RAMON S. CHING AND PO WING PROPERTIES, G.R. No.

192828
INC.,

Petitioners,
Present:

CARPIO, J.,
- versus -
Chairperson,

BRION,

PEREZ,
HON. JANSEN R. RODRIGUEZ, in his capacity
as Presiding Judge of the Regional Trial Court ARANAL-SERENO, and
of Manila, Branch 6, JOSEPH CHENG, JAIME REYES, JJ.
CHENG, MERCEDES IGNE AND LUCINA
SANTOS, substituted by her son, EDUARDO S.
BALAJADIA,

Respondents

Promulgated:

November 28, 2011

x------------------------------------------------------------------------------------x

RESOLUTION

REYES, J.:

The Case

Before us is a Petition for Review on Certiorari[1] under Rule 45 of the Rules of Court
assailing the December 14, 2009 Decision[2] and July 8, 2010 Resolution[3] of the
Court of Appeals (CA) in CA-G.R. SP No. 99856. The dispositive portion of the assailed
Decision reads:

WHEREFORE, in view of all the foregoing premises, judgment is hereby rendered by

us DENYING the petition filed in this case and AFFIRMING the assailed Orders dated
March 15, 2007 and May 16, 2007 issued by the respondent Judge of the Regional Trial
Court (RTC), Branch 6, in Manila in Civil Case No. 02-105251.[4]

The assailed Resolution denied the petitioners' Motion for Reconsideration.

The Factual Antecedents

Sometime between November 25, 2002 and December 3, 2002,[5] the respondents
filed a Complaint[6] against the petitioners and Stronghold Insurance Company, Global
Business Bank, Inc. (formerly PhilBank), Elena Tiu Del Pilar, Asia Atlantic Resources
Ventures, Inc., Registers of Deeds of Manila and Malabon, and all persons claiming
rights or titles from Ramon Ching (Ramon) and his successors-in-interest.

The Complaint, captioned as one for "Disinheritance, Declaration of Nullity of

Agreement and Waiver, Affidavit of Extra-Judicial Settlement, Deed of Absolute Sale,
Transfer Certificates of Title with Prayer for [the] Issuance of [a] Temporary Restraining
Order and [a] Writ of Preliminary Injunction," was docketed as Civil Case No. 02-105251
and raffled to Branch 8 of the Regional Trial Court of Manila (RTC).

In the Complaint, the respondents alleged the following as causes of action:

First Cause of Action. They are the heirs of Lim San, also known as Antonio Ching /
Tiong Cheng / Ching Cheng Suy (Antonio). Respondents Joseph Cheng (Joseph) and
Jaime Cheng (Jaime) are allegedly the children of Antonio with his common-law wife,
respondent Mercedes Igne (Mercedes). Respondent Lucina Santos (Lucina) claimed that
she was also a common-law wife of Antonio. The respondents averred that Ramon
misrepresented himself as Antonio's and Lucina's son when in truth and in fact, he was
adopted and his birth certificate was merely simulated. On July 18, 1996, Antonio died
of a stab wound. Police investigators identified Ramon as the prime suspect and he now
stands as the lone accused in a criminal case for murder filed against him. Warrants of
arrest issued against him have remained unserved as he is at large. From the foregoing
circumstances and upon the authority of Article 919[7] of the New Civil Code (NCC), the
respondents concluded that Ramon can be legally disinherited, hence, prohibited from
receiving any share from the estate of Antonio.

Second Cause of Action. On August 26, 1996, prior to the conclusion of the police
investigations tagging Ramon as the prime suspect in the murder of Antonio, the
former made an inventory of the latter's estate. Ramon misrepresented that there were
only six real estate properties left by Antonio. The respondents alleged that Ramon had
illegally transferred to his name the titles to the said properties. Further, there are two
other parcels of land, cash and jewelries, plus properties in Hongkong, which were in
Ramon's possession.

Third Cause of Action. Mercedes, being of low educational attainment, was sweet-talked
by Ramon into surrendering to him a Global Business Bank, Inc. (Global Bank)
Certificate of Time Deposit of P4,000,000.00 in the name of Antonio, and the
certificates of title covering two condominium units in Binondo which were purchased
by Antonio using his own money but which were registered in Ramon's name. Ramon
also fraudulently misrepresented to Joseph, Jaime and Mercedes that they will promptly
receive their complete shares, exclusive of the stocks in Po Wing Properties, Inc. (Po
Wing), from the estate of Antonio. Exerting undue influence, Ramon had convinced
them to execute an Agreement[8] and a Waiver[9] on August 20, 1996. The terms and
conditions stipulated in the Agreement and Waiver, specifically, on the payment by
Ramon to Joseph, Jaime and Mercedes of the amount of P22,000,000.00, were not
complied with. Further, Lucina was not informed of the execution of the said
instruments and had not received any amount from Ramon. Hence, the instruments are
null and void.

Fourth Cause of Action. Antonio's 40,000 shares in Po Wing, which constitute 60% of the
latter's total capital stock, were illegally transferred by Ramon to his own name through
a forged document of sale executed after Antonio died. Po Wing owns a ten-storey
building in Binondo. Ramon's claim that he bought the stocks from Antonio before the
latter died is baseless. Further, Lucina's shares in Po Wing had also banished into thin
air through Ramon's machinations.

Fifth Cause of Action. On October 29, 1996, Ramon executed an Affidavit of Extra-
Judicial Settlement of Estate[10] adjudicating solely to himself Antonio's entire estate to
the prejudice of the respondents. By virtue of the said instrument, new Transfer
Certificates of Title (TCTs) covering eight real properties owned by Antonio were issued
in Ramon's name. Relative to the Po Wing shares, the Register of Deeds of Manila had
required Ramon to post a Surety Bond conditioned to answer for whatever claims which
may eventually surface in connection with the said stocks. Co-defendant Stronghold
Insurance Company issued the bond in Ramon's behalf.

Sixth Cause of Action. Ramon sold Antonio's two parcels of land in Navotas to co-
defendant Asia Atlantic Business Ventures, Inc. Another parcel of land, which was part
of Antonio's estate, was sold by Ramon to co-defendant Elena Tiu Del Pilar at an
unreasonably low price. By reason of Ramon's lack of authority to dispose of any part of
Antonio's estate, the conveyances are null and void ab initio.

Since Ramon is at large, his wife, Belen Dy Tan Ching, now manages Antonio's estate.
She has no intent to convey to the respondents their shares in the estate of Antonio.

The respondents thus prayed for the following in their Complaint:

1. x x x a temporary restraining order be issued restraining the defendant RAMON

CHING and/or his attorney-in-fact Belen Dy Tan Ching from disposing, selling or
alienating any property that belongs to the estate of the deceased ANTONIO CHING;

xxx

4. x x x

a.) Declaring that the defendant RAMON CHING who murdered his father ANTONIO
CHING disqualified as heir and from inheriting to (sic) the estate of his father;

b.) Declaring the nullity of the defendant RAMON CHING transfer (sic) of the six [6]
parcels of land from the name of his father ANTONIO CHING to his name covered by
TCT No. x x x

c.) Declaring the nullity of the AGREEMENT and WAIVER executed by plaintiffs x x x in
favor of x x x RAMON CHING for being patently immoral, invalid, illegal, simulated and
(sic) sham;
d.) Declaring the nullity of the transfer of the shares of stocks at (sic) PO WING from the
names of ANTONIO CHING and LUCINA SANTOS to the defendant ANTONIOCHING's
name for having been illegally procured through the falsification of their signatures in
the document purporting the transfer thereof;

e.) Declaring the nullity and to have no force and effect the AFFIDAVIT OF SETTLEMENT
OF ESTATE executed by x x x RAMON CHING for being contrary to law and existing
jurisprudence;

f.) Declaring the nullity of the DEED OF SALES (sic) executed by x x x RAMON CHING (i)
over two (2) parcels of land x x x to defendant ASIA ATLANTIC BUSINESS VENTURES,
Inc.; and (ii) one (1) parcel of land x x x sold to x x x ELENA TIU DEL PILAR for having
illegally procured the ownership and titles of the above properties;

x x x.[11]

The petitioners filed with the RTC a Motion to Dismiss[12] alleging forum shopping, litis
pendentia, res judicata and the respondents as not being the real parties in interest.

On July 30, 2004, the RTC issued an Omnibus Order[13] denying the petitioners' Motion
to Dismiss.

The respondents filed an Amended Complaint[14] dated April 7, 2005 impleading

Metrobank as the successor-in-interest of co-defendant Global Bank. The Amended
Complaint also added a seventh cause of action relative to the existence of a
Certificate of Premium Plus Acquisition (CPPA) in the amount of P4,000,000.00 originally
issued by PhilBank to Antonio. The respondents prayed that they be declared as the
rightful owners of the CPPA and that it be immediately released to them. Alternatively,
the respondents prayed for the issuance of a hold order relative to the CPPA to preserve
it during the pendency of the case.

On April 22, 2005, the petitioners filed their Consolidated Answer with Counterclaim.
[15]

On October 28, 2005, the RTC issued an Order[16] admitting the respondents'
Amended Complaint. The RTC stressed that Metrobank had already filed Manifestations
admitting that as successor-in-interest of Global Bank, it now possesses custody of
Antonio's deposits. Metrobank expressed willingness to abide by any court order as
regards the disposition of Antonio's deposits. The petitioners' Motion for
Reconsideration filed to assail the aforecited Order was denied by the RTC on May 3,
2006.

On May 29, 2006, the petitioners filed their Consolidated Answer with Counterclaim to
the respondents' Amended Complaint.

On August 11, 2006, the RTC issued a pre-trial order.[17]

On January 18, 2007, the petitioners filed a Motion to Dismiss[18] the respondents'
Amended Complaint on the alleged ground of the RTC's lack of jurisdiction over the
subject matter of the Complaint. The petitioners argued that since the
Amended Complaint sought the release of the CPPA to the respondents, the latter's
declaration as heirs of Antonio, and the propriety of Ramon's disinheritance, the suit
partakes of the nature of a special proceeding and not an ordinary action for
declaration of nullity. Hence, jurisdiction pertains to a probate or intestate court and not
to the RTC acting as an ordinary court.

On March 15, 2007, the RTC issued an Order[19] denying the petitioners' Motion to
Dismiss on grounds:

In the case at bar, an examination of the Complaint would disclose that the action
delves mainly on the question of ownership of the properties described in the
Complaint which can be properly settled in an ordinary civil action. And as pointed out
by the defendants, the action seeks to declare the nullity of the Agreement, Waiver,
Affidavit of Extra-Judicial Settlement, Deed of Absolute Sale, Transfer Certificates of
Title, which were all allegedly executed by defendant Ramon Ching to defraud the
plaintiffs. The relief of establishing the status of the plaintiffs which could have
translated this action into a special proceeding was nowhere stated in the Amended
Complaint. With regard [to] the prayer to declare the plaintiffs as the rightful owner[s]
of the CPPA and that the same be immediately released to them, in itself poses an issue
of ownership which must be proved by plaintiffs by substantial evidence.And as
emphasized by the plaintiffs, the Amended Complaint was intended to implead
Metrobank as a co-defendant.

As regards the issue of disinheritance, the court notes that during the Pre-trial of this
case, one of the issues raised by the defendants Ramon Ching and Po Wing Properties
is: Whether or not there can be disinheritance in intestate succession? Whether or not
defendant Ramon Ching can be legally disinherited from the estate of his father? To the
mind of the Court, the issue of disinheritance, which is one of the causes of action in
the Complaint, can be fully settled after a trial on the merits. And at this stage, it has
not been sufficiently established whether or not there is a will.[20] (Emphasis supplied.

The above Order, and a subsequent Order dated May 16, 2007 denying the petitioners'
Motion for Reconsideration, became the subjects of a petition for certiorari filed with
the CA. The petition, docketed as CA-G.R. SP No. 99856, raised the issue of whether or
not the RTC gravely abused its discretion when it denied the petitioners' Motion to
Dismiss despite the fact that the Amended Complaint sought to establish the status or
rights of the respondents which subjects are within the ambit of a special proceeding.

On December 14, 2009, the CA rendered the now assailed Decision[21] denying the
petition for certiorari on grounds:

Our in-depth assessment of the condensed allegations supporting the causes of action
of the amended complaint induced us to infer that nothing in the said complaint shows
that the action of the private respondents should be threshed out in a special
proceeding, it appearing that their allegations were substantially for the enforcement of
their rights against the alleged fraudulent acts committed by the petitioner Ramon
Ching. The private respondents also instituted the said amended complaint in order to
protect them from the consequence of the fraudulent acts of Ramon Ching by seeking
to disqualify Ramon Ching from inheriting from Antonio Ching as well as to enjoin him
from disposing or alienating the subject properties, including the P4 Million deposit with
Metrobank. The intestate or probate court has no jurisdiction to adjudicate such issues,
which must be submitted to the court in the exercise of its general jurisdiction as a
regional trial court. Furthermore, we agree with the trial court that the probate court
could not take cognizance of the prayer to disinherit Ramon Ching, given the
undisputed fact that there was no will to be contested in a probate court.

The petition at bench apparently cavils the subject amended complaint and
complicates the issue of jurisdiction by reiterating the grounds or defenses set up in the
petitioners' earlier pleadings. Notwithstanding, the jurisdiction of the court over the
subject matter is determined by the allegations of the complaint without regard to
whether or not the private respondents (plaintiffs) are entitled to recover upon all or
some of the causes of action asserted therein. In this regard, the jurisdiction of the
court does not depend upon the defenses pleaded in the answer or in the motion to
dismiss, lest the question of jurisdiction would almost entirely depend upon the
petitioners (defendants).[22] Hence, we focus our resolution on the issue of jurisdiction
on the allegations in the amended complaint and not on the defenses pleaded in the
motion to dismiss or in the subsequent pleadings of the petitioners.

In fine, under the circumstances of the present case, there being no compelling reason
to still subject the action of the petitioners in a special proceeding since the nullification
of the subject documents could be achieved in the civil case, the lower court should
proceed to evaluate the evidence of the parties and render a decision thereon upon the
issues that it defined during the pre-trial in Civil Case No. 02-105251.[23] (emphasis
supplied)

The petitioners' Motion for Reconsideration was denied by the CA through a

Resolution[24] issued on July 8, 2010.

The Issue

The instant Petition for Review on Certiorari[25] is anchored on the issue of:

WHETHER OR NOT THE RTC SHOULD HAVE GRANTED THE MOTION TO DISMISS FILED BY
THE PETITIONERS ON THE ALLEGED GROUND OF THE RTC'S LACK OF JURISDICTION
OVER THE SUBJECT MATTER OF THE AMENDED COMPLAINT, TO WIT, (A) FILIATIONS
WITH ANTONIO OF RAMON, JAIME AND JOSEPH; (B) RIGHTS OF COMMON-LAW WIVES,
LUCINA AND MERCEDES, TO BE CONSIDERED AS HEIRS OF ANTONIO; (C)
DETERMINATION OF THE EXTENT OF ANTONIO'S ESTATE; AND (D) OTHER MATTERS
WHICH CAN ONLY BE RESOLVED IN A SPECIAL PROCEEDING AND NOT IN AN ORDINARY
CIVIL ACTION.

The petitioners argue that only a probate court has the authority to determine (a) who
are the heirs of a decedent; (b) the validity of a waiver of hereditary rights; (c) the
status of each heir; and (d) whether the property in the inventory is conjugal or the
exclusive property of the deceased spouse.[26] Further, the extent of Antonio's estate,
the status of the contending parties and the respondents' alleged entitlement as heirs
to receive the proceeds of Antonio's CPPA now in Metrobank's custody are matters
which are more appropriately the subjects of a special proceeding and not of an
ordinary civil action.
 The respondents opposed[27] the instant petition claiming that the petitioners are
engaged in forum shopping. Specifically, G.R. Nos. 175507[28] and 183840,[29] both
involving the contending parties in the instant petition were filed by the petitioners and
are currently pending before this Court. Further, in Mendoza v. Hon. Teh,[30] the SC
declared that whether a particular matter should be resolved by the RTC in the exercise
of its general jurisdiction or its limited probate jurisdiction, is not a jurisdictional issue
but a mere question of procedure. Besides, the petitioners, having validly submitted
themselves to the jurisdiction of the RTC and having actively participated in the trial of
the case, are already estopped from challenging the RTC's jurisdiction over the
respondents' Complaint and Amended Complaint.[31]

The Court's Ruling

We resolve to deny the instant petition.

The petitioners failed to comply with a lawful order of this Court directing them to file
their reply to the respondents' Comment/Opposition to the instant Petition. While the
prescribed period to comply expired on March 15, 2011, the petitioners filed their
Manifestation that they will no longer file a reply only on October 10, 2011 or after the
lapse of almost seven months.

Further, no reversible errors were committed by the RTC and the CA when they both
ruled that the denial of the petitioners' second motion to dismiss Civil Case No. 02-
105251 was proper.

Even without delving into the procedural allegations of the respondents that the
petitioners engaged in forum shopping and are already estopped from questioning the
RTC's jurisdiction after having validly submitted to it when the latter participated in the
proceedings, the denial of the instant Petition is still in order. Although the respondents'
Complaint and Amended Complaint sought, among others, the disinheritance of Ramon
and the release in favor of the respondents of the CPPA now under Metrobank's
custody, Civil Case No. 02-105251 remains to be an ordinary civil action, and not a
special proceeding pertaining to a settlement court.

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.[32] A special proceeding is a remedy by which a party seeks
to establish a status, a right, or a particular fact.[33] It is distinguished from an ordinary
civil action where a party sues another for the enforcement or protection of a right, or
the prevention or redress of a wrong.[34] To initiate a special proceeding, a petition and
not a complaint should be filed.

Under Article 916 of the NCC, disinheritance can be effected only through a will wherein
the legal cause therefor shall be specified. This Court agrees with the RTC and the CA
that while the respondents in their Complaint and Amended Complaint sought the
disinheritance of Ramon, no will or any instrument supposedly effecting the disposition
of Antonio's estate was ever mentioned. Hence, despite the prayer for Ramon's
disinheritance, Civil Case No. 02-105251 does not partake of the nature of a special
proceeding and does not call for the probate court's exercise of its limited jurisdiction.

The petitioners also argue that the prayers in the Amended Complaint, seeking the
release in favor of the respondents of the CPPA under Metrobank's custody and the
nullification of the instruments subject of the complaint, necessarily require the
determination of the respondents' status as Antonio's heirs.

It bears stressing that what the respondents prayed for was that they be declared
as the rightful owners of the CPPA which was in Mercedes' possession prior to the
execution of the Agreement and Waiver. The respondents also prayed for the
alternative relief of securing the issuance by the RTC of a hold order relative to the
CPPA to preserve Antonio's deposits with Metrobank during the pendency of the case. It
can thus be said that the respondents' prayer relative to the CPPA was premised on
Mercedes' prior possession of and their alleged collective ownership of the same, and
not on the declaration of their status as Antonio's heirs. Further, it also has to be
emphasized that the respondents were parties to the execution of the
Agreement[35] and Waiver[36] prayed to be nullified. Hence, even without the
necessity of being declared as heirs of Antonio, the respondents have the standing to
seek for the nullification of the instruments in the light of their claims that there was no
consideration for their execution, and that Ramon exercised undue influence and
committed fraud against them. Consequently, the respondents then claimed that the
Affidavit of Extra-Judicial Settlement of Antonios estate executed by Ramon, and the
TCTs issued upon the authority of the said affidavit, are null and void as well. Ramon's
averment that a resolution of the issues raised shall first require a declaration of the
respondents' status as heirs is a mere defense which is not determinative of which
court shall properly exercise jurisdiction.

In Marjorie Cadimas v. Marites Carrion and Gemma Hugo,[37] the Court declared:

It is an elementary rule of procedural law that jurisdiction of the court over the subject
matter is determined by the allegations of the complaint irrespective of whether or not
the plaintiff is entitled to recover upon all or some of the claims asserted therein. As a
necessary consequence, the jurisdiction of the court cannot be made to depend upon
the defenses set up in the answer or upon the motion to dismiss, for otherwise, the
question of jurisdiction would almost entirely depend upon the defendant. What
determines the jurisdiction of the court is the nature of the action pleaded as appearing
from the allegations in the complaint. The averments in the complaint and the
character of the relief sought are the matters to be consulted.

In sum, this Court agrees with the CA that the nullification of the documents subject of
Civil Case No. 02-105251 could be achieved in an ordinary civil action, which in this
specific case was instituted to protect the respondents from the supposedly fraudulent
acts of Ramon. In the event that the RTC will find grounds to grant the reliefs prayed for
by the respondents, the only consequence will be the reversion of the properties
subject of the dispute to the estate of Antonio. Civil Case No. 02-105251 was not
instituted to conclusively resolve the issues relating to the administration, liquidation
and distribution of Antonio's estate, hence, not the proper subject of a special
proceeding for the settlement of the estate of a deceased person under Rules 73-91
of the Rules of Court.

The respondents' resort to an ordinary civil action before the RTC may not be
strategically sound, because a settlement proceeding should thereafter still follow, if
their intent is to recover from Ramon the properties alleged to have been illegally
transferred in his name. Be that as it may, the RTC, in the exercise of its general
jurisdiction, cannot be restrained from taking cognizance of respondents' Complaint
and Amended Complaint as the issues raised and the prayers indicated therein are
matters which need not be threshed out in a special proceeding.

WHEREFORE, the instant petition is DENIED. The petitioners' (a) Opposition to the
respondents' Motion to Admit Substitution of Party;[38] and (b)
Manifestation[39]through counsel that they will no longer file a reply to the
respondents' Comment/Opposition to the instant petition are NOTED.

SO ORDERED.
G.R. No. L-18799 March 26, 1965

HON. JOSE F. FERNANDEZ, Judge of Court of First Instance, Negros Occidental,

ASUNCION MARAVILLA, ET AL., petitioners,
vs.
HERMINIO MARAVILLA, respondent.

Jose Gutierrez David for petitioners.

Paredes, Poblador, Cruz and Nazareno for respondent.

RE S O L U T I O N*

BARRERA, J.:

The present case concerns merely a question of the propriety of the appointment of
Eliezar Lopez as co-special administrator of the estate left by the deceased, Digna
Maravilla. In the Court of First Instance of Negros Occidental where this case originated,
the surviving spouse, Herminio Maravilla, was appointed special administrator pending
the appointment of a regular administrator. After the disallowance of the probate of the
will by the trial court wherein Herminio Maravilla was named as executor, some of the
intestate heirs of the deceased petitioned the trial court to appoint Eliezar Lopez as
special co-administrator to protect their interests during the pendency of the appeal
taken by Herminio Maravilla against the disallowance of the will. The trial court granted
the petition and extended an appointment in favor of Eliezar Lopez as special co-
administrator. Herminio Maravilla, questioning the propriety and necessity for the
appointment of a special co-administrator, filed a petition for certiorari in the Court of
Appeals. Lopez answered the petition contending that the Court of Appeals cannot take
cognizance of the case as it is not in aid of its appellate jurisdiction inasmuch as the
properties involved in the administration are worth more than P200,000.00. The Court
of Appeals, acting adversely on the contention of Lopez, rendered a decision setting
aside the appointment of Lopez as co-special administrator. Lopez came to this court
for relief. This Court, in its original decision, ruled that the question involved being one
of administration of the entire estate valued at more than P200,000.00 the matter
came within its exclusive appellate jurisdiction. Nevertheless, this Court exercising its
own jurisdiction, set aside the order of the trial court appointing Lopez as co-special,
administrator. Lopez filed a motion for reconsideration and this court, on May 22, 1964,
denied the same. Subsequently, a second motion for reconsideration was filed
predicated on the contention that it having, been found that the Court of Appeals had
no appellate jurisdiction over the case, the findings contained in its decision could not
be the basis for the setting aside of the order of the trial court. On December 23, 1964,
this Court issued a resolution to the following effect:

Considering the second motion for reconsideration filed by the petitioners, the
respondent's opposition thereto, and the petitioners' rejoinder, and considering further
that under the appealed order of the lower court, the appointment of Eliezar Lopez as
special co-administrator would bring no material damage to respondent special
administrator Herminio Maravilla, the decision of this Court is hereby amended, to
sustain the aforesaid order, pending final determination of the main case (G.R. No. L-
23225) or until a different set of circumstances than those alleged by petitioners as
now prevailing, would justify another action by this Court in the, main case.

SO ORDERED.

Maravilla in turn filed a motion for reconsideration of this resolution, and for the first
time represented to this Court that in the appointment of Eliezar Lopez, the lower court
acted arbitrarily and in abuse of its discretion in not affording Maravilla the opportunity
to be heard and to present evidence to show why Eliezar Lopez should not be
appointed as co-special administrator. In view of this Last motion for reconsideration,
the Court required Eliezar Lopez to present his answer and later set the incident for
hearing. During the oral argument, reference was made to the manner in which the
lower court proceeded in the matter of the appointment of Eliezar Lopez. Maravilla's
counsel vehemently contended that the lower court acted hastily and harshly in
depriving counsel full opportunity to present his side of the case. He also called
attention to an order of the lower court dated February 15, 1965 directing Eliezar
Lopez:

(1) to file a supplemental inventory within a period of thirty (30) days from February 15,
1965 to expire on March 15, 1965, supplying the alleged omission committed by
Maravilla in the inventory that was filed by him in the proceedings;

(2) to sue for the annulment of all contracts that are allegedly illegal and invalid
entered into by Maravilla during or before his administration; and

(3) to receive free quedans from the Hawaiian Philippines, Inc. in order to be able to
pay the disbursements due and to deposit the balance thereof.

It being apparent that confusion will result if this order is implemented thus defeating
the purpose of co-administration which presupposes joint and coordinative action, this
Court issued a temporary restraining order enjoining the implementation of said order
pending the resolution of this incident by this Court.1wph1.t

During the hearing, counsel for Maravilla offered to withdraw from the temporary
administration of the estate in favor of an impartial third party if only for the sake of
saving the entire estate from the confusion which will necessarily result if the present
hostile special co-administrators are permitted to remain.

Considering all circumstances of this case, and in view of the resolution of this Court
dated December 28, 1964 sustaining the appointment of Eliezar Lopez as co-special
administrator only "pending final determination of the main case, G.R. No. L-23225,
or until a different set of circumstances than those alleged by petitioners as now
prevailing, would justify another action by the court," it would seem justifiable to
reconsider the entire matter in the face of the subsequent developments that have
supervened. However, the matter of appointment of co-special administrator being
primarily within the sound discretion of the trial court, we deem it proper to remand this
case to the trial court for further proceedings, with the suggestion that due
consideration be given to the offer of Maravilla to withdraw as special administrator in
favor of an impartial third party, which would seem to be a fair and just solution of the
controversy and would amply protect the interest of both parties.

WHEREFORE, this case is hereby ordered remanded to the court of origin for further
proceedings in consonance with the views herein expressed. So ordered.

G.R. No. 133743 February 6, 2007

EDGAR SAN LUIS, Petitioner,
vs.
FELICIDAD SAN LUIS, Respondent.

x ---------------------------------------------------- x

G.R. No. 134029 February 6, 2007

RODOLFO SAN LUIS, Petitioner,

vs.
FELICIDAD SAGALONGOS alias FELICIDAD SAN LUIS, Respondent.

DECISION

YNARES-SANTIAGO, J.:

Before us are consolidated petitions for review assailing the February 4, 1998
Decision 1 of the Court of Appeals in CA-G.R. CV No. 52647, which reversed and set
aside the September 12, 1995 2 and January 31, 1996 3Resolutions of the Regional Trial
Court of Makati City, Branch 134 in SP. Proc. No. M-3708; and its May 15, 1998
Resolution 4 denying petitioners motion for reconsideration.

The instant case involves the settlement of the estate of Felicisimo T. San Luis
(Felicisimo), who was the former governor of the Province of Laguna. During his
lifetime, Felicisimo contracted three marriages. His first marriage was with Virginia Sulit
on March 17, 1942 out of which were born six children, namely: Rodolfo, Mila, Edgar,
Linda, Emilita and Manuel. On August 11, 1963, Virginia predeceased Felicisimo.

Five years later, on May 1, 1968, Felicisimo married Merry Lee Corwin, with whom he
had a son, Tobias. However, on October 15, 1971, Merry Lee, an American citizen, filed
a Complaint for Divorce 5 before the Family Court of the First Circuit, State of Hawaii,
United States of America (U.S.A.), which issued a Decree Granting Absolute Divorce and
Awarding Child Custody on December 14, 1973. 6

On June 20, 1974, Felicisimo married respondent Felicidad San Luis, then surnamed
Sagalongos, before Rev. Fr. William Meyer, Minister of the United Presbyterian at
Wilshire Boulevard, Los Angeles, California, U.S.A. 7 He had no children with respondent
but lived with her for 18 years from the time of their marriage up to his death on
December 18, 1992.

Thereafter, respondent sought the dissolution of their conjugal partnership assets and
the settlement of Felicisimos estate. On December 17, 1993, she filed a petition for
letters of administration 8 before the Regional Trial Court of Makati City, docketed as SP.
Proc. No. M-3708 which was raffled to Branch 146 thereof.

Respondent alleged that she is the widow of Felicisimo; that, at the time of his death,
the decedent was residing at 100 San Juanico Street, New Alabang Village, Alabang,
Metro Manila; that the decedents surviving heirs are respondent as legal spouse, his
six children by his first marriage, and son by his second marriage; that the decedent
left real properties, both conjugal and exclusive, valued at P30,304,178.00 more or less;
that the decedent does not have any unpaid debts. Respondent prayed that the
conjugal partnership assets be liquidated and that letters of administration be issued to
her.

On February 4, 1994, petitioner Rodolfo San Luis, one of the children of Felicisimo by his
first marriage, filed a motion to dismiss 9 on the grounds of improper venue and failure
to state a cause of action. Rodolfo claimed that the petition for letters of administration
should have been filed in the Province of Laguna because this was Felicisimos place of
residence prior to his death. He further claimed that respondent has no legal
personality to file the petition because she was only a mistress of Felicisimo since the
latter, at the time of his death, was still legally married to Merry Lee.

On February 15, 1994, Linda invoked the same grounds and joined her brother Rodolfo
in seeking the dismissal10 of the petition. On February 28, 1994, the trial court issued
an Order 11 denying the two motions to dismiss.

Unaware of the denial of the motions to dismiss, respondent filed on March 5, 1994 her
opposition 12 thereto. She submitted documentary evidence showing that while
Felicisimo exercised the powers of his public office in Laguna, he regularly went home
to their house in New Alabang Village, Alabang, Metro Manila which they bought
sometime in 1982. Further, she presented the decree of absolute divorce issued by the
Family Court of the First Circuit, State of Hawaii to prove that the marriage of Felicisimo
to Merry Lee had already been dissolved. Thus, she claimed that Felicisimo had the
legal capacity to marry her by virtue of paragraph 2, 13 Article 26 of the Family Code
and the doctrine laid down in Van Dorn v. Romillo, Jr. 14

Thereafter, Linda, Rodolfo and herein petitioner Edgar San Luis, separately filed
motions for reconsideration from the Order denying their motions to dismiss. 15 They
asserted that paragraph 2, Article 26 of the Family Code cannot be given retroactive
effect to validate respondents bigamous marriage with Felicisimo because this would
impair vested rights in derogation of Article 256 16 of the Family Code.

On April 21, 1994, Mila, another daughter of Felicisimo from his first marriage, filed a
motion to disqualify Acting Presiding Judge Anthony E. Santos from hearing the case.

On October 24, 1994, the trial court issued an Order 17 denying the motions for
reconsideration. It ruled that respondent, as widow of the decedent, possessed the
legal standing to file the petition and that venue was properly laid. Meanwhile, the
motion for disqualification was deemed moot and academic 18 because then Acting
Presiding Judge Santos was substituted by Judge Salvador S. Tensuan pending the
resolution of said motion.

Mila filed a motion for inhibition 19 against Judge Tensuan on November 16, 1994. On
even date, Edgar also filed a motion for reconsideration 20 from the Order denying
their motion for reconsideration arguing that it does not state the facts and law on
which it was based.

On November 25, 1994, Judge Tensuan issued an Order 21 granting the motion for
inhibition. The case was re-raffled to Branch 134 presided by Judge Paul T. Arcangel.
On April 24, 1995, 22 the trial court required the parties to submit their respective
position papers on the twin issues of venue and legal capacity of respondent to file the
petition. On May 5, 1995, Edgar manifested 23 that he is adopting the arguments and
evidence set forth in his previous motion for reconsideration as his position paper.
Respondent and Rodolfo filed their position papers on June 14, 24 and June
20, 25 1995, respectively.

On September 12, 1995, the trial court dismissed the petition for letters of
administration. It held that, at the time of his death, Felicisimo was the duly elected
governor and a resident of the Province of Laguna. Hence, the petition should have
been filed in Sta. Cruz, Laguna and not in Makati City. It also ruled that respondent was
without legal capacity to file the petition for letters of administration because her
marriage with Felicisimo was bigamous, thus, void ab initio. It found that the decree of
absolute divorce dissolving Felicisimos marriage to Merry Lee was not valid in the
Philippines and did not bind Felicisimo who was a Filipino citizen. It also ruled that
paragraph 2, Article 26 of the Family Code cannot be retroactively applied because it
would impair the vested rights of Felicisimos legitimate children.

Respondent moved for reconsideration 26 and for the disqualification 27 of Judge

Arcangel but said motions were denied. 28

Respondent appealed to the Court of Appeals which reversed and set aside the orders
of the trial court in its assailed Decision dated February 4, 1998, the dispositive portion
of which states:

WHEREFORE, the Orders dated September 12, 1995 and January 31, 1996 are hereby
REVERSED and SET ASIDE; the Orders dated February 28 and October 24, 1994 are
REINSTATED; and the records of the case is REMANDED to the trial court for further
proceedings. 29

The appellante court ruled that under Section 1, Rule 73 of the Rules of Court, the term
"place of residence" of the decedent, for purposes of fixing the venue of the settlement
of his estate, refers to the personal, actual or physical habitation, or actual residence or
place of abode of a person as distinguished from legal residence or domicile. It noted
that although Felicisimo discharged his functions as governor in Laguna, he actually
resided in Alabang, Muntinlupa. Thus, the petition for letters of administration was
properly filed in Makati City.

The Court of Appeals also held that Felicisimo had legal capacity to marry respondent
by virtue of paragraph 2, Article 26 of the Family Code and the rulings in Van Dorn v.
Romillo, Jr. 30 and Pilapil v. Ibay-Somera. 31 It found that the marriage between
Felicisimo and Merry Lee was validly dissolved by virtue of the decree of absolute
divorce issued by the Family Court of the First Circuit, State of Hawaii. As a result, under
paragraph 2, Article 26, Felicisimo was capacitated to contract a subsequent marriage
with respondent. Thus

With the well-known rule express mandate of paragraph 2, Article 26, of the Family
Code of the Philippines, the doctrines in Van Dorn, Pilapil, and the reason and
philosophy behind the enactment of E.O. No. 227, there is no justiciable reason to
sustain the individual view sweeping statement of Judge Arc[h]angel, that "Article
26, par. 2 of the Family Code, contravenes the basic policy of our state against divorce
in any form whatsoever." Indeed, courts cannot deny what the law grants. All that the
courts should do is to give force and effect to the express mandate of the law. The
foreign divorce having been obtained by the Foreigner on December 14, 1992,32 the
Filipino divorcee, "shall x x x have capacity to remarry under Philippine laws". For this
reason, the marriage between the deceased and petitioner should not be denominated
as "a bigamous marriage.

Therefore, under Article 130 of the Family Code, the petitioner as the surviving spouse
can institute the judicial proceeding for the settlement of the estate of the deceased. x
x x 33

Edgar, Linda, and Rodolfo filed separate motions for reconsideration 34 which were
denied by the Court of Appeals.

On July 2, 1998, Edgar appealed to this Court via the instant petition for review on
certiorari. 35 Rodolfo later filed a manifestation and motion to adopt the said petition
which was granted. 36

In the instant consolidated petitions, Edgar and Rodolfo insist that the venue of the
subject petition for letters of administration was improperly laid because at the time of
his death, Felicisimo was a resident of Sta. Cruz, Laguna. They contend that pursuant to
our rulings in Nuval v. Guray 37 and Romualdez v. RTC, Br. 7, Tacloban
City, 38 "residence" is synonymous with "domicile" which denotes a fixed permanent
residence to which when absent, one intends to return. They claim that a person can
only have one domicile at any given time. Since Felicisimo never changed his domicile,
the petition for letters of administration should have been filed in Sta. Cruz, Laguna.

Petitioners also contend that respondents marriage to Felicisimo was void and
bigamous because it was performed during the subsistence of the latters marriage to
Merry Lee. They argue that paragraph 2, Article 26 cannot be retroactively applied
because it would impair vested rights and ratify the void bigamous marriage. As such,
respondent cannot be considered the surviving wife of Felicisimo; hence, she has no
legal capacity to file the petition for letters of administration.

The issues for resolution: (1) whether venue was properly laid, and (2) whether
respondent has legal capacity to file the subject petition for letters of administration.

The petition lacks merit.

Under Section 1, 39 Rule 73 of the Rules of Court, the petition for letters of
administration of the estate of Felicisimo should be filed in the Regional Trial Court of
the province "in which he resides at the time of his death." In the case of Garcia Fule v.
Court of Appeals, 40 we laid down the doctrinal rule for determining the residence as
contradistinguished from domicile of the decedent for purposes of fixing the venue of
the settlement of his estate:

[T]he 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. 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." 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. 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 ones domicile. No particular length of time
of residence is required though; however, the residence must be more than
temporary. 41 (Emphasis supplied)

It is incorrect for petitioners to argue that "residence," for purposes of fixing the venue
of the settlement of the estate of Felicisimo, is synonymous with "domicile." The rulings
in Nuval and Romualdez are inapplicable to the instant case because they involve
election cases. Needless to say, there is a distinction between "residence" for purposes
of election laws and "residence" for purposes of fixing the venue of actions. In election
cases, "residence" and "domicile" are treated as synonymous terms, that is, the fixed
permanent residence to which when absent, one has the intention of
returning. 42 However, for purposes of fixing venue under the Rules of Court, the
"residence" of a person is his personal, actual or physical habitation, or actual
residence or place of abode, which may not necessarily be his legal residence or
domicile provided he resides therein with continuity and consistency. 43 Hence, it is
possible that a person may have his residence in one place and domicile in another.

In the instant case, while petitioners established that Felicisimo was domiciled in Sta.
Cruz, Laguna, respondent proved that he also maintained a residence in Alabang,
Muntinlupa from 1982 up to the time of his death. Respondent submitted in evidence
the Deed of Absolute Sale 44 dated January 5, 1983 showing that the deceased
purchased the aforesaid property. She also presented billing statements 45 from the
Philippine Heart Center and Chinese General Hospital for the period August to
December 1992 indicating the address of Felicisimo at "100 San Juanico, Ayala Alabang,
Muntinlupa." Respondent also presented proof of membership of the deceased in the
Ayala Alabang Village Association 46 and Ayala Country Club, Inc., 47 letter-
envelopes 48from 1988 to 1990 sent by the deceaseds children to him at his Alabang
address, and the deceaseds calling cards 49 stating that his home/city address is at
"100 San Juanico, Ayala Alabang Village, Muntinlupa" while his office/provincial address
is in "Provincial Capitol, Sta. Cruz, Laguna."

From the foregoing, we find that Felicisimo was a resident of Alabang, Muntinlupa for
purposes of fixing the venue of the settlement of his estate. Consequently, the subject
petition for letters of administration was validly filed in the Regional Trial
Court 50 which has territorial jurisdiction over Alabang, Muntinlupa. The subject petition
was filed on December 17, 1993. At that time, Muntinlupa was still a municipality and
the branches of the Regional Trial Court of the National Capital Judicial Region which
had territorial jurisdiction over Muntinlupa were then seated in Makati City as per
Supreme Court Administrative Order No. 3. 51 Thus, the subject petition was validly
filed before the Regional Trial Court of Makati City.

Anent the issue of respondent Felicidads legal personality to file the petition for letters
of administration, we must first resolve the issue of whether a Filipino who is divorced
by his alien spouse abroad may validly remarry under the Civil Code, considering that
Felicidads marriage to Felicisimo was solemnized on June 20, 1974, or before the
Family Code took effect on August 3, 1988. In resolving this issue, we need not
retroactively apply the provisions of the Family Code, particularly Art. 26, par. (2)
considering that there is sufficient jurisprudential basis allowing us to rule in the
affirmative.

The case of Van Dorn v. Romillo, Jr. 52 involved a marriage between a foreigner and his
Filipino wife, which marriage was subsequently dissolved through a divorce obtained
abroad by the latter. Claiming that the divorce was not valid under Philippine law, the
alien spouse alleged that his interest in the properties from their conjugal partnership
should be protected. The Court, however, recognized the validity of the divorce and
held that the alien spouse had no interest in the properties acquired by the Filipino wife
after the divorce. Thus:

In this case, the divorce in Nevada released private respondent from the marriage from
the standards of American law, under which divorce dissolves the marriage. As stated
by the Federal Supreme Court of the United States in Atherton vs. Atherton, 45 L. Ed.
794, 799:

"The purpose and effect of a decree of divorce from the bond of matrimony by a
competent jurisdiction are to change the existing status or domestic relation of
husband and wife, and to free them both from the bond. The marriage tie, when thus
severed as to one party, ceases to bind either. A husband without a wife, or a wife
without a husband, is unknown to the law. When the law provides, in the nature of a
penalty, that the guilty party shall not marry again, that party, as well as the other, is
still absolutely freed from the bond of the former marriage."

Thus, pursuant to his national law, private respondent is no longer the husband of
petitioner. He would have no standing to sue in the case below as petitioners husband
entitled to exercise control over conjugal assets. As he is bound by the Decision of his
own countrys Court, which validly exercised jurisdiction over him, and whose decision
he does not repudiate, he is estopped by his own representation before said Court from
asserting his right over the alleged conjugal property. 53

As to the effect of the divorce on the Filipino wife, the Court ruled that she should no
longer be considered married to the alien spouse. Further, she should not be required
to perform her marital duties and obligations. It held:

To maintain, as private respondent does, that, under our laws, petitioner has to be
considered still married to private respondent and still subject to a wife's
obligations under Article 109, et. seq. of the Civil Code cannot be just. Petitioner should
not be obliged to live together with, observe respect and fidelity, and render support to
private respondent. The latter should not continue to be one of her heirs with possible
rights to conjugal property. She should not be discriminated against in her own country
if the ends of justice are to be served. 54 (Emphasis added)

This principle was thereafter applied in Pilapil v. Ibay-Somera 55 where the Court
recognized the validity of a divorce obtained abroad. In the said case, it was held that
the alien spouse is not a proper party in filing the adultery suit against his Filipino wife.
The Court stated that "the severance of the marital bond had the effect of dissociating
the former spouses from each other, hence the actuations of one would not affect or
cast obloquy on the other." 56

Likewise, in Quita v. Court of Appeals, 57 the Court stated that where a Filipino is
divorced by his naturalized foreign spouse, the ruling in Van Dorn applies. 58 Although
decided on December 22, 1998, the divorce in the said case was obtained in 1954
when the Civil Code provisions were still in effect.

The significance of the Van Dorn case to the development of limited recognition of
divorce in the Philippines cannot be denied. The ruling has long been interpreted as
severing marital ties between parties in a mixed marriage and capacitating the Filipino
spouse to remarry as a necessary consequence of upholding the validity of a divorce
obtained abroad by the alien spouse. In his treatise, Dr. Arturo M. Tolentino cited Van
Dorn stating that "if the foreigner obtains a valid foreign divorce, the Filipino spouse
shall have capacity to remarry under Philippine law." 59 In Garcia v. Recio, 60 the Court
likewise cited the aforementioned case in relation to Article 26. 61

In the recent case of Republic v. Orbecido III, 62 the historical background and
legislative intent behind paragraph 2, Article 26 of the Family Code were discussed, to
wit:

Brief Historical Background

On July 6, 1987, then President Corazon Aquino signed into law Executive Order No.
209, otherwise known as the "Family Code," which took effect on August 3, 1988.
Article 26 thereof states:

All marriages solemnized outside the Philippines in accordance with the laws in force in
the country where they were solemnized, and valid there as such, shall also be valid in
this country, except those prohibited under Articles 35, 37, and 38.

On July 17, 1987, shortly after the signing of the original Family Code, Executive Order
No. 227 was likewise signed into law, amending Articles 26, 36, and 39 of the Family
Code. A second paragraph was added to Article 26. As so amended, it now provides:

ART. 26. All marriages solemnized outside the Philippines in accordance with the laws in
force in the country where they were solemnized, and valid there as such, shall also be
valid in this country, except those prohibited under Articles 35(1), (4), (5) and (6), 36,
37 and 38.
Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a
divorce is thereafter validly obtained abroad by the alien spouse capacitating him or
her to remarry, the Filipino spouse shall have capacity to remarry under Philippine
law. (Emphasis supplied)

xxxx
Legislative Intent

Records of the proceedings of the Family Code deliberations showed that the intent of
Paragraph 2 of Article 26, according to Judge Alicia Sempio-Diy, a member of the Civil
Code Revision Committee, is to avoid the absurd situation where the Filipino spouse
remains married to the alien spouse who, after obtaining a divorce, is no longer married
to the Filipino spouse.

Interestingly, Paragraph 2 of Article 26 traces its origin to the 1985 case of Van Dorn v.
Romillo, Jr. TheVan Dorn case involved a marriage between a Filipino citizen and a
foreigner. The Court held therein that a divorce decree validly obtained by the alien
spouse is valid in the Philippines, and consequently, the Filipino spouse is capacitated
to remarry under Philippine law. 63 (Emphasis added)

As such, the Van Dorn case is sufficient basis in resolving a situation where a divorce is
validly obtained abroad by the alien spouse. With the enactment of the Family Code
and paragraph 2, Article 26 thereof, our lawmakers codified the law already established
through judicial precedent.1awphi1.net

Indeed, when the object of a marriage is defeated by rendering its continuance

intolerable to one of the parties and productive of no possible good to the community,
relief in some way should be obtainable. 64 Marriage, being a mutual and shared
commitment between two parties, cannot possibly be productive of any good to the
society where one is considered released from the marital bond while the other remains
bound to it. Such is the state of affairs where the alien spouse obtains a valid divorce
abroad against the Filipino spouse, as in this case.

Petitioners cite Articles 15 65 and 17 66 of the Civil Code in stating that the divorce is
void under Philippine law insofar as Filipinos are concerned. However, in light of this
Courts rulings in the cases discussed above, the Filipino spouse should not be
discriminated against in his own country if the ends of justice are to be served. 67 In
Alonzo v. Intermediate Appellate Court, 68 the Court stated:

But as has also been aptly observed, we test a law by its results; and likewise, we may
add, by its purposes. It is a cardinal rule that, in seeking the meaning of the law, the
first concern of the judge should be to discover in its provisions the intent of the
lawmaker. Unquestionably, the law should never be interpreted in such a way as to
cause injustice as this is never within the legislative intent. An indispensable part of
that intent, in fact, for we presume the good motives of the legislature, is to render
justice.

Thus, we interpret and apply the law not independently of but in consonance with
justice. Law and justice are inseparable, and we must keep them so. To be sure, there
are some laws that, while generally valid, may seem arbitrary when applied in a
particular case because of its peculiar circumstances. In such a situation, we are not
bound, because only of our nature and functions, to apply them just the same, in
slavish obedience to their language. What we do instead is find a balance between the
word and the will, that justice may be done even as the law is obeyed.

As judges, we are not automatons. We do not and must not unfeelingly apply the law as
it is worded, yielding like robots to the literal command without regard to its cause and
consequence. "Courts are apt to err by sticking too closely to the words of a law," so we
are warned, by Justice Holmes again, "where these words import a policy that goes
beyond them."

xxxx

More than twenty centuries ago, Justinian defined justice "as the constant and
perpetual wish to render every one his due." That wish continues to motivate this Court
when it assesses the facts and the law in every case brought to it for decision. Justice is
always an essential ingredient of its decisions. Thus when the facts warrants, we
interpret the law in a way that will render justice, presuming that it was the intention of
the lawmaker, to begin with, that the law be dispensed with justice. 69

Applying the above doctrine in the instant case, the divorce decree allegedly obtained
by Merry Lee which absolutely allowed Felicisimo to remarry, would have vested
Felicidad with the legal personality to file the present petition as Felicisimos surviving
spouse. However, the records show that there is insufficient evidence to prove the
validity of the divorce obtained by Merry Lee as well as the marriage of respondent and
Felicisimo under the laws of the U.S.A. In Garcia v. Recio, 70 the Court laid down the
specific guidelines for pleading and proving foreign law and divorce judgments. It held
that presentation solely of the divorce decree is insufficient and that proof of its
authenticity and due execution must be presented. Under Sections 24 and 25 of Rule
132, a writing or document may be proven as a public or official record of a foreign
country by either (1) an official publication or (2) a copy thereof attested by the officer
having legal custody of the document. If the record is not kept in the Philippines, such
copy must be (a) accompanied by a certificate issued by the proper diplomatic or
consular officer in the Philippine foreign service stationed in the foreign country in
which the record is kept and (b) authenticated by the seal of his office. 71

With regard to respondents marriage to Felicisimo allegedly solemnized in California,

U.S.A., she submitted photocopies of the Marriage Certificate and the annotated
text 72 of the Family Law Act of California which purportedly show that their marriage
was done in accordance with the said law. As stated in Garcia, however, the Court
cannot take judicial notice of foreign laws as they must be alleged and proved. 73

Therefore, this case should be remanded to the trial court for further reception of
evidence on the divorce decree obtained by Merry Lee and the marriage of respondent
and Felicisimo.

Even assuming that Felicisimo was not capacitated to marry respondent in 1974,
nevertheless, we find that the latter has the legal personality to file the subject petition
for letters of administration, as she may be considered the co-owner of Felicisimo as
regards the properties that were acquired through their joint efforts during their
cohabitation.

Section 6, 74 Rule 78 of the Rules of Court states that letters of administration may be
granted to the surviving spouse of the decedent. However, Section 2, Rule 79 thereof
also provides in part:

SEC. 2. Contents of petition for letters of administration. A petition for letters of

administration must be filed by an interested person and must show, as far as known to
the petitioner: x x x.

An "interested person" has been defined as one who would be benefited by the estate,
such as an heir, or one who has a claim against the estate, such as a creditor. The
interest must be material and direct, and not merely indirect or contingent. 75

In the instant case, respondent would qualify as an interested person who has a direct
interest in the estate of Felicisimo by virtue of their cohabitation, the existence of which
was not denied by petitioners. If she proves the validity of the divorce and Felicisimos
capacity to remarry, but fails to prove that her marriage with him was validly performed
under the laws of the U.S.A., then she may be considered as a co-owner under Article
144 76 of the Civil Code. This provision governs the property relations between parties
who live together as husband and wife without the benefit of marriage, or their
marriage is void from the beginning. It provides that the property acquired by either or
both of them through their work or industry or their wages and salaries shall be
governed by the rules on co-ownership. In a co-ownership, it is not necessary that the
property be acquired through their joint labor, efforts and industry. Any property
acquired during the union is prima facie presumed to have been obtained through their
joint efforts. Hence, the portions belonging to the co-owners shall be presumed equal,
unless the contrary is proven. 77

Meanwhile, if respondent fails to prove the validity of both the divorce and the
marriage, the applicable provision would be Article 148 of the Family Code which has
filled the hiatus in Article 144 of the Civil Code by expressly regulating the property
relations of couples living together as husband and wife but are incapacitated to
marry. 78In Saguid v. Court of Appeals, 79 we held that even if the cohabitation or the
acquisition of property occurred before the Family Code took effect, Article 148
governs. 80 The Court described the property regime under this provision as follows:

The regime of limited co-ownership of property governing the union of parties who are
not legally capacitated to marry each other, but who nonetheless live together as
husband and wife, applies to properties acquired during said cohabitation in proportion
to their respective contributions. Co-ownership will only be up to the extent of the
proven actual contribution of money, property or industry. Absent proof of the extent
thereof, their contributions and corresponding shares shall be presumed to be equal.

xxxx

In the cases of Agapay v. Palang, and Tumlos v. Fernandez, which involved the issue of
co-ownership of properties acquired by the parties to a bigamous marriage and an
adulterous relationship, respectively, we ruled that proof of actual contribution in the
acquisition of the property is essential. x x x

As in other civil cases, the burden of proof rests upon the party who, as determined by
the pleadings or the nature of the case, asserts an affirmative issue. Contentions must
be proved by competent evidence and reliance must be had on the strength of the
partys own evidence and not upon the weakness of the opponents defense. x x x81

In view of the foregoing, we find that respondents legal capacity to file the subject
petition for letters of administration may arise from her status as the surviving wife of
Felicisimo or as his co-owner under Article 144 of the Civil Code or Article 148 of the
Family Code.

WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals reinstating
and affirming the February 28, 1994 Order of the Regional Trial Court which denied
petitioners motion to dismiss and its October 24, 1994 Order which dismissed
petitioners motion for reconsideration is AFFIRMED. Let this case be REMANDED to the
trial court for further proceedings.

SO ORDERED.
G.R. No. L-55509 April 27, 1984

ETHEL GRIMM ROBERTS, petitioner,

vs.
JUDGE TOMAS R. LEONIDAS, Branch 38, Court of First Instance of Manila; MAXINE TATE-
GRIMM, EDWARD MILLER GRIMM II and LINDA GRIMM, respondents.

N. J. Quisumbing and Associates for petitioners.

Angara, Abello, Concepcion, Regala and Cruz for respondents.

AQUINO, J.:

The question in this case is whether a petition for allowance of wills and to annul a
partition, approved in anintestate proceeding by Branch 20 of the Manila Court of First
Instance, can be entertained by its Branch 38 (after a probate in the Utah district
court).

Antecedents. Edward M. Grimm an American resident of Manila, died at 78 in the

Makati Medical Center on November 27, 1977. He was survived by his second wife,
Maxine Tate Grimm and their two children, named Edward Miller Grimm II (Pete) and
Linda Grimm and by Juanita Grimm Morris and Ethel Grimm Roberts (McFadden), his
two children by a first marriage which ended in divorce (Sub-Annexes A and B. pp. 36-
47, Rollo).

He executed on January 23, 1959 two wills in San Francisco, California. One will
disposed of his Philippine estate which he described as conjugal property of himself and
his second wife. The second win disposed of his estate outside the Philippines.

In both wills, the second wife and two children were favored. The two children of
the first marriage were given their legitimes in the will disposing of the estate situated
in this country. In the will dealing with his property outside this country, the testator
said: t.hqw

I purposely have made no provision in this will for my daughter, Juanita Grimm Morris,
or my daughter, Elsa Grimm McFadden (Ethel Grimm Roberts), because I have provided
for each of them in a separate will disposing of my Philippine property. (First clause, pp.
43-47, Rollo).

The two wills and a codicil were presented for probate by Maxine Tate Grimm and E.
LaVar Tate on March 7, 1978 in Probate No. 3720 of the Third Judicial District Court of
Tooele County, Utah. Juanita Grimm Morris of Cupertino, California and Mrs. Roberts of
15 C. Benitez Street, Horseshoe Village, Quezon City were notified of the probate
proceeding (Sub-Annex C, pp. 48-55, Rollo).

Maxine admitted that she received notice of the intestate petition filed in Manila by
Ethel in January, 1978 (p. 53, Rollo). In its order dated April 10, 1978, the Third Judicial
District Court admitted to probate the two wills and the codicil It was issued upon
consideration of the stipulation dated April 4, 1978 "by and between the attorneys for
Maxine Tate Grimm, Linda Grimm, Edward Miller Grimm II, E. LaVar Tate, Juanita Kegley
Grimm (first wife), Juanita Grimm Morris and Ethel Grimm Roberts" (Annex C, pp. 48-51,
Rollo).

Two weeks later, or on April 25, 1978, Maxine and her two children Linda and Pete, as
the first parties, and Ethel, Juanita Grimm Morris and their mother Juanita Kegley Grimm
as the second parties, with knowledge of the intestate proceeding in Manila, entered
into a compromise agreement in Utah regarding the estate. It was signed by David E.
Salisbury and Donald B. Holbrook, as lawyers of the parties, by Pete and Linda and the
attorney-in-fact of Maxine and by the attorney-in-fact of Ethel, Juanita Grimm Morris
and Juanita Kegley Grimm.

In that agreement, it was stipulated that Maxine, Pete and Ethel would be designated
as personal representatives (administrators) of Grimm's Philippine estate (par. 2). It was
also stipulated that Maxine's one-half conjugal share in the estate should be reserved
for her and that would not be less than $1,500,000 plus the homes in Utah and Santa
Mesa, Manila (par. 4). The agreement indicated the computation of the "net
distributable estate". It recognized that the estate was liable to pay the fees of the
Angara law firm (par. 5).

It was stipulated in paragraph 6 that the decedent's four children "shall share equally in
the Net Distributable Estate" and that Ethel and Juanita Morris should each receive at
least 12-1/2% of the total of the net distributable estate and marital share. A
supplemental memorandum also dated April 25, 1978 was executed by the parties
(Sub-Annex F, pp. 49-61, Annex, F-1, pp. 75-76, Testate case).

Intestate proceeding No. 113024.-At this juncture, it should be stated that forty- three
days after Grimm's death, or January 9, 1978, his daughter of the first marriage, Ethel,
49, through lawyers Deogracias T. Reyes and. Gerardo B. Macaraeg, filed with Branch
20 of the Manila Court of First Instance intestate proceeding No. 113024for the
settlement of his estate. She was named special administratrix.

On March 11, the second wife, Maxine, through the Angara law office, filed
an opposition and motion to dismiss the intestate proceeding on the ground of the
pendency of Utah of a proceeding for the probate of Grimm's will. She also moved that
she be appointed special administratrix, She submitted to the court a copy of Grimm's
will disposing of his Philippine estate. It is found in pages 58 to 64 of the record.

The intestate court in its orders of May 23 and June 2 noted that Maxine, through a new
lawyer, William C. Limqueco (partner of Gerardo B. Macaraeg, p. 78, testate case
withdrew that opposition and motion to dismiss and, at the behest of Maxine, Ethel and
Pete, appointed them joint administrators. Apparently, this was done pursuant to the
aforementioned Utah compromise agreement. The court ignored the will already found
in the record.

The three administrators submitted an inventory. With the authority and approval of the
court, they sold for P75,000 on March 21, 1979 the so-called Palawan Pearl Project, a
business owned by the deceased. Linda and Juanita allegedly conformed with the sale
(pp. 120-129, Record). It turned out that the buyer, Makiling Management Co., Inc., was
incorporated by Ethel and her husband, Rex Roberts, and by lawyer Limqueco (Annex L,
p. 90, testate case).

Also with the court's approval and the consent of Linda and Juanita, they sold for
P1,546,136 to Joseph Server and others 193,267 shares of RFM Corporation (p. 135,
Record).

Acting on the declaration of heirs and project of partition signed and filed by lawyers
Limqueco and Macaraeg (not signed by Maxine and her two children), Judge Conrado M.
Molina in his order of July 27, 1979 adjudicated to Maxine onehalf (4/8) of the
decedent's Philippine estate and one-eighth (1/8) each to his four children or 12-1/2%
(pp. 140-142, Record). No mention at all was made of the will in that order.

Six days later, or on August 2, Maxine and her two children replaced Limqueco with
Octavio del Callar as their lawyer who on August 9, moved to defer approval of the
project of partition. The court considered the motion moot considering that it had
already approved the declaration of heirs and project of partition (p. 149, Record).

Lawyer Limqueco in a letter to Maxine dated August 2, 1979 alleged that he was no
longer connected with Makiling Management Co., Inc. when the Palawan Pearl Project
was sold: that it was Maxine's son Pete who negotiated the sale with Rex Roberts and
that he (Limqueco) was going to sue Maxine for the lies she imputed to him (Annex H,
p. 78, testate case).

Ethel submitted to the court a certification of the Assistant Commissioner of Internal

Revenue dated October 2, 1979. It was stated therein that Maxine paid P1,992,233.69
as estate tax and penalties and that he interposed no objection to the transfer of the
estate to Grimm's heirs (p. 153, Record). The court noted the certification as in
conformity with its order of July 27, 1979.

After November, 1979 or for a period of more than five months, there was no
movement or activity in the intestate case. On April 18, 1980 Juanita Grimm Morris,
through Ethel's lawyers, filed a motion for accounting "so that the Estate properties can
be partitioned among the heirs and the present intestate estate be closed." Del Callar,
Maxine's lawyer was notified of that motion.

Before that motion could be heard, or on June 10, 1980, the Angara law firm filed again
its appearance in collaboration with Del Callar as counsel for Maxine and her two
children, Linda and Pete. It should be recalled that the firm had previously appeared in
the case as Maxine's counsel on March 11, 1978, when it filed a motion to dismiss the
intestate proceeding and furnished the court with a copy of Grimm's will. As already
noted, the firm was then superseded by lawyer Limqueco.
Petition to annul partition and testate proceeding No. 134559. On September 8,
1980, Rogelio A. Vinluan of the Angara law firm in behalf of Maxine, Pete and Linda,
filed in Branch 38 of the lower court a petition praying for the probate of Grimm's two
wills (already probated in Utah), that the 1979 partition approved by the intestate court
be set aside and the letters of administration revoked, that Maxine be appointed
executrix and that Ethel and Juanita Morris be ordered to account for the properties
received by them and to return the same to Maxine (pp. 25-35, Rollo).

Grimm's second wife and two children alleged that they were defraud due to the
machinations of the Roberts spouses, that the 1978 Utah compromise agreement was
illegal, that the intestate proceeding is void because Grimm died testate and that the
partition was contrary to the decedent's wills.

Ethel filed a motion to dismiss the petition. Judge Leonidas denied it for lack of merit in
his order of October 27, 1980. Ethel then filed a petition for certiorari and prohibition in
this Court, praying that the testate proceeding be dismissed, or. alternatively that the
two proceedings be consolidated and heard in Branch 20 and that the matter of the
annulment of the Utah compromise agreement be heard prior to the petition for
probate (pp. 22-23, Rollo).

Ruling. We hold that respondent judge did not commit any grave abuse of discretion,
amounting to lack of jurisdiction, in denying Ethel's motion to dismiss.

A testate proceeding is proper in this case because Grimm died with two wills and "no
will shall pass either real or personal property unless it is proved and allowed" (Art. 838,
Civil Code; sec. 1, Rule 75, Rules of Court).

The probate of the will is mandatory (Guevara vs. Guevara, 74 Phil. 479 and 98 Phil.
249; Baluyot vs. Panio, L-42088, May 7, 1976, 71 SCRA 86). It is anomalous that the
estate of a person who died testate should be settled in an intestate proceeding.
Therefore, the intestate case should be consolidated with the testate proceeding and
the judge assigned to the testate proceeding should continue hearing the two cases.

Ethel may file within twenty days from notice of the finality of this judgment an
opposition and answer to the petition unless she considers her motion to dismiss and
other pleadings sufficient for the purpose. Juanita G. Morris, who appeared in the
intestate case, should be served with copies of orders, notices and other papers in the
testate case.

WHEREFORE the petition is dismissed. The temporary restraining order is dissolved. No

costs. SO ORDERED.1wph1.t
G.R. Nos. L-21938-39 May 29, 1970

VICENTE URIARTE, petitioner,

vs.
THE COURT OF FIRST INSTANCE OF NEGROS OCCIDENTAL (12th Judicial District) THE
COURT OF FIRST INSTANCE OF MANILA, BRANCH IV, JUAN URIARTE ZAMACONA and
HIGINIO URIARTE, respondents.

Norberto J. Quisumbing for petitioner.

Taada, Teehankee & Carreon for respondents.

DIZON, J.:

On October 3, 1963 petitioner Vicente Uriarte filed an original petition for certiorari
docketed as G.R. L-21938 against the respondents Juan Uriarte Zamacona, Higinio
Uriarte, and the Courts of First Instance of Negros Occidental and of Manila, Branch IV,
who will be referred to hereinafter as the Negros Court and the Manila Court,
respectively praying:

... that after due proceedings judgment be rendered annulling the orders of 19 April
1963 (Annex 'H') and 11 July 1963 (Annex 'I') of respondent Negros court dismissing the
first instituted Special Proceeding No. 6344, supra, and the order of 1 July 1963 (Annex
'K') of respondent Manila court denying petitioner's omnibus motion to intervene and to
dismiss the later-instituted Special Proceeding No. 51396, supra, both special
proceedings pertaining to the settlement of the same estate of the same deceased, and
consequently annulling all proceedings had in Special Proceeding No. 51396; supra, of
the respondent Manila court as all taken without jurisdiction.

For the preservation of the rights of the parties pending these proceedings, petitioner
prays for the issuance of a writ of preliminary injunction enjoining respondents Manila
court, Juan Uriarte Zamacona and Higinio Uriarte from proceeding with Special
Proceeding No. 51396, supra, until further orders of this Court.

Reasons in support of said petition are stated therein as follows:

6. Respondent Negros court erred in dismissing its Special Proceeding No. 6344, supra,
and failing to declare itself 'the court first taking cognizance of the settlement of the
estate of' the deceased Don Juan Uriarte y Goite as prescribed in Rule 75 section 1 of
the Rules of Court. Respondent Manila court erred in failing to dismiss its Special
Proceeding No. 51396, supra, notwithstanding proof of prior filing of Special Proceeding
No. 6344, supra, in the Negros court.

The writ of preliminary injunction prayed for was granted and issued by this Court on
October 24, 1963.

On April 22, 1964 petitioner filed against the same respondents a pleading entitled
SUPPLEMENTAL PETITION FOR MANDAMUS docketed in this Court as G.R. No. L-21939
praying, for the reasons therein stated, that judgment be rendered annulling the
orders issued by the Negros Court on December 7, 1963 and February 26, 1964, the
first disapproving his record on appeal and the second denying his motion for
reconsideration, and further commanding said court to approve his record on appeal
and to give due course to his appeal. On July 15, 1964 We issued a resolution deferring
action on this Supplemental Petition until the original action for certiorari (G.R. L-21938)
is taken up on the merits.

On October 21, 1963 the respondents in G.R. L-21938 filed their answer traversing
petitioner's contention that the respondent courts had committed grave abuse of
discretion in relation to the matters alleged in the petition forcertiorari.

It appears that on November 6, 1961 petitioner filed with the Negros Court a petition
for the settlement of the estate of the late Don Juan Uriarte y Goite (Special Proceeding
No. 6344) alleging therein, inter alia, that, as a natural son of the latter, he was his sole
heir, and that, during the lifetime of said decedent, petitioner had instituted Civil Case
No. 6142 in the same Court for his compulsory acknowledgment as such natural son.
Upon petitioner's motion the Negros Court appointed the Philippine National Bank as
special administrator on November 13, 1961 and two days later it set the date for the
hearing of the petition and ordered that the requisite notices be published in
accordance with law. The record discloses, however, that, for one reason or another,
the Philippine, National Bank never actually qualified as special administrator.

On December 19, 1961, Higinio Uriarte, one of the two private respondents herein, filed
an opposition to the above-mentioned petition alleging that he was a nephew of the
deceased Juan Uriarte y Goite who had "executed a Last Will and Testament in Spain, a
duly authenticated copy whereof has been requested and which shall be submitted to
this Honorable Court upon receipt thereof," and further questioning petitioner's
capacity and interest to commence the intestate proceeding.

On August 28, 1962, Juan Uriarte Zamacona, the other private respondent, commenced
Special Proceeding No. 51396 in the Manila Court for the probate of a document alleged
to be the last will of the deceased Juan Uriarte y Goite, and on the same date he filed in
Special Proceeding No. 6344 of the Negros Court a motion to dismiss the same on the
following grounds: (1) that, as the deceased Juan Uriarte y Goite had left a last will,
there was no legal basis to proceed with said intestate proceedings, and (2) that
petitioner Vicente Uriarte had no legal personality and interest to initiate said intestate
proceedings, he not being an acknowledged natural son of the decedent. A copy of the
Petition for Probate and of the alleged Will were attached to the Motion to Dismiss.
Petitioner opposed the aforesaid motion to dismiss contending that, as the Negros
Court was first to take cognizance of the settlement of the estate of the deceased Juan
Uriarte y Goite, it had acquired exclusive jurisdiction over same pursuant to Rule 75,
Section 1 of the Rules of Court.

On April 19, 1963, the Negros Court sustained Juan Uriarte Zamacona's motion to
dismiss and dismissed the Special Proceeding No. 6344 pending before it. His motion
for reconsideration of said order having been denied on July 27, 1963, petitioner
proceeded to file his notice of appeal, appeal bond and record on appeal for the
purpose of appealing from said orders to this court on questions of law. The
administrator with the will annexed appointed by the Manila Court in Special Proceeding
No. 51396 objected to the approval of the record on appeal, and under date of
December 7, 1963 the Negros Court issued the following order:

Oppositor prays that the record on appeal filed by the petitioner on July 27, 1963, be
dismissed for having been filed out of time and for being incomplete. In the meantime,
before the said record on appeal was approved by this Court, the petitioner filed a
petition for certiorari before the Supreme Court entitled Vicente Uriarte, Petitioner, vs.
Court of First Instance of Negros Occidental, et al., G.R. No. L-21938, bringing this case
squarely before the Supreme Court on questions of law which is tantamount to
petitioner's abandoning his appeal from this Court.

WHEREFORE, in order to give way to the certiorari, the record on appeal filed by the
petitioner is hereby disapproved.

In view of the above-quoted order, petitioner filed the supplemental petition for
mandamus mentioned heretofore.

On April 15, 1963 Vicente Uriarte filed an Omnibus Motion in Special Proceeding No.
51396 pending in the Manila Court, asking for leave to intervene therein; for the
dismissal of the petition and the annulment of the proceedings had in said special
proceeding. This motion was denied by said court in its order of July 1 of the same year.

It is admitted that, as alleged in the basic petition filed in Special Proceeding No. 6344
of the Negros Court, Vicente Uriarte filed in the same court, during the lifetime of Juan
Uriarte y Goite, Civil Case No. 6142 to obtain judgment for his compulsory
acknowledgment as his natural child. Clearly inferrable from this is that at the time he
filed the action, as well as when he commenced the aforesaid special proceeding, he
had not yet been acknowledged as natural son of Juan Uriarte y Goite. Up to this time,
no final judgment to that effect appears to have been rendered.

The record further discloses that the special proceeding before the Negros Court has
not gone farther than the appointment of a special administrator in the person of the
Philippine National Bank who, as stated heretofore, failed to qualify.

On the other hand, it is not disputed that, after proper proceedings were had in Special
Proceeding No. 51396, the Manila Court admitted to probate the document submitted
to, it as the last will of Juan Uriarte y Goite, the petition for probate appearing not to
have been contested. It appears further that, as stated heretofore, the order issued by
the Manila Court on July 1, 1963 denied petitioner. Vicente Uriarte's Omnibus Motion for
Intervention, Dismissal of Petition and Annulment of said proceedings.

Likewise, it is not denied that to the motion to dismiss the special proceeding pending
before the Negros Court filed by Higinio Uriarte were attached a copy of the alleged last
will of Juan Uriarte y Goite and of the petition filed with the Manila Court for its probate.
It is clear, therefore, that almost from the start of Special Proceeding No. 6344, the
Negros Court and petitioner Vicente Uriarte knew of the existence of the aforesaid last
will and of the proceedings for its probate.

The principal legal questions raised in the petition for certiorari are (a) whether or not
the Negros Court erred in dismissing Special Proceeding No. 6644, on the one hand,
and on the other, (b) whether the Manila Court similarly erred in not dismissing Special
Proceeding No. 51396 notwithstanding proof of the prior filing of Special Proceeding No.
6344 in the Negros Court.

Under the Judiciary Act of 1948 [Section 44, paragraph (e)], Courts of First Instance
have original exclusive jurisdiction over "all matters of probate," that is, over special
proceedings for the settlement of the estate of deceased persons whether they died
testate or intestate. While their jurisdiction over such subject matter is beyond
question, the matter of venue, or the particular Court of First Instance where the special
proceeding should be commenced, is regulated by former Rule 75, Section 1 of the
Rules of Court, now Section 1, Rule 73 of the Revised Rules of Court, which provides
that the estate of a decedent inhabitant of the Philippines at the time of his death,
whether a citizen or an alien, shall be in the court of first instance in the province in
which he resided at the time of his death, and if he is an inhabitant of a foreign country,
the court of first instance of any province in which he had estate. Accordingly, when the
estate to be settled is that of a non-resident alien like the deceased Juan Uriarte y
Goite the Courts of First Instance in provinces where the deceased left any property
have concurrent jurisdiction to take cognizance of the proper special proceeding for the
settlement of his estate. In the case before Us, these Courts of First Instance are the
Negros and the Manila Courts province and city where the deceased Juan Uriarte y
Goite left considerable properties. From this premise petitioner argues that, as the
Negros Court had first taken cognizance of the special proceeding for the settlement of
the estate of said decedent (Special Proceeding No. 6344), the Manila Court no longer
had jurisdiction to take cognizance of Special Proceeding No. 51396 intended to settle
the estate of the same decedent in accordance with his alleged will, and that
consequently, the first court erred in dismissing Special Proceeding No. 6344, while the
second court similarly erred in not dismissing Special Proceeding No. 51396.

It can not be denied that a special proceeding intended to effect the distribution of the
estate of a deceased person, whether in accordance with the law on intestate
succession or in accordance with his will, is a "probate matter" or a proceeding for the
settlement of his estate. It is equally true, however, that in accordance with settled
jurisprudence in this jurisdiction, testate proceedings, for the settlement of the estate
of a deceased person take precedence over intestate proceedings for the same
purpose. Thus it has been held repeatedly that, if in the course of intestate proceedings
pending before a court of first instance it is found it hat the decedent had left a last will,
proceedings for the probate of the latter should replace the intestate proceedings even
if at that stage an administrator had already been appointed, the latter being required
to render final account and turn over the estate in his possession to the executor
subsequently appointed. This, however, is understood to be without prejudice that
should the alleged last will be rejected or is disapproved, the proceeding shall continue
as an intestacy. As already adverted to, this is a clear indication that proceedings for
the probate of a will enjoy priority over intestate proceedings.

Upon the facts before Us the question arises as to whether Juan Uriarte Zamacona
should have filed the petition for the probate of the last will of Juan Uriarte y Goite with
the Negros Court particularly in Special Proceeding No. 6344 or was entitled to
commence the corresponding separate proceedings, as he did, in the Manila Court.

The following considerations and the facts of record would seem to support the view
that he should have submitted said will for probate to the Negros Court, either in a
separate special proceeding or in an appropriate motion for said purpose filed in the
already pending Special Proceeding No. 6344. In the first place, it is not in accord with
public policy and the orderly and inexpensive administration of justice to unnecessarily
multiply litigation, especially if several courts would be involved. This, in effect, was the
result of the submission of the will aforesaid to the Manila Court. In the second place,
when respondent Higinio Uriarte filed an opposition to Vicente Uriarte's petition for the
issuance of letters of administration, he had already informed the Negros Court that the
deceased Juan Uriarte y Goite had left a will in Spain, of which a copy had been
requested for submission to said court; and when the other respondent, Juan Uriarte
Zamacona, filed his motion to dismiss Special Proceeding No. 6344, he had submitted
to the Negros Court a copy of the alleged will of the decedent, from which fact it may
be inferred that, like Higinio Uriarte, he knew before filing the petition for probate with
the Manila Court that there was already a special proceeding pending in the Negros
Court for the settlement of the estate of the same deceased person. As far as Higinio
Uriarte is concerned, it seems quite clear that in his opposition to petitioner's petition in
Special Proceeding No. 6344, he had expressly promised to submit said will for probate
to the Negros Court.

But the fact is that instead of the aforesaid will being presented for probate to the
Negros Court, Juan Uriarte Zamacona filed the petition for the purpose with the Manila
Court. We can not accept petitioner's contention in this regard that the latter court had
no jurisdiction to consider said petition, albeit we say that it was not the proper
venue therefor.

It is well settled in this jurisdiction that wrong venue is merely a waiveable procedural
defect, and, in the light of the circumstances obtaining in the instant case, we are of
the opinion, and so hold, that petitioner has waived the right to raise such objection or
is precluded from doing so by laches. It is enough to consider in this connection that
petitioner knew of the existence of a will executed by Juan Uriarte y Goite since
December 19, 1961 when Higinio Uriarte filed his opposition to the initial petition filed
in Special Proceeding No. 6344; that petitioner likewise was served with notice of the
existence (presence) of the alleged last will in the Philippines and of the filing of the
petition for its probate with the Manila Court since August 28, 1962 when Juan Uriarte
Zamacona filed a motion for the dismissal of Special Proceeding No. 6344. All these
notwithstanding, it was only on April 15, 1963 that he filed with the Manila Court in
Special Proceeding No. 51396 an Omnibus motion asking for leave to intervene and for
the dismissal and annulment of all the proceedings had therein up to that date; thus
enabling the Manila Court not only to appoint an administrator with the will annexed
but also to admit said will to probate more than five months earlier, or more
specifically, on October 31, 1962. To allow him now to assail the exercise of jurisdiction
over the probate of the will by the Manila Court and the validity of all the proceedings
had in Special Proceeding No. 51396 would put a premium on his negligence. Moreover,
it must be remembered that this Court is not inclined to annul proceedings regularly
had in a lower court even if the latter was not the proper venue therefor, if the net
result would be to have the same proceedings repeated in some other court of similar
jurisdiction; more so in a case like the present where the objection against said
proceedings is raised too late.

In his order of April 19, 1963 dismissing Special Proceeding No. 6344, Judge Fernandez
of the Negros Court said that he was "not inclined to sustain the contention of the
petitioner that inasmuch as the herein petitioner has instituted Civil Case No. 6142 for
compulsory acknowledgment by the decedent such action justifies the institution by
him of this proceedings. If the petitioner is to be consistent with the authorities cited by
him in support of his contention, the proper thing for him to do would be to intervene in
the testate estate proceedings entitled Special Proceedings No. 51396 in the Court of
First Instance of Manila instead of maintaining an independent action, for indeed his
supposed interest in the estate of the decedent is of his doubtful character pending the
final decision of the action for compulsory acknowledgment."

We believe in connection with the above matter that petitioner is entitled to prosecute
Civil Case No. 6142 until it is finally determined, or intervene in Special Proceeding No.
51396 of the Manila Court, if it is still open, or to ask for its reopening if it has already
been closed, so as to be able to submit for determination the question of his
acknowledgment as natural child of the deceased testator, said court having, in its
capacity as a probate court, jurisdiction to declare who are the heirs of the deceased
testator and whether or not a particular party is or should be declared his
acknowledged natural child (II Moran on Rules of Court, 1957 Ed., p. 476; Conde vs.
Abaya, 13 Phil. 249; Severino vs. Severino, 44 Phil. 343; Lopez vs. Lopez, 68 Phil. 227,
and Jimoga-on vs. Belmonte, 47 O. G. 1119).

Coming now to the supplemental petition for mandamus (G.R. No. L-21939), We are of
the opinion, and so hold, that in view of the conclusions heretofore stated, the same
has become moot and academic. If the said supplemental petition is successful, it will
only result in compelling the Negros Court to give due course to the appeal that
petitioner was taking from the orders of said court dated December 7, 1963 and
February 26, 1964, the first being the order of said court dismissing Special Proceeding
No. 6344, and the second being an order denying petitioner's motion for the
reconsideration of said order of dismissal. Said orders being, as a result of what has
been said heretofore beyond petitioner's power to contest, the conclusion can not be
other than that the intended appeal would serve no useful purpose, or, worse still,
would enable petitioner to circumvent our ruling that he can no longer question the
validity of said orders.

IN VIEW OF THE FOREGOING CONSIDERATIONS, judgment is hereby rendered denying

the writs prayed for and, as a result, the petition for certiorari filed in G.R. No. L-21938,
as well as the supplemental petition formandamus docketed as G.R. No. L-21939, are
hereby dismissed. The writ of preliminary injunction heretofore issued is set aside. With
costs against petitioner.

G.R. No. L-24742 October 26, 1973

ROSA CAYETANO CUENCO, petitioners,

vs.
THE HONORABLE COURT OF APPEALS, THIRD DIVISION, MANUEL CUENCO, LOURDES
CUENCO, CONCEPCION CUENCO MANGUERRA, CARMEN CUENCO, CONSUELO CUENCO
REYES, and TERESITA CUENCO GONZALEZ, respondents.

Ambrosio Padilla Law Office for petitioner.

Jalandoni and Jamir for respondents.

TEEHANKEE, J.:

Petition for certiorari to review the decision of respondent Court of Appeals in CA-G.R.
No. 34104-R, promulgated 21 November 1964, and its subsequent Resolution
promulgated 8 July 1964 denying petitioner's Motion for Reconsideration.

The pertinent facts which gave rise to the herein petition follow:

On 25 February 1964 Senator Mariano Jesus Cuenco died at the Manila Doctors'
Hospital, Manila. He was survived by his widow, the herein petitioner, and their two (2)
minor sons, Mariano Jesus, Jr. and Jesus Salvador, both surnamed Cuenco, all residing at
69 Pi y Margal St., Sta. Mesa Heights, Quezon City, and by his children of the first
marriage, respondents herein, namely, Manuel Cuenco, Lourdes Cuenco, Concepcion
Cuenco Manguera, Carmen Cuenco, Consuelo Cuenco Reyes and Teresita Cuenco
Gonzales, all of legal age and residing in Cebu.

On 5 March 1964, (the 9th day after the death of the late Senator) 1 respondent
Lourdes Cuenco filed a Petition for Letters of Administration with the court of first
instance of Cebu (Sp. Proc. No. 2433-R), alleging among other things, that the late
senator died intestate in Manila on 25 February 1964; that he was a resident of Cebu at
the time of his death; and that he left real and personal properties in Cebu and Quezon
City. On the same date, the Cebu court issued an order setting the petition for hearing
on 10 April 1964, directing that due notice be given to all the heirs and interested
persons, and ordering the requisite publication thereof at LA PRENSA, a newspaper of
general circulation in the City and Province of Cebu.

The aforesaid order, however, was later suspended and cancelled and a new and
modified one released on 13 March 1964, in view of the fact that the petition was to be
heard at Branch II instead of Branch I of the said Cebu court. On the same date, a third
order was further issued stating that respondent Lourdes Cuenco's petition for the
appointment of a special administrator dated 4 March 1964 was not yet ready for the
consideration of the said court, giving as reasons the following:

It will be premature for this Court to act thereon, it not having yet regularly acquired
jurisdiction to try this proceeding, the requisite publication of the notice of hearing not
yet having been complied with. Moreover, copies of the petition have not been served
on all of the heirs specified in the basic petition for the issuance of letters of
administration. 2

In the meantime, or specifically on 12 March 1964, (a week after the filing of the Cebu
petition) herein petitioner Rosa Cayetano Cuenco filed a petition with the court of first
instance of Rizal (Quezon City) for the probate of the deceased's last will and
testament and for the issuance of letters testamentary in her favor, as the surviving
widow and executrix in the said last will and testament. The said proceeding was
docketed as Special Proceeding No. Q-7898.

Having learned of the intestate proceeding in the Cebu court, petitioner Rosa Cayetano
Cuenco filed in said Cebu court an Opposition and Motion to Dismiss, dated 30 March
1964, as well as an Opposition to Petition for Appointment of Special Administrator,
dated 8 April 1964. On 10 April 1964, the Cebu court issued an order holding in
abeyance its resolution on petitioner's motion to dismiss "until after the Court of First
Instance of Quezon City shall have acted on the petition for probate of that document
purporting to be the last will and testament of the deceased Don Mariano Jesus
Cuenco." 3 Such order of the Cebu court deferring to the probateproceedings in the
Quezon City court was neither excepted to nor sought by respondents to be
reconsidered or set aside by the Cebu court nor did they challenge the same
by certiorari or prohibition proceedings in the appellate courts.

Instead, respondents filed in the Quezon City court an Opposition and Motion to
Dismiss, dated 10 April 1964,opposing probate of the will and assailing the jurisdiction
of the said Quezon City court to entertain petitioner's petition for probate and for
appointment as executrix in Sp. Proc. No. Q-7898 in view of the alleged exclusive
jurisdiction vested by her petition in the Cebu court in Sp. Proc. No. 2433-R. Said
respondent prayed that Sp. Proc. No. Q-7898 be dismissed for lack of
jurisdiction and/or improper venue.

In its order of 11 April 1964, the Quezon City court denied the motion to dismiss, giving
as a principal reason the "precedence of probate proceeding over an intestate
proceeding." 4 The said court further found in said order that theresidence of the late
senator at the time of his death was at No. 69 Pi y Margal, Sta. Mesa Heights, Quezon
City. The pertinent portion of said order follows:

On the question of residence of the decedent, paragraph 5 of the opposition and

motion to dismiss reads as follows: "that since the decedent Don Mariano Jesus Cuenco
was a resident of the City of Cebu at the time of his death, the aforesaid petition filed
by Rosa Cayetano Cuenco on 12 March 1964 was not filed with the proper Court (wrong
venue) in view of the provisions of Section 1 of Rule 73 of the New Rules of Court ...".
From the aforequoted allegation, the Court is made to understand that the oppositors
do not mean to say that the decedent being a resident of Cebu City when he died, the
intestate proceedings in Cebu City should prevail over the probate proceedings in
Quezon City, because as stated above the probate of the will should take precedence,
but that the probate proceedings should be filed in the Cebu City Court of First
Instance. If the last proposition is the desire of the oppositors as understood by this
Court, that could not also be entertained as proper because paragraph 1 of the petition
for the probate of the will indicates that Don Mariano Jesus Cuenco at the time of his
death was a resident of Quezon City at 69 Pi y Margal. Annex A (Last Will and Testament
of Mariano Jesus Cuenco) of the petition for probate of the will shows that the decedent
at the time when he executed his Last Will clearly stated that he is a resident of 69 Pi y
Margal, Sta. Mesa Heights, Quezon City, and also of the City of Cebu. He made the
former as his first choice and the latter as his second choice of residence." If a party
has two residences, the one will be deemed or presumed to his domicile which he
himself selects or considers to be his home or which appears to be the center of his
affairs. The petitioner, in thus filing the instant petition before this Court, follows the
first choice of residence of the decedent and once this court acquires jurisdiction of the
probate proceeding it is to the exclusion of all others. 5

Respondent Lourdes Cuenco's motion for reconsideration of the Quezon City court's
said order of 11 April 1964 asserting its exclusive jurisdiction over the probate
proceeding as deferred to by the Cebu court was denied on 27 April 1964 and a second
motion for reconsideration dated 20 May 1964 was likewise denied.

On 11 May 1964, pursuant to its earlier order of 11 April 1964, the hearing for probate
of the last will of the decedent was called three times at half-hour intervals, but
notwithstanding due notification none of the oppositors appeared and the Quezon City
court proceeded at 9:00 a.m. with the hearing in their absence.

As per the order issued by it subsequently on 15 May 1964, the Quezon City court
noted that respondents-oppositors had opposed probate under their opposition and
motion to dismiss on the following grounds:

(a) That the will was not executed and attested as required by law;

(b) That the will was procured by undue and improper pressure and influence on the
part of the beneficiary or some other persons for his benefit;

(c) That the testator's signature was procured by fraud and/or that the testator acted
by mistake and did not intend that the instrument he signed should be his will at the
time he affixed his signature thereto. 6
The Quezon City court further noted that the requisite publication of the notice of the
hearing had been duly complied with and that all the heirs had been duly notified of the
hearing, and after receiving the testimony of the three instrumental witnesses to the
decedent's last will, namely Atty. Florencio Albino, Dr. Guillermo A. Picache and Dr. Jose
P. Ojeda, and of the notary public, Atty. Braulio A. Arriola, Jr., who ratified the said last
will, and the documentary evidence (such as the decedent's residence certificates,
income tax return, diplomatic passport, deed of donation) all indicating that the
decedent was a resident of 69 Pi y Margal St., Quezon City, as also affirmed by him in
his last will, the Quezon City court in its said order of 15 May 1964 admitted to
probate the late senator's last will and testament as having been "freely and voluntarily
executed by the testator" and "with all formalities of the law" and appointed petitioner-
widow as executrix of his estate without bond "following the desire of the testator" in
his will as probated.

Instead of appealing from the Quezon City court's said order admitting the will to
probate and naming petitioner-widow as executrix thereof, respondents filed a special
civil action of certiorari and prohibition with preliminary injunction with respondent
Court of Appeals (docketed as case CA-G.R. No. 34104-R) to bar the Rizal court from
proceeding with case No. Q-7898.

On 21 November 1964, the Court of Appeals rendered a decision in favor of

respondents (petitioners therein) and against the herein petitioner, holding that:

Section 1, Rule 73, which fixes the venue in proceedings for the settlement of the
estate of a deceased person, covers both testate and intestate proceedings. Sp. Proc.
2433-R of the Cebu CFI having been filed ahead, it is that court whose jurisdiction was
first invoked and which first attached. It is that court which can properly and exclusively
pass upon the factual issues of (1) whether the decedent left or did not leave a valid
will, and (2) whether or not the decedent was a resident of Cebu at the time of his
death.

Considering therefore that the first proceeding was instituted in the Cebu CFI (Special
Proceeding 2433-R), it follows that the said court must exercise jurisdiction to the
exclusion of the Rizal CFI, in which the petition for probate was filed by the respondent
Rosa Cayetano Cuenco (Special Proceeding Q-7898). The said respondent should assert
her rights within the framework of the proceeding in the Cebu CFI, instead of invoking
the jurisdiction of another court.

The respondents try to make capital of the fact that on March 13, 1964, Judge Amador
Gomez of the Cebu CFI, acting in Sp. Proc. 2433-R, stated that the petition for
appointment of special administrator was "not yet ready for the consideration of the
Court today. It would be premature for this Court to act thereon, it not having yet
regularly acquired jurisdiction to try this proceeding ... . " It is sufficient to state in this
connection that the said judge was certainly not referring to the court's jurisdiction over
the res, not to jurisdiction itself which is acquired from the moment a petition is filed,
but only to theexercise of jurisdiction in relation to the stage of the proceedings. At all
events, jurisdiction is conferred and determined by law and does not depend on the
pronouncements of a trial judge.
The dispositive part of respondent appellate court's judgment provided as follows:

ACCORDINGLY, the writ of prohibition will issue, commanding and directing the
respondent Court of First Instance of Rizal, Branch IX, Quezon City, and the respondent
Judge Damaso B. Tengco to refrain perpetually from proceeding and taking any action
in Special Proceeding Q-7898 pending before the said respondent court. All orders
heretofore issued and actions heretofore taken by said respondent court and
respondent Judge, therein and connected therewith, are hereby annulled. The writ of
injunction heretofore issued is hereby made permanent. No pronouncement as to costs.

Petitioner's motion for reconsideration was denied in a resolution of respondent Court of

Appeals, dated 8 July 1965; hence the herein petition for review on certiorari.

The principal and decisive issue at bar is, theretofore, whether the appellate court erred
in law in issuing the writ of prohibition against the Quezon City court ordering it to
refrain perpetually from proceeding with the testateproceedings and annulling and
setting aside all its orders and actions, particularly its admission to probate of the
decedent's last will and testament and appointing petitioner-widow as executrix thereof
without bond in compliance with the testator's express wish in his testament. This issue
is tied up with the issue submitted to the appellate court, to wit, whether the Quezon
City court acted without jurisdiction or with grave abuse of discretion in taking
cognizance and assuming exclusive jurisdiction over the probate proceedings filed with
it, in pursuance of the Cebu court's order of 10 April 1964 expressly consenting in
deference to the precedence of probate over intestate proceedings that it (the Quezon
City court) should first act "on the petition for probate of the document purporting to be
the last will and testament of the deceased Don Mariano Jesus Cuenco" - which order of
the Cebu court respondents never questioned nor challenged by prohibition
or certiorari proceedings and thus enabled the Quezon City court to proceed without
any impediment or obstruction, once it denied respondent Lourdes Cuenco's motion to
dismiss the probate proceeding for alleged lack of jurisdiction or improper venue,
toproceed with the hearing of the petition and to admit the will to probate upon having
been satisfied as to its due execution and authenticity.

The Court finds under the above-cited facts that the appellate court erred in law in
issuing the writ of prohibition against the Quezon City court from proceeding with the
testate proceedings and annulling and setting aside all its orders and actions,
particularly its admission to probate of the deceased's last will and testament and
appointing petitioner-widow as executrix thereof without bond pursuant to the
deceased testator's express wish, for the following considerations:

1. The Judiciary Act 7 concededly confers original jurisdiction upon all Courts of First
Instance over "all matter of probate, both of testate and intestate estates." On the
other hand, Rule 73, section of the Rules of Court lays down the rule of venue, as the
very caption of the Rule indicates, and in order to prevent conflict among the different
courts which otherwise may properly assume jurisdiction from doing so, the Rule
specifies that "the court first taking cognizance of the settlement of the estate of a
decedent, shall exercise jurisdiction to the exclusion of all other courts." The cited Rule
provides:
Section 1. Where estate of deceased persons settled. If the decedent is an inhabitant of
the Philippines at the time of his death, whether a citizen or an alien, his will shall be
proved, or letters of administration granted, and his estate settled, in the Court of First
Instance in the Province in which he resides at the time of his death, and if he is an
inhabitant of a foreign country, the Court of First Instance of the province in which he
had estate. The court first taking cognizance of the settlement of the estate of a
decedent, shall exercise jurisdiction to the exclusion of all other courts. The jurisdiction
assumed by a court, so far as it depends on the place of residence, of the decedent, or
of the location of his estate, shall not be contested in a suit or proceeding, except in an
appeal from that court, in the original case, or when the want of jurisdiction appears on
the record. (Rule 73) 8

It is equally conceded that the residence of the deceased or the location of his estate
is not an element of jurisdiction over the subject matter but merely of venue. This was
lucidly stated by the late Chief Justice Moran inSy Oa vs. Co Ho 9 as follows:

We are not unaware of existing decisions to the effect that in probate cases the place of
residence of the deceased is regarded as a question of jurisdiction over the subject-
matter. But we decline to follow this view because of its mischievous consequences. For
instance, a probate case has been submitted in good faith to the Court of First Instance
of a province where the deceased had not resided. All the parties, however, including
all the creditors, have submitted themselves to the jurisdiction of the court and the
case is therein completely finished except for a claim of a creditor who also voluntarily
filed it with said court but on appeal from an adverse decision raises for the first time in
this Court the question of jurisdiction of the trial court for lack of residence of the
deceased in the province. If we consider such question of residence as one affecting the
jurisdiction of the trial court over the subject-matter, the effect shall be that the whole
proceedings including all decisions on the different incidents which have arisen in court
will have to be annulled and the same case will have to be commenced
anew before another court of the same rank in another province. That this is
ofmischievous effect in the prompt administration of justice is too obvious to require
comment. (Cf. Tanunchuan vs. Dy Buncio & Co., G.R. No. 48206, December 31, 1942)
Furthermore, section 600 of Act No. 190, 10 providing that the estate of a deceased
person shall be settled in the province where he had last resided, could not have been
intended as defining the jurisdiction of the probate court over the subject-matter,
because such legal provision is contained in a law of procedure dealing merely with
procedural matters, and, as we have said time and again, procedure is one thing and
jurisdiction over the subject matter is another. (Attorney-General vs. Manila Railroad
Company, 20 Phil. 523.) The law of jurisdiction Act No. 136, 11 Section 56, No. 5
confers upon Courts of First Instance jurisdiction over all probate cases independently
of the place of residence of the deceased. Since, however, there are many courts of
First Instance in the Philippines, the Law of Procedure, Act No. 190, section 600, fixes
the venue or the place where each case shall be brought. Thus, the place
of residence of the deceased is not an element of jurisdiction over the subject-matter
but merely of venue. And it is upon this ground that in the new Rules of Court the
province where the estate of a deceased person shall be settled is properly called
"venue".
It should be noted that the Rule on venue does not state that the court with whom the
estate or intestate petition is first filed acquires exclusive jurisdiction.

The Rule precisely and deliberately provides that "the court first taking cognizance of
the settlement of the estateof a decedent, shall exercise jurisdiction to the exclusion of
all other courts."

A fair reading of the Rule since it deals with venue and comity between courts of
equal and co-ordinate jurisdiction indicates that the court with whom the petition is
first filed, must also first take cognizance of the settlement of the estate in order
to exercise jurisdiction over it to the exclusion of all other courts.

Conversely, such court, may upon learning that a petition for probate of the decedent's
last will has been presented in another court where the decedent obviously had his
conjugal domicile and resided with his surviving widow and their minor children, and
that the allegation of the intestate petition before it stating that the decedent
died intestate may be actually false, may decline to take cognizance of the petition and
hold the petition before it in abeyance, and instead defer to the second court which has
before it the petition for probate of the decedent's alleged last will.

2. This exactly what the Cebu court did. Upon petitioner-widow's filing with it a motion
to dismiss Lourdes' intestate petition, it issued its order holding in abeyance its action
on the dismissal motion and deferred to the Quezon City court, awaiting its action on
the petition for probate before that court. Implicit in the Cebu court's order was that if
the will was duly admitted to probate, by the Quezon City court, then it would definitely
decline to take cognizance of Lourdes' intestate petition which would thereby be shown
to be false and improper, and leave the exercise of jurisdiction to the Quezon City
court, to the exclusion of all other courts. Likewise by its act of deference, the Cebu
court left it to the Quezon City court to resolve the question between the parties
whether the decedent's residence at the time of his death was in Quezon City where he
had his conjugal domicile rather than in Cebu City as claimed by respondents. The Cebu
court thus indicated that it would decline to take cognizance of the intestate petition
before it and instead defer to the Quezon City court, unless the latter would make a
negative finding as to the probate petition and the residence of the decedent within its
territory and venue.

3. Under these facts, the Cebu court could not be held to have acted without
jurisdiction or with grave abuse of jurisdiction in declining to take cognizance of
the intestate petition and deferring to the Quezon City court.

Necessarily, neither could the Quezon City court be deemed to have acted without
jurisdiction in taking cognizance of and acting on the probate petition since under Rule
73, section 1, the Cebu court must first take cognizance over the estate of the
decedent and must exercise jurisdiction to exclude all other courts, which the Cebu
court declined to do. Furthermore, as is undisputed, said rule only lays down a rule
of venue and the Quezon City court indisputably had at least equal and
coordinate jurisdiction over the estate.
Since the Quezon City court took cognizance over the probate petition before it
and assumed jurisdiction over the estate, with the consent and deference of the Cebu
court, the Quezon City court should be left now, by the same rule of venue of said Rule
73, to exercise jurisdiction to the exclusion of all other courts.

Under the facts of the case and where respondents submitted to the Quezon City court
their opposition to probate of the will, but failed to appear at the scheduled hearing
despite due notice, the Quezon City court cannot be declared, as the appellate court
did, to have acted without jurisdiction in admitting to probate the decedent's will and
appointing petitioner-widow as executrix thereof in accordance with the
testator's testamentary disposition.

4. The relatively recent case of Uriarte vs. Court of First Instance of Negros
Occidental 12 with facts analogous to the present case 13 is authority against
respondent appellate court's questioned decision.

In said case, the Court upheld the doctrine of precedence of probate proceedings over
intestate proceedings in this wise:

It can not be denied that a special proceeding intended to effect the distribution of the
estate of a deceased person, whether in accordance with the law on intestate
succession or in accordance with his will, is a "probate matter" or a proceeding for the
settlement of his estate. It is equally true, however, that in accordance with settled
jurisprudence in this jurisdiction, testate proceedings for the settlement of the estate of
a deceased person take precedence over intestate proceedings for the same purpose.
Thus it has been held repeatedly that, if in the course of intestate proceedings pending
before a court of first instance it is found that the decedent had left a last will,
proceedings for the probate of the latter should replace the intestate proceedings even
if at that state an administrator had already been appointed, the latter being required
to render final account and turn over the estate in his possession to the executor
subsequently appointed. This however, is understood to be without prejudice that
should the alleged last will be rejected or is disapproved, the proceeding shall continue
as an intestacy. As already adverted to, this is a clear indication that proceedings for
the probate of a will enjoy priority over intestate proceedings. 14

The Court likewise therein upheld the jurisdiction of the second court, (in this case, the
Quezon City court) although opining that certain considerations therein "would seem to
support the view that [therein respondent] should have submitted said will for probate
to the Negros Court, [in this case, the Cebu court] either in a separate special
proceeding or in an appropriate motion for said purpose filed in the already pending
Special Proceeding No. 6344," 15 thus:

But the fact is that instead of the aforesaid will being presented for probate to the
Negros Court, Juan Uriarte Zamacona filed the petition for the purpose with the Manila
Court. We can not accept petitioner's contention in this regard that the latter court had
no jurisdiction to consider said petition, albeit we say that it was not the proper
venue therefor.
It is well settled in this jurisdiction that wrong venue is merely a waivable procedural
defect, and, in the light of the circumstances obtaining in the instant case, we are of
the opinion, and so hold, that petitioner has waived the right to raise such objection or
is precluded from doing so by laches. It is enough to consider in this connection that
petitioner knew of the existence of a will executed by Juan Uriarte y Goite since
December 19, 1961 when Higinio Uriarte filed his opposition to the initial petition filed
in Special Proceeding No. 6344; that petitioner likewise was served with notice of the
existence (presence) of the alleged last will in the Philippines and of the filing of the
petition for its probate with the Manila Court since August 28, 1962 when Juan Uriarte
Zamacona filed a motion for the dismissal of Special Proceeding No. 6344. All these
notwithstanding, it was only on April 15, 1963 that he filed with the Manila Court in
Special Proceeding No. 51396 an Omnibus motion asking for leave to intervene and for
the dismissal and annulment of all the proceedings had therein up to that date; thus
enabling the Manila Court not only to appoint an administrator with the will annexed
but also to admit said will to probate more than five months earlier, or more
specifically, on October 31, 1962. To allow him now to assail the exercise of jurisdiction
over the probate of the will by the Manila Court and the validity of all the proceedings
had in Special Proceeding No. 51396 would put a premium on his negligence. Moreover,
it must be remembered that this Court is not inclined to annul proceedings regularly
had in a lower court even if the latter was not the proper venue therefor, if the net
result would be to have the same proceedings repeated in some other court of similar
jurisdiction; more so in a case like the present where the objection against said
proceedings is raised too late. 16

5. Under Rule 73, section 1 itself, the Quezon City

court's assumption of jurisdiction over the decedent's estate on the basis of the will
duly presented for probate by petitioner-widow and finding that Quezon City was the
firstchoice of residence of the decedent, who had his conjugal home and domicile
therein with the deference in comity duly given by the Cebu court could not be
contested except by appeal from said court in the original case. The last paragraph of
said Rule expressly provides:

... The jurisdiction assumed by a court, so far as it depends on the place of residence of
the decedent, or of the location of his estate, shall not be contested in a suit or
proceeding, except in an appeal from that court, in the original case, or when the want
of jurisdiction appears on the record. (Rule 73)

The exception therein given, viz, "when the want of jurisdiction appears on the record"
could probably be properly invoked, had such deference in comity of the Cebu court to
the Quezon City court not appeared in the record, or had the record otherwise shown
that the Cebu court had taken cognizance of the petition before it and assumed
jurisdiction.

6. On the question that Quezon City established to be the residence of the late senator,
the appellate court while recognizing that "the issue is a legitimate one" held in
reliance on Borja vs. Tan 17 that.

... The issue of residence comes within the competence of whichever court is
considered to prevail in the exercise jurisdiction - in this case, the Court of First Instance
of Cebu as held by this Court. Parenthetically, we note that the question of the
residence of the deceased is a serious one, requiring both factual and legal resolution
on the basis of ample evidence to be submitted in the ordinary course of procedure in
the first instance, particularly in view of the fact that the deceased was better known as
the Senator from Cebu and the will purporting to be his also gives Cebu, besides
Quezon City, as his residence. We reiterate that this matter requires airing in the proper
court, as so indicated in the leading and controlling case of Borja vs. Hon. Bienvenido
Tan, et al., G.R. L-7792, July 27, 1955.

In the case at bar, however, the Cebu court declined to take cognizance of
the intestate petition first filed with it and deferred to the testate proceedings filed with
the Quezon City court and in effect asked the Quezon City court to determine the
residence of the decedent and whether he did leave a last will and testament upon
which would depend the proper venue of the estate proceedings, Cebu or Quezon City.
The Quezon City court having thus determined in effect for both courts at the
behest and with the deference and consent of the Cebu court thatQuezon City was
the actual residence of the decedent who died testate and therefore the proper venue,
the Borja ruling would seem to have no applicability. It would not serve the practical
ends of justice to still require the Cebu court, if the Borja ruling is to be held applicable
and as indicated in the decision under review, to determine for itself the actual
residence of the decedent (when the Quezon City court had already so determined
Quezon City as the actual residence at the Cebu court's behest and respondents have
not seriously questioned this factual finding based on documentary evidence) and if the
Cebu court should likewise determine Quezon City as the actual residence, or its
contrary finding reversed on appeal, only then to allow petitioner-widow after years of
waiting and inaction to institute the corresponding proceedings in Quezon City.

7. With more reason should the Quezon City proceedings be upheld when it is taken
into consideration that Rule 76, section 2 requires that the petition for allowance of a
will must show: "(a) the jurisdictional facts." Such "jurisdictional facts" in probate
proceedings, as held by the Court in Fernando vs. Crisostomo 18 " are the death of the
decedent, his residence at the time of his death in the province where the probate
court is sitting, or if he is an inhabitant of a foreign country, his having left his estate in
such province."

This tallies with the established legal concept as restated by Moran that
"(T)he probate of a will is a proceeding in rem. The notice by publication as a pre-
requisite to the allowance of a will, is a constructive notice to the whole world, and
when probate is granted, the judgment of the court is binding upon everybody, even
against the State.The probate of a will by a court having jurisdiction thereof is
conclusive as to its due execution and validity." 19 The Quezon City court acted
regularly within its jurisdiction (even if it were to be conceded that Quezon City was not
the proper venue notwithstanding the Cebu court's giving way and deferring to it,) in
admitting the decedent's last will to probate and naming petitioner-widow as executrix
thereof. Hence, the Quezon city court's action should not be set aside by a writ of
prohibition for supposed lack of jurisdiction as per the appellate court's appealed
decision, and should instead be sustained in line with Uriarte, supra, where the Court,
in dismissing the certiorari petition challenging the Manila court's action admitting the
decedent's will to probate and distributing the estate in accordance therewith in
the second proceeding, held that "it must be remembered that this Court is not inclined
to annul proceedings regularly had in a lower court even if the latter was not the proper
venue therefor, if the net result would be to have the same proceedings repeated in
some other court of similar jurisdiction." As stressed by Chief Justice Moran in Sy Oa,
supra, "the mischievous effect in the administration of justice" of considering the
question of residence as affecting the jurisdiction of the trial court and annulling the
whole proceedings only to start all over again the same proceedings before another
court of the same rank in another province "is too obvious to require comment."

8. If the question of jurisdiction were to be made to depend only on who of the

decedent's relatives gets first to file a petition for settlement of the decedent's estate,
then the established jurisprudence of the Court that Rule 73, section 1 provides only a
rule of venue in order to preclude different courts which may properly
assumejurisdiction from doing so and creating conflicts between them to the detriment
of the administration of justice, and that venue is waivable, would be set at naught. As
between relatives who unfortunately do not see eye to eye, it would be converted into
a race as to who can file the petition faster in the court of his/her choice regardless of
whether the decedent is still in cuerpo presente and in disregard of the decedent's
actual last domicile, the fact that he left a last will and testament and the right of his
surviving widow named as executrix thereof. Such dire consequences were certainly not
intended by the Rule nor would they be in consonance with public policy and the
orderly administration of justice.

9. It would finally be unjust and inequitable that petitioner-widow, who under all the
applicable rules of venue, and despite the fact that the Cebu court (where respondent
Lourdes Cuenco had filed an intestate petition in the Cebu court earlier by a week's
time on 5 March 1964) deferred to the Quezon City court where petitioner had within
fifteen days (on March 12, 1964) after the decedent's death (on February 25, 1964)
timely filed the decedent's last will and petitioned for letters testamentary and is
admittedly entitled to preference in the administration of her husband's
estate, 20 would be compelled under the appealed decision to have to go all the way to
Cebu and submit anew the decedent's will there for probate either in a new proceeding
or by asking that the intestate proceedings be converted into a testate proceeding
when under the Rules, the proper venue for the testate proceedings, as per the facts of
record and as already affirmed by the Quezon City court is Quezon City, where the
decedent and petitioner-widow had their conjugal domicile.

It would be an unfair imposition upon petitioner as the one named and entitled to be
executrix of the decedent's last will and settle his estate in accordance therewith, and a
disregard of her rights under the rule on venue and the law on jurisdiction to require
her to spend much more time, money and effort to have to go from Quezon City to the
Cebu court everytime she has an important matter of the estate to take up with the
probate court.

It would doubly be an unfair imposition when it is considered that under Rule 73,
section 2, 21 since petitioner's marriage has been dissolved with the death of her
husband, their community property and conjugal estate have to beadministered and
liquidated in the estate proceedings of the deceased spouse. Under the appealed
decision, notwithstanding that petitioner resides in Quezon City, and the proper venue
of the testate proceeding was in Quezon City and the Quezon City court properly took
cognizance and exercised exclusive jurisdiction with the deference in comity and
consent of the Cebu court, such proper exercise of jurisdiction would be nullified and
petitioner would have to continually leave her residence in Quezon City and go to Cebu
to settle and liquidate even her own community property and conjugal estate with the
decedent.

10. The Court therefore holds under the facts of record that the Cebu court did not act
without jurisdiction nor with grave abuse of discretion in declining to take cognizance of
the intestate petition and instead deferring to thetestate proceedings filed just a week
later by petitioner as surviving widow and designated executrix of the decedent's last
will, since the record before it (the petitioner's opposition and motion to dismiss)
showed the falsityof the allegation in the intestate petition that the decedent had
died without a will. It is noteworthy that respondents never challenged by certiorari or
prohibition proceedings the Cebu court's order of 10 April 1964 deferring to the probate
proceedings before the Quezon City court, thus leaving the latter free (pursuant to the
Cebu court's order of deference) to exercise jurisdiction and admit the decedent's will
to probate.

For the same reasons, neither could the Quezon City court be held to have acted
without jurisdiction nor with grave abuse of discretion in admitting the decedent's will
to probate and appointing petitioner as executrix in accordance with its testamentary
disposition, in the light of the settled doctrine that the provisions of Rule 73, section 1
lay down only a rule of venue, not of jurisdiction.

Since respondents undisputedly failed to appeal from the Quezon City court's order of
May 15, 1964 admitting the will to probate and appointing petitioner as executrix
thereof, and said court concededly has jurisdiction to issue said order, the said order of
probate has long since become final and can not be overturned in a special civic action
of prohibition.

11. Finally, it should be noted that in the Supreme Court's exercise of its supervisory
authority over all inferior courts, 22 it may properly determine, as it has done in the
case at bar, that venue was properly assumed by and transferredto the Quezon City
court and that it is the interest of justice and in avoidance of needless delay that the
Quezon City court's exercise of jurisdiction over the testate estate of the decedent (with
the due deference and consent of the Cebu court) and its admission to probate of his
last will and testament and appointment of petitioner-widow as administratrix without
bond in pursuance of the decedent's express will and all its orders and actions taken in
the testate proceedings before it be approved and authorized rather than to annul all
such proceedings regularly had and to repeat and duplicate the same proceedings
before the Cebu court only to revert once more to the Quezon City court should the
Cebu court find that indeed and in fact, as already determined by the Quezon City court
on the strength of incontrovertible documentary evidence of record, Quezon City was
the conjugal residence of the decedent.
ACCORDINGLY, judgment is hereby rendered reversing the appealed decision and
resolution of the Court of Appeals and the petition for certiorari and prohibition with
preliminary injunction originally filed by respondents with the Court of Appeals (CA-G.R.
No. 34104-R) is ordered dismissed. No costs.

Separate Opinions

BARREDO, J., concurring:

I concur in the main opinion of Mr. Justice Teehankee.

I only want to stress that in my view, the failure of respondents to question within a
reasonable time the laying of the venue in the Quezon City Court of First Instance and
the assumption of jurisdiction by that court, after the Court of First Instance of Cebu
deferred in its favor, in order to prevent the holding therein of any proceeding and trial,
and their having filed therein a formal opposition to the probate of the will, makes them
guilty of laches, for which reason they are not entitled to the equitable relief prayed for
in the present petition.

G.R. No. 83484 February 12, 1990

CELEDONIA SOLIVIO, petitioner,

vs.
THE HONORABLE COURT OF APPEALS and CONCORDIA JAVELLANA
VILLANUEVA, respondents.

Rex Suiza Castillon for petitioner.

Salas & Villareal for private respondent.

MEDIALDEA, J.:

This is a petition for review of the decision dated January 26, 1988 of the Court of
Appeals in CA GR CV No. 09010 (Concordia Villanueva v. Celedonia Solivio) affirming
the decision of the trial court in Civil Case No. 13207 for partition, reconveyance of
ownership and possession and damages, the dispositive portion of which reads as
follows:

WHEREFORE, judgment is hereby rendered for the plaintiff and against defendant:

a) Ordering that the estate of the late Esteban Javellana, Jr. be divided into two (2)
shares: one-half for the plaintiff and one-half for defendant. From both shares shall be
equally deducted the expenses for the burial, mausoleum and related expenditures.
Against the share of defendants shall be charged the expenses for scholarship, awards,
donations and the 'Salustia Solivio Vda. de Javellana Memorial Foundation;'

b) Directing the defendant to submit an inventory of the entire estate property,

including but not limited to, specific items already mentioned in this decision and to
render an accounting of the property of the estate, within thirty (30) days from receipt
of this judgment; one-half (1/2) of this produce shall belong to plaintiff;

c) Ordering defendant to pay plaintiff P5,000.00 as expenses of litigation; P10,000.00

for and as attorney's fees plus costs.

SO ORDERED. (pp. 42-43, Rollo)

This case involves the estate of the late novelist, Esteban Javellana, Jr., author of the
first post-war Filipino novel "Without Seeing the Dawn," who died a bachelor, without
descendants, ascendants, brothers, sisters, nephews or nieces. His only surviving
relatives are: (1) his maternal aunt, petitioner Celedonia Solivio, the spinster half-sister
of his mother, Salustia Solivio; and (2) the private respondent, Concordia Javellana-
Villanueva, sister of his deceased father, Esteban Javellana, Sr.

He was a posthumous child. His father died barely ten (10) months after his marriage in
December, 1916 to Salustia Solivio and four months before Esteban, Jr. was born.

Salustia and her sister, Celedonia (daughter of Engracio Solivio and his second wife
Josefa Fernandez), a teacher in the Iloilo Provincial High School, brought up Esteban, Jr.

Salustia brought to her marriage paraphernal properties (various parcels of land in

Calinog, Iloilo covered by 24 titles) which she had inherited from her mother, Gregoria
Celo, Engracio Solivio's first wife (p. 325, Record), but no conjugal property was
acquired during her short-lived marriage to Esteban, Sr.

On October 11, 1959, Salustia died, leaving all her properties to her only child, Esteban,
Jr., including a house and lot in La Paz, Iloilo City, where she, her son, and her sister
lived. In due time, the titles of all these properties were transferred in the name of
Esteban, Jr.

During his lifetime, Esteban, Jr. had, more than once, expressed to his aunt Celedonia
and some close friends his plan to place his estate in a foundation to honor his mother
and to help poor but deserving students obtain a college education. Unfortunately, he
died of a heart attack on February 26,1977 without having set up the foundation.

Two weeks after his funeral, Concordia and Celedonia talked about what to do with
Esteban's properties. Celedonia told Concordia about Esteban's desire to place his
estate in a foundation to be named after his mother, from whom his properties came,
for the purpose of helping indigent students in their schooling. Concordia agreed to
carry out the plan of the deceased. This fact was admitted by her in her "Motion to
Reopen and/or Reconsider the Order dated April 3, 1978" which she filed on July 27,
1978 in Special Proceeding No. 2540, where she stated:

4. That petitioner knew all along the narrated facts in the immediately preceding
paragraph [that herein movant is also the relative of the deceased within the third
degree, she being the younger sister of the late Esteban Javellana, father of the
decedent herein], because prior to the filing of the petition they (petitioner Celedonia
Solivio and movant Concordia Javellana) have agreed to make the estate of the
decedent a foundation, besides they have closely known each other due to their
filiation to the decedent and they have been visiting each other's house which are not
far away for (sic) each other. (p. 234, Record; Emphasis supplied.)

Pursuant to their agreement that Celedonia would take care of the proceedings leading
to the formation of the foundation, Celedonia in good faith and upon the advice of her
counsel, filed on March 8, 1977 Spl. Proceeding No. 2540 for her appointment as special
administratrix of the estate of Esteban Javellana, Jr. (Exh. 2). Later, she filed an
amended petition (Exh. 5) praying that letters of administration be issued to her; that
she be declared sole heir of the deceased; and that after payment of all claims and
rendition of inventory and accounting, the estate be adjudicated to her (p. 115, Rollo).

After due publication and hearing of her petition, as well as her amended petition, she
was declared sole heir of the estate of Esteban Javellana, Jr. She explained that this was
done for three reasons: (1) because the properties of the estate had come from her
sister, Salustia Solivio; (2) that she is the decedent's nearest relative on his mother's
side; and (3) with her as sole heir, the disposition of the properties of the estate to fund
the foundation would be facilitated.

On April 3, 1978, the court (Branch II, CFI, now Branch 23, RTC) declared her the sole
heir of Esteban, Jr. Thereafter, she sold properties of the estate to pay the taxes and
other obligations of the deceased and proceeded to set up the "SALUSTIA SOLIVIO VDA.
DE JAVELLANA FOUNDATION" which she caused to be registered in the Securities and
Exchange Commission on July 17,1981 under Reg. No. 0100027 (p. 98, Rollo).

Four months later, or on August 7, 1978, Concordia Javellana Villanueva filed a motion
for reconsideration of the court's order declaring Celedonia as "sole heir" of Esteban, Jr.,
because she too was an heir of the deceased. On October 27, 1978, her motion was
denied by the court for tardiness (pp. 80-81, Record). Instead of appealing the denial,
Concordia filed on January 7, 1980 (or one year and two months later), Civil Case No.
13207 in the Regional Trial Court of Iloilo, Branch 26, entitled "Concordia Javellana-
Villanueva v. Celedonia Solivio" for partition, recovery of possession, ownership and
damages.
On September 3, 1984, the said trial court rendered judgment in Civil Case No. 13207,
in favor of Concordia Javellana-Villanueva.

On Concordia's motion, the trial court ordered the execution of its judgment pending
appeal and required Celedonia to submit an inventory and accounting of the estate. In
her motions for reconsideration of those orders, Celedonia averred that the properties
of the deceased had already been transferred to, and were in the possession of, the
'Salustia Solivio Vda. de Javellana Foundation." The trial court denied her motions for
reconsideration.

In the meantime, Celedonia perfected an appeal to the Court of Appeals (CA GR CV No.
09010). On January 26, 1988, the Court of Appeals, Eleventh Division, rendered
judgment affirming the decision of the trial court in toto.Hence, this petition for review
wherein she raised the following legal issues:

1. whether Branch 26 of the RTC of Iloilo had jurisdiction to entertain Civil Case No.
13207 for partition and recovery of Concordia Villanueva's share of the estate of
Esteban Javellana, Jr. even while the probate proceedings (Spl. Proc. No. 2540) were still
pending in Branch 23 of the same court;

2. whether Concordia Villanueva was prevented from intervening in Spl. Proc. No. 2540
through extrinsic fraud;

3. whether the decedent's properties were subject to reserva troncal in favor of

Celedonia, his relative within the third degree on his mother's side from whom he had
inherited them; and

4. whether Concordia may recover her share of the estate after she had agreed to place
the same in the Salustia Solivio Vda. de Javellana Foundation, and notwithstanding the
fact that conformably with said agreement, the Foundation has been formed and
properties of the estate have already been transferred to it.

I. The question of jurisdiction

After a careful review of the records, we find merit in the petitioner's contention that
the Regional Trial Court, Branch 26, lacked jurisdiction to entertain Concordia
Villanueva's action for partition and recovery of her share of the estate of Esteban
Javellana, Jr. while the probate proceedings (Spl, Proc. No. 2540) for the settlement of
said estate are still pending in Branch 23 of the same court, there being as yet no
orders for the submission and approval of the administratix's inventory and accounting,
distributing the residue of the estate to the heir, and terminating the proceedings (p.
31, Record).

It is the order of distribution directing the delivery of the residue of the estate to the
persons entitled thereto that brings to a close the intestate proceedings, puts an end to
the administration and thus far relieves the administrator from his duties (Santiesteban
v. Santiesteban, 68 Phil. 367, Philippine Commercial and Industrial Bank v. Escolin, et
al., L-27860, March 29, 1974, 56 SCRA 266).
The assailed order of Judge Adil in Spl. Proc. No. 2540 declaring Celedonia as the sole
heir of the estate of Esteban Javellana, Jr. did not toll the end of the proceedings. As a
matter of fact, the last paragraph of the order directed the administratrix to "hurry up
the settlement of the estate." The pertinent portions of the order are quoted below:

2. As regards the second incident [Motion for Declaration of Miss Celedonia Solivio as
Sole Heir, dated March 7, 1978], it appears from the record that despite the notices
posted and the publication of these proceedings as required by law, no other heirs
came out to interpose any opposition to the instant proceeding. It further appears that
herein Administratrix is the only claimant-heir to the estate of the late Esteban
Javellana who died on February 26, 1977.

During the hearing of the motion for declaration as heir on March 17, 1978, it was
established that the late Esteban Javellana died single, without any known issue, and
without any surviving parents. His nearest relative is the herein Administratrix, an elder
[sic] sister of his late mother who reared him and with whom he had always been living
with [sic] during his lifetime.

xxxxxxxxx

2. Miss Celedonia Solivio, Administratrix of this estate, is hereby declared as the sole
and legal heir of the late Esteban S. Javellana, who died intestate on February 26, 1977
at La Paz, Iloilo City.

The Administratrix is hereby instructed to hurry up with the settlement of this estate so
that it can be terminated. (pp, 14-16, Record)

In view of the pendency of the probate proceedings in Branch 11 of the Court of First
Instance (now RTC, Branch 23), Concordia's motion to set aside the order declaring
Celedonia as sole heir of Esteban, and to have herself (Concordia) declared as co-heir
and recover her share of the properties of the deceased, was properly filed by her in
Spl. Proc. No. 2540. Her remedy when the court denied her motion, was to elevate the
denial to the Court of Appeals for review on certiorari. However, instead of availing of
that remedy, she filed more than one year later, a separate action for the same
purpose in Branch 26 of the court. We hold that the separate action was improperly
filed for it is the probate court that has exclusive jurisdiction to make a just and legal
distribution of the estate.

In the interest of orderly procedure and to avoid confusing and conflicting dispositions
of a decedent's estate, a court should not interfere with probate proceedings pending in
a co-equal court. Thus, did we rule in Guilas v. Judge of the Court of First Instance of
Pampanga, L-26695, January 31, 1972, 43 SCRA 111, 117, where a daughter filed a
separate action to annul a project of partition executed between her and her father in
the proceedings for the settlement of the estate of her mother:

The probate court loses jurisdiction of an estate under administration only after the
payment of all the debts and the remaining estate delivered to the heirs entitled to
receive the same. The finality of the approval of the project of The probate court, in the
exercise of its jurisdiction to make distribution, has power to determine the proportion
or parts to which each distributed is entitled. ... The power to determine the legality or
illegality of the testamentary provision is inherent in the jurisdiction of the court making
a just and legal distribution of the inheritance. ... To hold that a separate and
independent action is necessary to that effect, would be contrary to the general
tendency of the jurisprudence of avoiding multiplicity of suits; and is further, expensive,
dilatory, and impractical. (Marcelino v. Antonio, 70 Phil. 388)

A judicial declaration that a certain person is the only heir of the decedent is
exclusively within the range of the administratrix proceedings and can not properly be
made an independent action. (Litam v. Espiritu, 100 Phil. 364)

A separate action for the declaration of heirs is not proper. (Pimentel v. Palanca, 5 Phil.
436)

partition by itself alone does not terminate the probate proceeding (Timbol v. Cano, 1
SCRA 1271, 1276, L-15445, April 29, 1961; Siguiong v. Tecson, 89 Phil. pp. 28, 30). As
long as the order of the distribution of the estate has not been complied with, the
probate proceedings cannot be deemed closed and terminated Siguiong v.
Tecson, supra); because a judicial partition is not final and conclusive and does not
prevent the heirs from bringing an action to obtain his share, provided the prescriptive
period therefore has not elapsed (Mari v. Bonilia, 83 Phil. 137). The better practice,
however, for the heir who has not received his share, is to demand his share through a
proper motion in the same probate or administration proceedings, or for reopening of
the probate or administrative proceedings if it had already been closed, and not
through an independent action,which would be tried by another court or Judge which
may thus reverse a decision or order of the probate or intestate court already final and
executed and re-shuffle properties long ago distributed and disposed of. (Ramos v.
Ortuzar, 89 Phil. 730, 741-742; Timbol v. Cano, supra; Jingco v. Daluz, L-5107, April 24,
1953, 92 Phil. 1082; Roman Catholic v. Agustines, L-14710, March 29, 1960, 107 Phil.
455, 460-461; Emphasis supplied)

In Litam et al., v. Rivera, 100 Phil. 364, where despite the pendency of the special
proceedings for the settlement of the intestate estate of the deceased Rafael Litam the
plaintiffs-appellants filed a civil action in which they claimed that they were the children
by a previous marriage of the deceased to a Chinese woman, hence, entitled to inherit
his one-half share of the conjugal properties acquired during his marriage to Marcosa
Rivera, the trial court in the civil case declared that the plaintiffs-appellants were not
children of the deceased, that the properties in question were paraphernal properties of
his wife, Marcosa Rivera, and that the latter was his only heir. On appeal to this Court,
we ruled that "such declarations (that Marcosa Rivera was the only heir of the
decedent) is improper, in Civil Case No. 2071, it being within the exclusive competence
of the court in Special Proceedings No. 1537, in which it is not as yet, in issue, and, will
not be, ordinarily, in issue until the presentation of the project of partition. (p. 378).

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

II. The question of extrinsic fraud

Was Concordia prevented from intervening in the intestate proceedings by extrinsic

fraud employed by Celedonia? It is noteworthy that extrinsic fraud was not alleged in
Concordia's original complaint in Civil Case No. 13207. It was only in her amended
complaint of March 6, 1980, that extrinsic fraud was alleged for the first time.

Extrinsic fraud, as a ground for annulment of judgment, is any act or conduct of the
prevailing party which prevented a fair submission of the controversy (Francisco v.
David, 38 O.G. 714). A fraud 'which prevents a party from having a trial or presenting
all of his case to the court, or one which operates upon matters pertaining, not to the
judgment itself, but to the manner by which such judgment was procured so much so
that there was no fair submission of the controversy. For instance, if through fraudulent
machination by one [his adversary], a litigant was induced to withdraw his defense or
was prevented from presenting an available defense or cause of action in the case
wherein the judgment was obtained, such that the aggrieved party was deprived of his
day in court through no fault of his own, the equitable relief against such judgment may
be availed of. (Yatco v. Sumagui, 44623-R, July 31, 1971). (cited in Philippine Law
Dictionary, 1972 Ed. by Moreno; Varela v. Villanueva, et al., 96 Phil. 248)

A judgment may be annulled on the ground of extrinsic or collateral fraud, as

distinguished from intrinsic fraud, which connotes any fraudulent scheme executed by
a prevailing litigant 'outside the trial of a case against the defeated party, or his agents,
attorneys or witnesses, whereby said defeated party is prevented from presenting fully
and fairly his side of the case. ... The overriding consideration is that the fraudulent
scheme of the prevailing litigant prevented a party from having his day in court or from
presenting his case. The fraud, therefore, is one that affects and goes into the
jurisdiction of the court. (Libudan v. Gil, L-21163, May 17, 1972, 45 SCRA 17, 27-29;
Sterling Investment Corp. v. Ruiz, L-30694, October 31, 1969, 30 SCRA 318, 323)

The charge of extrinsic fraud is, however, unwarranted for the following reasons:

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

Celedonia. She admitted in her complaint that she and Celedonia had agreed that the
latter would "initiate the necessary proceeding" and pay the taxes and obligations of
the estate. Thus paragraph 6 of her complaint alleged:

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

Evidently, Concordia was not prevented from intervening in the proceedings. She
stayed away by choice.Besides, she knew that the estate came exclusively from
Esteban's mother, Salustia Solivio, and she had agreed with Celedonia to place it in a
foundation as the deceased had planned to do.

2. The probate proceedings are proceedings in rem. Notice of the time and place of
hearing of the petition is required to be published (Sec. 3, Rule 76 in relation to Sec. 3,
Rule 79, Rules of Court). Notice of the hearing of Celedonia's original petition was
published in the "Visayan Tribune" on April 25, May 2 and 9, 1977 (Exh 4, p. 197,
Record). Similarly, notice of the hearing of her amended petition of May 26, 1977 for
the settlement of the estate was, by order of the court, published in "Bagong Kasanag"
(New Light) issues of May 27, June 3 and 10, 1977 (pp. 182-305, Record). The
publication of the notice of the proceedings was constructive notice to the whole world.
Concordia was not deprived of her right to intervene in the proceedings for she had
actual, as well as constructive notice of the same. As pointed out by the probate court
in its order of October 27, 1978:

... . The move of Concordia Javellana, however, was filed about five months after
Celedonia Solivio was declared as the sole heir. ... .

Considering that this proceeding is one in rem and had been duly published as required
by law, despite which the present movant only came to court now, then she is guilty of
laches for sleeping on her alleged right. (p. 22, Record)

The court noted that Concordia's motion did not comply with the requisites of a petition
for relief from judgment nor a motion for new trial.

The rule is stated in 49 Corpus Juris Secundum 8030 as follows:

Where petition was sufficient to invoke statutory jurisdiction of probate court

and proceeding was in rem no subsequent errors or irregularities are available on
collateral attack. (Bedwell v. Dean 132 So. 20)

Celedonia's allegation in her petition that she was the sole heir of Esteban within the
third degree on his mother's side was not false. Moreover, it was made in good faith
and in the honest belief that because the properties of Esteban had come from his
mother, not his father, she, as Esteban's nearest surviving relative on his mother's side,
is the rightful heir to them. It would have been self-defeating and inconsistent with her
claim of sole heirshipif she stated in her petition that Concordia was her co-heir. Her
omission to so state did not constitute extrinsic fraud.

Failure to disclose to the adversary, or to the court, matters which would defeat one's
own claim or defense is not such extrinsic fraud as will justify or require vacation of the
judgment. (49 C.J.S. 489, citing Young v. Young, 2 SE 2d 622; First National Bank & Trust
Co. of King City v. Bowman, 15 SW 2d 842; Price v. Smith, 109 SW 2d 1144, 1149)
It should be remembered that a petition for administration of a decedent's estate may
be filed by any "interested person" (Sec. 2, Rule 79, Rules of Court). The filing of
Celedonia's petition did not preclude Concordia from filing her own.

III. On the question of reserva troncal

We find no merit in the petitioner's argument that the estate of the deceased was
subject to reserva troncal and that it pertains to her as his only relative within the third
degree on his mother's side. The reserva troncalprovision of the Civil Code is found in
Article 891 which reads as follows:

ART. 891. The ascendant who inherits from his descendant any property which the
latter may have acquired by gratuitous title from another ascendant, or a brother or
sister, is obliged to reserve such property as he may have acquired by operation of law
for the benefit of relatives who are within the third degree and who belong to the line
from which said property came.

The persons involved in reserva troncal are:

1. The person obliged to reserve is the reservor (reservista)the ascendant who

inherits by operation of law property from his descendants.

2. The persons for whom the property is reserved are the reservees (reservatarios)
relatives within the third degree counted from the descendant (propositus), and
belonging to the line from which the property came.

3. The propositusthe descendant who received by gratuitous title and died without
issue, making his other ascendant inherit by operation of law. (p. 692, Civil Law by
Padilla, Vol. II, 1956 Ed.)

Clearly, the property of the deceased, Esteban Javellana, Jr., is not reservable property,
for Esteban, Jr. was not an ascendant, but the descendant of his mother, Salustia
Solivio, from whom he inherited the properties in question. Therefore, he did not hold
his inheritance subject to a reservation in favor of his aunt, Celedonia Solivio, who is his
relative within the third degree on his mother's side. The reserva troncal applies to
properties inherited by an ascendant from a descendant who inherited it from another
ascendant or 9 brother or sister. It does not apply to property inherited by a descendant
from his ascendant, the reverse of the situation covered by Article 891.

Since the deceased, Esteban Javellana, Jr., died without descendants, ascendants,
illegitimate children, surviving spouse, brothers, sisters, nephews or nieces, what
should apply in the distribution of his estate are Articles 1003 and 1009 of the Civil
Code which provide:

ART. 1003. If there are no descendants, ascendants, illegitimate children, or a surviving

spouse, the collateral relatives shall succeed to the entire estate of the deceased in
accordance with the following articles.

ART. 1009. Should there be neither brothers nor sisters, nor children of brothers or
sisters, the other collateral relatives shall succeed to the estate.
The latter shall succeed without distinction of lines or preference among them by
reason of relationship by the whole blood.

Therefore, the Court of Appeals correctly held that:

Both plaintiff-appellee and defendant-appellant being relatives of the decedent within

the third degree in the collateral line, each, therefore, shall succeed to the subject
estate 'without distinction of line or preference among them by reason of relationship
by the whole blood,' and is entitled one-half (1/2) share and share alike of the estate.
(p. 57, Rollo)

IV. The question of Concordia's one-half share

However, inasmuch as Concordia had agreed to deliver the estate of the deceased to
the foundation in honor of his mother, Salustia Solivio Vda. de Javellana (from whom
the estate came), an agreement which she ratified and confirmed in her "Motion to
Reopen and/or Reconsider Order dated April 3, 1978" which she filed in Spl. Proceeding
No. 2540:

4. That ... prior to the filing of the petition they (petitioner Celedonia Solivio and movant
Concordia Javellana) have agreed to make the estate of the decedent a
foundation, besides they have closely known each other due to their filiation to the
decedent and they have been visiting each other's house which are not far away for
(sic) each other. (p. 234, Record; Emphasis supplied) she is bound by that agreement. It
is true that by that agreement, she did not waive her inheritance in favor of Celedonia,
but she did agree to place all of Esteban's estate in the "Salustia Solivio Vda. de
Javellana Foundation" which Esteban, Jr., during his lifetime, planned to set up to honor
his mother and to finance the education of indigent but deserving students as well.

Her admission may not be taken lightly as the lower court did. Being a judicial
admission, it is conclusive and no evidence need be presented to prove the agreement
(Cunanan v. Amparo, 80 Phil. 227; Granada v. Philippine National Bank, L-20745, Sept.
2, 1966, 18 SCRA 1; Sta. Ana v. Maliwat, L-23023, Aug. 31, 1968, 24 SCRA 1018; People
v. Encipido, G.R.70091, Dec. 29, 1986, 146 SCRA 478; and Rodillas v. Sandiganbayan,
G.R. 58652, May 20, 1988, 161 SCRA 347).

The admission was never withdrawn or impugned by Concordia who, significantly, did
not even testify in the case, although she could have done so by deposition if she were
supposedly indisposed to attend the trial. Only her husband, Narciso, and son-in-law,
Juanito Domin, actively participated in the trial. Her husband confirmed the agreement
between his wife and Celedonia, but he endeavored to dilute it by alleging that his wife
did not intend to give all, but only one-half, of her share to the foundation (p. 323,
Record).

The records show that the "Salustia Solivio Vda. de Javellana Foundation" was
established and duly registered in the Securities and Exchange Commission under Reg.
No. 0100027 for the following principal purposes:

1. To provide for the establishment and/or setting up of scholarships for such deserving
students as the Board of Trustees of the Foundation may decide of at least one scholar
each to study at West Visayas State College, and the University of the Philippines in the
Visayas both located in Iloilo City.

2. To provide a scholarship for at least one scholar for St. Clements Redemptorist
Community for a deserving student who has the religious vocation to become a priest.

3. To foster, develop, and encourage activities that will promote the advancement and
enrichment of the various fields of educational endeavors, especially in literary arts.
Scholarships provided for by this foundation may be named after its benevolent
benefactors as a token of gratitude for their contributions.

4. To direct or undertake surveys and studies in the community to determine

community needs and be able to alleviate partially or totally said needs.

5. To maintain and provide the necessary activities for the proper care of the Solivio-
Javellana mausoleum at Christ the King Memorial Park, Jaro, Iloilo City, and the
Javellana Memorial at the West Visayas State College, as a token of appreciation for the
contribution of the estate of the late Esteban S. Javellana which has made this
foundation possible. Also, in perpetuation of his Roman Catholic beliefs and those of his
mother, Gregorian masses or their equivalents will be offered every February and
October, and Requiem masses every February 25th and October llth, their death
anniversaries, as part of this provision.

6. To receive gifts, legacies, donations, contributions, endowments and financial aids or

loans from whatever source, to invest and reinvest the funds, collect the income
thereof and pay or apply only the income or such part thereof as shall be determined
by the Trustees for such endeavors as may be necessary to carry out the objectives of
the Foundation.

7. To acquire, purchase, own, hold, operate, develop, lease, mortgage, pledge,

exchange, sell, transfer, or otherwise, invest, trade, or deal, in any manner permitted
by law, in real and personal property of every kind and description or any interest
herein.

8. To do and perform all acts and things necessary, suitable or proper for the
accomplishments of any of the purposes herein enumerated or which shall at any time
appear conducive to the protection or benefit of the corporation, including the exercise
of the powers, authorities and attributes concerned upon the corporation organized
under the laws of the Philippines in general, and upon domestic corporation of like
nature in particular. (pp. 9-10, Rollo)

As alleged without contradiction in the petition' for review:

The Foundation began to function in June, 1982, and three (3) of its eight Esteban
Javellana scholars graduated in 1986, one (1) from UPV graduated Cum Laude and two
(2) from WVSU graduated with honors; one was a Cum Laude and the other was a
recipient of Lagos Lopez award for teaching for being the most outstanding student
teacher.
The Foundation has four (4) high school scholars in Guiso Barangay High School, the
site of which was donated by the Foundation. The School has been selected as the Pilot
Barangay High School for Region VI.

The Foundation has a special scholar, Fr. Elbert Vasquez, who would be ordained this
year. He studied at St. Francis Xavier Major Regional Seminary at Davao City. The
Foundation likewise is a member of the Redemptorist Association that gives yearly
donations to help poor students who want to become Redemptorist priests or brothers.
It gives yearly awards for Creative writing known as the Esteban Javellana Award.

Further, the Foundation had constructed the Esteban S. Javellana Multi-purpose Center
at the West Visayas State University for teachers' and students' use, and has likewise
contributed to religious civic and cultural fund-raising drives, amongst other's. (p. 10,
Rollo)

Having agreed to contribute her share of the decedent's estate to the Foundation,
Concordia is obligated to honor her commitment as Celedonia has honored hers.

WHEREFORE, the petition for review is granted. The decision of the trial court and the
Court of Appeals are hereby SET ASIDE. Concordia J. Villanueva is declared an heir of
the late Esteban Javellana, Jr. entitled to one-half of his estate. However, comformably
with the agreement between her and her co-heir, Celedonia Solivio, the entire estate of
the deceased should be conveyed to the "Salustia Solivio Vda. de Javallana
Foundation," of which both the petitioner and the private respondent shall be trustees,
and each shall be entitled to nominate an equal number of trustees to constitute the
Board of Trustees of the Foundation which shall administer the same for the purposes
set forth in its charter. The petitioner, as administratrix of the estate, shall submit to
the probate court an inventory and accounting of the estate of the deceased
preparatory to terminating the proceedings therein.

SO ORDERED.

G.R. No. 45904 September 30, 1938

Intestate estate of the deceased Luz Garcia. PABLO G. UTULO, applicant-appellee,
vs.
LEONA PASION VIUDA DE GARCIA, oppositor-appellant.

Feliciano B. Gardiner for appellant.

Gerardo S. Limlingan for appellee.

IMPERIAL, J.:

This is an appeal taken by the oppositor from the order of the Court of First Instance of
the Province of Tarlac appointing the applicant as judicial administrator of the property
left by the deceased Luz Garcia.

Juan Garcia Sanchez died intestate, and in the proceedings instituted in the Court of
First Instance of Tarlac for the administration of his property (special proceedings No.
3475), Leona Pasion Vda. de Garcia, the surviving spouse and the herein oppositor, was
appointed judicial administratrix. The said deceased left legitimate children, named
Juan Garcia, jr., Patrocinio Garcia and Luz Garcia who, with the widow, are the
presumptive forced heirs. Luz Garcia married the applicant Pablo G. Utulo and during
the pendency of the administration proceedings of the said deceased, she died in the
province without any legitimate descendants, her only forced heirs being her mother
and her husband. The latter commenced in the same court the judicial administration
of the property of his deceased wife (special proceedings No. 4188), stating in his
petition that her only heirs were he himself and his mother-in-law, the oppositor, and
that the only property left by the deceased consisted in the share due her from the
intestate of her father, Juan Garcia Sanchez, and asking that he be named
administrator of the property of said deceased. The oppositor objected to the petition,
opposing the judicial administration of the property of her daughter and the
appointment of the applicant as administrator. She alleged that inasmuch as the said
deceased left no indebtedness, there was no occasion for the said judicial
administration; but she stated that should the court grant the administration of the
property, she should be appointed the administratrix thereof inasmuch as she had a
better right than the applicant. After the required publications, trial was had and the
court, on August 28, 1936, finally issued the appealed order to which the oppositor
excepted and thereafter filed the record on appeal which was certified and approved.

The oppositor-appellant assigns five errors allegedly committed by the trial court, but
these assigned errors raise only two questions for resolution, namely: whether upon the
admitted facts the judicial administration of the property left by the deceased Luz
Garcia lies, with the consequent appointment of an administrator, and whether the
appellant has a better right to the said office than the appellee.

1. As to the first question, we have section 642 of the Code of Civil Procedure providing
in part that "if no executor is named in the will, or if a person dies intestate,
administration shall be granted" etc. This provision enunciates the general rule that
when a person dies living property in the Philippine Islands, his property should be
judicially administered and the competent court should appoint a qualified
administrator, in the order established in the section, in case the deceased left no will,
or in case he had left one should he fail to name an executor therein. This rule,
however, is subject to the exceptions established by sections 596 and 597 of the same
Code, as finally amended. According to the first, 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. According to the second, if the property left does not exceed six
thousand pesos, the heirs may apply to the competent court, after the required
publications, to proceed with the summary partition and, after paying all the known
obligations, to partition all the property constituting the inheritance among themselves
pursuant to law, without instituting the judicial administration and the appointment of
an administrator.

Construing the scope of section 596, this court 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 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;
Baldemorvs. Malangyaon, 34 Phil., 367; Fule vs. Fule, 46 Phil., 317).

In enunciating the aforesaid doctrine, this court relied on the provisions of articles 657,
659 and 661 of the Civil Code under which the heirs succeed to all the property left by
the deceased from the time of his death. In the case of Ilustre vs. Alaras Frondosa,
supra, it was said:

Under the provisions of the Civil Code (arts. 657 to 661), the rights to the succession of
a person are transmitted from the moment of his death; in other words, the heirs
succeeded immediately to all of the property of the deceased ancestor. The property
belongs to the heirs at the moment of the death of the ancestor as completely as if the
ancestor had executed and delivered to them a deed for the same before his death. In
the absence of debts existing against the estate, the heirs may enter upon the
administration of the said property immediately. If they desire to administer it jointly,
they may do so. If they desire to partition it among themselves and can do this by
mutual agreement, they also have that privilege. The Code of Procedure in Civil Actions
provides how an estate may be divided by a petition for partition in case they can not
mutually agree in the division. When there are no debts existing against the estate,
there is certainly no occasion for the intervention of an administrator in the settlement
and partition of the estate among the heirs. When the heirs are all of lawful age and
there are no debts, there is no reason why the estate should be burdened with the
costs and expenses of an administrator. The property belonging absolutely to the heirs,
in the absence of existing debts against the estate, the administrator has no right to
intervene in any way whatever in the division of the estate among the heirs. They are
co-owners of an undivided estate and the law offers them a remedy for the division of
the same among themselves. There is nothing in the present case to show that the
heirs requested the appointment of the administrator, or that they intervened in any
way whatever in the present actions. If there are any heirs of the estate who have not
received their participation, they have their remedy by petition for partition of the said
estate.
In the cases of Malahacan vs. Ignacio, supra, Bondad vs. Bondad, supra, and Baldemor
vs. Malangyaon, supra, the same doctrine was reiterated. And in the case of Fule vs.
Fule, supra, this court amplified and ratified the same doctrine in the following
language:

Upon the second question Did the court a quo commit an error in refusing to appoint
an administrator for the estate of Saturnino Fule? it may be said (a) that it is
admitted by all of the parties to the present action, that at the time of his death no
debts existed against his estate and (b) that all of the heirs of Saturnino Fule were of
age.

In this jurisdiction and by virtue of the provisions of articles 657, 659 and 661 of the
Civil Code, all of the property, real and personal, of a deceased person who dies
intestate, is transmitted immediately to his heirs. (To Guioc-Co vs. Del Rosario, 8 Phil.,
546; Ilustre vs. Alaras Frondosa, 17 Phil., 321; Marin vs.Nacianceno, 19 Phil., 238;
Malahacan vs. Ignacio, 19 Phil., 434; Nable Jose vs. Uson, 27 Phil., 73;
Bondadvs. Bondad, 34 Phil., 232; Baldemor vs. Malangyaon, 34 Phil., 367.)

If then the property of the deceased, who dies intestate, passes immediately to his
heirs, as owners, and there are no debts, what reason can there be for the appointment
of a judicial administrator to administer the estate for them and to deprive the real
owners of their possession to which they are immediately entitled? In the case
of Bondad vs. Bondad (34 Phil., 232), Chief Justice Cayetano Arellano, discussing this
question, said: Under the provisions of the Civil Code (articles 657 to 661), the rights to
the succession of a person are transmitted from the moment of his death; in other
words, the heirs succeed immediately to all of the property of the deceased ancestor.
The property belongs to the heirs at the moment of the death of the ancestor as
completely as if the ancestor had executed and delivered to them a deed for the same
before his death. In the absence of debts existing against the estate, the heirs may
enter upon the administration of the said property immediately. If they desire to
administer it jointly, they may do so. If they desire to partition it among themselves and
can do this by mutual agreement, they also have that privilege. The Code of Procedure
in Civil Actions provides how an estate may be divided by a petition for partition in case
they cannot mutually agree in the division. (Sections 182-184, 196, and 596 of Act No.
190.)

When the heirs are all of lawful age and there are no debts there is no reason why the
estate should be burdened with the cost and expenses of an administrator. The
administrator has no right to intervene in any way whatsoever in the division of the
estate among the heirs when they are adults and when there are no debts against the
estate. (Ilustre vs. Alaras Frondosa, supra; Bondad vs. Bondad, supra;
Baldemor vs.Malangyaon, supra.)

When there are no debts and the heirs are all adults, their relation to the property left
by their ancestor is the same as that of any other coowners or owners in common, and
they may recover their individual rights, the same as any other coowners of undivided
property. (Succession of Story, 3 La. Ann., 502; Mcintyre vs.Chappell, 4 Tex., 187; Wood
et ux. vs. Ford, 29 Miss., 57.)
xxx xxx xxx

The right of the heirs in cases like the one we are discussing, also exist in the divisions
of personal as well as the real property. If they cannot agree as to the division, then a
suit for partition of such personal property among the heirs of the deceased owner is
maintenable where the estate is not in debts, the heirs are all of age, and there is no
administration upon the estate and no necessity thereof. (Jordan vs. Jordan, 4 Tex. Civ.
App. Rep., 559.)

It is difficult to conceive of any class or item of property susceptible of being held in

common which may not be divided by the coowners. It may be of personal property as
well as of real estate; of several parcels as well as of a single parcel, and of non-
contiguous as well as of adjacent tracts; or of part only of the lands of the coowners as
well as of the whole. (Pickering vs. Moore, 67 N. H., 533; 31 L. R. A., 698;
Pipes vs.Buckner, 51 Miss., 848; Tewksbury vs. Provizzo, 12 Cal., 20.)

We conceive of no powerful reason which counsels the abandonment of a doctrine so

uniformly applied. We are convinced that if the courts had followed it in all cases to
which it has application, their files would not have been replete with unnecessary
administration proceedings as they are now. There is no weight in the argument
adduced by the appellee to the effect that his appointment as judicial administrator is
necessary so that he may have legal capacity to appear in the intestate of the
deceased Juan Garcia Sanchez. As he would appear in the said intestate by the right of
the representation, it would suffice for him to allege in proof of his interest that he is a
usufructuary forced heir of his deceased wife who, in turn, would be a forced heir and
an interested and necessary party if she were living . In order to intervene in said
intestate and to take part in the distribution of the property it is not necessary that the
administration of the property of his deceased wife be instituted an administration
which will take up time and occasion inconvenience and unnecessary expenses.

2. In view of the foregoing, there is no need to determine which of the parties has
preferential right to the office of administrator.

The appealed order should be reversed, with the costs of this instance to the applicant-
appellee. So ordered.
G.R. No. 92436 July 26, 1991

MARIA VDA. DE REYES, EFREN REYES, ELVIRA REYES-TIMBOL, ERLINDA REYES-VALERIO,

ERNESTO REYES, ELIZABETH REYES, ALEX, RAFAEL II, EMELINA and EVELYN, all
surnamed REYES, represented by their mother, MARIA VDA. DE REYES, petitioners,
vs.
THE COURT OF APPEALS AND SPOUSES DALMACIO GARDIOLA and ROSARIO
MARTILLANOrespondents.

De Lara, De Lunas & Rosales for petitioners.

Santos, Pilapil & Associates for private respondents.

DAVIDE, JR., J.:p

Assailed before Us in this appeal by certiorari under Rule 45 of the Rules of Court is the
decision of the respondent Court of Appeals in C.A.-G.R. CV No. 11934, promulgated on
20 October 1989, 1 reversing the decision of 1 October 1986 of Branch 21 (Imus,
Cavite) of the Regional Trial Court of the Fourth Judicial Region in Civil Case No. RTC-
BCV-83-17 entitled Maria vda. de Reyes, et al. vs. Spouses Dalmacio Gardiola and
Rosario Martillano, and Spouses Ricardo M. Gardiola and Emelita Gardiola, 2 and the
resolution of 1 March 1990 denying the petitioner's motion for reconsideration.

As culled from both decisions and the pleadings of the parties, the following facts have
been preponderantly established:

During his lifetime, one Gavino Reyes owned a parcel of land of approximately 70
hectares, more or less, located at Sangayad, Ulong-Tubig, Carmona, Cavite. He sought
to bring said land under the operation of the Torrens System of registration of property.
Unfortunately, he died in 1921 without the title having been issued to him. The
application was prosecuted by his son, Marcelo Reyes, who was the administrator of his
property.

In 1936 the above property was surveyed and subdivided by Gavino's heirs (Exh. "6").
In the subdivision plan, each resultant lot was earmarked, indicated for and assigned to
a specific heir. It appears therein that two lots, one of which is Lot No. I A-14 (Exh. "6-
A"), were allotted to Rafael Reyes, Sr., one of Gavino's children. Per testimony of Juan
Poblete, the children thereafter secured tax declarations for their respective shares.

In 1941, or about twenty (20) years after the death of Gavino, the original certificate of
title for the whole property OCT No. 255 was issued. It was, however, kept by Juan
Poblete, son-in-law of Marcelo Reyes, who was by then already deceased. The heirs of
Gavino were not aware of this fact.
On 3 December 1943, Rafael Reyes, Sr. sold a parcel of land with an area of 23,431
square meters, more or less, to private respondent Dalmacio Gardiola (Exh. "5").
According to the vendee, this parcel corresponds to Lot No. 1-A-14 of the subdivision
plan aforestated. The deed of sale, however, did not specifically mention Lot No. 1-A-
14. The vendee immediately took possession of the property and started paying the
land taxes therein.

In 1945 or thereabouts, Juan Poblete "revalidated" the original Certificate of Title. As

reconstituted, the new title isOCT (0-4358) RO-255 (Exhs. "4" to "4-A").

On 21 October 1967, when the heirs of Gavino Reyes executed a Deed of Extrajudicial
Settlement of Estate (Exh. "D") based on the aforestated subdivision plan (Exh. "6"),
the lot that was intended for Rafael Reyes, Sr., who was already deceased, was instead
adjudicated to his only son and heir, Rafael Reyes, Jr. (the predecessor-in-interest of the
petitioners herein). Private respondent Rosario Martillano signed the deed in
representation of her mother, Marta Reyes, one of the children of Gavino Reyes.

As a result of the Extrajudicial Settlement, OCT RO-255 was cancelled and in lieu
thereof, several transfer certificates of title covering the subdivided lots were issued in
the names of the respective adjudicatees. One of them is TCT No. 27257 in the name of
Rafael Reyes, Jr. covering Lot No. 1-A-14. The Transfer Certificates of Title were,
however, kept by one Candido Hebron. On 10 January 1969, some of the heirs of
Gavino Reyes filed a case of Annulment of Partition and Recovery of Possession before
the Court of First Instance of Cavite City, which was docketed therein as Civil Case No.
1267. One of the defendants in said case is herein private respondent Rosario
Martillano. The case was dismissed on 18 September 1969, but Candido Hebron was
ordered by the trial court to deliver to the heirs concerned all the transfer certificates of
title in his possession. 3

After obtaining the Transfer Certificate of Title for Lot No. 1-A-14 from Hebron, pursuant
to the aforesaid order in Civil Case No. 1267, petitioners herein, as successors-in-
interest of Rafael Reyes, Jr., filed on 14 March 1983 with the Regional Trial Court the
above-mentioned Civil Case No. RTC-BCV-83-17 against private respondents
(defendants therein) for recovery of possession or, in the alternative, for
indemnification, accounting and damages. They allege therein that after "having
definitely discovered that they are the lawful owners of the property," (Lot No. 1-A-14),
they, "including Rafael Reyes, Jr., during his lifetime, made repeated demands to (sic)
defendants to surrender the possession of and vacate the parcel of land belonging to
the former, but defendants refused to vacate and surrender the possession of the said
land to herein plaintiffs;" the last of the demands was allegedly made on 8 October
1982. They further allege that they have been deprived by said defendants of the
rightful possession and enjoyment of the property since September 1969 which
coincides with the date of the order in Civil Case No. 1267. 4

In their answer, private respondents deny the material averments in the complaint and
assert that they are the owners of the lot in question, having bought the same from
Rafael Reyes, Sr., that the issuance of TCT No. 27257 is null and void, for such sale was
known to Rafael Reyes, Jr.; that they have been in possession of the property and have
been paying the land taxes thereon; and that petitioners are barred by prescription
and/or laches. 5

Petitioners amended their complaint on 21 March 1985 to implead as additional

defendants the spouses Ricardo M. Gardiola and Emerita Gardiola, on the basis of the
following claims:

xxx xxx xxx

9. Meanwhile, during the presentation of the defendants spouses Dalmacio Gardiola

and Rosario Martillano's evidence the former testified that they mortgaged the subject
land to the Rural Bank of Carmona Inc. For their failure to redeem the mortgage the
same was foreclosed by the bank.

10. However, within the period of one(1) year from such foreclosure the questioned
land was redeemed by the original defendants' son in the person of Ricardo M.
Gardiola, who was knowledgeable/aware of the pendency of the above captioned case.
The corresponding redemption was effected through a deed of conveyance, . . . . 6

The prayer of the amended complaint now contains the alternative relief for
indemnification for the reasonable value of the property "in the event restitution of the
property is no longer possible." 7

In its decision of 1 October 1986, 8 the trial court concluded that petitioners' "title over
the subject property is valid and regular and thus they are entitled to its possession and
enjoyment," and accordingly decided thus:

WHEREFORE, the defendants or anyone acting for and in their behalf are hereby
ordered to relinguish possession or vacate the property in question which is covered by
Transfer Certificate of Title No. T-27257 in favor of the plaintiffs.

All other claims and/or counterclaims of the parties relative to this case are dismissed
for lack of proper substantiation.

The conclusion of the trial court is based on its finding that (a) there is no evidence that
the heirs of Gavino Reyes entered into any written agreement of partition in 1936
based on the subdivision plan; (b) there is no identity between Lot No. 1-14-A and the
land sold to private respondents by Rafael Reyes, Sr., or otherwise stated, the
description of the latter as indicated in the deed of sale (Exh. "5") does not tally with
the description of the former; and (c) moreover:

Granting, arguendo, that the sale made by Rafael Reyes, Sr. to the defendants covered
the land in question Lot No. 1-A-14 and that Transfer Certificate of Title No. T-
27257 was obtained by means of fraud, the claim of the defendants over the said
property is already barred. Action for reconveyance prescribes in four (4) years from
the discovery thereof. If there was fraud, the defendant could have discovered the
same in 1967 when the partition was made in as much as defendant Rosario Martillano
was a party to that partition. Let us grant further that the issuance of Transfer
Certificate of Title No. T-27257 to Rafael Reyes, Jr. created a constructive or implied
trust in favor of the defendants, again, the claim of the defendants is also barred. From
1967 to the filing of their answer (let us consider this as an action for reconveyance) to
this case sometime in July, 1983, a period of about sixteen (16) years had already
elapsed. Prescriptibility of an action for reconveyance based on implied or constructive
trust is ten (10) years.

The trial court further held that the continued possession by private respondents, which
it found to have started in 1943, did not ripen into ownership because at that time, the
property was already registered, hence it cannot be acquired by prescription or adverse
possession. 9

Private respondents appealed the said decision to the Court of Appeals which docketed
the appeal as C.A.-G.R. CV No. 11934. In its decision of 20 October 1989, the
respondent Court of Appeals formulated the issues before it as follows:

Whether or not the lower court erred in declaring that the property of the late Gavino
Reyes consisting of 70 hectares was partitioned only in 1967 by his grandchildren after
discovery of the existence of OCT No. 255 and that no actual partition was made in
1936 by the decedent's children.

II

Whether or not the lower court erred in concluding that the parcel of land sold by the
appellees' predecessor-in-interest, the late Rafael Reyes, Sr. to appellant Dalmacio
Gardiola was not the same parcel of land under litigation. 10

and resolved such issues, thus:

On the first issue, We believe that the lower court committed a reversible error when it
declared that the landed estate of the late Gavino Reyes was partitioned only in 1967
by the latter's grandchildren; and that no actual partition was made in 1936 by the
decedents' (sic) children. The evidence on record bears out the existence of a
subdivision plan (Exh. 6) which was not controverted nor denied by the appellees. In
like manner, the lower court itself recognized the fact that the property of the late
Gavino Reyes consisting of 70 hectares was surveyed and subdivided in 1936 as
evidenced by the said subdivision plan (Exh. 6). With the existence of a subdivision
plan, and from the uncontroverted testimony of appellants' witness, We can only infer
that at least an oral partition, which under the law is valid and binding, was entered
into by the heirs of Gavino Reyes regarding his properties in 1936. As held in a long line
of decisions, extrajudicial partition can be done orally, and the same would be valid if
freely entered into (Belen v. Belen, 49 O.G. 997, March 1953). The reason for this is
because a partition is not exactly a conveyance for the reason that it does not involve
transfer of property from one to the other but rather a confirmation by them of their
ownership of the property. It must also be remembered that when Gavino Reyes died on
March 7, 1921, his property was admittedly not yet covered by a torrens title, as it was
only in 1941 when said properties were brought into the application of the torrens
system. With this factual milieu, it can also be concluded that his heirs have indeed
settled, subdivided and partitioned Gavino Reyes' landed estate without formal
requirements of Rule 74 of the Rules of Court when a parcel of land is covered by a
torrens title. As told earlier, the Subdivision Plan (Exh. 6) undisputedly showed on its
face that the 70 hectares of land belonging to the late Gavino Reyes was subdivided
and partitioned by his children in 1936. On this score, the partition of the said property
even without the formal requirements under the rule is valid as held in the case
of Hernandez vs. Andal, 78 Phil. 176, which states:

xxx xxx xxx

Moreover, in the Deed of Sale dated December 3, 1943 (Exh. 5) executed by Rafael
Reyes, Sr. in favor of appellant Dalmacio Gardiola, the land sold therein was described
as "na aking minana sa aking ama." This alone would confirm the contention of the
appellants that there was already an actual partition (at least an oral partition) of the
property of Gavino Reyes in 1936. As aforestated, the presence of the Subdivision Plan
(Exh. 6) is an (sic) evidence of such partition which appellees failed to controvert not to
mention the fact that the lower court itself recognized the existence of said plan, in the
same manner that it concluded that the property was already surveyed and actually
subdivided in 1936 (page 3, pars. 3 and 4, Decision).

From the foregoing considerations it is evident that the Deed of Extrajudicial Settlement
of Estate (Exh. D) executed by the grandchildren of the late Gavino Reyes in 1967 is of
no moment considering that the property subject of the partition in the deed was
already partitioned in 1936 by the children of Gavino Reyes. It is for this reason that the
lots supposedly inherited by the grandchildren named in the deed of 1967 were the
same lots inherited and given to their respective fathers or mothers in 1936 while the
land was not yet covered by the torrens system. Hence, in the case of Rafael Reyes, Sr.,
the land inherited by him was two (2) parcels of land known as Lots Nos. 1-A-3 and 1-A-
14 described in the Subdivision plan of 1936 (Exh. 6), which were the same parcels of
land allegedly inherited by Rafael Reyes, Jr. from Gavino Reyes in representation of his
father, pursuant to the Deed of Extrajudicial Settlement of Estate for which TCT No.
27257 was issued.

Coming to the second issue, the lower court likewise erred when it concluded that the
parcel of land sold by appellee's predecessor-in-interest to appellant Dalmacio Gardiola
was not the same parcel of land under litigation. It must be pointed out that the identity
of the parcel of land which the appellees sought to recover from the appellants was
never an issue in the lower court, because the litigants had already conceded that the
parcel identified as Lot No. 1-A-14 in TCT No. 27257 was the same parcel of land
identified as Cadastral Lot No. 1228 and 1235 described in Tax Declaration No. 4766.
Despite this admission, however, the lower court declared that "as described in the
deed of sale (Exh. 5), the land's description does not tally with the description of Lot
No. 1-A-14, the land in litigation." As correctly pointed out by the appellants however,
the discrepancy in the description was due to the fact that the description of the land
sold in the Deed of Sale was expressed in layman's language whereas the description
of Lot No. 1-A-14 in TCT No. 27257 was done in technical terms. This was so because,
when Rafael Reyes, Sr. sold the property in dispute to appellant Dalmacio Gardiola on
December 3, 1943, the only evidence of title to the land then available in so far as
Rafael Reyes, Sr. was concerned was Tax Declaration No. 4766, because at that time,
neither he nor appellant Dalmacio Gardiola was aware of the existence of OCT No. 255
as in fact TCT No. 27257 was issued only in 1967. Consequently, the land subject of the
Deed of Sale was described by the vendor in the manner as described in Tax
Declaration No. 4766. However, the description of the land appearing in the Deed of
Sale (Exh. 5) was exactly the same land identified as Lot No. 1-A-14 in the Subdivision
Plan (Exh. 6) of 1936. Accordingly, the assumption of the lower court that "if the land
sold by Rafael Reyes, Sr. was the one now in litigation, he could have easily indicated
Lot No. 1-A-14" is bereft of merit under the foregoing circumstances. Interestingly
enough, the appellees never denied the identity of the subject lot during the hearing at
the lower court. What they were denying only was the sale made by Rafael Reyes, Sr. to
appellant Dalmacio Gardiola which does not hold true because of the document
denominated as Deed of Sale (Exh. 5). 11

It concluded that the trial court erred when it ordered the private respondents or
anyone acting in their behalf to relinquish the possession or vacate the property in
question. It thus decreed:

WHEREFORE, the appealed Judgment is ordered REVERSED and SET ASIDE and a new
one is rendered declaring appellants to be the lawful owners of the lot identified as Lot
No. 1-A-14 in TCT No. 27257. No
costs. 12

Their motion to reconsider the above decision having been denied by the Court of
Appeals in its resolution of 1 March 1990, 13 petitioners filed the instant petition on 6
April 1990 after having obtained an extension of time within which to file it.

The petition does not implead original new defendants Ricardo Gardiola and Emelita
Gardiola.

As ground for their plea for the review of the decision of the Court of Appeals,
petitioners allege that said court has decided questions of substance in a way not in
accord with law or applicable jurisprudence when it held that "the deed of extrajudicial
settlement of estate (Exh. "D") executed by the grandchildren of the late Gavino Reyes
in 1967 is of no moment considering that the property subject of the partition was
already partitioned in 1936 by the children of Gavino Reyes." In support thereof, they
claim that (a) TCT No. 27257 covers two parcels of land; the lot described in paragraph
1 thereof is owned by petitioners and that ownership was confirmed by this Court in
G.R. No. 79882, hence, the Court of Appeals should have affirmed the decision of the
trial court; (b) private respondent Rosario Martillano was a party to the extrajudicial
settlement of estate which was duly registered in the Registry of Deeds in 1967; said
registration is the operative act that gives validity to the transfer or creates a lien upon
the land and also constituted constructive notice to the whole world. The court cannot
disregard the binding effect thereof Finally, the pronouncement of the Court of Appeals
that private respondents are the lawful owners of the lot in question "militates against
the indefeasible and incontrovertible character of the torrens title,"14 and allows
reconveyance which is not tenable since the action therefor had already prescribed, as
stated in the decision of the trial court.

In the resolution of 7 May 1990, We required respondents to comment on the petition.

But even before it could do so, petitioner, without obtaining prior leave of the Court,
filed on 29 May 1990 a so-called Supplemental Arguments in Support of The Petition For
Review On certiorari 15 wherein they assert, among others, that: (a) the findings of
facts of respondent Court are contrary to those of the trial court and appear to be
contradicted by the evidence on record thus calling for the review by this Court; 16 (b)
it also committed misapprehension of the facts in this case and its findings are based
on speculation, conjecture and surmises; (c) private respondents' attack on petitioners'
title is a collateral attack which is not allowed; even if it is allowed, the same had
already prescribed and is now barred.

It was only on 15 June 1990 that private respondents filed their Comment. 17 We
required petitioners to reply thereto, which they complied with on 8 August 1990. 18 A
rejoinder was filed by private respondents on 29 August 1990.

We gave due course to the petition on 19 September 1990 and required the parties to
submit simultaneously their respective memoranda which they complied with.

Attached as Annex "A" to private respondent's Memorandum, which was filed on 10

December 1990, is the Resolution of this Court (Third Division) of 20 August 1990 in
G.R. No. 92811 entitled Spouses Artemio Durumpili and Angustia Reyes vs. The Court of
Appeals and Spouses Dalmacio Gardiola and Rosario Martillano, which also involves the
property of Gavino Reyes, the partition thereof among his children in 1936, and the
extrajudicial settlement in 1967.

In said resolution, this Court held:

. . . The partition made in 1936, although oral, was valid. The requirement in Article
1358 of the Civil Code that acts which have for their object the creation, transmission,
modification or extinguishment of real rights over immovable property must appear in a
public instrument is only for convenience and not for validity or enforceability as
between the parties themselves. [Thunga Hui vs. Que Bentec, 2 Phil. 561 (1903)] The
subsequent execution by the heirs of the Extrajudicial Partition in 1967 did not alter the
oral partition as in fact the share pertaining to Angustia Reyes corresponded to that
previously assigned to her father. Considering that Angel Reyes sold this property to
Basilio de Ocampo who, in turn, sold the same to respondents, we agree with the Court
of Appeals that the latter lawfully acquired the property and are entitled to ownership
and possession thereof.

In answer to the charge of private respondents that petitioners deliberately failed to

cite this resolution, the latter, in their reply-memorandum dated 15 March 1991 and
filed three days thereafter, allege:

Our failure to mention the aforementioned resolution before this Honorable Court is not
deliberate nor with malice aforethought. The reason is that to date, we have not yet
received any resolution to our Motion For Leave of Court To Refer Case To The
Honorable Supreme Court En Banc. Moreover, we honestly feel that the resolution that
will be issued therein will not be applicable to the case before this Honorable Court's
Second Division. It should be mentioned that in the Durumpili case before the Third
Division, the Court of Appeals relied on the alleged confirmation of the sale executed by
Angustia Reyes, while in the Reyes case before this Second Division, there was no sale
that was executed by the petitioners Reyes' predecessor-in-interest, Rafael Reyes, Jr.

The foregoing claim is not supported by the rollo of G.R. No. 92811, which reveals the
following: (a) On 18 September 1990, petitioners therein, represented by De Lara, De
Lunas and Rosales, who are the lawyers of petitioners in the instant case, filed a motion
for the reconsideration of the resolution of 20 August 1990. 19 b) This motion was
denied in the resolution of 1 October 1990. 20 c) On 17 November 1990, petitioners
therein, through the same lawyers, filed a Motion For Leave Of Court To Refer Case To
The Honorable Supreme Court En Banc And/Or Motion For Reconsideration 21 wherein
they specifically admit that said case and the instant petition have "identity and/or
similarity of the parties, the facts, the issues raised," even going to the extent of
"graphically" illustrating where such similarities lie. 22d) This motion was denied in the
resolution of 28 November 1990. Copy thereof was furnished the attorneys for
petitioners.23 e) Entry of judgment had already been made therein and a copy thereof
was sent to petitioner's counsel per Letter of Transmittal of the Deputy Court and Chief
of the Judicial Records Office dated 20 December 1990.

What comes out prominently from the disquisitions of the parties is this simple issue:
whether or not respondent Court of Appeals committed any reversible error in setting
aside the decision of the trial court.

We find none. The reversal of the trial court's decision is inevitable and unavoidable
because the legal and factual conclusions made by the trial court are unfounded and
clearly erroneous. The Court of Appeals was not bound to agree to such conclusions.
The trial court erred in holding that: (a) there was no partition among the children of
Gavino Reyes in 1936 since there is no written evidence in support thereof; yet, it
admits that there was a survey and subdivision of the property and the adjudication of
specific subdivision lots to each of the children of Gavino; (b) the land sold by Rafael
Reyes, Sr. to private respondents is not identical to Lot No. 1-A-14, the lot specified for
and adjudicated to Rafael Reyes, Jr. in the partition agreement; and (c) if the land sold
by Rafael Reyes, Sr. to private respondent Dalmacio Gardiola is indeed Lot No. 1-A-14
and that TCT No. T-27257 was obtained through fraud, the remedy open to the vendee
was an action for reconveyance, which should have been brought within four (4) years
from the discovery thereof in 1967 when the Extrajudicial Settlement was executed
since private respondent Rosario Martillano, wife of Dalmacio, was a party thereto.

The Court of Appeals correctly held that the partition made by the children of Gavino
Reyes in 1936, although oral, was valid and binding. There is no law that requires
partition among heirs to be in writing to be valid. 24 InHernandez vs. Andal, supra, this
Court, interpreting Section 1 of Rule 74 of the Rules of Court, held that the requirement
that a partition be put in a public document and registered has for its purpose the
protection of creditors and at the same time the protection of the heirs themselves
against tardy claims. The object of registration is to serve as constructive notice to
others. It follows then that the intrinsic validity of partition not executed with the
prescribed formalities does not come into play when there are no creditors or the rights
of creditors are not affected. Where no such rights are involved, it is competent for the
heirs of an estate to enter into an agreement for distribution in a manner and upon a
plan different from those provided by law. There is nothing in said section from which it
can be inferred that a writing or other formality is an essential requisite to the validity
of the partition. Accordingly, an oral partition is valid.

Barcelona, et al. vs. Barcelona, et al., supra, provides the reason why oral partition is
valid and why it is not covered by the Statute of Frauds: partition among heirs or
renunciation of an inheritance by some of them is not exactly a conveyance of real
property for the reason that it does not involve transfer of property from one to the
other, but rather a confirmation or ratification of title or right of property by the heir
renouncing in favor of another heir accepting and receiving the inheritance.

Additionally, the validity of such oral partition in 1936 has been expressly sustained by
this Court in the Resolution of 20 August 1990 in G.R. No. 92811. 25

But even if We are to assume arguendo that the oral partition executed in 1936 was not
valid for some reason or another, We would still arrive at the same conclusion for upon
the death of Gavino Reyes in 1921, his heirs automatically became co-owners of his 70-
hectare parcel of land. The rights to the succession are transmitted from the moment of
death of the decedent. 26 The estate of the decedent would then be held in co-
ownership by the heirs. The co-heir or co-owner may validly dispose of his share or
interest in the property subject to the condition that the portion disposed of is
eventually allotted to him in the division upon termination of the co-ownership. Article
493 of the Civil Code provides:

Each co-owner shall have the full ownership of his part and the fruits and benefits
pertaining thereto, and he may even substitute another person in its enjoyment, except
when personal rights are involved. But the effect of the alienation or the mortgage, with
respect to the co-owners, shall be limited to the portion which may be allotted to him in
the division upon the termination of the co-ownership.

In Ramirez vs. Bautista, 27 this Court held that every co-heir has the absolute
ownership of his share in the community property and may alienate, assign, or
mortgage the same, except as to purely personal rights, but the effect of any such
transfer is limited to the portion which may be awarded to him upon the partition of the
property.

In the case at bar, the lot sold by Rafael Reyes, Sr. to private respondent Dalmacio
Gardiola is his share in the estate of his deceased father, Gavino Reyes. It is the same
property which was eventually adjudicated to his son and heir, Rafael Reyes, Jr.,
represented in turn by his heirs-petitioners herein-in the extrajudicial settlement of
1967.

In respect to the issue as to whether the property sold by Rafael Reyes, Sr. is identical
to Lot No. 1-14-A, the trial court based its conclusion that it is not, on his observation
that the description of the former does not tally with that of the latter, moreover, if
Rafael did intend to sell Lot No. 1-14-A, he should have specifically stated it in the deed
since at that time, the property had already been partitioned and said lot was
adjudicated to him. In addition to the contrary findings and conclusion of the
respondent Court on this issue to which We fully agree, it is to be stressed that Rafael
had this property declared for taxation purposes and the tax declaration issued was
made the basis for the description of the property in the deed of sale. Upon the
execution of the deed of sale, vendee herein private respondent Dalmacio Gardiola
immediately took possession of the property. This is the very same property which is
the subject matter of this case and which petitioners seek to recover from the private
respondents. The main evidence adduced for their claim of ownership and possession
over it is TCT No. T-27257, the certificate of title covering Lot No. 1-14-A. They therefore
admit and concede that the property claimed by private respondent, which was
acquired by sale from Rafael Reyes, Sr., is none other than Lot No. 1-14-A.

The participation of private respondent Rosario Gardiola in the Extrajudicial Settlement

did not place private respondents in estoppel to question the issuance of TCT No. T-
27257. As correctly maintained by private respondents, she signed it in representation
of her deceased mother, Marta Reyes, a daughter and an heir of Gavino Reyes. She did
not sign for and in behalf of her husband, Dalmacio Gardiola, vendee of the share of
Rafael Reyes, Sr.

The same did not operate to divest the vendee of the share of Rafael Reyes, Sr. in the
estate of Gavino. Petitioners, as mere successors-in-interest of Rafael Reyes, Jr., son of
Rafael Reyes, Sr., can only acquire that which Rafael, Jr. could transmit to them upon his
death. The latter never became the owner of Lot No. 1-A-14 because it was sold by his
father in 1943. The issuance of TCT No. T-27257 in the name of Rafael Reyes, Jr., in so
far as Lot No. 1-14-A is concerned, was clearly erroneous because he never became its
owner. An extrajudicial settlement does not create a light in favor of an heir. As this
Court stated in the Barcelona case, 28 it is but a confirmation or ratification of title or
right to property. Thus, since he never had any title or right to Lot No. 1-14-A, the mere
execution of the settlement did not improve his condition, and the subsequent
registration of the deed did not create any right or vest any title over the property in
favor of the petitioners as heirs of Rafael Reyes, Jr. The latter cannot give them what he
never had before. Nemo dare potest quod non habet.

There is one more point that should be stressed here. Petitioners' immediate
predecessor-in-interest, Rafael Reyes, Jr., never took any action against private
respondents from the time his father sold the lot to the latter. Neither did petitioners
bring any action to recover from private respondents the ownership and possession of
the lot from the time Rafael Reyes, Jr. died. As categorically admitted by petitioners in
their complaint and amended complaint, it was only in or about September 1969 when,
after the delivery of TCT No. 27257 by Candido Hebron to them, that they definitely
discovered that they were the owners of the property in question. And yet, despite full
knowledge that private respondents were in actual physical possession of the property,
it was only about thirteen and one-half (13 1/2) years later that they decided to file an
action for recovery of possession. As stated earlier, the original complaint was filed in
the trial court on 14 March 1983. There was then absolutely no basis for the trial court
to place the burden on private respondents to bring an action for reconveyance within
four (4) years from their discovery of the issuance of the transfer certificate of title in
the name of Rafael Reyes, Jr.

The instant petition then is without merit.

WHEREFORE, judgment is hereby rendered DENYING the petition with costs against
petitioners.

SO ORDERED.

G.R. No. L-10474 February 28, 1958

BENNY SAMPILO and HONORATO SALACUP, petitioners,

vs.
THE COURT OF APPEALS and FELISA SINOPERA respondent.

Clodualdo P. Surio for petitioners.

Moises B. Ramos for respondents.

LABRADOR, J.:

Certiorari against decision of the Court of Appeals, Third Division, affirming with slight
modification a judgment of the Court of First Instance of Pangasinan, declaring plaintiffs
owners of one-half portion of four parcels of land described in the complaint, with costs.
The judgment was rendered in an action instituted by Felisa Sinopera, administrative of
the estate of Teodoro Tolete, to recover from defendants one-half share of the aforesaid
parcels of land, which, it is alleged belong to the deceased Teodoro Tolete.

According, to the facts found by the Court of Appeals, Teodoro Tolete died intestate in
January, 1945. He left for parcels of land, lots Nos. 12006, 119967, 14352 and 12176 of
the cadastral survey of San Manuel, Pangasinan He left as heirs his widow, Leoncia de
Leon, and several nephews and nieces, children of deceased brothers and sisters. On
July 25, 1946, without any judicial proceedings, his widow executed an affidavit stating
that "the deceased Teodoro Tolete left no children or respondent neither ascendants or
acknowledged natural children neither brother, sisters, nephews or nieces, but the,
widow Leoncia de Leon, the legitimate wife of the deceased, the one and only person to
inherit the above properties" (Record on Appeal, p. 9). This affidavit was registered in
the Office of the Register of Deeds of Pangasinan. On the same day, she executed a
deed of sale of all the above parcels of land in favor of Benny Sampilo for the sum of
P10,000. This sale was also registered in the Office of the Register of Deeds of
Pangasinan. On June 17, 1950, Benny Sampilo, in turn, sold the said parcels of land to
Honorato Salacup for P50,000 and this sale was also registered in the Office of the
Register of Deeds of Pangasinan (See Annexes "A", "B", "C", attached to the complaint).

In March, 1950, Felisa Sinopera instituted proceedings for the administration of the
estate of Teodoro Tolete (Special Proceeding No. 3694, Pangasinan), and having secured
her appointment as administratrix, brought the present action on June 20, 1950. Notice
of lis pendens was filed in the Office of the Register of Deeds and said notice was
recorded on certificates of title covering the said properties on June 26, 1950. This
notice, however, was subsequent to the registration of the deed of sale, in favor of
Honorato Salacup, which took place on June 17, 1950.

The complaint alleges that the widow Leoncia de Leon, had no right to execute the
affidavit of adjudication and that Honorato Salacup acquired no rights to the lands sold
to him, and that neither had Benny Sampilo acquired any right to the said properties.
Sampilo and Salacup filed an amended answer alleging that the complaint states no
cause of action; that if such a cause exists the same is barred by the statute of
limitations; that defendants are innocent purchasers for value; and that the complaint
is malicious, frivolous and spurious, intended to harass and inconvenience the
defendants.

After trial the Court of First Instance rendered judgment for the plaintiff, Felisa Sinopera,
declaring that the affidavit of adjudication Exhibit "A", the deed of sale Exhibit "B", and
the deed of sale Exhibit "C", are all null and void; declaring plaintiff owner of one-half
portion of the four parcels of land in question, and finally declaring that the
usufructuary rights of Leoncia de Leon to said properties are terminated. The case was
appealed to the Court of Appeals. This court held that the annulment of the affidavit of
adjudication, Exhibit "A", by the trial court was correct but that the annulment of the
deeds Exhibits "B" and "C", insofar as one-half of the properties, conveyed is
concerned, and in adjudicating one-half of the same to the heirs of the deceased, is
premature. Hence, it modified the judgment, declaring that Exhibits "B" and "C" are null
and void only insofar as the properties thereby conveyed exceed the portion that the
responds to Leoncia de Leon. Therefore, it ordered the defendants to deliver to the
plaintiff, in her capacity as administratrix of the estate of Teodoro Tolete, for disposition
according to the law, one-half of the lands described in the complaint, but reserved to
Honorato Salacup the right to claim and secure adjudication in his favor of whatever
portion of said properties may correspond to Leoncia de Leon and also his right to bring
an action for the damages that he may have suffered against Leoncia de Leon and
Benny Sampilo.

Benny Sampilo and Honorato Salacup have appealed to this Court by certiorari and
have assigned the following errors in their brief:

I
The Court of Appeals erred in affirming that respondent Felisa Sinopera's right of action
to recover her and her co-heirs' participation to the lands in question had not
prescribed at the time the action to recover was filed.

II

The Court of Appeals erred in not finding that the petitioners are innocent purchasers
for value.

III

The Court of Appeals erred in aiming the lower court's denial of petitioner's motion for
new trial.

In support of the first assignment of error, it is argued that as the action was instituted
almost four years after the affidavit of adjudication, Exhibit "A", was registered in the
Office of the Register of Deeds Of Pangasinan, the right of action of the administratrix
has prescribed and lapsed because the same was not brought within the period of two
years as Prescribed in Section 4 of Rule 74 of the Rules of Court, and as decided in the
cases of McMickingvs. Sy Conbieng, 21 Phil., 211 and Ramirez vs. Gmur, 42 Phil., 855
869.

Section 4 of Rule 74 provides, in part, as follows:

SEC. 4. Liability of distributees and estate. If it shall appear at any time within two
years after the settlement and distribution of an estate in accordance with the
provisions of either of the first two sections of this rule, that an heir or other has been
unduly deprived of his lawful participation of the such heir or such other person may
compel the settlement estate in the courts in the manner hereinafter provided for the
purpose of satisfying such lawful participation. . . .

Section 1, which is mentioned in Section 4, reads as follows:

SEC. 1. Extrajudcial settlement by agreement between the heirs. If the decedent left
no debts and the heirs and legatees are all of age, or the minors are represented by
their judicial guardians, the parties may, without securing letters of administration,
divide the estate among themselves as they see fit by means of a public instrument
filed in the office of the register of deeds, and should they disagree, they may do so in
an ordinary action of partition. If there is only one heir or one legatee, he may
adjudicate to himself the entire estate by means of an affidavit filed in the office of the
register of deeds. It shall be presumed that the decedent left no debts if no creditor
files a petition for letters of administration within two years after the death of the
decedent.

It will be noted that the provision next above-quoted contains two parts, the first
referring to a case in which there are two or more heirs interested in the estate of a
deceased person, and the second in which there is only one heir. The section was taken
from Section 596 of the old Code of Civil Procedure (Act No. 190, as amended by Act
No. 2331). Said Section 596 as amended, was as follows:
SEC. 596. Settlement of Certain Intestates Without Legal Proceedings. Whenever all
the heirs of a person who died intestate are of lawful age and legal capacity and there
are no debts due from the estate, or all the debts have been paid the heirs may, by
agreement duly executed in writing by all of them, and not otherwise, apportion and
divide the estate among themselves, as they may see fit, without proceedings in court.

We notice two significant provisions in Sections 1 and 4 of Rule 74. In Section 1, it is

required that if there are two or more heirs, both or all of them should take part in the
extrajudicial settlement. This requirement is made more imperative in the old law
(Section 596, Act No. 190) by the addition of the clause "and not otherwise." By the title
of Section 4, the "distributees and estate" are indicates the persons to answer for rights
violated by the extrajudicial settlement. On the other hand, it is also significant that no
mention is made expressly of the effect of the extrajudicial settlement on persons who
did not take part therein or had no notice or knowledge thereof. There cannot be any
doubt that those who took part or had knowledge of the extrajudicial settlement are
bound thereby. As to them the law is clear that if they claim to have been in any
manner deprived of their lawful right or share in the estate by the extrajudicial
settlement, they may demand their rights or interest within the period of two years,
and both the distributes and estate would be liable to them for such rights or interest.
Evidently, they are the persons in accordance with the provision, may seek to remedy,
the prejudice to their rights within the two-year period. But as to those who did not take
part in the settlement or had no notice of the death of the decedent or of the
settlement, there is no direct or express provision is unreasonable and unjust that they
also be required to assert their claims within the period of two years. To extend the
effects of the settlement to them, to those who did not take part or had no knowledge
thereof, without any express legal provision to that effect, would be violative of the
fundamental right to due process of law. In the case of Ramirez vs. Gmur, supra, cited
by the appellants in this case, we held:

It will be noted that while the law (see. 754) provides that the order of distribution may
be had upon the application of the executor or administrator, or of a person interested
in the estate, no provision is made for notice, by publication or otherwise, of such
application. The proceeding, therefore, is to all intents and purposes ex parte. As will be
seen our law is very vague and incomplete; and certainly it cannot be held that a
purely ex parte proceeding, had without notice by personal service or by publication, by
which the court undertakes to distribute the property of deceased persons, can be
conclusive upon minor heirs who are not represented therein.

The procedure outlined in Section 1 of Rule 74 of extrajudicial settlement, or by

affidavit, is an ex parteproceeding. It cannot by any reason or logic be contended that
such settlement or distribution would affect third persons who had no knowledge either
of the death of the decedent or of the extrajudicial settlement or affidavit, especially as
no mention of such effect is made, either directly or by implication. We have examined
the two cases cited by appellants and there is no similarity at all between the
circumstances on which the ruling therein had been predicated and those of the case at
bar.
Following the above-quoted decision of this Court in the case of Ramirez vs. Gmur,
supra, we are of the opinion and so hold that the provisions of Section 4 of Rule 74,
barring distributees or heirs from objecting to an extrajudicial partition after the
expiration of two years from such extrajudicial partition, is applicable only (1) to
persons who have participated or taken part or had notice of the extrajudicial partition,
and, in addition, (2) when the provisions of Section 1 of Rule 74 have been strictly
complied with, i.e., that all the persons or heirs of the decedent have taken part in the
extrajudicial settlement or are represented by themselves or through guardians. The
case at bar fails to comply with both requirements because not all the heirs interested
have participated in the extrajudicial settlement, the Court of Appeals having found
that the decedent left aside from his widow, nephews and nieces living at the time of
his death.

The next contention of appellants is that plaintiff's action is barred by the statute of
limitations. The origin of the Provision (Section 4, Rule 74), upon which this contention
is predicated, which is Section 596 of Act No. 190, fails to support the contention. In the
first Place, there is nothing therein, or in its source which shows clearly a statute of
limitations and a bar of action against third person's. It is only a bar against the parties
who had taken part in the extrajudicial proceedings but not against third persons not
Parties thereto. In the second place, the statute of limitations is contained in a different
chapter of Act No. 190, Chapter XL, and if Section 596 of the Act had been meant to be
a statute of limitations, it would naturally have been included in the chapter which
defines the statute.

But even if Section 4 of Rule 74 is a statute of limitations, it is still unavailing to the

defendants. The action is one based on fraud, as the widow of the deceased owner of
the lands had declared in her affidavit of partition that the deceased left no nephews or
niece, or other heirs except herself. Plaintiff's right which is based on fraud and which
has a period of four years (Section 43, par. 3, Act no. 190; Article 1146, Civil Code),
does not appear to have lapsed the action was instituted. Judicial proceedings where
instituted in March, 1950 and these proceedings must have been instituted soon after
the discovery of fraud. In any case, the defendants have the burden of proof as to their
claim of the statute of limitations, which is their defense, and they have not proved that
when the action was instituted, four years had already elapsed from the date that the
interested parties had actual knowledge of the fraud.

The second assignment of error, i.e., that the defendants-appellants are innocent
purchasers for value was rejected as unfounded by the court of Appeals. Said court
said.

The claim that defendants-appellants did not have sufficient knowledge or notice of the
claim of the heirs of Teodoro Tolete, deceased, over the land in question does not find
support in the evidence of record. As regards defendant Benny Sampilo, it is an
admitted fact that he is a nephew of Leoncia de Leon and he had been living with the
latter. Both Benny Sampilo and the heirs of the deceased who are claiming the property
are residents of San Manuel, Pangasinan. It is hard, therefore, to believe that Benny
Sampilo did not know the existence of said heirs, and that he was not aware that they
were nephews and nieces, children of the deceased brothers, of the deceased Teodoro
Tolete. The fact furthermore that Benny Sampilo accompanied his aunt Leoncia de Leon
to Sison, Pangasinan, when the later saw Notary Public Ladislao Villamil, who was the
former's uncle, to have him prepare the affidavit of adjudication Exhibit "A", and the
deed of conveyance Exhibit "B" by which on the same date she conveyed to Sampilo all
the property which she had adjudicated to herself, both of which she acknowledged
before said notary public, coupled with the fact that there is no sufficient showing that
the consideration for the conveyance of P10,000 had in fact been paid, strengthens our
belief that said Benny Sampilo knew that the deceased Teodoro Tolete had other heirs
who may claim the property, and that the immediate conveyance thereof to him was a
strategem concocted to defeat the former's rights. And as regards Honorato Salacup,
while the claim that no notice of lis pendens appeared annotated in the certificates of
title issued to Benny Sampilo when he acquired the property might be true, for he
purchased the property on June 17, 1950, and the notice of lis pendens was noted on
said certificates of title on June 26, 1950, nevertheless, he cannot claim that he was a
purchaser in good faith for value of the property. It is well-settled rule in this jurisdiction
that a purchaser of registered lands who has knowledge of facts which should put him
upon inquiry and investigate as to the possible defects of the title of the vendor and
fails to make such inquiry and investigation cannot claim that he as a purchaser in good
faith for value and he had acquired a valid title thereto. Leung Yee vs. Strong Machinery
Co., 37 Phil., 644; Dayao vs. Diaz, G.R. L-4106, May 29, 1952.

Finding no error in the decision of the Court of Appeals, we hereby affirm it in toto, with
costs against the petitioners. So ordered.

G.R. No. 156536 October 31, 2006

JOSEPH CUA, petitioner, vs.

GLORIA A. VARGAS, AURORA VARGAS, RAMON VARGAS, MARITES VARGAS, EDELINA
VARGAS AND GEMMA VARGAS, respondents.

DECISION

AZCUNA, J.:

This is a petition for review under Rule 45 of the Rules of Court seeking the reversal of
the decision1 dated March 26, 2002, and the resolution2 dated December 17, 2002, of
the Court of Appeals in CA-G.R. SP No. 59869 entitled "Gloria A. Vargas, Aurora Vargas,
Ramon Vargas, Marites Vargas, Edelina Vargas and Gemma Vargas v. Joseph Cua."

The facts are as follows:

A parcel of residential land with an area of 99 square meters located in San Juan, Virac,
Catanduanes was left behind by the late Paulina Vargas. On February 4, 1994, a
notarized Extra Judicial Settlement Among Heirs was executed by and among Paulina
Vargas' heirs, namely Ester Vargas, Visitacion Vargas, Juan Vargas, Zenaida V. Matienzo,
Rosario V. Forteza, Andres Vargas, Gloria Vargas, Antonina Vargas and Florentino
Vargas, partitioning and adjudicating unto themselves the lot in question, each one of
them getting a share of 11 square meters. Florentino, Andres, Antonina and Gloria,
however, did not sign the document. Only Ester, Visitacion, Juan, Zenaida and Rosario
signed it. The Extra Judicial Settlement Among Heirs was published in the Catanduanes
Tribune for three consecutive weeks.3

On November 15, 1994, an Extra Judicial Settlement Among Heirs with Sale4 was again
executed by and among the same heirs over the same property and also with the same
sharings. Once more, only Ester, Visitacion, Juan, Zenaida and Rosario signed the
document and their respective shares totaling 55 square meters were sold to Joseph
Cua, petitioner herein.

According to Gloria Vargas, the widow of Santiago Vargas and one of respondents
herein, she came to know of the Extra Judicial Settlement Among Heirs with Sale dated
November 16, 1994 only when the original house built on the lot was being demolished
sometime in May 1995.5 She likewise claimed she was unaware that an earlier Extra
Judicial Settlement Among Heirs dated February 4, 1994 involving the same property
had been published in the Catanduanes Tribune.6

After knowing of the sale of the 55 square meters to petitioner, Gloria Vargas tried to
redeem the property, with the following letter7 sent to petitioner on her behalf:

29th June 1995

Mr. Joseph Cua

Capilihan, Virac, Catanduanes

Sir:

This is in behalf of my client, Ms. Aurora Vargas,8 (c/o Atty. Prospero V. Tablizo) one of
the lawful heirs of the late Paulina Vargas, original owner of Lot No. 214 of Virac,
Poblacion covered by ARP No. 031-0031 in her name.

I understand that a document "Extra Judicial Settlement Among Heirs with Sale" was
executed by some of my client's co-heirs and alleged representatives of other co-heirs,
by virtue of which document you acquired by purchase from the signatories to the said
document, five (5) shares with a total area of fifty-five square meters of the above-
described land.

This is to serve you notice that my client shall exercise her right of legal redemption of
said five (5) shares as well as other shares which you may likewise have acquired by
purchase. And you are hereby given an option to agree to legal redemption within a
period of fifteen (15) days from your receipt hereof.
Should you fail to convey to me your agreement within said 15-day-period, proper legal
action shall be taken by my client to redeem said shares.

Thank you.

Very truly yours,

(Sgd.)
JUAN G. ATENCIA

When the offer to redeem was refused and after having failed to reach an amicable
settlement at the barangay level,9 Gloria Vargas filed a case for annulment of Extra
Judicial Settlement and Legal Redemption of the lot with the Municipal Trial Court (MTC)
of Virac, Catanduanes against petitioner and consigned the amount of P100,000 which
is the amount of the purchase with the Clerk of Court on May 20, 1996.10 Joining her in
the action were her children with Santiago, namely, Aurora, Ramon, Marites, Edelina
and Gemma, all surnamed Vargas.

Subsequently, Carlos Gianan, Jr. and Gloria Arcilla, heirs of the alleged primitive owner
of the lot in question, Pedro Lakandula, intervened in the case.11

Respondents claimed that as co-owners of the property, they may be subrogated to the
rights of the purchaser by reimbursing him the price of the sale. They likewise alleged
that the 30-day period following a written notice by the vendors to their co-owners for
them to exercise the right of redemption of the property had not yet set in as no written
notice was sent to them. In effect, they claimed that the Extra Judicial Settlement
Among Heirs and the Extra Judicial Settlement Among Heirs with Sale were null and
void and had no legal and binding effect on them.12

After trial on the merits, the MTC rendered a decision13 in favor of petitioner,
dismissing the complaint as well as the complaint-in-intervention for lack of merit, and
declaring the Deed of Extra Judicial Settlement Among Heirs with Sale valid and
binding. The MTC upheld the sale to petitioner because the transaction purportedly
occurred after the partition of the property among the co-owner heirs. The MTC opined
that the other heirs could validly dispose of their respective shares. Moreover, the MTC
found that although there was a failure to strictly comply with the requirements under
Article 1088 of the Civil Code14 for a written notice of sale to be served upon
respondents by the vendors prior to the exercise of the former's right of redemption,
this deficiency was cured by respondents' actual knowledge of the sale, which was
more than 30 days before the filing of their complaint, and their consignation of the
purchase price with the Clerk of Court, so that the latter action came too late. Finally,
the MTC ruled that respondents failed to establish by competent proof petitioner's bad
faith in purchasing the portion of the property owned by respondents' co-heirs.15

On appeal, the Regional Trial Court (RTC), Branch 42, of Virac, Catanduanes affirmed
the MTC decision in a judgment dated November 25, 1999. The matter was thereafter
raised to the Court of Appeals (CA).

The CA reversed the ruling of both lower courts in the assailed decision dated March 26,
2002, declaring that the Extra Judicial Settlement Among Heirs and the Extra Judicial
Settlement Among Heirs with Sale, dated February 4, 1994 and November 15, 1994,
respectively, were void and without any legal effect. The CA held that, pursuant to
Section 1, Rule 74 of the Rules of Court, 16 the extrajudicial settlement made by the
other co-heirs is not binding upon respondents considering the latter never participated
in it nor did they ever signify their consent to the same.

His motion for reconsideration having been denied, petitioner filed the present petition
for review.

The issues are:

Whether heirs are deemed constructively notified and bound, regardless of their failure
to participate therein, by an extrajudicial settlement and partition of estate when the
extrajudicial settlement and partition has been duly published; and,

Assuming a published extrajudicial settlement and partition does not bind persons who
did not participate therein, whether the written notice required to be served by an heir
to his co-heirs in connection with the sale of hereditary rights to a stranger before
partition under Article 1088 of the Civil Code17 can be dispensed with when such co-
heirs have actual knowledge of the sale such that the 30-day period within which a co-
heir can exercise the right to be subrogated to the rights of a purchaser shall
commence from the date of actual knowledge of the sale.

Petitioner argues, as follows:

Firstly, the acquisition by petitioner of the subject property subsequent to the

extrajudicial partition was valid because the partition was duly published. The
publication of the same constitutes due notice to respondents and signifies their
implied acquiescence thereon. Respondents are therefore estopped from denying the
validity of the partition and sale at this late stage. Considering that the partition was
valid, respondents no longer have the right to redeem the property.

Secondly, petitioner is a possessor and builder in good faith.

Thirdly, the MTC had no jurisdiction over the complaint because its subject matter was
incapable of pecuniary estimation. The complaint should have been filed with the RTC.

Fourthly, there was a non-joinder of indispensable parties, the co-heirs who sold their
interest in the subject property not having been impleaded by respondents.

Fifthly, the appeal to the CA should have been dismissed as it was not properly verified
by respondents. Gloria Vargas failed to indicate that she was authorized to represent
the other respondents (petitioners therein) to initiate the petition. Moreover, the
verification was inadequate because it did not state the basis of the alleged truth
and/or correctness of the material allegations in the petition.

The petition lacks merit.

The procedure outlined in Section 1 of Rule 74 is an ex parte proceeding. The rule

plainly states, however, that persons who do not participate or had no notice of an
extrajudicial settlement will not be bound thereby.18 It contemplates a notice that has
been sent out or issued before any deed of settlement and/or partition is agreed upon
(i.e., a notice calling all interested parties to participate in the said deed of extrajudicial
settlement and partition), and not after such an agreement has already been
executed19 as what happened in the instant case with the publication of the first deed
of extrajudicial settlement among heirs.

The publication of the settlement does not constitute constructive notice to the heirs
who had no knowledge or did not take part in it because the same was notice after the
fact of execution. The requirement of publication is geared for the protection of
creditors and was never intended to deprive heirs of their lawful participation in the
decedent's estate. In this connection, the records of the present case confirm that
respondents never signed either of the settlement documents, having discovered their
existence only shortly before the filing of the present complaint. Following Rule 74,
these extrajudicial settlements do not bind respondents, and the partition made
without their knowledge and consent is invalid insofar as they are concerned.

This is not to say, though, that respondents' co-heirs cannot validly sell their hereditary
rights to third persons even before the partition of the estate. The heirs who actually
participated in the execution of the extrajudicial settlements, which included the sale to
petitioner of their pro indiviso shares in the subject property, are bound by the same.
Nevertheless, respondents are given the right to redeem these shares pursuant to
Article 1088 of the Civil Code. The right to redeem was never lost because respondents
were never notified in writing of the actual sale by their co-heirs. Based on the
provision, there is a need for written notice to start the period of redemption, thus:

Should any of the heirs sell his hereditary rights to a stranger before the partition, any
or all of the co-heirs may be subrogated to the rights of the purchaser by reimbursing
him for the price of the sale, provided they do so within the period of one month from
the time they were notified in writing of the sale by the vendor. (Emphasis supplied.)

It bears emphasis that the period of one month shall be reckoned from the time that a
co-heir is notified in writing by the vendor of the actual sale. Written notice is
indispensable and mandatory,20 actual knowledge of the sale acquired in some other
manner by the redemptioner notwithstanding. It cannot be counted from the time
advance notice is given of an impending or contemplated sale. The law gives the co-
heir thirty days from the time written notice of the actual sale within which to make up
his or her mind and decide to repurchase or effect the redemption.21

Though the Code does not prescribe any particular form of written notice nor any
distinctive method for written notification of redemption, the method of notification
remains exclusive, there being no alternative provided by law.22 This proceeds from
the very purpose of Article 1088, which is to keep strangers to the family out of a joint
ownership, if, as is often the case, the presence of outsiders be undesirable and the
other heir or heirs be willing and in a position to repurchase the share sold.23

It should be kept in mind that the obligation to serve written notice devolves upon the
vendor co-heirs because the latter are in the best position to know the other co-owners
who, under the law, must be notified of the sale.24 This will remove all uncertainty as
to the fact of the sale, its terms and its perfection and validity, and quiet any doubt that
the alienation is not definitive.25 As a result, the party notified need not entertain
doubt that the seller may still contest the alienation. 26

Considering, therefore, that respondents' co-heirs failed to comply with this

requirement, there is no legal impediment to allowing respondents to redeem the
shares sold to petitioner given the former's obvious willingness and capacity to do so.

Likewise untenable is petitioner's contention that he is a builder in good faith. Good

faith consists in the belief of the builder that the land the latter is building on is one's
own without knowledge of any defect or flaw in one's title.27 Petitioner derived his title
from the Extra Judicial Settlement Among Heirs With Sale dated November 15, 1994. He
was very much aware that not all of the heirs participated therein as it was evident on
the face of the document itself. Because the property had not yet been partitioned in
accordance with the Rules of Court, no particular portion of the property could have
been identified as yet and delineated as the object of the sale. This is because the
alienation made by respondents' co-heirs was limited to the portion which may be
allotted to them in the division upon the termination of the co-ownership. Despite this
glaring fact, and over the protests of respondents, petitioner still constructed
improvements on the property. For this reason, his claim of good faith lacks credence.

As to the issue of lack of jurisdiction, petitioner is estopped from raising the same for
the first time on appeal. Petitioner actively participated in the proceedings below and
sought affirmative ruling from the lower courts to uphold the validity of the sale to him
of a portion of the subject property embodied in the extrajudicial settlement among
heirs. Having failed to seasonably raise this defense, he cannot, under the peculiar
circumstances of this case, be permitted to challenge the jurisdiction of the lower court
at this late stage. While it is a rule that a jurisdictional question may be raised at any
time, an exception arises where estoppel has already supervened.

Estoppel sets in when a party participates in all stages of a case before challenging the
jurisdiction of the lower court. One cannot belatedly reject or repudiate its decision
after voluntarily submitting to its jurisdiction, just to secure affirmative relief against
one's opponent or after failing to obtain such relief. The Court has, time and again,
frowned upon the undesirable practice of a party submitting a case for decision and
then accepting the judgment, only if favorable, and attacking it for lack of jurisdiction
when adverse.28

Petitioner's fourth argument, that there is a non-joinder of indispensable parties,

similarly lacks merit. An indispensable party is a party-in-interest without whom there
can be no final determination of an action and who is required to be joined as either
plaintiff or defendant.29 The party's interest in the subject matter of the suit and in the
relief sought is so inextricably intertwined with the other parties that the former's legal
presence as a party to the proceeding is an absolute necessity. Hence, an indispensable
party is one whose interest will be directly affected by the court's action in the
litigation. In the absence of such indispensable party, there cannot be a resolution of
the controversy before the court which is effective, complete, or equitable.30

In relation to this, it must be kept in mind that the complaint filed by respondents
ultimately prayed that they be allowed to redeem the shares in the property sold by
their co-heirs. Significantly, the right of the other heirs to sell their undivided share in
the property to petitioner is not in dispute. Respondents concede that the other heirs
acted within their hereditary rights in doing so to the effect that the latter completely
and effectively relinquished their interests in the property in favor of petitioner.
Petitioner thus stepped into the shoes of the other heirs to become a co-owner of the
property with respondents. As a result, only petitioner's presence is absolutely required
for a complete and final determination of the controversy because what respondents
seek is to be subrogated to his rights as a purchaser.

Finally, petitioner contends that the petition filed by respondents with the CA should
have been dismissed because the verification and certificate of non-forum shopping
appended to it were defective, citing specifically the failure of respondent Gloria Vargas
to: (1) indicate that she was authorized to represent her co-respondents in the petition,
and (2) state the basis of the alleged truth of the allegations.

The general rule is that the certificate of non-forum shopping must be signed by all the
plaintiffs or petitioners in a case and the signature of only one of them is
insufficient.31 Nevertheless, the rules on forum shopping, which were designed to
promote and facilitate the orderly administration of justice, should not be interpreted
with such absolute literalness as to subvert their own ultimate and legitimate objective.
Strict compliance with the provisions regarding the certificate of non-forum shopping
merely underscores its mandatory nature in that the certification cannot be altogether
dispensed with or its requirements completely disregarded.32 Under justifiable
circumstances, the Court has relaxed the rule requiring the submission of such
certification considering that although it is obligatory, it is not jurisdictional.33

Thus, when all the petitioners share a common interest and invoke a common cause of
action or defense, the signature of only one of them in the certification against forum
shopping substantially complies with the rules.34The co-respondents of respondent
Gloria Vargas in this case were her children. In order not to defeat the ends of justice,
the Court deems it sufficient that she signed the petition on their behalf and as their
representative. WHEREFORE, the petition is DENIED for lack of merit.

Costs against petitioner. SO ORDERED.

SPOUSES GORGONIO BENATIRO G.R. No. 161220

and COLUMBA CUYOS-BENATIRO

substituted by their heirs, namely:

Isabelita, Renato, Rosadelia and

Gorgonio, Jr., surnamed Benatiro, and

SPOUSES RENATO C. BENATIRO and Present:

ROSIE M. BENATIRO,

Respondents,
 YNARES-SANTIAGO,

- versus - Chairperson,

AUSTRIA-MARTINEZ,

HEIRS OF EVARISTO CUYOS, CHICO-NAZARIO

namely: Gloria Cuyos-Talian, NACHURA, and

Patrocenia Cuyos-Mijares, REYES, JJ.

Numeriano Cuyos, and Enrique Cuyos,

represented by their attorney-in-fact,

Salud Cuyos,

Promulgated:

Respondents. July 30, 2008

x----------------------------------------------------------x

DECISION

AUSTRIA-MARTINEZ, J.:

Before us is a Petition for Review on Certiorari under Rule 45 of the Rules of Court filed
by petitioners seeking to annul the Decision[1] dated July 18, 2003 of the Court of
Appeals (CA) and its Resolution[2] dated November 13, 2003 denying petitioners
motion for reconsideration issued in CA-G.R. SP No. 65630.[3]

Spouses Evaristo Cuyos and Agatona Arrogante Cuyos were blessed with nine children,
namely: Francisco, Victoria, Columba, Lope, Salud, Gloria, Patrocenia, Numeriano, and
Enrique. OnAugust 28, 1966, Evaristo died leaving six parcels of land located
in Tapilon, Daanbantayan, Cebu covered by Tax Declaration (TD) Nos. 000725, 000728,
000729, 000730, 000731, 000732, all under the name of Agatona Arrogante.

On July 13, 1971, one of the heirs, Gloria Cuyos-Talian (respondent Gloria) represented
by Atty. Victor Elliot Lepiten (Atty. Lepiten), filed before the Court of First Instance (CFI)
now Regional Trial Court (RTC), Cebu, Branch XI, a petition[4] for Letters of
Administration, docketed as Special Proceeding (SP) No. 24-BN entitled In the Matter of
the Intestate Estate of EvaristoCuyos, Gloria Cuyos-Talian, petitioner. The petition was
opposed by Glorias brother, Francisco, who was represented by Atty.
Jesus Yray (Atty. Yray).

In the hearing held on January 30, 1973, both parties together with their respective
counsels appeared. Both counsels manifested that the parties had come to an
agreement to settle their case. The trial court on even date issued an
Order[5] appointing Gloria as administratrix of the estate. The dispositive portion reads:

WHEREFORE, letters of administration of the estate of the late Evaristo Cuyos and
including the undivided half accruing to his spouse Agatona Arrogante who recently
died is hereby issued in favor of Mrs. Gloria Cuyos Talian who may qualify as
such administratrix after posting a nominal bond of P1,000.00.[6]

Subsequently, in the Order[7] dated December 12, 1975, the CFI stated that when the
Intestate Estate hearing was called on that date, respondent Gloria and her
brother, oppositorFrancisco, together with their respective counsels, appeared;
that Atty. Yray, Franciscos counsel, manifested that the parties had come to an
agreement to settle the case amicably; that both counsels suggested that the Clerk of
Court, Atty. Andres C. Taneo (Atty. Taneo), be appointed to act as Commissioner to
effect the agreement of the parties and to prepare the project of partition for the
approval of the court. In the same Order, the Court of First Instance (CFI) appointed
Atty. Taneo and ordered him to make a project of partition within 30 days
from December 12, 1975 for submission and approval of the court.

In his Commissioner's Report[8] dated July 29, 1976, Atty. Taneo stated that he
issued subpoenae supplemented by telegrams to all the heirs to cause
their appearance on February 28 and 29, 1976 in Tapilon, Daanbantayan, Cebu, where
the properties are located, for a conference or meeting to arrive at an agreement; that
out of the nine heirs, only respondents Gloria, Salud and Enrique Cuyos failed to attend;
that per return of the service, these three heirs could not be located in their respective
given addresses; that since some of the heirs present resided outside the province
of Cebu, they decided to go ahead with the scheduled meeting.

Atty. Taneo declared in his Report that the heirs who were present:

1. Agreed to consider all income of the properties of the estate during the time
that Francisco Cuyos, one of the heirs, was administering the properties of the estate
(without appointment from the Court) as having been properly and duly accounted for.

2. Agreed to consider all income of the properties of the estate during the
administration of Gloria Cuyos Talian, (duly appointed by the Court) also one of the
heirs as having been properly and duly accounted for.

3. Agreed to consider all motions filed in this proceedings demanding an

accounting from Francisco Cuyos and Gloria Cuyos Talian, as having been withdrawn.

4. Agreed not to partition the properties of the estate but instead agreed to
first sell it for the sum of P40,000.00 subject to the condition that should any of the
heirs would be in a position to buy the properties of the estate, the rest of the eight (8)
heirs will just receive only Four Thousand Pesos (P4,000.00) each.

5. Agreed to equally divide the administration expenses to be deducted from

their respective share of P4,000.00.[9]
The Report further stated that Columba Cuyos-Benatiro (Columba), one of the heirs,
informed all those present in the conference of her desire to buy the properties of the
estate, to which everybody present agreed, and considered her the
buyer. Atty. Taneo explained that the delay in the submission of the Report was due to
the request of respondent Gloria that she be given enough time to make some
consultations on what was already agreed upon by the majority of the heirs; that it was
only on July 11, 1976 that the letter of respondent Gloria was handed to
Atty. Taneo,with the information that respondent Gloria was amenable to what had been
agreed upon, provided she be given the sum of P5,570.00 as her share of the estate,
since one of properties of the estate was mortgaged to her in order to defray their
father's hospitalization.

Quoting the Commissioners Report, the CFI issued the assailed

Order[10] dated December 16, 1976, the dispositive portion of which reads as follows:

WHEREFORE, finding the terms and conditions agreed upon by the heirs to be in order,
the same being not contrary to law, said compromise agreement as embodied in the
report of the commissioner is hereby approved. The Court hereby orders
the Administratrix to execute the deed of sale covering all the properties of the estate
in favor of Columba Cuyos Benatiro after the payment to her of the sum
of P36,000.00. The said sum of money shall remain in custodia legis, but after all the
claims and administration expenses and the estate taxes shall have been paid for, the
remainder shall, upon order of the Court, be divided equally among the heirs. [11]

The CFI disapproved the claim of respondent Gloria for the sum of P5,570.00, as the
same had been allegedly disregarded by the heirs present during the conference.

In an Order[12] dated January 11, 1978, the CFI appointed Lope Cuyos (Cuyos) as the
new administrator of the estate, purportedly on the basis of the motion to relieve
respondent Gloria,as it appeared that she was already residing in Central Luzon and her
absence was detrimental to the early termination of the proceedings.

On May 25, 1979, administrator Cuyos executed a Deed of Absolute Sale[13] over the
six parcels of land constituting the intestate estate of the late Evaristo Cuyos in favor
of Columba for a consideration of the sum of P36,000.00.

Sometime in February 1998, the heirs of Evaristo Cuyos, namely: Gloria Cuyos-
Talian, Patrocenia Cuyos-Mijares, Numeriano Cuyos and Enrique Cuyos, represented by
their attorney-in-fact, Salud Cuyos (respondents), allegedly learned that Tax Declaration
Nos. 000725, 000728, 000729, 000730, 000731 and 000732, which were all in the
name of their late mother AgatonaArrogante, were canceled and new Tax Declaration
Nos., namely, 20-14129, 20-14130, 20-141131, 20-14132, 2014133 and 20-
14134, were issued in Columbas name; and that later on, Original Certificates of Titles
covering the estate of Evaristo Cuyos were issued in favor of Columba; that some of
these parcels of land were subsequently transferred to the names of
spouses Renato C.Benatiro and Rosie M. Benatiro, son and daughter-in-law,
respectively, of petitioners Gorgonio and Columba, for which transfer certificates of title
were subsequently issued; that they subsequently discovered the existence of the
assailed CFI Order dated December 16, 1976 and the Deed of Absolute Sale dated May
25, 1979.

Respondents filed a complaint against petitioner Gorgonio Benatiro before the

Commission on the Settlement of Land Problems (COSLAP) of the Department of
Justice, which on June 13, 2000 dismissed the case for lack of jurisdiction.[14]

Salud Cuyos brought the matter for conciliation and mediation at

the barangay level, but was unsuccessful.[15]

On July 16, 2001, Salud Cuyos, for herself and in representation[16] of the other heirs
of Evaristo Cuyos, namely: Gloria, Patrocenia, Numeriano,[17] and Enrique, filed with
the CA a petition for annulment of the Order dated December 16, 1976 of the CFI
of Cebu, Branch XI, in SP No. 24-BN under Rule 47 of the Rules of Court. They alleged
that the CFI Order dated December 16, 1976 was null and void and of no effect, the
same being based on a Commissioner's Report, which was patently false and irregular;
that such report practically deprived them of due process in claiming their
share of their father's estate; that Patrocenia Cuyos-Mijares executed an affidavit, as
well as the unnotarized statement of Gloria stating that no meeting ever took place for
the purpose of discussing how to dispose of the estate of their parents and that they
never received any payment from the supposed sale of their share in the inheritance;
that the report was done in close confederacy with their co-heir Columba, who stood to
be benefited by the Commissioner's recommendation, should the same be approved by
the probate court; that since the report was a falsity, any order
proceeding therefrom was invalid; that the issuance of the certificates of titles in favor
of respondents were tainted with fraud and irregularity, since the CFI which issued the
assailed order did not appear to have been furnished a copy of the Deed of Absolute
Sale; that the CFI was not in custodia legis of the consideration of the sale, as directed
in its Order so that it could divide the remainder of the consideration equally among the
heirs after paying all the administration expenses and estate taxes; that the intestate
case had not yet been terminated as the last order found relative to the case was the
appointment of Lope as administrator vice Gloria; that they never received their
corresponding share in the inheritance; and that the act of petitioners in manifest
connivance with administrator Lope amounted to a denial of their right to the property
without due process of law, thus, clearly showing that extrinsic fraud caused them to be
deprived of their property.

Herein petitioners contend that respondents' allegation that they discovered the
assailed order dated December 16, 1976 only in February 1998 was preposterous, as
respondents were represented by counsel in the intestate proceedings; thus, notice of
Order to counsel was notice to client; that this was only a ploy so that they could claim
that they filed the petition for annulment within the statutory period of four (4) years;
that they have been in possession of the six parcels of land since May 25, 1979 when
the same was sold to them pursuant to the assailed Order in the intestate proceedings;
that no extrinsic fraud attended the issuance of the assailed order;
that Numeriano executed an affidavit in which he attested to having received his share
of the sale proceeds on May 18, 1988; that respondents were estopped from assailing
the Order dated December 16, 1976, as it had already attained the status of finality.

On July 18, 2003, the CA granted the petition and annulled the CFI order,
the dispositive portion of which reads:

FOR ALL THE FOREGOING REASONS, the instant petition is hereby GRANTED.
Accordingly, the Order issued by the Court of First Instance of Cebu Branch XI dated
December 16, 1976 as well as the Certificates of Title issued in the name
of Columba Cuyos-Benatiro and the subsequent transfer of these Titles in the name of
spouses Renato and Rosie Benatiro are hereby ANNULLED and SET ASIDE. Further, SP
Proc. Case No. 24-BN is hereby ordered reopened and proceedings thereon be
continued.[18]

The CA declared that the ultimate fact that was needed to be established was the
veracity and truthfulness of the Commissioners Report, which was used by the trial
court as its basis for issuing the assailed Order. The CA held that to arrive at an
agreement, there was a need for all the concerned parties to be present in the
conference; however, such was not the scenario since in their separate sworn
statements, the compulsory heirs of the decedent attested to the fact that no meeting
or conference ever happened among them; that although under Section 3(m), Rule 133
on the Rules of Evidence, there is a presumption of regularity in the performance of an
official duty, the same may be contradicted and overcome by other evidence to prove
the contrary.

The CA noted some particulars that led it to conclude that the conference was not held
accordingly, to wit: (1) the Commissioners Report never mentioned the names of the
heirs who were present in the alleged conference but only the names of those who
were absent, when the names of those who were present were equally essential, if not
even more important, than the names of those who were absent; (2) the Report also
failed to include any proof of conformity to the agreement from the attendees, such as
letting them sign the report to signify their consent as regards the agreed mechanisms
for the estates settlement; (3) there was lack or absence of physical evidence attached
to the report indicating that the respondents were indeed properly notified about the
scheduled conference. The CA then concluded that due to the absence of the
respondents' consent, the legal existence of the compromise agreement did not stand
on a firm ground.

The CA further observed that although it appeared that notice of the report was given
to Atty. Lepiten and Atty. Yray, lawyers of Gloria and Francisco Cuyos, respectively, the
same cannot be taken as notice to the other heirs of Evaristo Cuyos; that a lawyers
authority to compromise cannot be simply presumed, since what was required was the
special authority to compromise on behalf of his client; that a compromise agreement
entered into by a person not duly authorized to do so by the principal is void and has
no legal effect, citing Quiban v. Butalid;[19] that being a void compromise agreement,
the assailed Order had no legal effect.

Thus, the CA ruled that the Certificates of Titles obtained by herein petitioners were
procured fraudulently; that the initial transfer of the properties to Columba Cuyos-
Benatiro by virtue of a Deed of Absolute Sale executed by Lope Cuyos was clearly
defective, since the compromise agreement which served as the basis of the Deed of
Absolute Sale was void and had no legal effect.

The CA elaborated that there was no showing that Columba paid the sum of P36,000.00
to the administrator as consideration for the sale, except for the testimony
of Numeriano Cuyosadmitting that he received his share of the proceeds but without
indicating the exact amount that he received; that even so, such alleged payment was
incomplete and was not in compliance with the trial courts order for
the administratix to execute the deed of sale covering all properties of the estate in
favor of Columba Cuyos-Benatiro after the payment to the administratrix of the sum
ofP36,000.00; that said sum of money shall remain in custodia legis, but after all the
claims and administration expenses and the estate taxes shall have been paid for, the
remainder shall, upon order of the Court, be divided equally among the heirs.

Moreover, the CA found that the copy of the Deed of Sale was not even furnished the
trial court nor was said money placed under custodia legis as agreed upon; that the
Certification dated December 9, 1998 issued by the Clerk of Court of Cebu indicated
that the case had not yet been terminated and that the last Order in the special
proceeding was the appointment of Lope Cuyos as the new administrator of the
estate; thus, the transfer of the parcels of land, which included the execution of the
Deed of Absolute Sale, cancellation of Tax Declarations and the issuance of new
Tax Declarations and Transfer Certificates of Title, all in favor of petitioners, were
tainted with fraud. Consequently, the CA concluded that the compromise
agreement, the certificates of title and the transfers made by petitioners through fraud
cannot be made a legal basis of their ownership over the properties, since to do so
would result in enriching them at the expense of the respondents; and that it was also
evident that the fraud attendant in this case was one of extrinsic fraud, since
respondents were denied the opportunity to fully litigate their case because of the
scheme utilized by petitioners to assert their claim.

Hence, herein petition raising the following issues:

Whether or not annulment of order under Rule 47 of the Rules of Court was a proper
remedy where the aggrieved party had other appropriate remedies, such as new trial,
appeal, or petition for relief, which they failed to take through their own fault.

Whether or not the Court of Appeals misapprehended the facts when it annulled the 24
year old Commissioner's Report of the Clerk of Court - an official act which enjoys a
strong presumption of regularity -based merely on belated allegations of irregularities
in the performance of said official act.

Whether or not upon the facts as found by the Court of Appeals in this case, extrinsic
fraud existed which is a sufficient ground to annul the lower court's order under Rule 47
of the Rules of Court. [20]

Subsequent to the filing of their petition, petitioners filed a Manifestation that they were
in possession of affidavits of waiver and desistance executed by the heirs of
Lope Cuyos[21] and respondent Patrocenia Cuyos-Mijares[22] on February 17,
2004 and December 17, 2004, respectively. In both affidavits, the affiants stated that
they had no more interest in prosecuting/defending the case involving the settlement of
the estate, since the subject estate properties had been bought by their late
sister Columba, and they had already received their share of the purchase
price.Another heir, respondent Numeriano Cuyos, had also earlier executed an
Affidavit[23] dated December 13, 2001, stating that the subject estate was sold
to Columba and that she had already received her share of the purchase price on May
18, 1988. In addition, Numeriano had issued a certification[24] dated May 18,
1988, which was not refuted by any of the parties, that he had already
received P4,000.00 in payment of his share, which could be the reason why he refused
to sign the Special Power of Attorney supposedly in favor of Salud Cuyos for the filing of
the petition with the CA.

The issue for resolution is whether the CA committed a reversible error in annulling the
CFI Order dated December 16, 1976, which approved the Commissioners Report
embodying the alleged compromise agreement entered into by the heirs
of Evaristo and Agatona Arrogante Cuyos.

We rule in the negative.

The remedy of annulment of judgment is extraordinary in character[25] and will not so

easily and readily lend itself to abuse by parties aggrieved by final judgments. Sections
1 and 2 of Rule 47 impose strict conditions for recourse to it, viz.:

Section 1. Coverage. This Rule shall govern the annulment by the Court of Appeals of
judgments or final orders and resolutions in civil actions of Regional Trial Courts for
which the ordinary remedies of new trial, appeal, petition for relief or other appropriate
remedies are no longer available through no fault of the petitioner.

Section 2. Grounds for annulment. The annulment may be based only on the grounds of
extrinsic fraud and lack of jurisdiction.

Extrinsic fraud shall not be a valid ground if it was availed of, or could have been
availed of, in a motion for new trial or petition for relief.

Although Section 2 of Rule 47 of the Rules of Court provides that annulment of a final
judgment or order of an RTC may be based "only on the grounds of extrinsic fraud and
lack of jurisdiction," jurisprudence recognizes denial of due process as
additional .ground therefor.[26]

An action to annul a final judgment on the ground of fraud will lie only if the fraud is
extrinsic or collateral in character.[27] Extrinsic fraud exists when there is a fraudulent
act committed by the prevailing party outside of the trial of the case, whereby the
defeated party was prevented from presenting fully his side of the case by fraud or
deception practiced on him by the prevailing party.[28] 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.[29]
While we find that the CA correctly annulled the CFI Order dated December 16, 1976,
we find that it should be annulled not on the ground of extrinsic fraud, as there is no
sufficient evidence to hold Atty. Taneo or any of the heirs guilty of fraud, but on the
ground that the assailed order is void for lack of due process.

Clerk of Court Taneo was appointed to act as Commissioner to effect the agreement of
the heirs and to prepare the project of partition for submission and approval of the
court. Thus, it was incumbent upon Atty. Taneo to set a time and place for the first
meeting of the heirs. In his Commissioners Report, Atty. Taneo stated that he caused
the appearance of all the heirs of Evaristo Cuyosand Agatona Arrogante Cuyos in the
place, where the subject properties were located for settlement, by sending
them subpoenae supplemented by telegrams for them to attend the conference
scheduled on February 28 to 29, 1976. It was also alleged that out of the nine heirs,
only six attended the conference; however, as the CA aptly found, the Commissioner
did not state the names of those present, but only those heirs who failed to attend the
conference, namely: respondents Gloria, Salud and Enrique who, as stated in the
Report, based on the return of service, could not be located in their respective given
addresses.

However, there is nothing in the records that would establish that the
alleged subpoenae, supplemented by telegrams, for the heirs to appear in the
scheduled conference were indeed sent to the heirs. In fact,
respondent Patrocenia Cuyos-Mijares, one of the heirs, who was presumably present in
the conference, as she was not mentioned as among those absent, had executed an
affidavit[30]dated December 8, 1998 attesting, to the fact that she was not called to a
meeting nor was there any telegram or notice of any meeting received by
her. While Patrocenia had executed on December 17, 2004 an Affidavit of Waiver and
Desistance[31] regarding this case, it was only for the reason that the subject estate
properties had been bought by their late sister Columba, and that she had already
received her corresponding share of the purchase price, but there was nothing in the
affidavit that retracted her previous statement that she was not called to a
meeting. Respondent Gloria also made an unnotarized statement[32] that there was no
meeting held. Thus, the veracity of Atty. Taneos holding of a conference with the heirs
was doubtful.

Moreover, there was no evidence showing that the heirs indeed convened for the
purpose of arriving at an agreement regarding the estate properties, since they were
not even required to sign anything to show their attendance of the alleged meeting. In
fact, the Commissioner's Report, which embodied the alleged agreement of the
heirs, did not bear the signatures of the alleged attendees to show their consent and
conformity thereto.

It bears stressing that the purpose of the conference was for the heirs to arrive at a
compromise agreement over the estate of Evaristo Cuyos. Thus, it was imperative that
all the heirs must be present in the conference and be heard to afford them the
opportunity to protect their interests. Considering that no separate instrument of
conveyance was executed among the heirs embodying their alleged agreement, it was
necessary that the Report be signed by the heirs to prove that a conference among the
heirs was indeed held, and that they conformed to the agreement stated in the Report.

Petitioners point out that the Commissioner was an officer of the court and a
disinterested party and that, under Rule 133, Section 3(m) of the Rules on Evidence,
there is a presumption that official duty has been regularly performed.

While, under the general rule, it is to be presumed that everything done by an officer in
connection with the performance of an official act in the line of his duty was legally
done, such presumption may be overcome by evidence to the contrary. We find the
instances mentioned by the CA, such as absence of the names of the persons present
in the conference, absence of the signatures of the heirs in the Commissioner's
Report, as well as absence of evidence showing that respondents were notified of the
conference, to be competent proofs of irregularity that rebut the presumption.

Thus, we find no reversible error committed by the CA in ruling that the conference was
not held accordingly and in annulling the assailed order of the CFI.

Petitioners attached a Certification[33] dated August 7, 2003 issued by the Officer In

Charge (OIC), Branch Clerk of Court of the RTC, Branch 11, to show that copies of the
Commissioners Report were sent to all the heirs, except Salud and Enrique, as well
as to Attys. Lepiten and Yray as enumerated in the Notice found at the lower portion of
the Report with the accompanying registry receipts.[34]

In Cua v. Vargas,[35] in which the issue was whether heirs were deemed constructively
notified of and bound by an extra-judicial settlement and partition of the estate,
regardless of their failure to participate therein, when the extra-judicial settlement and
partition has been duly published, we held:

The procedure outlined in Section 1 of Rule 74 is an ex parte proceeding. The rule

plainly states, however, that persons who do not participate or had no notice of an
extrajudicial settlement will not be bound thereby. It contemplates a notice that has
been sent out or issued before any deed of settlement and/or partition is agreed upon
(i.e., a notice calling all interested parties to participate in the said deed of extrajudicial
settlement and partition), and not after such an agreement has already been executed
as what happened in the instant case with the publication of the first deed of
extrajudicial settlement among heirs.

The publication of the settlement does not constitute constructive notice to the heirs
who had no knowledge or did not take part in it because the same was notice after the
fact of execution. The requirement of publication is geared for the protection of
creditors and was never intended to deprive heirs of their lawful participation in the
decedent's estate. In this connection, the records of the present case confirm that
respondents never signed either of the settlement documents, having discovered their
existence only shortly before the filing of the present complaint. Following Rule 74,
these extrajudicial settlements do not bind respondents, and the partition made
without their knowledge and consent is invalid insofar as they are
concerned[36] (Emphasis supplied)
Applying the above-mentioned case by analogy, what matters is whether the heirs
were indeed notified before the compromise agreement was arrived at, which was not
established, and not whether they were notified of the Commissioner's Report
embodying the alleged agreement afterwards.

We also find nothing in the records that would show that the heirs were called to a
hearing to validate the Report. The CFI adopted and approved the Report despite the
absence of the signatures of all the heirs showing conformity thereto. The CFI adopted
the Report despite the statement therein that only six out of the nine heirs attended
the conference, thus, effectively depriving the other heirs of their chance to be
heard. The CFI's action was tantamount to a violation of the constitutional guarantee
that no person shall be deprived of property without due process of law. We find that
the assailed Order dated December 16, 1976, which approved a void Commissioner's
Report, is a void judgment for lack of due process.

We are not persuaded by petitioners contentions that all the parties in the intestate
estate proceedings in the trial court were duly represented by respective counsels,
namely, Atty. Lepitenfor petitioners-heirs and Atty. Yray for the oppositors-heirs; that
when the heirs agreed to settle the case amicably, they manifested such intention
through their lawyers, as stated in the Order dated January 30, 1973; that an heir in the
settlement of the estate of a deceased person need not hire his own lawyer, because
his interest in the estate is represented by the judicial administrator who retains the
services of a counsel; that a judicial administrator is the legal representative not only of
the estate but also of the heirs, legatees, and creditors whose interest he represents;
that when the trial court issued the assailed Order dated December 16, 1976 approving
the Commissioner's Report, the parties lawyers were duly served said copies of the
Order on December 21, 1976 as shown by the Certification[37] dated August 7, 2003 of
the RTC OIC, Clerk of Court; that notices to lawyers should be considered notices to the
clients, since, if a party is represented by counsel, service of notices of orders and
pleadings shall be made upon the lawyer; that upon receipt of such order by counsels,
any one of the respondents could have taken the appropriate remedy such as amotion
for reconsideration, a motion for new trial or a petition for relief under Rule 38 at the
proper time, but they failed to do so without giving any cogent reason for such failure.

While the trial court's order approving the Commissioners Report was received by
Attys. Yray and Lepiten, they were the lawyers of Gloria and Francisco, respectively, but
not the lawyers of the other heirs. As can be seen from the pleadings filed before the
probate court, Atty. Lepiten was Glorias counsel when she filed her Petition for letters
of administration, while Atty. Yray was Franciscos lawyer when he filed his opposition to
the petition for letters of administration and his Motion to Order administrarix Gloria to
render an accounting and for the partition of the estate.Thus, the other heirs who were
not represented by counsel were not given any notice of the judgment approving the
compromise. It was only sometime in February 1998 that respondents learned that the
tax declarations covering the parcels of land, which were all in the name of their late
mother Agatona Arrogante, were canceled; and new Tax Declarations were issued
in Columbas name,and Original Certificates of Titles were subsequently issued in favor
of Columba. Thus, they could not have taken an appeal or other remedies.
Considering that the assailed Order is a void judgment for lack of due process of law, it
is no judgment at all. It cannot be the source of any right or of any obligation.[38]

In Nazareno v. Court of Appeals,[39] we stated the consequences of a void judgment,

thus:

A void judgment never acquires finality. Hence, while admittedly, the petitioner in the
case at bar failed to appeal timely the aforementioned decision of the Municipal Trial
Court of Naic, Cavite, it cannot be deemed to have become final and executory. In
contemplation of law, that void decision is deemed non-existent. Thus, there was no
effective or operative judgment to appeal from. In Metropolitan Waterworks &
Sewerage System vs. Sison, this Court held that:

x x x [A] void judgment is not entitled to the respect accorded to a valid judgment, but
may be entirely disregarded or declared inoperative by any tribunal in which effect is
sought to be given to it. It is attended by none of the consequences of a valid
adjudication. It has no legal or binding effect or efficacy for any purpose or at any
place. It cannot affect, impair or create rights. It is not entitled to enforcement and is,
ordinarily, no protection to those who seek to enforce. All proceedings founded on the
void judgment are themselves regarded as invalid. In other words, a void judgment is
regarded as a nullity, and the situation is the same as it would be if there were no
judgment. It, accordingly, leaves the parties litigants in the same position they were in
before the trial.

Thus, a void judgment is no judgment at all. It cannot be the source of any right nor of
any obligation. All acts performed pursuant to it and all claims emanating from it have
no legal effect. Hence, it can never become final and any writ of execution based on it
is void: "x x x it may be said to be a lawless thing which can be treated as an outlaw
and slain at sight, or ignored wherever and whenever it exhibits its head.
[40] (Emphasis supplied)

The CFI's order being null and void, it may be assailed anytime, collaterally or in a
direct action or by resisting such judgment or final order in any action or proceeding
whenever it is invoked, unless barred by laches.[41] Consequently, the compromise
agreement and the Order approving it must be declared null and void and set aside.

We find no merit in petitioners' claim that respondents are barred from assailing the
judgment after the lapse of 24 years from its finality on ground of laches and estoppel.

Section 3, Rule 47 of the Rules of Court provides that an action for annulment of
judgment based on extrinsic fraud must be filed within four years from its discovery
and, if based on lack of jurisdiction, before it is barred by laches or estoppel.

The principle of laches or "stale demands" ordains that the failure or neglect, for an
unreasonable and unexplained length of time, to do that which by exercising due
diligence could or should have been done earlier, or the negligence or omission to
assert a right within a reasonable time, warrants a presumption that the party entitled
to assert it either has abandoned it or declined to assert it.[42]
There is no absolute rule as to what constitutes laches or staleness of demand; each
case is to be determined according to its particular circumstances.[43] The question
of laches is addressed to the sound discretion of the court and, being an equitable
doctrine, its application is controlled by equitable considerations. It cannot be used to
defeat justice or perpetrate fraud and injustice. It is the better rule that courts, under
the principle of equity, will not be guided or bound strictly by the statute of limitations
or the doctrine of laches when to be so, a manifest wrong or injustice would result.[44]

In this case, respondents learned of the assailed order only sometime in February 1998
and filed the petition for annulment of judgment in 2001. Moreover, we find that
respondents' right to due process is the paramount consideration in annulling the
assailed order. It bears stressing that an action to declare the nullity of a void judgment
does not prescribe.[45]

Finally, considering that the assailed CFI judgment is void, it has no legal and binding
effect, force or efficacy for any purpose. In contemplation of law, it is non-
existent. Hence, the execution of the Deed of Sale by Lope in favor
of Columba pursuant to said void judgment, the issuance of titles pursuant to said Deed
of Sale, and the subsequent transfers are void ab initio. No reversible error was thus
committed by the CA in annulling the judgment.

WHEREFORE, the petition is DENIED and the Decision dated July 18, 2003 and
Resolution dated November 13, 2003 of the Court of Appeals are AFFIRMED. The
Regional Trial Court, Branch XI, Cebu and the Heirs of Evaristo Cuyos are DIRECTED to
proceed with SP Proceedings Case No. 24-BN for the settlement of the Estate
of Evaristo Cuyos.

No costs. SO ORDERED.
G.R. No. 118680 March 5, 2001

MARIA ELENA RODRIGUEZ PEDROSA, petitioner,

vs.
THE HON. COURT OF APPEALS, JOSE, CARMEN, MERCEDES & RAMON, all surnamed
RODRIGUEZ, ROSALINA RODRIGUEZ, CHAN LUNG FAI, MATEO TAN TE, TE ENG SUY,
LORETA TE, VICTORIO S. DETALIA, JEROME DEIPARINE, PETRONILO S. DETALIA, HUBERT
CHIU YULO, PATERIO N. LAO, LORENSITA M. PADILLA, IMMACULATE CONCEPCION
COLLEGE AND LILIAN EXPRESS, INC. and TIO TUAN, respondents.

QUISUMBING, J.:

This petition assails the decision of the Court of Appeals dated May 23, 1994 which
affirmed the judgment of the Regional Trial Court, Branch 15, of Ozamiz City in Civil
Case No. OZ-1397.

The facts of this case are as follows:

On April 8, 1946, the spouses Miguel Rodriguez and Rosalina J. de Rodriguez initiated
proceedings before the CFI of Ozamiz City for the legal adoption of herein petitioner,
Maria Elena Rodriguez Pedrosa. On August 1, 1946, the CFI granted the petition and
declared petitioner Pedrosa the adopted child of Miguel and Rosalina.

On April 29, 1972, Miguel died intestate. Thereafter, petitioner and Rosalina entered
into an extrajudicial settlement of Miguel's estate, adjudicating between themselves in
equal proportion the estate of Miguel.

On November 21, 1972, private respondents filed an action to annul the adoption of
petitioner before the CFI of Ozamiz City, with petitioner and herein respondent Rosalina
as defendants docketed as OZ 349.

On August 28, 1974, the CFI denied the petition and upheld the validity of the adoption.
Thereafter, the private respondents appealed said decision to the Court of Appeals.

On March 11, 1983, while said appeal was pending, the Rodriguezes entered into an
extrajudicial settlement with respondent Rosalina for the partition of the estate of
Miguel and of another sister, Pilar. Rosalina acted as the representative of the heirs of
Miguel Rodriguez. Pilar had no heirs except his brothers and sisters.

The Deed of Extrajudicial Settlement and Partition covered fourteen parcels of land
covering a total area of 224,883 square meters. These properties were divided among
Jose, Carmen, Mercedes, Ramon and the heirs of Miguel, represented solely by
Rosalina. The heirs of Miguel were given 226 square meters of parcel 2, and 9,567
square meters and 24,457 square meters of parcels 7 and 9, respectively.1 The total
land area allocated to the heirs of Miguel was 34,250 square meters.

Armed with the Deed of Extrajudicial Settlement and Partition, respondents Rodriguezes
were able to secure new Transfer Certificates of Title (TCTs) and were able to transfer
some parcels to the other respondents herein.2
Lots 504-A-6, 504-B-3 and 504-C-4, portions of Parcel 3, designated as Lot 504, were
transferred to respondents Chuan Lung Fai,3 but not included in the Deed of Settlement
and Partition, were transferred to respondent Lilian Express, Inc. and are now registered
under TCT No. T-11337. Parcel 6, Lot 560, was subdivided among Ramon, Jose, Carmen
and Mercedes and was designated as Lots 560-A, 560-B, 560-C, 560-D and 560-E. Lot
560-A covering 500 square meters was transferred to respondent Victorino Detall4 and
was subsequently transferred to Jerome Deiparine who registered it under his name
under TCT No. T-10706. Lot 560-B with 500 square meters was transferred to
respondent Petronilo Detalla5 and was later transferred to respondent Hubert Chiu Yulo
who registered it under his name under TCT No. T-11305. Lot 560-C was transferred and
registered under the name of respondent Paterio Lao with TCT No. T-10206. Lot 560-D
was sold to and subsequently registered in the name of Lorensita M. Padilla under TCT
No. T-10207. The remaining portion, Lot 560-E consisting of 43,608 square meters was
bought by respondent Immaculate Concepcion College and was registered in its name
under TCT No. T-10208.6

On June 19, 1986, the parties in the appeal which sought to annul the adoption of
petitioner Pedrosa filed a joint Motion to Dismiss. On June 25, 1986, the Court of
Appeals dismissed the appeal but upheld the validity of the adoption of petitioner.

Thereafter, petitioner sent her daughter, Loreto Jocelyn, to claim their share of the
properties from the Rodriguezes. The latter refused saying that Maria Elena and Loreto
were not heirs since they were not their blood relatives.

Petitioner, then, filed a complaint to annul the 1983 partition. The said complaint was
filed on January 28, 1987. Said complaint was later amended on March 25, 1987 to
include the allegation "that earnest efforts toward a compromise were made between
the plaintiffs and the defendants, but the same failed."7

The Regional Trial Court dismissed the complaint.

Petitioner appealed to the Court of Appeals. The appellate court affirmed the decision of
the trial court. Its ruling was premised on the following grounds:8

1) that the participation of Rosalina has already estopped her from questioning the
validity of the partition, and since she is already estopped, it naturally follows that
Maria Elena, her successor-in-interest, is likewise estopped, applying Article 1439 of the
Civil Code;

2) that the appeal of Maria Elena and her claim that the partition is null and void is
weakened by her inconsistent claim that the partition would have been alright had she
been given a more equitable share;

3) the action is essentially an action for rescission and had been filed late considering
that it was filed beyond the 4 year period provided for in Article 1100 of the Civil
Code;9

4) that fraud and/or bad faith was never established.

Petitioner filed a Motion for Reconsideration, which was denied by the Court of Appeals
in a Resolution dated December 20, 1994.10

Hence, this petition wherein the petitioner asserts that the following errors were
allegedly committed by the Court of Appeals in -

I. FINDING THAT THE EXTRAJUDICIAL SETTLEMENT AND PARTITION ENTERED INTO

BY DEFENDANT JUREDINI AND DEFENDANTS-APPELLANTS RODRIGUEZES WAS VALID
AND BINDING UPON THE PLAINTIFF-APPELLANT WHO DID NOT PARTICIPATE IN SAID
TRANSACTION

II. CONCLUDING THAT THE CLAIM OF PLAINTIFF-APPELLANT HAVE ALREADY

PRESCRIBED TWO (2) YEARS AFTER PUBLICATION OF THE EXTRAJUDICIAL SETTLEMENT
AND PARTITION IN THE NEWSPAPER OF GENERAL CIRCULATION

III. ...CONCLUDING THAT THE CLAIM OF PLAINTIFF-APPELLANT IS BARRED OR

ESTOPPED IN FILING THIS CASE (sic) IN VIEW OF THE DISMISSAL OF THE APPEAL IN
CIVIL CASE NO. OZ 349 INTERPOSED BY HEREIN DEFENDANTS-APPELLEES WHO WERE
THEN PLAINTIFFS-APPELLANTS IN AC [C]-G.R. NO. SP-00208

IV. SUSTAINING THE DEFENDANT-APPELLEES' CLAIM THAT AS THEY HAVE NOT AS

YET RECOGNIZED PLAINTIFF-APPELLANT AS AN ADOPTED DAUGHTER OF MIGUEL
RODRIGUEZ IT WAS NOT NECESSARY FOR THEM TO HAVE HER PARTICIPATE IN THE
EXTRAJUDICIAL SETTLEMENT, EXHIBITS "S" AND "I"

V. CONCLUDING THAT THE PLAINTIFF-APPELLANT HAD NOT CONCLUSIVELY SHOWN

THAT MIGUEL RODRIGUEZ WAS A CO-OWNER OF THE LANDS SOLD AND HENCE IT
FOLLOWS THAT SHE HAS NO RIGHT OF REDEMPTION OF THOSE LANDS

VI. FINDING THAT PORTION OF LOTS NOS. 504 AND 560 SOLD TO THE OTHER
DEFENDANTSAPPELLEES WERE CLEAN AND FREE FROM ENCUMBRANCES OR ANY
FLAWS HENCE WERE VALID

VII. FINDING THAT THE PLANTIFFAPPELLANT NEVER APPEARED IN COURT TO

TESTIFY OR REBUT THE ASSERTIONS OF THE DEFENDANTSAPPELLANTS THAT THERE
WAS A VALID PARTITION

VIII. AWARDING PLAINTIFFAPPELLANT DAMAGES FOR THE INCOME OF HER SHARE

IN THE PROPERTIES IN QUESTION11

In sum, the issues to be resolved in our view are (1) whether or not the complaint for
annulment of the "Deed of Extrajudicial Settlement and Partition" had already
prescribed; (2) whether or not said deed is valid; and (3) whether or not the petitioner
is entitled to recover the lots which had already been transferred to the respondent
buyers.

Petitioner argues that the complaint for annulment of the extrajudicial partition has not
yet prescribed since the prescriptive period which should be applied is four years
following the case of Beltran vs. Ayson, 4 SCRA 69 (1962). She also avers that Sec. 4,
Rule 74 which provides for a two-year prescriptive period needs two requirements. One,
the party assailing the partition must have been given notice, and two, the party
assailing the partition must have participated therein. Petitioner insists these
requirements are not present in her case,12 since she did not participate in the "Deed
of Extrajudicial Settlement and Partition." She cites Villaluz vs. Neme, 7 SCRA 27, 30
(1963), where we held that a deed of extrajudicial partition executed without including
some of the heirs, who had no knowledge and consent to the same, is fraudulent. She
asserts that she is an adoptive daughter and thus an heir of Miguel.13

Petitioner also contends that the respondent buyers were buyers in bad faith since they
failed to exercise the necessary due diligence required before purchasing the lots in
question.14 In the alternative, petitioner wants to redeem the said lots as a co-owner of
respondent Rodriguezes under the provisions of Article 1620 of the New Civil Code.15

Lastly, petitioner asserts that she will suffer lesion if the partition would be allowed. She
asks for the rescission of the said partitioning under Articles 165-175 of the Civil
Code.16

Respondents, in response, claim that the action of petitioner had already prescribed. In
addition, they argue that petitioner, Maria Elena, and Rosalina already have their
shares in the estate of Miguel Rodriguez reflected in the compromise agreement they
entered into with the respondent Rodriguezes in AC- G.R. SP 00208. Finally,
respondents aver that the non-participation of Maria Elena in the extrajudicial partition
was understandable since her status as an adopted child was then under litigation. In
any case, they assert that the shares of Miguel's heirs were adequately protected in the
said partition.17

Section 4, Rule 7418 provides for a two year prescriptive period (1) to persons who
have participated or taken part or had notice of the extrajudicial partition, and in
addition (2) when the provisions of Section 119 of Rule 74 have been strictly complied
with, i.e., that all the persons or heirs of the decedent have taken part in the
extrajudicial settlement or are represented by themselves or through guardians.20

Petitioner, as the records confirm, did not participate in the extrajudicial partition.
Patently then, the two-year prescriptive period is not applicable in her case.

The applicable prescriptive period here is four (4) years as provided in Gerona vs. De
Guzman, 11 SCRA 153 (1964), which held that:

[The action to annul] a deed of "extrajudicial settlement" upon the ground of

fraud...may be filed within four years from the discovery of the fraud. Such discovery is
deemed to have taken place when said instrument was filed with the Register of Deeds
and new certificates of title were issued in the name of respondents exclusively.21

Considering that the complaint of the petitioner was filed on January 28, 1987, or three
years and ten months after the questioned extrajudicial settlement dated March 11,
1983, was executed, we hold that her action against the respondents on the basis of
fraud has not yet prescribed.

Section 1 of Rule 74 of the Rules of Court is the applicable rule on publication of

extrajudicial settlement. It states:
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.22

Under said provision, without the participation of all persons involved in the
proceedings, the extrajudicial settlement cannot be binding on said persons. The rule
contemplates a notice which must be sent out or issuedbefore the Deed of Settlement
and/or Partition is agreed upon, i.e., a notice calling all interested parties to participate
in the said deed of extrajudicial settlement and partition, not after, which was when
publication was done in the instant case. Following Rule 74 and the ruling in Beltran vs.
Ayson, since Maria Elena did not participate in the said partition, the settlement is not
binding on her.

The provision of Section 4, Rule 74 will also not apply when the deed of extrajudicial
partition is sought to be annulled on the ground of fraud. A deed of extrajudicial
partition executed without including some of the heirs, who had no knowledge of and
consent to the same, is fraudulent and vicious.23 Maria Elena is an heir of Miguel
together with her adopting mother, Rosalina. Being the lone descendant of Miguel, she
excludes the collateral relatives of Miguel from participating in his estate, following the
provisions of Article 1003 of the Civil Code.24 The private respondent Rodriguezes
cannot claim that they were not aware of Maria Elena's adoption since they even filed
an action to annul the decree of adoption. Neither can they claim that their actions
were valid since the adoption of Maria Elena was still being questioned at the time they
executed the deed of partition. The complaint seeking to annul the adoption was filed
only twenty six (26) years after the decree of adoption, patently a much delayed
response to prevent Maria Elena from inheriting from her adoptive parents. The decree
of adoption was valid and existing. With this factual setting, it is patent that private
respondents executed the deed of partition in bad faith with intent to defraud Maria
Elena.

In the case of Segura vs. Segura, the Court held:

This section [referring to section 4, Rule 74] provides in gist that a person who has been
deprived of his lawful participation in the estate of the decedent, whether as heir or as
creditor, must assert his claim within two years after the extrajudicial or summary
settlement of such estate under Sections 1 and 2 respectively of the same Rule 74.
Thereafter, he will be precluded from doing so as the right will have prescribed.

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 valid
partitions. 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 in 1941.25
To say that Maria Elena was represented by Rosalina in the partitioning is imprecise.
Maria Elena, the adopted child, was no longer a minor at the time Miguel died. Rosalina,
only represented her own interests and not those of Maria Elena. Since Miguel
predeceased Pilar, a sister, his estate automatically vested to his child and widow, in
equal shares. Respondent Rodriguezes' interests did not include Miguel's estate but
only Pilar's estate.

Could petitioner still redeem the properties from buyers? Given the circumstances in
this case, we are constrained to hold that this is not the proper forum to decide this
issue. The properties sought to be recovered by the petitioner are now all registered
under the name of third parties. Well settled is the doctrine that a Torrens Title cannot
be collaterally attacked. The validity of the title can only be raised in an action
expressly instituted for such purpose.26

Petitioner asks for the award of damages. No receipts, agreements or any other
documentary evidence was presented to justify such claim for damages. Actual
damages, to be recoverable, must be proved with a reasonable degree of certainty.
Courts cannot simply rely on speculation, conjecture or guesswork in determining the
fact and amount of damages.27 The same is true for moral damages. These cannot be
awarded in the absence of any factual basis.28 The unsubstantiated testimony of
Loreto Jocelyn Pedrosa is hearsay and has no probative value. It is settled in
jurisprudence that damages may not be awarded on the basis of hearsay
evidence.29 Nonetheless, the failure of the petitioner to substantiate her claims for
damages does not mean that she will be totally deprived of any damages. Under the
law, nominal damages are awarded, so that a plaintiff's right, which has been invaded
or violated by defendants may be vindicated and recognized.30

Considering that (1) technically, petitioner sustained injury but which, unfortunately,
was not adequately and properly proved, (2) petitioner was unlawfully deprived of her
legal participation in the partition of the estate of Miguel, her adoptive father, (3)
respondents had transferred portions of the properties involved to third parties, and (4)
this case has dragged on for more than a decade, we find it reasonable to grant in
petitioner's favor nominal damages in recognition of the existence of a technical
injury.31 The amount to be awarded as such damages should at least commensurate to
the injury sustained by the petitioner considering the concept and purpose of said
damages.32 Such award is given in view of the peculiar circumstances cited and the
special reasons extant in this case.33 Thus, the grant of ONE HUNDRED THOUSAND
(P100,000.00) PESOS to petitioner as damages is proper in view of the technical injury
she has suffered.

WHEREFORE, the petition is GRANTED. The assailed decision of the Court of Appeals is
hereby REVERSED and SET ASIDE. The "Deed of Extrajudicial Settlement and Partition"
executed by private respondents on March 11, 1983 is declared invalid. The amount of
P100,000.00 is hereby awarded to petitioner as damages to be paid by private
respondents, who are also ordered to pay the costs.

SO ORDERED.
G.R. No. 155733 January 27, 2006

IN THE MATTER OF THE INTESTATE ESTATES OF THE DECEASED JOSEFA DELGADO AND
GUILLERMO RUSTIA CARLOTA DELGADO VDA. DE DE LA ROSA and other HEIRS OF LUIS
DELGADO, namely, HEIRS OF CONCHA VDA. DE AREVALO, HEIRS OF LUISA DELGADO
VDA. DE DANAO, ANGELA DELGADO ARESPACOCHAGA, TERESA DELGADO PERLAS,
CAROLINA DELGADO-ARESPACOCHAGA, RODOLFO DELGADO, BENJAMIN DELGADO,
GLICERIA DELGADO and CLEOFAS DELGADO; and HEIRS OF GORGONIO DELGADO,
namely, RAMON DELGADO CAMPO, CARLOS DELGADO CAMPO, CLARITA DELGADO
CAMPO-REIZA, YOLANDA DELGADO ENCINAS, FELISA DELGADO CAMPO-ENCINAS and
MELINDA DELGADO CAMPO-MADARANG, Petitioners,
vs.
HEIRS OF MARCIANA RUSTIA VDA. DE DAMIAN, namely, GUILLERMO R. DAMIAN and
JOSE R. DAMIAN; HEIRS OF HORTENCIA RUSTIA CRUZ, namely, TERESITA CRUZ-SISON,
HORACIO R. CRUZ, JOSEFINA CRUZ-RODIL, AMELIA CRUZ-ENRIQUEZ and FIDEL R. CRUZ,
JR.; HEIRS OF ROMAN RUSTIA, SR., namely, JOSEFINA RUSTIA ALBANO, VIRGINIA RUSTIA
PARAISO, ROMAN RUSTIA, JR., SERGIO RUSTIA, FRANCISCO RUSTIA, LETICIA RUSTIA-
MIRANDA; and GUILLERMINA RUSTIA, as Oppositors;1 and GUILLERMA RUSTIA, as
Intervenor,2 Respondents.3

DECISION

CORONA, J.:

In this petition for review on certiorari, petitioners seek to reinstate the May 11, 1990
decision of the Regional Trial Court (RTC) of Manila, Branch 55,4 in SP Case No. 97668,
which was reversed and set aside by the Court of Appeals in its decision5 dated
October 24, 2002.

FACTS OF THE CASE

This case concerns the settlement of the intestate estates of Guillermo Rustia and
Josefa Delgado.6 The main issue in this case is relatively simple: who, between
petitioners and respondents, are the lawful heirs of the decedents. However, it is
attended by several collateral issues that complicate its resolution.

The claimants to the estates of Guillermo Rustia and Josefa Delgado may be divided
into two groups: (1) the alleged heirs of Josefa Delgado, consisting of her half- and full-
blood siblings, nephews and nieces, and grandnephews and grandnieces, and (2) the
alleged heirs of Guillermo Rustia, particularly, his sisters,7 his nephews and nieces,8 his
illegitimate child,9 and the de facto adopted child10 (ampun-ampunan) of the
decedents.
The alleged heirs of Josefa Delgado

The deceased Josefa Delgado was the daughter of Felisa11 Delgado by one Lucio
Campo. Aside from Josefa, five other children were born to the couple, namely, Nazario,
Edilberta, Jose, Jacoba, and Gorgonio, all surnamed Delgado. Felisa Delgado was never
married to Lucio Campo, hence, Josefa and her full-blood siblings were all natural
children of Felisa Delgado.

However, Lucio Campo was not the first and only man in Felisa Delgados life. Before
him was Ramon Osorio12with whom Felisa had a son, Luis Delgado. But, unlike her
relationship with Lucio Campo which was admittedly one without the benefit of
marriage, the legal status of Ramon Osorios and Felisa Delgados union is in dispute.

The question of whether Felisa Delgado and Ramon Osorio ever got married is crucial to
the claimants because the answer will determine whether their successional rights fall
within the ambit of the rule against reciprocal intestate succession between legitimate
and illegitimate relatives.13 If Ramon Osorio and Felisa Delgado had been validly
married, then their only child Luis Delgado was a legitimate half-blood brother of Josefa
Delgado and therefore excluded from the latters intestate estate. He and his heirs
would be barred by the principle of absolute separation between the legitimate and
illegitimate families. Conversely, if the couple were never married, Luis Delgado and his
heirs would be entitled to inherit from Josefa Delgados intestate estate, as they would
all be within the illegitimate line.

Petitioners allege that Ramon Osorio and Felisa Delgado were never married. In support
thereof, they assert that no evidence was ever presented to establish it, not even so
much as an allegation of the date or place of the alleged marriage. What is clear,
however, is that Felisa retained the surname Delgado. So did Luis, her son with Ramon
Osorio. Later on, when Luis got married, his Partida de Casamiento14 stated that he
was "hijo natural de Felisa Delgado" (the natural child of Felisa Delgado),15 significantly
omitting any mention of the name and other circumstances of his
father.16 Nevertheless, oppositors (now respondents) insist that the absence of a
record of the alleged marriage did not necessarily mean that no marriage ever took
place.

Josefa Delgado died on September 8, 1972 without a will. She was survived by
Guillermo Rustia and some collateral relatives, the petitioners herein. Several months
later, on June 15, 1973, Guillermo Rustia executed an affidavit of self-

adjudication of the remaining properties comprising her estate.

The marriage of Guillermo Rustia and Josefa Delgado

Sometime in 1917, Guillermo Rustia proposed marriage to Josefa Delgado17 but

whether a marriage in fact took place is disputed. According to petitioners, the two
eventually lived together as husband and wife but were never married. To prove their
assertion, petitioners point out that no record of the contested marriage existed in the
civil registry. Moreover, a baptismal certificate naming Josefa Delgado as one of the
sponsors referred to her as "Seorita" or unmarried woman.
The oppositors (respondents here), on the other hand, insist that the absence of a
marriage certificate did not of necessity mean that no marriage transpired. They
maintain that Guillermo Rustia and Josefa Delgado were married on June 3, 1919 and
from then on lived together as husband and wife until the death of Josefa on September
8, 1972. During this period spanning more than half a century, they were known among
their relatives and friends to have in fact been married. To support their proposition,
oppositors presented the following pieces of evidence:

1. Certificate of Identity No. 9592 dated [December 1, 1944] issued to Mrs. Guillermo J.
Rustia by Carlos P. Romulo, then Resident Commissioner to the United States of the
Commonwealth of the Philippines;

2. Philippine Passport No. 4767 issued to Josefa D. Rustia on June 25, 1947;

3. Veterans Application for Pension or Compensation for Disability Resulting from

Service in the Active Military or Naval Forces of the United States- Claim No. C-4, 004,
503 (VA Form 526) filed with the Veterans Administration of the United States of
America by Dr. Guillermo J. Rustia wherein Dr. Guillermo J. Rustia himself [swore] to his
marriage to Josefa Delgado in Manila on 3 June 1919;18

4. Titles to real properties in the name of Guillermo Rustia indicated that he was
married to Josefa Delgado.

The alleged heirs of Guillermo Rustia

Guillermo Rustia and Josefa Delgado never had any children. With no children of their
own, they took into their home the youngsters Guillermina Rustia Rustia and Nanie
Rustia. These children, never legally adopted by the couple, were what was known in
the local dialect as ampun-ampunan.

During his life with Josefa, however, Guillermo Rustia did manage to father an
illegitimate child,19 the intervenor-respondent Guillerma Rustia, with one Amparo
Sagarbarria. According to Guillerma, Guillermo Rustia treated her as his daughter, his
own flesh and blood, and she enjoyed open and continuous possession of that status
from her birth in 1920 until her fathers demise. In fact, Josefa Delgados obituary which
was prepared by Guillermo Rustia, named the intervenor-respondent as one of their
children. Also, her report card from the University of Santo Tomas identified Guillermo
Rustia as her parent/guardian.20

Oppositors (respondents here) nonetheless posit that Guillerma Rustia has no interest
in the intestate estate of Guillermo Rustia as she was never duly acknowledged as an
illegitimate child. They contend that her right to compulsory acknowledgement
prescribed when Guillermo died in 1974 and that she cannot claim voluntary
acknowledgement since the documents she presented were not the authentic writings
prescribed by the new Civil Code.21

On January 7, 1974, more than a year after the death of Josefa Delgado, Guillermo
Rustia filed a petition for the adoption22 of their ampun-ampunan Guillermina Rustia.
He stated under oath "[t]hat he ha[d] no legitimate, legitimated, acknowledged natural
children or natural children by legal fiction."23 The petition was overtaken by his death
on February 28, 1974.

Like Josefa Delgado, Guillermo Rustia died without a will. He was survived by his sisters
Marciana Rustia vda. deDamian and Hortencia Rustia-Cruz, and by the children of his
predeceased brother Roman Rustia Sr., namely, Josefina Rustia Albano, Virginia Rustia
Paraiso, Roman Rustia, Jr., Sergio Rustia, Francisco Rustia and Leticia Rustia Miranda.24

ANTECEDENT PROCEEDINGS

On May 8, 1975, Luisa Delgado vda. de Danao, the daughter of Luis Delgado, filed the
original petition for letters of administration of the intestate estates of the "spouses
Josefa Delgado and Guillermo Rustia" with the RTC of Manila, Branch 55.25 This petition
was opposed by the following: (1) the sisters of Guillermo Rustia, namely, Marciana
Rustia vda. de Damian and Hortencia Rustia-Cruz;26 (2) the heirs of Guillermo Rustias
late brother, Roman Rustia, Sr., and (3) the ampun-ampunan Guillermina Rustia Rustia.
The opposition was grounded on the theory that Luisa Delgado vda. de Danao and the
other claimants were barred under the law from inheriting from their illegitimate half-
blood relative Josefa Delgado.

In November of 1975, Guillerma Rustia filed a motion to intervene in the proceedings,

claiming she was the only surviving descendant in the direct line of Guillermo Rustia.
Despite the objections of the oppositors (respondents herein), the motion was granted.

On April 3, 1978, the original petition for letters of administration was amended to state
that Josefa Delgado and Guillermo Rustia were never married but had merely lived
together as husband and wife.

On January 24, 1980, oppositors (respondents herein) filed a motion to dismiss the
petition in the RTC insofar as the estate of Guillermo Rustia was concerned. The motion
was denied on the ground that the interests of the petitioners and the other claimants
remained in issue and should be properly threshed out upon submission of evidence.

On March 14, 1988, Carlota Delgado vda. de de la Rosa substituted for her sister, Luisa
Delgado vda. de Danao, who had died on May 18, 1987.

On May 11, 1990, the RTC appointed Carlota Delgado vda. de de la Rosa as
administratrix of both estates.27The dispositive portion of the decision read:

WHEREFORE, in view of all the foregoing, petitioner and her co-claimants to the estate
of the late Josefa Delgado listed in the Petitions, and enumerated elsewhere in this
Decision, are hereby declared as the only legal heirs of the said Josefa Delgado who
died intestate in the City of Manila on September 8, 1972, and entitled to partition the
same among themselves in accordance with the proportions referred to in this Decision.

Similarly, the intervenor Guillerma S. Rustia is hereby declared as the sole and only
surviving heir of the late Dr. Guillermo Rustia, and thus, entitled to the entire estate of
the said decedent, to the exclusion of the oppositors and the other parties hereto.
The Affidavit of Self-Adjudication of the estate of Josefa Delgado executed by the late
Guillermo J. Rustia on June 15, 1973 is hereby SET ASIDE and declared of no force and
effect.

As the estates of both dece[d]ents have not as yet been settled, and their settlement
[is] considered consolidated in this proceeding in accordance with law, a single
administrator therefor is both proper and necessary, and, as the petitioner Carlota
Delgado Vda. de dela Rosa has established her right to the appointment as
administratrix of the estates, the Court hereby APPOINTS her as the ADMINISTRATRIX of
the intestate estate of the decedent JOSEFA DELGADO in relation to the estate of DR.
GUILLERMO J. RUSTIA.

Accordingly, let the corresponding LETTERS OF ADMINISTRATION issue to the petitioner

CARLOTA DELGADO VDA. DE DE LA ROSA upon her filing of the requisite bond in the
sum of FIVE HUNDRED THOUSAND PESOS (P500,000.00).

Finally, oppositor GUILLERMINA RUSTIA RUSTIA is hereby ordered to cease and desist
from her acts of administration of the subject estates, and is likewise ordered to turn
over to the appointed administratix all her collections of the rentals and income due on
the assets of the estates in question, including all documents, papers, records and titles
pertaining to such estates to the petitioner and appointed administratix CARLOTA
DELGADO VDA. DE DE LA ROSA, immediately upon receipt of this Decision. The same
oppositor is hereby required to render an accounting of her actual administration of the
estates in controversy within a period of sixty (60) days from receipt hereof.

SO ORDERED.28

On May 20, 1990, oppositors filed an appeal which was denied on the ground that the
record on appeal was not filed on time.29 They then filed a petition for certiorari and
mandamus30 which was dismissed by the Court of Appeals.31 However, on motion for
reconsideration and after hearing the parties oral arguments, the Court of Appeals
reversed itself and gave due course to oppositors appeal in the interest of substantial
justice.32

In a petition for review to this Court, petitioners assailed the resolution of the Court of
Appeals, on the ground that oppositors failure to file the record on appeal within the
reglementary period was a jurisdictional defect which nullified the appeal. On October
10, 1997, this Court allowed the continuance of the appeal. The pertinent portion of our
decision33 read:

As a rule, periods prescribed to do certain acts must be followed. However, under

exceptional circumstances, a delay in the filing of an appeal may be excused on
grounds of substantial justice.

xxx xxx xxx

The respondent court likewise pointed out the trial courts pronouncements as to
certain matters of substance, relating to the determination of the heirs of the
decedents and the party entitled to the administration of their estate, which were to be
raised in the appeal, but were barred absolutely by the denial of the record on appeal
upon too technical ground of late filing.

xxx xxx xxx

In this instance, private respondents intention to raise valid issues in the appeal is
apparent and should not have been construed as an attempt to delay or prolong the
administration proceedings.

xxx xxx xxx

A review of the trial courts decision is needed.

xxx xxx xxx

WHEREFORE, in view of the foregoing considerations, the Court hereby AFFIRMS the
Resolution dated November 27, 1991 of the Court of Appeals in CA-G.R. SP No. 23415,
for the APPROVAL of the private respondents Record on Appeal and
the CONTINUANCE of the appeal from the Manila, Branch LV Regional Trial Courts May
11, 1990 decision.

SO ORDERED.

Acting on the appeal, the Court of Appeals34 partially set aside the trial courts
decision. Upon motion for reconsideration,35 the Court of Appeals amended its earlier
decision.36 The dispositive portion of the amended decision read:

With the further modification, our assailed decision is RECONSIDERED and VACATED.
Consequently, the decision of the trial court is REVERSED and SET ASIDE. A new one is
hereby RENDERED declaring: 1.) Dr. Guillermo Rustia and Josefa Delgado Rustia to have
been legally married; 2.) the intestate estate of Dr. Guillermo Rustia, Jacoba Delgado-
Encinas and the children of Gorgonio Delgado (Campo) entitled to partition among
themselves the intestate estate of Josefa D. Rustia in accordance with the proportion
referred to in this decision; 3.) the oppositors-appellants as the legal heirs of the late
Dr. Guillermo Rustia and thereby entitled to partition his estate in accordance with the
proportion referred to herein; and 4.) the intervenor-appellee Guillerma S. Rustia as
ineligible to inherit from the late Dr. Guillermo Rustia; thus revoking her appointment as
administratrix of his estate.

The letters of administration of the intestate estate of Dr. Guillermo Rustia in relation to
the intestate estate of Josefa Delgado shall issue to the nominee of the oppositors-
appellants upon his or her qualification and filing of the requisite bond in the sum of
FIVE HUNDRED THOUSAND PESOS (P500,000.00).

Oppositor-appellant Guillermina Rustia Rustia is hereby ordered to cease and desist

from her acts of administration of the subject estates and to turn over to the appointed
administrator all her collections of the rentals and incomes due on the assets of the
estates in question, including all documents, papers, records and titles pertaining to
such estates to the appointed administrator, immediately upon notice of his
qualification and posting of the requisite bond, and to render an accounting of her
(Guillermina Rustia Rustia) actual administration of the estates in controversy within a
period of sixty (60) days from notice of the administrators qualification and posting of
the bond.

The issue of the validity of the affidavit of self-adjudication executed by Dr. Guillermo
Rustia on June 15, 1973 isREMANDED to the trial court for further proceedings to
determine the extent of the shares of Jacoba Delgado-Encinas and the children of
Gorgonio Delgado (Campo) affected by the said adjudication.

Hence, this recourse.

The issues for our resolution are:

1. whether there was a valid marriage between Guillermo Rustia and Josefa Delgado;

2. who the legal heirs of the decedents Guillermo Rustia and Josefa Delgado are;

3. who should be issued letters of administration.

The marriage of Guillermo Rustia and Josefa Delgado

A presumption is an inference of the existence or non-existence of a fact which courts

are permitted to draw from proof of other facts. Presumptions are classified into
presumptions of law and presumptions of fact. Presumptions of law are, in turn, either
conclusive or disputable.37

Rule 131, Section 3 of the Rules of Court provides:

Sec. 3. Disputable presumptions. The following presumptions are satisfactory if

uncontradicted, but may be contradicted and overcome by other evidence:

xxx xxx xxx

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

xxx xxx xxx

In this case, several circumstances give rise to the presumption that a valid marriage
existed between Guillermo Rustia and Josefa Delgado. Their cohabitation of more than
50 years cannot be doubted. Their family and friends knew them to be married. Their
reputed status as husband and wife was such that even the original petition for letters
of administration filed by Luisa Delgado vda. de Danao in 1975 referred to them as
"spouses."

Yet, petitioners maintain that Josefa Delgado and Guillermo Rustia had simply lived
together as husband and wife without the benefit of marriage. They make much of the
absence of a record of the contested marriage, the testimony of a witness38 attesting
that they were not married, and a baptismal certificate which referred to Josefa Delgado
as "Seorita" or unmarried woman.39

We are not persuaded.

First, although a marriage contract is considered a primary evidence of marriage, its
absence is not always proof that no marriage in fact took place.40 Once the
presumption of marriage arises, other evidence may be presented in support thereof.
The evidence need not necessarily or directly establish the marriage but must at least
be enough to strengthen the presumption of marriage. Here, the certificate of identity
issued to Josefa Delgado as Mrs. Guillermo Rustia,41 the passport issued to her as
Josefa D. Rustia,42 the declaration under oath of no less than Guillermo Rustia that he
was married to Josefa Delgado43 and the titles to the properties in the name of
"Guillermo Rustia married to Josefa Delgado," more than adequately support the
presumption of marriage. These are public documents which are prima facie evidence
of the facts stated therein.44 No clear and convincing evidence sufficient to overcome
the presumption of the truth of the recitals therein was presented by petitioners.

Second, Elisa vda. de Anson, petitioners own witness whose testimony they primarily
relied upon to support their position, confirmed that Guillermo Rustia had proposed
marriage to Josefa Delgado and that eventually, the two had "lived together as husband
and wife." This again could not but strengthen the presumption of marriage.

Third, the baptismal certificate45 was conclusive proof only of the baptism
administered by the priest who baptized the child. It was no proof of the veracity of the
declarations and statements contained therein,46 such as the alleged single or
unmarried ("Seorita") civil status of Josefa Delgado who had no hand in its
preparation.

Petitioners failed to rebut the presumption of marriage of Guillermo Rustia and Josefa
Delgado. In this jurisdiction, every intendment of the law leans toward legitimizing
matrimony. Persons dwelling together apparently in marriage are presumed to be in
fact married. This is the usual order of things in society and, if the parties are not what
they hold themselves out to be, they would be living in constant violation of the
common rules of law and propriety. Semper praesumitur pro matrimonio. Always
presume marriage.47

The Lawful Heirs Of Josefa Delgado

To determine who the lawful heirs of Josefa Delgado are, the questioned status of the
cohabitation of her mother Felisa Delgado with Ramon Osorio must first be addressed.

As mentioned earlier, presumptions of law are either conclusive or disputable.

Conclusive presumptions are inferences which the law makes so peremptory that no
contrary proof, no matter how strong, may overturn them.48 On the other hand,
disputable presumptions, one of which is the presumption of marriage, can be relied on
only in the absence of sufficient evidence to the contrary.

Little was said of the cohabitation or alleged marriage of Felisa Delgado and Ramon
Osorio. The oppositors (now respondents) chose merely to rely on the disputable
presumption of marriage even in the face of such countervailing evidence as (1) the
continued use by Felisa and Luis (her son with Ramon Osorio) of the surname Delgado
and (2) Luis Delgados and Caridad Concepcions Partida de
Casamiento49 identifying Luis as "hijo natural de Felisa Delgado" (the natural child of
Felisa Delgado).50

All things considered, we rule that these factors sufficiently overcame the rebuttable
presumption of marriage. Felisa Delgado and Ramon Osorio were never married. Hence,
all the children born to Felisa Delgado out of her relations with Ramon Osorio and Lucio
Campo, namely, Luis and his half-blood siblings Nazario, Edilberta, Jose, Jacoba,
Gorgonio and the decedent Josefa, all surnamed Delgado,51 were her natural
children.52

Pertinent to this matter is the following observation:

Suppose, however, that A begets X with B, and Y with another woman, C; then X and Y
would be natural brothers and sisters, but of half-blood relationship. Can they succeed
each other reciprocally?

The law prohibits reciprocal succession between illegitimate children and legitimate
children of the same parent, even though there is unquestionably a tie of blood
between them. It seems that to allow an illegitimate child to succeed ab
intestato (from) another illegitimate child begotten with a parent different from that of
the former, would be allowing the illegitimate child greater rights than a legitimate
child. Notwithstanding this, however, we submit that succession should be allowed,
even when the illegitimate brothers and sisters are only of the half-blood. The reason
impelling the prohibition on reciprocal successions between legitimate and illegitimate
families does not apply to the case under consideration. That prohibition has for its
basis the difference in category between illegitimate and legitimate relatives. There is
no such difference when all the children are illegitimate children of the same parent,
even if begotten with different persons. They all stand on the same footing before the
law, just like legitimate children of half-blood relation. We submit, therefore, that the
rules regarding succession of legitimate brothers and sisters should be applicable to
them. Full blood illegitimate brothers and sisters should receive double the portion of
half-blood brothers and sisters; and if all are either of the full blood or of the half-blood,
they shall share equally.53

Here, the above-named siblings of Josefa Delgado were related to her by full-blood,
except Luis Delgado, her half-brother. Nonetheless, since they were all illegitimate, they
may inherit from each other. Accordingly, all of them are entitled to inherit from Josefa
Delgado.

We note, however, that the petitioners before us are already the nephews, nieces,
grandnephews and grandnieces of Josefa Delgado. Under Article 972 of the new Civil
Code, the right of representation in the collateral line takes place only in favor of the
children of brothers and sisters (nephews and nieces). Consequently, it cannot be
exercised by grandnephews and grandnieces.54 Therefore, the only collateral relatives
of Josefa Delgado who are entitled to partake of her intestate estate are her brothers
and sisters, or their children who were still alive at the time of her death on September
8, 1972. They have a vested right to participate in the inheritance.55 The records not
being clear on this matter, it is now for the trial court to determine who were the
surviving brothers and sisters (or their children) of Josefa Delgado at the time of her
death. Together with Guillermo Rustia,56 they are entitled to inherit from Josefa
Delgado in accordance with Article 1001 of the new Civil Code:57

Art. 1001. Should brothers and sisters or their children survive with the widow or
widower, the latter shall be entitled to one-half of the inheritance and the brothers and
sisters or their children to the other one-half.

Since Josefa Delgado had heirs other than Guillermo Rustia, Guillermo could not have
validly adjudicated Josefas estate all to himself. Rule 74, Section 1 of the Rules of Court
is clear. Adjudication by an heir of the decedents entire estate to himself by means of
an affidavit is allowed only if he is the sole heir to the estate:

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. If there is only
one heir, he may adjudicate to himself the estate by means of an affidavit filed in the
office of the register of deeds. x x x (emphasis supplied)

The Lawful Heirs Of Guillermo Rustia

Intervenor (now co-respondent) Guillerma Rustia is an illegitimate child58 of Guillermo

Rustia. As such, she may be entitled to successional rights only upon proof of an
admission or recognition of paternity.59 She, however, claimed the status of an
acknowledged illegitimate child of Guillermo Rustia only after the death of the latter on
February 28, 1974 at which time it was already the new Civil Code that was in effect.

Under the old Civil Code (which was in force till August 29, 1950), illegitimate children
absolutely had no hereditary rights. This draconian edict was, however, later relaxed in
the new Civil Code which granted certain successional rights to illegitimate children but
only on condition that they were first recognized or acknowledged by the parent.

Under the new law, recognition may be compulsory or voluntary.60 Recognition is

compulsory in any of the following cases:

(1) in cases of rape, abduction or seduction, when the period of the offense coincides
more or less with that of the conception;

(2) when the child is in continuous possession of status of a child of the alleged father
(or mother)61 by the direct acts of the latter or of his family;

(3) when the child was conceived during the time when the mother cohabited with the
supposed father;

(4) when the child has in his favor any evidence or proof that the defendant is his
father. 62

On the other hand, voluntary recognition may be made in the record of birth, a will, a
statement before a court of record or in any authentic writing.63
Intervenor Guillerma sought recognition on two grounds: first, compulsory recognition
through the open and continuous possession of the status of an illegitimate child and
second, voluntary recognition through authentic writing.

There was apparently no doubt that she possessed the status of an illegitimate child
from her birth until the death of her putative father Guillermo Rustia. However, this did
not constitute acknowledgment but a mere ground by which she could have compelled
acknowledgment through the courts.64 Furthermore, any (judicial) action for
compulsory acknowledgment has a dual limitation: the lifetime of the child and the
lifetime of the putative parent.65 On the death of either, the action for compulsory
recognition can no longer be filed.66 In this case, intervenor Guillermas right to claim
compulsory acknowledgment prescribed upon the death of Guillermo Rustia on
February 28, 1974.

The claim of voluntary recognition (Guillermas second ground) must likewise fail. An
authentic writing, for purposes of voluntary recognition, is understood as a genuine or
indubitable writing of the parent (in this case, Guillermo Rustia). This includes a public
instrument or a private writing admitted by the father to be his.67 Did intervenors
report card from the University of Santo Tomas and Josefa Delgados obituary prepared
by Guillermo Rustia qualify as authentic writings under the new Civil Code?
Unfortunately not. The report card of intervenor Guillerma did not bear the signature of
Guillermo Rustia. The fact that his name appears there as intervenors parent/guardian
holds no weight since he had no participation in its preparation. Similarly, while
witnesses testified that it was Guillermo Rustia himself who drafted the notice of death
of Josefa Delgado which was published in the Sunday Times on September 10, 1972,
that published obituary was not the authentic writing contemplated by the law. What
could have been admitted as an authentic writing was the original manuscript of the
notice, in the handwriting of Guillermo Rustia himself and signed by him, not the
newspaper clipping of the obituary. The failure to present the original signed
manuscript was fatal to intervenors claim.

The same misfortune befalls the ampun-ampunan, Guillermina Rustia Rustia, who was
never adopted in accordance with law. Although a petition for her adoption was filed by
Guillermo Rustia, it never came to fruition and was dismissed upon the latters death.
We affirm the ruling of both the trial court and the Court of Appeals holding her a legal
stranger to the deceased spouses and therefore not entitled to inherit from them ab
intestato. We quote:

Adoption is a juridical act, a proceeding in rem, which [created] between two persons a
relationship similar to that which results from legitimate paternity and filiation. Only an
adoption made through the court, or in pursuance with the procedure laid down under
Rule 99 of the Rules of Court is valid in this jurisdiction. It is not of natural law at all, but
is wholly and entirely artificial. To establish the relation, the statutory requirements
must be strictly carried out, otherwise, the adoption is an absolute nullity. The fact of
adoption is never presumed, but must be affirmatively [proven] by the person claiming
its existence.68

Premises considered, we rule that two of the claimants to the estate of Guillermo
Rustia, namely, intervenor Guillerma Rustia and the ampun-ampunan Guillermina
Rustia Rustia, are not lawful heirs of the decedent. Under Article 1002 of the new Civil
Code, if there are no descendants, ascendants, illegitimate children, or surviving
spouse, the collateral relatives shall succeed to the entire estate of the deceased.
Therefore, the lawful heirs of Guillermo Rustia are the remaining claimants, consisting
of his sisters,69 nieces and nephews.70

Entitlement To Letters Of Administration

An administrator is a person appointed by the court to administer the intestate estate

of the decedent. Rule 78, Section 6 of the Rules of Court prescribes an order of
preference in the appointment of an administrator:

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
a 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 the 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.

In the appointment of an administrator, the principal consideration is the interest in the

estate of the one to be appointed.71 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,72a situation which obtains here.

It is in this light that we see fit to appoint joint administrators, in the persons of Carlota
Delgado vda. de de la Rosa and a nominee of the nephews and nieces of Guillermo
Rustia. They are the next of kin of the deceased spouses Josefa Delgado and Guillermo
Rustia, respectively.

WHEREFORE, the petition (which seeks to reinstate the May 11, 1990 decision of the
RTC Manila, Branch 55) is hereby DENIED. The assailed October 24, 2002 decision of
the Court of Appeals is AFFIRMED with the following modifications:

1. Guillermo Rustias June 15, 1973 affidavit of self-adjudication is hereby ANNULLED.

2. the intestate estate of Guillermo Rustia shall inherit half of the intestate estate of
Josefa Delgado. The remaining half shall pertain to (a) the full and half-siblings of Josefa
Delgado who survived her and (b) the children of any of Josefa Delgados full- or half-
siblings who may have predeceased her, also surviving at the time of her death. Josefa
Delgados grandnephews and grandnieces are excluded from her estate. In this
connection, the trial court is hereby ordered to determine the identities of the relatives
of Josefa Delgado who are entitled to share in her estate.

3. Guillermo Rustias estate (including its one-half share of Josefa Delgados estate)
shall be inherited by Marciana Rustia vda. de Damian and Hortencia Rustia Cruz (whose
respective shares shall be per capita) and the children of the late Roman Rustia, Sr.
(who survived Guillermo Rustia and whose respective shares shall be per stirpes).
Considering that Marciana Rustia vda. de Damian and Hortencia Rustia Cruz are now
deceased, their respective shares shall pertain to their estates.

4. Letters of administration over the still unsettled intestate estates of Guillermo Rustia
and Josefa Delgado shall issue to Carlota Delgado vda. de de la Rosa and to a nominee
from among the heirs of Guillermo Rustia, as joint administrators, upon their
qualification and filing of the requisite bond in such amount as may be determined by
the trial court.

No pronouncement as to costs.

SO ORDERED.
[G.R. No. 125715. December 29, 1998]

RICARDO F. MARQUEZ, AUREA M. CABEZAS, EXEQUIEL F. MARQUEZ, SALVADOR F.

MARQUEZ, ANTONIO F. MARQUEZ, and RAFAEL F. MARQUEZ, JR., petitioners, vs. COURT
OF APPEALS, ALFREDO F. MARQUEZ and BELEN F. MARQUEZ, respondents.

DECISION

ROMERO, J.:

In our society, tradition and law enshrine the family as a basic social institution. In
prose, poetry and song, it is lyrically extolled. What a person becomes in adulthood, for
good or ill, is attributed to the influence of the home and family during his formative
years. In the family one imbibes desirable values and personality traits. No matter how
far one roams, he invariably turns to his family for security, approbation and
love. Against the whole world, members of the family stand solid as Gibraltar. It is thus
heartrending to find members of the same family at odds with each other, each playing
one against the other.

The facts of the instant case illustrates the inglorious and unedifying spectacle of a
"family feud," all because of a property dispute.

During their lifetime, the spouses Rafael Marquez, Sr. and Felicidad Marquez begot
twelve children, namely: (1) Natividad; (2) Aurea; (3) Herminigildo; (4) Filomena; (5)
Exequel; (6) Salvador; (7) Guadencio; (8) Rafael, Jr.; (9) Belen; (10) Alfredo; (11)
Ricardo; and (12) Antonio. Sometime in 1945, the spouses acquired a parcel of land
with a lot area of 161 square meters in San Juan Del Monte, Rizal, more particularly
described in TCT No. 47572,[1] wherein they constructed their conjugal home.

In 1952, Felicidad Marquez died intestate. Thirty years later or in 1982, Rafael Marquez,
Sr. executed an Affidavit of Adjudication vesting unto himself sole ownership to the
property described in TCT No. 47572. Consequently, TCT No. 47572 was cancelled
and TCT No. 33350[2] was issued in his name on June 16, 1982.

Thereafter, on December 29, 1983 Rafael Marquez, Jr. executed a Deed of Donation
Inter Vivos[3] covering the land described in TCT No. 33350 as well as the house
constructed thereon to three of his children, namely: (1) petitioner Rafael Jr.; (2)
Alfredo; and (3) Belen, both private respondents herein, to the exclusion of his other
children, petitioners herein. As a result of the donation, TCT No. 33350 was cancelled
and TCT No. 47572 was issued in private respondents name.
From 1983 to 1991, private respondents were in actual possession of the
land. However, when petitioners learned about the existence of TCT No. 47572 they
immediately demanded that since they are also the children of Rafael Marquez, Sr.,
they are entitled to their respective share over the land in question. Unfortunately,
efforts to settle the dispute proved unavailing since private respondents ignored
petitioners demands.

In view of the private respondents' indifference, petitioners, now joined by Rafael Jr.,
filed a complaint on May 31, 1991 for Reconveyance and Partition with Damages before
the trial court[4] alleging that both the Affidavit of Adjudication and Deed of Donation
Inter Vivos were fraudulent since the private respondents took advantage of the
advanced age of their father in making him execute the said documents.

In their Answer, private respondents argued that petitioners action was already barred
by the statute of limitations, since the same should have been filed within four years
from the date of discovery of the alleged fraud.[5]

After due proceedings, the trial court on April 29, 1993, rendered its decision[6] in favor
of the petitioners, in this wise:

Prescription cannot set in because an action to set aside a document which is void ab
initio does not prescribe. Both the Affidavit of Adjudication and the Donation Inter Vivos
did not produce any legal effect and did not confer any right whatsoever. Equally,
Transfer Certificate of Title No. 33350 and 46461 issued pursuant thereto, are likewise
null and void ab initio. Therefore, the inexistence of these documents and certificates of
title is permanent and cannot be the subject of prescription.

Private respondents, dissatisfied with the trial courts ruling, sought recourse before the
Court of Appeals. On April 29, 1996, the said court reversed the trial courts finding,
thus:[7]

In line with the decision of the Supreme Court in Gerona v. de Guzman, 11 SCRA 143,
157, the action therefor may be filed within four (4) years from the discovery of the
fraud. Such discovery is deemed to have taken place in the case at bar on June 16,
1982, when the affidavit of self-adjudication was filed with the Register of Deeds and
new certificate of title (No. 33350) was issued in the name of Rafael Marquez, Sr.
(Exhibits E and 5, page 16, record). Considering that the period from June 16, 1982,
when TCT No. 33350 was issued in the name of Rafael Marquez, Sr., to May 31, 1991,
when appellees complaint was filed in court, is eight (8) years, eleven (11) months and
fifteen (15) days, appellants action to annul the deed of self-adjudication is definitely
barred by the statute of limitation."

Petitioners motion for reconsideration proved unavailing.[8] Hence, they are now before
this Court to raise the issue of whether their action for reconveyance had prescribed.

Petitioners, in contending that the action had not yet prescribed, assert that by virtue
of the fraudulent Affidavit of Adjudication and Deed of Donation, wherein they were
allegedly deprived of their just share over the parcel of land, a constructive trust was
created.[9] Forthwith, they maintain that an action for reconveyance based on implied
or constructive trust prescribes in ten (10) years.
It must be noted that Felicidad Marquez died in 1952; thus, succession to her estate is
governed by the present Civil Code. Under Article 887 thereof, her compulsory heirs are
her legitimate children, petitioners and private respondent herein, and her spouse,
Rafael Marquez, Sr. Now, in 1982, Rafael Marquez, Sr. decided to adjudicate the entire
property by executing an Affidavit of Adjudication claiming that he is the only sole and
surviving heir of his deceased wife Felicidad F. Marquez.[10]

As such, when Rafael Marquez, Sr., for one reason or another, misrepresented in his
unilateral affidavit that he was the only heir of his wife when in fact their children were
still alive, and managed to secure a transfer of certificate of title under his name, a
constructive trust under Article 1456 was established.[11] Constructive trusts are
created in equity in order to prevent unjust enrichment. They arise contrary to intention
against one who, by fraud, duress or abuse of confidence, obtains or holds the legal
right to property which he ought not, in equity and good conscience, to hold.
[12] Prescinding from the foregoing discussion, did the action for reconveyance filed by
the petitioners prescribed, as held by the Court of Appeals?

In this regard, it is settled that an action for reconveyance based on an implied or

constructive trust prescribed in ten years from the issuance of the Torrens title over the
property.[13] For the purpose of this case, the prescriptive period shall start to run
when TCT No. 33350 was issued which was on June 16, 1982. Thus, considering that the
action for reconveyance was filed on May 31, 1991, or approximately nine years later, it
is evident that prescription had not yet barred the action.

To bolster the foregoing position, the Court of Appeal's reliance on Gerona v. de

Guzman,[14] is misplaced. In Amerol v. Bagumbaran,[15] we ruled that the doctrine
laid down in the earlier Gerona case was based on the old Code of Civil
Procedure[16] which provided that an action based on fraud prescribes within four
years from the date of discovery. However, with the effectivity of the present Civil Code
on August 30, 1950, the provisions on prescriptive period are now governed by Articles
1139 to 1155. Since implied or constructive trust are obligations created by law, then
the prescriptive period to enforce the same prescribes in ten years.[17]

Cognizant of the fact that the disputed land was conjugal property of the spouses
Rafael Sr. and Felicidad, ownership of the same is to be equally divided between both of
them.

Prescinding therefrom, can Rafael Marquez Sr., as trustee of his wifes share, validly
donate this portion to the respondents? Obviously, he cannot, as expressly provided in
Art. 736 of the Civil Code, thus:

Art. 736. Guardian and trustees cannot donate the property entrusted to them.

Moreover, nobody can dispose of that which does not belong to him.[18]

Be that as it may, the next question is whether he can validly donate the other half of
the property which he owns? Again, the query need not detain us at length for the Civil
Code itself recognizes that one of the inherent rights of an owner is the right to dispose
of his property.[19]
Whether this donation was inofficious or not is another matter, which is not within the
province of this Court to determine inasmuch as it necessitates the production of
evidence not before it.

Finally, while we rule in favor of petitioners, we cannot grant their plea for moral
damages and attorneys fees[20] since they have not satisfactorily shown that they
have suffered mental anguish as provided in Article 2219 and Article 2290 of the Civil
Code.

Similarly, the plea for attorneys fees must likewise be denied because no premium
should be placed on the right to litigate.[21]

WHEREFORE, in view of the foregoing, the decision of the Court of Appeals in CA-G.R.
CV No. 41214 is REVERSED and SET ASIDE. Except as to the award of attorneys fees
which is hereby DELETED, the judgment of the trial court in Civil Case No. 60887 is
REINSTATED. No costs.

SO ORDERED.
 CYNTHIA V. NITTSCHER, G.R. No. 160530

Petitioner,

Present:

QUISUMBING, J., Chairperson,

- versus - CARPIO,

CARPIO MORALES,

TINGA, and

VELASCO, JR., JJ.

DR. WERNER KARL JOHANN

NITTSCHER (Deceased), ATTY. ROGELIO

P. NOGALES and THE REGIONAL TRIAL
COURT OF MAKATI (Branch 59), Promulgated:

Respondents.
November 20, 2007

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

QUISUMBING, J.:

For review on certiorari are the Decision[1] dated July 31, 2003 and
Resolution[2] dated October 21, 2003 of the Court of Appeals in CA-G.R. CV No. 55330,
which affirmed the Order[3] dated September 29, 1995 of the Regional Trial Court
(RTC), Branch 59, Makati City, in SP Proc. No. M-2330 for the probate of a will.

The facts are as follows.

On January 31, 1990, Dr. Werner Karl Johann Nittscher filed with the RTC of Makati City
a petition for the probate of his holographic will and for the issuance of letters
testamentary to herein respondent Atty. Rogelio P. Nogales.

On September 19, 1991, after hearing and with due notice to the compulsory heirs, the
probate court issued an order allowing the said holographic will, thus:
WHEREFORE, premises considered, the Holographic Will of the petitioner-testator Dr.
Werner J. Nittscher executed pursuant to the provision of the second paragraph of
Article 838 of the Civil Code of the Philippines on January 25, 1990 in Manila,
Philippines, and proved in accordance with the provision of Rule 76 of the Revised Rules
of Court is hereby allowed.

SO ORDERED.[4]

On September 26, 1994, Dr. Nittscher died. Hence, Atty. Nogales filed a petition for
letters testamentary for the administration of the estate of the deceased. Dr. Nittschers
surviving spouse, herein petitioner Cynthia V. Nittscher, moved for the dismissal of the
said petition. However, the court in its September 29, 1995 Order denied petitioners
motion to dismiss, and granted respondents petition for the issuance of letters
testamentary, to wit:

In view of all the foregoing, the motion to dismiss is DENIED. The petition for the
issuance of Letters Testamentary, being in order, is GRANTED.

Section 4, Rule 78 of the Revised Rules of Court, provides when a will has been proved
and allowed, the court shall issue letters testamentary thereon to the person named as
executor therein, if he is competent, accepts the trust and gives a bond as required by
these rules. In the case at bar, petitioner Atty. Rogelio P. Nogales of the R.P. Nogales
Law Offices has been named executor under the Holographic Will of Dr. Werner J.
Nittscher. As prayed for, let Letters Testamentary be issued to Atty. Rogelio P. Nogales,
the executor named in the Will, without a bond.

SO ORDERED.[5]

Petitioner moved for reconsideration, but her motion was denied for lack of
merit. On May 9, 1996, Atty. Nogales was issued letters testamentary and was sworn in
as executor.

Petitioner appealed to the Court of Appeals alleging that respondents petition for the
issuance of letters testamentary should have been dismissed outright as the RTC had
no jurisdiction over the subject matter and that she was denied due process.

The appellate court dismissed the appeal, thus:

WHEREFORE, the foregoing considered, the appeal is hereby DISMISSED and the
assailed Order is AFFIRMED in toto. The court a quo is ordered to proceed with dispatch
in the proceedings below.

SO ORDERED.[6]

Petitioners motion for reconsideration of the aforequoted decision was denied for lack
of merit. Hence, the present petition anchored on the following grounds:

I.

BOTH THE CA AND THE LOWER COURT ERRED IN NOT DISMISSING OUTRIGHT THE
PETITION FOR LETTERS TESTAMENTARY FILED BY ATTY. NOGALES WHEN, OBVIOUSLY, IT
WAS FILED IN VIOLATION OF REVISED CIRCULAR NO. 28-91 AND ADMINISTRATIVE
CIRCULAR NO. 04-94 OF THIS HONORABLE COURT.

II.

THE CA ERRED IN NOT DECLARING THAT THE LOWER COURT [HAS] NO JURISDICTION
OVER THE SUBJECT MATTER OF THE PRESENT SUIT.

III.

THE CA ERRED IN CONCLUDING THAT SUMMONS WERE PROPERLY ISSUED TO THE

PARTIES AND ALL PERSONS INTERESTED IN THE PROBATE OF THE HOLOGRAPHIC WILL
OF DR. NITTSCHER.

IV.

THE CA ERRED IN CONCLUDING THAT THE PETITIONER WAS NOT DEPRIVED OF DUE
PROCESS OF LAW BY THE LOWER COURT.[7]

Petitioner contends that respondents petition for the issuance of letters testamentary
lacked a certification against forum-shopping. She adds that the RTC has no jurisdiction
over the subject matter of this case because Dr. Nittscher was allegedly not a resident
of the Philippines; neither did he leave real properties in the country. Petitioner claims
that the properties listed for disposition in her husbands will actually belong to her. She
insists she was denied due process of law because she did not receive by personal
service the notices of the proceedings.

Respondent Atty. Nogales, however, counters that Dr. Nittscher did reside and own real
properties in Las Pias, Metro Manila. He stresses that petitioner was duly notified of the
probate proceedings. Respondent points out that petitioner even appeared in court to
oppose the petition for the issuance of letters testamentary and that she also filed a
motion to dismiss the said petition. Respondent maintains that the petition for the
issuance of letters testamentary need not contain a certification against forum-
shopping as it is merely a continuation of the original proceeding for the probate of the
will.

We resolve to deny the petition.

As to the first issue, Revised Circular No. 28-91[8] and Administrative Circular No. 04-
94[9] of the Court require a certification against forum-shopping for all initiatory
pleadings filed in court. However, in this case, the petition for the issuance of letters
testamentary is not an initiatory pleading, but a mere continuation of the original
petition for the probate of Dr. Nittschers will. Hence, respondents failure to include a
certification against forum-shopping in his petition for the issuance of letters
testamentary is not a ground for outright dismissal of the said petition.

Anent the second issue, Section 1, Rule 73 of the Rules of Court provides:

SECTION 1. Where estate of deceased persons settled. If the decedent is an inhabitant

of the Philippines at the time of his death, whether a citizen or an alien, his will shall be
proved, or letters of administration granted, and his estate settled, in the Court of First
Instance (now Regional Trial Court) 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 (now
Regional Trial Court) of any province in which he had estate. (Emphasis supplied.)

In this case, the RTC and the Court of Appeals are one in their finding that Dr. Nittscher
was a resident of Las Pias, Metro Manila at the time of his death. Such factual finding,
which we find supported by evidence on record, should no longer be disturbed. Time
and again we have said that reviews on certiorari are limited to errors of law. Unless
there is a showing that the findings of the lower court are totally devoid of support or
are glaringly erroneous, this Court will not analyze or weigh evidence all over again.[10]

Hence, applying the aforequoted rule, Dr. Nittscher correctly filed in the RTC of Makati
City, which then covered Las Pias, Metro Manila, the petition for the probate of his will
and for the issuance of letters testamentary to respondent.

Regarding the third and fourth issues, we note that Dr. Nittscher asked for the
allowance of his own will. In this connection, Section 4, Rule 76 of the Rules of Court
states:

SEC. 4. Heirs, devisees, legatees, and executors to be notified by mail or personally.

If the testator asks for the allowance of his own will, notice shall be sent only to his
compulsory heirs.

In this case, records show that petitioner, with whom Dr. Nittscher had no child, and Dr.
Nittschers children from his previous marriage were all duly notified, by registered mail,
of the probate proceedings. Petitioner even appeared in court to oppose respondents
petition for the issuance of letters testamentary and she also filed a motion to dismiss
the said petition. She likewise filed a motion for reconsideration of the issuance of the
letters testamentary and of the denial of her motion to dismiss. We are convinced
petitioner was accorded every opportunity to defend her cause. Therefore, petitioners
allegation that she was denied due process in the probate proceedings is without basis.

As a final word, petitioner should realize that the allowance of her husbands will is
conclusive only as to its due execution.[11] The authority of the probate court is limited
to ascertaining whether the testator, being of sound mind, freely executed the will in
accordance with the formalities prescribed by law.[12] Thus, petitioners claim of title to
the properties forming part of her husbands estate should be settled in an ordinary
action before the regular courts.

WHEREFORE, the petition is DENIED for lack of merit. The assailed Decision dated July
31, 2003 and Resolution dated October 21, 2003 of the Court of Appeals in CA-G.R. CV
No. 55330, which affirmed the Order dated September 29, 1995 of the Regional Trial
Court, Branch 59, Makati City, in SP Proc. No. M-2330 are AFFIRMED.

No pronouncement as to costs.

SO ORDERED.
G.R. No. L-57848 June 19, 1982

RAFAEL E. MANINANG and SOLEDAD L. MANINANG, petitioners,

vs.
COURT OF APPEALS, HON. RICARDO L. PRONOVE, JR., as Judge of the Court of First
Instance of Rizal and BERNARDO S. ASENETA, respondents.

MELENCIO-HERRERA, J.:

A Petition to Review the Decision of April 28, 1981 of respondent Appellate Court in CA-
G.R. No. 12032-R entitled "Rafael E. Maninang and Soledad L. Maninang vs. Hon.
Ricardo Pronove, Judge of the Court of First Instance of Rizal, Pasig, Branch XI, and
Bernardo S. Aseneta".

Pertinent to the controversy are the following antecedental facts:

On May 21, 1977, Clemencia Aseneta, single, died at the Manila Sanitarium Hospital at
age 81. She left a holographic will, the pertinent portions of which are quoted
hereunder:

xxx xxx xxx

It is my will that all my real properties located in Manila, Makati, Quezon City, Albay and
Legaspi City and all my personal properties shagllbe inherited upon my death by Dra.
Soledad L. Maninang with whose family I have lived continuously for around the last 30
years now. Dra. Maninang and her husband Pamping have been kind to me. ... I have
found peace and happiness with them even during the time when my sisters were still
alive and especially now when I am now being troubled by my nephew Bernardo and
niece Salvacion. I am not incompetent as Nonoy would like me to appear. I know what
is right and wrong. I can decide for myself. I do not consider Nonoy as my adopted son.
He has made me do things against my will.

xxx xxx xxx

On June 9, 1977, petitioner Soledad Maninang filed a Petition for probate of the Will of
the decedent with the Court of First Instance-Branch IV, Quezon City (Sp. Proc. No. Q-
23304, hereinafter referred to as the Testate Case).

On July 25, 1977, herein respondent Bernardo Aseneta, who, as the adopted son, claims
to be the sole heir of decedent Clemencia Aseneta, instituted intestate proceedings
with the Court of First Instance-Branch XI, Pasig, Rizal (Sp. Proc. No. 8569, called
hereinafter the Intestate Case" for brevity).

On December 23, 1977, the Testate and Intestate Cases were ordered consolidated
before Branch XI, presided by respondent Judge.

Respondent Bernardo then filed a Motion to Dismiss the Testate Case on the ground
that the holographic will was null and void because he, as the only compulsory heir,
was preterited and, therefore, intestacy should ensue. In support of said Motion to
Dismiss, respondent Bernardo cited the cases of Neri vs. Akutin (72 Phil. 322); Nuguid
vs. Nuguid (17 SCRA 449), and Ramos vs. Baldovino (2 CA Rep. 2nd, 878). 1

In her Opposition to said Motion to Dismiss, petitioner Soledad averred that it is still the
rule that in a case for probate of a Will, the Court's area of inquiry is limited to an
examination of and resolution on the extrinsic validity of the will; and that respondent
Bernardo was effectively disinherited by the decedent. 2

On September 8, 1980, the lower Court ordered the dismissal of the Testate Case in this
wise:

For reasons stated in the motion to dismiss filed by petitioner Bernardo S. Aseneta
which the Court finds meritorious, the petition for probate of will filed by Soledad L.
Maninang and which was docketed as Sp. Proc. No. Q-23304 is DISMISSED, without
pronouncement as to costs.

On December 19, 1980, the lower Court denied reconsideration for lack of merit and in
the same Order appointed Bernardo as the administrator of the intestate estate of the
deceased Clemencia Aseneta "considering that he is a forced heir of said deceased
while oppositor Soledad Maninang is not, and considering further that Bernardo
Aseneta has not been shown to be unfit to perform the duties of the trust. "

Petitioners Maninang resorted to a certiorari Petition before respondent Court of

Appeals alleging that the lower Court exceeded its jurisdiction in issuing the Orders of
dismissal of the Testate Case (September 8, 1980) and denial of reconsideration
(December 19, 1980).

On April 28, 1981, respondent Court 3 denied certiorari and ruled that the trial Judge's
Order of dismissal was final in nature as it finally disposed of the Testate Case and,
therefore, appeal was the proper remedy, which petitioners failed to avail of.
Continuing, it said that even granting that the lower Court committed errors in issuing
the questioned Orders, those are errors of judgment reviewable only by appeal and not
by Certiorari. 'Thus, this Petition before us.

We find that the Court a quo a quo acted in excess of its jurisdiction when it dismissed
the Testate Case. Generally, the probate of a Will is mandatory.

No will shall pass either real or personal property unless it is proved and allowed in
accordance with the Rules of Court. 4

The law enjoins the probate of the Will and public policy requires it, because unless the
Will is probated and notice thereof given to the whole world, the right of a person to
dispose of his property by Will may be rendered nugatory. 5

Normally, the probate of a Will does not look into its intrinsic validity.

... The authentication of a will decides no other question than such as touch upon the
capacity of the testator and the compliance with those requisites or solemnities which
the law prescribes for the validity of wills. It does not determine nor even by implication
prejudge the validity or efficiency (sic) of the provisions, these may be impugned as
being vicious or null, notwithstanding its authentication. The que0stions relating to
these points remain entirely unaffected, and may be raised even after the will has been
authenticated .... 6

Opposition to the intrinsic validity or legality of the provisions of the will cannot be
entertained in Probate proceeding because its only purpose is merely to determine if
the will has been executed in accordance with the requirements of the law. 7

Respondent Bernardo, however, relies on the pronouncement in Nuguid vs. Nuguid 8,

reading:

In a proceeding for the probate of a will, the Court's area of inquiry is limited to an
examination of, and resolution on, the extrinsic validity of the will, the due execution
thereof, the testatrix's testamentary capacity and the compliance with the requisites or
solemnities prescribed by law. The intrinsic validity of the will normally comes only after
the court has declared that the will has been duly authenticated. However, where
practical considerations demand that the intrinsic validity of the will be passed upon,
even before it is probated, the Court should meet that issue. (Emphasis supplied)

Our ruling in Balanay vs. Hon. Martinez 9 had a similar thrust:

The trial court acted correctly in passing upon the will's intrinsic validity even before its
formal validity had been established. The probate of a will might become an Idle
ceremony if on its face it appears to be intrinsically void. Where practical
considerations demand that the intrinsic validity of the will be passed upon, even
before it is probated, the court should meet the issue.

The Nuguid and the Balanay cases provide the exception rather than the rule. The
intrinsic validity of the Wills in those cases was passed upon even before probate
because "practical considerations" so demanded. Moreover, for the parties in
the Nuguid case, the "meat of the controversy" was the intrinsic validity of the Will; in
fact, the parties in that case "shunted aside the question of whether or not the Will
should be allowed probate." Not so in the case before us now where the probate of the
Will is insisted on by petitioners and a resolution on the extrinsic validity of the Will
demanded.

Moreover, in the Nuguid case, this Court ruled that the Will was intrinsically invalid as it
completely preterited the parents of the testator. In the instant case, a crucial issue
that calls for resolution is whether under the terms of the decedent's Will, private
respondent had been preterited or disinherited, and if the latter, whether it was a valid
disinheritance. Preterition and disinheritance are two diverse concepts.

... Preterition "consists in the omission in the testator's will of the forced heirs or
anyone of them, either because they are not mentioned therein, or, though mentioned,
they are neither instituted as heirs nor are expressly disinherited." (Neri vs. Akutin, 72
Phil. 325). Disinheritance, in turn, "is a testamentary disposition depriving any
compulsory heirs of his share in the legitimate for a cause authorized by law." (Justice
J.B.L. Reyes and R.C. Puno, "An Outline of Philippine Civil Law", 1956 ed., Vol. III, p. 8,
citing cases) Disinheritance is always "voluntary", preterition upon the other hand, is
presumed to be "involuntary" (Sanchez Roman, Estudios de Derecho Civil 2nd edition,
Volume 2.o p. 1131). 10

The effects of preterition and disinheritance are also totally different.

... The effects flowing from preterition are totally different from those of disinheritance.
Pretention under Article 854 of the New Civil Code shall annul the institution of heir.
This annulment is in toto, unless in the wail there are, in addition, testamentary
dispositions in the form of devises or legacies. In ineffective disinheritance under Article
918 of the same Code, such disinheritance shall also "annul the institution of heirs", but
only "insofar as it may prejudice the person disinherited", which last phrase was
omitted in the case of preterition (III Tolentino, Civil Code of the Philippines, 1961
Edition, p. 172). Better stated yet, in disinheritance the nullity is limited to that portion
of the estate of which the disinherited heirs have been illegally deprived. 11

By virtue of the dismissal of the Testate Case, the determination of that controversial
issue has not been thoroughly considered. We gather from the assailed Order of the
trial Court that its conclusion was that respondent Bernardo has been preterited We are
of opinion, however, that from the face of the Will, that conclusion is not indubitable.

As held in the case of Vda. de Precilla vs. Narciso 12

... it is as important a matter of public interest that a purported will is not denied
legalization on dubious grounds. Otherwise, the very institution of testamentary
succession will be shaken to its foundation, ...

Coming now to the procedural aspect, suffice it to state that in view of our finding that
respondent Judge had acted in excess of his jurisdiction in dismissing the Testate Case,
certiorari is a proper remedy. An act done by a Probate Court in excess of its jurisdiction
may be corrected by Certiorari. 13 And even assuming the existence of the remedy of
appeal, we harken to the rule that in the broader interests of justice, a petition for
certiorari may be entertained, particularly where appeal would not afford speedy and
adequate relief.

WHEREFORE, the Decision in question is set aside and the Orders of the Court of First
Instance-Branch XI, Rizal, dated September 8, 1980 and December 19, 1980, are
nullified. Special Proceeding No. Q-23304 is hereby remanded to said Court of First
Instance-Branch XI. Rizal, therein to be reinstated and consolidated with Special
Proceeding No. 8569 for further proceedings.

No pronouncement as to costs.

SO ORDERED.
DANILO ALUAD, LEONORA ALUAD, G.R. No. 176943
DIVINA ALUAD, PROSPERO ALUAD,
and CONNIE ALUAD,

Petitioners, Present:

QUISUMBING, J., Chairperson,

CARPIO MORALES,

- versus - TINGA,

VELASCO, JR., and

BRION, JJ.

ZENAIDO ALUAD,

Respondent. Promulgated:

October 17, 2008

x--------------------------------------------------x

DECISION

CARPIO MORALES, J.:

Petitioners mother, Maria Aluad (Maria), and respondent Zenaido Aluad were raised by
the childless spouses Matilde Aluad (Matilde) and Crispin Aluad (Crispin).

Crispin was the owner of six lots identified as Lot Nos. 674, 675, 676, 677, 680, and 682
of the Pilar Cadastre, Capiz. After Crispin died, his wife Matilde adjudicated the lots to
herself.[1]

On November 14, 1981, Matilde executed a document entitled Deed of Donation of Real
Property Inter Vivos[2] (Deed of Donation) in favor of petitioners mother
Maria[3] covering all the six lots which Matilde inherited from her husband Crispin. The
Deed of Donation provided:

That, for and in consideration of the love and affection of the DONOR [Matilde] for the
DONEE [Maria], the latter being adopted and hav[ing] been brought up by the former
the DONOR, by these presents, transfer and convey, BY WAY OF DONATION, unto
the DONEE the property above-described, to become effective upon the death of the
DONOR, but in the event that the DONEE should die before the DONOR, the present
donation shall be deemed rescinded and [of] no further force and effect; Provided,
however, that anytime during the lifetime of the DONOR or anyone of them who should
survive, they could use[,] encumber or even dispose of any or even all of the parcels of
land herein donated.[4] (Emphasis and underscoring supplied)

On September 30, 1986, Original Certificates of Title over Lot Nos. 674 and 676 were
issued in Matildes name.

On August 26, 1991, Matilde sold Lot No. 676 to respondent by a Deed of Absolute Sale
of Real Property.[5]

Subsequently or on January 14, 1992, Matilde executed a last will and testament,
[6] devising Lot Nos. 675, 677, 682, and 680 to Maria, and her remaining properties
including Lot No. 674 to respondent.

Matilde died on January 25, 1994, while Maria died on September 24 of the same year.
[7]

On August 21, 1995, Marias heirs-herein petitioners filed before the Regional Trial
Court (RTC) of Roxas City a Complaint,[8] for declaration and recovery of ownership and
possession of Lot Nos. 674 and 676, and damages against respondent, alleging:

That in 1978, plaintiff[s] possessed the two (2) parcels of land above-described until
January 1991 when defendant entered and possessed the two (2) parcels of land
claiming as the adopted son of Crispin Aluad who refused to give back possession until
Matilde Aluad died in [1994] and then retained the possession thereof up to and until
the present time, thus, depriving the plaintiffs of the enjoyment of said parcels of land x
x x;

That after the death of Matilde R. Aluad, the plaintiffs succeeded by inheritance by right
of representation from their deceased mother, Maria Aluad who is the sole and only
daughter of Matilde Aluad[.][9]

To the complaint respondent alleged in his Answer.[10] That Lot 674 is owned by the
defendant as this lot was adjudicated to him in the Last Will and Testament of Matilde
Aluad x x x while Lot 676 was purchased by him from Matilde Aluad. These two lots are
in his possession as true owners thereof.[11] (Underscoring supplied) Petitioners later
filed a Motion for Leave to Amend Complaint Already Filed to Conform to
Evidence[12] to which it annexed an Amended Complaint[13] which cited the donation
of the six lots via Deed of Donation in favor of their mother Maria. Branch 15 of
the RTC granted the motion and admitted the Amended Complaint.[14]
Respondent filed an Amended Answer[15] contending, inter alia, that the Deed of
Donation is forged and falsified and petitioners change of theory showed that said
document was not existing at the time they filed their complaint and was concocted by
them after realizing that their false claim that their mother was the only daughter of
Matild[e] Aluad cannot in anyway be established by them;[16] and that if ever said
document does exist, the same was already revoked by Matilde when [she] exercised
all acts of dominion over said properties until she sold Lot 676 to defendant and until
her death with respect to the other lots without any opposition from Maria Aluad.[17]

The trial court, by Decision[18] of September 20, 1996, held that Matilde could not
have transmitted any right over Lot Nos. 674 and 676 to respondent, she having
previously alienated them to Maria via the Deed of Donation. Thus it disposed:

WHEREFORE, in view of the foregoing, judgment is hereby rendered:

1. Declaring the plaintiffs as the rightful owners of the subject Lots Nos. 674 and
676, Pilar Cadastre;

2. Ordering the defendant to deliver the possession of the subject lots to the
plaintiffs;

3. Ordering the defendant to pay the plaintiffs:

a. Thirty thousand pesos (P30,000.00) as attorneys fees;

b. Twenty thousand pesos (P20,000.00), representing the income from subject Lot
676, a year from 1991 up to the time said lot is delivered to the plaintiffs, together with
the interest thereof at the legal rate until fully paid;

c. Ten thousand pesos (P10,000.00), representing the income from the subject Lot
No. 674, a year from 1991 up to the time said lot is delivered to the plaintiffs, plus legal
interest thereof at the legal rate until fully paid; and

d. The costs of the suit.

Defendants counterclaim is ordered dismissed for lack of merit.

SO ORDERED.[19]

On petitioners motion, the trial court directed the issuance of a writ of execution
pending appeal.[20] Possession of the subject lots appears to have in fact been taken
by petitioners.

By Decision[21] of August 10, 2006, the Court of Appeals reversed the trial courts
decision, it holding that the Deed of Donation was actually a donation mortis causa,
notinter vivos, and as such it had to, but did not, comply with the formalities of a
will. Thus, it found that the Deed of Donation was witnessed by only two witnesses and
had no attestation clause which is not in accordance with Article 805 of the Civil Code,
reading:

Art. 805. Every will, other than a holographic will, must be subscribed at the end
thereof by the testator himself or by the testators 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 that 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.

While the appellate court declared respondent as the rightful owner of Lot No. 676, it
did not so declare with respect to Lot No. 674, as Matildes last will and testament had
not yet been probated. Thus the Court of Appeals disposed:

WHEREFORE, finding the instant petition worthy of merit, the same is

hereby GRANTED and the Decision of the Regional Trial Court of Roxas City, Branch 15,
dated 20 September 1996, in Civil Case No. V-6686 for declaration of ownership,
recovery of ownership and possession, and damages is REVERSED and SET ASIDE.

A new one is entered in its stead declaring defendant-appellant as the lawful owner
of Lot [No.] 676 of the Pilar Cadastre. Accordingly, plaintiffs-appellees are directed to
return the possession of the said lot to the defendant-appellant.

Moreover, plaintiffs-appellees are ordered to pay P40,000.00 to defendant-appellant as

attorneys fees and litigation expenses.

Costs against plaintiffs-appellees.

SO ORDERED.[22] (Emphasis in the original; underscoring supplied)

Their Motion for Reconsideration[23] having been denied,[24] petitioners filed the
present Petition for Review,[25] contending that the Court of Appeals erred

X X X WHEN IT REVERSED THE DECISION OF THE COURT BELOW (RTC, Branch

15, Roxas City) HOLDING THAT THE DEED OF DONATION INTER VIVOS IN FAVOR OF
PETITIONERS MOTHER IS IN FACT A DONATION MORTIS CAUSA.

II

X X X WHEN IT RULED THAT RESPONDENT IS THE RIGHTFUL OWNER OF LOT NO. 676
AS LOT BUYER ON THE BASIS OF A DEED OF SALE EXECUTED BY THE DONOR WHO HAD
NO MORE RIGHT TO SELL THE SAME.
III

X X X WHEN IT FAILED TO DECLARE PETITIONERS THE RIGHTFUL OWNER OF LOT NO.

674 AFTER HAVING RULED WHEN IT HELD THAT RESPONDENT CANNOT BE DECLARED
OWNER THEREOF.

IV

X X X WHEN IT HELD THAT THE ISSUANCE OF A WRIT OF EXECUTION PENDING APPEAL

IS IN VIOLATION OF PARAGRAPH (a) SECTION 2, RULE 39, OF THE RULES OF COURT
(AND ORDERING PETITIONERS TO RETURN POSSESSION OF LOT 676 TO RESPONDENT)
AND ORDERING PETITIONERS TO PAY ATTORNEYS FEES AND COST[S] OF SUIT.[26]

As did the appellate court, the Court finds the donation to petitioners mother one
of mortis causa, it having the following characteristics:

(1) It conveys no title or ownership to the transferee before the death of the
transferor; or what amounts to the same thing, that the transferor should retain the
ownership (full or naked) and control of the property while alive;

(2) That before the death of the transferor, the transfer should be revocable by
the transferor at will, ad nutum; but revocability may be provided for indirectly by
means of a reserved power in the donor to dispose of the properties conveyed; and

(3) That the transfer should be void if the transferor should survive the transferee.
[27] (Emphasis and underscoring supplied)

The phrase in the earlier-quoted Deed of Donation to become effective upon the death
of the DONOR admits of no other interpretation than to mean that Matilde did not
intend to transfer the ownership of the six lots to petitioners mother during her
(Matildes) lifetime.[28]

The statement in the Deed of Donation reading anytime during the lifetime of the
DONOR or anyone of them who should survive, they could use, encumber or even
dispose of any or even all the parcels of land herein donated[29] means that Matilde
retained ownership of the lots and reserved in her the right to dispose them. For the
right to dispose of a thing without other limitations than those established by law is an
attribute of ownership.[30] The phrase in the Deed of Donation or anyone of them who
should survive is of course out of sync. For the Deed of Donation clearly stated that it
would take effect upon the death of the donor, hence, said phrase could only have
referred to the donor Matilde. Petitioners themselves concede that such phrase does
not refer to the donee, thus:

x x x [I]t is well to point out that the last provision (sentence) in the disputed
paragraph should only refer to Matilde Aluad, the donor, because she was the only
surviving spouse at the time the donation was executed on 14 November 1981, as her
husband Crispin Aluad [] had long been dead as early as 1975.[31]

The trial court, in holding that the donation was inter vivos, reasoned:
 x x x The donation in question is subject to a resolutory term or period when the donor
provides in the aforequoted provisions, but in the event that the DONEE should die
before the DONOR, the present donation shall be deemed rescinded and [of] no further
force and effect. When the donor provides that should the DONEE xxx die before the
DONOR, the present donation shall be deemed rescinded and [of] no further force and
effect the logical construction thereof is that after the execution of the subject
donation, the same became effective immediately and shall be deemed rescinded and
[of] no further force and effect upon the arrival of a resolutory term or period, i.e., the
death of the donee which shall occur before that of the donor. Understandably, the
arrival of this resolutory term or period cannot rescind and render of no further force
and effect a donation which has never become effective, because, certainly what
donation is there to be rescinded and rendered of no further force and effect upon the
arrival of said resolutory term or period if there was no donation which was already
effective at the time when the donee died?[32] (Underscoring supplied)

A similar ratio in a case had been brushed aside by this Court, however, thus:

x x x [P]etitioners contend that the stipulation on rescission in case petitioners [donee]

die ahead of [donor] Cabatingan is a resolutory condition that confirms the nature of
the donation as inter vivos.

Petitioners arguments are bereft of merit.[33]

xxxx

x x x The herein subject deeds expressly provide that the donation shall be rescinded in
case [donees] the petitioners predecease [the donor] Conchita Cabatingan. As stated
in Reyes v. Mosqueda, one of the decisive characteristics of a donation mortis causa is
that the transfer should be considered void if the donor should survive the donee. This
is exactly what Cabatingan provided for in her donations. If she really intended that the
donation should take effect during her lifetime and that the ownership of the properties
donated to the donee or independently of, and not by reason of her death, she would
not have expressed such proviso in the subject deeds.[34] (Underscoring supplied)

As the Court of Appeals observed, x x x [t]hat the donation is mortis causa is fortified
by Matildes acts of possession as she continued to pay the taxes for the said properties
which remained under her name; appropriated the produce; and applied for free
patents for which OCTs were issued under her name.[35]

The donation being then mortis causa, the formalities of a will should have been
observed[36] but they were not, as it was witnessed by only two, not three or more
witnesses following Article 805 of the Civil Code.[37]

Further, the witnesses did not even sign the attestation clause[38] the execution of
which clause is a requirement separate from the subscription of the will and the affixing
of signatures on the left-hand margins of the pages of the will. So the Court has
emphasized:

x x x 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[s] 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.

x x x 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.[39] (Emphasis and underscoring supplied)

Furthermore, the witnesses did not acknowledge the will before the notary public,
[40] which is not in accordance with the requirement of Article 806 of the Civil Code
that every will must be acknowledged before a notary public by the testator and the
witnesses.

More. The requirement that all the pages of the will must be numbered correlatively in
letters placed on the upper part of each page was not also followed.[41]

The Deed of Donation which is, as already discussed, one of mortis causa, not having
followed the formalities of a will, it is void and transmitted no right to petitioners
mother. But even assuming arguendo that the formalities were observed, since it was
not probated, no right to Lot Nos. 674 and 676 was transmitted to Maria.[42] Matilde
thus validly disposed of Lot No. 674 to respondent by her last will and testament,
subject of course to the qualification that her (Matildes) will must be probated. With
respect to Lot No. 676, the same had, as mentioned earlier, been sold by Matilde to
respondent on August 26, 1991.

Petitioners nevertheless argue that assuming that the donation of Lot No. 674 in favor
of their mother is indeed mortis causa, hence, Matilde could devise it to respondent,
the lot should nevertheless have been awarded to them because they had acquired it
by acquisitive prescription, they having been in continuous, uninterrupted, adverse,
open, and public possession of it in good faith and in the concept of an owner since
1978.[43]

Petitioners failed to raise the issue of acquisitive prescription before the lower courts,
however, they having laid their claim on the basis of inheritance from their mother.As a
general rule, points of law, theories, and issues not brought to the attention of the trial
court cannot be raised for the first time on appeal.[44] For a contrary rule would be
unfair to the adverse party who would have no opportunity to present further evidence
material to the new theory, which it could have done had it been aware of it at the time
of the hearing before the trial court.[45]

WHEREFORE, the petition is DENIED.

SO ORDERED.

G.R. Nos. L-63253-54 April 27, 1989

PABLO RALLA, petitioner, vs.

HON. ROMULO P. UNTALAN, HON. DOMINGO CORONEL REYES, AND LEONIE RALLA,
PETER RALLA AND MARINELLA RALLA, respondents.

Rafael Triunfante for the Heirs of Pablo Ralla.

Ruben R. Basa for respondents.

SARMIENTO, J.:

This petition seeks the nullification of the Order of respondent Judge Romulo P.
Untalan, 1 dated July 16,1981, excluding from the probate proceedings sixty-three
parcels of land, as well as the Orders issued by respondent Judge Domingo Coronel
Reyes, 2 denying the petitioner's motions for reconsideration of the same Order of
Judge Untalan dated July 16, 1981.

The petition's beginnings are traced to January 27, 1959, when Rosendo Ralla, a
widower, filed a petition for the probate of his own will in the then Court of First
Instance (now Regional Trial Court) of Albay, which was docketed as Special
Proceedings No. 564. In his will he left his entire estate to his son, Pablo (the petitioner
herein who, upon his death during the pendency of this petition, was substituted by his
heirs), leaving nothing to his other son, Pedro.

In the same year, Pedro Ralla filed an action for the partition of the estate of their
mother, Paz Escarella; this was docketed as Civil Case No. 2023.

In the course of the hearing of the probate case (Special Proceedings No. 564), Pablo
Ralla filed a motion to dismiss the petition for probate on the ground that he was no
longer interested in the allowance of the will of his late father, Rosendo Ralla, for its
probate would no longer be beneficial and advantageous to him. This motion was
denied, and the denial was denied by the Court of Appeals. (The latter court agreed
with the lower court's conclusion that, indeed, the petitioner stood to gain if the testate
proceedings were to be dismissed because then he would not be compelled to submit
for inclusion in the inventory of the estate of Rosendo Ralla 149 parcels of land from
which he alone had been collecting rentals and receiving income, to the exclusion and
prejudice of his brother, Pedro Ralla, who was being deprived of his successional rights
over the said properties.) The denial of this motion to dismiss was likewise affirmed by
this Court (in G.R. No. L-26253). 3 On the scheduled hearing on November 3, 1966, the
petitioner reiterated his lack of interest in the probate of the subject will. Consequently,
the court, through Judge Perfecto Quicho, declared Pedro and Pablo Ralla the only heirs
of Rosendo Ralla who should share equally upon the division of the latter's estate, and
thereupon converted the testate proceedings into one of intestacy.
Meanwhile, the brothers agreed to compromise in the partition case (Civil Case No.
2023). On December 18, 1967, they entered into a project of partition whereby sixty-
three parcels of land, apparently forming the estate of their deceased mother, Paz
Escarella, were amicably divided between the two of them. This project of partition was
approved on December 19,1967 by Judge Ezekiel Grageda.

Eleven years later, or on February 28, 1978, Joaquin Chancoco, brother-in- law of the
petitioner (Pablo) filed a petition, docketed as Special Proceedings No. 1106, for the
probate of the same will of Rosendo Ralla on the ground that the decedent owed him
P5,000.00. Pablo Ralla then filed a manifestation stating that he had no objections to
the probate; thereafter, he filed a "Motion to Intervene as Petitioner for the Probate of
the Will." This motion was heard ex parte and granted despite the written opposition of
the heirs of Pedro Ralla. Likewise, the petition for probate was granted; Teodorico
Almine, son-in-law of the petitioner, was appointed special administrator, over and
above the objection of the heirs of Pedro Ralla. However, in taking possession of the
properties belonging to the estate of Rosendo Ralla, Teodorico Almine also took
possession of the sixty-three parcels of land covered by the project of partition
mentioned earlier. Consequently, the heirs of Pedro Ralla (the private respondents
herein) moved to exclude from the estate of Rosendo Ralla the aforesaid parcels of
land.

In an Omnibus order dated August 3, 1979, 4 respondent Judge Romulo P. Untalan

ruled, inter alia, that the sixty-three parcels of land should be included in the
proceedings for the settlement of the estate of Rosendo Ralla and that said proceedings
(both Special Proceedings No. 564 and Special Proceedings No. 1106, which were
ordered consolidated by this Court) should proceed as probate proceedings.

About two years later, or on June 11, 1981, the private respondents filed a "Petition To
Submit Anew For Consideration Of The Court The Exclusion Of 67 (sic) Parcels of Land
Subject Of The Project Of Partition In Civil Case No. 2023." 5 In his Order of July
16,1981, Judge Untalan reconsidered his earlier Order, to wit:

Premises considered, Order is hereby issued reconsidering the Omnibus Order of this
Court dated August 3,1979, more particularly paragraph 3 of the dispositive portion
thereof. The Project of Partition should, therefore, be respected and upheld. Hence, the
sixty-three (63) parcels referred to therein should be excluded from the probate
proceedings and, likewise from the administration of Special Administrator Teodorico
Almine, Jr.

SO ORDERED. 6

Thereafter, the petitioner filed a motion for reconsideration of the foregoing order but
the same was denied 7 by respondent Judge Domingo Coronel Reyes, to whose sala
Special Proceedings No. 564 and No. 1 1 06 were apparently transferred. Still, a second
motion for reconsideration was filed; the same, however, was also denied. 8

In assailing the aforesaid Order of July 16, 1981, the following arguments are raised in
the present special civil action for certiorari.

The first argument is stated as follows:

... The extrajudicial partition of the 63 parcels made after the filing of the petition for
the probate of the Will, and before said Will was probated, is a NULLITY, considering
that as already decided by this Court in the case of Ernesto M. Guevara, vs. Rosario
Guevara et al., Vol. 74 Phil. Reports, there can be no valid partition among the heirs till
after the Will had been probated. ... 9

The above argument is obviously flawed and misleading for the simple reason that the
aforementioned partition was made in the civil case for partition of the estate of Paz
Escarella, which is distinct from, and independent of, the special proceedings for the
probate of the will of Rosendo Ralla.

Verily, the rule is that there can be no valid partition among the heirs till after the will
has been probated. This, of course, presupposes that the properties to be partitioned
are the same properties embraced in the win. Thus the rule invoked is inapplicable in
this instance where there are two separate cases (Civil Case No. 2023 for partition, and
Special Proceedings No. 564 originally for the probate of a will), each involving the
estate of a different person (Paz Escarella and Rosendo Ralla, respectively) comprising
dissimilar properties.

In his second and third arguments, 10 the petitioner claims that the Order of August 3,
1979 mentioned earlier could no longer be validly reversed by the court two years after
it was issued. Thus, it is alleged that by flip-flopping, Judge Untalan committed a grave
abuse of discretion.

An examination of the August 3, 1979 Order would reveal that the same resolved a
number of divergent issues (ten as enumerated) 11 springing from four separate
special proceedings,12 all of which were pending in Branch I of the then Court of First
Instance of Albay; accordingly, there are at least nine 13 specific directives contained
therein. However, a distinction must be made between those directives that partake of
final orders and the other directives that are in the nature of inter-locutory orders.

Two closely related orders are the following quoted portions of the said August 3, 1979
Order of respondent Judge Untalan:

xxx xxx xxx

2. The 149 parcels referred to in our elucidation on issue No. 2 as well as the 63
lots also mentioned therein all of which may be summed up to 212 parcels, except
those already validly disposed, conveyed, or transferred to third persons, should be
submitted, at least provisionally, to the probate or testate proceedings. Hence, the
Motion to exclusion the 149 parcels filed on June 2, 1979, by petitioner intervenor Pablo
Ralla thru counsel in Special Proceeding 1106 and the motion for exclusion filed by the
heirs of Pedro Ralla thru counsel in Special Proceedings 564 and 1106 are
hereby Denied; (Emphasis supplied.)

3. The Project of partition, for purposes of these proceedings, is hereby stripped of its
judicial recognition; 14

xxx xxx xxx

As regards the abovequoted paragraph 2, this Court finds that the same is interlocutory
in character because it did not decide the action with finality and left substantial
proceedings still to be had.15 The foregoing order of inclusion of the subject parcels of
land was a mere incident that arose in the settlement of the estate of Rosendo Ralla. It
is elementary that interlocutory orders, prior to the rendition of the final judgment, are,
at any time, subject to such corrections or amendments as the court may deem proper.
Thus, in issuing the questioned Order dated July 16,1981, which reversed the
aforementioned interlocutory order and upheld the project of partition, respondent
Judge Untalan acted well within his jurisdiction and without grave abuse of discretion.

There is, however, a more important reason why we do not find any grave abuse of
discretion in the issuance of the questioned Order dated July 16,1981. Consider the
following undisputed facts: the properties involved in the present petition were the
subject of the project of partition signed by both the petitioner, Pablo Ralla, and Pedro
Ralla in Civil Case No. 2023; the lower court approved the said project of partition on
December 19, 1967; subsequently, Pablo and Pedro Ralla jointly manifested that they
had already received "the ownership and possession of the respective parcels of land
adjudicated to them in the said project of partition," 16 and upon their motion Judge
Ezekiel Grageda declared the partition case closed and terminated in its Order of
December 29, 1967; there was no appeal made from this decision within the
reglementary period to do so, consequently, it attained finality.

Furthermore, the Court had occasion to rule that

Where a partition had not only been approved and thus become a judgment of the
court, but distribution of the estate in pursuance of such partition had fully been carried
out, and the heirs had received the property assigned to them, they are precluded from
subsequently attacking its validity or any part of it. 17

Likewise:

Where a piece of land has been included in a partition, and there is no allegation that
the inclusion was effected through improper means or without the petitioners'
knowledge, the partition barred any further litigation on said title and operated to bring
the property under the control and jurisdiction of the court for proper disposition
according to the tenor of the partition . . . They can not attack the partition collaterally,
as they are trying to do in this case. 18 (Emphasis supplied.)

Based on the foregoing pronouncements, the Order of August 3, 1979 setting aside the
project of Partition was clearly erroneous. Realizing this and the fact that it was not yet
too late for him to correct his mistake, respondent Judge Untalan issued the questioned
Order of July 16, 1981.

In fine, the partition in Civil Case No. 2023 is valid and binding upon the petitioner and
Pedro Ralla, as well as upon their heirs, especially as this was accompanied by delivery
of possession to them of their respective shares in the inheritance from their mother,
the late Paz Escarella. They are duty bound to respect the division agreed upon by
them and embodied in the document of partition.
Thus, the petitioner could no longer question the exclusion of the lands subject of the
partition from the proceedings for the settlement of the estate of Rosendo Ralla. Could
it be that the petitioner's keen interest in including these lands in the estate
proceedings is directly related to the fact that his son-in-law is the administrator of the
said estate of Rosendo Ralla?

WHEREFORE, the petition is hereby DISMISSED.

Costs against the petitioner. SO ORDERED.

G.R. No. L-23638 October 12, 1967

DIONISIO FERNANDEZ, EUSEBIO REYES and LUISA REYES, petitioners,

vs.
ISMAELA DIMAGIBA, respondent.

----------------------------------------

G.R. No. L-23662 October 12, 1967

MARIANO REYES, CESAR REYES, LEONOR REYES and PACIENCIA REYES, petitioners,
vs.
ISMAELA DIMAGIBA, respondent.

Jose D. Villena for petitioners.

Antonio Barredo and Exequiel M. Zaballero for respondent.

REYES, J.B.L., Actg. C.J.:

The heirs intestate of the late Benedicta de los Reyes have petitioned for a review of
the decision of the Court of Appeals (in CA-G. R. No. 31221-R) affirming that of the
Court of First Instance of Bulacan, in Special Proceeding No. 831 of said Court,
admitting to probate the alleged last will and testament of the deceased, and
overruling the opposition to the probate.

It appears from the record that on January 19, 1955, Ismaela Dimagiba, now
respondent, submitted to the Court of First Instance a petition for the probate of the
purported will of the late Benedicta de los Reyes, executed on October 22, 1930, and
annexed to the petition. The will instituted the petitioner as the sole heir of the estate
of the deceased. The petition was set for hearing, and in due time, Dionisio Fernandez,
Eusebio Reyes and Luisa Reyes and one month later, Mariano, Cesar, Leonor and
Paciencia, all surnamed Reyes, all claiming to be heirs intestate of the decedent, filed
oppositions to the probate asked. Grounds advanced for the opposition were forgery,
vices of consent of the testatrix, estoppel by laches of the proponent and revocation of
the will by two deeds of conveyance of the major portion of the estate made by the
testatrix in favor of the proponent in 1943 and 1944, but which conveyances were
finally set aside by this Supreme Court in a decision promulgated on August 3, 1954, in
cases G.R. Nos. L-5618 and L-5620 (unpublished).

After trial on the formulated issues, the Court of First Instance, by decision of June 20,
1958, found that the will was genuine and properly executed; but deferred resolution
on the questions of estoppel and revocation "until such time when we shall pass upon
the intrinsic validity of the provisions of the will or when the question of adjudication of
the properties is opportunely presented."

Oppositors Fernandez and Reyes petitioned for reconsideration, and/or new trial,
insisting that the issues of estoppel and revocation be considered and resolved;
whereupon, on July 27, 1959, the Court overruled the claim that proponent was in
estoppel to ask for the probate of the will, but "reserving unto the parties the right to
raise the issue of implied revocation at the opportune time."

On January 11, 1960, the Court of First Instance appointed Ricardo Cruz as
administrator for the sole purpose of submitting an inventory of the estate, and this
was done on February 9, 1960.

On February 27, 1962, after receiving further evidence on the issue whether the
execution by the testatrix of deeds of sale of the larger portion of her estate in favor of
the testamentary heir, made in 1943 and 1944, subsequent to the execution of her
1930 testament, had revoked the latter under Article 957(2) of the 1950 Civil Code (Art.
869 of the Civil Code of 1889), the trial Court resolved against the oppositors and held
the will of the late Benedicta de los Reyes "unaffected and unrevoked by the deeds of
sale." Whereupon, the oppositors elevated the case to the Court of Appeals.

The appellate Court held that the decree of June 20, 1958, admitting the will to probate,
had become final for lack of opportune appeal; that the same was appealable
independently of the issue of implied revocation; that contrary to the claim of
oppositors-appellants, there had been no legal revocation by the execution of the 1943
and 1944 deeds of sale, because the latter had been made in favor of the legatee
herself, and affirmed the decision of the Court of First Instance.

Oppositors then appealed to this Court.

In this instance, both sets of oppositors-appellants pose three main issues: (a) whether
or not the decree of the Court of First Instance allowing the will to probate had become
final for lack of appeal; (b) whether or not the order of the Court of origin dated July 27,
1959, overruling the estoppel invoked by oppositors-appellants had likewise become
final; and (c) whether or not the 1930 will of Benedicta de los Reyes had been impliedly
revoked by her execution of deeds of conveyance in favor of the proponent on March
26, 1943 and April 3, 1944.

As to the first point, oppositors-appellants contend that the order allowing the will to
probate should be considered interlocutory, because it fails to resolve the issues of
estoppel and revocation propounded in their opposition. We agree with the Court of
Appeals that the appellant's stand is untenable. It is elementary that a probate decree
finally and definitively settles all questions concerning capacity of the testator and the
proper execution and witnessing of his last will and testament, irrespective of whether
its provisions are valid and enforceable or otherwise. (Montaano vs. Suesa, 14 Phil.
676; Mercado vs. Santos, 66 Phil. 215; Trillana vs. Crisostomo, 89 Phil. 710). As such,
the probate order is final and appealable; and it is so recognized by express provisions
of Section 1 of Rule 109, that specifically prescribes that "any interested person may
appeal in special proceedings from an order or judgment . . . where such order or
judgment: (a) allows or disallows a will."

Appellants argue that they were entitled to await the trial Court's resolution on the
other grounds of their opposition before taking an appeal, as otherwise there would be
a multiplicity of recourses to the higher Courts. This contention is without weight, since
Rule 109, section 1, expressly enumerates six different instances when appeal may be
taken in special proceedings.

There being no controversy that the probate decree of the Court below was not
appealed on time, the same had become final and conclusive. Hence, the appellate
courts may no longer revoke said decree nor review the evidence upon which it is made
to rest. Thus, the appeal belatedly lodged against the decree was correctly dismissed.

The alleged revocation implied from the execution of the deeds of conveyance in favor
of the testamentary heir is plainly irrelevant to and separate from the question of
whether the testament was duly executed. For one, if the will is not entitled to probate,
or its probate is denied, all questions of revocation become superfluous in law, there is
no such will and hence there would be nothing to revoke. Then, again, the revocation
invoked by the oppositors-appellants is not an express one, but merely implied from
subsequent acts of the testatrix allegedly evidencing an abandonment of the original
intention to bequeath or devise the properties concerned. As such, the revocation
would not affect the will itself, but merely the particular devise or legacy. Only
the total and absoluterevocation can preclude probate of the revoked testament
(Trillana vs. Crisostomo, supra.).

As to the issue of estoppel, we have already ruled in Guevara vs. Guevara, 98 Phil. 249,
that the presentation and probate of a will are requirements of public policy, being
primarily designed to protect the testator's, expressed wishes, which are entitled to
respect as a consequence of the decedent's ownership and right of disposition within
legal limits. Evidence of it is the duty imposed on a custodian of a will to deliver the
same to the Court, and the fine and imprisonment prescribed for its violation (Revised
Rule 75). It would be a non sequitur to allow public policy to be evaded on the pretext
of estoppel. Whether or not the order overruling the allegation of estoppel is still
appealable or not, the defense is patently unmeritorious and the Court of Appeals
correctly so ruled.

The last issue, that of revocation, is predicated on paragraph 2 of Article 957 of the Civil
Code of 1950 (Art. 869 of the Code of 1889), which recites:

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

(1) . . . .

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

It is well to note that, unlike in the French and Italian Codes, the basis of the quoted
provision is a presumed change of intention on the part of the testator. As pointed out
by Manresa in his Commentaries on Article 869 of the Civil Code (Vol. 6, 7th Ed., p. 743)

Este caso se funda en la presunta voluntad del testador. Si este, despues de legar, se
desprende de la cosa por titulo lucrativo u oneroso, hace desaparecer su derecho sobra
ella, dando lugar a la presuncion de que ha cambiado de voluntad, y no quiere que el
legado se cumpla. Mas para que pueda presumirse esa voluntad, es necesario que
medien actos del testador que la indiquen. Si la perdida del derecho sobre la cosa ha
sido independiente de la voluntad del testador, el legado podraquedar sin efecto, mas
no en virtud del numero 2 del articulo 869, que exige siempre actos voluntarios de
enajenacion por parte del mismo testador.

As observed by the Court of Appeals, the existence of any such change or departure
from the original intent of the testatrix, expressed in her 1930 testament, is rendered
doubtful by the circumstance that the subsequent alienations in 1943 and 1944 were
executed in favor of the legatee herself, appellee Dimagiba. In fact, as found by the
Court of Appeals in its decision annulling these conveyances (affirmed in that point by
this Supreme Court in Reyes vs. Court of Appeals and Dimagiba, L-5618 and L-5620,
promulgated on July 31, 1954), "no consideration whatever was paid by respondent
Dimagiba" on account of the transfers, thereby rendering it even more doubtful
whether in conveying the property to her legatee, the testatrix merely intended to
comply in advance with what she had ordained in her testament, rather than an
alteration or departure therefrom.1Revocation being an exception, we believe, with the
Courts below, that in the circumstances of the particular case, Article 957 of the Civil
Code of the Philippines, does not apply to the case at bar.

Not only that, but even if it were applicable, the annulment of the conveyances would
not necessarily result in the revocation of the legacies, if we bear in mind that the
findings made in the decision decreeing the annulment of the subsequent 1943 and
1944 deeds of sale were also that

it was the moral influence, originating from their confidential relationship, which was
the only cause for the execution of Exhs. A and B (the 1943 and 1944 conveyances).
(Decision, L-5618 and L-5620).

If the annulment was due to undue influence, as the quoted passage implies, then the
transferor was not expressing her own free will and intent in making the conveyances.
Hence, it can not be concluded, either, that such conveyances established a decision
on her part to abandon the original legacy.

True it is that the legal provision quoted prescribes that the recovery of the alienated
property "even if it be by reason of the nullity of the contract" does not revive the
legacy; but as pointed out by Scaevola (Codigo Civil, Vol. XV, 4th Ed., pp. 324-325) the
"nullity of the contract" can not be taken in an absolute sense.2 Certainly, it could not
be maintained, for example, that if a testator's subsequent alienation were avoided
because the testator was mentally deranged at the time, the revocatory effect ordained
by the article should still ensue. And the same thing could be said if the alienation
(posterior to the will) were avoided on account of physical or mental duress. Yet, an
alienation through undue influence in no way differs from one made through violence or
intimidation. In either case, the transferor is not expressing his real intent,3 and it can
not be held that there was in fact an alienation that could produce a revocation of the
anterior bequest.

In view of the foregoing considerations, the appealed decision of the Court of Appeals is
hereby affirmed. Costs against appellants Reyes and Fernandez. So ordered.

CASE DIGESTED

Fernandez v. Dimagiba

Facts:

Ismaela Dimagiba filed a petition for probate of the will of Benedicta de los Reyes. Such
petition was opposed by Dionisio Fernandez, et al. The court ruled in favor of probate.
Fernandez et al appealed, but it was beyond the reglamentary period. They argued that
they were entitled to await the other grounds for opposition before appealing.

Issue: Whether the probate of the will become final for lack of appeal

Ruling: Yes. A probate decree finally and definitively settles all questions concerning
capacity of the testator and the proper execution and witnessing of the will. As such,
probate order is final and appealable. They do not have to await the resolution of its
other oppositions since the Rules of Court enumerates six different instances when
appeal may be taken in special proceedings.
G.R. No. L-23445 June 23, 1966

REMEDIOS NUGUID, petitioner and appellant,

vs.
FELIX NUGUID and PAZ SALONGA NUGUID, oppositors and appellees.

Custodio O. Partade for petitioner and appellant.

Beltran, Beltran and Beltran for oppositors and appellees.

SANCHEZ, J.:

Rosario Nuguid, a resident of Quezon City, died on December 30, 1962, single, without
descendants, legitimate or illegitimate. Surviving her were her legitimate parents, Felix
Nuguid and Paz Salonga Nuguid, and six (6) brothers and sisters, namely: Alfredo,
Federico, Remedios, Conrado, Lourdes and Alberto, all surnamed Nuguid.

On May 18, 1963, petitioner Remedios Nuguid filed in the Court of First Instance of Rizal
a holographic will allegedly executed by Rosario Nuguid on November 17, 1951, some
11 years before her demise. Petitioner prayed that said will be admitted to probate and
that letters of administration with the will annexed be issued to her.

On June 25, 1963, Felix Nuguid and Paz Salonga Nuguid, concededly the legitimate
father and mother of the deceased Rosario Nuguid, entered their opposition to the
probate of her will. Ground therefor, inter alia, is that by the institution of petitioner
Remedios Nuguid as universal heir of the deceased, oppositors who are compulsory
heirs of the deceased in the direct ascending line were illegally preterited and that in
consequence the institution is void.

On August 29, 1963, before a hearing was had on the petition for probate and objection
thereto, oppositors moved to dismiss on the ground of absolute preterition.

On September 6, 1963, petitioner registered her opposition to the motion to

dismiss.1wph1.t

The court's order of November 8, 1963, held that "the will in question is a complete
nullity and will perforce create intestacy of the estate of the deceased Rosario Nuguid"
and dismissed the petition without costs.

A motion to reconsider having been thwarted below, petitioner came to this Court on
appeal.
1. Right at the outset, a procedural aspect has engaged our attention. The case is for
the probate of a will. The court's area of inquiry is limited to an examination of, and
resolution on, the extrinsic validity of the will. The due execution thereof, the testatrix's
testamentary capacity, and the compliance with the requisites or solemnities by law
prescribed, are the questions solely to be presented, and to be acted upon, by the
court. Said court at this stage of the proceedings is not called upon to rule on
the intrinsic validity or efficacy of the provisions of the will, the legality of any devise or
legacy therein.1

A peculiar situation is here thrust upon us. The parties shunted aside the question of
whether or not the will should be allowed probate. For them, the meat of the case is the
intrinsic validity of the will. Normally, this comes only after the court has declared that
the will has been duly authenticated.2 But petitioner and oppositors, in the court below
and here on appeal, travelled on the issue of law, to wit: Is the will intrinsically a nullity?

We pause to reflect. If the case were to be remanded for probate of the will, nothing will
be gained. On the contrary, this litigation will be protracted. And for aught that appears
in the record, in the event of probate or if the court rejects the will, probability exists
that the case will come up once again before us on the same issue of the intrinsic
validity or nullity of the will. Result: waste of time, effort, expense, plus added anxiety.
These are the practical considerations that induce us to a belief that we might as well
meet head-on the issue of the validity of the provisions of the will in question.3 After all,
there exists a justiciable controversy crying for solution.

2. Petitioner's sole assignment of error challenges the correctness of the conclusion

below that the will is a complete nullity. This exacts from us a study of the disputed will
and the applicable statute.

Reproduced hereunder is the will:

Nov. 17, 1951

I, ROSARIO NUGUID, being of sound and disposing mind and memory, having amassed
a certain amount of property, do hereby give, devise, and bequeath all of the property
which I may have when I die to my beloved sister Remedios Nuguid, age 34, residing
with me at 38-B Iriga, Q.C. In witness whereof, I have signed my name this seventh day
of November, nineteen hundred and fifty-one.

(Sgd.) Illegible

T/ ROSARIO NUGUID

The statute we are called upon to apply in Article 854 of the Civil Code which, in part,
provides:

ART. 854. The preterition or omission of one, some, or all of the compulsory heirs in the
direct line, whether living at the time of the execution of the will or born after the death
of the testator, shall annul the institution of heir; but the devises and legacies shall be
valid insofar as they are not inofficious. ...
Except for inconsequential variation in terms, the foregoing is a reproduction of Article
814 of the Civil Code of Spain of 1889, which is similarly herein copied, thus

Art. 814. The preterition of one or all of the forced 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 void
the institution of heir; but the legacies and betterments4 shall be valid, in so far as they
are not inofficious. ...

A comprehensive understanding of the term preterition employed in the law becomes a

necessity. On this point Manresa comments:

La pretericion consiste en omitar al heredero en el testamento. O no se le nombra

siquiera o aun nombrandole como padre, hijo, etc., no se le instituya heredero ni se le
deshereda expresamente ni se le asigna parte alguna de los bienes, resultando privado
de un modo tacito de su derecho a legitima.

Para que exista pretericion, con arreglo al articulo 814, basta que en el testamento
omita el testador a uno cualquiera de aquellos a quienes por su muerte corresponda la
herencia forzosa.

Se necesita, pues, a) Que la omision se refiera a un heredero forzoso. b) Que la omision

sea completa; que el heredero forzoso nada reciba en el testamento.

It may now appear trite bat nonetheless helpful in giving us a clear perspective of the
problem before us, to have on hand a clear-cut definition of the word annul:

To "annul" means to abrogate, to make void ... In re Morrow's Estate, 54 A. 342, 343,
204 Pa. 484.6

The word "annul" as used in statute requiring court to annul alimony provisions of
divorce decree upon wife's remarriage means to reduce to nothing; to annihilate;
obliterate; blot out; to make void or of no effect; to nullify; to abolish. N.J.S.A. 2:50 38
(now N.J.S. 2A:34-35). Madden vs. Madden, 40 A. 2d 611, 614, 136 N..J Eq. 132.7

ANNUL. To reduce to nothing; annihilate; obliterate; to make void or of no effect; to

nullify; to abolish; to do away with. Ex parte Mitchell, 123 W. Va. 283, 14 S.E. 2d. 771,
774.8

And now, back to the facts and the law. The deceased Rosario Nuguid left no
descendants, legitimate or illegitimate. But she left forced heirs in the direct ascending
line her parents, now oppositors Felix Nuguid and Paz Salonga Nuguid. And, the will
completely omits both of them: They thus received nothing by the testament; tacitly,
they were deprived of their legitime; neither were they expressly disinherited. This is a
clear case of preterition. Such preterition in the words of Manresa "anulara siempre la
institucion de heredero, dando caracter absoluto a este ordenamiento referring to the
mandate of Article 814, now 854 of the Civil Code.9 The one-sentence will here
institutes petitioner as the sole, universal heir nothing more. No specific legacies or
bequests are therein provided for. It is in this posture that we say that the nullity is
complete. Perforce, Rosario Nuguid died intestate. Says Manresa:
En cuanto a la institucion de heredero, se anula. Lo que se anula deja de existir, en
todo o en parte? No se aade limitacion alguna, como en el articulo 851, en el que se
expresa que se anulara la institucion de heredero en cuanto prejudique a la legitima del
deseheredado Debe, pues, entenderse que la anulacion es completa o total, y que este
articulo como especial en el caso que le motiva rige con preferencia al 817. 10

The same view is expressed by Sanchez Roman:

La consecuencia de la anulacion o nulidad de la institucion de heredero por pretericion

de uno, varios o todos los forzosos en linea recta, es la apertura de la sucesion
intestada total o parcial. Sera total, cuando el testador que comete la pretericion,
hubiese dispuesto de todos los bienes por titulo universal de herencia en favor de los
herederos instituidos, cuya institucion se anula, porque asi lo exige la generalidad del
precepto legal del art. 814, al determinar, como efecto de la pretericion, el de que
"anulara la institucion de heredero." ... 11

Really, as we analyze the word annul employed in the statute, there is no escaping the
conclusion that the universal institution of petitioner to the entire inheritance results
in totally abrogating the will. Because, the nullification of such institution of universal
heir without any other testamentary disposition in the will amounts to a
declaration that nothing at all was written. Carefully worded and in clear terms, Article
854 offers no leeway for inferential interpretation. Giving it an expansive meaning will
tear up by the roots the fabric of the statute. On this point, Sanchez Roman cites the
"Memoria annual del Tribunal Supreme, correspondiente a 1908", which in our opinion
expresses the rule of interpretation, viz:

... El art. 814, que preceptua en tales casos de pretericion la nulidad de la institucion de
heredero, no consiente interpretacion alguna favorable a la persona instituida en el
sentido antes expuesto aun cuando parezca, y en algun caso pudiera ser, mas o menos
equitativa, porque una nulidad no significa en Derecho sino la suposicion de que el
hecho o el acto no se ha realizado, debiendo por lo tanto procederse sobre tal base o
supuesto, y consiguientemente, en un testamento donde falte la institucion, es
obligado llamar a los herederos forzosos en todo caso, como habria que llamar a los de
otra clase, cuando el testador no hubiese distribudo todos sus bienes en legados,
siendo tanto mas obligada esta consecuencia legal cuanto que, en materia de
testamentos, sabido es, segun tiene declarado la jurisprudencia, con repeticion, que no
basta que sea conocida la voluntad de quien testa si esta voluntad no aparece en la
forma y en las condiciones que la ley ha exigido para que sea valido y eficaz, por lo que
constituiria una interpretacion arbitraria, dentro del derecho positivo, reputar como
legatario a un heredero cuya institucion fuese anulada con pretexto de que esto se
acomodaba mejor a la voluntad del testador, pues aun cuando asi fuese, sera esto
razon para modificar la ley, pero no autoriza a una interpretacion contraria a sus
terminos y a los principios que informan la testamentifaccion, pues no porque parezca
mejor una cosa en el terreno del Derecho constituyente, hay razon para convereste
juicio en regla de interpretacion, desvirtuando y anulando por este procedimiento lo
que el legislador quiere establecer. 12

3. We should not be led astray by the statement in Article 854 that, annullment
notwithstanding, "the devises and legacies shall be valid insofar as they are not
inofficious". Legacies and devises merit consideration only when they are so expressly
given as such in a will. Nothing in Article 854 suggests that the mere institution of a
universal heir in a will void because of preterition would give the heir so instituted
a share in the inheritance. As to him, the will is inexistent. There must be, in addition to
such institution, a testamentary disposition granting him bequests or legacies apart
and separate from the nullified institution of heir. Sanchez Roman, speaking of the two
component parts of Article 814, now 854, states that preterition annuls the institution
of the heir "totalmente por la pretericion"; but added (in reference to legacies and
bequests) "pero subsistiendo ... todas aquellas otras disposiciones que no se refieren a
la institucion de heredero ... . 13 As Manresa puts it, annulment throws open to
intestate succession the entire inheritance including "la porcion libre (que) no hubiese
dispuesto en virtud de legado, mejora o donacion. 14

As aforesaid, there is no other provision in the will before us except the institution of
petitioner as universal heir. That institution, by itself, is null and void. And, intestate
succession ensues.

4. Petitioner's mainstay is that the present is "a case of ineffective disinheritance rather
than one of preterition". 15From this, petitioner draws the conclusion that Article 854
"does not apply to the case at bar". This argument fails to appreciate the distinction
between pretention and disinheritance.

Preterition "consists in the omission in the testator's will of the forced heirs or anyone
of them, either because they are not mentioned therein, or, though mentioned, they
are neither instituted as heirs nor are expressly disinherited." 16 Disinheritance, in turn,
"is a testamentary disposition depriving any compulsory heir of his share in
the legitime for a cause authorized by law. " 17 In Manresa's own words: "La privacion
expresa de la legitima constituye la desheredacion. La privacion tacita de la misma se
denomina pretericion." 18 Sanchez Roman emphasizes the distinction by stating that
disinheritance "es siempre voluntaria"; preterition, upon the other hand, is presumed to
be "involuntaria". 19 Express as disinheritance should be, the same must be supported
by a legal cause specified in the will itself. 20

The will here does not explicitly disinherit the testatrix's parents, the forced heirs. It
simply omits their names altogether. Said will rather than be labeled ineffective
disinheritance is clearly one in which the said forced heirs suffer from preterition.

On top of this is the fact that the effects flowing from preterition are totally different
from those of disinheritance. Preterition under Article 854 of the Civil Code, we repeat,
"shall annul the institution of heir". This annulment is in toto, unless in the will there
are, in addition, testamentary dispositions in the form of devises or legacies. In
ineffective disinheritance under Article 918 of the same Code, such disinheritance shall
also "annul the institution of heirs", put only "insofar as it may prejudice the person
disinherited", which last phrase was omitted in the case of preterition. 21 Better stated
yet, in disinheritance the nullity is limited to that portion of the estate of which the
disinherited heirs have been illegally deprived. Manresa's expressive language, in
commenting on the rights of the preterited heirs in the case of preterition on the one
hand and legal disinheritance on the other, runs thus: "Preteridos, adquiren el derecho
a todo; desheredados, solo les corresponde un tercio o dos tercios, 22 el caso.23
5. Petitioner insists that the compulsory heirs ineffectively disinherited are entitled to
receive their legitimes, but that the institution of heir "is not invalidated," although the
inheritance of the heir so instituted is reduced to the extent of said legitimes. 24

This is best answered by a reference to the opinion of Mr. Chief Justice Moran in
the Neri case heretofore cited,viz:

But the theory is advanced that the bequest made by universal title in favor of the
children by the second marriage should be treated as legado and mejora and,
accordingly, it must not be entirely annulled but merely reduced. This theory, if
adopted, will result in a complete abrogation of Articles 814 and 851 of the Civil Code. If
every case of institution of heirs may be made to fall into the concept of legacies and
betterments reducing the bequest accordingly, then the provisions of Articles 814 and
851 regarding total or partial nullity of the institution, would. be absolutely meaningless
and will never have any application at all. And the remaining provisions contained in
said article concerning the reduction of inofficious legacies or betterments would be a
surplusage because they would be absorbed by Article 817. Thus, instead of construing,
we would be destroying integral provisions of the Civil Code.

The destructive effect of the theory thus advanced is due mainly to a failure to
distinguish institution of heirs from legacies and betterments, and a general from a
special provision. With reference to article 814, which is the only provision material to
the disposition of this case, it must be observed that the institution of heirs is therein
dealt with as a thing separate and distinct from legacies or betterments. And they are
separate and distinct not only because they are distinctly and separately treated in said
article but because they are in themselves different. Institution of heirs is a bequest by
universal title of property that is undetermined. Legacy refers to specific property
bequeathed by a particular or special title. ... But again an institution of heirs cannot be
taken as a legacy. 25

The disputed order, we observe, declares the will in question "a complete nullity".
Article 854 of the Civil Code in turn merely nullifies "the institution of heir". Considering,
however, that the will before us solely provides for the institution of petitioner as
universal heir, and nothing more, the result is the same. The entire will is null.

Upon the view we take of this case, the order of November 8, 1963 under review is hereby
affirmed. No costs allowed. So ordered.
G.R. No. 106720 September 15, 1994

SPOUSES ROBERTO AND THELMA AJERO, petitioners,

vs.
THE COURT OF APPEALS AND CLEMENTE SAND, respondents.

Miguel D. Larida for petitioners.

Montilla Law Office for private respondent.

PUNO, J.:

This is an appeal by certiorari from the Decision of the Court of

Appeals 1 in CA-G.R. CV No. 22840, dated March 30, 1992, the dispositive portion of
which reads;

PREMISES CONSIDERED, the questioned decision of November 19, 1988 of the trial
court is hereby REVERSED and SET ASIDE, and the petition for probate is hereby
DISMISSED. No costs.

The earlier Decision was rendered by the RTC of Quezon City, Branch 94, 2 in Sp. Proc.
No. Q-37171, and the instrument submitted for probate is the holographic will of the
late Annie Sand, who died on November 25, 1982.

In the will, decedent named as devisees, the following: petitioners Roberto and Thelma
Ajero, private respondent Clemente Sand, Meriam S. Arong, Leah Sand, Lilia Sand,
Edgar Sand, Fe Sand, Lisa S. Sand, and Dr. Jose Ajero, Sr., and their children.

On January 20, 1983, petitioners instituted Sp. Proc. No. Q-37171, for allowance of
decedent's holographic will. They alleged that at the time of its execution, she was of
sound and disposing mind, not acting under duress, fraud or undue influence, and was
in every respect capacitated to dispose of her estate by will.

Private respondent opposed the petition on the grounds that: neither the testament's
body nor the signature therein was in decedent's handwriting; it contained alterations
and corrections which were not duly signed by decedent; and, the will was procured by
petitioners through improper pressure and undue influence. The petition was likewise
opposed by Dr. Jose Ajero. He contested the disposition in the will of a house and lot
located in Cabadbaran, Agusan Del Norte. He claimed that said property could not be
conveyed by decedent in its entirety, as she was not its sole owner.
Notwithstanding the oppositions, the trial court admitted the decedent's holographic
will to probate. It found, inter alia:

Considering then that the probate proceedings herein must decide only the question of
identity of the will, its due execution and the testamentary capacity of the testatrix, this
probate court finds no reason at all for the disallowance of the will for its failure to
comply with the formalities prescribed by law nor for lack of testamentary capacity of
the testatrix.

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

xxx xxx xxx

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

xxx xxx xxx

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

Clemente Sand himself has testified in Court that the testatrix was completely in her
sound mind when he visited her during her birthday celebration in 1981, at or around
which time the holographic will in question was executed by the testatrix. To be of
sound mind, it is sufficient that the testatrix, at the time of making the will, knew
the value of the estate to be disposed of, the proper object of her bounty, and
thecharacter of the testamentary act . . . The will itself shows that the testatrix even
had detailed knowledge of the nature of her estate. She even identified the lot number
and square meters of the lots she had conveyed by will. The objects of her bounty were
likewise identified explicitly. And considering that she had even written a nursing book
which contained the law and jurisprudence on will and succession, there is more than
sufficient showing that she knows the character of the testamentary act.

In this wise, the question of identity of the will, its due execution and the testamentary
capacity of the testatrix has to be resolved in favor of the allowance of probate of the
will submitted herein.
Likewise, no evidence was presented to show sufficient reason for the disallowance of
herein holographic will. While it was alleged that the said will was procured by undue
and improper pressure and influence on the part of the beneficiary or of some other
person, the evidence adduced have not shown any instance where improper pressure
or influence was exerted on the testatrix. (Private respondent) Clemente Sand has
testified that the testatrix was still alert at the time of the execution of the will, i.e., at
or around the time of her birth anniversary celebration in 1981. It was also established
that she is a very intelligent person and has a mind of her own. Her independence of
character and to some extent, her sense of superiority, which has been testified to in
Court, all show the unlikelihood of her being unduly influenced or improperly pressured
to make the aforesaid will. It must be noted that the undue influence or improper
pressure in question herein only refer to the making of a will and not as to the specific
testamentary provisions therein which is the proper subject of another proceeding.
Hence, under the circumstances, this Court cannot find convincing reason for the
disallowance of the will herein.

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

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

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

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

Art. 814: In case of insertion, cancellation, erasure or alteration in a holographic will,

the testator must authenticate the same by his full signature.

It alluded to certain dispositions in the will which were either unsigned and undated, or
signed but not dated. It also found that the erasures, alterations and cancellations
made thereon had not been authenticated by decedent.

Thus, this appeal which is impressed with merit.

Section 9, Rule 76 of the Rules of Court provides that will shall be disallowed in any of
the following cases:

(a) If not executed and attested as required by law;

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

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

(d) If it was procured by undue and improper pressure and influence, on the part of the
beneficiary, or of some other person for his benefit;

(e) If the signature of the testator was procured by fraud or trick, and he did not intend
that the instrument should be his will at the time of fixing his signature thereto.

In the same vein, Article 839 of the New Civil Code reads:

Art. 839: The will shall be disallowed in any of the following cases;

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

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

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

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

(5) If the signature of the testator was procured by fraud;

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

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

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

We reiterate what we held in Abangan vs. Abangan, 40 Phil. 476, 479 (1919), that:

The object of the solemnities surrounding the execution of wills is to close the door
against bad faith and fraud, to avoid substitution of wills and testaments and to
guaranty their truth and authenticity. Therefore, the laws on this subject should be
interpreted in such a way as to attain these primordial ends. But, on the other hand,
also one must not lose sight of the fact that it is not the object of the law to restrain
and curtail the exercise of the right to make a will. So when an interpretation already
given assures such ends, any other interpretation whatsoever, that adds nothing but
demands more requisites entirely unnecessary, useless and frustrative of the testator's
last will, must be disregarded.
For purposes of probating non-holographic wills, these formal solemnities include the
subscription, attestation, and acknowledgment requirements under Articles 805 and
806 of the New Civil Code.

In the case of holographic wills, on the other hand, what assures authenticity is the
requirement that they be totally autographic or handwritten by the testator
himself, 7 as provided under Article 810 of the New Civil Code, thus:

A person may execute a holographic will which must be entirely written, dated, and
signed by the hand of the testator himself. It is subject to no other form, and may be
made in or out of the Philippines, and need not be witnessed. (Emphasis supplied.)

Failure to strictly observe other formalities will not result in the disallowance of a
holographic will that is unquestionably handwritten by the testator.

A reading of Article 813 of the New Civil Code shows that its requirement affects the
validity of the dispositions contained in the holographic will, but not its probate. If the
testator fails to sign and date some of the dispositions, the result is that these
dispositions cannot be effectuated. Such failure, however, does not render the whole
testament void.

Likewise, a holographic will can still be admitted to probate, notwithstanding non-

compliance with the provisions of Article 814. In the case of Kalaw vs. Relova 132 SCRA
237 242 (1984), this Court held:

Ordinarily, when a number of erasures, corrections, and interlineations made by the

testator in a holographic Will have not been noted under his signature, . . . the Will is
not thereby invalidated as a whole, but at most only as respects the particular words
erased, corrected or interlined. Manresa gave an identical commentary when he said
"la omission de la salvedad no anula el testamento, segun la regla de jurisprudencia
establecida en la sentencia de 4 de Abril de 1985." 8 (Citations omitted.)

Thus, unless the unauthenticated alterations, cancellations or insertions were made on

the date of the holographic will or on testator's signature, 9 their presence does not
invalidate the will itself. 10 The lack of authentication will only result in disallowance of
such changes.

It is also proper to note that the requirements of authentication of changes and signing
and dating of dispositions appear in provisions (Articles 813 and 814) separate from
that which provides for the necessary conditions for the validity of the holographic will
(Article 810). The distinction can be traced to Articles 678 and 688 of the Spanish Civil
Code, from which the present provisions covering holographic wills are taken. They read
as follows:

Art. 678: A will is called holographic when the testator writes it himself in the form and
with the requisites required in Article 688.

Art. 688: Holographic wills may be executed only by persons of full age.
In order that the will be valid it must be drawn on stamped paper corresponding to the
year of its execution, written in its entirety by the testator and signed by him, and must
contain a statement of the year, month and day of its execution.

If it should contain any erased, corrected, or interlined words, the testator must identify
them over his signature.

Foreigners may execute holographic wills in their own language.

This separation and distinction adds support to the interpretation that only the
requirements of Article 810 of the New Civil Code and not those found in Articles 813
and 814 of the same Code are essential to the probate of a holographic will.

The Court of Appeals further held that decedent Annie Sand could not validly dispose of
the house and lot located in Cabadbaran, Agusan del Norte, in its entirety. This is
correct and must be affirmed.

As a general rule, courts in probate proceedings are limited to pass only upon the
extrinsic validity of the will sought to be probated. However, in exceptional instances,
courts are not powerless to do what the situation constrains them to do, and pass upon
certain provisions of the will. 11 In the case at bench, decedent herself indubitably
stated in her holographic will that the Cabadbaran property is in the name of her late
father, John H. Sand (which led oppositor Dr. Jose Ajero to question her conveyance of
the same in its entirety). Thus, as correctly held by respondent court, she cannot validly
dispose of the whole property, which she shares with her father's other heirs.

IN VIEW WHEREOF, the instant petition is GRANTED. The Decision of the Court of
Appeals in CA-G.R. CV No. 22840, dated March 30, 1992, is REVERSED and SET ASIDE,
except with respect to the invalidity of the disposition of the entire house and lot in
Cabadbaran, Agusan del Norte. The Decision of the Regional Trial Court of Quezon City,
Branch 94 in Sp. Proc. No. Q-37171, dated November 19, 1988, admitting to probate
the holographic will of decedent Annie Sand, is hereby REINSTATED, with the above
qualification as regards the Cabadbaran property. No costs.

SO ORDERED.
G.R. No. 77047 May 28, 1988

JOAQUINA R-INFANTE DE ARANZ, ANTONIO R-INFANTE, CARLOS R. INFANTE, MERCEDES

R-INFANTE DE LEDNICKY, ALFREDO R-INFANTE, TERESITA R-INFANTE, RAMON R-INFANTE,
FLORENCIA R-INFANTE DE DIAS, MARTIN R-INFANTE, JOSE R-INFANTE LINK and JOAQUIN
R-INFANTE CAMPBELL, petitioners,
vs.
THE HON. NICOLAS GALING, PRESIDING JUDGE, REGIONAL TRIAL COURT, NATIONAL
CAPITAL JUDICIAL REGION, BRANCH NO. 166, PASIG, METRO MANILA AND JOAQUIN R-
INFANTE, respondents.

Belo, Abiera and Associates for petitioners.

Miguel J. Lagman for respondents.

PADILLA, J.:

This is a petition for review on certiorari of the decision 1 of the Court of Appeals, dated
13 January 1987, in CA-G.R. SP No. 09622, entitled "Joaquina R-Infante de Aranz, et al.,
petitioners vs. Hon. Nicolas Galing, etc., et al., respondents," dismissing petitioners'
petition for certiorari and prohibition as-, sailing the orders 2 of the Regional Trial Court
of Pasig, Branch 166, dated 12 May 1986 and 30 May 1986, respectively, in Sp. Proc.
No. 9995, entitled, "In the Matter of Petition for Approval of the Last Will and Testament
of Montserrat R-Infante y G-Pola Joaquin R. Infante, Petitioner."

On 3 March 1986, private respondent filed with the Regional Trial Court of Pasig, Branch
166, a petition for the probate and allowance of the last will and testament of the late
Montserrat R-Infante y G-Pola The petition specified the names and ad- dresses of
herein petitioners as legatees and devisees, as follows:

Joaquina R-Infante Roxas de Aranz residing at No. 86 10th St., New Manila, Quezon City,
Metro Manila;

Antonio R-Infante Roxas residing at #91 Cambridge, North Forbes, Makati, Metro
Manila;
Carlos R-Infante Roxas residing at #46 Washington St., Greenhills, San Juan, Metro
Manila;

Mercedes R-Infante Roxas de Lednicky residing at #386 P. Guevarra St., San Juan, Metro
Manila;

Alfredo R-Infante Roxas residing at #27 A Scout Tobias St., Quezon City, Metro Manila;

Teresita R-Infante Roxas residing at #121 9th Street, New Manila, Quezon City, Metro
Manila;

Ramon R-Infante Roxas residing at #27 B Scout Tobias St., Quezon City, Metro Manila;

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

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

Jose R-Infante Link residing at 174R-Pascual St., San Juan, Metro Manila;

Joaquin R-Infante Campbell C/O Pilar Campbell, 15 Briones, Makati, Metro Marta. 3

On 12 March 1986, the probate court issued an order selling the petition for hearing on
5 May 1986 at 8:30 o'clock in the morning. Said order was published in the "Nueva Era"
A newspaper of general circulation in Metro Manila once a week for three (3)
consecutive weeks. On the date of the hearing, no oppositor appeared. The hearing
was then reset to 12 May 1986, on which date, the probate court issued the following
order:

There being no opposition to this instant case, as prayed for, the oner to-receive Branch
Clerk of Court is hereby designated Co evidence ex-parte of the petitioner.

SO ORDERED. 4

On the same day (12 May 1986), private respondent presented his evidence ex-
parte and placed Arturo Arceo one of the testamentary witnesses, on the witness stand.
During the proceedings, private respondent was appointed executor.

On 14 May 1986, petitioners filed a motion for reconsideration of the order of 12 May
1986 alleging that, as named legatees, no notices were sent to them as required by
Sec. 4, Rule 76 of the Rules of Court and they prayed that they be given a period of ten
(10) days within which to file their opposition to the probate of the will.

On 30 May 1986, the probate court, acting on the opposition of private respondent and
the reply thereto of petitioners, issued an order denying petitioners motion for
reconsideration.

Thereafter, petitioners filed with this Court a petition for certiorari and prohibition which
was, however, referred to the Court of Appeals. On 13 January 1987, the Court of
Appeals promulgated a decision dismissing the petition. 5Hence, the instant petition.
It is the view of petitioners that the Court of Appeals erred in holding that personal
notice of probate proceedings to the known legatees and devisees is not a jurisdictional
requirement in the probate of a will. Contrary to the holding of the Court of Appeals
that the requirement of notice on individual heirs, legatees and devisees is merely a
matter of procedural convenience to better satisfy in some instances the requirements
of due process, petitioners allege that under Sec. 4 of Rule 76 of the Rules of Court,
said requirement of the law is mandatory and its omission constitutes a reversible error
for being constitutive of grave abuse of discretion. 6

We grant the petition:

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

SEC. 4. Heirs, devisees, legatees, and executors to be notified by mail or personally.

The court shag also cause copies of the notice of the time and place fixed for proving
the will to be addressed to the designated or other known heirs, legatees, and devisees
of the testator resident in the Philippines at their places of residence, and deposited in
the post office with the postage thereon prepaid at least twenty (20) days before the
hearing, if such places of residence be known. A copy of the notice must in like manner
be mailed to the person named as executor, if he be not, the petitioner; also, to any
person named as co-executor not petitioning, if their places of residence be known.
Personal service of copies of the notice at least ten (10) days before the day of hearing
shall be equivalent to mailing.

It is clear from the aforecited rule that notice of the time and place of the hearing for
the allowance of a will shall be forwarded to the designated or other known heirs,
legatees, and devisees residing in the Philippines at their places of residence, if such
places of residence be known. There is no question that the residences of herein
petitioners legatees and devisees were known to the probate court. The petition for the
allowance of the wig itself indicated the names and addresses of the legatees and
devisees of the testator. 7 But despite such knowledge, the probate court did not cause
copies of the notice to be sent to petitioners. The requirement of the law for the
allowance of the will was not satisfied by mere publication of the notice of hearing for
three (3) weeks in a newspaper of general circulation in the province.

The case of Joson vs. Nable 8 cited by the Court of Appeals in its assailed decision to
support its theory is not applicable in the present case. In that case, petitioners
Purificacion Joson and Erotica Joson failed to contest the will of Tomas Joson because
they had not been notified of the hearing of the petition for probate. he the petition
included the residence of petitioners as Dagupan Street No. 83, Manila, petitioners
claimed that their residence was not Dagupan Street No. 83, Manila. There the Court
said:

Petitioners maintain that no notice was received by them partly because their residence
was not Dagupan Street No. 83 as alleged in the petition for probate. If the allegation of
the petition was wrong and the true residence of petitioners was not known, then notice
upon them individually was not necessary. Under the provision abovequoted, individual
notice upon heirs, legatees and devisees is necessary only when they are known or
when their places of residence are known. In other instances, such notice is not
necessary and the court may acquire and exercise jurisdiction simply upon the
publication of the notice in a newspaper of general circulation. ... 9

In Re: Testate Estate of Suntay, 10 the Court, speaking thru Mr. Justice Sabino Padilla,
said:

... It is a proceedings in rem and for the validity of such proceedings personal notice or
by publication or both to all interested parties must be made. The interested parties in
the case were known to reside in the Philippines. The evidence shows that no such
notice was received by the interested parties residing in the Philippines (pp. 474, 476,
481, 503-4, t.s.n., hearing of 24 February 1948). The proceedings had in the municipal
district court of Amoy, China, may be likened to a deposition or to a perpetuation of
testimony, and even if it were so it does not measure or come up to the standard of
such proceedings in the Philippines for lack of notice to all interested parties and the
proceedings were held at the back of such interested parties.

xxx xxx xxx

... In view thereof, the will and the alleged probate thereof cannot be said to have been
done in accordance with the accepted basic and fundamental concepts and principles
followed in the probate and allowance of wills. Consequently, the authenticated
transcript of proceedings held in the municipal district court of Amoy, China, cannot be
deemed and accepted as proceedings leading to the probate or allowance of a will and,
therefore, the will referred to therein cannot be allowed, filed and recorded by a
competent court of court. 11

WHEREFORE, the decision of the Court of Appeals dated 13 January 1987 is hereby
ANNULLED and SET ASIDE. The case is hereby ordered remanded to the Regional Trial
Court of Pasig for further proceedings in accordance with this decision. No costs.

SO ORDERED.
 VILMA C. TAN, GERARDO JAKE TAN G.R. No. 166520
and GERALDINE TAN, REPRESENTED
BY EDUARDO NIERRAS,

Petitioners,
Present:

- versus -
YNARES-SANTIAGO, J.,

THE HON. FRANCISCO C. GEDORIO, Chairperson,

JR., IN HIS CAPACITY AS PRESIDING AUSTRIA-MARTINEZ,
JUDGE OF THE REGIONAL TRIAL
COURT, BRANCH 12, ORMOC CITY, CHICO-NAZARIO,
ROGELIO LIM SUGA and HELEN TAN
RACOMA, REPRESENTED BY NACHURA, and
ROMUALDO LIM,
REYES, JJ.
Respondents.

Promulgated:

March 14, 2008

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION
CHICO-NAZARIO, J.:

This is a Petition for Review on Certiorari under Rule 45 of the Rules of Court seeking
the reversal of the Decision[1] dated 29 July 2004 of the Court of Appeals in CA-G.R. SP
No. 79335. The assailed Decision of the Court of Appeals affirmed the
Order[2] dated 17 July 2003 of the Regional Trial Court (RTC) of Ormoc City in SP. PROC.
No. 4014-0 denying reconsideration of its Order dated 12 June 2003 whereby it
appointed Romualdo D. Lim as special administrator to the estate of the late Gerardo
Tan.

The factual and procedural antecedents of this case are as follows:

Gerardo Tan (Gerardo) died on 14 October 2000, leaving no will. On 31 October 2001,
private respondents, who are claiming to be the children of Gerardo Tan, filed with the
RTC a Petition for the issuance of letters of administration. The Petition was docketed as
Special Proceeding No. 4014-0 and was raffled to Branch 12. Petitioners, claiming to be
legitimate heirs of Gerardo Tan, filed an Opposition to the Petition.

Private respondents then moved for the appointment of a special administrator,

asserting the need for a special administrator to take possession and charge of
Gerardos estate until the Petition can be resolved by the RTC or until the appointment
of a regular administrator. They prayed that their attorney-in-fact, Romualdo D. Lim
(Romualdo), be appointed as the special administrator. Petitioners filed an Opposition to
private respondents Motion for Appointment, arguing that none of the private
respondents can be appointed as the special administrator since they are not residing
in the country. Petitioners contend further that Romualdo does not have the same
familiarity, experience or competence as that of their co-petitioner Vilma C. Tan (Vilma)
who was already acting as de facto administratrix of his estate since his death.

On 18 March 2002, Atty. Clinton Nuevo (Nuevo), as court-appointed commissioner,

issued directives to Vilma, in her capacity as de facto administratrix, to wit:

b.1.) requiring the de facto administratrix Ms. Vilma Tan to deposit in the fiduciary
account of the Court all money and or cash at hand or deposited in the bank(s) which
rightfully belong to the estate of the decedent within five (5) days from receipt hereof;

b.2.) requiring the same administratrix to deposit in the same account the proceeds of
all sugarcane harvest or any crop harvest, if any, done in the past or is presently
harvesting or about to undertake, which belong to the estate of the decedent;

b.3.) relative to the foregoing, the same de facto administratrix is also required to
submit a financial report to the Commission as regards the background of the cash at
hand or deposited in bank(s), if any, the expenses incurred in course of her
administration and other relevant facts including that of the proceeds of the
sugarcane/crop harvest, which submission will be done upon deposit of the foregoing
with the court as above-required.[3]

More than a year later or on 23 May 2003, the RTC, acting on the private respondents
Urgent Ex-parte Motion to resolve pending incident, gave Vilma another 10 days to
comply with the directive of Atty. Nuevo. Again, no compliance has been made.
Consequently, on 12 June 2003, RTC Judge Eric F. Menchavez issued an
Order[4] appointing Romualdo as special administrator of Gerardos Estate, the fallo of
which states:

Foregoing considered, the motion for the appointment of a special administrator is

hereby GRANTED. Mr. Romualdo D. Lim is hereby appointed as Special Administrator
and shall immediately 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, upon his filing of a bond in the amount of P50,000.00 and upon
approval of the same by this Court.[5]

Petitioners filed on 19 June 2003 a Motion for Reconsideration of the foregoing Order,
claiming that petitioner Vilma should be the one appointed as special administratix as
she was allegedly next of kin of the deceased.

On 17 July 2003, respondent Judge Francisco Gedorio (Gedorio), in his capacity as RTC
Executive Judge, issued an Order[6] denying petitioners Motion for Reconsideration.

Petitioners instituted with the Court of Appeals a Petition for Certiorari and Prohibition
assailing the 17 July 2003 Order, again insisting on petitioner Vilmas right to be
appointed as special administratix. Petitioners likewise prayed for the issuance of
preliminary injunction and/or temporary restraining order (TRO) to enjoin Romualdo
from entering the estate and acting as special administrator thereof.

On 29 July 2004, the Court of Appeals issued a Decision denying petitioners

Petition. On 6 December 2004, the Court of Appeals similarly denied the ensuing Motion
for Reconsideration filed by petitioners, to wit:

WHEREFORE, in view of all the foregoing premises, judgment is hereby rendered by us

DENYING and DISMISSING the petition filed in this case and AFFIRMING the assailed
order in Special Proceeding No. 4014-0.[7]

On 22 January 2005, petitioners filed the instant Petition for Review

on Certiorari assigning the following errors:

I.

THE COURT OF APPEALS AND THE COURT A QUO BOTH GRIEVOUSLY ERRED IN
DENYING PETITIONERS PLEA TO BE GIVEN PRIMACY IN THE ADMINISTRATION OF THEIR
FATHERS ESTATE.

II.

THE COURT OF APPEALS LIKEWISE ERRED IN DENYING PETITIONERS PLEA FOR THE
ISSUANCE OF A WRIT OF PRELIMINARY INJUNCTION AND/OR A TEMPORARY
RESTRAINING ORDER AGAINST PRIVATE RESPONDENTS AND THEIR ATTORNEY-IN-FACT.
[8]

On 14 February 2005, this Court issued a Resolution[9] denying the Petition on the
ground of late filing, failure to submit an affidavit of service of a copy of the Petition on
the Court of Appeals and proof of such service, failure to properly verify the Petition,
and failure to pay the deposit for the Salary Adjustment for the Judiciary (SAJ) fund and
sheriffs fee. Upon Motion for Reconsideration filed by petitioners, however, this Court
issued on 18 July 2005 a Resolution[10] reinstating the Petition.

Petitioners contend[11] that they should be given priority in the administration of the
estate since they are allegedly the legitimate heirs of the late Gerardo, as opposed to
private respondents, who are purportedly Gerardos illegitimate children. Petitioners rely
on the doctrine that generally, it is the nearest of kin, whose interest is more
preponderant, who is preferred in the choice of administrator of the decedents estate.

Petitioners also claim that they are more competent than private respondents or their
attorney-in-fact to administer Gerardos estate. Petitioners Vilma and Gerardo Jake Tan
(Jake) claim to have lived for a long time and continue to reside on Gerardos estate,
while respondents are not even in the Philippines, having long established residence
abroad.

Petitioners additionally claim that petitioner Vilma has been acting as the
administratrix of the estate since Gerardos death on 14 October 2000 and is thus well
steeped in the actual management and operation of the estate (which essentially
consists of agricultural landholdings).[12]

As regards the denial of petitioners plea for the issuance of a Writ of Preliminary
Injunction and/or TRO, petitioners argue that such denial would leave Romualdo,
private respondents attorney-in-fact, free to enter Gerardos estate and proceed to act
as administrator thereof to the prejudice of petitioners.

The appeal is devoid of merit.

The order of preference petitioners speak of is found in Section 6, Rule 78 of the Rules
of Court, which provides:

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, this Court has consistently ruled that the order of preference in the
appointment of a regular administrator as provided in the afore-quoted provision does
not apply to the selection of a special administrator.[13] The preference under Section
6, Rule 78 of the Rules of Court for the next of kin refers to the appointment of a regular
administrator, and not of a special administrator, as the appointment of the latter lies
entirely in the discretion of the court, and is not appealable.[14]

Not being appealable, the only remedy against the appointment of a special
administrator is Certiorari under Rule 65 of the Rules of Court, which was what
petitioners filed with the Court of Appeals. Certiorari, however, requires nothing less
than grave abuse of discretion, a term which implies such capricious and whimsical
exercise of judgment which is equivalent to an excess or lack of jurisdiction. The abuse
of discretion must be so patent and gross as to amount to an evasion of a positive duty
or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of
law.[15]

We agree with the Court of Appeals that there was no grave abuse of discretion on the
part of respondent Judge Gedorio in affirming Judge Menchavezs appointment of
Romualdo as special administrator. Judge Menchavez clearly considered petitioner
Vilma for the position of special administratrix of Gerardos estate, but decided against
her appointment for the following reasons:

Atty. Clinton C. Nuevo, in his capacity as court appointed commissioner, directed

oppositor Vilma Tan in the latters capacity as de fact[o] administratrix, to deposit in the
fiduciary account of the court all money and cash at hand or deposited in the banks
which rightfully belong to the estate within five days from receipt of the
directive. Oppositor Vilma Tan was likewise directed to deposit in the same account the
proceeds of all sugarcane harvest or any crop from the estate of the decedent. She was
likewise directed to submit a financial report as regards the background of the cash on
hand, if any, the expenses incurred in the course of her administration. The directive
was issued by Atty. Nuevo on March 18, 2002 or more than a year ago. OnMay 23,
2003, this Court, acting on the urgent ex parte motion to resolve pending incident,
gave Vilma Tan another ten days to comply with the directive of Atty. Nuevo. Again, no
compliance has been made.

This Court is called upon to preserve the estate of the late Gerardo Tan for the benefit
of all heirs be that heir is (sic) the nearest kin or the farthest kin. The actuation of
oppositor Vilma Tan does not satisfy the requirement of a special administrator who can
effectively and impartially administer the estate of Gerardo Tan for the best interest of
all the heirs.[16](Emphases supplied.)

Assuming for the sake of argument that petitioner Vilma is indeed better suited for the
job as special administratrix, as opposed to Romualdo, who was actually appointed by
the court as special administrator of Gerardos estate, the latters appointment, at best,
would constitute a mere error of judgment and would certainly not be grave abuse of
discretion. An error of judgment is one which the court may commit in the exercise of
its jurisdiction, and which error is reviewable only by an appeal. On the other hand, an
error of jurisdiction is one in which the act complained of was issued by the court,
officer or a quasi-judicial body without or in excess of jurisdiction, or with grave abuse
of discretion which is tantamount to lack or excess of jurisdiction.[17] The Court of
Appeals could not have reversed a mere error of judgment in a Certiorari petition.
 Furthermore, petitioners were not able to sufficiently substantiate their claim that their
co-petitioner Vilma would have been the more competent and capable choice to serve
as the special administratrix of Gerardos estate. Contrary to petitioners bare assertions,
both the RTC and the Court of Appeals found that the documented failure of petitioner
Vilma to comply with the reportorial requirements after the lapse of a considerable
length of time certainly militates against her appointment.

We find immaterial the fact that private respondents reside abroad, for the same
cannot be said as regards their attorney-in-fact, Romualdo, who is, after all, the person
appointed by the RTC as special administrator. It is undisputed that Romualdo resides in
the country and can, thus, personally administer Gerardos estate.

If petitioners really desire to avail themselves of the order of preference provided in

Section 6, Rule 78 of the Rules of Court, so that petitioner Vilma as the supposed next
of kin of the late Gerardo may take over administration of Gerardos estate, they should
already pursue the appointment of a regular administrator and put to an end the delay
which necessitated the appointment of a special administrator. The appointment of a
special administrator is justified only when there is delay in granting letters,
testamentary (in case the decedent leaves behind a will) or administrative (in the event
that the decedent leaves behind no will, as in the Petition at bar) occasioned by any
cause.[18] The principal object of the appointment of a temporary administrator is to
preserve the estate until it can pass into the hands of a person fully authorized to
administer it for the benefit of creditors and heirs.[19]

In the case at bar, private respondents were constrained to move for the appointment
of a special administrator due to the delay caused by the failure of petitioner Vilma to
comply with the directives of the court-appointed commissioner. It would certainly be
unjust if petitioner Vilma were still appointed special administratix, when the necessity
of appointing one has been brought about by her defiance of the lawful orders of the
RTC or its appointed officials. Petitioners submit the defense that petitioner Vilma was
unable to comply with the directives of the RTC to deposit with the court the income of
Gerardos estate and to provide an accounting thereof because of the fact that Gerardos
estate had no income. This defense is clearly specious and insufficient justification for
petitioner Vilmas non-compliance. If the estate truly did not have any income,
petitioners should have simply filed a manifestation to that effect, instead of continuing
to disregard the courts orders.

Finally, as we are now resolving the case in favor of private respondents, there is no
longer any need to discuss petitioners arguments regarding the denial by the appellate
court of their prayer for the issuance of a writ of preliminary injunction and/or TRO.

WHEREFORE, the instant Petition for Review on Certiorari is DENIED. The Decision
dated 29 July 2004 of the Court of Appeals in CA-G.R. SP No. 79335 affirming the Order
dated 17 July 2003 of the Regional Trial Court (RTC) of Ormoc City, in SP. PROC. No.
4014-0 denying reconsideration of its Order dated 12 June 2003, whereby it appointed
Romualdo D. Lim as special administrator of the estate of Gerardo Tan,
is AFFIRMED. Costs against petitioners.

SO ORDERED.