March 13, 1999, nominating his adopted son, Emilio III, as administrator of the
decedents estate on his behalf, in the event he would be adjudged as the one with a better right to the
letters of administration.

Subsequently, the trial court granted Emilio IIIs Motion for Leave to Intervene considering his interest
in the outcome of the case. Emilio III filed his Opposition-In-Intervention, which essentially echoed the
allegations in his grandfathers opposition, alleging that Federico, or in his stead, Emilio III, was better
equipped than respondent to administer and manage the estate of the decedent, Cristina. Additionally,
Emilio III averred his own qualifications that: [he] is presently engaged in aquaculture and banking; he
was trained by the decedent to work in his early age by involving him in the activities of the Emilio
Aguinaldo Foundation which was established in 1979 in memory of her grandmothers father; the
significant work experiences outside the family group are included in his curriculum vitae; he was
employed by the oppositor [Federico] after his graduation in college with management degree at F.C.E.
Corporations and Hagonoy Rural Bank; x x x.[10]

In the course of the proceedings, on November 13, 2000, Federico died.

After the testimonies of both parties witnesses were heard and evidence on their respective allegations
were adduced, the trial court rendered a decision on November 9, 2001, appointing herein petitioner,
Emilio III, as administrator of decedent Cristinas intestate estate, to wit:

WHEREFORE, the petition of Isabel Cojuangco[-]Suntay is DENIED and the

Opposition[-]in[-]Intervention is GRANTED.

Accordingly, the Intervenor, Emilio A.M. Suntay, III is hereby appointed administrator of the estate of
the decedent Cristina Aguinaldo Suntay, who shall enter upon the execution of his trust upon the filing
of a bond in the amount of P200,000.00, conditioned as follows:

(1)

To make and return within three (3) months, a true and complete inventory;

(2)
To administer the estate and to pay and discharge all debts, legatees, and charge on the
same, or dividends thereon;

(3)
To render a true and just account within one (1) year, and at any other time when
required by the court, and

(4)

To perform all orders of the Court.

Once the said bond is approved by the court, let Letters of Administration be issued in his favor.

SO ORDERED.[11]
Aggrieved, respondent filed an appeal before the CA, which reversed and set aside the decision of the
RTC, revoked the Letters of Administration issued to Emilio III, and appointed respondent as
administratrix of the intestate estate of the decedent, Cristina, to wit:

WHEREFORE, in view of all the foregoing, the assailed decision dated November 9, 2001 of Branch
78, Regional Trial Court of Malolos, Bulacan in SPC No. 117-M-95 is REVERSED and SET ASIDE and
the letters of administration issued by the said court to Emilio A.M. Suntay III, if any, are consequently
revoked. Petitioner Isabel Cojuangco[-]Suntay is hereby appointed administratrix of the intestate
estate of Cristina Aguinaldo Suntay. Let letters of administration be issued in her favor upon her filing
of a bond in the amount of Two Hundred Thousand (P200,000.00) Pesos.
No pronouncement as to costs.
SO ORDERED.[12]

The motion for reconsideration of Emilio III having been denied, he appeals by certiorari to this Court,
raising the following issues:

A. IN THE APPOINTMENT OF AN ADMINISTRATOR OF THE ESTATE UNDER SECTION 6 OF RULE 78 OF THE

RULES OF COURT, WHETHER ARTICLE 992 OF THE CIVIL CODE APPLIES; and

B. UNDER THE UNDISPUTED FACTS WHERE HEREIN PETITIONER WAS REARED BY THE DECEDENT AND
HER SPOUSE SINCE INFANCY, WHETHER ARTICLE 992 OF THE NEW CIVIL CODE APPLIES SO AS TO BAR
HIM FROM BEING APPOINTED ADMINISTRATOR OF THE DECEDENTS ESTATE. [13]

In ruling against the petition of herein respondent, the RTC ratiocinated, thus:

Evidence objectively assessed and carefully evaluated, both testimonial and documentary, the court
opines that it is to the best interest of the estate of the decedent and all claimants thereto, that the
Intervenor, Emilio A.M. Suntay III, be appointed administrator of the estate in the above-entitled
special proceedings.

Based on the evidence and demeanor of the parties in court, [respondents immediate] family and that
of the decedent are apparently estranged. The root cause of which, is not for this court to ascertain nor
is this the right time and the proper forum to dwell upon. What matters most at this time is the welfare
of the estate of the decedent in the light of such unfortunate and bitter estrangement.

The Court honestly believes that to appoint the petitioner would go against the wishes of the decedent
who raised [Emilio III] from infancy in her home in Baguio City as her own child. Certainly, it would go
against the wishes of the surviving spouse x x x who nominated [Emilio III] for appointment as
administrator.

As between [respondent] and the oppositor [Federico], the latter is accorded preference as the
surviving spouse under Sec 6(a), Rule 78, Rules of Court. On the basis of such preference, he
vigorously opposed the appointment of the petitioner and instead nominated [Emilio III], his grandchild
and adopted child. Such nomination, absent any valid and justifiable reason, should not be imperiously
set aside and insouciantly ignored, even after the oppositor [Federico] has passed away, in order to
give effect to the order of preference mandated by law. Moreover, from the viewpoint of the estate, the
nomination of [Emilio III] appear[s] intrinsically meritorious. For the benefit of the estate and its
claimants, creditors, as well as heirs, the administrator should be one who is prepared, academically
and by experience, for the demands and responsibilities of the position. While [respondent], a
practicing physician, is not unqualified, it is clear to the court that when it comes to management of
real estate and the processing and payment of debts, [Emilio III], a businessman with an established
track record as a manager has a decided edge and therefore, is in a position to better handle the
preservation of the estate.[14]

In marked contrast, the CA zeroed in on Emilio IIIs status as an illegitimate child of Emilio I and, thus,
barred from representing his deceased father in the estate of the latters legitimate mother, the
decedent. On the whole, the CA pronounced that Emilio III, who was merely nominated by Federico,
and which nomination hinged upon the latters appointment as administrator of the decedents estate,
cannot be appointed as the administrator of the decedents estate for the following reasons: [15]

1. The appointment of Emilio III was subject to a suspensive condition, i.e., Federicos appointment as
administrator of the estate, he being the surviving spouse of Cristina, the decedent. The death of
Federico before his appointment as administrator of Cristinas estate rendered his nomination of Emilio
III inoperative;

2. As between the legitimate offspring (respondent) and illegitimate offspring (Emilio III) of decedents
son, Emilio I, respondent is preferred, being the next of kin referred to by Section 6, Rule 78 of the
Rules of Court, and entitled to share in the distribution of Cristinas estate as an heir;
3. Jurisprudence has consistently held that Article 992[16] of the Civil Code bars the illegitimate child
from inheriting ab intestato from the legitimate children and relatives of his father or mother. Thus,
Emilio III, who is barred from inheriting from his grandmother, cannot be preferred over respondent in
the administration of the estate of their grandmother, the decedent; and

4. Contrary to the RTCs finding, respondent is as much competent as Emilio III to administer and
manage the subject estate for she possesses none of the disqualifications specified in Section 1,
[17]
Rule 78 of the Rules of Court.

The pivotal issue in this case turns on who, as between Emilio III and respondent, is better qualified to
act as administrator of the decedents estate.

We cannot subscribe to the appellate courts ruling excluding Emilio III in the administration of the
decedents undivided estate. Mistakenly, the CA glosses over several undisputed facts and
circumstances:

1. The underlying philosophy of our law on intestate succession is to give preference to the wishes and
presumed will of the decedent, absent a valid and effective will;

2. The basis for Article 992 of the Civil Code, referred to as the iron curtain bar rule, [18] is quite the
opposite scenario in the facts obtaining herein for the actual relationship between Federico and
Cristina, on one hand, and Emilio III, on the other, was akin to the normal relationship of legitimate
relatives;

3. Emilio III was reared from infancy by the decedent, Cristina, and her husband, Federico, who both
acknowledged him as their grandchild;

4. Federico claimed half of the properties included in the estate of the decedent, Cristina, as forming
part of their conjugal partnership of gains during the subsistence of their marriage;

5. Cristinas properties forming part of her estate are still commingled with that of her husband,
Federico, because her share in the conjugal partnership, albeit terminated upon her death, remains
undetermined and unliquidated; and

6. Emilio III is a legally adopted child of Federico, entitled to share in the distribution of the latters
estate as a direct heir, one degree from Federico, not simply representing his deceased illegitimate
father, Emilio I.

From the foregoing, it is patently clear that the CA erred in excluding Emilio III from the administration
of the decedents estate. As Federicos adopted son, Emilio IIIs interest in the estate of Cristina is as
much apparent to this Court as the interest therein of respondent, considering that the CA even
declared that under the law, [Federico], being the surviving spouse, would have the right of succession
over a portion of the exclusive property of the decedent, aside from his share in the conjugal
partnership. Thus, we are puzzled why the CA resorted to a strained legal reasoning Emilio IIIs
nomination was subject to a suspensive condition and rendered inoperative by reason of Federicos
death wholly inapplicable to the case at bar.

Section 6, Rule 78 of the Rules of Court lists the order of preference in the appointment of an
administrator of an estate:

SEC. 6. When and to whom letters of administration granted. If no executor is named in the will, or the
executor or executors are incompetent, refuse the trust, or fail to give bond, or a person dies intestate,
administration shall be granted:

(a) To the surviving husband or wife, as the case may be, or next of kin, or both, in the discretion of the
court, or to such person as such surviving husband or wife, or next of kin, requests to have appointed,
if competent and willing to serve;

(b) If such surviving husband or wife, as the case may be, or next of kin, or the person selected by
them, be incompetent or unwilling, or if the husband or widow, or next of kin, neglects for thirty (30)
days after the death of the person to apply for administration or to request that administration be
granted to some other person, it may be granted to one or more of the principal creditors, if competent
and willing to serve;

(c) If there is no such creditor competent and willing to serve, it may be granted to such other person
as the court may select.
However, the order of preference is not absolute for it depends on the attendant facts and
circumstances of each case.[19] Jurisprudence has long held that the selection of an administrator lies in
the sound discretion of the trial court.[20] In the main, the attendant facts and circumstances of this
case necessitate, at the least, a joint administration by both respondent and Emilio III of their
grandmothers, Cristinas, estate.

In the case of Uy v. Court of Appeals,[21] we upheld the appointment by the trial court of a coadministration between the decedents son and the decedents brother, who was likewise a creditor of
the decedents estate. In the same vein, we declared in Delgado Vda. de De la Rosa v. Heirs of
Marciana Rustia Vda. de Damian[22] that:

[i]n the appointment of an administrator, the principal consideration is the interest in the estate of the
one to be appointed. The order of preference does not rule out the appointment of co-administrators,
specially in cases where justice and equity demand that opposing parties or factions be represented in
the management of the estates, a situation which obtains here.

Similarly, the subject estate in this case calls to the succession other putative heirs, including another
illegitimate grandchild of Cristina and Federico, Nenita Taedo, but who was likewise adopted by

Federico, and the two (2) siblings of respondent Isabel, Margarita and Emilio II. In all, considering the
conflicting claims of the putative heirs, and the unliquidated conjugal partnership of Cristina and
Federico which forms part of their respective estates, we are impelled to move in only one
direction, i.e., joint administration of the subject estate.

One final note. Counsel for petitioner meticulously argues that Article 992 of the Civil Code, the
successional bar between the legitimate and illegitimate relatives of a decedent, does not apply in this
instance where facts indubitably demonstrate the contrary Emilio III, an illegitimate grandchild of the
decedent, was actually treated by the decedent and her husband as their own son, reared from
infancy, educated and trained in their businesses, and eventually legally adopted by decedents
husband, the original oppositor to respondents petition for letters of administration.

We are not unmindful of the critiques of civilists of a conflict and a lacuna in the law concerning the
bone of contention that is Article 992 of the Civil Code, beginning with the eminent Justice J.B.L. Reyes:
In the Spanish Civil Code of 1889 the right of representation was admitted only within the legitimate
family; so much so that Article 943 of that Code prescribed that an illegitimate child can not inherit ab
intestato from the legitimate children and relatives of his father and mother. The Civil Code of
the Philippines apparently adhered to this principle since it reproduced Article 943 of the Spanish Code
in its own Art. 992, but with fine inconsistency, in subsequent articles (990, 995 and 998) our Code
allows the hereditary portion of the illegitimate child to pass to his own descendants, whether
legitimate or illegitimate. So that while Art. 992 prevents the illegitimate issue of a legitimate child
from representing him in the intestate succession of the grandparent, the illegitimates of an
illegitimate child can now do so. This difference being indefensible and unwarranted, in the future
revision of the Civil Code we shall have to make a choice and decide either that the illegitimate issue
enjoys in all cases the right of representation, in which case Art. 992 must be suppressed; or
contrariwise maintain said article and modify Articles 995 and 998. The first solution would be more in
accord with an enlightened attitude vis--vis illegitimate children.[23]

Manresa explains the basis for the rules on intestate succession:

The law [of intestacy] is founded on the presumed will of the deceased Love, it is said, first descends,
then ascends, and, finally, spreads sideways. Thus, the law first calls the descendants, then the
ascendants, and finally the collaterals, always preferring those closer in degree to those of remoter
degrees, on the assumption that the deceased would have done so had he manifested his last will
Lastly, in default of anyone called to succession or bound to the decedent by ties of blood or affection,
it is in accordance with his presumed will that his property be given to charitable or educational
institutions, and thus contribute to the welfare of humanity. [24]

Indeed, the factual antecedents of this case accurately reflect the basis of intestate succession, i.e.,
love first descends, for the decedent, Cristina, did not distinguish between her legitimate and
illegitimate grandchildren. Neither did her husband, Federico, who, in fact, legally raised the status of
Emilio III from an illegitimate grandchild to that of a legitimate child. The peculiar circumstances of this
case, painstakingly pointed out by counsel for petitioner, overthrow the legal presumption in Article
992 of the Civil Code that there exist animosity and antagonism between legitimate and illegitimate
descendants of a deceased.

Nonetheless, it must be pointed out that judicial restraint impels us to refrain from making a final
declaration of heirship and distributing the presumptive shares of the parties in the estates of Cristina
and Federico, considering that the question on who will administer the properties of the long deceased
couple has yet to be settled.

Our holding in Capistrano v. Nadurata[25] on the same issue remains good law:

[T]he declaration of heirs made by the lower court is premature, although the evidence sufficiently
shows who are entitled to succeed the deceased. The estate had hardly been judicially opened, and
the proceeding has not as yet reached the stage of distribution of the estate which must come after
the inheritance is liquidated.

Section 1, Rule 90 of the Rules of Court does not depart from the foregoing admonition:

Sec. 1. When order for distribution of residue is made. x x x. If there is a controversy before the court
as to who are the lawful heirs of the deceased person or as to the distributive shares to which each
person is entitled under the law, the controversy shall be heard and decided as in ordinary cases.

No distribution shall be allowed until the payment of the obligations above mentioned has been made
or provided for, unless the distributees, or any of them, give a bond, in a sum to be fixed by the court,
conditioned for the payment of said obligations within such time as the court directs.

WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals in CA-G.R. CV No. 74949
is REVERSED and SET ASIDE. Letters of Administration over the estate of decedent Cristina
Aguinaldo-Suntay shall issue to both petitioner Emilio A.M. Suntay III and respondent Isabel CojuangcoSuntay upon payment by each of a bond to be set by the Regional Trial Court, Branch 78, Malolos,
Bulacan, in Special Proceeding Case No. 117-M-95. The Regional Trial Court, Branch 78, Malolos,
Bulacan is likewise directed to make a determination and to declare the heirs of decedent Cristina
Aguinaldo-Suntay according to the actual factual milieu as proven by the parties, and all other persons
with legal interest in the subject estate. It is further directed to settle the estate of decedent Cristina
Aguinaldo-Suntay with dispatch. No costs.
SO ORDERED.
Additional member in lieu of Associate Justice Jose C. Mendoza per Special Order No. 842 dated June
3, 2010.
[1]
Formerly Cardinal Rodrigo Borgia, before ascending to the religious title of Pope and assuming the
name Alexander VI.
[2]
The Papal Bull which drew a longitudinal line (one hundred leagues west of the Azores and Cape
Verde Islands) and bestowed all non-Christian lands west thereof to Spain, and east of the line
to Portugal.
[3]
In The Family, a book with a factual core on the Borgia family of 15 th Century Rome, Mario Puzo
recounts that the ostensibly fair and just papal ruling actually favored Spain and placed Portugal at a
disadvantage because papal intervention and arbitration of the matter was made at the behest of King
Ferdinand of Spain. More importantly, Pope Alexander VI was originally a Catalan who, at the start of
his career as a cleric in Italy, conveniently changed his name from the Spanish Borja to the Italian
Borgia to gain acceptance and credibility as an authentic Roman clergy.
[4]
Penned by Associate Justice Sesinando E. Villon, with Associate Justices Martin S. Villarama, Jr. (now a
member of this Court) and Noel G. Tijam, concurring; rollo, pp. 20-32.
[5]
Penned by Judge Gregorio S. Sampaga; rollo, pp. 35-60.
[6]
Rollo, p. 43.
[7]
Id. at 137-138.
[8]
Id. at 35.
[9]
Id. at 21-22.
[10]
Id. at 58.
[11]
Id. at 60.
[12]
Id. at 31-32.
[13]
Memorandum of petitioner; id. at 195.
[14]
Rollo, pp. 59-60.
*

Id. at 25-31.
Art. 992. An illegitimate child has no right to inherit ab intestato from the legitimate children and
relatives of his father or mother; nor shall such children or relatives inherit in the same manner from
the illegitimate child.
[17]
Sec.1. Who are incompetent to serve as executors or administrators. No person is competent to
serve as executor or administrator who:
(a) Is a minor;
(b) Is not a resident of the Philippines; and
(c) Is in the opinion of the court unfit to execute the duties of the trust by reason of drunkenness,
improvidence, or want of understanding or integrity, or by reason of conviction of an offense involving
moral turpitude.
[18]
Called as such because the law does not recognize the natural tie of blood and is based on the
presumed intervening antagonism and incompatibility between the legitimate and illegitimate family
of a deceased. See Diaz v. Intermediate Appellate Court, G.R. No. L-66574, June 17, 1987, 150 SCRA
645.
[19]
See Uy v. Court of Appeals, G.R. No. 167979, March 16, 2006, 484 SCRA 699; Gabriel v. Court
of Appeals, G.R. No. 101512, August 7, 1992, 212 SCRA 413; Capistrano v. Nadurata, 46 Phil. 726
(1922).
[20]
See Uy v. Court of Appeals, supra; Gabriel v. Court of Appeals, supra; Capistrano v. Nadurata, supra.
[21]
Supra note 19.
[22]
G.R. No. 155733, January 27, 2006, 480 SCRA 334, 360. (Citations omitted.)
[23]
Reflections on the Reform of Hereditary Succession, JOURNAL of the Integrated Bar of the
Philippines, First Quarter (1976), Vol. 4, No. 1, pp. 40-41; cited in Diaz v. Intermediate Appellate Court,
G.R. No. 66574, February 21, 1990, 182 SCRA 427, 434; and Diaz v. Intermediate Appellate Court,
supra note 18, at 651.
[24]
Cited in BALANE, Jottings and Jurisprudence (1998), p. 368.
[25]
Supra note at 19, at 728.
[15]
[16]