SPECIAL PROCEEDINGS (Atty.
Geraldine Quimosing-Tiu) 1
PRINCIPAL TESTATE PROCEEDING
WHO MAY FILE PETITION
MALOLES v. PHILLIPS
SECOND DIVISION
G.R. No. 129505 January 31, 2000
OCTAVIO S. MALOLES II, petitioner,
vs.
PACITA DE LOS REYES PHILLIPS, respondent.
-----------------------------
G.R. No. 133359 January 31, 2000
OCTAVIO S. MALOLES II, petitioner,
vs.
COURT OF APPEALS, HON. FERNANDO V. GOROSPE, JR., in
his Official Capacity as Presiding Judge of RTC-Makati, Branch
61, and PACITA PHILLIPS as the alleged executrix of the
alleged will of the late Dr. Arturo de Santos, respondents.
MENDOZA, J.:
These are petitions for review on certiorari of the decisions of the
Thirteenth and the Special Eighth Divisions of the Court of Appeals
which ruled that petitioner has no right to intervene in the settlement
of the estate of Dr. Arturo de Santos. The cases were consolidated
considering that they involve the same parties and some of the
issues raised are the same.
The facts which gave rise to these two petitions are as follows:
On July 20, 1995, Dr. Arturo de Santos, Filipino and a resident of
Makati City, filed a petition for probate of his will1 in the Regional
Trial Court, Branch 61, Makati, docketed as Sp. Proc. No. M-4223.
In his petition, Dr. De Santos alleged that he had no compulsory
heirs; that he had named in his will as sole legatee and devisee the
Arturo de Santos Foundation, Inc.; that he disposed by his will his
properties with an approximate value of not less than
P2,000,000.00; and that copies of said will were in the custody of the
named executrix, private respondent Pacita de los Reyes Phillips. A
copy of the will2 was annexed to the petition for probate.
On February 16, 1996, Judge Fernando V. Gorospe, Jr. of RTC-
Makati, Branch 61 issued an order granting the petition and allowing
the will. The order reads:
On 03 August 1995, the Court issued an Order setting the hearing of
the petition on 12 September 1995, at 8:30 o'clock in the morning,
copies of which were served to Arturo de Santos Foundation, Inc.
and Ms. Pacita de los Reyes Phillips (Officer's Return, dated 04
September 1995 attached to the records). When the case was called
for hearing on the date set, no oppositor appeared nor any written
opposition was ever filed and on motion of petitioner, he was
allowed to adduce his evidence in support of the petition.
Petitioner personally appeared before this Court and was placed on
the witness stand and was directly examined by the Court through
"free wheeling" questions and answers to give this Court a basis to
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determine the state of mind of the petitioner when he executed the
subject will. After the examination, the Court is convinced that
petitioner is of sound and disposing mind and not acting on duress,
menace and undue influence or fraud, and that petitioner signed his
Last Will and Testament on his own free and voluntary will and that
he was neither forced nor influenced by any other person in signing
it.
Furthermore, it appears from the petition and the evidence adduced
that petitioner in his lifetime, executed his Last Will and Testament
(Exhs. "A", "A-1", "A-2", "A-4", "A-5") at his residence situated at 9
Bauhinia corner Intsia Streets, Forbes Park, Makati City; said Last
Will and Testament was signed in the presence of his three (3)
witnesses, namely, to wit: Dr. Elpidio Valencia (Exhs. "A-6", "A-7",
"A-8", "A-16", "A-16-A"), Atty. Edward J. Berenguer (Exhs. "A-3", "A-
3-A", "A-9", "A-10", & "A-11"), and Atty. Victoria C. delos Reyes
(Exhs. "A-12", "A-13", "A-14", "A-17", & "A-18"), who in turn, in the
presence of the testator and in the presence of each and all of the
witnesses signed the said Last Will and Testament and duly
notarized before Notary Public Anna Melissa L. Rosario (Exh. "A-
15"); on the actual execution of the Last Will and Testament,
pictures were taken (Exhs. "B" to "B-3").
Petitioner has no compulsory heirs and Arturo de Santos
Foundation, Inc., with address at No. 9 Bauhinia corner Intsia
Streets, Forbes Park, Makati City has been named as sole legatee
and devisee of petitioner's properties, real and personal,
approximately valued at not less than P2 million, Ms. Pacita de los
Reyes Phillips was designated as executor and to serve as such
without a bond.1âwphi1.nêt
From the foregoing facts, the Court finds that the petitioner has
substantially established the material allegations contained in his
petition. The Last Will and Testament having been executed and
attested as required by law; that testator at the time of the execution
of the will was of sane mind and/or not mentally incapable to make a
Will; nor was it executed under duress or under the influence of fear
or threats; that it was in writing and executed in the language known
and understood by the testator duly subscribed thereof and attested
and subscribed by three (3) credible witnesses in the presence of
the testator and of another; that the testator and all the attesting
witnesses signed the Last Will and Testament freely and voluntarily
and that the testator has intended that the instrument should be his
Will at the time of affixing his signature thereto.
WHEREFORE, as prayed for by the petitioner (testator himself) the
petition for the allowance of the Last Will and Testament of Arturo de
Santos is hereby APPROVED and ALLOWED.
Shortly after the probate of his will, Dr. De Santos died on February
26, 1996.
On April 3, 1996, petitioner Octavio S. Maloles II filed a motion for
intervention claiming that, as the only child of Alicia de Santos
(testator's sister) and Octavio L. Maloles, Sr., he was the sole full-
blooded nephew and nearest of kin of Dr. De Santos. He likewise
alleged that he was a creditor of the testator. Petitioner thus prayed
for the reconsideration of the order allowing the will and the issuance
of letters of administration in his name.
On the other hand, private respondent Pacita de los Reyes Phillips,
the designated executrix of the will, filed a motion for the issuance of
letters testamentary with Branch 61. Later, however, private
respondent moved to withdraw her motion. This was granted, while
petitioner was required to file a memorandum of authorities in
support of his claim that said court (Branch 61) still had jurisdiction
to allow his intervention.3

Petitioner filed his memorandum of authorities on May 13, 1996. On
the other hand, private respondent, who earlier withdrew her motion
for the issuance of letters testamentary in Branch 61, refiled a
petition for the same purpose with the Regional Trial Court, Makati,
which was docketed as Sp. Proc. No. M-4343 and assigned to
Branch 65.
Upon private respondent's motion, Judge Salvador Abad Santos of
Branch 65 issued an order, dated June 28, 1996, appointing her as
special administrator of Dr. De Santos's estate.
On July 29, 1996, petitioner sought to intervene in Sp. Proc. No. M-
4343 and to set aside the appointment of private respondent as
special administrator. He reiterated that he was the sole and full
blooded nephew and nearest of kin of the testator; that he came to
know of the existence of Sp. Proc. No. M-4343 only by accident; that
the probate proceedings in Sp. Proc. No. M-4223 before Branch 61
of the same court was still pending; that private respondent
misdeclared the true worth of the testator's estate; that private
respondent was not fit to be the special administrator of the estate;
and that petitioner should be given letters of administration for the
estate of Dr. De Santos.
On August 28, 1996, Judge Abad Santos ordered the transfer of Sp.
Proc. No. M-4343 to Branch 61, on the ground that "[it] is related to
the case before Judge Gorospe of RTC Branch 61 . . ."
It appears, however, that in Sp. Proc. No. M-4223, Judge Gorospe
had denied on August 26, 1996 petitioner's motion for intervention.
Petitioner brought this matter to the Court of Appeals which, in a
decision4 promulgated on February 13, 1998, upheld the denial of
petitioner's motion for intervention.
Meanwhile, Judge Gorospe issued an order, dated September 4,
1996, returning the records of Sp. Proc. No. M-4343 to Branch 65 on
the ground that there was a pending case involving the Estate of
Decedent Arturo de Santos pending before said court. The order
reads:
Acting on the ORDER dated 28 August 1996 of Branch 65, this
Court, transferring this case to this Branch 61 on the ground that this
case is related with a case before this Court, let this case be
returned to Branch 65 with the information that there is no related
case involving the ESTATE OF DECEDENT ARTURO DE SANTOS
pending before this Branch.
There is, however, a case filed by ARTURO DE SANTOS, as
petitioner under Rule 76 of the Rules of Court for the Allowance of
his will during his lifetime docketed as SP. PROC. NO. M-4223
which was already decided on 16 February 1996 and has become
final.
It is noted on records of Case No. M-4223 that after it became final,
herein Petitioner Pacita de los Reyes Phillips filed a MOTION FOR
THE ISSUANCE OF LETTERS TESTAMENTARY, which was
subsequently withdrawn after this Court, during the hearing, already
ruled that the motion could not be admitted as the subject matter
involves a separate case under Rule 78 of the Rules of Court, and
movant withdrew her motion and filed this case (No. 4343).
Octavio de Santos Maloles [II] filed a MOTION FOR
INTERVENTION before Case No. M-4223 and this motion was
already DENIED in the order (Branch 61) of 26 August 1996 likewise
for the same grounds that the matter is for a separate case to be
filed under Rule 78 of the Rules of Court and cannot be included in
this case filed under Rule 76 of the Rules of Court.
SPECIAL PROCEEDINGS (Atty. Geraldine Quimosing-Tiu) 2
COMPILATION OF CASES
It is further noted that it is a matter of policy that consolidation of
cases must be approved by the Presiding Judges of the affected
Branches.
Initially, in his decision dated September 23, 1996, 5 Judge Abad
Santos appeared firm in his position that " . . . it would be improper
for (Branch 65) to hear and resolve the petition (Sp. Proc. No. M-
4343)," considering that the probate proceedings were commenced
with Branch 61. He thus ordered the transfer of the records back to
the latter branch. However, he later recalled his decision and took
cognizance of the case "to expedite the proceedings." Thus, in his
Order, dated October 21, 1996, he stated:
Considering the refusal of the Hon. Fernando V. Gorospe, Jr. of
Branch 61 to continue hearing this case notwithstanding the fact that
said branch began the probate proceedings of the estate of the
deceased and must therefore continue to exercise its jurisdiction to
the exclusion of all others, until the entire estate of the testator had
been partitioned and distributed as per Order dated 23 September
1996, this branch (Regional Trial Court Branch 65) shall take
cognizance of the petition if only to expedite the proceedings, and
under the concept that the Regional Trial Court of Makati City is but
one court.
Furnish a copy of this order to the Office of the Chief justice and the
Office of the Court Administrator, of the Supreme Court; the Hon.
Fernando V. Gorospe, Jr.; Pacita De Los Reyes Phillips, Petitioner;
and Octavio de Santos Maloles, Intervenor.
On November 4, 1996, Judge Abad Santos granted petitioner's
motion for intervention. Private respondent moved for a
reconsideration but her motion was denied by the trial court. She
then filed a petition for certiorari in the Court of Appeals which, on
February 26, 1997, rendered a decision6 setting aside the trial court's
order on the ground that petitioner had not shown any right or
interest to intervene in Sp. Proc. No. M-4343.
Hence, these petitions which raise the following issues:
1. Whether or not the Honorable Regional Trial Court — Makati,
Branch 61 has lost jurisdiction to proceed with the probate
proceedings upon its issuance of an order allowing the will of Dr.
Arturo de Santos.
2. Whether or not the Honorable (Regional Trial Court — Makati,
Branch 65) acquired jurisdiction over the petition for issuance of
letters testamentary filed by (private) respondent.
3. Whether or not the petitioner, being a creditor of the late Dr.
Arturo de Santos, has a right to intervene and oppose the petition for
issuance of letters testamentary filed by the respondent.
4. Whether or not (private) respondent is guilty of forum shopping in
filing her petition for issuance of letters testamentary with the
Regional Trial Court — Makati, Branch 65 knowing fully well that the
probate proceedings involving the same restate estate of the
decedent is still pending with the Regional Trial Court — Makati,
Branch 61.
First. Petitioner contends that the probate proceedings in Branch 61
of RTC-Makati did not terminate upon the issuance of the order
allowing the will of Dr. De Santos. Citing the cases of Santiesteban
v. Santiesteban7 and Tagle v. Manalo,8 he argues that the
proceedings must continue until the estate is fully distributed to the
lawful heirs, devisees, and legatees of the testator, pursuant to Rule
73, §1 of the Rules of Court. Consequently, petitioner contends that

Branch 65 could not lawfully act upon private respondent's petition
for issuance of letters testamentary.
The contention has no merit.
In cases for the probate of wills, it is well-settled that the authority of
the court is limited to ascertaining the extrinsic validity of the will, i.e.,
whether the testator, being of sound mind, freely executed the will in
accordance with the formalities prescribed by law. 9
Ordinarily, probate proceedings are instituted only after the death of
the testator, so much so that, after approving and allowing the will,
the court proceeds to issue letters testamentary and settle the estate
of the testator. The cases cited by petitioner are of such nature. In
fact, in most jurisdictions, courts cannot entertain a petition for
probate of the will of a living testator under the principle of
ambulatory nature of wills.10
However, Art. 838 of the Civil Code authorizes the filing of a petition
for probate of the will filed by the testator himself. It provides:
CIVIL CODE, ART. 838. No will shall pass either real or personal
property unless it is proved and allowed in accordance with the
Rules of Court.
The testator himself may, during his lifetime, petition the court
having jurisdiction for the allowance of his will. In such case, the
pertinent provisions of the Rules of Court for the allowance of wills
after the testator's death shall govern.
The Supreme Court shall formulate such additional Rules of Court
as may be necessary for the allowance of wills on petition of the
testator.
Subject to the right of appeal, the allowance of the will, either during
the lifetime of the testator or after his death, shall be conclusive as to
its due execution.
Rule 76, §1 likewise provides:
Sec. 1. Who may petition for the allowance of will. — Any executor,
devisee, or legatee named in a will, or any other person interested in
the estate, may, at any time after the death of the testator, petition
the court having jurisdiction to have the will allowed, whether the
same be in his possession or not, or is lost or destroyed.
The testator himself may, during his lifetime, petition in the court for
the allowance of his will.
The rationale for allowing the probate of wills during the lifetime of
testator has been explained by the Code Commission thus:
Most of the cases that reach the courts involve either the
testamentary capacity of the testator or the formalities adopted in the
execution of wills. There are relatively few cases concerning the
intrinsic validity of testamentary dispositions. It is far easier for the
courts to determine the mental condition of a testator during his
lifetime than after his death. Fraud, intimidation and undue influence
are minimized. Furthermore, if a will does not comply with the
requirements prescribed by law, the same may be corrected at once.
The probate during the testator's life, therefore, will lessen the
number of contest upon wills. Once a will is probated during the
lifetime of the testator, the only questions that may remain for the
courts to decide after the testator's death will refer to the intrinsic
validity of the testamentary dispositions. It is possible, of course, that
SPECIAL PROCEEDINGS (Atty. Geraldine Quimosing-Tiu) 3
COMPILATION OF CASES
even when the testator himself asks for the allowance of the will, he
may be acting under duress or undue influence, but these are rare
cases.
After a will has been probated during the lifetime of the testator, it
does not necessarily mean that he cannot alter or revoke the same
before his death. Should he make a new will, it would also be
allowable on his petition, and if he should die before he has had a
chance to present such petition, the ordinary probate proceeding
after the testator's death would be in order.11
Thus, after the allowance of the will of Dr. De Santos on February
16, 1996, there was nothing else for Branch 61 to do except to issue
a certificate of allowance of the will pursuant to Rule 73, §12 of the
Rules of Court. There is, therefore, no basis for the ruling of Judge
Abad Santos of Branch 65 of RTC-Makati that —
Branch 61 of the Regional Trial Court of Makati having begun the
probate proceedings of the estate of the deceased, it continues and
shall continue to exercise said jurisdiction to the exclusion of all
others. It should be noted that probate proceedings do not cease
upon the allowance or disallowance of a will but continues up to
such time that the entire estate of the testator had been partitioned
and distributed.
The fact that the will was allowed during the lifetime of the testator
meant merely that the partition and distribution of the estate was to
be suspended until the latter's death. In other words, the petitioner,
instead of filing a new petition for the issuance of letters
testamentary, should have simply filed a manifestation for the same
purpose in the probate court.12
Petitioner, who defends the order of Branch 65 allowing him to
intervene, cites Rule 73, §1 which states:
Where estate of deceased persons settled. — If the decedent is an
inhabitant of the Philippines at the time of his death, whether a
citizen or an alien, his will shall be proved, or letters of administration
granted, and his estate settled, in the Court of First Instance in the
province in which he resides at the time of his death, and if he is an
inhabitant of a foreign country, the Court of First Instance of any
province 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.
The above rule, however, actually provides for the venue of actions
for the settlement of the estate of deceased persons. In Garcia Fule
v. Court of Appeals, it was held:13
The aforequoted Section 1, Rule 73 (formerly Rule 75, Section 1),
specifically the clause "so far as it depends on the place of
residence of the decedent, or of the location of the state," is in reality
a matter of venue, as the caption of the Rule indicates: "Settlement
of Estate of Deceased Persons. Venue and Processes." It could not
have been intended to define the jurisdiction over the subject matter,
because such legal provision is contained in a law of procedure
dealing merely with procedural matters. Procedure is one thing,
jurisdiction over the subject matter is another. The power or authority
of the court over the subject matter "existed was fixed before
procedure in a given cause began." That power or authority is not
altered or changed by procedure, which simply directs the manner in
which the power or authority shall be fully and justly exercised.
There are cases though that if the power is not exercised

conformably with the provisions of the procedural law, purely, the
court attempting to exercise it loses the power to exercise it legally.
However, this does not amount to a loss of jurisdiction over the
subject matter. Rather, it means that the court may thereby lose
jurisdiction over the person or that the judgment may thereby be
rendered defective for lack of something essential to sustain it. The
appearance of this provision in the procedural law at once raises a
strong presumption that it has nothing to do with the jurisdiction of
the court over the subject matter. In plain words, it is just a matter of
method, of convenience to the parties.
Indeed, the jurisdiction over probate proceedings and settlement of
estates with approximate value of over P100,000.00 (outside Metro
Manila) or P200,000.00 (in Metro Manila) belongs to the regional
trial courts under B.P. Blg. 129, as amended. The different branches
comprising each court in one judicial region do not possess
jurisdictions independent of and incompatible with each other. 14
It is noteworthy that, although Rule 73, §1 applies insofar as the
venue of the petition for probate of the will of Dr. De Santos is
concerned, it does not bar other branches of the same court from
taking cognizance of the settlement of the estate of the testator after
his death. As held in the leading case of Bacalso v. Ramolote:15
The various branches of the Court of First Instance of Cebu under
the Fourteenth Judicial District, are a coordinate and co-equal
courts, and the totality of which is only one Court of First Instance.
The jurisdiction is vested in the court, not in the judges. And when a
case is filed in one branch, jurisdiction over the case does not attach
to the branch or judge alone, to the exclusion of the other branches.
Trial may be held or proceedings continue by and before another
branch or judge. It is for this reason that Section 57 of the Judiciary
Act expressly grants to the Secretary of Justice, the administrative
right or power to apportion the cases among the different branches,
both for the convenience of the parties and for the coordination of
the work by the different branches of the same court. The
apportionment and distribution of cases does not involve a grant or
limitation of jurisdiction, the jurisdiction attaches and continues to be
vested in the Court of First Instance of the province, and the trials
may be held by any branch or judge of the court.
Necessarily, therefore, Branch 65 of the RTC of Makati City has
jurisdiction over Sp. Proc. No. M-4343.
Second. Petitioner claims the right to intervene in and oppose the
petition for issuance of letters testamentary filed by private
respondent. He argues that, as the nearest next of kin and creditor
of the testator, his interest in the matter is material and direct. In
ruling that petitioner has no right to intervene in the proceedings
before Branch 65 of RTC-Makati City, the Court of Appeals held:
The private respondent herein is not an heir or legatee under the will
of the decedent Arturo de Santos. Neither is he a compulsory heir of
the latter. As the only and nearest collateral relative of the decedent,
he can inherit from the latter only in case of intestacy. Since the
decedent has left a will which has already been probated and
disposes of all his properties the private respondent can inherit only
if the said will is annulled. His interest in the decedent's estate is,
therefore, not direct or immediate.
His claim to being a creditor of the estate is a belated one, having
been raised for the first time only in his reply to the opposition to his
motion to intervene, and, as far as the records show, not supported
by evidence.
SPECIAL PROCEEDINGS (Atty. Geraldine Quimosing-Tiu) 4
COMPILATION OF CASES
. . . . [T]he opposition must come from one with a direct interest in
the estate or the will, and the private respondent has none.
Moreover, the ground cited in the private respondent's opposition,
that the petitioner has deliberately misdeclared the truth worth and
value of the estate, is not relevant to the question of her competency
to act as executor. Section 2, Rule 76 of the Rules of Court requires
only an allegation of the probable value and character of the
property of the estate. The true value can be determined later on in
the course of the settlement of the estate.16
Rule 79, §1 provides:
Opposition to issuance of letters testamentary. Simultaneous petition
for administration. — Any person interested in a will may state in
writing the grounds why letters testamentary should not issue to the
persons named therein as executors, or any of them, and the court,
after hearing upon notice, shall pass upon the sufficiency of such
grounds. A petition may, at the same time, be filed for letters of
administration with the will annexed.
Under this provision, it has been held that an "interested person" is
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, and whose
interest is material and direct, not merely incidental or contingent.17
Even if petitioner is the nearest next of kin of Dr. De Santos, he
cannot be considered an "heir" of the testator. It is a fundamental
rule of testamentary succession that one who has no compulsory or
forced heirs may dispose of his entire estate by will. Thus, Art. 842
of the Civil Code provides:
One who has no compulsory heirs may dispose by will of all his
estate or any part of it in favor of any person having capacity to
succeed.
One who has compulsory heirs may dispose of his estate provided
he does not contravene the provisions of this Code with regard to
the legitimate of said heirs.
Compulsory heirs are limited to the testator's —
(1) Legitimate children and descendants, with respect to their
legitimate parents and ascendants;
(2) In default of the foregoing, legitimate parents and ascendants,
with respect to their legitimate children and descendants;
(3) The widow or widower;
(4) Acknowledged natural children, and natural children by legal
fiction;
(5) Other illegitimate children referred to in Article 287 of the Civil
Code.18
Petitioner, as nephew of the testator, is not a compulsory heir who
may have been preterited in the testator's will.
Nor does he have any right to intervene in the settlement
proceedings based on his allegation that he is a creditor of the
deceased. Since the testator instituted or named an executor in his
will, it is incumbent upon the Court to respect the desires of the
testator. As we stated in Ozaeta v. Pecson:19

The choice of his executor is a precious prerogative of a testator, a
necessary concomitant of his right to dispose of his property in the
manner he wishes. It is natural that the testator should desire to
appoint one of his confidence, one who can be trusted to carry out
his wishes in the disposal of his estate. The curtailment of this right
may be considered a curtailment of the right to dispose.
Only if the appointed executor is incompetent, refuses the trust, or
fails to give bond may the court appoint other persons to administer
the estate.20 None of these circumstances is present in this case.
Third. Petitioner contends that private respondent is guilty of forum
shopping when she filed the petition for issuance of letters
testamentary (Sp. Proc. No. M-4343) while the probate proceedings
(Sp. Proc. No. M-4223) were still pending. According to petitioner,
there is identity of parties, rights asserted, and reliefs prayed for in
the two actions which are founded on the same facts, and a
judgment in either will result in res judicata in the other.
This contention has no merit. As stated earlier, the petition for
probate was filed by Dr. De Santos, the testator, solely for the
purpose of authenticating his will. Upon the allowance of his will, the
proceedings were terminated.1âwphi1.nêt
On the other hand, the petition for issuance of letters testamentary
was filed by private respondent, as executor of the estate of Dr. De
Santos, for the purpose of securing authority from the Court to
administer the estate and put into effect the will of the testator. The
estate settlement proceedings commenced by the filing of the
petition terminates upon the distribution and delivery of the legacies
and devises to the persons named in the will. Clearly, there is no
identity between the two petitions, nor was the latter filed during the
pendency of the former. There was, consequently, no forum
shopping.
WHEREFORE, the petition is DENIED and the decisions of the
Court of Appeals are hereby AFFIRMED.
SO ORDERED.
SPECIAL PROCEEDINGS (Atty. Geraldine Quimosing-Tiu) 5
COMPILATION OF CASES
NITTSCHER v. NITTSCHER
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 160530 November 20, 2007
CYNTHIA V. NITTSCHER, petitioner,
vs.
DR. WERNER KARL JOHANN NITTSCHER (Deceased), ATTY.
ROGELIO P. NOGALES and THE REGIONAL TRIAL COURT OF
MAKATI (Branch 59), respondents.
DECISION
QUISUMBING, J.:
For review on certiorari are the Decision1 dated July 31, 2003 and
Resolution2 dated October 21, 2003 of the Court of Appeals in CA-
G.R. CV No. 55330, which affirmed the Order3 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. Nittscher’s 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
petitioner’s motion to dismiss, and granted respondent’s 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
respondent’s 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
Petitioner’s 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 respondent’s 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
SPECIAL PROCEEDINGS (Atty. Geraldine Quimosing-Tiu) 6
COMPILATION OF CASES
husband’s 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 Piñas, 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. 28-918 and Administrative
Circular No. 04-949 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. Nittscher’s will. Hence, respondent’s 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 Piñas, 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 Piñas, 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.
 SPECIAL PROCEEDINGS (Atty. Geraldine Quimosing-Tiu) 7
COMPILATION OF CASES

In this case, records show that petitioner, with whom Dr. Nittscher
had no child, and Dr. Nittscher’s children from his previous marriage
were all duly notified, by registered mail, of the probate proceedings.
Petitioner even appeared in court to oppose respondent’s 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,
petitioner’s 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

husband’s 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, petitioner’s claim of
title to the properties forming part of her husband’s 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.
 SPECIAL PROCEEDINGS (Atty. Geraldine Quimosing-Tiu) 8
COMPILATION OF CASES

DELIVERY OF WILL The RTC, at first, denied the demurrer to evidence.6 In its February
4, 2005 Order,7 however, it granted the same on petitioner’s motion
UY KIAO ENG v. NIXON LEE for reconsideration. Respondent’s motion for reconsideration of this
latter order was denied on September 20, 2005. 8 Hence, the petition
was dismissed.
Republic of the Philippines
SUPREME COURT
Manila Aggrieved, respondent sought review from the appellate court. On
April 26, 2006, the CA initially denied the appeal for lack of merit. It
ruled that the writ of mandamus would issue only in instances when
THIRD DIVISION
no other remedy would be available and sufficient to afford redress.
Under Rule 76, in an action for the settlement of the estate of his
G.R. No. 176831 January 15, 2010 deceased father, respondent could ask for the presentation or
production and for the approval or probate of the holographic will.
UY KIAO ENG, Petitioner, The CA further ruled that respondent, in the proceedings before the
vs. trial court, failed to present sufficient evidence to prove that his
NIXON LEE, Respondent. mother had in her custody the original copy of the will.91avvphi1

Respondent moved for reconsideration. The appellate court, in the

assailed August 23, 2006 Amended Decision,10granted the motion,
set aside its earlier ruling, issued the writ, and ordered the
DECISION
production of the will and the payment of attorney’s fees. It ruled this
time that respondent was able to show by testimonial evidence that
NACHURA, J.: his mother had in her possession the holographic will.

Before the Court is a petition for review on certiorari under Rule 45 Dissatisfied with this turn of events, petitioner filed a motion for
of the Rules of Court, assailing the August 23, 2006 Amended reconsideration. The appellate court denied this motion in the further
Decision1 of the Court of Appeals (CA) in CA-G.R. SP No. 91725 assailed February 23, 2007 Resolution.11
and the February 23, 2007 Resolution,2 denying the motion for
reconsideration thereof.
Left with no other recourse, petitioner brought the matter before this
Court, contending in the main that the petition for mandamus is not
The relevant facts and proceedings follow. the proper remedy and that the testimonial evidence used by the
appellate court as basis for its ruling is inadmissible. 12
Alleging that his father passed away on June 22, 1992 in Manila and
left a holographic will, which is now in the custody of petitioner Uy The Court cannot sustain the CA’s issuance of the writ.
Kiao Eng, his mother, respondent Nixon Lee filed, on May 28, 2001,
a petition for mandamus with damages, docketed as Civil Case No.
The first paragraph of Section 3 of Rule 65 of the Rules of Court
01100939, before the Regional Trial Court (RTC) of Manila, to
pertinently provides that—
compel petitioner to produce the will so that probate proceedings for
the allowance thereof could be instituted. Allegedly, respondent had
already requested his mother to settle and liquidate the patriarch’s SEC. 3. Petition for mandamus.—When any tribunal, corporation,
estate and to deliver to the legal heirs their respective inheritance, board, officer or person unlawfully neglects the performance of an
but petitioner refused to do so without any justifiable reason.3 act which the law specifically enjoins as a duty resulting from an
office, trust, or station, or unlawfully excludes another from the use
and enjoyment of a right or office to which such other is entitled, and
In her answer with counterclaim, petitioner traversed the allegations
there is no other plain, speedy and adequate remedy in the ordinary
in the complaint and posited that the same be dismissed for failure
course of law, the person aggrieved thereby may file a verified
to state a cause of action, for lack of cause of action, and for non-
petition in the proper court, alleging the facts with certainty and
compliance with a condition precedent for the filing thereof.
praying that judgment be rendered commanding the respondent,
Petitioner denied that she was in custody of the original holographic
immediately or at some other time to be specified by the court, to do
will and that she knew of its whereabouts. She, moreover, asserted
the act required to be done to protect the rights of the petitioner, and
that photocopies of the will were given to respondent and to his
to pay the damages sustained by the petitioner by reason of the
siblings. As a matter of fact, respondent was able to introduce, as an
wrongful acts of the respondent.13
exhibit, a copy of the will in Civil Case No. 224-V-00 before the RTC
of Valenzuela City. Petitioner further contended that respondent
should have first exerted earnest efforts to amicably settle the Mandamus is a command issuing from a court of law of competent
controversy with her before he filed the suit.4 jurisdiction, in the name of the state or the sovereign, directed to
some inferior court, tribunal, or board, or to some corporation or
person requiring the performance of a particular duty therein
The RTC heard the case. After the presentation and formal offer of
specified, which duty results from the official station of the party to
respondent’s evidence, petitioner demurred, contending that her son
whom the writ is directed or from operation of law.14 This definition
failed to prove that she had in her custody the original holographic
recognizes the public character of the remedy, and clearly excludes
will. Importantly, she asserted that the pieces of documentary
the idea that it may be resorted to for the purpose of enforcing the
evidence presented, aside from being hearsay, were all immaterial
performance of duties in which the public has no interest. 15 The writ
and irrelevant to the issue involved in the petition—they did not
is a proper recourse for citizens who seek to enforce a public right
prove or disprove that she unlawfully neglected the performance of
and to compel the performance of a public duty, most especially
an act which the law specifically enjoined as a duty resulting from an
when the public right involved is mandated by the Constitution. 16 As
office, trust or station, for the court to issue the writ of mandamus. 5
the quoted provision instructs, mandamus will lie if the tribunal,
corporation, board, officer, or person unlawfully neglects the
 SPECIAL PROCEEDINGS (Atty. Geraldine Quimosing-Tiu) 9
COMPILATION OF CASES

performance of an act which the law enjoins as a duty resulting from
an office, trust or station.17
The writ of mandamus, however, will not issue to compel an official
to do anything which is not his duty to do or which it is his duty not to
do, or to give to the applicant anything to which he is not entitled by
law.18 Nor will mandamus issue to enforce a right which is in
substantial dispute or as to which a substantial doubt exists,
although objection raising a mere technical question will be
disregarded if the right is clear and the case is meritorious. 19 As a
rule, mandamus will not lie in the absence of any of the following
grounds: [a] that the court, officer, board, or person against whom
the action is taken unlawfully neglected the performance of an act
which the law specifically enjoins as a duty resulting from office,
trust, or station; or [b] that such court, officer, board, or person has
unlawfully excluded petitioner/relator from the use and enjoyment of
a right or office to which he is entitled.20 On the part of the relator, it
is essential to the issuance of a writ of mandamus that he should
have a clear legal right to the thing demanded and it must be the
imperative duty of respondent to perform the act required. 21
Recognized further in this jurisdiction is the principle that mandamus
cannot be used to enforce contractual obligations. 22 Generally,
mandamus will not lie to enforce purely private contract rights, and
will not lie against an individual unless some obligation in the nature
of a public or quasi-public duty is imposed.23 The writ is not
appropriate to enforce a private right against an individual. 24 The writ
of mandamus lies to enforce the execution of an act, when,
otherwise, justice would be obstructed; and, regularly, issues only in
cases relating to the public and to the government; hence, it is called
a prerogative writ.25 To preserve its prerogative character,
mandamus is not used for the redress of private wrongs, but only in
matters relating to the public.26
Moreover, an important principle followed in the issuance of the writ
is that there should be no plain, speedy and adequate remedy in the
ordinary course of law other than the remedy of mandamus being
invoked.27 In other words, mandamus can be issued only in cases
where the usual modes of procedure and forms of remedy are
powerless to afford relief.28 Although classified as a legal remedy,
mandamus is equitable in its nature and its issuance is generally
controlled by equitable principles.29 Indeed, the grant of the writ of
mandamus lies in the sound discretion of the court.
SEC. 2. Custodian of will to deliver.—The person who has custody
of a will shall, within twenty (20) days after he knows of the death of
the testator, deliver the will to the court having jurisdiction, or to the
executor named in the will.
SEC. 3. Executor to present will and accept or refuse trust.—A
person named as executor in a will shall within twenty (20) days
after he knows of the death of the testator, or within twenty (20) days
after he knows that he is named executor if he obtained such
knowledge after the death of the testator, present such will to the
court having jurisdiction, unless the will has reached the court in any
other manner, and shall, within such period, signify to the court in
writing his acceptance of the trust or his refusal to accept it.
SEC. 4. Custodian and executor subject to fine for neglect.—A
person who neglects any of the duties required in the two last
preceding sections without excuse satisfactory to the court shall be
fined not exceeding two thousand pesos.
SEC. 5. Person retaining will may be committed.—A person having
custody of a will after the death of the testator who neglects without
reasonable cause to deliver the same, when ordered so to do, to the
court having jurisdiction, may be committed to prison and there kept
until he delivers the will.30
There being a plain, speedy and adequate remedy in the ordinary
course of law for the production of the subject will, the remedy of
mandamus cannot be availed of. Suffice it to state that respondent
Lee lacks a cause of action in his petition. Thus, the Court grants the
demurrer.
WHEREFORE, premises considered, the petition for review on
certiorari is GRANTED. The August 23, 2006 Amended Decision
and the February 23, 2007 Resolution of the Court of Appeals in CA-
G.R. SP No. 91725 are REVERSED and SET ASIDE. Civil Case No.
01100939 before the Regional Trial Court of Manila is DISMISSED.
SO ORDERED.

In the instant case, the Court, without unnecessarily ascertaining

whether the obligation involved here—the production of the original
holographic will—is in the nature of a public or a private duty, rules
that the remedy of mandamus cannot be availed of by respondent
Lee because there lies another plain, speedy and adequate remedy
in the ordinary course of law. Let it be noted that respondent has a
photocopy of the will and that he seeks the production of the original
for purposes of probate. The Rules of Court, however, does not
prevent him from instituting probate proceedings for the allowance of
the will whether the same is in his possession or not. Rule 76,
Section 1 relevantly provides:

Section 1. Who may petition for the allowance of will.—Any

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

An adequate remedy is further provided by Rule 75, Sections 2 to 5,

for the production of the original holographic will. Thus—

CONTENTS OF PETITION
FRAN v. SALAS
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. L-53546 June 25, 1992
THE HEIRS OF THE LATE JESUS FRAN and CARMEN MEJIA
RODRIGUEZ, petitioners,
vs.
HON. BERNARDO LL. SALAS, CONCEPCION MEJIA ESPINA
and MARIA MEJIA GANDIONGCO, respondents.
DAVIDE, JR., J.:
This is a petition for certiorari and prohibition under Rule 65 of the
Revised Rules of Court, with prayer for a writ of preliminary
injunction, to annul and set aside, for having been issued without
jurisdiction or with grave abuse of discretion amounting to lack of
jurisdiction, the following Orders of the respondent Judge in Special
Proceedings No. 3309-R of Branch VIII of the then Court of First
Instance (now Regional Trial Court) of Cebu entitled "In The Matter
of the Petition for Probate of the Last Will and Testament of
Remedios Mejia Vda. de Tiosejo:"
1. The Order of 26 February 1980 setting for hearing private
respondents' Omnibus Motion for Reconsideration 1 which was filed
six (6) years, ten (10) months and eighteen (18) days after the
probate judgment was rendered and six (6) years and twenty-one
(21) days after the testate proceedings was declared closed and
terminated; and
2. The Order of 2 June 1980 finding the signature of the testatrix in
the last will and testament to be a forgery and (a) declaring the
testatrix as having died intestate; (b) declaring the testamentary
dispositions in said last will and testament as null and void; (c)
setting aside the order dated 10 September 1973 declaring the
testate proceedings closed and terminated; (d) revoking the
appointment of Jesus Fran as executor while appointing respondent
Concepcion M. Espina as administratrix; and (e) ordering the
conversion of the proceedings to one of intestacy. 2This Order
effectively annulled and set aside the probate judgment of 13
November 1972.
Petitioners would also have this Court nullify all other actions of
respondent Judge in said Sp. Proc. No. 3309-R; restore the status
quo therein prior to the issuance of the foregoing orders; and
permanently enjoin respondent Judge from reopening said
proceedings.
The following facts are not controverted:
Remedios M. Vda. de Tiosejo, a widow, died on 10 July 1972 in
Cebu City with neither descendants nor ascendants; she left real
and personal properties located in Cebu City, Ormoc City and
Puerto Bello, Merida, Leyte. Earlier, on 23 April 1972, she executed
a last will and testament 3 wherein she bequeathed to her collateral
relatives (brothers, sisters, nephews and nieces) all her properties,
SPECIAL PROCEEDINGS (Atty. Geraldine Quimosing-Tiu) 10
COMPILATION OF CASES
and designated Rosario Tan or, upon the latter's death, Jesus Fran,
as executor to serve without bond. Instrumental witnesses to the will
were Nazario Pacquiao, Alcio Demerre and Primo Miro.
On 15 July 1972, Jesus Fran filed a petition with the Court of First
instance of Cebu for the probate of Remedios' last will and
testament. 4 The case was raffled to the original Branch VIII thereof
which was then presided over by Judge Antonio D. Cinco. The
petition alleged that Rosario Tan is not physically well and,
therefore, will not be assuming the position of administratrix. Tan
signed a waiver in favor of Jesus Fran on the third page of the said
petition. The probate court issued an order setting the petition for
hearing on 18 September 1972. Meanwhile, on 31 July 1972, the
court appointed petitioner Jesus Fran as special administrator.
On 10 August 1972, the private respondents, who are sisters of the
deceased, filed a manifestation 5 alleging that they needed time to
study the petition because some heirs who are entitled to receive
their respective shares have been intentionally omitted therein, and
praying that they be given ample time to file their opposition, after
which the hearing be reset to another date.
Private respondents did not file any opposition. Instead, they filed on
18 September 1972 a "Withdrawal of Opposition to the Allowance of
Probate (sic) of the Will" wherein they expressly manifested, with
their "full knowledge and consent that . . . they have no objection of
(sic) the allowance of the . . . will of the late Remedios Mejia Vda. de
Tiosejo," and that they have "no objection to the issuance of letters
testamentary in favor of petitioner, Dr. Jesus Fran." 6
No other party filed an opposition. The petition thus became
uncontested.
During the initial hearing, petitioner Fran introduced the requisite
evidence to establish the jurisdictional facts.
Upon a determination that the court had duly acquired jurisdiction
over the uncontested petition for probate, Judge Cinco issued in
open court an order directing counsel for petitioner to present
evidence proving the authenticity and due execution of the will
before the Clerk of Court who was, accordingly, so authorized to
receive the same.
The reception of evidence by the Clerk of Court immediately
followed. Petitioner Fran's first witness was Atty. Nazario R.
Pacquiao, one at the subscribing witnesses to the will. The original
of the will, marked as Exhibit "F", and its English translation, marked
as Exhibit "F-Translation", were submitted to the Clerk of
Court. 7 Petitioner Fran was the second and also the last witness.
He enumerated the names of the surviving heirs of the deceased.
On 13 November 1972, the probate court rendered a decision
admitting to probate the will of the testatrix, Remedios Mejia Vda. de
Tiosejo, and appointing petitioner Fran as executor thereof. 8 The
dispositive portion of the decision reads:
WHEREFORE, in view of all the foregoing, judgment is hereby
rendered declaring the last will and testament of the deceased
Remedios Mejia Vda. de Tiosejo marked as Exhibit F as admitted to
probate. Dr. Jesus Fran is hereby appointed as executor of the will.
Let letters testamentary be issued in favor of Dr. Jesus Fran. The
special administrator's bond put up by Dr. Jesus Fran as special
administrator duly approved by this Court shall serve and be
considered as the executor's bond considering that the special
administrator and executor are one and the same person.

The requisite notice to creditors was issued, but despite the
expiration of the period therein fixed, no claim was presented
against the estate.
On 4 January 1973, petitioner Fran filed an Inventory of the
Estate; 9 copies thereof were furnished each of the private
respondents.
Subsequently, a Project of Partition based on the dispositions made
in the will and signed by all the devisees and legatees, with the
exception of Luis Fran, Remedios C. Mejia and respondent
Concepcion M. Espina, was submitted by the executor for the court's
approval. 10 Said legatees and devisees submitted certifications
wherein they admit receipt of a copy of the Project of Partition
together with the notice of hearing, and state that they had no
objection to its approval. 11
The notice of hearing referred to in these certifications is the 6
August 1973 notice issued by the Clerk of Court setting the hearing
on the Project of Partition for 29 August 1973. 12
After the hearing on the Project of Partition, the court issued its
Order of 10 September 1973 13 approving the same, declaring the
parties therein as the only heirs entitled to the estate of Remedios
Mejia Vda. de Tiosejo, directing the administrator to deliver to the
said parties their respective shares and decreeing the proceedings
closed. The dispositive portion thereof reads:
WHEREFORE, the signers (sic) to the project of partition are
declared the only, heirs entitled to the estate; the project of partition
submitted is ordered approved and the administrator is ordered to
deliver to each one of them their respective aliquot parts as
distributed in the said project of partition. It is understood that if there
are expenses incurred or to be incurred as expenses of partition,
Section 3 of Rule 90 shall be followed.
Let this proceedings be now declared closed.
SO ORDERED.
Thereafter, the aforesaid Branch VIII of the Court of First Instance of
Cebu was converted to a Juvenile and Domestic Relations Court.
On November 1978, by virtue of Presidential Decree No. 1439,
Branch XVII (Davao City) of the Court of First Instance of Cebu,
presided over by herein respondent Judge, was officially transferred
to Cebu City and renumbered as Branch VIII.
On 1 October 1979, private respondents filed with the new Branch
VIII an Omnibus Motion for Reconsideration of the probate judgment
of 13 November 1972 and the Order of partition of 10 September
1973, in said motion, they ask the court to declare the proceedings
still open and admit their opposition to the allowance of the
will, 14 which they filed on 1 October 1979. They allege that: (a) they
were not furnished with a copy of the will; (b) the will is a forgery; (c)
they were not notified of any resolution or order on their
manifestation requesting time within which to file their opposition, or
of the order authorizing the clerk of court to receive the evidence for
the petitioner, or of the order closing the proceedings; (d) the
reception of evidence by the clerk of court was void per the ruling
in Lim Tanhu vs. Ramolete; 15 (e) the project of partition contains no
notice of hearing and they were not notified thereof; (f) the petitioner
signed the project of partition as administrator and not as executor,
thereby proving that the decedent died intestate; (g) the petitioner
did not submit any accounting as required by law; and (h) the
petitioner never distributed the estate to the devisees and legatees.
SPECIAL PROCEEDINGS (Atty. Geraldine Quimosing-Tiu) 11
COMPILATION OF CASES
In a detailed opposition 16 to the above Omnibus Motion for
Reconsideration, petitioner Fran refuted all the protestations of
private respondents. Among other reasons, he stresses therein that:
(a) private respondents are in estoppel to question the will because
they filed their Withdrawal Of Opposition To The Allowance of Will
which states that after thoroughly studying the petition, to which was
attached a copy of the English translation of the will, they have no
objection to its allowance; the order directing the clerk of court to
receive the evidence was dictated in open court in the presence of
private respondents; private respondent Maria M. Gandiongco
signed the Project of Partition and private respondent Concepcion
M. Espina submitted a certification stating therein that she received
the notice of hearing therefor and has no objection to its approval;
(b) except for some properties, either covered by a usufruct under
the will or agreed upon by the parties to be held in common by
reason of its special circumstance, there was an actual distribution
of the estate in accordance with the Project of Partition; insofar as
private respondents are concerned, they not only received their
respective shares, they even purchased the shares of the other
devisees. To top it all, private respondents' children, namely Rodrigo
M. Gandiongco, Jr. and Victor Espina, mortgaged their respective
shares in favor of a bank
Notwithstanding petitioners' objections, respondent Judge issued on
26 February 1980 an Order setting for hearing the said Omnibus
Motion for Reconsideration on 8 April 1980 so that "the witnesses
and the exhibits (may be) properly ventilated." 17
On 25 March 1980, petitioners filed a Motion to Dismiss the
Omnibus and to Reconsider the 26 February 1980 Order setting it
for hearing on 17 April 1980, 18 but the respondent Judge
prematurely denied it for lack of merit in his Order of 31 March
1980. 19
Consequently, on 8 April 1980, the instant petition was filed
challenging the jurisdiction of the lower court in taking cognizance of
the Omnibus Motion for Reconsideration considering that the
probate judgment and the order approving the Project of Partition
and terminating the proceedings had long become final and had in
fact been executed. Private respondents had long lost their right to
appeal therefrom. The Omnibus Motion for Reconsideration cannot
likewise be treated as a petition for relief from judgment for under
Rule 38 of the Revised Rules of Court, the same must be filed within
sixty (60) days from receipt of notice of the judgment/order and
within six (6) months from the date of said judgment. Therefore, this
remedy can no longer be availed of.
On 8 April 1980, the date the instant petition was filed, respondent
Judge proceeded with the hearing of the Omnibus Motion for
Reconsideration. He received the testimonies of private respondents
and one Romeo O. Varena, an alleged handwriting expert from the
Philippine Constabulary, who averred that the signature of the
testatrix on the will is a forgery. The respondent Judge likewise
issued an Order on the same date stating that unless he received a
restraining order from this Court within twenty (20) days therefrom,
he will reopen Sp. Proc. No. 3309-R.
On 14 April 1980, petitioners filed a Supplemental Petition asking
this Court to restrain respondent Judge from reopening the case. 20
In their voluminous Comments and Opposition to the petition and
Supplemental Petition, 21 private respondents not only amplify in
great detail the grounds raised in their Omnibus Motion for
Reconsideration, they also squarely raise for the first time the
following issues.

(a) The probate court never acquired jurisdiction over the case since
petitioner Jesus Fran failed to submit to the court the original of the
will.
(b) They were deprived of the opportunity to examine the will as
petitioner Jesus Fran did not attach it to the petition; what was
attached was only the English translation of the will.
(c) Even assuming that the probate judge could validly delegate the
reception of evidence to the Clerk of Court, the proceeding before
the latter would still be void as he failed to take an oath of office
before entering upon his duties as commissioner and failed to render
a report on the matters submitted to him.
(d) Respondent Maria M. Vda. de Gandiongco was defrauded into
(sic) signing the Project of Partition and respondent Concepcion M.
Espina, her certification, when they were misled by petitioner Fran
into believing that the Agreement of Petition to be submitted to the
court is the Extra Judicial Partition they signed on 7 May 1973.
(e) Petitioner Fran is guilty of fraud in urdervaluing the estate of the
late Remedios M. Vda. de Tiosejo by reporting properties worth only
P400,000.00 when in truth and in fact the estate has an aggregate
value of P2,094,333.00.
In the Resolution dated 2 June 1980, We issued a restraining order
enjoining respondent Judge from reopening Sp. Proc. No. 3309-
R. 22
However, on the same date, before the restraining order was served
on him; respondent Judge issued the impugned order declaring the
testamentary dispositions of the will void, finding the signature of the
late Remedios M. Vda. de Tiosejo to be a forgery, decreeing the
reopening of Sp. Proc. No. 3309-R and converting the same into an
intestate proceeding. 23
Hence, on 6 June 1980, petitioners filed their Second Supplemental
Petition 24 asking this Court to declare as null and void the Order of
2 June 1980 and, pending such declaration, to restrain respondent
Judge from enforcing the same. Private respondents filed their
Comment and Opposition to the Second Supplemental Petition on 9
July 1980.
Thereafter, as mandated in the resolution of 30 June 1980, 25 this
Court gave due course to this case and required the parties to file
their respective Memoranda, which private respondents complied
with on 16 August 1980; 26 petitioners filed theirs on 27 August
1980. 27 Consequently, the parties continued to file several
pleadings reiterating substantially the same allegations and
arguments earlier submitted to this Court.
On 22 March 1984, counsel for petitioners filed a manifestation
informing this Court of the death of petitioner Fran on 29 February
1984 and enumerating therein his surviving heirs. On 2 April 1984,
this Court resolved to have said heirs substitute him in this case.
Over a year later, respondent Maria M. Vda. de Gandiongco filed an
affidavit, 28 sworn to before the acting Clerk of Court of the Regional
Trial Court in Cebu City, disclosing the following material facts: (a)
she signed the Omnibus Motion for Reconsideration dated 1
October 1979 without knowing or reading the contents thereof; (b)
she saw the will of the late Remedios M. Vda. de Tiosejo written in
the Cebuano dialect after the same was executed by the latter; the
said will bearing the authentic signature of Remedios was the very
one presented to the probate court by petitioner's counsel; (c) she
received the notice of hearing of the petition for probate and
SPECIAL PROCEEDINGS (Atty. Geraldine Quimosing-Tiu) 12
COMPILATION OF CASES
because she was convinced that the signature of the testatrix was
genuine, she, together with Concepcion M. Espina, withdrew her
opposition; (d) she received her share of the estate of the late
Remedios M. Vda. de Tiosejo which was distributed in accordance
with the provisions of the latter's will; and (e) she did not authorize
Atty. Numeriano Estenzo or other lawyers to present a motion to this
Court after 25 February 1981 when Estenzo withdrew as counsel for
private respondents. She then asks this Court to consider as
withdrawn her Opposition to the Allowance of the Will, her
participation in the Omnibus Motion for Reconsideration and her
Opposition to this petition.
Due to this development, We required private respondent
Concepcion M. Espina to comment on the affidavit of private
respondent Maria M. Vda. de Gandiongco.
On 17 August 1985, private respondents filed a joint
manifestation 29 wherein they claim that Maria M. Vda. de
Gandiongco does not remember, executing the affidavit. A few
weeks before the affidavit was filed, particularly on 17 June 1985,
Maria M. Vda. de Gandiongco was confined in the hospital; she
could not recall having signed, during this period, any affidavit or
recognized her sisters and other relatives.
On 19 September 1985, respondent Maria M. Vda. de Gandiongco,
through special counsel, filed a Manifestation/Motion with a second
Affidavit attached thereto30 confessing that she signed the Joint
Manifestation dated 16 August 1985 "without knowing or being
informed of its contents, and only upon Mrs. Concepcion Espina's
request." She reiterated her desire to withdraw from the Omnibus
Motion for Reconsideration filed in Sp. Proc. No, 3309-R as well as
from the instant petition.
Despite the valiant attempt of private respondent Concepcion M.
Espina to influence and control the action of Maria Gandiongco,
there is nothing in the records that would cast any doubt on the
irrevocability of the latter's decision to withdraw her participation in
the Omnibus Motion for Reconsideration and Opposition to this
case. That decision, however, is not a ground for dropping her as a
private respondent as the respondent Judge had already issued the
abovementioned Order of 2 June 1980.
The petition and the supplemental petitions are impressed with
merit.
We do not hesitate to rule that the respondent Judge committed
grave abuse of discretion amounting to lack of jurisdiction when he
granted the Omnibus Motion for Reconsideration and thereafter set
aside the probate judgment of 13 November 1972 in Sp. Proc. No.
3309-R, declared the subject will of the testatrix a forgery, nullified
the testamentary dispositions therein and ordered the conversion of
the testate proceedings into one of intestacy.
It is not disputed that private respondents filed on the day of the
initial hearing of the petition their "Withdrawal of Opposition To
Allowance of Probate (sic) Will" wherein they unequivocally state
that they have no objection to the allowance of the will. For all legal
intents and purposes, they became proponents of the same.
After the probate court rendered its decision on 13 November 1972,
and there having been no claim presented despite publication of
notice to creditors, petitioner Fran submitted a Project of Partition
which private respondent Maria M. Vda. de Gandiongco voluntarily
signed and to which private respondent Espina expressed her
conformity through a certification filed with the probate court.
Assuming for the sake of argument that private respondents did not
receive a formal notice of the decision as they claim in their

Omnibus Motion for Reconsideration, these acts nevertheless
constitute indubitable proof of their prior actual knowledge of the
same. A formal notice would have been an idle ceremony. In testate
proceedings, a decision logically precedes the project of partition,
which is normally an implementation of the will and is among the last
operative acts to terminate the proceedings. If private respondents
did not have actual knowledge of the decision, they should have
desisted from performing the above acts and instead demanded
from petitioner Fran the fulfillment of his alleged promise to show
them the will. The same conclusion refutes and defeats the plea that
they were not notified of the order authorizing the Clerk of Court to
receive the evidence and that the Clerk of Court did not notify them
of the date of the reception of evidence. Besides, such plea must fail
because private respondents were present when the court dictated
the said order.
Neither do We give any weight to the contention that the reception of
evidence by the Clerk of Court is null and void per the doctrine laid,
down in Lim Tanhu vs. Ramolete. 31 In the first place, Lim
Tanhu was decided on 29 August 1975, nearly four (4) years after
the probate court authorized the Clerk of Court to receive the
evidence for the petitioner in this case. A month prior to Lim Tanhu,
or on 30 July 1975, this Court, in Laluan vs. Malpaya, 32 recognized
and upheld the practice of delegating the reception of evidence to
Clerks of Court. Thus:
No provision of law or principle of public policy prohibits a court from
authorizing its clerk of court to receive the evidence of a party
litigant. After all, the reception of evidence by the clerk of court
constitutes but a ministerial task — the taking down of the testimony
of the witnesses and the marking of the pieces of documentary
evidence, if any, adduced by the party present. This task of receiving
evidence precludes, on the part of the clerk of court the exercise of
judicial discretion usually called for when the other party who is
present objects to questions propounded and to the admission of the
documentary evidence proffered. 33 More importantly, the duty to
render judgment on the merits of the case still rests with the judge
who is obliged to personally and directly prepare the decision based
upon the evidence reported. 34
But where the proceedings before the clerk of court and the
concomitant result thereof, i.e., the judgment rendered by the court
based on the evidence presented in such limited proceedings,
prejudice the substantial rights of the aggrieved party, then there
exists, sufficient justification to grant the latter complete opportunity
to thresh out his case in court. 35
Monserrate vs. Court of Appeals, 36 decided on 29 September
1989, reiterated this rule. Lim Tanhu then cannot be used as
authority to nullify the order of the probate court authorizing the
Clerk of Court to receive the evidence for the rule is settled that
"when a doctrine of this Court is overruled and a different view is
adopted, the new doctrine should be applied prospectively, and
should not apply to parties who had relied on the old doctrine and
acted on the faith thereof." 37 It may also be emphasized in this
connection that Lim Tanhu did not live long; it was subsequently
overruled in Gochangco vs. Court of First Instance of Negros
Occidental, 38 wherein this Court, en banc, through Justice, now
Chief Justice, Andres R. Narvasa, in reference to what the trial court
termed as "the doctrinal rule laid down in the recent case of Lim Tan
Hu (sic) vs. Ramolete," ruled:
Now, that declaration does not reflect long observed and established
judicial practice with respect to default cases. It is not quite
consistent, too, with the several explicitly authorized instances under
the Rules where the function of receiving evidence and even of
making recommendatory findings of facts on the basis thereof may
be delegated to commissioners, inclusive of the Clerk of Court.
SPECIAL PROCEEDINGS (Atty. Geraldine Quimosing-Tiu) 13
COMPILATION OF CASES
These instances are set out in Rule 33, . . . ; Rule 67 and 69, . . . ;
Rule 86, . . . ; Rule 136, . . . . In all these instances, the competence
of the clerk of court is assumed. Indeed, there would seem, to be
sure, nothing intrinsically wrong in allowing presentation of
evidence ex parte before a Clerk of Court. Such a procedure
certainly does not foreclose relief to the party adversely affected
who, for valid cause and upon appropriate and seasonable
application, may bring about the undoing thereof or the elimination of
prejudice thereby caused to him; and it is, after all, the Court itself
which is duty bound and has the ultimate responsibility to pass upon
the evidence received in this manner, discarding in the process such
proofs as are incompetent and then declare what facts have thereby
been established. In considering and analyzing the evidence
preparatory to rendition of judgment on the merits, it may not
unreasonably be assumed that any serious error in the ex-
parte presentation of evidence, prejudicial to any absent party, will
be detected and duly remedied by the Court, and/or may always, in
any event, be drawn to its attention by any interested party.
xxx xxx xxx
It was therefore error for the Court a quo to have declared the
judgment by default to be fatally flawed by the fact that the plaintiff's
evidence had been received not by the Judge himself but by the
clerk of court.
The alternative claim that the proceedings before the Clerk of Court
were likewise void because said official did not take an oath is
likewise untenable. The Clerk of Court acted as such when he
performed the delegated task of receiving evidence. It was not
necessary for him to take an oath for that purpose; he was bound by
his oath of office as a Clerk of Court. Private respondents are
obviously of the impression that by the delegation of the reception of
evidence to the Clerk of Court, the latter became a commissioner as
defined under Rule 33 of the Rules of Court entitled Trial by
Commissioner. This is not correct; as this Court said in Laluan:
The provisions of Rule 33 of the Rules of Court invoked by both
parties properly relate to the reference by a court of any or all of the
issues in a case to a person so commissioned to act or report
thereon. These provisions explicitly spell out the rules governing the
conduct of the court, the commissioner, and the parties before,
during, and after the reference proceedings. Compliance with these
rules of conduct becomes imperative only when the court formally
orders a reference of the case to a commissioner. Strictly speaking
then, the provisions of Rule 33 find no application to the case at bar
where the court a quo merely directed the clerk of court to take down
the testimony of the witnesses presented and to mark the
documentary evidence proferred on a date previously set for
hearing.
Belatedly realizing the absence of substance of the above grounds,
private respondents now claim in their Comments to the Petition and
the Supplemental Petition that the trial court never acquired
jurisdiction over the petition because only the English translation of
the will — and not a copy of the same — was attached to the
petition; the will was not even submitted to the court for their
examination within twenty (20) days after the death of the testatrix;
and that there was fraud in the procurement of the probate judgment
principally because they were not given any chance to examine the
signature of the testatrix and were misled into signing the withdrawal
of their opposition on the assurance of petitioner Fran and their
sister, Rosario M. Tan, that the will would be shown to them during
the trial. These two grounds easily serve as the bases for the
postulation that the decision is null and void and so, therefore, their
omnibus motion became all the more timely and proper.
The contentions do not impress this Court.

In Santos vs. Castillo 39 and Salazar vs. Court of First Instance of
Laguna, 40 decided six (6) months apart in 1937, this Court already
ruled that it is not necessary that the original of the will be attached
to the petition. In the first, it ruled: "The original of said document
[the will] must be presented or sufficient reasons given to justify the
nonpresentation of said original and the acceptance of the copy or
duplicate thereof." 41 In the second case, this Court was more
emphatic in holding that:
The law is silent as to the specific manner of bringing the
jurisdictional allegations before the court, but practice and
jurisprudence have established that they should be made in the form
of an application and filed with the original of the will attached
thereto. It has been the practice in some courts to permit attachment
of a mere copy of the will to the application, without prejudice to
producing the original thereof at the hearing or when the court so
requires. This precaution has been adopted by some attorneys to
forestall its disappearance, which has taken place in certain
cases. 42
That the annexing of the original will to the petition is not a
jurisdictional requirement is clearly evident in Section 1, Rule 76 of
the Rules of Court which allows the filing of a petition for probate by
the person named therein regardless of whether or not he is in
possession of the will, or the same is lost or destroyed. The section
reads in full as follows:
Sec. 1. Who may petition for the allowance of will. — Any executor,
devisee, or legatee named in a will, or any other person interested in
the estate, may, at any time after the death of the testator, petition
the court having jurisdiction to have the will allowed, whether the
same be in his possession or not, or is lost or destroyed.
In the instant case, a copy of the original will and its English
translation were attached to the petition as Annex "A" and Annex "A-
1", respectively, and made integral parts of the same. It is to be
presumed that upon the filing of the petition the Clerk of Court, or his
duly authorized subordinate, examined the petition and found that
the annexes mentioned were in fact attached thereto. If they were
not, the petition cannot be said to have been properly presented and
the Clerk of Court would not have accepted it for docketing. Under
Section 6, Rule 136 of the Rules of Court, the Clerk of Court shall
receive and file all pleadings and other papers properly presented,
endorsing on each such paper the time when it was filed. The
presumption of regularity in the performance of official duty militates
against private respondents' claim that Annex "A" of the petition was
not in fact attached thereto.
The certification of the Assistant Clerk of Court issued on 8 April
1980, 43 or SIX (6) months after the filing of the motion for
reconsideration, to the effect that as per examination of the records
of Sp. Proc. No. 3309-R, "the copy of the Will mentioned in the
petition as Annex "A" is not found to be attached as of this date in
the said petition; only the English Translation of said Will is attached
thereof (sic) as Annex "A-1" does not even save the day for private
respondents. It is not conclusive because it fails to state the fact that
as hereafter shown, the pages of the records which correspond to
the four (4) pages of Annex "A" were missing or were detached
therefrom. As emphatically asserted by the petitioners in their Reply
to the Comments of private respondents, 44 duly supported by a
certification of the former Clerk of Court of the original Branch VIII of
the court below, 45 and which private respondents merely generally
denied in their motion for reconsideration with comments and
opposition to consolidated reply, 46 the four-page xerox copy of will,
marked as Annex "A" of the petition, became, as properly marked by
the personnel of the original Branch VIII of the court below upon the
filing of the petition, pages 5, 6, 7 and 8 while the translation thereof,
marked as Annex "A-1", became pages 9, 10, 11 and 12 of the
SPECIAL PROCEEDINGS (Atty. Geraldine Quimosing-Tiu) 14
COMPILATION OF CASES
records. The markings were done in long hand. The records of the
case were thereafter sent to the Clerk of Court, 14th Judicial District,
Cebu City on 9 February 1978. These records, now in the
possession of the respondent Judge, show that said pages 5, 6, 7
and 8 in long are missing. As a consequence thereof, petitioners
filed with the Executive Judge of the court below an administrative
complaint.
It is not likewise disputed that the original of the will was submitted in
evidence and marked as Exhibit "F". It forms part of the records of
the special proceedings — a fact which private respondents admit in
their Omnibus Motion for Reconsideration, thus:
9. That an examination of the alleged will of our deceased sister has
revealed that the signatures at the left hand margin of Exhibit "F",
are written by (sic) different person than the signature appearing at
the bottom of said alleged will . . . 47
The availability of the will since 18 September 1972 for their
examination renders completely baseless the private respondents'
claim of fraud on petitioner Fran's part in securing the withdrawal of
their opposition to the probate of the will. If indeed such withdrawal
was conditioned upon Fran's promise that the private respondents
would be shown the will during the trial, why weren't the appropriate
steps taken by the latter to confront Fran about this promise before
certifications of conformity to the project of partition were filed?
Granting for the sake of argument that the non-fulfillment of said
promise constitutes fraud, such fraud is not of the kind which
provides sufficient justification for a motion for reconsideration or a
petition for relief from judgment under Rule 37 and Rule 38,
respectively, of the Rules of Court, or even a separate action for
annulment of judgment. It is settled that for fraud to be invested with,
sufficiency, it must be extrinsic or collateral to the matters involved in
the issues raised during the trial which resulted in such judgment. 48
In Our jurisdiction, the following courses of action are open to an
aggrieved party to set aside or attack the validity of a final judgment:
(1) Petition for relief under Rule 38 of the Rules of Court which must
be filed within sixty (60) days after learning of the decision, but not
more than six (6) months after such decision is entered;
(2) By direct action, via a special civil action for certiorari, or by
collateral attack, assuming that the decision is void for want of
jurisdiction;
(3) By an independent civil action under Article 1114 of the Civil
Code, assuming that the decision was obtained through fraud and
Rule 38 can not be applied. 49
It is not difficult to see that private respondents had lost their right to
file a petition for relief from judgment, it appearing that their omnibus
motion for reconsideration was filed exactly six (6) years, ten (10)
months and twenty-two (22) days after the rendition of the decision,
and six (6) years, one (1) month and thirteen (13) days after the
court issued the order approving the Project of Partition, to which
they voluntarily expressed their conformity through their respective
certifications, and closing the testate proceedings.
Private respondents did not avail of the other two (2) modes of
attack.
The probate judgment of 13 November 1972, long final and
undisturbed by any attempt to unsettle it, had inevitably passed
beyond the reach of the court below to annul or set the same aside,
 SPECIAL PROCEEDINGS (Atty. Geraldine Quimosing-Tiu) 15
COMPILATION OF CASES

by mere motion, on the ground that the will is a forgery. Settled is

the rule that the decree of probate is conclusive with respect to the
due execution of the will and it cannot be impugned on any of the
grounds authorized by law, except that of fraud, in any separate or
independent action or proceeding. 50 We wish also to advert to the
related doctrine which holds that final judgments are entitled to
respect and should not be disturbed; otherwise, there would be a
wavering of trust in the courts. 51 In Lee Bun Ting vs.
Aligaen, 52 this Court had the occasion to state the rationale of this
doctrine, thus:

Reasons of public policy, judicial orderliness, economy and judicial

time and the interests of litigants, as well as the peace and order of
society, all require that stability be accorded the solemn and final
judgments of the courts or tribunals of competent jurisdiction.

This is so even if the decision is incorrect 53 or, in criminal cases,

the penalty imposed is erroneous. 54

Equally baseless and unmeritorious is private respondents'

contention that the order approving the Project of Partition and
closing the proceedings is null and void because the Project of
Partition did not contain a notice of hearing and that they were not
notified of the hearing thereon. In truth, in her own
certification 55 dated 5 September 1973, private respondent
Concepcion M. Espina admitted that she "received a copy of the
Project of Partition and the Notice of Hearing in the above-entitled
proceeding, and that she has no objection to the approval of the said
Project of Partition." The notice of hearing she referred to is the
Notice of Hearing For Approval of Project of Partition issued on 6
August 1973 by the Clerk of Court. 56 Private respondent Espina
was lying through her teeth when she claimed otherwise.

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

petitioners, is not a ground for the re-opening of the testate
proceedings. A seasonable motion for execution should have been
filed. In De Jesus vs. Daza, 57 this Court ruled that if the executor or
administrator has possession of the share to be delivered, the
probate court would have jurisdiction within the same estate
proceeding to order him to transfer that possession to the person
entitled thereto. This is authorized under Section 1, Rule 90 of the
Rules of Court. However, if no motion for execution is filed within the
reglementary period, a separate action for the recovery of the shares
would be in order. As We see it, the attack of 10 September 1973 on
the Order was just a clever ploy to give asemblance of strength and
substance to the Omnibus Motion for Reconsideration by depicting
therein a probate court committing a series of fatal, substantive and
procedural blunders, which We find to be imaginary, if not
deliberately fabricated.

WHEREFORE, the instant petition and supplemental petitions are

GRANTED. The Order of respondent Judge of 2 June 1980 and all
other orders issued by him in Sp. Proc. No. 3309-R, as well as all
other proceedings had therein in connection with or in relation to the
Omnibus Motion for Reconsideration, are hereby ANNULLED and
SET ASIDE.

The restraining order issued on 2 June 1980 is hereby made

PERMANENT.

Costs against private respondent Concepcion M. Espina.

SO ORDERED.

NOTICE OF HEARING
ALABAN v. CA
Republic of the Philippines
SUPREME COURT
SECOND DIVISION
G.R. No. 156021 September 23, 2005
CYNTHIA C. ALABAN, FRANCIS COLLADO, JOSE P. COLLADO,
JUDITH PROVIDO, CLARITA PROVIDO, ALFREDO PROVIDO,
MANUEL PROVIDO, JR., LORNA DINA E. PROVIDO, SEVERO
ARENGA, JR., SERGIO ARENGA, EDUARDO ARENGA, CAROL
ARENGA, RUTH BABASA, NORMA HIJASTRO, DOLORES M.
FLORES, ANTONIO MARIN, JR., JOSE MARIN, SR., and
MATHILDE MARIN, Petitioners,
vs.
COURT OF APPEALS and FRANCISCO H.
PROVIDO, Respondent.
DECISION
Tinga, J.:
This is a petition for review of the Resolutions1 of the
Court of Appeals (CA) in CA-G.R. SP No. 69221,2 dismissing
petitioners’ petition for annulment of judgment.
On 8 November 2000, respondent Francisco Provido (respondent)
filed a petition, docketed as SP Proc. No. 00-135, for the probate of
the Last Will and Testament3 of the late Soledad Provido
Elevencionado ("decedent"), who died on 26 October 2000 in
Janiuay, Iloilo.4 Respondent alleged that he was the heir of the
decedent and the executor of her will. On 30 May 2001, the
Regional Trial Court (RTC), Branch 68, in P.D. Monfort North,
Dumangas, Iloilo, rendered its Decision,5 allowing the probate of the
will of the decedent and directing the issuance of letters
testamentary to respondent.6
More than four (4) months later, or on 4 October 2001, herein
petitioners filed a motion for the reopening of the probate
proceedings.7 Likewise, they filed an opposition to the allowance of
the will of the decedent, as well as the issuance of letters
testamentary to respondent,8 claiming that they are the intestate
heirs of the decedent. Petitioners claimed that the RTC did not
acquire jurisdiction over the petition due to non-payment of the
correct docket fees, defective publication, and lack of notice to the
other heirs. Moreover, they alleged that the will could not have been
probated because: (1) the signature of the decedent was forged; (2)
the will was not executed in accordance with law, that is, the
witnesses failed to sign below the attestation clause; (3) the
decedent lacked testamentary capacity to execute and publish a will;
(4) the will was executed by force and under duress and improper
pressure; (5) the decedent had no intention to make a will at the time
of affixing of her signature; and (6) she did not know the properties
to be disposed of, having included in the will properties which no
longer belonged to her. Petitioners prayed that the letters
testamentary issued to respondent be withdrawn and the estate of
the decedent disposed of under intestate succession. 9
SPECIAL PROCEEDINGS (Atty. Geraldine Quimosing-Tiu) 16
COMPILATION OF CASES
On 11 January 2002, the RTC issued an Order10 denying petitioners’
motion for being unmeritorious. Resolving the issue of jurisdiction,
the RTC held that petitioners were deemed notified of the hearing by
publication and that the deficiency in the payment of docket fees is
not a ground for the outright dismissal of the petition. It merely
required respondent to pay the deficiency.11 Moreover, the
RTC’s Decision was already final and executory even before
petitioners’ filing of the motion to reopen.12
Petitioners thereafter filed a petition13 with an application for
preliminary injunction with the CA, seeking the annulment of the
RTC’s Decision dated 30 May 2001 and Order dated 11 January
2002. They claimed that after the death of the decedent, petitioners,
together with respondent, held several conferences to discuss the
matter of dividing the estate of the decedent, with respondent
agreeing to a one-sixth (1/6) portion as his share. Petitioners
allegedly drafted a compromise agreement to implement the division
of the estate. Despite receipt of the agreement, respondent refused
to sign and return the same. Petitioners opined that respondent
feigned interest in participating in the compromise agreement so that
they would not suspect his intention to secure the probate of the
will.14 They claimed that they learnt of the probate proceedings only
in July of 2001, as a result of which they filed their motion to reopen
the proceedings and admit their opposition to the probate of the will
only on 4 October 2001. They argued that the RTC Decision should
be annulled and set aside on the ground of extrinsic fraud and lack
of jurisdiction on the part of the RTC.15
In its Resolution16 promulgated on 28 February 2002, the CA
dismissed the petition. It found that there was no showing that
petitioners failed to avail of or resort to the ordinary remedies of new
trial, appeal, petition for relief from judgment, or other appropriate
remedies through no fault of their own.17 Moreover, the CA declared
as baseless petitioners’ claim that the proceedings in the RTC was
attended by extrinsic fraud. Neither was there any showing that they
availed of this ground in a motion for new trial or petition for relief
from judgment in the RTC, the CA added.18 Petitioners sought
reconsideration of the Resolution, but the same was denied by the
CA for lack of merit.19
Petitioners now come to this Court, asserting that the CA committed
grave abuse of discretion amounting to lack of jurisdiction when it
dismissed their petition for the alleged failure to show that they have
not availed of or resorted to the remedies of new trial, appeal,
petition for relief from judgment or other remedies through no fault of
their own, and held that petitioners were not denied their day in court
during the proceedings before the RTC.20 In addition, they assert
that this Court has yet to decide a case involving Rule 47 of the
Rules of Court and, therefore, the instant petition should be given
due course for the guidance of the bench and bar.21
For his part, respondent claims that petitioners were in a position to
avail of the remedies provided in Rules 37 and 38, as they in fact did
when they filed a motion for new trial.22 Moreover, they could have
resorted to a petition for relief from judgment since they learned of
the RTC’s judgment only three and a half months after its
promulgation.23Respondent likewise maintains that no extrinsic fraud
exists to warrant the annulment of the RTC’s Decision, since there
was no showing that they were denied their day in court. Petitioners
were not made parties to the probate proceedings because the
decedent did not institute them as her heirs.24 Besides,
assuming arguendo that petitioners are heirs of the decedent, lack of
notice to them is not a fatal defect since personal notice upon the
heirs is a matter of procedural convenience and not a jurisdictional
requisite.25 Finally, respondent charges petitioners of forum–
shopping, since the latter have a pending suit involving the same
issues as those in SP No. 00-135, that is SP No. 118126 filed before

Branch 23, RTC of General Santos City and subsequently pending
on appeal before the CA in CA-G.R. No.74924.27
It appears that one of the petitioners herein, Dolores M. Flores
("Flores"), who is a niece of the decedent, filed a petition for letters
of administration with the RTC of General Santos City, claiming that
the decedent died intestate without any issue, survived by five
groups of collateral heirs. Flores, armed with a Special Power of
Attorney from most of the other petitioners, prayed for her
appointment as administratrix of the estate of the decedent. The
RTC dismissed the petition on the ground of lack of jurisdiction,
stating that the probate court in Janiuay, Iloilo has jurisdiction since
the venue for a petition for the settlement of the estate of a decedent
is the place where the decedent died. This is also in accordance with
the rule that the first court acquiring jurisdiction shall continue
hearing the case to the exclusion of other courts, the RTC
added.28 On 9 January 2002, Flores filed a Notice of Appeal 29and
on 28 January 2002, the case was ordered forwarded to the CA. 30
Petitioners maintain that they were not made parties to the case in
which the decision sought to be annulled was rendered and, thus,
they could not have availed of the ordinary remedies of new trial,
appeal, petition for relief from judgment and other appropriate
remedies, contrary to the ruling of the CA. They aver that
respondent’s offer of a false compromise and his failure to notify
them of the probate of the will constitute extrinsic fraud that
necessitates the annulment of the RTC’s judgment.31
The petition is devoid of merit.
Section 37 of the Rules of Court allows an aggrieved party to file a
motion for new trial on the ground of fraud, accident, mistake, or
excusable negligence. The same
Rule permits the filing of a motion for reconsideration on the grounds
of excessive award of damages, insufficiency of evidence to justify
the decision or final order, or that the decision or final order is
contrary to law.32 Both motions should be filed within the period for
taking an appeal, or fifteen (15) days from notice of the judgment or
final order.
Meanwhile, a petition for relief from judgment under Section 3 of
Rule 38 is resorted to when a judgment or final order is entered, or
any other proceeding is thereafter taken, against a party in any court
through fraud, accident, mistake, or excusable negligence. Said
party may file a petition in the same court and in the same case to
set aside the judgment, order or proceeding. It must be filed within
sixty (60) days after the petitioner learns of the judgment and within
six (6) months after entry thereof.33
A motion for new trial or reconsideration and a petition for relief from
judgment are remedies available only to parties in the proceedings
where the assailed
judgment is rendered.34 In fact, it has been held that a person who
was never a party to the case, or even summoned to appear therein,
cannot avail of a petition for relief from judgment.35
However, petitioners in this case are mistaken in asserting that they
are not or have not become parties to the probate proceedings.
Under the Rules of Court, any executor, devisee, or legatee named
in a will, or any other person interested in the estate may, at any
time after the death of the testator, petition the court having
jurisdiction to have the will allowed.36Notice of the time and place for
proving the will must be published for three (3) consecutive weeks,
SPECIAL PROCEEDINGS (Atty. Geraldine Quimosing-Tiu) 17
COMPILATION OF CASES
in a newspaper of general circulation in the province,37 as well as
furnished to the designated or other known heirs, legatees, and
devisees of the testator.38 Thus, it has been held that a proceeding
for the probate of a will is one in rem, such that with the
corresponding publication of the petition the court's jurisdiction
extends to all persons interested in said will or in the settlement of
the estate of the decedent.39
Publication is notice to the whole world that the proceeding has for
its object to bar indefinitely all who might be minded to make an
objection of any sort against the right sought to be established. It is
the publication of such notice that brings in the whole world as a
party in the case and vests the court with jurisdiction to hear and
decide it.40 Thus, even though petitioners were not mentioned in the
petition for probate, they eventually became parties thereto as a
consequence of the publication of the notice of hearing.
As parties to the probate proceedings, petitioners could have validly
availed of the remedies of motion for new trial or reconsideration and
petition for relief from judgment. In fact, petitioners filed a motion to
reopen, which is essentially a motion for new trial, with petitioners
praying for the reopening of the case and the setting of further
proceedings. However, the motion was denied for having been filed
out of time, long after the Decision became final and executory.
Conceding that petitioners became aware of the Decision after it had
become final, they could have still filed a petition for relief from
judgment after the denial of their motion to reopen. Petitioners claim
that they learned of the Decision only on 4 October 2001, or almost
four (4) months from the time the Decision had attained finality. But
they failed to avail of the remedy.
For failure to make use without sufficient justification of the said
remedies available to them, petitioners could no longer resort to a
petition for annulment of judgment; otherwise, they would benefit
from their own inaction or negligence.41
Even casting aside the procedural requisite, the petition for
annulment of judgment must still fail for failure to comply with the
substantive requisites, as the appellate court ruled.
An action for annulment of judgment is a remedy in law independent
of the case where the judgment sought to be annulled was
rendered.42 The purpose of such action is to have the final and
executory judgment set aside so that there will be a renewal of
litigation. It is resorted to in cases where the ordinary remedies of
new trial, appeal, petition for relief from judgment, or other
appropriate remedies are no longer available through no fault of the
petitioner,43 and is based on only two grounds: extrinsic fraud, and
lack of jurisdiction or denial of due process.44 A person need not be
a party to the judgment sought to be annulled, and it is only essential
that he can prove his allegation that the judgment was obtained by
the use of fraud and collusion and he would be adversely affected
thereby.45
An action to annul a final judgment on the ground of fraud lies only if
the fraud is extrinsic or collateral in character. 46Fraud is regarded as
extrinsic where it prevents a party from having a trial or from
presenting his entire case to the court, or where it operates upon
matters pertaining not to the judgment itself but to the manner in
which it is procured. The overriding consideration when extrinsic
fraud is alleged is that the fraudulent scheme of the prevailing litigant
prevented a party from having his day in court.47
To sustain their allegation of extrinsic fraud, petitioners assert that
as a result of respondent’s deliberate omission or concealment of
their names, ages and residences as the other heirs of the decedent
 SPECIAL PROCEEDINGS (Atty. Geraldine Quimosing-Tiu) 18
COMPILATION OF CASES

in his petition for allowance of the will, they were not notified of the ARANZ v. GALING
proceedings, and thus they were denied their day in court. In
addition, they claim that respondent’s offer of a false compromise
Republic of the Philippines
even before the filing of the petition prevented them from appearing
SUPREME COURT
and opposing the petition for probate.
Manila

The Court is not convinced.

SECOND DIVISION

According to the Rules, notice is required to be personally given to

known heirs, legatees, and devisees of the testator. 48 A perusal of
the will shows that respondent was instituted as the sole heir of the
decedent. Petitioners, as nephews and nieces of the decedent, are
neither compulsory nor testate heirs49 who are entitled to be notified
of the probate proceedings under the Rules. Respondent had no
legal obligation to mention petitioners in the petition for probate, or to
personally notify them of the same.
Besides, assuming arguendo that petitioners are entitled to be so
notified, the purported infirmity is cured by the publication of the
notice. After all, personal notice upon the heirs is a matter of
procedural convenience and not a jurisdictional requisite.50
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.

The non-inclusion of petitioners’ names in the petition and the

Belo, Abiera and Associates for petitioners.
alleged failure to personally notify them of the proceedings do not
constitute extrinsic fraud. Petitioners were not denied their day in
court, as they were not prevented from participating in the Miguel J. Lagman for respondents.
proceedings and presenting their case before the probate court.

One other vital point is the issue of forum-shopping against

petitioners. Forum-shopping consists of filing multiple suits in PADILLA, J.:
different courts, either simultaneously or successively, involving the
same parties, to ask the courts to rule on the same or related causes
This is a petition for review on certiorari of the decision 1 of the Court
and/or to grant the same or substantially same reliefs,51 on the
of Appeals, dated 13 January 1987, in CA-G.R. SP No. 09622,
supposition that one or the other court would make a favorable
entitled "Joaquina R-Infante de Aranz, et al., petitioners vs. Hon.
disposition.52 Obviously, the parties in the instant case, as well as in
Nicolas Galing, etc., et al., respondents," dismissing petitioners'
the appealed case before the CA, are the same. Both cases deal
petition for certiorari and prohibition as-, sailing the orders 2 of the
with the existence and validity of the alleged will of the decedent,
Regional Trial Court of Pasig, Branch 166, dated 12 May 1986 and
with petitioners anchoring their cause on the state of intestacy. In the
30 May 1986, respectively, in Sp. Proc. No. 9995, entitled, "In the
probate proceedings, petitioners’ position has always been that the
Matter of Petition for Approval of the Last Will and Testament of
decedent left no will and if she did, the will does not comply with the
Montserrat R-Infante y G-Pola Joaquin R. Infante, Petitioner."
requisites of a valid will. Indeed, that position is the bedrock of their
present petition. Of course, respondent maintains the contrary
stance. On the other hand, in the petition for letters of administration, On 3 March 1986, private respondent filed with the Regional Trial
petitioner Flores prayed for her appointment as administratrix of the 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
estate on the theory that the decedent died intestate. The petition
petitioners as legatees and devisees, as follows:
was dismissed on the ground of lack of jurisdiction, and it is this
order of dismissal which is the subject of review in CA-G.R. No.
74924. Clearly, therefore, there is forum-shopping. Joaquina R-Infante Roxas de Aranz residing at No. 86 10th St., New
Manila, Quezon City, Metro Manila;
Moreover, petitioners failed to inform the Court of the said pending
case in their certification against forum- shopping. Neither have they Antonio R-Infante Roxas residing at #91 Cambridge, North Forbes,
done so at any time thereafter. The Court notes that even in the Makati, Metro Manila;
petition for annulment of judgment, petitioners failed to inform the
CA of the pendency of their appeal in CA-G.R. No. 74924, even Carlos R-Infante Roxas residing at #46 Washington St., Greenhills,
though the notice of appeal was filed way before the petition for San Juan, Metro Manila;
annulment of judgment was instituted.
Mercedes R-Infante Roxas de Lednicky residing at #386 P.
WHEREFORE, the petition is DENIED. Costs against petitioners. Guevarra St., San Juan, Metro Manila;

SO ORDERED. 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:
SPECIAL PROCEEDINGS (Atty. Geraldine Quimosing-Tiu) 19
COMPILATION OF CASES
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.
 SPECIAL PROCEEDINGS (Atty. Geraldine Quimosing-Tiu) 20
COMPILATION OF CASES

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.

WHO MAY OPPOSE
ACAIN v. IAC
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 72706 October 27, 1987
CONSTANTINO C. ACAIN, petitioner,
vs.
HON. INTERMEDIATE APPELLATE COURT (Third Special Cases
Division), VIRGINIA A. FERNANDEZ and ROSA DIONGSON,
respondents.
PARAS, J.:
This is a petition for review on certiorari of the decision * of
respondent. Court of Appeals in AC-G.R. SP No. 05744
promulgated on August 30, 1985 (Rollo, p. 108) ordering the
dismissal of the petition in Special Proceedings No, 591 ACEB and
its Resolution issued on October 23, 1985 (Rollo, p. 72) denying
respondents' (petitioners herein) motion for reconsideration.
The dispositive portion of the questioned decision reads as follows:
WHEREFORE, the petition is hereby granted and respondent
Regional Trial Court of the Seventh Judicial Region, Branch XIII
(Cebu City), is hereby ordered to dismiss the petition in Special
Proceedings No. 591 ACEB No special pronouncement is made as
to costs.
The antecedents of the case, based on the summary of the
Intermediate Appellate Court, now Court of Appeals, (Rollo, pp. 108-
109) are as follows:
On May 29, 1984 petitioner Constantino Acain filed on the Regional
Trial Court of Cebu City Branch XIII, a petition for the probate of the
will of the late Nemesio Acain and for the issuance to the same
petitioner of letters testamentary, docketed as Special Proceedings
No. 591 ACEB (Rollo, p. 29), on the premise that Nemesio Acain
died leaving a will in which petitioner and his brothers Antonio,
Flores and Jose and his sisters Anita, Concepcion, Quirina and
Laura were instituted as heirs. The will allegedly executed by
Nemesio Acain on February 17, 1960 was written in Bisaya (Rollo,
p. 27) with a translation in English (Rollo, p. 31) submi'tted by
petitioner without objection raised by private respondents. The will
contained provisions on burial rites, payment of debts, and the
appointment of a certain Atty. Ignacio G. Villagonzalo as the
executor of the testament. On the disposition of the testator's
property, the will provided:
THIRD: All my shares that I may receive from our properties. house,
lands and money which I earned jointly with my wife Rosa Diongson
shall all be given by me to my brother SEGUNDO ACAIN Filipino,
widower, of legal age and presently residing at 357-C Sanciangko
Street, Cebu City. In case my brother Segundo Acain pre-deceased
me, all the money properties, lands, houses there in Bantayan and
here in Cebu City which constitute my share shall be given to me to
SPECIAL PROCEEDINGS (Atty. Geraldine Quimosing-Tiu) 21
COMPILATION OF CASES
his children, namely: Anita, Constantino, Concepcion, Quirina, laura,
Flores, Antonio and Jose, all surnamed Acain.
Obviously, Segundo pre-deceased Nemesio. Thus it is the children
of Segundo who are claiming to be heirs, with Constantino as the
petitioner in Special Proceedings No. 591 ACEB
After the petition was set for hearing in the lower court on June 25,
1984 the oppositors (respondents herein Virginia A. Fernandez, a
legally adopted daughter of tile deceased and the latter's widow
Rosa Diongson Vda. de Acain filed a motion to dismiss on the
following grounds for the petitioner has no legal capacity to institute
these proceedings; (2) he is merely a universal heir and (3) the
widow and the adopted daughter have been pretirited. (Rollo, p.
158). Said motion was denied by the trial judge.
After the denial of their subsequent motion for reconsideration in the
lower court, respondents filed with the Supreme Court a petition for
certiorari and prohibition with preliminary injunction which was
subsequently referred to the Intermediate Appellate Court by
Resolution of the Court dated March 11, 1985 (Memorandum for
Petitioner, p. 3; Rollo, p. 159).
Respondent Intermediate Appellate Court granted private
respondents' petition and ordered the trial court to dismiss the
petition for the probate of the will of Nemesio Acain in Special
Proceedings No. 591 ACEB
His motion for reconsideration having been denied, petitioner filed
this present petition for the review of respondent Court's decision on
December 18, 1985 (Rollo, p. 6). Respondents' Comment was filed
on June 6, 1986 (Rollo, p. 146).
On August 11, 1986 the Court resolved to give due course to the
petition (Rollo, p. 153). Respondents' Memorandum was filed on
September 22, 1986 (Rollo, p. 157); the Memorandum for petitioner
was filed on September 29, 1986 (Rollo, p. 177).
Petitioner raises the following issues (Memorandum for petitioner, p.
4):
(A) The petition filed in AC-G.R. No. 05744 for certiorari and
prohibition with preliminary injunction is not the proper remedy under
the premises;
(B) The authority of the probate courts is limited only to inquiring into
the extrinsic validity of the will sought to be probated and it cannot
pass upon the intrinsic validity thereof before it is admitted to
probate;
(C) The will of Nemesio Acain is valid and must therefore, be
admitted to probate. The preterition mentioned in Article 854 of the
New Civil Code refers to preterition of "compulsory heirs in the direct
line," and does not apply to private respondents who are not
compulsory heirs in the direct line; their omission shall not annul the
institution of heirs;
(D) DICAT TESTATOR ET MERIT LEX. What the testator says will
be the law;
(E) There may be nothing in Article 854 of the New Civil Code, that
suggests that mere institution of a universal heir in the will would
give the heir so instituted a share in the inheritance but there is a
definite distinct intention of the testator in the case at bar, explicitly
expressed in his will. This is what matters and should be in violable.

(F) As an instituted heir, petitioner has the legal interest and
standing to file the petition in Sp. Proc. No. 591 ACEB for probate of
the will of Nemesio Acain and
(G) Article 854 of the New Civil Code is a bill of attainder. It is
therefore unconstitutional and ineffectual.
The pivotal issue in this case is whether or not private respondents
have been pretirited.
Article 854 of the Civil Code provides:
Art. 854. The preterition or omission of one, some, or all of the
compulsory heirs in the direct line, whether living at the time of the
execution of the will or born after the death of the testator, shall
annul the institution of heir; but the devisees and legacies shall be
valid insofar as they are not; inofficious.
If the omitted compulsory heirs should die before the testator, the
institution shall he effectual, without prejudice to the right of
representation.
Preterition consists in the omission in the testator's will of the forced
heirs or anyone of them either because they are not mentioned
therein, or, though mentioned, they are neither instituted as heirs nor
are expressly disinherited (Nuguid v. Nuguid, 17 SCRA 450 [1966];
Maninang v. Court of Appeals, 114 SCRA 478 [1982]). Insofar as the
widow is concerned, Article 854 of the Civil Code may not apply as
she does not ascend or descend from the testator, although she is a
compulsory heir. Stated otherwise, even if the surviving spouse is a
compulsory heir, there is no preterition even if she is omitted from
the inheritance, for she is not in the direct line. (Art. 854, Civil code)
however, the same thing cannot be said of the other respondent
Virginia A. Fernandez, whose legal adoption by the testator has not
been questioned by petitioner (.Memorandum for the Petitioner, pp.
8-9). Under Article 39 of P.D. No. 603, known as the Child and
Youth Welfare Code, adoption gives to the adopted person the same
rights and duties as if he were a legitimate child of the adopter and
makes the adopted person a legal heir of the adopter. It cannot be
denied that she has totally omitted and preterited in the will of the
testator and that both adopted child and the widow were deprived of
at least their legitime. Neither can it be denied that they were not
expressly disinherited. Hence, this is a clear case of preterition of
the legally adopted child.
Pretention annuls the institution of an heir and annulment throws
open to intestate succession the entire inheritance including "la
porcion libre (que) no hubiese dispuesto en virtual de legado mejora
o donacion" Maniesa as cited in Nuguid v. Nuguid, supra; Maninang
v. Court of Appeals, 114 SCRA [1982]). The only provisions which
do not result in intestacy are the legacies and devises made in the
will for they should stand valid and respected, except insofar as the
legitimes are concerned.
The universal institution of petitioner together with his brothers and
sisters to the entire inheritance of the testator results in totally
abrogating the will because the nullification of such institution of
universal heirs-without any other testamentary disposition in the will-
amounts to a declaration that nothing at all was written. Carefully
worded and in clear terms, Article 854 of the Civil Code offers no
leeway for inferential interpretation (Nuguid v. Nuguid), supra. No
legacies nor devises having been provided in the will the whole
property of the deceased has been left by universal title to petitioner
and his brothers and sisters. The effect of annulling the "Institution of
heirs will be, necessarily, the opening of a total intestacy (Neri v.
Akutin, 74 Phil. 185 [1943]) except that proper legacies and devises
must, as already stated above, be respected.
SPECIAL PROCEEDINGS (Atty. Geraldine Quimosing-Tiu) 22
COMPILATION OF CASES
We now deal with another matter. In order that a person may be
allowed to intervene in a probate proceeding he must have an
interest iii the estate, or in the will, or in the property to be affected
by it either as executor or as a claimant of the estate and an
interested party is one who would be benefited by the estate such as
an heir or one who has a claim against the estate like a creditor
(Sumilang v. Ramagosa, 21 SCRA 1369/1967). Petitioner is not the
appointed executor, neither a devisee or a legatee there being no
mention in the testamentary disposition of any gift of an individual
item of personal or real property he is called upon to receive (Article
782, Civil Code). At the outset, he appears to have an interest in the
will as an heir, defined under Article 782 of the Civil Code as a
person called to the succession either by the provision of a will or by
operation of law. However, intestacy having resulted from the
preterition of respondent adopted child and the universal institution
of heirs, petitioner is in effect not an heir of the testator. He has no
legal standing to petition for the probate of the will left by the
deceased and Special Proceedings No. 591 A-CEB must be
dismissed.
As a general rule certiorari cannot be a substitute for appeal, except
when the questioned order is an oppressive exercise of j judicial
authority (People v. Villanueva, 110 SCRA 465 [1981]; Vda. de
Caldito v. Segundo, 117 SCRA 573 [1982]; Co Chuan Seng v. Court
of Appeals, 128 SCRA 308 [1984]; and Bautista v. Sarmiento, 138
SCRA 587 [1985]). It is axiomatic that the remedies of certiorari and
prohibition are not available where the petitioner has the remedy of
appeal or some other plain, speedy and adequate remedy in the
course of law (DD Comendador Construction Corporation v. Sayo
(118 SCRA 590 [1982]). They are, however, proper remedies to
correct a grave abuse of discretion of the trial court in not dismissing
a case where the dismissal is founded on valid grounds (Vda. de
Bacang v. Court of Appeals, 125 SCRA 137 [1983]).
Special Proceedings No. 591 ACEB is for the probate of a will. As
stated by respondent Court, the general rule is that the probate
court's authority is limited only to the extrinsic validity of the will, the
due execution thereof, the testator's testamentary capacity and the
compliance with the requisites or solemnities prescribed by law. The
intrinsic validity of the will normally comes only after the Court has
declared that the will has been duly authenticated. Said court at this
stage of the proceedings is not called upon to rule on the intrinsic
validity or efficacy of the provisions of the will (Nuguid v. Nuguid, 17
SCRA 449 [1966]; Sumilang v. Ramagosa, supra; Maninang v.
Court of Appeals, 114 SCRA 478 [1982]; Cayetano v. Leonides, 129
SCRA 522 [1984]; and Nepomuceno v. Court of Appeals, 139 SCRA
206 [1985]).
The rule, however, is not inflexible and absolute. Under exceptional
circumstances, the probate court is not powerless to do what the
situation constrains it to do and pass upon certain provisions of the
will (Nepomuceno v. Court of Appeals, supra). In Nuguid v. Nuguid
the oppositors to the probate moved to dismiss on the ground of
absolute preteriton The probate court acting on the motion held that
the will in question was a complete nullity and dismissed the petition
without costs. On appeal the Supreme Court upheld the decision of
the probate court, induced by practical considerations. The Court
said:
We pause to reflect. If the case were to be remanded for probate of
the will, nothing will be gained. On the contrary, this litigation will be
protracted. And for aught that appears in the record, in the event of
probate or if the court rejects the will, probability exists that the case
will come up once again before us on the same issue of the intrinsic
validity or nullity of the will. Result: waste of time, effort, expense,
plus added anxiety. These are the practical considerations that
induce us to a belief that we might as well meet head-on the issue of

the validity of the provisions of the will in question. After all there
exists a justiciable controversy crying for solution.
In Saguimsim v. Lindayag (6 SCRA 874 [1962]) the motion to
dismiss the petition by the surviving spouse was grounded on
petitioner's lack of legal capacity to institute the proceedings which
was fully substantiated by the evidence during the hearing held in
connection with said motion. The Court upheld the probate court's
order of dismissal.
In Cayetano v. Leonides, supra one of the issues raised in the
motion to dismiss the petition deals with the validity of the provisions
of the will. Respondent Judge allowed the probate of the will. The
Court held that as on its face the will appeared to have preterited the
petitioner the respondent judge should have denied its probate
outright. Where circumstances demand that intrinsic validity of
testamentary provisions be passed upon even before the extrinsic
validity of the will is resolved, the probate court should meet the
issue. (Nepomuceno v. Court of Appeals, supra; Nuguid v.
Nuguid, supra).
In the instant case private respondents filed a motion to dismiss the
petition in Sp. Proceedings No. 591 ACEB of the Regional Trial
Court of Cebu on the following grounds: (1) petitioner has no legal
capacity to institute the proceedings; (2) he is merely a universal
heir; and (3) the widow and the adopted daughter have been
preterited (Rollo, p. 158). It was denied by the trial court in an order
dated January 21, 1985 for the reason that "the grounds for the
motion to dismiss are matters properly to be resolved after a hearing
on the issues in the course of the trial on the merits of the case
(Rollo, p. 32). A subsequent motion for reconsideration was denied
by the trial court on February 15, 1985 (Rollo, p. 109).
For private respondents to have tolerated the probate of the will and
allowed the case to progress when on its face the will appears to be
intrinsically void as petitioner and his brothers and sisters were
instituted as universal heirs coupled with the obvious fact that one of
the private respondents had been preterited would have been an
exercise in futility. It would have meant a waste of time, effort,
expense, plus added futility. The trial court could have denied its
probate outright or could have passed upon the intrinsic validity of
the testamentary provisions before the extrinsic validity of the will
was resolved (Cayetano v. Leonides, supra; Nuquid v.
Nuguid, supra. The remedies of certiorari and prohibition were
properly availed of by private respondents.
Thus, this Court ruled that where the grounds for dismissal are
indubitable, the defendants had the right to resort to the more
speedy, and adequate remedies of certiorari and prohibition to
correct a grave abuse of discretion, amounting to lack of jurisdiction,
committed by the trial court in not dismissing the case, (Vda. de
Bacang v. Court of Appeals, supra) and even assuming the
existence of the remedy of appeal, the Court harkens to the rule that
in the broader interests of justice, a petition for certiorari may be
entertained, particularly where appeal would not afford speedy and
adequate relief. (Maninang Court of Appeals, supra).
PREMISES CONSIDERED, the petition is hereby DENIED for lack
of merit and the questioned decision of respondent Court of Appeals
promulgated on August 30, 1985 and its Resolution dated October
23, 1985 are hereby AFFIRMED.
SO ORDERED.
SPECIAL PROCEEDINGS (Atty. Geraldine Quimosing-Tiu) 23
COMPILATION OF CASES
MALOLES II v. PHILLIPS
xxx
LEVISTE v. CA
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-29184 January 30, 1989
BENEDICTO LEVISTE, petitioner,
vs.
THE COURT OF APPEALS, HON. JUDGE LUIS B. REYES,
COURT OF FIRST INSTANCE OF MANILA, ROSA DEL
ROSARIO, RITA BANU, CARMEN DE GUZMAN-MARQUEZ,
JESUS R. DE GUZMAN, RAMON R. DE GUZMAN, JACINTO R.
DE GUZMAN and ANTONIO R. DE GUZMAN, respondents.
Benedicto Leviste for and in his own behalf.
Gatchalian, Ignacio & Associates for respondents de Guzman.
GRIÑO-AQUINO, J.:
The issue in this case is whether or not an attorney who was
engaged on a contingent fee basis may, in order to collect his fees,
prosecute an appeal despite his client's refusal to appeal the
decision of the trial court.
On September 7, 1963, the petitioner, a practicing attorney, entered
into a written agreement with the private respondent Rosa del
Rosario to appear as her counsel in a petition for probate of the
holographic will of the late Maxima C. Reselva. Under the will, a
piece of real property at Sales Street, Quiapo, Manila, was
bequeathed to Del Rosario. It was agreed that petitioner's contigent
fee would be thirty-five per cent (35%) of the property that Rosa may
receive upon the probate of the will (Annex "A", p. 59, Rollo).
In accordance with their agreement, Leviste performed the following
services as Del Rosario's counsel:
(1) Thoroughly researched and studied the law on probate and
succession;
(2) Looked for and interviewed witnesses, and took their affidavits;
(3) Filed the petition for. probate is Special Proceeding No. 58325;
(4) Made the proper publications;
(5) Presented at the trial the following witnesses:
a) Eleuterio de Jesus
b) Lucita de Jesus
c) Purita L. Llanes

d) Rita Banu
e) Jesus Lulod.
On August 20, 1965, Leviste received a letter from Ms. Del Rosario,
informing him that she was terminating his services as her counsel
due to "conflicting interest." This consisted, according to the letter, in
petitioner's moral obligation to protect the interest of his brother-in-
law, Gaudencio M. Llanes, whom Del Rosario and the other parties
in the probate proceeding intended to eject as lessee of the property
which was bequeathed to Del Rosario under the will (Annex "B", p.
60, Rollo).
On September 20, 1965, petitioner filed a "Motion to Intervene to
Protect His Rights to Fees for Professional Services." (Annex "B", p.
60, Rollo.)
In an order dated November 12, 1965 the trial court denied his
motion on the ground that he had "not filed a claim for attorney's
fees nor recorded his attorney's lien." (p. 3, Rollo.)
On November 23, 1965, petitioner filed a "Formal Statement of
Claim for Attorney's Fees and Recording of Attorney's Lien,' which
was noted in the court's order of December 20, 1965 (Annexes "D"
and "E", pp. 63 & 64, Rollo).
Although the order denying his motion to intervene had become
final, petitioner continued to receive copies of the court's orders, as
well the pleadings of the other parties in the case. He also continued
to file pleadings. The case was submitted for decision without the
respondents' evidence.
On November 23, 1966, Del Rosario and Rita Banu, the special
administratrix-legatee, filed a "Motion To Withdraw Petition for
Probate" alleging that Del Rosario waived her rights to the devise in
her favor and agreed that the De Guzman brothers and sisters who
opposed her petition for probate, shall inherit all the properties left by
the decedent. (Annex "F", p. 65, Rollo.)
In an order of April 13, 1967 the trial court denied the motion to
withdraw the petition for being contrary to public policy (Annex "G",
pp. 66-67, Rollo).
Nonetheless, on August 28, 1967, the court disallowed the will,
holding that the legal requirements for its validity were not satisfied
as only two witnesses testified that the will and the testatrix's
signature were in the handwriting of Maxima Reselva.
The petitioner filed an appeal bond, notice of appeal, and record on
appeal. The private respondents filed a motion to dismiss the appeal
on the ground that petitioner was not a party in interest.
The petitioner opposed the motion to dismiss his appeal, claiming
that he has a direct and material interest in the decision sought to be
reviewed. He also asked that he be substituted as party-petitioner, in
lieu of his former client, Ms. Del Rosario.
On March 28, 1968, the trial judge dismissed the appeal and denied
petitioner's motion for substitution.
The petitioner filed in the Court of Appeals a petition
for mandamus (CA-G.R. No. 41248) praying that the trial court be
ordered to give due course to his appeal and to grant his motion for
substitution.
SPECIAL PROCEEDINGS (Atty. Geraldine Quimosing-Tiu) 24
COMPILATION OF CASES
On May 22, 1968, the Court of Appeals dismissed the petition for
being insufficient in form and substance as the petitioner did not
appear to be the proper party to appeal the decision in Special
Proceeding No. 58325 (Annex 1, p. 77, Rollo).
Upon the denial of his motion for reconsideration, petitioner
appealed by certiorari to this Court, assigning the following errors
against the Court of Appeals' resolution:
1. The Court of Appeals erred in finding that the petitioner appears
not to be the proper party to appeal the decision in Sp. Proc. No.
58325 of the Court of First Instance of Manila.
2. Assuming the petitioner's right of appeal is doubtful, the Court of
Appeals erred in dismissing his petition for mandamus; and
3. The Court of Appeals erred in not reversing the decision in Sp.
Proc. No. 58325 denying the probate of the holographic will of the
late Maxima C. Reselva, said decision being patently erroneous.
Under his first assignment of error, petitioner argues that by virtue of
his contract of services with Del Rosario, he is a creditor of the latter,
and that under Article 1052 of the Civil Code which provides:
ART. 1052. If the heir repudiates the inheritance to the prejudice of
his own creditors, the latter may petition the court to authorize them
to accept it in the name of the heir.
The acceptance shall benefit the creditors only to an extent sufficient
to cover the amount of their credits. The excess, should there be
any, shall in no case pertain to the renouncer, but shall be
adjudicated to the persons to whom, in accordance with the rules
established in this Code, it may belong.
he has a right to accept for his client Del Rosario to the extent of
35% thereof the devise in her favor (which she in effect repudiated)
to protect his contigent attorney's fees.
The argument is devoid of merit. Article 1052 of the Civil Code does
not apply to this case. That legal provision protects the creditor of a
repudiating heir. Petitioner is not a creditor of Rosa del Rosario. The
payment of his fees is contingent and dependent upon the
successful probate of the holographic will. Since the petition for
probate was dismissed by the lower court, the contingency did not
occur. Attorney Leviste is not entitled to his fee.
Furthermore, Article 1052 presupposes that the obligor is an heir.
Rosa del Rosario is not a legal heir of the late Maxima C. Reselva.
Upon the dismissal of her petition for probate of the decedent's will,
she lost her right to inherit any part of the latter's estate. There is
nothing for the petitioner to accept in her name.
This Court had ruled in the case of Recto vs. Harden, 100 Phil.
1427, that "the contract (for contingent attorney's fees) neither gives,
nor purports to give, to the appellee (lawyer) any right whatsoever,
personal or real, in and to her (Mrs. Harden's) aforesaid share in the
conjugal partnership. The amount thereof is simply a basis for
the computation of said fees."
The Court of Appeals did not err in dismissing the petition
for mandamus, for while it is true that, as contended by the
petitioner, public policy favors the probate of a will, it does not
necessarily follow that every will that is presented for probate,
should be allowed. The law lays down procedures which should be
observed and requisites that should be satisfied before a will may be
probated. Those procedures and requirements were not followed in
 SPECIAL PROCEEDINGS (Atty. Geraldine Quimosing-Tiu) 25
COMPILATION OF CASES

this case resulting in the disallowance of the will. There being no

valid will, the motion to withdraw the probate petition was
inconsequential.

Petitioner was not a party to the probate proceeding in the lower

court. He had no direct interest in the probate of the will. His only
interest in the estate is an indirect interest as former counsel for a
prospective heir. In Paras vs. Narciso, 35 Phil. 244, We had
occassion to rule that one who is only indirectly interested in a will
may not interfere in its probate. Thus:

... the reason for the rule excluding strangers from contesting the
will, is not that thereby the court maybe prevented from learning
facts which would justify or necessitate a denial of probate, but
rather that the courts and the litigants should not be molested by the
intervention in the proceedings of persons with no interest in the
estate which would entitle them to be heard with relation thereto.
(Paras vs. Narciso, 35 Phil. 244, 246.)

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

We are of the opinion that the lower court did not err in holding that
notice of an attorney's lien did not entitle the attorney-appellant to
subrogate himself in lieu of his client. It only gives him the right to
collect a certain amount for his services in case his client is awarded
a certain sum by the court.

WHEREFORE, the petition for certiorari is denied for lack of merit.

Costs against the petitioner.

SO ORDERED.