EN BANC Phil. Rep., 321), this court said:jgc:chanrobles.com.

ph

[G.R. No. 6207. August 4, 1911.] "Under the provisions of the Civil Code (arts. 657-661), the
rights to the succession of a person are transmitted from the
SIMON MALAHACAN, administrator of the goods, chattels moment of his death; in other words, the heirs succeed
and credits of GUILLERMA MARTINEZ, deceased, Plaintiff- immediately to all of the property of the deceased ancestor.
Appellee, v. JOSEFA IGNACIO, MACARIO IGNACIO, The property belongs to the heirs at the moment of the death of
PAULA IGNACIO and AGUEDA BUNAG, Defendants- the ancestor as completely as if the ancestor had executed and
Appellants. delivered to them a deed for the same before his death. In the
absence of debts existing against the estate, the heirs may
M. P. Leuterio, for Appellants. enter upon the administration of the said property immediately.
If they desire to administer it jointly, they may do so. If they
No appearance for Appellee. desire to partition it among themselves and can do this by
mutual agreement, they also have that privilege. The Code of
SYLLABUS Procedure in Civil Actions provides how an estate may be
divided by a petition for partition in case they can not mutually
1. EXECUTORS AND ADMINISTRATORS; RECOVERY OF agree in the division. When there are no debts existing against
REALTY FROM HEIRS. — The only ground upon which an the estate, there is certainly no occasion for the intervention of
administrator can demand of the heirs at law the possession of an administrator in the settlement and partition of the estate
real property, of which his intestate was seized at the time of among the heirs. When the heirs are all of lawful age and there
his death, is that such property will be required to be sold to are no debts, there is no reason why the estate should be
pay the debts of the deceased. burdened with the costs and expenses of an administrator. The
property belonging absolutely to the heirs, in the absence of
existing debts against the estate, the administrator has no right
to intervene in any way whatever in the division of the estate
DECISION among the heirs. They are co-owners of an undivided estate
and the law offers them a remedy for the division of the same
among themselves. There is nothing in the present case to
MORELAND, J.: show that the heirs requested the appointment of the
administrator, or that they intervened in any way whatever in
the present action. If there are any heirs of the estate who have
not received their participation, they have their remedy by
This is an appeal from a judgment of the Court of First Instance petition for partition of the said estate."cralaw virtua1aw library
of the sub-province of Marinduque, Province of Tayabas, the
Hon. J. S. Powell presiding, awarding the possession of the The judgment appealed from is reversed and the complaint
lands described in the complaint to the plaintiff, with costs. dismissed on the merits, without special finding as to costs.
The action is brought by Simon Malahacan as administrator of
the goods, chattels, and credits of Guillerma Martinez,
deceased, against the defendants, the only heirs at law of the
said deceased, to recover possession of the real estate of
which the said Guillerma Martinez died seized, which said real
estate the defendants had been occupying for some years
before the commencement of this action.

Under the provisions of the Civil Code the ownership of real

estate passes to the heirs of the owner instantly on his death.
Guillerma Martinez, having died seized of the lands involved in
this suit, leaving the defendants as her only heirs at law, it
follows that said heirs instantly became the owners and were
entitled to the immediate possession thereof. It is not alleged in
the complaint nor does it appear from the record or the
evidence in this case that there were debts ’outstanding
against Guillerma Martinez at the time of her death. The only
ground upon which an administrator can demand of the heirs at
law possession of the real estate of which his intestate died
seized is that such land will be required to be sold to pay the
debts of the deceased. In the case of Illustrate, administrator’
of the estate of the deceased Calzado, v. Alaras Frondosa (17
G.R. No. L-81147 June 20, 1989 In its resolution dated March 28, 1985, the Regional Trial discordant contentions of the parties as to the assets of the
Court, appointed private respondent Rita Pereira Nagac decedent's estate, the valuations thereof and the rights of the
administratrix of the intestate estate of Andres de Guzman transferees of some of the assets, if any. 6 The function of
VICTORIA BRINGAS PEREIRA, petitioner,
Pereira upon a bond posted by her in the amount of Pl,000.00. resolving whether or not a certain property should be included
vs.
The trial court ordered her to take custody of all the real and in the inventory or list of properties to be administered by the
THE HONORABLE COURT OF APPEALS and RITA
personal properties of the deceased and to file an inventory administrator is one clearly within the competence of the
PEREIRA NAGAC, respondents.
thereof within three months after receipt of the order. 3 probate court. However, the court's determination is only
provisional in character, not conclusive, and is subject to the
Benjamin J. Quitoriano for petitioner. final decision in a separate action which may be instituted by
Not satisfied with the resolution of the lower court, petitioner
the parties.7
brought the case to the Court of Appeals. The appellate court
Linzag-Arcilla & Associates Law Offices for private respondent. affirmed the appointment of private respondent as
administratrix in its decision dated December 15, 1987. 4 Assuming, however, that there exist assets of the deceased
Andres de Guzman Pereira for purposes of administration, We
GANCAYCO, J.: nonetheless find the administration proceedings instituted by
Hence, this petition for review on certiorari where petitioner
private respondent to be unnecessary as contended by
raises the following issues: (1) Whether or not there exists an
Is a judicial administration proceeding necessary when the petitioner for the reasons herein below discussed.
estate of the deceased Andres de Guzman Pereira for
decedent dies intestate without leaving any debts? May the purposes of administration; (2) Whether or not a judicial
probate court appoint the surviving sister of the deceased as administration proceeding is necessary where there are no The general rule is that when a person dies leaving property,
the administratrix of the estate of the deceased instead of the debts left by the decedent; and, (3) Who has the better right to the same should be judicially administered and the competent
surviving spouse? These are the main questions which need to be appointed as administratrix of the estate of the deceased, court should appoint a qualified administrator, in the order
be resolved in this case. the surviving spouse Victoria Bringas Pereira or the surviving established in Section 6, Rule 78, in case the deceased left no
sister Rita Pereira Nagac? will, or in case he had left one, should he fail to name an
Andres de Guzman Pereira, an employee of the Philippine Air executor therein. 8 An exception to this rule is established in
Lines, passed away on January 3, 1983 at Bacoor, Cavite Section 1 of Rule 74. 9 Under this exception, when all the heirs
Anent the first issue, petitioner contends that there exists no
without a will. He was survived by his legitimate spouse of ten are of lawful age and there are no debts due from the estate,
estate of the deceased for purposes of administration for the
months, the herein petitioner Victoria Bringas Pereira, and his they may agree in writing to partition the property without
following reasons: firstly, the death benefits from PAL, PALEA,
sister Rita Pereira Nagac, the herein private respondent. instituting the judicial administration or applying for the
PESALA and the SSS belong exclusively to her, being the sole
appointment of an administrator.
beneficiary and in support of this claim she submitted letter-
On March 1, 1983, private respondent instituted before Branch replies from these institutions showing that she is the exclusive
19 of the Regional Trial Court of Bacoor, Cavite, Special beneficiary of said death benefits; secondly, the savings Section 1, Rule 74 of the Revised Rules of Court, however,
Proceeding No. RTC-BSP-83-4 for the issuance of letters of deposits in the name of her deceased husband with the PNB does not preclude the heirs from instituting administration
administration in her favor pertaining to the estate of the and the PCIB had been used to defray the funeral expenses as proceedings, even if the estate has no debts or obligations, if
deceased Andres de Guzman Pereira. 1 In her verified petition, supported by several receipts; and, finally, the only real they do not desire to resort for good reasons to an ordinary
private respondent alleged the following: that she and Victoria property of the deceased has been extrajudicially settled action for partition. While Section 1 allows the heirs to divide
Bringas Pereira are the only surviving heirs of the deceased; between the petitioner and the private respondent as the only the estate among themselves as they may see fit, or to resort
that the deceased left no will; that there are no creditors of the surviving heirs of the deceased. to an ordinary action for partition, the said provision does not
deceased; that the deceased left several properties, namely: compel them to do so if they have good reasons to take a
death benefits from the Philippine Air Lines (PAL), the PAL different course of action. 10 It should be noted that recourse to
Private respondent, on the other hand, argues that it is not for
Employees Association (PALEA), the PAL Employees Savings an administration proceeding even if the estate has no debts is
petitioner to decide what properties form part of the estate of
and Loan Association, Inc. (PESALA) and the Social Security sanctioned only if the heirs have good reasons for not resorting
the deceased and to appropriate them for herself. She points
System (SSS), as well as savings deposits with the Philippine to an action for partition. Where partition is possible, either in or
out that this function is vested in the court in charge of the
National Bank (PNB) and the Philippine Commercial and out of court, the estate should not be burdened with an
intestate proceedings.
Industrial Bank (PCIB), and a 300 square meter lot located at administration proceeding without good and compelling
Barangay Pamplona, Las Pinas, Rizal and finally, that the reasons. 11
spouse of the deceased (herein petitioner) had been working in Petitioner asks this Court to declare that the properties
London as an auxiliary nurse and as such one-half of her specified do not belong to the estate of the deceased on the
Thus, it has been repeatedly held that when a person dies
salary forms part of the estate of the deceased. basis of her bare allegations as aforestated and a handful of
without leaving pending obligations to be paid, his heirs,
documents. Inasmuch as this Court is not a trier of facts, We
whether of age or not, are not bound to submit the property to a
cannot order an unqualified and final exclusion or non-
On March 23,1983, petitioner filed her opposition and motion to judicial administration, which is always long and costly, or to
exclusion of the property involved from the estate of the
dismiss the petition of private respondent 2 alleging that there apply for the appointment of an administrator by the Court. It
deceased. 5
exists no estate of the deceased for purposes of administration has been uniformly held that in such case the judicial
and praying in the alternative, that if an estate does exist, the administration and the appointment of an administrator are
letters of administration relating to the said estate be issued in The resolution of this issue is better left to the probate court superfluous and unnecessary proceedings . 12
her favor as the surviving spouse. before which the administration proceedings are pending. The
trial court is in the best position to receive evidence on the
Now, what constitutes "good reason" to warrant a judicial left by the deceased may be properly ventilated in simple 8 Utulo v. Pasion vda. de Garcia, 66 Phil.
administration of the estate of a deceased when the heirs are partition proceedings where the creditors, should there be any, 303 (1938).
all of legal age and there are no creditors will depend on the are protected in any event.
circumstances of each case.
9 Section 1. Extra-judicial settlement by
We, therefore, hold that the court below before which the agreement between heirs. If the decedent
In one case, 13 We said: administration proceedings are pending was not justified in left no will and no debts and the heirs are
issuing letters of administration, there being no good reason for all of age, or the minors are represented
burdening the estate of the deceased Andres de Guzman by their judicial or legal representatives
Again the petitioner argues that only when
Pereira with the costs and expenses of an administration duly authorized for the purpose, the parties
the heirs do not have any dispute as to the
proceeding. may, without securing letters of
bulk of the hereditary estate but only in the
administration, divide the estate among
manner of partition does section 1, Rule 74
themselves as they see fit by means of a
of the Rules of Court apply and that in this With the foregoing ruling, it is unnecessary for us to delve into
public instrument filed in the office of the
case the parties are at loggerheads as to the issue of who, as between the surviving spouse Victoria
register of deeds, and should they
the corpus of the hereditary estate Bringas Pereira and the sister Rita Pereira Nagac, should be
disagree, they may do so in an ordinary
because respondents succeeded in preferred to be appointed as administratrix.
action of partition. ..." 10
sequestering some assets of the intestate.
The argument is unconvincing, because,
WHEREFORE, the letters of administration issued by the
as the respondent judge has indicated, 10 Rodriguez, et al. v. Tan, etc. and
Regional Trial Court of Bacoor to Rita Pereira Nagac are
questions as to what property belonged to Rodriguez, 92 Phil. 273 (1952).
hereby revoked and the administration proceeding dismissed
the deceased (and therefore to the heirs)
without prejudice to the right of private respondent to
may properly be ventilated in the partition
commence a new action for partition of the property left by 11 Intestate Estate of Mercado v.
proceedings, especially where such
Andres de Guzman Pereira. No costs. Magtibay, 96 Phil, 383 (1953) citing
property is in the hands of one heir.
Monserrat v. lbanez, G.R No. L-3369, May
24,1950.
SO ORDERED.
In another case, We held that if the reason for seeking an
appointment as administrator is merely to avoid a multiplicity of
12 Utulo v. Pasion de Garcia, supra; Fule
suits since the heir seeking such appointment wants to ask for Narvasa, Cruz, Griño-Aquino and Medialdea, JJ., concur.
v. Fule, 46 Phil. 317 (1924); Baldemor v.
the annulment of certain transfers of property, that same
Malangyaon, 34 Phil. 367 (1916); Bondad
objective could be achieved in an action for partition and the
Footnotes v. Bondad, 34 Phil. 232 (1916); Malafasan
trial court is not justified in issuing letters of administration. 14 In
v. Ignacio; 19 Phil. 434 (1911); Ilustre v.
still another case, We did not find so powerful a reason the
Alaras Frondora; 17 Phil. 321 (1910). In
argument that the appointment of the husband, a usufructuary 1 Page 27, Rollo. Orozco vs. Garcia, 50 Phil 149, it was held
forced heir of his deceased wife, as judicial administrator is
that there is nothing in Section 1, Rule 74
necessary in order for him to have legal capacity to appear in
2 Page 29, Supra. which prohibits the heirs from instituting
the intestate proceedings of his wife's deceased mother, since
special proceeding for the administration of
he may just adduce proof of his being a forced heir in the
the intestate estate, if they cannot agree in
intestate proceedings of the latter.15 3 Page 3, Rollo. the extrajudicial partition and
apportionment of the same. Utulo v.
We see no reason not to apply this doctrine to the case at bar. 4 Page 33, Supra. Pasion Vda. de Garcia, Supra reaffirmed
There are only two surviving heirs, a wife of ten months and a the doctrine laid down in the cases
sister, both of age. The parties admit that there are no debts of previous to Orozco.
the deceased to be paid. What is at once apparent is that these 5 Ortega v. Court of Appeals (1987).
two heirs are not in good terms. The only conceivable reason
13 Monserrat v. Ibanez, Supra cited in
why private respondent seeks appointment as administratrix is 6 Sebial v. Sebial, 64 SCRA 385 (1975). Intestate Estate of Mercado v. Magtibay,
for her to obtain possession of the alleged properties of the
Supra.
deceased for her own purposes, since these properties are
presently in the hands of petitioner who supposedly disposed 7 Ortega v. Court of Appeals, Supra;
of them fraudulently. We are of the opinion that this is not a Valera v. Inserts, 149 SCRA 14 Intestate Estate of Mercado v.
compelling reason which will necessitate a judicial Magtibay, supra.
administration of the estate of the deceased. To subject the 553 (1987); Vda. de Rodriguez v. Court of
estate of Andres de Guzman Pereira, which does not appear to Appeals, 91 SCRA 540 (1979); Cuizon v. 15 Utulo v. Pasion vda. de Garcia, supra.
be substantial especially since the only real property left has Remolete; 129 SCRA 495 (1984);
been extrajudicially settled, to an administration proceeding for Lachenal v. Salas, 71 SCRA 262 (1976);
no useful purpose would only unnecessarily expose it to the Coca v. Borromeo, 81 SCRA 278 (1978); 16 Intestate Estate of Mercado v.
risk of being wasted or squandered. In most instances of a Garcia v. Garcia, 67 Phil. 353 (1939); Magtibay, supra.
similar nature, 16 the claims of both parties as to the properties Guinguin v. Abuton, 48 Phil 144 (1925).
G.R. No. 134329           January 19, 2000 On November 17, 1993, it was the turn of Maria Pada to sell The alleged extra judicial settlement was made in
the co-ownership right of his father, Marciano. Private private writing and the genuineness and due
respondent, who is the first cousin of Maria, was the buyer. execution of said document was assailed as doubtful
VERONA PADA-KILARIO and RICARDO
and it appears that most of the heirs were not
KILARIO, petitioners,
participants and signatories of said settlement, and
vs. Thereafter, private respondent demanded that petitioner
there was lack of special power of attorney to [sic]
COURT OF APPEALS and SILVERIO PADA, respondents. spouses vacate the northern portion of Cadastral Lot No. 5581
those who claimed to have represented their co-heirs
so his family can utilize the said area. They went through a
in the participation [sic] and signing of the said extra
series of meetings with the barangay officials concerned for the
DE LEON, JR., J.: judicial statement.
purpose of amicable settlement, but all earnest efforts toward
that end, failed.
The victory1 of petitioner spouses Ricardo and Verona Kilario in Defendants were already occupying the northern
the Municipal Circuit Trial Court2 in an ejectment suit3 filed portion of the above-described property long before
On June 26, 1995, private respondent filed in the Municipal
against them by private respondent Silverio Pada, was foiled the sale of said property on November 17, 1993 was
Circuit Trial Court of Matalom, Leyte, a complaint for ejectment
by its reversal4 by the Regional Trial Court5 on appeal. They executed between Maria Pada-Pavo, as vendor and
with prayer for damages against petitioner spouses.
elevated their cause6 to respondent Court of Appeals7 which, the plaintiff, as vendee. They are in possession of
however, promulgated a Decision8 on May 20, 1998, affirming said portion of the above-described property since
the Decision of the Regional Trial Court. On July 24, 1995, the heirs of Amador Pada, namely, the year 1960 with the consent of some of the heirs
Esperanza Pada-Pavo, Concordia Pada-Bartolome, and of Jacinto Pada and up to the [sic] present some of
Angelito Pada, executed a Deed of Donation9 transferring to the heirs of Jacinto Pada has [sic] donated . . . their
The following facts are undisputed:
petitioner Verona Pada-Kilario, their respective shares as co- share of [sic] the above-described property to them,
owners of Cadastral Lot No. 5581. virtually converting defendants' standing as co-
One Jacinto Pada had six (6) children, namely, Marciano, owners of the land under controversy. Thus,
Ananias, Amador, Higino, Valentina and Ruperta. He died defendants as co-owners became the undivided
On February 12, 1996, petitioner spouses filed their Answer
intestate. His estate included a parcel of land of residential and owners of the whole estate . . . . As co-owners of . . .
averring that the northern portion of Cadastral Lot No. 5581
coconut land located at Poblacion, Matalom, Leyte, Cadastral Lot No. 5581 . . . their possession in the
had already been donated to them by the heirs of Amador
denominated as Cadastral Lot No. 5581 with an area of northern portion is being [sic] lawful.10
Pada. They contended that the extra-judicial partition of the
1,301.92 square meters. It is the northern portion of Cadastral
estate of Jacinto Pada executed in 1951 was invalid and
Lot No. 5581 which is the subject of the instant controversy.
ineffectual since no special power of attorney was executed by From the foregoing decision, private respondent appealed to
either Marciano, Amador or Higino in favor of their respective the Regional Trial Court. On November 6, 1997, it rendered a
During the lifetime of Jacinto Pada, his half-brother, Feliciano children who represented them in the extra-judicial partition. judgment of reversal. It held:
Pada, obtained permission from him to build a house on the Moreover, it was effectuated only through a private document
northern portion of Cadastral Lot No. 5581. When Feliciano that was never registered in the office of the Registrar of Deeds
. . . [T]he said conveyances executed by Juanita
died, his son, Pastor, continued living in the house together of Leyte.
Pada and Maria Pada Pavo were never questioned
with his eight children. Petitioner Verona Pada-Kilario, one of or assailed by their co-heirs for more than 40 years,
Pastor's children, has been living in that house since 1960.
The Municipal Circuit Trial Court rendered judgment in favor of thereby lending credence on [sic] the fact that the
petitioner spouses. It made the following findings: two vendors were indeed legal and lawful owners of
Sometime in May, 1951, the heirs of Jacinto Pada entered into properties ceded or sold. . . . At any rate, granting
an extra-judicial partition of his estate. For this purpose, they that the co-heirs of Juanita Pada and Maria Pada
After a careful study of the evidence submitted by
executed a private document which they, however, never Pavo have some interests on the very lot assigned to
both parties, the court finds that the evidence
registered in the Office of the Registrar of Deeds of Leyte. Marciano and Ananias, nevertheless, said interests
adduced by plaintiff failed to establish his ownership had long been sadly lost by prescription, if not laches
over . . . Cadastral Lot No. 5581 . . . while or estoppel.
At the execution of the extra-judicial partition, Ananias was defendants has [sic] successfully proved by
himself present while his other brothers were represented by preponderance of evidence that said property is still
their children. Their sisters, Valentina and Ruperta, both died under a community of ownership among the heirs of It is true that an action for partition does not
without any issue. Marciano was represented by his daughter, the late Jacinto Pada who died intestate. If there was prescribe, as a general rule, but this doctrine of
Maria; Amador was represented by his daughter, Concordia; some truth that Marciano Pada and Ananias Pada imprescriptibility cannot be invoked when one of the
and Higina was represented by his son, Silverio who is the has [sic] been adjudicated jointly of [sic] the above- heirs possessed the property as an owner and for a
private respondent in this case. It was to both Ananias and described residential property . . . as their share of period sufficient to acquire it by prescription because
Marciano, represented by his daughter, Maria, that Cadastral the inheritance on the basis of the alleged extra from the moment one of the co-heirs claim [sic] that
Lot No. 5581 was allocated during the said partition. When judicial settlement, how come that since 1951, the he is the absolute owner and denies the rest their
Ananias died, his daughter, Juanita, succeeded to his right as date of partition, the share of the late Marciano Pada share of the community property, the question then
co-owner of said property. was not transferred in the name of his heirs, one of involved is no longer one for partition but of
them Maria Pada-Pavo and still remain [sic] in the ownership. . . . Since [sic] 1951 up to 1993 covers a
name of Jacinto Pada up to the present while the period of 42 long years. Clearly, whatever right some
On June 14, 1978, Juanita Pada sold to Engr. Ernesto of the co-heirs may have, was long extinguished by
part pertaining to the share of Ananias Pada was
Paderes, the right of his father, Ananias, as co-owner of laches, estoppel or prescription.
easily transferred in the name of his heirs . . ..
Cadastral Lot No. 5881.
 xxx     xxx     xxx determine the question of possession, specially if the the donors had no interest nor right to transfer. . . .
former is inseparably linked with the latter. It cannot This gesture appears to be a mere afterthought to
dispose with finality the issue of ownership, such help petitioners to prolong their stay in the premises.
. . . [T]he deed of donation executed by the Heirs of
issue being inutile in an ejectment suit except to Furthermore, the respondent court correctly pointed
Amador Pada, a brother of Marciano Pada, took
throw light on the question of possession . . . . out that the equitable principle of laches and
place only during the inception of the case or after
estoppel come into play due to the donors' failure to
the lapse of more than 40 years reckoned from the
assert their claims and alleged ownership for more
time the extrajudicial partition was made in 1951. Private respondent Silverio Pada anchors his claim
than forty (40) years . . . . Accordingly, private
Therefore, said donation is illegal and invalid [sic] the to the portion of the land possessed by petitioners on
respondent was subrogated to the rights of the
donors, among others, were absolutely bereft of any the Deed of Sale executed in his favor by vendor
vendor over Lot No. 5581 which include [sic] the
right in donating the very property in question. 11 Maria Pada-Pavo, a daughter of Marciano, son of
portion occupied by petitioners. 13
Jacinto Pada who was the registered owner of the
subject lot. The right of vendee Maria Pada to sell
The dispositive portion of the decision of the Regional Trial
the property was derived from the extra-judicial Petitioner spouses filed a Motion for Reconsideration of the
Court reads as follows:
partition executed in May 1951 among the heirs of foregoing decision.
Jacinto Pada, which was written in a Bisayan dialect
WHEREFORE, a judgment is hereby rendered, signed by the heirs, wherein the subject land was
On June 16, 1998, respondent Court of Appeals issued a
reversing the judgment earlier promulgated by the adjudicated to Marciano, Maria Pavo's father, and
Resolution denying said motion.
Municipal Circuit Trial Court of Matalom, Leyte, [sic] Ananias Pada. Although the authenticity and
consequently, defendants-appellees are hereby genuineness of the extra-judicial partition is now
ordered: being questioned by the heirs of Amador Pada, no Hence this petition raising the following issues:
action was ever previously filed in court to question
the validity of such partition.1âwphi1.nêt
1. To vacate the premises in issue and return I.
peaceful possession to the appellant, being the
lawful possessor in concept of owner; Notably, petitioners in their petition admitted among
WHETHER THE COURT OF APPEALS ERRED IN
the antecedent facts that Maria Pavo is one of the
NOT RULING THAT PETITIONERS, AS CO-
co-owners of the property originally owned by Jacinto
2. To remove their house at their expense unless OWNERS, CANNOT BE EJECTED FROM THE
Pada . . . and that the disputed lot was adjudicated to
appellant exercises the option of acquiring the same, PREMISES CONSIDERING THAT THE HEIRS OF
Marciano (father of Maria Pavo) and Ananias, and
in which case the pertinent provisions of the New JACINTO PADA DONATED TO THEM THEIR
upon the death of Marciano and Ananias, their heirs
Civil Code has to be applied; UNDIVIDED INTEREST IN THE PROPERTY IN
took possession of said lot, i.e. Maria Pavo the
DISPUTE.
vendor for Marciano's share and Juanita for Ananias'
3. Ordering the defendants-appellees to pay monthly share . . . . Moreover, petitioners do not dispute the
rental for their occupancy and use of the portion of findings of the respondent court that during the II.
the land in question in the sum of P100.00 cadastral survey of Matalom, Leyte, the share of
commencing on June 26, 1995 when the case was Maria Pada Pavo was denominated as Lot No. 5581,
while the share of Juanita Pada was denominated as WHETHER THE COURT OF APPEALS ERRED IN
filed and until the termination of the present case;
Lot No. 6047, and that both Maria Pada Pavo and NOT RULING THAT WHAT MARIA PADA SOLD
Juanita were in possession of their respective WAS HER UNDIVIDED SHARE IN THE PROPERTY
4. Ordering the defendants to pay to the appellant hereditary shares. Further, petitioners in their Answer IN DISPUTE.
the sum of P5,000.00 as moral damages and the admitted that they have been occupying a portion of
further sum of P5,000.00 as attorney's fees; Lot No. 5581, now in dispute without paying any III.
rental owing to the liberality of the plaintiff . . . .
5. Taxing defendants to pay the costs of suit.12 Petitioners cannot now impugn the aforestated
extrajudicial partition executed by the heirs in 1951. WHETHER OR NOT THE PETITIONERS ARE
As owner and possessor of the disputed property, BUILDERS IN GOOD FAITH.14
Petitioners filed in the Court of Appeals a petition for review of Maria Pada, and her vendee, private respondent, is
the foregoing decision of the Regional Trial Court. entitled to possession. A voluntary division of the There is no merit to the instant petition.
estate of the deceased by the heirs among
On May 20, 1998, respondent Court of Appeals rendered themselves is conclusive and confers upon said heirs
exclusive ownership of the respective portions First. We hold that the extrajudicial partition of the estate of
judgment dismissing said petition. It explained:
assigned to them . . .. Jacinto Pada among his heirs made in 1951 is valid, albeit
executed in an unregistered private document. No law requires
Well-settled is the rule that in an ejectment suit, the partition among heirs to be in writing and be registered in order
only issue is possession de facto or physical or The equally belated donation of a portion of the to be valid.15 The requirement in Sec. 1, Rule 74 of the Revised
material possession and not de jure. Hence, even if property in dispute made by the heirs of Amador Rules of Court that a partition be put in a public document and
the question of ownership is raised in the pleadings, Pada, namely, Concordia, Esperanza and Angelito, registered, has for its purpose the protection of creditors and
the court may pass upon such issue but only to in favor of petitioner Verona Pada is a futile attempt the heirs themselves against tardy claims.16 The object of
to confer upon the latter the status of co-owner, since
registration is to serve as constructive notice to others. It Third. Petitioners are estopped from impugning the extrajudicial 9th Municipal Circuit Trial Court, 8th Judicial
2 

follows then that the intrinsic validity of partition not executed partition executed by the heirs of Jacinto Pada after explicitly Region, Branch XVIII, Bato-Matalom, Leyte.
with the prescribed formalities is not undermined when no admitting in their Answer that they had been occupying the
creditors are involved.17 Without creditors to take into subject property since 1960 without ever paying any rental as 3 
Civil Case No. 91.
consideration, it is competent for the heirs of an estate to enter they only relied on the liberality and tolerance of the Pada
into an agreement for distribution thereof in a manner and upon family.25 Their admissions are evidence of a high order and bind
a plan different from those provided by the rules from which, in them insofar as the character of their possession of the subject In a Decision dated November 6, 1997 copy of
4 

the first place, nothing can be inferred that a writing or other property is concerned. which however does not appear in the Rollo.
formality is essential for the partition to be valid.18 The partition
of inherited property need not be embodied in a public
Considering that petitioners were in possession of the subject Regional Trial Court, 8th Judicial Region, Branch
5 
document so as to be effective as regards the heirs that
property by sheer tolerance of its owners, they knew that their 18, Hilongos, Leyte.
participated therein.19 The requirement of Article 1358 of the
occupation of the premises may be terminated any time.
Civil Code that acts which have for their object the creation,
Persons who occupy the land of another at the latter's
transmission, modification or extinguishment of real rights over In a Petition for Review docketed as CA-G.R. SP
6 
tolerance or permission, without any contract between them, is
immovable property, must appear in a public instrument, is only No. 46101.
necessarily bound by an implied promise that they will vacate
for convenience, non-compliance with which does not affect the
the same upon demand, failing in which a summary action for
validity or enforceability of the acts of the parties as among
ejectment is the proper remedy against them.26 Thus, they 7 
Fourth Division.
themselves.20 And neither does the Statute of Frauds under
cannot be considered possessors nor builders in good faith. It
Article 1403 of the New Civil Code apply because partition
is well-settled that both Article 44827 and Article 54628 of the
among heirs is not legally deemed a conveyance of real Penned by then Court of Appeals, now Supreme
8 
New Civil Code which allow full reimbursement of useful
property, considering that it involves not a transfer of property Court, Associate Justice Minerva P. Gonzaga-Reyes
improvements and retention of the premises until
from one to the other but rather, a confirmation or ratification of and concurred in by Associate Justices Ramon A.
reimbursement is made, apply only to a possessor in good
title or right of property that an heir is renouncing in favor of Barcelona and Demetrio G. Demetria, Rollo, pp. 31-
faith, i.e., one who builds on land with the belief that he is the
another heir who accepts and receives the inheritance. 21 The 41.
owner thereof.29 Verily, persons whose occupation of a realty is
1951 extrajudicial partition of Jacinto Pada's estate being legal
by sheer tolerance of its owners are not possessors in good
and effective as among his heirs, Juanita and Maria Pada
faith. Neither did the promise of Concordia, Esperanza and Annex "D" of the Petition for Review
9 
validly transferred their ownership rights over Cadastral Lot No.
Angelito Pada that they were going to donate the premises to on Certiorari dated August 11, 1998, Rollo, p. 44.
5581 to Engr. Paderes and private respondent, respectively.22
petitioners convert them into builders in good faith for at the
time the improvements were built on the premises, such
Second. The extrajudicial partition which the heirs of Jacinto promise was not yet fulfilled, i.e., it was a mere expectancy of Decision of the Municipal Circuit Trial Court dated
10 

Pada executed voluntarily and spontaneously in 1951 has ownership that may or may not be realized.30 More importantly, February 29, 1996, pp. 4-6, Rollo, pp. 26-28.
produced a legal status.23 When they discussed and agreed on even as that promise was fulfilled, the donation is void for
the division of the estate Jacinto Pada, it is presumed that they Concordia, Esperanza and Angelito Pada were not the owners Decision of the Court of Appeals, pp. 8-9, Rollo, pp.
11 

did so in furtherance of their mutual interests. As such, their of Cadastral Lot No. 5581. As such, petitioners cannot be said 38-39.
division is conclusive, unless and until it is shown that there to be entitled to the value of the improvements that they built
were debts existing against the estate which had not been on the said lot.
paid.24 No showing, however, has been made of any unpaid
12 
Id., p. 4, Rollo, p. 34.
charges against the estate of Jacinto Pada. Thus, there is no
WHEREFORE, the petition for review is HEREBY DENIED.
reason why the heirs should not be bound by their voluntary Decision of the Court of Appeals, pp. 6-8, Rollo, pp.
13 

acts. 36-38. Emphasis supplied by the Court of Appeals.

Costs against petitioners.
The belated act of Concordia, Esperanza and Angelito, who 14 
Petition supra, p. 6, rollo, p. 13.
are the heirs of Amador Pada, of donating the subject property SO ORDERED.
to petitioners after forty four (44) years of never having
disputed the validity of the 1951 extrajudicial partition that Vda. de Reyes v. Court of Appeals, 199 SCRA
15 

Bellosillo, Mendoza, Quisumbing and Buena, JJ., concur. 646, 659 (1991), citing Madamba v. Magno, et al., 10
allocated the subject property to Marciano and Ananias,
produced no legal effect. In the said partition, what was Phil. 86, 88 (1908); De Guzman, et al. v. Pangilinan
allocated to Amador Pada was not the subject property which and Azarcon, 28 Phil. 322, 325 (1914); and De
was a parcel of residential land in Sto. Nino, Matalom, Leyte, Garces, et al. v. Broce, et al., 23 SCRA 612, 615-616
but rather, one-half of a parcel of coconut land in the interior of (1968).
Sto. Nino St., Sabang, Matalom, Leyte and one-half of a parcel
of rice land in Itum, Sta. Fe, Matalom, Leyte. The donation Footnotes Id., citing Hernandez v. Andal, 78 Phil. 196, 205,
16 

made by his heirs to petitioners of the subject property, thus, is 208 (1946).
void for they were not the owners thereof. At any rate it is too
late in the day for the heirs of Amador Pada to repudiate the Decision of the Municipal Circuit Trial Court
1 

legal effects of the 1951 extrajudicial partition as prescription promulgated on February 29, 1996 and penned by 17 
Id., citing Hernandez, supra, p. 209.
and laches have equally set in. Judge Venancio E. Rances, Rollo, pp. 23-29.
18 
Ibid. Geminiano v. Court of Appeals, 259 SCRA 344,
29 

351 (1996).
Alejandrino v. Court of Appeals, 295 SCRA 536,
19 

552 (1998). 30 

Id., p. 352.

Vda. de Reyes v. Court of Appeals, 199 SCRA

20 

646, 657 (1991), citing Thunga Chui v. Que Bentec,

2 Phil. 561, 563-564 (1903).

Id., p. 659, citing Barcelona, et al. v. Barcelona and

21 

Court of Appeals, 100 Phil. 251, 255 (1956).

22 
Id., p. 553.

23 
Leaño v. Leaño, 25 Phil. 180, 183-184 (1913).

24 
Ibid.; De Garces, supra, pp. 615-617 (1968).

25 
Decision of the Court of Appeals, p. 7, Rollo, p. 37.

Refugia v. Court of Appeals, 258 SCRA 347, 370

26 

(1996).

Art. 448. The owner of the land on which anything

27 

has been built, sown or planted in good faith, shall

have the right to appropriate as his own the works,
sowing or plainting, after payment of the indemnity
provided for in articles 546 and 548, or to oblige the
owner who built or planted to pay the price of the
land, and the one who sowed, the proper rent.
However, the builder or planter cannot be obliged to
buy the land if its value is considerably more than
that of the building or trees. In such case, he shall
pay reasonable rent, if the owner of the land does
not choose to appropriate the building or trees after
proper indemnity. The parties shall agree upon the
terms of the lease and in case of disagreement, the
court shall fix the terms thereof.1âwphi1.nêt

Art. 546. Necessary expenses shall be refunded to

28 

every possessor; but only the possessor in good faith

may retain the thing until he has been reimbursed
therefor.

Useful expenses shall be refunded only to

the possessor in good faith with the same
right of retention, the person who has
defeated him in the possession having the
option of refunding the amount of the
expenses or of paying the increase in
value which the thing may have acquired
by reason thereof.
G.R. No. L-6871            January 15, 1912 of all obligations against the estate. This agreement of partition by the commission has been paid to the representative of the
was drawn and executed under sections 596 and 597 of the estate of said Margarita Jose, deceased.
Code of Civil Procedure for the purposes and to attain the ends
JOSE McMICKING, administrator of the estate of Margarita
therein mentioned. On the 28th of July, 1904, the Court of First
Jose, plaintiff-appellant, On the 3rd of November, 1905, Pio de la Barretto, who, it will
Instance of the city of Manila, upon the request of the
vs. be remembered, was one of the sureties on the undertaking of
administrator with the will annexed and of all parties interested
BENITO SY CONBIENG, administrator of the estate of Pio Doroteo Velasco, as administrator with the will annexed of
in the estate of the said Mariano Ocampo, deceased, entered
de la Gurdia Barretto Sy Pioco, defendant-appellee. Mariano Ocampo, deceased, died in the city of Manila, leaving
an order in said agreement. Pursuant to such agreement and
an estate consisting of real and personal property located in
order of the court approving the same, and after all the
the city. Said deceased left a will which was admitted to
Haussermann, Cohn & Fisher for appellant. liabilities under which said estate lay had been fully paid and
probate by the Court of First Instance of the city of Manila on
D. R. Williams for appellee. satisfied, the said Doroteo Velasco, as said administrator,
the 3rd day of February, 1906, and letters of administration with
delivered to the devisees and legatees of the said Mariano
the will annexed were issued to Benito Sy Conbieng, the
Ocampo, deceased, all of the property of said decedent
MORELAND, J.: defendant in this case. On the 4th of June, 1909, upon the
pursuant to the terms of said agreement of partition, leaving in
application of the plaintiff in this case, a committee was
the hands of said administrator no property or thing of value
appointed by the Court of First Instance of the city of Manila to
On or about the 5th of February, 1902, one Margarita Jose, a whatsoever belonging to the said estate. From that time
appraise the estate of the said Pio de la Guardia Barretto,
native of the Philippine Islands, died at Amoy, in the empire of forward said administrator has not had in his possession or
deceased, and to hear claims presented against his estate.
China, leaving an estate consisting of personal property partly control any of the assets of the said estate and has not had any
Thereafter and within the time prescribed by law the plaintiff
in Hongkong and partly in the Philippine Islands. On the 16th of participation in the management thereof. At the time the
herein presented to said committee a claim for the sum of
April, 1902, one Engracio Palanca was appointed administrator agreement for participation was made and signed and at the
P30,000 "based upon the fact that the claim for the larger
with the will annexed of the estate of the said Margarita Jose, time of the distribution of the property of the estate pursuant
amount had been allowed in favor of the estate of said
deceased, by the Court of First Instance of the city of Manila, thereto, no committee had been appointed to hear claims
Margarita Jose Sempco, deceased;" and based upon the
and Mariano Ocampo Lao Sempco and Dy Cunyao became his against the estate of the said Mariano Ocampo, deceased, and
further fact "that the Court of First Instance had ordered the
sureties and qualified as such in the sum of P60,000. After the no notice had been published to creditors of the said deceased
said Doroteo Velasco, as administrator of the estate of said
execution of this bond the said Palanca, as such administrator, to present their claims against the said estate in the manner
Mariano Ocampo Lao Sempco, deceased, to pay the said
took possession of all the property of the said Margarita Jose, prescribed by law.
claim if there were funds sufficient to make such payment, but
amounting in all to $58,820.29 Hongkong currency. On the 22d that it has not been paid by the said Doroteo Velasco, or any
of April, 1904, the Mariano Ocampo Lao Sempco died in the On the 30th of March, 1908, by virtue of an order made by the part thereof," The claim so presented against the estate of Pio
city of Manila, testate. The fact of his death was brought to the Court of First Instance of the city of Manila, upon application of de la Guardia Barretto, deceased, was disallowed by the
attention of the Court of First Instance of said city on the 2nd of all parties interested, the said Engracio Palanca was removed committee thereof. The plaintiff herein within the time allowed
November, 1904, by an application made by one of the from office as administrator of the estate of said Margarita by law appealed to the Court of First Instance of the city of
legatees of said Margarita Jose, deceased, for an order Jose, deceased, and the plaintiff herein, Jose McMicking, was Manila from the order of the committee disallowing said claim.
directing said administrator to furnish a new bond. Pursuant to appointed in his stead. The said Palanca was removed from
this application the court, on the 10th of November, 1904, office by reason of the fact that he failed and refused to render
made an order directing the said Palanca to furnish a bond in It is disputed in the case that all of the claims against the estate
an account of the property and funds of the estate of the said
the sum of P60,000 to take the place of the undertaking upon of Mariano Ocampo were fully paid and satisfied at the time of
Margarita Jose, deceased, which has come to his possession
which said Mariano Ocampo, deceased, and Dy Cunyao were the partition of said estate, with the exception of the alleged
as such administrator, and failed and refused, on order of the
sureties. The bond thus required was duly filed on the 22nd of claim arising by virtue of his having been a surety of the default
court, to deliver said property and funds or any portion thereof
November, 1904, the sureties thereon being Juan Fernandez, Palanca. It nowhere appears in the evidence or the record
to the court or to the said Jose McMicking, his successor.
Luis Saenz de Vismanos and Alejandro Palanca. On the 11th exactly when this claim arose it may be inferred from the time
Instead of so doing, he retained possession of said property
of May, 1904, one Doroteo Velasco was appointed of presentation in 1909, and we have no means of determining
and funds, absconded with the same, and never returned to the
administrator with the will annexed of said Mariano Ocampo whether the defalcation represented by the said claim occurred
Philippine Islands. At the time of his removal he was indebted
Lao Sempco, deceased, and on July 7 following Mariano before or after the substitution of sureties herefore referred to.
to the estate in the sum of P41,960.15, no part of which has
Velasco and Pio de la Guardia Barretto qualified as sureties of ever been received by the estate or by its representative.
the said administrator in the sum of P30,000. Said Mariano
Upon these facts it was contended by counsel for plaintiff that
Ocampo Lao Sempco left him surviving as his heirs at law and
the judgment should be rendered in his favor for the sum of
devises and legatees one daughter, to whom he devised two- On the 30th of June, 1909, Jose McMicking, as administrator,
P30,000, with costs, while counsel of defendant contended that
thirds of his estate, and three sons in China, to whom he made an application to the court for the appointment of
upon said facts judgment should be rendered in favor of
devised the remaining one-third. On the 27th of July, 1904, commissioners of the estate of said Mariano Ocampo for the
defendant, dismissing the complaint, with costs. The court
said Doroteo Velasco, as such administrator, filed with the purpose of hearing claims against the estate. The commission
having heard the evidence and the arguments of counsel,
court a complete report and inventory of the property of the having been appointed and qualified, a claim was presented to
rendered judgment in favor of the defendant and against the
deceased, together with a statement of all his debts and it by the plaintiff based upon the defalcation of said Engracio
plaintiff, dismissing the complaint upon merits, without costs.
liabilities. As a part of this report and inventory said Palanca, as administration with the will annexed of Margarita
This appeal is from that judgment.
administrator filed an instrument signed by all of the persons Jose, deceased, which claim was allowed by said commission
interested in the estate of the said Mariano Ocampo agreeing and later approved by the court, which directed that the said
to the partition of he estate among themselves without claim be paid by Doroteo Velasco, if he had sufficient funds to We are of the opinion that the judgment must be affirmed. We
proceedings in court, at the same time assuming the payment make such payment. No part of the sum thus found to be due base our affirmance upon the ground that Doroteo Velasco, for
whom the deceased Pio de la Guardia Barretto was surety, carried out. They should not be straitened or narrowed but surety. If Velasco incurred no liability, then his surety incurred
would not have been liable himself had this action been should rather be given that wideness and fullness of application none. The question that naturally suggests itself is, then, In
commenced against him. If the principal is not liable upon the without which they cannot produce their most beneficial effects. what was Velasco at fault or in what did he fail? When the
obligation, the surety cannot be. persons interested in the estate of Mariano Ocampo agreed
voluntarily upon a partition and division of the property of said
Standing, as we have said, at the head of the law of
estate and the actual partition followed, the matter passed out
At the head of the law of administration of the Philippine administration of these Islands, they are the first provisions to
of the hands of Velasco as administrator. The parties to the
Islands stands sections 596 and 597 of the Code of Civil which our attention is directed in seeking a legal method for the
partition stood invoking their rights under section 596 and 597.
Procedure. They are as follows: division and distribution of the property of deceased persons.
Velasco was helpless. He was powerless to prevent the parties
They are thus made prominent. And justly so. The purpose
from taking the property to which they were entitled under the
which underlies them, as we have already intimated, is to put
SEC. 596. Settlement of intestate estates, without agreement, it being conceded that they were actually entitled
into one's hands the property which belongs to him not only at
legal proceedings, in certain cases. — Whatever all thereto in law. Those sections were applicable to the situation
the earliest possible moment but also with the least possible
the heirs of a deceased person are of lawful age and and there was nothing that Velasco could do to prevent the
expense. By permitting the partition and division without
legal capacity, and their are no debts due from the estate from being divided according to their provisions. In
proceedings in court no time is lost and substantially all
intestate estate, or all the debts have been paid by giving his consent to the partition and in assisting the parties to
expense and waste are saved. This is as it should be. The
the heirs, the heirs may, by a family council as obtain the approval of the court thereto he did no wrong. He
State fails wretchedly in its duty to its citizens if the machinery
shown under Spanish law, or by agreement between simply aided in carrying out the provisions of the sections
furnished by it for the division and distribution of the property of
themselves, duly executed in writing, apportion and referred to. It is a universal principle that one who follows a law
a decedent is no cumbersome, unwidely and expensive that a
divide the estate among themselves, as they may commits no fault, incurs no failure and wounds no rights. If one
considerable portion of the estate is absorbed in the process of
see fit, without proceedings in court. obeys the law he is free not only in person but in property.
such division. Where administration is necessary, it ought to be
Observance of the law discharges obligations; it does not
accomplished quickly and at very small expense; and a system
create them; and an obligation once discharged cannot be re-
SEC. 597. In such case distributees liable for debts. which consumes any considerable portion of the property
acted by the act of others in which the person as to whom it
— But if it shall appear, at any time within two years which it was designed to distribute is a failure. It being
was discharged takes no part. The proceedings under sections
after such settlement and distribution of the estate, undoubted that the removal of property from the possession of
referred to were, after the partition was actually made and the
that there are debts outstanding against the estate its owner and its deposit in the hands of another for
property duly turned over the administrator under the proper
which have not been paid, any creditor may compel administration is a suspension of some of its most important
proceedings, a complete settlement of the estate of Mariano
the settlement of the estate in the courts in the rights of property and is attended with an expense sometimes
Ocampo, deceased, as it then stood, so far as the
manner hereinafter provided, unless his debt shall be entirely useless and unnecessary, such procedure should be
administrator was concerned. Nothing further needed to be
paid, with interest; and the administrator appointed avoided whenever and wherever possible.
done. Every duty which Velasco owed up to the time of the
by the court may recover the assets of the estate partition had been met. All debts presented or known had been
from those who have received them, for the purpose
In the case at the bar we are of the opinion that, under the paid. The court had given it approbation to the delivery of the
of paying the debts; and the real estate belonging to
broad and liberal policy which we must adopt in the property by the administrator to the partitioning parties. Every
the deceased shall remain charged with the liability
interpretation and application of the provisions referred to, the obligation which lay upon him had been removed. Nor could
to creditors for the full period of two years after such
decision of the property of Mariano Ocampo, deceased, in the there arise against him any obligation in the future in relation to
distribution, notwithstanding any transfers thereof
form, in the manner and for the purposes expressed, falls the same property. The instant that the partition occurred, in
that may have been made.
within the provisions of said sections and may be termed, the form and manner stated, he stood stripped of all
therefore, and we hold it to be, a partition of the property of a responsibility to the estate, to its creditors, to the heirs and to
These sections provide for the voluntary division of the whole decedent without legal proceedings within the meaning of the court. He stood divested o every official duty and obligation,
property of the decedent without proceedings in court. The those sections. The fact of the prior appointment of an as fully as before his appointment — as completely as if he had
provisions which they contain are extremely important. The administrator and the filing of an inventory before such partition not been appointed at all. In law, therefore, he was no longer
wisdom which underlies them is apparent. It is the undisputed is of no consequence so far as the right of the owners to administrator with the will annexed of the estate of Mariano
policy of every people which maintains the principle of private partition is concerned. The only requisite for such petition Ocampo, deceased. He was in effect, discharged. As to him
ownership of property that he who owns a thing shall not be prescribed by the law is that "there are no debts . . . or all the the estate had been wiped out as a legal entity. It had ceased
deprived of its possession or use except for the most urgent debts have been paid by the heirs." When the condition is to exist. And, while at any time within two years after the
and imperative reason and then only so long as is necessary to fulfilled the partition can take place, no matter what stage the partition the property, or a portion thereof, then in the
make the rights which underlie those reasons effective. It is a administration may have reached. By this it is, of course, not possession of the partitioning persons could have been placed
principle of universal acceptance which declares that one has meant that the partition after the appointment of an in administration upon the happening of certain events, it would
the instant right to occupy and use that which he owns, and it is administrator will interfere with the rights acquired by third not have been the same estate that had been represented by
only in the presence of reasons of the strongest and most person dealing with said administrator within the limits of his Velasco, nor would Velasco have been the administrator of the
urgent nature that that principle is prevented from authority and prior to the partition; nor that the administrator estate by virtue of his appointment in the old. It would have
accomplishing the purpose which underlies it. The force which can be deprived of the property of which he is legally in been necessary for the court, upon the proper application
gave birth to this stern and imperious principle is the same possession without proper proceedings and the consent of the setting forth the conditions prescribed by the sections, to
force which destroyed the feudal despotism and created the court. appoint another administrator for the purposes specified
democracy of private owners. therein. It might have been Velasco, if he would have accepted
the appointment, or it might have been another. The point
As we have already indicated, the basis of the liability of a is that it would have been necessary to appoint a new
These provisions should, therefore, be given the most liberal surety on an administrators' bond is the fault or failure of the administrator just as if one had not been named before. The
construction so that the intent of the framers may be fully principal. The liability of the principal precedes that of the
new administrator would have had new duties, some of which It requires no argument to demonstrate that the duties and to be permitted, even when the requisites above mentioned
would have been quite different from those of the administrator obligations imposed upon an administrator appointed under occur, unless the heirs or the persons among whom the
appointed originally. He would have had different sureties, who section 597 might and probably would be different in many property was partitioned have been given an opportunity to be
would have found themselves to different obligations. respects from those of an administrator appointed in the first heard on that application. It would be extremely unusual to
instance; and that, therefore, the obligation of his sureties proceed to the appointment of an administrator under section
would not be the same as that of the sureties of the 597, by virtue of a debt which had been discovered after the
That on the partition under said section the estate was, in this
administrator appointed originally. The administration partition and division, without giving the heirs an opportunity to
case, completely wiped out and the administrator as completely
contemplated by section 597 is a new administration and one avoid such administration by the payment of the debt, it being
discharged cannot be doubted for the following reasons:
entirely apart from any other administration theretofore had. kept in view that the object of the law in originally giving the
This section requires the appointment of a new administrator, right to pay the debts and having partition without proceedings
1. The whole estate was, by virtue of these sections, with a new undertaking. The administration under the section is in court was to avoid that every administration. Such a
taken from the administrator and turned over to the distinct and separate from any administration which may have proceeding would be unusual and irrational. Such a course
partitioning persons. No security was required or been in progress at the time of the partition and division under would be in direct opposition to the purposes which animated
given for its safekeeping or return. section 596. This is clear for the following reasons: the provisions authorizing the original partition.

2. The persons to whom the estate was thus turned After the partition and division provided for in sections 596 and (1) In the case at bar no debt was discovered during
over became absolute owners of the same, subject 597 have been fully consummated, no further administration of the prescribed period. It was nearly four years after
to be devastated, wholly or only partly, on the the estate can be had unless there occur the following the partition of the estate and the taking possession
happening of certain events and the taking of certain requisites: by the heirs of their respective portions before it was
proceedings thereon. But even such divestiture could even discovered that Palanca had been guilty of
not have been avoided by the payment by the converting the property of the estate to his own use;
1. There must have been discovered a claim against
parties, or any of them, of the debt which was the and, so far as the records shows, it was nearly five
the estate "within two years after such settlement
moving cause thereof. years before the alleged claim against the estate of
and distribution of estate."
Mariano Ocampo was fixed.
From these premises it is the merest conclusion to say that the
2. The creditor holding the claim must be the person
decedent's estate was merged in their partitioning parties; and (2) No creditor made his application.
who moves the court for the appointment of an
this no matter whether the partition occurred before or after the
administrator.
appointment of an administrator. When one has been named to
The requirements of section 597 not having been met, there
perform certain acts in relation to a given thing, and before said
could be no administration under section. Therefore, the
acts have been begun, or, having been begun, are completed, If those requisites are lacking, there can be no administration.
appointment of commissioners for the hearing of the claim
the appointing power has placed the thing upon which those When one fails the right too such administration does not arise
against the estate of Mariano Ocampo presented by the
acts were to operate wholly beyond the possession, jurisdiction and any person intersted in the estate may oppose any effort to
plaintiff in this case was an appointment without warrant or
and control of the one so appointed, there is a complete administer under such circumstances. These requisites
authority of law. It was appointment in respect to an estate that
revocation of such appointment, so far as all subsequent acts combined are that and that alone which give to the
did not exist and in relation to an administration that had never
are concerned. An administrator cannot be held to any administrator when appointed the right to recover the assets
been inaugurated. Under section 597 the commencement of
accountability for property over which he has absolutely no from the persons who received them on the a partition. Indeed,
the administration is the application of the creditor and the
power or jurisdiction and in which he has not the slightest legal if these requisites are lacking no administrator can lawfully be
appointment of the administrator pursuant to such application.
interest. The thing on which he was appointed to operate appointed, and, if improperly appointed, he fails of legal power
Without such appointment there is no administration. As we
having been withdrawn wholly beyond his ken by the very to maintain an action to recover the assets in the hands of
have before stated, when the property was partitioned a
power (the law) which appointed him, there is a complete those among whom they have partitioned; in other words, he is
described heretofore, the estate, as such, ceased to exist and
revocation of the appointment. powerless to administer. If these requisites fail, then the real
the administration thereof by Doroteo Velasco was wiped out.
estate in the hands either of the persons among whom it has
There was no administrator to carry on the administration. By
been partitioned or of their assignees is free from the lien
Moreover, the sureties of an administrator so appointed can not operation of the law the estate had been passed on the heirs
created by section 597 and any attempt to enforce such lien
be held liable for property which by force of law has been taken who had become the absolute owners of it. They were subject
can be successfully opposed by any person interested in such
from the principal and its ownership and control turned over to to the orders of the old administrator and they held rights
property. The appointment of an administrator without the
others. Their obligation is that their principal shall obey the law inferior to no one. To be sure, as we have already stated, those
concurrence of these requisites is without warrant of law and
in the handling and distribution of the estate. Their obligation is rights might be modified to a certain extent by the happening of
the appointee is powerless to perform any act of administration.
discharged when the estate is legally turned over to those subsequent events; but until those events transpired their rights
The statute must be strictly complied with in every essential
entitled thereto. The law requires the principal to turn it over to were absolute. Those conditions never having been met, a fact
before it operates. Every essential requirements must be
those who bring themselves within the provisions of section admitted by both parties in the case at bar, there was
fulfilled before it will be permitted that a partition which has the
596. Having turned over the whole estate under the compelling absolutely no estate at all, much less one in the process of
clear sanction of the law and which is strictly in accord with the
power of the law, his obligation ceased. The responsibility of administration, at the time the commissioners were appointed
public policy of the estate shall be set aside and destroyed with
the sureties ceased at the same time. Without their consent to her the claim for P30,000 presented against the estate of
all the evil consequences thereby entailed.
another obligation could not be imposed upon them in relation Mariano Ocampo, deceased, by the plaintiff herein. Add to this
to the same principal, and the same property, or apart thereof, the fact that there was no administrator of said estate in
especially after the lapse of two years. Their undertaking was It is necessary deduction from the provisions of the sections extense at the time, and we have before us the absurdity of the
that their principal should discharge one obligation, not two. mentioned that the appointment of an administrator ought not appointment of the commissioners to report on a claim against
an estate which did not exist and under the direction of an good sense and sound judgment of the persons concerned. on such administration the administrator is authorized to
administrator that had never been appointed. Usually no difficulty will be experienced in solving the problem recover only the amount of property necessary to pay the debt
presented by this conclusion. It is obvious that creditors always presented, leaving the partitioning parties in undisturbed
know who owes them and that debtors generally know whom possession of the remainder. Moreover, the partitioning parties
The necessary conclusion is that the appointment of
they owe. It is equally obvious that, generally speaking, a may still pay the debt and preserve undisturbed the partition in
commissioners to hear the claim above referred to was beyond
creditor is one of the first to learn of the death of the debtor, all it parts and thus assure and maintain the rights of the
the powers of the court and was without jurisdiction. The
and that heirs of the latter are the first to begin to calculate how parties thereunder. The mere fact, therefore, that a creditor
finding of the commissioners had no force or effect. It gave no
much of his property they are to receive. This cannot be known was not paid before the partition took place furnishes no
right against the estate and none against the so-called
until the debts are determined. The heirs know they cannot ground for a revocation of the partition. It simply provides a fact
administrator.
escape payment of the debts. A surreptitious division behind which he may urge as a reason for the appointment of an
the backs of the creditors would not avail as the latter have two administrator and the consequent administration of so much of
It must be remembered that it is only debts discovered within years thereafter in which to throw at least a portion of the the estate as may be necessary to pay the debt discovered.
the prescribed period that can be made the reason for an estate into administration and thereby nullify the attempt to
administration of the estate subsequent to its partition. The overreach them. Even the transfer by the partitioning persons
But, as already seen, in order that it be a reason for such
necessary result is t hat a debt not discovered within that of the property received on the partition to third persons would
appointment and administration, the claim must be presented
period cannot be made the reason for an administration of the not profit them, inasmuch as the consideration received on
within two years from the date of the partition and distribution.
estate. The debt in the case at bar having first discovered more such transfer would, if necessary, be subject to seizure to pay
than four years after the partition of the estate of Mariano the debt presented and the real estate would go into the hands
Ocampo, deceased, an administrator, even though appointed of the vendees charged with the lien of said debt. Summarizing, we have seen that lack of opportunity, either by
under section 57, would not no authority in law, over the want of notice or otherwise, and the consequent failure to
objection of one interested, to pay the debt in question or to present a claim before partition, is, under the sections we are
The method of ascertaining claims against the defendant's
maintain an action or other proceeding for the recovery of discussing, of no consequence whatever in so far as
estate not being prescribed, it is apparent that no objection to a
property for that purpose. This section creates a statute of the validity of the partition is concerned.
partition can be urged by a creditor whose claim has not been
limitations which deprives all debts which are not discovered
paid, due to the faulty method adopted by the partitioning
within the prescribed time of the power of requiring an
parties to ascertain claims, or, even, the absence of any effort We have also seen that the fact that there were debts
administration of the estate. The administration of the estate
at all to ascertain them. outstanding and unpaid at the time the partition took place is of
after the partition under the law has been accomplished
no importance so far as the validity of the partition is
depends upon the discovery of the debt "at any time within two
concerned, leaving out account the question of fraud to which
years after such settlement and distribution of the estate." The In the second place, it must be on served that express
we have already adverted and left undecided.
law does not operate unless that discovery is made within the provisions is made by sections 596 and 597 for the payment of
time prescribed. a claim discovered by them or presented after the partition.
That is one of the main provisions. It is a necessary deduction, We have also seen that the fact such claim exists and is valid
therefore, that it was not the intention of the law to pronounce and subsistent against the estate is of no consequence
We have not overlooked the contention that at the time this
the partition void of no effect simply because not all of the whatever with respect to the right of its holder to require an
partition took place there was a contingent claim against the
debts were paid before the partition was made. The fact of non administration of the estate unless such claim is discovered
estate partitioned, namely, the claim which would arise on the
payment cannot, then, because by the creditor as a reason for and presented within two years.
contingency that the administrator for whom Mariano Ocampo
attacking the partition directly; that is, by asserting that,
was surety might default or otherwise fail to perform his duties
inasmuch as a payment of all the debts is a condition
thus rendering Mariano Ocampo liable on his bond; and that The fact that the claim in the case at bar was, during a certain
precedent to the right of partition, such partition cannot legally
contingent claim, being one expressly recognized by sections period, a contingent one is of no importance. The sections
and validly take place while a debt is outstanding. While a
746 to 749 of the Code of Civil Procedure as a claim entirely under discussion make no distinction between claims.
partition manifestly fraudulent in inception and result might
proper to present, no partition of this estate under section 596
possibly be attacked directly by an action to set aside, a
and 597 was legally possible until such claim was provided for
question which we do not discuss or decide, the manner of The creditor himself is not without duties. In the case at bar it
by the petitioning parties. This contention goes upon the
attacking the partition prescribed by the law is the one, was five years after the petition before the alleged creditor
assumption that a partition under the sections of the Code of
generally speaking, preferably to be followed; and that is to made any attempt whatsoever to "discover" or present his
Civil Procedure so often referred to is void unless every debt is
throw into administration so much of the estate as is necessary claim. He knew of the death of Ocampo very soon after it
paid or provided for by the petitioning parties, and may
to pay the outstanding claim. The method, though indirect, occurred. He knew that it was among the possibilities that
therefore be entirely disregarded by the creditor holding a claim
accomplishes a better result than a direct attack. The latter, by Ocampo's estate might be called upon to respond for the failure
either unpaid or provided for. We do not believe that this
destroying the validity of the partition, would throw the whole of Palanca to perform his duty as administrator. It was his duty
assumption is warranted. In the first place, we must remember
situation into confusion and uncertainty, something always to to see to it that he would be protected in that event.
that the partition proceedings in question are proceedings out
be avoided. The former does not produce that result. Where Nevertheless he permitted the estate of Ocampo to be
of court. Consequently there is no prescribed method of
there is no fraud, and possibly where there is, a direct attack on partitioned and distributed without protest and without the
ascertaining and settling claims. The appointment of
the partition is impossible under the provisions under presentation of his contingent claim, and sat quiet and passive
commissioners, the publication of notice to creditors, and all
discussion. A claim discovered and presented within the two for nearly five years thereafter knowing that it was very
the other proceedings necessary in cases of administration in
years serves not to destroy, primarily, the partition. It does not probable that the property of the estate was being consumed,
court are not required in partition out of court. The law is silent
even permit the whole estate to be thrown into administration. incumbered, and transferred by the persons among whom it
as to how the claims are to be ascertained, presented and
Only such portion as is necessary to pay the discovered debt had been distributed.
determined. We must assume, therefore, that the method of
can be administered. This is apparent when it is observed that
ascertaining them and determining their validity was left to the
The judgment appealed from is hereby affirmed, without
special finding as to costs.

Arellano, C.J., Torres, Mapa and Johnson, JJ., concur.

Carson and Trent, JJ., concur as to the dispositive part.
G.R. No. L-19060             May 29, 1964 7/8th for the latter; ordering the respondents to render accounts November 18, 1955), it is already settled in this jurisdiction that
of the income of said properties and to deliver to petitioners an action for reconveyance of real property based upon a
their lawful share therein; and sentencing respondents to pay constructive or implied trust, resulting from fraud, may be
IGNACIO GERONA, MARIA CONCEPCION GERONA,
damages and attorney's fees. barred by the statute of limitations (Candelaria v. Romero, L-
FRANCISCO GERONA and DELFIN GERONA, petitioners,
12149, September 30, 1960; Alzona v. Capunita, L-10220,
vs.
February 28, 1962).
CARMEN DE GUZMAN, JOSE DE GUZMAN, CLEMENTE DE In their answer, respondents maintained that petitioners'
GUZMAN, mother, the deceased Placida de Guzman, was not entitled to
FRANCISCO DE GUZMAN, RUSTICA DE GUZMAN, PACITA share in the estate of Marcelo de Guzman, she being merely a Inasmuch as petitioners seek to annul the aforementioned
DE GUZMAN and VICTORIA DE GUZMAN respondents. spurious child of the latter, and that petitioners' action is barred deed of "extra-judicial settlement" upon the ground of fraud in
by the statute of limitations. the execution thereof, the action therefor may be filed within
four (4) years from the discovery of the fraud (Mauricio v.
Manuel J. Serapio for petitioners.
Villanueva, L-11072, September 24, 1959). Such discovery is
D. F. Castro and Associates for respondents. After appropriate proceedings, the trial court rendered a
deemed to have taken place, in the case at bar, on June 25,
decision finding that petitioners' mother was a legitimate child,
1948, when said instrument was filed with the Register of
by first marriage, of Marcelo de Guzman; that the properties
CONCEPCION, J.: Deeds and new certificates of title were issued in the name of
described in the complaint belonged to the conjugal partnership
respondents exclusively, for the registration of the deed of
of Marcelo de Guzman and his second wife, Camila Ramos;
extra-judicial settlement constitute constructive notice to the
Appeal by certiorari from a decision of the Court of Appeals, and that petitioners' action has already prescribed, and,
whole world (Diaz v. Gorricho, L-11229, March 29, 1958;
affirming that of the Court of First Instance of Bulacan. accordingly, dismissing the complaint without costs. On appeal
Avecilla v. Yatco, L-11578, May 14, 1958; J.M. Tuason & Co.,
taken by the petitioners, this decision as affirmed by the Court
Inc. v. Magdangal, L-15539, January 30, 1962; Lopez v.
of Appeals, with costs against them.
In the complaint, filed with the latter court on September 4, Gonzaga, L-18788, January 31, 1964).
1958, petitioners herein, namely, Ignacio, Maria Concepcion,
Francisco and Delfin, all surnamed Gerona, alleged that they Petitioners maintain that since they and respondents are co-
As correctly stated in the decision of the trial court:
are the legitimate children of Domingo Gerona and Placida de heirs of the deceased Marcelo de Guzman, the present action
Guzman; that the latter, who died on August 9, 1941 was a for partition of the latter's estate is not subject to the statute of
legitimate daughter of Marcelo de Guzman and his first wife, limitations of action; that, if affected by said statute, the period In the light of the foregoing it must, therefore, be held
Teodora de la Cruz; that after the death of his first wife, of four (4) years therein prescribed did not begin to run until that plaintiffs learned at least constructively, of the
Marcelo de Guzman married Camila Ramos, who begot him actual discovery of the fraud perpetrated by respondents, alleged fraud committed against them by defendants
several children, namely, respondents Carmen, Jose, which, it is claimed, took place in 1956 or 1957; and that on 25 June 1948 when the deed of extra-judicial
Clemente, Francisco, Rustica, Pacita and Victoria, all accordingly, said period had not expired when the present settlement of the estate of the deceased Marcelo de
surnamed De Guzman; that Marcelo de Guzman died on action was commenced on November 4, 1958. Guzman was registered in the registry of deeds of
September 11, 1945; that subsequently, or on May 6, 1948, Bulacan, Plaintiffs' complaint in this case was not
respondents executed a deed of "extra-judicial settlement of filed until 4 November 1958, or more than 10 years
Petitioners' contention is untenable. Although, as a general
the estate of the deceased Marcelo de Guzman", fraudulently thereafter. Plaintiff Ignacio Gerona became of age on
rule, an action for partition among co-heirs does not prescribe,
misrepresenting therein that they were the only surviving heirs 3 March 1948. He is deemed to have discovered
this is true only as long as the defendants do not hold the
of the deceased Marcelo de Guzman, although they well knew defendants' fraud on 25 June 1948 and had,
property in question under an adverse title (Cordova vs.
that petitioners were, also, his forced heirs; that respondents therefore, only 4 years from the said date within
Cordova, L-9936, January 14, 1948). The statute of limitations
had thereby succeeded fraudulently in causing the transfer which to file this action. Plaintiff Maria Concepcion
operates as in other cases, from the moment such adverse title
certificates of title to seven (7) parcels of land, issued in the Gerona became of age on 8 December 1949 or after
is asserted by the possessor of the property (Ramos vs.
name of said deceased, to be cancelled and new transfer the registration of the deed of extra-judicial
Ramos, 45 Phil. 362; Bargayo v. Camumot, 40 Phil. 857;
certificates of title to be issued in their own name, in the settlement. She also had only the remainder of the
Castro v. Echarri, 20 Phil. 23).
proportion of 1/7th individual interest for each; that such fraud period of 4 years from December 1949 within which
was discovered by the petitioners only the year before the to commence her action. Plaintiff Francisco Gerona
institution of the case; that petitioners forthwith demanded from When respondents executed the aforementioned deed of extra- became of age only on 9 January 1952 so that he
respondents their (petitioners) share in said properties, to the judicial settlement stating therein that they are the sole heirs of was still a minor when he gained knowledge (even if
extent of 1/8th interest thereon; and that the respondents the late Marcelo de Guzman, and secured new transfer only constructive) of the deed of extra-judicial
refused to heed said demand, thereby causing damages to the certificates of title in their own name, they thereby excluded the settlement on 25 June 1948. Likewise, plaintiff Delfin
petitioners. Accordingly, the latter prayed that judgment be petitioners from the estate of the deceased, and, consequently, Gerona became of legal age on 5 August 1954, so
rendered nullifying said deed of extra-judicial settlement, set up a title adverse to them. And this is why petitioners have that he was also still a minor at the time he gained
insofar as it deprives them of their participation of 1/18th of the brought this action for the annulment of said deed upon the knowledge (although constructive) of the deed of
properties in litigation; ordering the respondents to reconvey to ground that the same is tainted with fraud. 1äwphï1.ñët extra-judicial settlement on 25 June 1948. Francisco
petitioners their aforementioned share in said properties; Gerona and Delfin Gerona had, therefore, two years
ordering the register of deeds to cancel the transfer certificates after the removal of their disability within which to
Although, there are some decisions to the contrary (Jacinto v.
of title secured by respondents as above stated and to issue commence their action (Section 45, paragraph 3, in
Mendoza, L-12540, February 28, 1959; Cuison v. Fernandez,
new certificates of title in the name of both the petitioners and relation to Section 43, Act 190), that is, January 29,
L-11764, January 31, 1959; Maribiles v. Quinto, L-10408,
the respondents in the proportion of 1/8th for the former and
October 18, 1956; and Sevilla v. De los Angeles, L-7745,
 1952, with respect to Francisco, and 5 August 1954,
with respect to Delfin.

WHEREFORE, the decision of the Court of Appeals is hereby

affirmed, with costs against petitioners herein. It is so ordered.

Bengzon, C.J., Bautista Angelo, Reyes, J.B.L., Barredo,

Paredes, Regala and Makalintal, JJ., concur.
Padilla, Labrador and Dizon, JJ., took no part.
G.R. No. 118680            March 5, 2001 square meters. These properties were divided among Jose, Petitioner appealed to the Court of Appeals. The appellate
Carmen, Mercedes, Ramon and the heirs of Miguel, court affirmed the decision of the trial court. Its ruling was
represented solely by Rosalina. The heirs of Miguel were given premised on the following grounds:8
MARIA ELENA RODRIGUEZ PEDROSA, petitioner,
226 square meters of parcel 2, and 9,567 square meters and
vs.
24,457 square meters of parcels 7 and 9, respectively.1 The
THE HON. COURT OF APPEALS, JOSE, CARMEN, 1) that the participation of Rosalina has already
total land area allocated to the heirs of Miguel was 34,250
MERCEDES & RAMON, all surnamed RODRIGUEZ, estopped her from questioning the validity of the
square meters.
ROSALINA RODRIGUEZ, CHAN LUNG FAI, MATEO TAN partition, and since she is already estopped, it
TE, TE ENG SUY, LORETA TE, VICTORIO S. DETALIA, naturally follows that Maria Elena, her successor-in-
JEROME DEIPARINE, PETRONILO S. DETALIA, HUBERT Armed with the Deed of Extrajudicial Settlement and Partition, interest, is likewise estopped, applying Article 1439
CHIU YULO, PATERIO N. LAO, LORENSITA M. PADILLA, respondents Rodriguezes were able to secure new Transfer of the Civil Code;
IMMACULATE CONCEPCION COLLEGE AND LILIAN Certificates of Title (TCTs) and were able to transfer some
EXPRESS, INC. and TIO TUAN, respondents. parcels to the other respondents herein. 2
2) that the appeal of Maria Elena and her claim that
the partition is null and void is weakened by her
QUISUMBING, J.: Lots 504-A-6, 504-B-3 and 504-C-4, portions of Parcel 3, inconsistent claim that the partition would have been
designated as Lot 504, were transferred to respondents Chuan alright had she been given a more equitable share;
Lung Fai,3 but not included in the Deed of Settlement and
This petition assails the decision of the Court of Appeals dated
Partition, were transferred to respondent Lilian Express, Inc.
May 23, 1994 which affirmed the judgment of the Regional Trial 3) the action is essentially an action for rescission
and are now registered under TCT No. T-11337. Parcel 6, Lot
Court, Branch 15, of Ozamiz City in Civil Case No. OZ-1397. and had been filed late considering that it was filed
560, was subdivided among Ramon, Jose, Carmen and
beyond the 4 year period provided for in Article 1100
Mercedes and was designated as Lots 560-A, 560-B, 560-C,
of the Civil Code;9
The facts of this case are as follows: 560-D and 560-E. Lot 560-A covering 500 square meters was
transferred to respondent Victorino Detall4 and was
subsequently transferred to Jerome Deiparine who registered it 4) that fraud and/or bad faith was never established.
On April 8, 1946, the spouses Miguel Rodriguez and Rosalina under his name under TCT No. T-10706. Lot 560-B with 500
J. de Rodriguez initiated proceedings before the CFI of Ozamiz square meters was transferred to respondent Petronilo
City for the legal adoption of herein petitioner, Maria Elena Petitioner filed a Motion for Reconsideration, which was denied
Detalla5 and was later transferred to respondent Hubert Chiu
Rodriguez Pedrosa. On August 1, 1946, the CFI granted the by the Court of Appeals in a Resolution dated December 20,
Yulo who registered it under his name under TCT No. T-11305.
petition and declared petitioner Pedrosa the adopted child of 1994.10
Lot 560-C was transferred and registered under the name of
Miguel and Rosalina. respondent Paterio Lao with TCT No. T-10206. Lot 560-D was
sold to and subsequently registered in the name of Lorensita Hence, this petition wherein the petitioner asserts that the
On April 29, 1972, Miguel died intestate. Thereafter, petitioner M. Padilla under TCT No. T-10207. The remaining portion, Lot following errors were allegedly committed by the Court of
and Rosalina entered into an extrajudicial settlement of 560-E consisting of 43,608 square meters was bought by Appeals in -
Miguel's estate, adjudicating between themselves in equal respondent Immaculate Concepcion College and was
proportion the estate of Miguel. registered in its name under TCT No. T-10208.6
I. ……FINDING THAT THE EXTRAJUDICIAL SETTLEMENT
AND PARTITION ENTERED INTO BY DEFENDANT
On November 21, 1972, private respondents filed an action to On June 19, 1986, the parties in the appeal which sought to JUREDINI AND DEFENDANTS-APPELLANTS
annul the adoption of petitioner before the CFI of Ozamiz City, annul the adoption of petitioner Pedrosa filed a joint Motion to RODRIGUEZES WAS VALID AND BINDING UPON THE
with petitioner and herein respondent Rosalina as defendants Dismiss. On June 25, 1986, the Court of Appeals dismissed the PLAINTIFF-APPELLANT WHO DID NOT PARTICIPATE IN
docketed as OZ 349. appeal but upheld the validity of the adoption of petitioner. SAID TRANSACTION

On August 28, 1974, the CFI denied the petition and upheld the Thereafter, petitioner sent her daughter, Loreto Jocelyn, to II. ……CONCLUDING THAT THE CLAIM OF PLAINTIFF-
validity of the adoption. Thereafter, the private respondents claim their share of the properties from the Rodriguezes. The APPELLANT HAVE ALREADY PRESCRIBED TWO (2)
appealed said decision to the Court of Appeals. latter refused saying that Maria Elena and Loreto were not YEARS AFTER PUBLICATION OF THE EXTRAJUDICIAL
heirs since they were not their blood relatives. SETTLEMENT AND PARTITION IN THE NEWSPAPER OF
GENERAL CIRCULATION
On March 11, 1983, while said appeal was pending, the
Rodriguezes entered into an extrajudicial settlement with Petitioner, then, filed a complaint to annul the 1983 partition.
respondent Rosalina for the partition of the estate of Miguel The said complaint was filed on January 28, 1987. Said III. ...…CONCLUDING THAT THE CLAIM OF PLAINTIFF-
and of another sister, Pilar. Rosalina acted as the complaint was later amended on March 25, 1987 to include the APPELLANT IS BARRED OR ESTOPPED IN FILING THIS
representative of the heirs of Miguel Rodriguez. Pilar had no allegation "that earnest efforts toward a compromise were CASE (sic) IN VIEW OF THE DISMISSAL OF THE APPEAL IN
heirs except his brothers and sisters. made between the plaintiffs and the defendants, but the same CIVIL CASE NO. OZ 349 INTERPOSED BY HEREIN
failed."7 DEFENDANTS-APPELLEES WHO WERE THEN
PLAINTIFFS-APPELLANTS IN AC [C]-G.R. NO. SP-00208
The Deed of Extrajudicial Settlement and Partition covered
fourteen parcels of land covering a total area of 224,883 The Regional Trial Court dismissed the complaint.
IV. ……SUSTAINING THE DEFENDANT-APPELLEES' CLAIM said lots as a co-owner of respondent Rodriguezes under the succeeding section; but no extrajudicial settlement
THAT AS THEY HAVE NOT AS YET RECOGNIZED provisions of Article 1620 of the New Civil Code. 15 shall be binding upon any person who has not
PLAINTIFF-APPELLANT AS AN ADOPTED DAUGHTER OF participated therein or had no notice thereof.22
MIGUEL RODRIGUEZ IT WAS NOT NECESSARY FOR
Lastly, petitioner asserts that she will suffer lesion if the
THEM TO HAVE HER PARTICIPATE IN THE
partition would be allowed. She asks for the rescission of the Under said provision, without the participation of all persons
EXTRAJUDICIAL SETTLEMENT, EXHIBITS "S" AND "I"
said partitioning under Articles 165-175 of the Civil Code. 16 involved in the proceedings, the extrajudicial settlement cannot
be binding on said persons. The rule contemplates a notice
V. ……CONCLUDING THAT THE PLAINTIFF-APPELLANT which must be sent out or issued before the Deed of
Respondents, in response, claim that the action of petitioner
HAD NOT CONCLUSIVELY SHOWN THAT MIGUEL Settlement and/or Partition is agreed upon, i.e., a notice calling
had already prescribed. In addition, they argue that petitioner,
RODRIGUEZ WAS A CO-OWNER OF THE LANDS SOLD all interested parties to participate in the said deed of
Maria Elena, and Rosalina already have their shares in the
AND HENCE IT FOLLOWS THAT SHE HAS NO RIGHT OF extrajudicial settlement and partition, not after, which was when
estate of Miguel Rodriguez reflected in the compromise
REDEMPTION OF THOSE LANDS publication was done in the instant case. Following Rule 74
agreement they entered into with the respondent Rodriguezes
and the ruling in Beltran vs. Ayson, since Maria Elena did not
in AC- G.R. SP 00208. Finally, respondents aver that the non-
participate in the said partition, the settlement is not binding on
VI. ……FINDING THAT PORTION OF LOTS NOS. 504 AND participation of Maria Elena in the extrajudicial partition was
her.
560 SOLD TO THE OTHER DEFENDANTS–APPELLEES understandable since her status as an adopted child was then
WERE CLEAN AND FREE FROM ENCUMBRANCES OR ANY under litigation. In any case, they assert that the shares of
FLAWS HENCE WERE VALID Miguel's heirs were adequately protected in the said partition.17 The provision of Section 4, Rule 74 will also not apply when the
deed of extrajudicial partition is sought to be annulled on the
ground of fraud. A deed of extrajudicial partition executed
VII. ……FINDING THAT THE PLANTIFF–APPELLANT NEVER Section 4, Rule 7418 provides for a two year prescriptive period
without including some of the heirs, who had no knowledge of
APPEARED IN COURT TO TESTIFY OR REBUT THE (1) to persons who have participated or taken part or had
and consent to the same, is fraudulent and vicious.23 Maria
ASSERTIONS OF THE DEFENDANTS–APPELLANTS THAT notice of the extrajudicial partition, and in addition (2) when the
Elena is an heir of Miguel together with her adopting mother,
THERE WAS A VALID PARTITION provisions of Section 119 of Rule 74 have been strictly complied
Rosalina. Being the lone descendant of Miguel, she excludes
with, i.e., that all the persons or heirs of the decedent have
the collateral relatives of Miguel from participating in his estate,
taken part in the extrajudicial settlement or are represented by
VIII. ……AWARDING PLAINTIFF–APPELLANT DAMAGES following the provisions of Article 1003 of the Civil Code. 24 The
themselves or through guardians.20
FOR THE INCOME OF HER SHARE IN THE PROPERTIES IN private respondent Rodriguezes cannot claim that they were
QUESTION11 not aware of Maria Elena's adoption since they even filed an
Petitioner, as the records confirm, did not participate in the action to annul the decree of adoption. Neither can they claim
extrajudicial partition. Patently then, the two-year prescriptive that their actions were valid since the adoption of Maria Elena
In sum, the issues to be resolved in our view are (1) whether or
period is not applicable in her case. was still being questioned at the time they executed the deed
not the complaint for annulment of the "Deed of Extrajudicial of partition. The complaint seeking to annul the adoption was
Settlement and Partition" had already prescribed; (2) whether filed only twenty six (26) years after the decree of adoption,
or not said deed is valid; and (3) whether or not the petitioner is The applicable prescriptive period here is four (4) years as patently a much delayed response to prevent Maria Elena from
entitled to recover the lots which had already been transferred provided in Gerona vs. De Guzman, 11 SCRA 153 (1964), inheriting from her adoptive parents. The decree of adoption
to the respondent buyers. which held that: was valid and existing. With this factual setting, it is patent that
private respondents executed the deed of partition in bad faith
Petitioner argues that the complaint for annulment of the [The action to annul] a deed of "extrajudicial with intent to defraud Maria Elena.
extrajudicial partition has not yet prescribed since the settlement" upon the ground of fraud...may be filed
prescriptive period which should be applied is four years within four years from the discovery of the fraud. In the case of Segura vs. Segura, the Court held:
following the case of Beltran vs. Ayson, 4 SCRA 69 (1962). Such discovery is deemed to have taken place when
She also avers that Sec. 4, Rule 74 which provides for a two- said instrument was filed with the Register of Deeds
year prescriptive period needs two requirements. One, the and new certificates of title were issued in the name This section [referring to section 4, Rule 74] provides
party assailing the partition must have been given notice, and of respondents exclusively.21 in gist that a person who has been deprived of his
two, the party assailing the partition must have participated lawful participation in the estate of the decedent,
therein. Petitioner insists these requirements are not present in whether as heir or as creditor, must assert his claim
Considering that the complaint of the petitioner was filed on
her case,12 since she did not participate in the "Deed of within two years after the extrajudicial or summary
January 28, 1987, or three years and ten months after the
Extrajudicial Settlement and Partition." She cites Villaluz vs. settlement of such estate under Sections 1 and 2
questioned extrajudicial settlement dated March 11, 1983, was
Neme, 7 SCRA 27, 30 (1963), where we held that a deed of respectively of the same Rule 74. Thereafter, he will
executed, we hold that her action against the respondents on
extrajudicial partition executed without including some of the be precluded from doing so as the right will have
the basis of fraud has not yet prescribed.
heirs, who had no knowledge and consent to the same, is prescribed.
fraudulent. She asserts that she is an adoptive daughter and
thus an heir of Miguel.13 Section 1 of Rule 74 of the Rules of Court is the applicable rule It is clear that Section 1 of Rule 74 does not apply to
on publication of extrajudicial settlement. It states: the partition in question which was null and void as
Petitioner also contends that the respondent buyers were far as the plaintiffs were concerned. The rule covers
buyers in bad faith since they failed to exercise the necessary The fact of the extrajudicial settlement or only valid partitions. The partition in the present case
due diligence required before purchasing the lots in administration shall be published in a newspaper of was invalid because it excluded six of the nine heirs
question.14 In the alternative, petitioner wants to redeem the general circulation in the manner provided in the next who were entitled to equal shares in the partitioned
 property. Under the rule, "no extrajudicial settlement award is given in view of the peculiar circumstances cited and stating that the complaint was indeed filed on
shall be binding upon any person who has not the special reasons extant in this case. 33 Thus, the grant of January 28, 1997. However, it still held that the
participated therein or had no notice thereof." As the ONE HUNDRED THOUSAND (P100,000.00) PESOS to action had already prescribed since the prescription
partition was a total nullity and did not affect the petitioner as damages is proper in view of the technical injury period is not four (4) years (as it previously stated),
excluded heirs, it was not correct for the trial court to she has suffered. but rather, it was two (2) years, as provided for in
hold that their right to challenge the partition had Section 4 of Rule 74.
prescribed after two years from its execution in
WHEREFORE, the petition is GRANTED. The assailed
1941.25
decision of the Court of Appeals is hereby REVERSED and  Rollo, pp. 36-38.
11

SET ASIDE. The "Deed of Extrajudicial Settlement and

To say that Maria Elena was represented by Rosalina in the Partition" executed by private respondents on March 11, 1983
 Id. at 40-43.
12
partitioning is imprecise. Maria Elena, the adopted child, was is declared invalid. The amount of P100,000.00 is hereby
no longer a minor at the time Miguel died. Rosalina, only awarded to petitioner as damages to be paid by private
represented her own interests and not those of Maria Elena. respondents, who are also ordered to pay the costs.  Id. at 44-51.
13

Since Miguel predeceased Pilar, a sister, his estate

automatically vested to his child and widow, in equal shares.
SO ORDERED.  Id. at 51-53.
14
Respondent Rodriguezes' interests did not include Miguel's
estate but only Pilar's estate.
Bellosillo, Mendoza, Buena, and De Leon, Jr., JJ., concur. 15
 Art. 1620. A co-owner of a thing may exercise the
right of redemption in case the shares of all the other
Could petitioner still redeem the properties from buyers? Given
co-owners or any of them, are sold to a third person.
the circumstances in this case, we are constrained to hold that
If the price of the alienation is grossly excessive, the
this is not the proper forum to decide this issue. The properties
redemptioner shall pay only the reasonable one.
sought to be recovered by the petitioner are now all registered
under the name of third parties. Well settled is the doctrine that
a Torrens Title cannot be collaterally attacked. The validity of Footnotes Should two or more co-owners desire to exercise the
the title can only be raised in an action expressly instituted for right of redemption, they may only do so in
such purpose.26 proportion to the shares they may respectively have
1
 Exhibit "S," Plaintiffs Folder of Exhibits, pp. 87-91.
in the thing owned in common.
Petitioner asks for the award of damages. No receipts, 2
 CA Records, pp. 5-7.
agreements or any other documentary evidence was presented  Articles 1098-1100, NCC.
16

to justify such claim for damages. Actual damages, to be

recoverable, must be proved with a reasonable degree of 3
 Spelled as "Chan Lung Fai" in petition.3 Mateo Tan
certainty. Courts cannot simply rely on speculation, conjecture  Rollo, pp. 162-163.
17
Te, Te Eng Suy, Loreta Te and Tio Tuan. These lots
or guesswork in determining the fact and amount of are now covered by TCT No. T-11358. Lots 504-A-5
damages.27 The same is true for moral damages. These cannot and 504-B-1, included in Parcel 18
 Sec. 4. Liability of distributees and estate – If it
be awarded in the absence of any factual basis.28 The shall appear at any time within two (2) years after the
unsubstantiated testimony of Loreto Jocelyn Pedrosa is settlement and distribution of an estate in
hearsay and has no probative value. It is settled in
4
 Referred to as "Victorio Detalia in petition.
accordance with the provisions of either of the first
jurisprudence that damages may not be awarded on the basis two sections of this rule, that an heir or other person
of hearsay evidence.29 Nonetheless, the failure of the petitioner 5
 Referred to as Petronilo Detalia" in petition. has been unduly deprived of his lawful participation
to substantiate her claims for damages does not mean that she in the estate, such heir or such other person may
will be totally deprived of any damages. Under the law, nominal compel the settlement of the estate in the courts in
damages are awarded, so that a plaintiff's right, which has
6
 Ibid.
the manner hereinafter provided for the purpose of
been invaded or violated by defendants may be vindicated and satisfying such lawful participation. And if within the
recognized.30 7
 Rollo, p. 31. same time of two (2) years, it shall appear that there
are debts outstanding against the estate which have
Considering that (1) technically, petitioner sustained injury but not been paid, or that an heir or other person has
8
 CA Records, pp. 149-151
which, unfortunately, was not adequately and properly proved, been unduly deprived of his lawful participation
(2) petitioner was unlawfully deprived of her legal participation payable in money, the court having jurisdiction of the
in the partition of the estate of Miguel, her adoptive father, (3)
9
 The Court of Appeals mistakenly considered March estate may, by order for that purpose, after hearing,
respondents had transferred portions of the properties involved 25, 1987 as the date when complaint was fild when settle the amount of such debts or lawful participation
to third parties, and (4) this case has dragged on for more than in fact, as the records will show, it was filed on and order how much and in what manner each
a decade, we find it reasonable to grant in petitioner's favor January 28, 1987. distributee shall contribute in the payment thereof,
nominal damages in recognition of the existence of a technical and may issue execution, if circumstances require,
injury.31 The amount to be awarded as such damages should at against the bond provided in the preceding section or
10
 In the said Resolution, the Court of Appeals against the real estate belonging to the deceased, or
least commensurate to the injury sustained by the petitioner retracted on its previous ruling that the complaint
considering the concept and purpose of said damages.32 Such both. Such bond and such real estate shall remain
was filed on March 25, 1987 and corrected itself by charged with a liability to creditors, heirs, or other
persons for the full period of two (2) years after such  PNOC Shipping and Transport Corp. vs.
33

distribution, notwithstanding any transfers of real CA, supra, note 30.

estate that may have been made.

 Now sections 1 and 2.

19

20
 Beltran vs. Ayson, 4 SCRA 69, 72 (1962),
citing Sampillo, et. al vs. Court of Appeals, et. al., 55
Off. Gaz., July 27, 1959, pp. 5775-5777,
citing McMicking vs. Sy Conbieng, 21 Phil. 211
(1912), underline supplied.

 Citing Mauricio vs. Villanueva, L-11072,

21

September 24, 1959; underline for emphasis

supplied.

 Section 1, Rule 74, Rules of Court, underline

22

supplied.

 Villaluz vs. Neme, 7 SCRA 27, 30 (1963).

23

 Article 1003, in relation to Article 979, 2nd par.;

24

Also, see annotations of Jurado in "Comments and

Jurisprudence on Succession", 1991 8th ed., p. 444.

 Segura vs. Segura, 165 SCRA 368, 373 (1988).

25

 Halili vs. Court of Industrial Relations, 257 SCRA

26

174, 184 (1996).

 Marina Properties Corporation vs. Court of

27

Appeals, 294 SCRA 273, 286 (1998).

28
 Brent Hospital, Inc. vs. NLRC, 292 SCRA 304, 311
(1998).

 PNOC Shipping and Transport Corporation vs.

29

Court of Appeals, 297 SCRA 402, 425 (1998).

 Lufthansa German Airlines vs. Court of Appeals,

30

243 SCRA 600, 616 (1995).

 PNOC Shipping and Transport Corp. vs. CA,

31

supra, note 28 at 426, citing, Robes-Francisco

Realty and Development Corp. vs. CFI of Rizal
(Br.34), 86 SCRA 59, 65 (1978).

32
 China Air Lines, Ltd. vs. CA, 185 SCRA 449, 460
(1990).
 EN BANC business in Gingoog as agent or attorney in fact (apoderado). present the will to the court, but the latter dissented from this
While absent on this visit to China Joaquin Cruz died. Before opinion and stated that if he should now present the will he
[G.R. No. 12184. September 27, 1917. ] his departure from the Philippine Islands he had executed a will would suffer prejudice as a long time had already elapsed. In
before Anastasio Servillon, notary public, in which Chiu Guimco deference to this determination of the accused a letter was
THE UNITED STATES, Plaintiff-Appellee, v. CHIU and Co-Iden were named as executors. In August 1910, Chiu written for him by Yacapin to Ramon Contreras, in which the
GUIMCO, Defendant-Appellant. Guimco and Co-Iden appeared before Anastasio Servillon; and accused asserted that the will in question had never been in his
at their request the latter drew up a petition for the probate of possession and that he had never seen it.
Jose A. Clarin and Irureta Goyena & Recto for Appellant. the will. This petition was signed by Co-Iden and the accused.
The will itself was not produced before the notary public upon A few months later the complaint in this case was filed, under
Attorney-General Avanceña for Appellee. this occasion, and he was not informed by them as to who then section 628 of the Code of Civil Procedure, charging the
had possession of the will. Nothing further was done in the defendant with the failure to produce the will within the time
SYLLABUS matter of the probate of the will and Co-Iden subsequently required by law. The principal witness for the prosecution was
died. Antonio Yacapin, who meanwhile had ceased to have friendly
1. CRIMINAL LAW; FAILURE OF EXECUTOR TO PRODUCE relations with the defendant. The court found the accused
WILL. — The testator, having executed his will, confided it to In September, 1910, the accused, as attorney in fact guilty. That the will was duly executed and that the accused
the keeping of one of the executor named therein. After the (apoderado) and manager of the estate of his deceased and his coexecutor appeared before the notary public and
death of the testator this executor failed to present the brother, entered into an arrangement with Maria Villafranca procured the latter to prepare a petition for the probate of the
instrument to the court within the time provided by law; and a whereby, in consideration of the conveyance of certain property will are facts which are not disputed. The action of the accused
criminal prosecution was thereupon instituted against him to her, she relinquished in favor of the other persons interested in possession himself of the property of his deceased brother
under section 628 of the Code of Civil Procedure. It was held in the estate of the deceased all her claims in respect to the and in refusing to take the proper steps to distribute the estate,
that in this action the court could not commit the defendant to same property. as well as his refusal to comply with the contract for the
jail under the authority conferred by section 629 of the same payment of rent to the wife and child in China, all tend to show
code. No further action was taken by the accused to distribute the that he was acting in bad faith; and we have no doubt that the
estate to the persons in interest. In 1914 Uy Cuan, the Chinese will was in his possession at the time when Yacapin professes
2. EXECUTORS AND ADMINISTRATORS; COMMITMENT wife, secured a special permit to enter the Philippine Islands for to have seen it. In finding the defendant guilty and imposing
FOR FAILURE TO PRODUCE WILL. — A court cannot make a the period of six months to effect some settlement of the estate upon him a fine of P1,800, the Court of First Instance therefore
valid order committing a person to jail for failure to produce the of her deceased husband. When she arrived in Misamis, the committed no error.
will of a deceased person, pursuant to section 629 of the Code accused made the claim that he and his brother had been
of Civil Procedure, except when acting in the exercise of its partners in the business which had been conducted originally During the hearing of this cause the trial judge formed the
jurisdiction over the estates of deceased persons. by Joaquin Cruz. He also asserted that another brother living in opinion that the accused still had possession of the will. He
China, named Chiu Tamco, was also a partner in the business, therefore, upon July 22, ordered the accused to produce the
though he had never been in the Philippine Islands. In a will in court and addressed to him, while he was testifying as a
document which was then drawn up, it was agreed that Uy witness in his own behalf, the following words: "I serve notice
DECISION Cuan and her child Chiu Machay were to receive 40 per on you now to produce the will of your deceased brother
centum of the estate of the deceased, that the defendant Chiu Joaquin Cruz or make a reasonable and satisfactory
Guimco was to receive another 40 per centum, and Chiu explanation as to why you cannot do so. And be back here on
STREET, J. : Tamco 20 per centum. Later upon the same visit, Uy Cuan, on the 8th of August and we will take up the case again." The
behalf of herself and child, entered into a contract with the accused, however, failed to produce the will at the time
accused whereby he agreed to pay the sum of P350 per specified in the notice, alleging that though he had searched
quarter by way of rental on their interest in the real estate of the diligently among his papers he was unable to find it; and he
This is an appeal brought by the accused Chiu Guimco to decedent. No payments have, however, been made by him in reiterated his previous assertion that the will had never been in
reverse a judgment of the Court of First Instance of the compliance with this contract. his possession. The judge was not satisfied with this
Province of Misamis, subjecting him to a fine of P1,800 for a explanation, and upon deciding the present case against the
violation of section 628 of the Code of Civil Procedure and In 1915 Ramon Contreras, a Chinese merchant of Cagayan, defendant he not only imposed the fine mentioned above but
ordering him to be confined in the provincial jail until he should Misamis, acting on behalf of Uy Cuan and her child, began to also included in the judgment an order to the effect that the
produce the will of his deceased brother, or until the further make inquiries into the affairs of the estate and on January 26, accused should be committed to the provincial jail until he
order of the court. 1915, wrote a letter to the defendant Chiu Guimco, urging him should produce the will or until further order of the court.
to produce the will of the defendant for the institution of lawful
It appears that the testator, Joaquin Cruz, alias Piaua, had for proceedings in accordance therewith. The letter called his The judge of first instance believed that he had authority to give
many years resided in the municipality of Gingoog, Province of attention to the penalty denounced by section 628 and 629 of the notice and make the order in question under section 629 of
Misamis, where he had lived as a Chinese merchant and had the Code of Civil Procedure for withholding a will, but assured the Code of Civil Procedure which provides that if a person
amassed a considerable estate, worth possibly forty or fifty him that if he would then produce the will no penalty would be having custody of a will after the death of the testator neglects
thousand pesos. On or about the year 1898, Joaquin Cruz incurred. without reasonable cause to deliver the same to the court
visited Chin and was there married to a Chinese woman, Uy having jurisdiction, after notice by the court to do so, he may be
Cuan, and by her had one child. In the year 1902, after his Chiu Guimco was somewhat disturbed by this letter and called committed to the prison of the province by a warrant issued by
return from China, he was married in Gingoog to a Filipina in his friend Antonio Yacapin, then municipal president of the court and there kept in close confinement until he delivers
woman named Maria Villafranca. In the early part of the year Gingoog, for advice. Upon this occasion he showed Yacapin the will.
1910, Joaquin Cruz again visited China, leaving his brother, the will; and the latter says he advised the Chinaman to
Chiu Guimco, the accused, in charge of his property and
It is our opinion that this provision can only be applied when a Code of Civil Procedure to compel production of a will after
court is acting in the exercise of its jurisdiction over the judgment of conviction under section 628; or, that, when no
administration of the estates of deceased persons; and where criminal action is pending, commitment may be had under
administration proceedings are not already pending, the court, section 629 in a proper case.
before taking action under this section, should require that
there be before it some petition, information, or affidavit of such MALCOLM, J., concurring:chanrob1es virtual 1aw library
character as to make action by the court under this section
appropriate. I concur in the resolution of the case.

The proceedings in this case, under section 628 of the Code of

Civil Procedure, is an ordinary criminal prosecution. The act
penalized in that section (628) is a special statutory offense
and is properly prosecuted upon complaint or information as
other criminal offenses created by law. The fact that this penal
provision is contained in the Code of Civil Procedure does not
make the proceeding to enforce the penalty a civil proceeding
in any sense. The remedy provided in section 629 of the Code
of Procedure is evidently a totally different remedy, having no
relation with that provided in section 628; and it is in our
opinion not permissible in a prosecution under the last
mentioned section to superimpose upon the penalty of fine
therein prescribed the additional penalty of imprisonment
prescribed in section 629.

It may further be observed that one grave difficulty in applying

the remedy provided in section 629 in a prosecution under
section 628 is that to endorse the production of the will by the
accused at such trial would virtually compel him to convict
himself, since the mere production of the will by him would be
conclusive that he had possession of it as charged in the
criminal complaint; and it seems probable that this would
constitute an infringement of that provision of law which says
that in a criminal action the defendant shall be exempt from
testifying against himself. (See Gen. Orders No. 58, sec. 15.)

From what has been said it follows that the order of

commitment made by the lower court remanding the accused
to jail should be vacated and if subsidiary imprisonment should
be imposed for insolvency the defendant shall, under the
provisions of Act No. 2557, be credited with the time during
which he was confined in pursuance of the order of the lower
court. With this modification the judgment of the court below
should be affirmed with costs against the appellant. So
ordered.

Arellano, C.J., Johnson and Araullo, JJ., concur.

Separate Opinions

CARSON, J., concurring:chanrob1es virtual 1aw library

I concur.

I think it well, however, to indicate that I do not understand the

comment in the concluding paragraphs of the prevailing opinion
to amount to a ruling of this court that separate proceedings
may not be instituted under the terms of section 629 of the
 SECOND DIVISION that he had died intestate, brought suit against Ernesto On January 31, 1946, Ernesto Guevara, through counsel, filed
Guevara to recover 423,492 square meters of the tract covered a motion to dismiss the petition on the grounds that (a) the
[G.R. No. L-5405.  January 31, 1956.] by certificate of title No. 51691 as the portion that should petition itself alleged that the will was revoked; chan
ERNESTO M. GUEVARA, Petitioner, vs. ROSARIO correspond to her (Rosario) by way of legitime. roblesvirtualawlibrary(b) that ‘whatever right to probate the
GUEVARA and PEDRO C. QUINTO, Respondents. parties may have has already prescribed’ (Record on Appeal,
The case reached the former Court of Appeals in due course p. 14); chan roblesvirtualawlibraryand (c) that the purpose of
  and was decided in Rosario Guevara’s favor (Exhibit E); chan the probate was solely to have Petitioner Rosario declared an
roblesvirtualawlibrarybut upon certiorari, the Supreme Court acknowledged natural child of the deceased.
DECISION modified the judgment in December, 1943, as follows (Exhibit
F); By order of December 9, 1946, Judge Sotero Rodas denied the
CONCEPCION, J.: motion to dismiss; chan roblesvirtualawlibrarybut upon motion
‘Wherefore, that part of the decision of the Court of Appeals of reconsideration, Judge Mañalac of the same court, on June
This is a petition for review by certiorari of a decision of the which declares in effect that notwithstanding exhibit 2 and the
Court of Appeals. The pertinent facts are set forth in said 23, 1937, reconsidered and set aside the previous resolution
issuance of original certificate of title No. 51691 in the name of and ordered the petition dismissed on the ground that Rosario
decision, from which we quote:chanroblesvirtuallawlibrary Ernesto M. Guevara, one-half of the land described in said Guevara’s petition did not ask for the probate in toto of the will,
“This case being the sequel to, and aftermath of, a previous certificate of title belongs to the estate of Victorino L. Guevara contrary to the order of the Supreme Court; chan
litigation between the parties that reached the Supreme Court, and the other half to Ernesto M. Guevara in consideration of roblesvirtualawlibrarythat her right to petition for the probate of
through the former Court of Appeals, it becomes necessary to the latter’s assumption of the obligation to pay all the debts of the testament of Victorino L. Guevara had prescribed; chan
restate the essential antecedent facts to view the issues in the deceased, is hereby affirmed; chan roblesvirtualawlibraryand that her action for judicial declaration
proper perspective. For this purpose, it is important to recall roblesvirtualawlibrarybut the judgment of said court insofar as it of acknowledgment had likewise prescribed.
that on August 26, 1931, Victorino L. Guevara, a resident of awarded any relief to the Respondent Rosario Guevara in this
Bayambang, Pangasinan, executed a will (Exhibit A), action is hereby reversed and set aside, and the parties are An amended petition for the probate of the will in toto and
distributing assorted movables and a residential lot among his hereby ordered to present the document Exhibit A to the proper another petition to reconsider the previous order were
children, Rosario and Ernesto Guevara, and his stepchildren, court for probate in accordance with law, without prejudice to subsequently denied; chan roblesvirtualawlibrarythe former on
Vivencio, Eduvigis, Dionista, Candida, and Pio Guevara. To his such action as the provincial fiscal of Pangasinan may take the ground that there was a radical change of theory from that
second wife Augustia Posadas, the testator bequeathed, in against the responsible party or parties under section 4 of Rule embodied in the original petition, and the second for the same
addition to various movables, a portion of 25 hectares to be 76. After the said document is approved and allowed by the reasons stated in the order of June 23, 1947. Rosario L.
taken out of a 259 odd hectare parcel outlined in Plan Psu- court as the last will and testament of the deceased Victorino L. Guevara and Pedro L. Quinto thereupon brought the case on
68618, plus another five (5) hectares in settlement of her Guevara, the heirs and legatees herein named may take such appeal to this Court, assigning no less than twenty (20) alleged
widow’s usufruct. The balance of the 259 odd hectares he action, judicial or extrajudicial, as may be necessary to partition errors committed by the court below.” (Guevara vs. Guevara,
distributed as follows:chanroblesvirtuallawlibrary the estate of the testator, taking into consideration the C.A. — G. R. No. 5416-R, promulgated December 26,
pronouncements made in part II of this opinion. No finding as to 1951; chan roblesvirtualawlibrarysee Appendix to brief for
100 hectares reserved for disposal during the testator’s lifetime costs in any of the three instances.’ (Appellant’s Brief, pp. 13- the Petitioner-Appellant, pp. 1-6.)
and for payment of his debts and family expenses; 14.)
The dispositive part of the decision of the Court of Appeals
108.0854 hectares to his legitimate son Ernesto Guevara, Claiming to act pursuant to the foregoing decision, Rosario reads as follows:chanroblesvirtuallawlibrary
including therein 43.2342 hectares by way of mejora; Guevara commenced on October 5, 1945, special proceedings
No. 2646 in the Court of First Instance of Pangasinan for the “The order of dismissal of the petition for probate is reversed
21.6171 hectares to ‘mi hija natural reconocida Rosario and the court of origin ordered to reinstate the petition, and to
probate of the will of Victorino Guevara. In paragraph 10 of the
Guevara.’ hear and decide whether the will of Victorino Guevara,
petition, it was alleged:chanroblesvirtuallawlibrary
deceased, should be allowed to probate. Costs
Ernesto Guevara was appointed executor without bond. ‘10.  Que dicho testamento, o sus disposiciones against Appellees in both instances.” (Ibid.)
On July 12, 1933, the same testator executed a deed of sale in testamentarias, ha sido de jure revocado, o revocados, en
cuanto a la parcela de terreno de 259 hectareas descrita en In his appeal therefrom, Petitioner Ernesto M. Guevara raises
favor of Ernesto Guevara, conveying to the latter the southern
dicho testamento, por haber el testador enajenado o dispuesto the following questions, to wit:chanroblesvirtuallawlibrary (a)
half of the 259-hectare lot heretofore mentioned, and expressly
intervivos de la misma en la forma mencionada en las tres Did Respondents herein duly perfect their appeal from the
recognized Ernesto Guevara as owner of the northern half.
decisiones supra-mencionadas; chan roblesvirtualawlibraryy decision of the Court of First Instance of Pangasinan? (b) Did
Prior to this sale, on November 1, 1932, Victorino and his son que la solicitante pide la legalizacion de dicho testamento tan the Court of Appeals have jurisdiction to entertain said appeal?
Ernesto had jointly applied for registration of the big parcel solo para los efectos del reconocimiento de hija natural hecha (c) Is the petition for probate of the alleged will of the deceased
(case No. 15174), but in view of the sale from the former to the en dicho testamento a favor de la demandante y en obediencia Victorino L. Guevara barred by the statute of limitations?
latter, the decree was issued in the name of Ernesto Guevara al mandato de la Corte Suprema en su decision supra.’ (1)  With reference to the first question, Petitioner has
exclusively and for the whole tract, a certificate of title (No. (Record on Appeal, p. 5.) submitted the following statement 1 of the steps taken since
51691 of Pangasinan) being issued in his sole name on
Notice of the petition having been duly published pursuant to June 23, 1947, date of the resolution of Judge Mañalac,
October 12, 1933.
Rule of Court 77, section 4, Ernesto Guevara appeared and dismissing the petition for probate of the last will and testament
Fifteen days previously, i.e., on September 27, 1933, Victorino opposed the probate. Pedro L. Quinto, counsel for Rosario in of Victoriano L. Guevara:chanroblesvirtuallawlibrary
Guevara died, but his will was not filed for probate. About four the former litigation, was allowed to intervene in view of his “June 23, 1947 —
years later, Rosario Guevara, claiming to be a recognized duly recorded attorney’s lien.
natural child of the deceased Victorino, and on the assumption Date of Resolution appealed from.
July 14, 1947 — February 1, 1948 — Appellants’ petition for ten (10) days period to reply to
objection, if any was to be filed.
Date of Joint Petition for Reconsideration filed by Appellants. Another notice of appeal to Supreme Court and motion for
thirty (30) days extension by Appellant Rosario Guevara. August 27, 1948 —
July 25, 1947 —
February 28, 1948 — Appellee’s objection to amended record on appeal.
Date of Amended petition for probate of will.
Appellants’ ex-parte petition for further extension. September 8, 1948 —
July 25, 1947 —
March 6, 1948 — Appellants’ reply to objection.
Motion for admission of Amended Petition.
Original joint Record on Appeal filed. (This was so defective October 20, 1948 —
August 2, 1947 — and incomplete it consisted of mere disjointed sheets of paper
intercalated with one another and was a mere token record on Court order sustaining objection and gives Appellants fifteen
Appellants’ motion to postpone hearing on petition for (15) days from notice to redraft record on appeal.
reconsideration and motion for admission of Amended Petition. appeal.)
March 8, 1948 — November 3, 1948 —
August 10, 1947 —
Another joint petition for reconsideration of Appellants. Appellants’ joint petition to reconsider order of disapproval of
Appellants’ urgent motion for continuance of hearing on joint Amended Record on Appeal.
petition for Reconsideration as well as Motion to Admit March 11, 1948 —
Amended Petition. November 3, 1948 —
Appellee’s objection to record on appeal.
August 25, 1947 — Appellants file re-amended joint record on appeal. (This again
March 17, 1948 — disregarded the orders of the court regarding the contents of
Motion for extension of time to file memorandum. the record on appeal.).
Verified reply of Appellants to objection.
September 1, 1947 — November 22, 1948 —
March 18, 1948 —
Memorandum for Appellants submitted. Appellee objected to approval of re-amended joint record on
Appellee’s objection to joint petition for reconsideration. appeal and prayed that order appealed from be declared final.
October 7, 1947 —
June 19, 1948 — March 22, 1949 —
Memorandum for Appellee submitted.
Appellants’ memorandum in support of the joint petition for Court sustains Appellee’s objection to record on appeal
October 14, 1947 — reconsideration. denying petition for reconsideration and Appellants given
Appellants’ petition for ten (10) days to file reply memorandum. July 23, 1948 — fifteen (15) days from notice to satisfy requirements of court’s
previous order.
November 1, 1947 — Order of denial of Joint Petition and disapproving original
record on appeal as incomplete and giving Appellants within 10 April 8, 1949 —
Appellants’ petition to file reply memorandum on or before
November 9, 1947. days from notice. Appellants file in Supreme Court petition for certiorari and
July 26, 1948 — mandamus attacking order of June 23, 1947.
November 8, 1947 —
Amended Notice of Appeal to the Court of Appeals instead of April 11, 1949 —
Appellants’ petition for extension to file reply memorandum.
to the Supreme Court. Appellant Quinto’s petition for fifteen (15) days extension to file
November 18, 1947 — Re-amended Record on Appeal.
July 28 and 29, 1948 —
Verified reply of Appellant Rosario Guevara. April 12, 1949 —
Appellants received copy of order of July 23, 1948.
November 24, 1947 — Supreme Court denies petition off-hand.
August 1, 1948 —
Reply memorandum of Pedro C. Quinto filed. April 16, 1949 —
Petition for five (5) days extension to file amended Record on
January 12, 1948 — Appeal filed by Appellant Pedro C. Quinto. Appellant Rosario Guevara’s motion for fifteen (15) days
Court denies both petitions of July 14 and 25, 1947. August 10, 1948 — extension for the same purpose.

January 24, 1948 — Appellants’ Joint Petition for last extension of two (2) days. April 21, 1949 —

Notice of appeal to Supreme Court and petition for thirty (30) August 10, 1948 — Court granted extension prayed for to expire May 1, 1948.
days’ extension by Appellant Rosario Guevara. April 21, 1949 —
Filing of amended joint record on appeal. (This is also again so
January 29, 1948 — defective and incomplete as to constitute another mere token Second Re-Amended Record on Appeal filed.
record on appeal as required by the Rules.)
Order granting petition for extension. June 11, 1949 —
August 24, 1948 —
Appellee’s opposition to ‘Second Re-Amended Record on The Court of Appeals denied said motion to dismiss for the good only insofar as he is concerned, and cannot profit Rosario
Appeal’. following reasons:chanroblesvirtuallawlibrary Guevara, she having ceased to be his client long before the
filing of said original record on appeal and petitions for
June 29, 1949 — “A preliminary question was posed by the Appellee who prayed extension of time; chan roblesvirtualawlibrarythat this interest in
for the dismissal of the appeal on the ground that Petitioners- the case arises from his rights as former attorney
Appellants’ joint notice of hearing on Second Re-Amended Appellants had unreasonably delayed the perfection of the
Record on Appeal for July 12, 1949. for Respondent Rosario Guevara, and, as such, is subordinate
appeal, as the Second Re-amended Joint Record on Appeal to, and dependent upon, the interest therein of said Rosario
July 10, 1949 — was not certified to this Court until December, 1949. After Guevara and the success of her claim therein; chan
considering the voluminous record, and the arguments of both roblesvirtualawlibraryand that, her appeal not having been duly
Appellants’ joint reply to opposition. parties, we are of the opinion that both parties have contributed perfected, his appeal must be deemed to have no legal effect.
to the delay with lengthy memoranda, and repeated motions There is no merit in this pretense, for it appears, at the foot of
July 12, 1949 — and objections. Moreover, the points in question are important said record on appeal, that Pedro C. Quinto had filed the same,
Action on record on appeal deferred on petition of Atty. Quinto. enough to deserve adequate consideration upon the merits. “for himself as Appellant and in behalf of Rosario Guevara, who
Wherefore, the motion to dismiss the appeal should be and is authorized him to perfect the appeal for both Appellants,” and
September 3, 1949 — hereby, overruled and denied.” (Appendix to Brief for that similar statements were made in the body and at the foot
the Petitioner-Appellant, pp. 6- 7.) of said petitions for extension of time. It is clear, therefore, that
Appellant Quinto’s notice of hearing on Second Re-Amended
Record on Appeal for September 28, 1949. It is urged by Petitioner herein that Respondents’ appeal from the aforementioned record on appeal and motions should be
the decision of the Court of First Instance of Pangasinan had deemed submitted, also, by Respondent Rosario Guevara. The
September 28, 1949 — position then held by Pedro C. Quinto, as special prosecutor in
not been duly perfected because:chanroblesvirtuallawlibrary (a)
the original of the record on appeal did not comply with the the office of the Solicitor General, did not nullify his aforesaid
Order of court approving same.
Rules of Court; chan roblesvirtualawlibrary(b) the record on acts on behalf of Rosario Guevara. Besides, said acts would
December 8, 1949 — appeal was filed after the lapse of the reglementary seem to have been performed by him, more as attorney-in- fact
period; chan roblesvirtualawlibrary(c) there has been an than as counsel for Rosario Guevara, and this merely in
Clerk of lower court sends records to appellate court. connection with the perfection of her appeal. We do not find
unprecedented delay in the filing of a satisfactory record on
appeal; chan roblesvirtualawlibraryand (d) the appeal should therein anything objectionable, either legally or morally, in the
December 10, 1949 —
be deemed abandoned for violation of Rule 48, section 3, of light of the circumstances surrounding the case.
Appellant Quinto’s motion ex-parte to have records sent up to the Rules of Court. The second proposition is based upon the following
appellate court.”
The first ground is predicated upon the fact that, instead of reasons:chanroblesvirtuallawlibrary
(Petitioner-Appellant’s Brief, pp. 41-47.) transcribing the motions, petitions, orders and resolutions (a)  The aforementioned record on appeal and motions for
incorporated in the original record on extension of time filed by Quinto on behalf of Rosario Guevara
Based upon the foregoing, Oppositor and Appellee Ernesto M.
appeal, Respondents herein merely attached to the original did not inure to her benefit, for which reason the reglementary
Guevara filed, with the Court of Appeals, a motion praying that
copy of said record on appeal, filed with the Court of First period to appeal had expired before the perfection of her
the appeal be dismissed:chanroblesvirtuallawlibrary
Instance of Pangasinan, their own copies of said motions, appeal. For the reasons already adverted to, this argument is
“(a)  Because due to the Appellant’s many and repeated petitions, orders and resolutions. Accordingly, the copy of said clearly untenable.
dilatory tactics, the prosecution of their appeal has been unduly record on appeal furnished to Petitioner herein did not contain
and unreasonably delayed for a period which should strike or enclose the aforementioned parts of the record. It appears, (b)  The petition for reconsideration filed by Respondents on
anyone as totally without justification. The resolution appealed however, that the Respondents were given several extensions July 14, 1947, did not suspend the running of the period to
from was dictated by the lower court on June 23, 1947, so that of time within which to comply with the pertinent provisions of perfect the record on appeal, because said petition did not
a period of over two (2) years and nine (9) months until the the Rules of Court and that Respondents eventually did so. comply with the provisions of Rule 37, section 1, of the Rules of
date of this writing has elapsed, thus establishing a record- There being no question about the authority of the court of first Court, reading as follows:chanroblesvirtuallawlibrary
holding delay which should not be sanctioned by the Courts as instance to grant said extensions of time, it is clear that the first
ground, relied upon by Petitioner herein, is untenable. “Within thirty days after notice of the judgment in an action, the
prejudicial to the administration of justice.
aggrieved party may move the trial court to set aside the
“(b)  Because Appellants, in violation of Rule 48, section 3, did In support of the second ground, it is judgment end grant a new trial for one or more of the following
not diligently prosecute their appeal by failing to have the alleged:chanroblesvirtuallawlibrary (a) that the original record causes materially affecting the substantial rights of said
record sent up to this Honorable Court within thirty (30) days on appeal was filed by Pedro C. Quinto only, and does not party:chanroblesvirtuallawlibrary
from the time their Second Re-amended Record on Appeal inure to the benefit of Rosario Guevara; chan
roblesvirtualawlibraryand (b) that Respondents had lost their (a)  Fraud, accident, mistake or excusable negligence which
was approved on September 28, 1949; chan
right to appeal by the lapse of the reglementary period. As ordinary prudence could not have guarded against and by
roblesvirtualawlibraryand it was only so transmitted on
regards the first proposition, Petitioner asserts reason of which such aggrieved party has probably been
December 8, 1949, that is after the lapse of two (2) months and
that Respondent Pedro C. Quinto had withdrawn his impaired in his rights;
ten (10) days.
appearance as counsel for Respondent Rosario Guevara; chan (b)  Newly discovered evidence, which he could not, with
“(c)  Because, at any rate, the first Amended Joint Record on roblesvirtualawlibrarythat Quinto had, thereafter, intervened in reasonable diligence, have discovered, and produced at the
Appeal was filed beyond the extension granted by the Court the case in his own behalf, in order to enforce his attorney’s trial, and which if presented would probably alter the result;
and, consequently, the Appellants’ right to appeal has lapsed.” lien, as former counsel for Rosario Guevara; chan
(Exhibit A, pp. 1-2). roblesvirtualawlibrarythat, consequently, the original record on (c)  Because excessive damages have been awarded, or the
appeal and the petitions for extension of time to file an evidence was insufficient to justify the decision, or it is against
amended record on appeal, filed by Pedro C. Quinto, were the law.”
Said petition for reconsideration appears, however, to be is barred by the statute of limitations, considering that the cumplimiento de las ultimas voluntades’, asserted as one of the
predicated, in effect, upon the ground that the evidence is testator died on September 27, 1933, and that the petition for royal prerogatives in the ‘Real Cedula’ of March 18, 1776.
insufficient to justify the decision of the court of first instance, probate of said will was filed twelve (12) years later, or, to be
and that said decision is contrary to law. It partakes, therefore, exact, on October 5, 1945. The Court of Appeals resolved the “It is not without purpose that Rule of Court 77 prescribes that
of the nature of a motion for new trial, stating specifically the question in the negative, upon the following any ‘person interested in the estate may, at any time after the
reasons in support thereof, and, hence, it suspended the period grounds:chanroblesvirtuallawlibrary death of the testator, petition the court having jurisdiction to
to appeal until the determination of said motion. have the will allowed’. Taken from the Code of Procedure of
“We are of the opinion that the Court below was in error when it California, this provision has been interpreted as meaning that
Relative to the alleged unprecedented delay in the filing of a declared that the petition for probate of the will of Victorino the statute of limitations has no application to probate of wills.
satisfactory record on appeal, we agree with the finding of the Guevara was barred by prescription. The provision of Article In the case of In re Hume’s Estate, 179 Calif. 338, 176 Pac.
Court of Appeals to the effect that the delay was due to the 756 of the old Civil Code (1042 of the New) and of Rule 76 of 681, the California Supreme Court ruled
acts of the Respondents, as well as of the Petitioner herein, for the Rules of Court, reiterating those of the old Code of Civil that:chanroblesvirtuallawlibrary
both had asked several postponements and extensions of time, Procedure (Act 190), point out that the presentation of a
filed memoranda and reply memoranda, and raised or decedent’s will to the competent court has always been ‘The chapter of the Code relating to the probate of wills does
provoked a number of other issues or incidents which deemed by our law as more of a duty than a right, and the not provide for opposition to such probate on the ground of the
necessarily delayed the perfection of the appeal. neglect of such obligation carries with it the corresponding bar of the statute of limitations, but, in effect, excludes it from
Obviously, Petitioner should not be allowed to profit by said penalty and it is inconsistent with that policy that the court the category of grounds allowed as a basis for such opposition.
delay, to which he had actively contributed. 1 should refuse to admit wills to probate, without inquiry into their Section 1299 declares that any person interested in the estate
validity. The authority given to testators to dispose freely of a ‘may at any time after the death of the testator, petition the
Lastly, Petitioner maintains that, although the record on appeal portion of their estate would be imperfectly safeguarded, unless court having jurisdiction to have the will proved.’ This implies
had been approved on September 28, 1949, it was not adequate measures were provided by the state to assure that that there is no arbitrary time limit.’
forwarded to the Court of Appeals until December 8, 1949. the wishes of the deceased would be carried out. Because the
Section 3 of Rule 48 of the Rules of Court As additional reasons, the same Court
decedent may no longer act to have his testamentary stated:chanroblesvirtuallawlibrary
provides:chanroblesvirtuallawlibrary dispositions duly executed, the state authority must take over
“If the record on appeal is not received by the Court of Appeals the opposite vigilance and supervision, so that free ‘ cralaw Section 1317 declares:chanroblesvirtuallawlibrary If
within thirty days after the approval thereof, the Appellee may, testamentary disposition does not remain a delusion and a the court is satisfied, upon the proof taken or from the facts
upon notice to the Appellant, move the court to grant an order dream. This was expressly recognized by the Supreme Court found by the jury that the will was duly executed and that the
directing the clerk of the lower court forthwith to transmit such in its previous decision, G. R. No. 48840 (Exhibit E) when it will testator at the time of its execution was of sound and
record on appeal or to declare the same abandoned for failure said:chanroblesvirtuallawlibrary disposing mind and not acting under duress menace fraud, or
to prosecute.” undue influence, a certificate of the proof and the facts found,
‘ cralaw We hold that under section 1 of Rule 74, in relation to signed by the judge and attested by the seal of the court, must
Considering that Respondents herein were not notified of the Rule 76, if the decedent left a will and no debts and the heirs be attached to the will.’
approval of the record on appeal until December 8, 1949, on and legatees desire to make an extrajudicial partition of the
which date the record on appeal was forwarded to the Court of estate, they must first present that will to the court for probate ‘This excludes the bar of the statute of limitation from
Appeals, and that the aforementioned provision of the Rules of and divide the estate in accordance with the will. They may not consideration as one of the matters which may be shown in
Court does impose upon said court the mandatory duty to disregard the provisions of the will unless those provisions are opposition to the probate. This is further emphasized by section
declare the appeal abandoned for failure to prosecute, we contrary to law. Neither may they do away with the 1341, which, in substance, declares that, if upon the verdict of
believe that no error was committed in giving due course to the presentation of the will to the court for probate, because such the jury the facts mentioned in section 1317 as aforesaid
appeal and that the same has been duly perfected. suppression of the will is contrary to law and public policy. The appear to be established, the court ‘must’ admit the will to
law enjoins the probate of the will and public policy requires it, probate. Section 1314 thus makes it imperative that the court
(2)  Did the Court of Appeals have jurisdiction to try the case, because unless the will is probated and notice thereof given to shall admit the will to probate if the execution is proven and the
on appeal from the decision of the court of first the whole world, the right of a person to dispose of his property grounds of opposition authorized by section 1312 are not
instance? Petitioner maintains the negative, upon the ground by will may be rendered nugatory, as is attempted to be done established. This clearly implies that no grounds of opposition
that the appeal involved only questions of law. This is not in the instant case. Absent legatees and devisees, or such of other than those enumerated in section 1312 may be set up,
correct, for the very motion for reconsideration adverted to them as may have no knowledge of the will, could be cheated and it leaves no place for the application of the statute of
above, indicated that the appeal raised some issues of fact, of their inheritance thru the collusion of some of the heirs who limitations.
such as, for instance, whether or not the will in question was in might agree to the partition of the estate among themselves to
the possession of Respondent Rosario Guevara and the exclusion of others.’ (Italics supplied) ‘It is further to be observed that, notwithstanding the positive
whether Respondent Quinto had been authorized by her to and comprehensive language of sections 343 and 369, if taken
perfect the appeal on her behalf. At any rate, the case is now “In holding the statute of limitations applicable to the probate of literally, there can be no doubt that they cannot apply to all
before us and, upon examination of the record and wills, the court below failed to notice that its doctrine was special proceedings of a civil nature. Proceedings for a change
consideration of all the issues therein raised, we are of the destructive of the right of testamentary disposition and violative of name, or in arbitration, or for voluntary dissolution of a
opinion that, had the appeal been forwarded directly to this of the owner’s right to control his property within the legal limits. corporation, or for guardianship, or for a married woman to
Court, we would have disposed of it in the manner set forth in The appealed order in fact leaves wills at the mercy and whim become a sole trader, are all within the definition of the phrase,
the decision of the Court of Appeals, the review of which is of custodians and heirs interested in their suppression. The and each is enumerated, classed, and defined as such
sought by herein Appellant. lower court would in effect abdicate the tutelary power that proceeding by the Code. If the statute of limitations applied, it
passed to the Republic from the former sovereigns, that would begin to run against such proceedings as soon as the
(3)  The last question for determination in this case is whether ‘potestad suprema que en mi reside para velar por el puntual right to institute them accrued. Yet from the very nature of
or not the petition for probate of the will of Victorino L. Guevara
these proceedings it is obvious that neither of them could be Matter of Drake’s Estate, 160 Misc. 587, 598, 290 N.Y.S. 581). allegation contained in paragraph 10 of the original petition,
subject to such limitation. To that end, the court is, in effect, an additional party to every that ‘the will, or its testamentary dispositions, had been de jure
litigation affecting the disposal of the assets of the deceased. revoked in so far as the parcel of 259 hectares described in
‘This construction of these Code provisions is confirmed by the Matter of Van Valkenburgh’s Estate, 164 Misc. 295, 296, 298 said will’ is concerned, does not justify the finding that the
long-continued and uniform practice and the universal N.Y.S. 219. A determination, therefore, that the mere non- probate would be pointless. What is alleged is a partial
understanding of the bench and bar of the state on the subject.’ action of a person upon whom no legal duty rested in this revocation, only as to the parcel of land affected; chan
x x x                    x x x                    x x x regard, could have the effect of subverting the wishes of one roblesvirtualawlibrarybut as previously shown, the will disposed
who was no longer able to protect his own unquestionable of other property besides that one. And even granting that the
‘Action to quiet title frequently involve wills of persons who rights, would strike at the very foundation of all conceptions of next allegation to the effect that Plaintiff sought to probate ‘only
have died many years before the action was begun. The justice as administered in probate courts.’ for the purposes of her acknowledgment as natural child in said
section contemplates that such a will, although not yet will’, constitutes an averment that the will had been fully
probated, may be construed in the action and may be “These decisions are of high persuasive value (Cu vs. revoked, the same would at the most constitute a conclusion or
afterwards probated, and it clearly shows that the Legislature Republic, G. R. L-3018, July 18, 1951); chan inference that the lower court was not bound to admit. Because
did not understand that the right to probate such will would be roblesvirtualawlibrarythey represent the trend of authority (57 the Appellant claimed or believed that the revocation of the will
barred if the testator had died more than four years before the Am. Jur. 585), and enable us to conclude that reason and as to the large parcel of land, constituted a total revocation of
petition for probate was filed. precedent reject the applicability of the Statute of Limitations to the testament is no reason why the court should concur in the
probate proceedings, because these are not exclusively same belief or conclusion, especially when the will itself,
‘This uniform practice and understanding of the bench and bar, established in the interest of the surviving heirs, but primarily appended to the petition, showed that there were other
and of the legislative department of the state also, is a strong for the protection of the testator’s expressed wishes, that are properties and other heirs or legatees, and the trial court had
argument to the effect that the statute of limitations does not entitled to respect as an effect of his ownership and right of before it the decision of the Supreme Court ordering the filing
apply to such proceedings. The authorities on the effect of such disposition. If the probate of validly executed wills is required of the will for its probate because, as stated in its decision,
long acquiescence are numerous.’ by public policy, as declared by the Supreme Court in the such a step was enjoined by law and public policy. Moreover,
previous case, G.R. 48840 (Exhibit E), the state could not have the defect, if any, incurred in failing to ask for the probate in
“The Statute of Limitations upon which the court below has intended the statute of limitations to defeat that policy.
relied, sections 38 to 50 of the old Code of Civil Procedure, Act toto of the will, was subsequently cured and corrected in the
190, undertakes to fix limits for the filing of ‘civil actions’, but “It is true, as ruled by the trial court, that the rights of parties amended petition, where not only the objectionable statements
none for ‘special proceedings’ of which probate is admittedly ‘should not be left hanging in uncertainty for periods of time far were eliminated, but others added indicating the existence of a
one. The distinction is not purely verbal, but based on in excess of the maximum period of ten years allowed by partible estate.
differences that make the limitation to ‘actions’ inapplicable to law’; chan roblesvirtualawlibrarybut the obvious remedy is for “Assuming that the original petition violated the order of the
‘special proceedings’. In this regard, the Supreme Court of New the other interested persons to petition for the production of the Supreme Court in so far as it did not ask for the allowance of
York has adequately remarked (In re Canfield’s Will, 300 NYS will and for its probate, or to inflict upon the guilty party the the entire will, the court below erred in dismissing the petition,
502):chanroblesvirtuallawlibrary penalties prescribed by Rule 76 or declare the unworthiness of for it thereby sanctioned further disobedience to the order of
the heir under the Civil Code for concealing or suppressing the the superior court. Once again, it must be repeated that the
‘A Respondent in a private proceeding owes no legal duty or testament; chan roblesvirtualawlibrarybut not to dismiss the
obligation to the proponent as such, wherefore it is impossible order of dismissal failed to take into account that the case
petition for probate, however belatedly submitted, and thereby involved not only the interests of Rosario Guevara, and those
for him to violate such non-existent obligation. Furthermore refuse sanction to testamentary dispositions executed with all
such a proceeding is not instituted for the vindication of any of the Appellee Ernesto Guevara and the other legatees, but
the formalities prescribed by law, incidentally prejudicing also specially the express desires of the testator; chan
personal right to the proponent. The subject-matter is therefore those testamentary heirs who do not happen to be successors
wholly absent which could give rise to any ‘cause of action’ roblesvirtualawlibraryand that the protection and defense of the
ab intestato. That in this particular case the appealed rule may latter developed upon the court itself, since no one else made
against any Respondent therein. not work injustice would not excuse its adoption as a general any move to enforce them.
‘The primary purpose of the proceeding is not to establish the norm applicable to all cases.
existence of the right of any living person, but to determine “Even if the other heirs had failed to show interest in the case
“It is likewise reasonable to assume that if the Supreme Court (a fact not properly inferable from their non-intervention in the
whether or not the decedent has performed the acts specified had considered the ten-year limitation applicable to probate
by the pertinent statutes which are the essential prerequisites case, because the order of publication of the petition only
proceedings, it would not have ordered the parties on called for those interested to ‘appear to contest the allowance’
to personal direction of the mode of devolution of his property December 29, 1943 ‘to present the document Exhibit A to the
on death. There is no legal but merely a moral duty resting and not to support it) (Rec. on App., p. 7), and even if the other
proper court for probate in accordance with law’, because the heirs had already received their shares, the order refusing the
upon a proponent to attempt to validate the wishes of the ten years from the death of the testator expired in September
departed, and he may and frequently does receive no personal probate remains indefensible. If the other heirs were not
of that same year, two months before the decision. It is safe to interested, there remained the wishes of the testator to be
benefit from the performance of the act. assume that the high Court would not order a useless step. supported and protected, if validly expressed. If the heirs had
‘One of the most fundamental conceptions of probate law, is The reasoning that the phrase ‘in accordance with law’ was a distributed the estate, the distribution was illegal and improper
that it is the duty of the court to effectuate, in so far as may be qualification signifying ‘if still legally possible’, appears to be unless the will be first probated. The Supreme Court so ruled in
compatible with the public interest, the devolutionary wishes of far-fetched and unjustified. The plain import of the words its previous decision (G. R. 48840) heretofore quoted.
a deceased person (Matter of Watson’s Will, 262 N.Y. 284, employed by the high Court is that the probate should follow
294, 186 N.E. 787; chan roblesvirtualawlibraryMatter of the procedure provided for the purpose.” ‘Even if the decedent left no debts and nobody raises any
Marriman’s Estate, 124 Misc. 320, 325, 208 N.Y.S. 672; chan question as to the authenticity and due execution of the will,
x x x                    x x x                    x x x none of the heirs may sue for the partition of the estate in
roblesvirtualawlibraryFoley, S. affirmed 217 App. Div. 733, 216
N.Y.S. 842; chan roblesvirtualawlibraryMatter of Lensman’s “The other reasons advanced by the court a quo in support of accordance with that will without first securing its allowance or
Estate, 137 Misc. 77, 78, 243 N.Y.S. 126, Henderson, S., its order dismissing the petition are also untenable. The probate by the court:chanroblesvirtuallawlibrary first, because
the law expressly provides that ‘no will shall pass either real or
personal estate unless it is proved and allowed in the proper
court; chan roblesvirtualawlibraryand, second, because the
probate of a will, which is a proceeding in rem, cannot be
dispensed with and substituted by any other proceeding,
judicial or extrajudicial, without offending against public policy
designed to effectuate the testator’s right to dispose of his
property by will in accordance with law and to protect the rights
of the heirs and legatees under the will thru the means
provided by law, among which are the publication and the
personal notices to each and all of said heirs and legatees. Nor
may the court approve and allow the will presented in evidence
in such an action for partition, which is one in personam, any
more than it could decree the registration under the Torrens
system of the land involved in an ordinary action for
revindicacion or partition.’
“From whatever angle the case is viewed, a hearing on the
allowance of the will is unavoidable. The persistent, albeit
obnoxious, attempts of Rosario Guevara to sidetrack the will
are not remedied by dismissing the petition for probate of will,
and allowing Ernesto to retain a greater interest than that
intended by the testator.” (Appendix to brief for the Petitioner-
Appellant, pp. 7-15, 17-20.)
We are fully in accord with these findings which we adopt as
ours.
In view of the foregoing, the decision appealed from is hereby
affirmed, with the costs of this instance against the Petitioner.
Padilla, Reyes, A., Jugo, Bautista Angelo and
Labrador, JJ., concur.
 
Endnotes:chanroblesvirtuallawlibrary
 1.  The record shows that the petitions for postponement and
extension of time, and other motions filed by Petitioner in the
court of first instance had delayed the perfection of the appeal
by over 100 days.
 1.  This statement does not include some petitions filed by
Petitioner, which likewise delayed the perfection of the appeal.
 EN BANC availing himself of the provisions of Article 838, Civil Code.).chanroblesvirtualawlibrary chanrobles
paragraph 2, of the new Civil Code, which permit a virtual law library
testator to petition the proper court during his lifetime
G.R. No. L-12207           December 24, 1959
for the allowance of his will, but to such petition on
It is clear that the trial court erred in entertaining the
Maria Catimbang filed an opposition alleging that she is
opposition and in annulling the portion of the will which
JUAN PALACIOS, Petitioner-Appellant, vs. MARIA the acknowledged natural daughter of petitioner but
allegedly impairs the legitime of the oppositor on the
CATIMBANG PALACIOS, oppositor-appellee. that she was completely ignored in the will thus
ground that, as it has found, she is an extraneous
impairing her object to the probate of the will insofar
matter which should be treshed out in a separate
Augusto Francisco and Vicente Reyes Villavicencio for as it due execution is concerned or on the ground that
action.chanroblesvirtualawlibrary chanrobles virtual law
appellant. it has not complied with the formalities prescribed by
library
Laureano C. Alano and Enrique A. Amador for appellee. law; rather she objects to its intrinsic validity or to the
legality of the provisions of the
will.chanroblesvirtualawlibrary chanrobles virtual law Wherefore, the order appealed from is set aside,
BAUTISTA ANGELO, J.: library without pronouncement as to
costs.chanroblesvirtualawlibrary chanrobles virtual law
Juan Palacios executed his last will and testament on library
We hold that such opposition cannot be entertained in
June 25, 1946 and availing himself of the provisions of this proceeding because its only purpose is merely to
the new Civil Code, he filed on May 23, 1956 before determine if the will has been executed in accordance Paras, C.J., Bengzon, Padilla, Labrador, Concepcion,
the Court of First Instance of Batangas a petition for its with the requirements of the law, much less if the Endencia, Barrera and Gutierrez David., JJ., concur.
approval. In said will, he instituted as his sole heirs his purpose of the opposition is to show that the oppositor
natural children Antonio C. Palacios and Andrea C. is an acknowledged natural child who allegedly has
Palacios.chanroblesvirtualawlibrary chanrobles virtual been ignored in the will for issue cannot be raised here
law library but in a separate action. This is especially so when the
testator, as in the present case, is still alive and has
On June 21, 1956, Maria Catimbang filed a opposition merely filed a petition for the allowance of his will
to the probate of the will alleging that she is the leaving the effects thereof after his
acknowledged natural daughter of petitioner but that death.chanroblesvirtualawlibrary chanrobles virtual law
she was completely ignored in said will thus impairing library
here legitime.chanroblesvirtualawlibrary chanrobles
virtual law library This is in line with our ruling in Montañano vs. Suesa,
14 Phil., 676, wherein we said: "The authentication of
After the presentation of petitioner's evidence relative the will decides no other questions than such as touch
to the essential requisites and formalities provided by upon the capacity of the testator and the compliance
law for the validity of a will, the court on July 6, 1956 with those requisites or solemnities which the law
issued an order admitting the will to probate. The prescribes for the validity of a will. It does not
court, however, set a date for the hearing of the determine nor even by implication prejudge the validity
opposition relative to the intrinsic validity of the will or efficiency of the provisions; that may be impugned
and, after proper hearing concerning this incident, the as being vicious or null, notwithstanding its
court issued another order declaring oppositor to be authentication. The questions relating to these points
the natural child of petitioner and annulling the will remain entirely un-affected, and may be raised even
insofar as it impairs her legitime, with costs against after the will has been authenticated."chanrobles
petitioner.chanroblesvirtualawlibrary chanrobles virtual virtual law library
law library
On the other hand, "after a will has been probated
From this last order, petitioner gave notice of his during the lifetime of a testator, it does not necessarily
intention to appeal directly to the Supreme Court, and mean that he cannot alter or revoke the same before
accordingly, the record was elavated to this he has had a chance to present such petition, the
Court.chanroblesvirtualawlibrary chanrobles virtual law ordinary probate proceedings after the testator's death
library would be in order" (Report of the Code Commission,
pp. 53-54).The reason for this comment is that the
rights to the succession are transmitted from the
It should be noted that petition instituted the present moment of the death of the decedent (Article 777, new
proceeding in order to secure the probate of his will
G.R. No. L-23638            October 12, 1967 the question of adjudication of the properties is opportunely the Court of Appeals that the appellant's stand is untenable. It
presented." is elementary that a probate decree finally and definitively
settles all questions concerning capacity of the testator and the
DIONISIO FERNANDEZ, EUSEBIO REYES and LUISA
proper execution and witnessing of his last will and testament,
REYES, petitioners, Oppositors Fernandez and Reyes petitioned for
irrespective of whether its provisions are valid and enforceable
vs. reconsideration, and/or new trial, insisting that the issues of
or otherwise. (Montañano vs. Suesa, 14 Phil. 676; Mercado vs.
ISMAELA DIMAGIBA, respondent. estoppel and revocation be considered and resolved;
Santos, 66 Phil. 215; Trillana vs. Crisostomo, 89 Phil. 710). As
whereupon, on July 27, 1959, the Court overruled the claim
such, the probate order is final and appealable; and it is so
that proponent was in estoppel to ask for the probate of the will,
---------------------------------------- recognized by express provisions of Section 1 of Rule 109, that
but "reserving unto the parties the right to raise the issue of
specifically prescribes that "any interested person may appeal
implied revocation at the opportune time."
in special proceedings from an order or judgment . . . where
G.R. No. L-23662            October 12, 1967 such order or judgment: (a) allows or disallows a will."
On January 11, 1960, the Court of First Instance appointed
MARIANO REYES, CESAR REYES, LEONOR REYES and Ricardo Cruz as administrator for the sole purpose of
Appellants argue that they were entitled to await the trial
PACIENCIA REYES, petitioners, submitting an inventory of the estate, and this was done on
Court's resolution on the other grounds of their opposition
vs. February 9, 1960.
before taking an appeal, as otherwise there would be a
ISMAELA DIMAGIBA, respondent. multiplicity of recourses to the higher Courts. This contention is
On February 27, 1962, after receiving further evidence on the without weight, since Rule 109, section 1, expressly
Jose D. Villena for petitioners. issue whether the execution by the testatrix of deeds of sale of enumerates six different instances when appeal may be taken
Antonio Barredo and Exequiel M. Zaballero for respondent. the larger portion of her estate in favor of the testamentary heir, in special proceedings.
made in 1943 and 1944, subsequent to the execution of her
1930 testament, had revoked the latter under Article 957(2) of
REYES, J.B.L., Actg. C.J.: There being no controversy that the probate decree of the
the 1950 Civil Code (Art. 869 of the Civil Code of 1889), the
Court below was not appealed on time, the same had become
trial Court resolved against the oppositors and held the will of
final and conclusive. Hence, the appellate courts may no longer
The heirs intestate of the late Benedicta de los Reyes have the late Benedicta de los Reyes "unaffected and unrevoked by
revoke said decree nor review the evidence upon which it is
petitioned for a review of the decision of the Court of Appeals the deeds of sale." Whereupon, the oppositors elevated the
made to rest. Thus, the appeal belatedly lodged against the
(in CA-G. R. No. 31221-R) affirming that of the Court of First case to the Court of Appeals.
decree was correctly dismissed.
Instance of Bulacan, in Special Proceeding No. 831 of said
Court, admitting to probate the alleged last will and testament The appellate Court held that the decree of June 20, 1958,
of the deceased, and overruling the opposition to the probate. The alleged revocation implied from the execution of the deeds
admitting the will to probate, had become final for lack of
of conveyance in favor of the testamentary heir is plainly
opportune appeal; that the same was appealable
irrelevant to and separate from the question of whether the
It appears from the record that on January 19, 1955, Ismaela independently of the issue of implied revocation; that contrary
testament was duly executed. For one, if the will is not entitled
Dimagiba, now respondent, submitted to the Court of First to the claim of oppositors-appellants, there had been no legal
to probate, or its probate is denied, all questions of revocation
Instance a petition for the probate of the purported will of the revocation by the execution of the 1943 and 1944 deeds of
become superfluous in law, there is no such will and hence
late Benedicta de los Reyes, executed on October 22, 1930, sale, because the latter had been made in favor of the legatee
there would be nothing to revoke. Then, again, the revocation
and annexed to the petition. The will instituted the petitioner as herself, and affirmed the decision of the Court of First Instance.
invoked by the oppositors-appellants is not an express one, but
the sole heir of the estate of the deceased. The petition was set merely implied from subsequent acts of the testatrix allegedly
for hearing, and in due time, Dionisio Fernandez, Eusebio evidencing an abandonment of the original intention to
Oppositors then appealed to this Court.
Reyes and Luisa Reyes and one month later, Mariano, Cesar, bequeath or devise the properties concerned. As such, the
Leonor and Paciencia, all surnamed Reyes, all claiming to be revocation would not affect the will itself, but merely the
heirs intestate of the decedent, filed oppositions to the probate In this instance, both sets of oppositors-appellants pose three particular devise or legacy. Only
asked. Grounds advanced for the opposition were forgery, main issues: (a) whether or not the decree of the Court of First the total and absolute revocation can preclude probate of the
vices of consent of the testatrix, estoppel by laches of the Instance allowing the will to probate had become final for lack revoked testament (Trillana vs. Crisostomo, supra.).
proponent and revocation of the will by two deeds of of appeal; (b) whether or not the order of the Court of origin
conveyance of the major portion of the estate made by the dated July 27, 1959, overruling the estoppel invoked by
testatrix in favor of the proponent in 1943 and 1944, but which oppositors-appellants had likewise become final; and (c) As to the issue of estoppel, we have already ruled in Guevara
conveyances were finally set aside by this Supreme Court in a whether or not the 1930 will of Benedicta de los Reyes had vs. Guevara, 98 Phil. 249, that the presentation and probate of
decision promulgated on August 3, 1954, in cases G.R. Nos. L- been impliedly revoked by her execution of deeds of a will are requirements of public policy, being primarily
5618 and L-5620 (unpublished). conveyance in favor of the proponent on March 26, 1943 and designed to protect the testator's, expressed wishes, which are
April 3, 1944. entitled to respect as a consequence of the decedent's
ownership and right of disposition within legal limits. Evidence
After trial on the formulated issues, the Court of First Instance, of it is the duty imposed on a custodian of a will to deliver the
by decision of June 20, 1958, found that the will was genuine As to the first point, oppositors-appellants contend that the same to the Court, and the fine and imprisonment prescribed
and properly executed; but deferred resolution on the questions order allowing the will to probate should be considered for its violation (Revised Rule 75). It would be a non sequitur to
of estoppel and revocation "until such time when we shall pass interlocutory, because it fails to resolve the issues of estoppel allow public policy to be evaded on the pretext of estoppel.
upon the intrinsic validity of the provisions of the will or when and revocation propounded in their opposition. We agree with Whether or not the order overruling the allegation of estoppel is
still appealable or not, the defense is patently unmeritorious "no consideration whatever was paid by respondent Dimagiba"
and the Court of Appeals correctly so ruled. on account of the transfers, thereby rendering it even more
doubtful whether in conveying the property to her legatee, the
testatrix merely intended to comply in advance with what she
The last issue, that of revocation, is predicated on paragraph 2
had ordained in her testament, rather than an alteration or Footnotes
of Article 957 of the Civil Code of 1950 (Art. 869 of the Code of
departure therefrom.1 Revocation being an exception, we
1889), which recites:
believe, with the Courts below, that in the circumstances of the 1
 Scaevola (Codigo Civil, Vol. XV, 4th Ed., p. 378)
particular case, Article 957 of the Civil Code of the Philippines,
aptly remarks:
Art. 957. The legacy or devise shall be without effect: does not apply to the case at bar.

"Cuando el testador, a sabiendas de la disposicion

(1) . . . . Not only that, but even if it were applicable, the annulment of
contenida en su ultima voluntad, enajena al legatario
the conveyances would not necessarily result in the revocation
la cosa legada, si bien esta sale del poder de aquel,
of the legacies, if we bear in mind that the findings made in the
(2) If the testator by any title or for any cause va a parar al del legatario, acto que no puede
decision decreeing the annulment of the subsequent 1943 and
alienates the thing bequeathed or any part thereof, it interpretarse como mudanza del a voluntad, puesto
1944 deeds of sale were also that
being understood that in the latter case the legacy or que transmits la cosa a la persona a la que deseaba
devise shall be without effect only with respect to the favoreer con ella. Por esta circunstancia y por la de
part thus alienated. If after the alienation the thing it was the moral influence, originating from their no revocar el legado, mas bien parece que persiste
should again belong to the testator, even if it be by confidential relationship, which was the only cause en su intencion de beneficiar al legatario, ya que no
reason of nullity of the contract, the legacy or devise for the execution of Exhs. A and B (the 1943 and con la propia cosa, con el derecho que le concede el
shall not thereafter be valid, unless the reacquisition 1944 conveyances). (Decision, L-5618 and L-5620). art. 878. Si al donar el testador al futuro legatario la
shall have been effected by virtue of the exercise of cosa que le dejaba en el testamento, indica solo una
the right of repurchase; realizacion anticipada de la ultima voluntad, el
If the annulment was due to undue influence, as the quoted
venderia sin derogar la disposicion dellegado parece
passage implies, then the transferor was not expressing her
indicae tambien que no ha habido idea modificadora
xxx           xxx           xxx own free will and intent in making the conveyances. Hence, it
de la intencion, sino que porsigue en la de favorecer
can not be concluded, either, that such conveyances
al instituido, y ya que no es posible conseguirlo con
established a decision on her part to abandon the original
It is well to note that, unlike in the French and Italian Codes, la cosa misma,se impone el verificarlo en la manera
legacy.
the basis of the quoted provision is a presumed change of determinada por el articulo, o sea mediante la
intention on the part of the testator. As pointed out by Manresa entrega del precio."
in his Commentaries on Article 869 of the Civil Code (Vol. 6, True it is that the legal provision quoted prescribes that the
7th Ed., p. 743) — recovery of the alienated property "even if it be by reason of the 2
 "Deciamos anteriormente que necesitaba alguna
nullity of the contract" does not revive the legacy; but as
explicacion la frase del num. 20.o del art. 869,
pointed out by Scaevola (Codigo Civil, Vol. XV, 4th Ed., pp.
Este caso se funda en la presunta voluntad del "aunque sea por la nulidad del contrato," para no
324-325) the "nullity of the contract" can not be taken in an
testador. Si este, despues de legar, se desprende de apartarla de sus verdaderos y prudentes limites.
absolute sense.2 Certainly, it could not be maintained, for
la cosa por titulo lucrativo u oneroso, hace Literalmente entendida, autorizaria el que fuese
example, that if a testator's subsequent alienation were
desaparecer su derecho sobra ella, dando lugar a la revocado un legado por enajenacion que hubiese
avoided because the testator was mentally deranged at the
presuncion de que ha cambiado de voluntad, y no realizado el testador con vicio en el consentimiento.
time, the revocatory effect ordained by the article should still
quiere que el legado se cumpla. Mas para que Dice con razon eljurisconsulto frances Demante,
ensue. And the same thing could be said if the alienation
pueda presumirse esa voluntad, es necesario que "quese llegaria a consecuencias contrariasa los
(posterior to the will) were avoided on account of physical or
medien actos del testador que la indiquen. Si la principios mas elementales del Derecho y de la
mental duress. Yet, an alienation through undue influence in no
perdida del derecho sobre la cosa ha sido razon si, exagerandodicha doctrina, se diese efecto
way differs from one made through violence or intimidation. In
independiente de la voluntad del testador, el legado revocatorio a una enajenacion nulapor vicio de
either case, the transferor is not expressing his real intent,3 and
podraquedar sin efecto, mas no en virtud del numero consentimiento." Como una voluntad impotente para
it can not be held that there was in fact an alienation that could
2 del articulo 869, que exige siempre actos transferirla propiedad podria tener la fuerza de
produce a revocation of the anterior bequest.
voluntarios de enajenacion por parte del mismo revocar un legado? Si la enajenacionlleva el vicio de
testador. violencia o de error, sera posible artibuir algun
In view of the foregoing considerations, the appealed decision efectoa acto semejante? Es logico deducir entonces
of the Court of Appeals is hereby affirmed. Costs against que el testador se arrepintio, como dicen las partidas
As observed by the Court of Appeals, the existence of any del otorgamento de la manda?" (Scaevola, op. cit.)
appellants Reyes and Fernandez. So ordered.
such change or departure from the original intent of the
testatrix, expressed in her 1930 testament, is rendered doubtful
by the circumstance that the subsequent alienations in 1943 Dizon, Makalintal, Zaldivar, Sanchez, Castro, Angeles and 3
 Cf. Torres vs. Lopez, 48 Phil. 772; Coso vs. Deza,
and 1944 were executed in favor of the legatee herself, Fernando, JJ., concur. 42 Phil.
appellee Dimagiba. In fact, as found by the Court of Appeals in Concepcion, C.J. and Bengzon, J.P., J., are on leave, took no
its decision annulling these conveyances (affirmed in that point part.
by this Supreme Court in Reyes vs. Court of Appeals and
Dimagiba, L-5618 and L-5620, promulgated on July 31, 1954),
G.R. No. L-12767             November 16, 1918 examined relative to the execution of the will; and upon March On June 12, 1916, or about three months after the will had
16th thereafter the document was declared to be legal and was been probated, the attorneys for Ebba Ingeborg Johnson
admitted to probate. At the same time an order was made entered an appearance in her behalf and noted an exception to
In the matter of the estate of EMIL H. JOHNSON. EBBA
nominating Victor Johnson and John T. Pickett as the other admitting the will to probate. On October 31, 1916,
INGEBORG JOHNSON, applicant-appellant,
administrators of the estate, with the sill annexed. Shortly the same attorneys moved the court to vacate the order of
thereafter Pickett signified his desire not to serve, and Victor March 16 and also various other orders in the case. On
Hartigan & Welch for applicant and appellant. Johnson was appointed sole administrator. February 20, 1917, this motion was denied, and from this
Hartford Beaumont for Victor Johnson and others as appellees. action of the trial court the present appeal has been perfected.
Chas. E. Tenney for Alejandra Ibañez de Johnson, personally
By the will in question the testator gives to his brother Victor
and as guardian,
one hundred shares of the corporate stock in the Johnson- As will be discerned, the purpose of the proceeding on behalf
and for Simeona Ibañez, appellees.
Pickett Rope Company; to his father and mother in Sweden, of the petitioner is to annul the decree of probate and put the
the sum of P20,000; to his daughter Ebba Ingeborg, the sum of estate into intestate administration, thus preparing the way for
P5,000; to his wife, Alejandra Ibañez, the sum of P75 per the establishment of the claim of the petitioner as the sole
month, if she remains single; to Simeona Ibañez, spinster, P65 legitimate heir of her father.
per month, if she remains single. The rest of the property is left
to the testator's five children — Mercedes, Encarnacion, Victor,
The grounds upon which the petitioner seeks to avoid the
STREET, J.: Eleonor and Alberto.
probate are four in number and may be stated, in the same
sequence in which they are set forth in the petition, as follows:
On February 4, 1916, Emil H. Johnson, a native of Sweden and The biographical facts relative to the deceased necessary to an
a naturalized citizen of the United States, died in the city of understanding of the case are these: Emil H. Johnson was
(1) Emil H. Johnson was a resident of the city of Manila and not
Manila, leaving a will, dated September 9, 1915, by which he born in Sweden, May 25, 1877, from which country he
a resident of the State of Illinois at the time the will in question
disposed of an estate, the value of which, as estimated by him, emigrated to the United States and lived in Chicago, Illinois,
was executed;
was P231,800. This document is an holographic instrument, from 1893 to 1898. On May 9, 1898, at Chicago, he was
being written in the testator's own handwriting, and is signed by married to Rosalie Ackeson, and immediately thereafter
himself and two witnesses only, instead of three witnesses embarked for the Philippine Islands as a soldier in the Army of (2) The will is invalid and inadequate to pass real and personal
required by section 618 of the Code of Civil Procedure. This the United States. As a result of relations between Johnson property in the State of Illinois;
will, therefore, was not executed in conformity with the and Rosalie Ackeson a daughter, named Ebba Ingeborg, was
provisions of law generally applicable to wills executed by born a few months after their marriage. This child was
(3) The order admitting the will to probate was made without
inhabitants of these Islands, and hence could not have been christened in Chicago by a pastor of the Swedish Lutheran
notice to the petitioner; and
proved under section 618. Church upon October 16, 1898.

(4) The order in question was beyond the jurisdiction of the

On February 9, 1916, however, a petition was presented in the After Johnson was discharged as a soldier from the service of
court.
Court of First Instance of the city of Manila for the probate of the United States he continued to live in the Philippine Islands,
this will, on the ground that Johnson was at the time of his and on November 20, 1902, the wife, Rosalie Johnson, was
death a citizen of the State of Illinois, United States of America; granted a decree of divorce from him in the Circuit Court of It cannot of course be maintained that a court of first instance
that the will was duly executed in accordance with the laws of Cook County, Illinois, on the ground of desertion. A little later lacks essential jurisdiction over the probate of wills. The fourth
that State; and hence could properly be probated here Johnson appeared in the United States on a visit and on proposition above stated must, accordingly, be interpreted in
pursuant to section 636 of the Code of Civil Procedure. This January 10, 1903, procured a certificate of naturalization at relation with the third and must be considered as a corollary
section reads as follows: Chicago. From Chicago he appears to have gone to Sweden, deduced from the latter. Moreover, both the third and fourth
where a photograph, exhibited in evidence in this case, was grounds stated take precedence, by reason of their more
taken in which he appeared in a group with his father, mother, fundamental implications, over the first two; and a logical
Will made here by alien. — A will made within the
and the little daughter, Ebba Ingeborg, who was then living with exposition of the contentions of the petitioner is expressed in
Philippine Islands by a citizen or subject of another
her grandparents in Sweden. When this visit was concluded, the two following propositions:
state or country, which is executed in accordance
the deceased returned to Manila, where he prospered in
with the law of the state or country of which he is a
business and continued to live until his death.
citizen or subject, and which might be proved and (I) The order admitting the will to probate was
allowed by the law of his own state or country, may beyond the jurisdiction of the court and void because
be proved, allowed, and recorded in the Philippine In this city he appears to have entered into marital relations made without notice to the petitioner;
Islands, and shall have the same effect as if with Alejandra Ibañez, by whom he had three children, to wit,
executed according to the laws of these Islands. Mercedes, baptized May 31, 1903; Encarnacion, baptized April
29, 1906; and Victor, baptized December 9, 1907. The other (II) The judgment from which the petitioner seeks
two children mentioned in the will were borne to the deceased relief should be set aside because the testator was
The hearing on said application was set for March 6, 1916, and not a resident of the State of Illinois and the will was
by Simeona Ibañez.
three weeks publication of notice was ordered in the "Manila not in conformity with the laws of that State.
Daily Bulletin." Due publication was made pursuant to this
order of the court. On March 6, 1916, witnesses were
In the discussion which is to follow we shall consider the laws of the State of Washington, and it was alleged that a will or upon a supposed state of facts contrary to the truth, the
problems arising in this cae in the order last above indicated. had been there probated without the notice of application for court would have been authorized to set the probate aside and
Upon the question, then, of the jurisdiction of the court, it is probate having been given as required by law. It was insisted grant a rehearing. It is no doubt true that six months was, under
apparent from an inspection of the record of the proceedings in that this was an infringement of the Fourteenth Amendment of the circumstances, a very short period of time within which to
the court below that all the steps prescribed by law as the Constitution of the United States. This contention was, expect the petitioner to appear and be prepared to contest the
prerequisites to the probate of a will were complied with in however, rejected and it was held that the statutory right to probate with the proof which she might have desired to collect
every respect and that the probate was effected in external contest the will within a year was a complete refutation of the from remote countries. Nevertheless, although the time allowed
conformity with all legal requirements. This much is argument founded on the idea of a violation of the due process for the making of such application was inconveniently short, the
unquestioned. It is, however, pointed out in the argument provision. remedy existed; and the possibility of its use is proved in this
submitted in behalf of the petitioner, that, at the time the court case by the circumstance that on June 12, 1916, she in fact
made the order of publication, it was apprised of the fact that here appeared in court by her attorneys and excepted to the
The laws of these Islands, in contrast with the laws in force in
the petitioner lived in the United States and that as daughter order admitting the will to probate.
perhaps all of the States of the American Union, contain no
and heir she was necessarily interested in the probate of the
special provision, other than that allowing an appeal in the
will. It is, therefore, insisted that the court should have
probate proceedings, under which relief of any sort can be It results that, in conformity with the doctrine announced in the
appointed a date for the probate of the will sufficiently far in the
obtained from an order of a court of first instance improperly Davis case, above cited, the proceedings in the court below
future to permit the petitioner to be present either in person or
allowing or disallowing a will. We do, however, have a provision were conducted in such manner as to constitute due process of
by representation; and it is said that the failure of the court thus
of a general nature authorizing a court under certain law. The law supplied a remedy by which the petitioner might
to postpone the probate of the will constitutes an infringement
circumstances to set aside any judgment, order, or other have gotten a hearing and have obtained relief from the order
of that provision of the Philippine Bill which declared that
proceeding whatever. This provision is found in section 113 of by which she is supposed to have been injured; and though the
property shall not be taken without due process of law.
the Code of Civil Procedure, which reads as follows: period within which the application should have been made
was short, the remedy was both possible and practicable.
On this point we are of the opinion that the proceedings for the
Upon such terms as may be just the court may
probate of the will were regular and that the publication was
relieve a party or his legal representative from a From what has been said it follows that the order of March 16,
sufficient to give the court jurisdiction to entertain the
judgment, order or other proceeding taken against 1916, admitting the will of Emil H. Johnson to probate cannot
proceeding and to allow the will to be probated.
him through his mistake, inadvertence, surprise or be declared null and void merely because the petitioner was
excusable neglect; Provided, That application unavoidably prevented from appearing at the original hearing
As was said in the case of In re Davis (136 Cal., 590, 596), "the therefor be made within a reasonable time, but in no upon the matter of the probate of the will in question. Whether
proceeding as to the probate of a will is essentially one in rem, case exceeding six months after such judgment, the result would have been the same if our system of
and in the very nature of things the state is allowed a wide order, or proceeding was taken. procedure had contained no such provision as that expressed
latitude in determining the character of the constructive notice in section 113 is a matter which we need not here consider.
to be given to the world in a proceeding where it has absolute
The use of the word "judgment, order or other proceeding" in
possession of the res. It would be an exceptional case where a
this section indicates an intention on the part of the Legislature Intimately connected with the question of the jurisdiction of the
court would declare a statute void, as depriving a party of his
to give a wide latitude to the remedy here provided, and in our court, is another matter which may be properly discussed at
property without due process of law, the proceeding being
opinion its operation is not to be restricted to judgments or this juncture. This relates to the interpretation to be placed
strictly in rem, and the res within the state, upon the ground
orders entered in ordinary contentious litigation where a plaintiff upon section 636 of the Code of Civil Procedure. The position
that the constructive notice prescribed by the statute was
impleads a defendant and brings him into court by personal is taken by the appellant that this section is applicable only to
unreasonably short."
service of process. In other words the utility of the provision is wills of liens; and in this connection attention is directed to the
not limited to actions proper but extends to all sorts of judicial fact that the epigraph of this section speaks only of the will
In that case the petitioner had been domiciled in the Hawaiian proceedings. made here by an alien and to the further fact that the word
Islands at the time of the testator's death; and it was "state" in the body of the section is not capitalized. From this it
impossible, in view of the distance and means of is argued that section 636 is not applicable to the will of a
In the second section of the Code of Civil Procedure it is
communication then existing, for the petitioner to appear and citizen of the United States residing in these Islands.lawphil.net
declared that the provisions of this Code shall be liberally
oppose the probate on the day set for the hearing in California.
construed to promote its object and to assist the parties in
It was nevertheless held that publication in the manner
obtaining speedy justice. We think that the intention thus We consider these suggestions of little weight and are of the
prescribed by statute constituted due process of law.
exhibited should be applied in the interpretation of section 113; opinion that, by the most reasonable interpretation of the
(See Estate of Davis, 151 Cal., 318; Tracy vs. Muir, 151 Cal.,
and we hold that the word "party," used in this section, means language used in the statute, the words "another state or
363.)
any person having an interest in the subject matter of the country" include the United States and the States of the
proceeding who is in a position to be concluded by the American Union, and that the operation of the statute is not
In the Davis case (136 Cal., 590) the court commented upon judgment, order, to other proceeding taken. limited to wills of aliens. It is a rule of hermeneutics that
the fact that, under the laws of California, the petitioner had a punctuation and capitalization are aids of low degree in
full year within which she might have instituted a proceeding to interpreting the language of a statute and can never control
The petitioner, therefore, in this case could have applied, under
contest the will; and this was stated as one of the reasons for against the intelligible meaning of the written words.
the section cited, at any time within six months for March 16,
holding that publication in the manner provided by statute was Furthermore, the epigraph, or heading,, of a section, being
1916, and upon showing that she had been precluded from
sufficient. The same circumstance was commented upon in nothing more than a convenient index to the contents of the
appearing in the probate proceedings by conditions over which
O'Callaghan vs. O'Brien (199 U. S., 89), decided in the provision, cannot have the effect of limiting the operative words
she had no control and that the order admitting the will to
Supreme Court of the United States. This case arose under the contained in the body of the text. It results that if Emil H.
probate had been erroneously entered upon insufficient proof
Johnson was at the time of his death a citizen of the United Philippine Islands is compatible with citizenship in Illinois; and it As was said by this court in the case of Banco Español-
States and of the State of Illinois, his will was provable under must be considered that the allegations of the petition on this Filipino vs. Palanca (37 Phil. Rep., 921), "There is no principle
this section in the courts of the Philippine Islands, provided the point are, considered in their bearing as an attempt to refute of law better settled than that after jurisdiction has once been
instrument was so executed as to be admissible to probate citizenship in Illinois, wholly insufficient. acquired, every act of a court of general jurisdiction shall be
under the laws of the State of Illinois. presumed to have been rightly done. This rule is applied to
every judgment or decree rendered in the various stages of the
As the Court of First Instance found that the testator was a
proceedings from their initiation to their completion
We are thus brought to consider the second principal citizen of the State of Illinois and that the will was executed in
(Voorhees vs. United States Bank, 10 Pet., 314; 35 U. S., 449);
proposition stated at the outset of this discussion, which raises conformity with the laws of that State, the will was necessarily
and if the record is silent with respect to any fact which must
the question whether the order f probate can be set aside in and properly admitted to probate. And how is it possible to
have established before the court could have rightly acted, it
this proceeding on the other ground stated in the petition, evade the effect of these findings?
will be presumed that such fact was properly brought to its
namely, that the testator was not a resident of the State of
knowledge."
Illinois and that the will was not made in conformity with the
In Section 625 of the Code of Civil Procedure it is declared that
laws of that State.
"the allowance by the court of a will of real or personal property
The Court of First Instance is a court of original and general
shall be conclusive as to its due execution."
jurisdiction; and there is no difference in its faculties in this
The order of the Court of First Instance admitting the will to
respect whether exercised in matters of probate or exerted in
probate recites, among other things:
The due execution of a will involves conditions relating to a ordinary contentious litigation. The trial court therefore
number of matters, such as the age and mental capacity of the necessarily had the power to determine the facts upon which
That upon the date when the will in question was testator, the signing of the document by the testator, or by the propriety of admitting the will to probate depended; and the
executed Emil H. Johnson was a citizen of the United someone in his behalf, and the acknowledgment of the recital of those facts in the judgment was probably not essential
States, naturalized in the State of Illinois, County of instrument by him in the presence of the required number of to its validity. No express ruling is, however, necessary on this
Cook, and that the will in question was executed in witnesses who affix their signatures to the will to attest the act. point.
conformity with the dispositions of the law f the State The proof of all these requisites is involved in the probate; and
of Illinois. as to each and all of them the probate is conclusive.
What has been said effectually disposes of the petition
(Castañeda vs. Alemany, 3 Phil. Rep., 426;
considered in its aspect as an attack upon the order of probate
Pimentel vs. Palanca, 5 Phil. Rep., 436; Chiong Joc-
We consider this equivalent to a finding that upon the date of for error apparent on the face of the record. But the petitioner
Soy vs. Vaño, 8 Phil. Rep., 119; Sanchez vs. Pascual, 11 Phil.
the execution of the will the testator was a citizen of the State seeks to have the judgment reviewed, it being asserted that the
Rep., 395; Montañano vs. Suesa, 14 Phil. Rep., 676.)
of Illinois and that the will was executed in conformity with the findings of the trial court — especially on the question of the
laws of that State. Upon the last point the finding is express; citizenship of the testator — are not supported by the evidence.
and in our opinion the statement that the testator was a citizen Our reported cases do not contain the slightest intimation that a It needs but a moment's reflection, however, to show that in
of the United States, naturalized in the State of Illinois, should will which has been probated according to law, and without such a proceeding as this it is not possible to reverse the
be taken to imply that he was a citizen of the State of Illinois, as fraud, can be annulled, in any other proceeding whatever, on original order on the ground that the findings of the trial court
well as of the United States. account of any supposed irregularity or defect in the execution are unsupported by the proof adduced before that court. The
of the will or on account of any error in the action of the court only proceeding in which a review of the evidence can be
upon the proof adduced before it. This court has never been secured is by appeal, and the case is not before us upon
The naturalization laws of the United States require, as a
called upon to decide whether, in case the probate of a will appeal from the original order admitting the will to probate. The
condition precedent to the granting of the certificate of
should be procured by fraud, relief could be granted in some present proceedings by petition to set aside the order of
naturalization, that the applicant should have resided at least
other proceeding; and no such question is now presented. But probate, and the appeal herein is from the order denying this
five years in the United States and for one year within the State
it is readily seen that if fraud were alleged, this would introduce relief. It is obvious that on appeal from an order refusing to
or territory where the court granting the naturalization papers is
an entirely different factor in the cae. In Austrua vs. Ventenilla vacate a judgment it is not possible to review the evidence
held; and in the absence of clear proof to the contrary it should
(21 Phil. Rep., 180, 184), it was suggested but not decided that upon which the original judgment was based. To permit this
be presumed that a person naturalized in a court of a certain
relief might be granted in case the probate of a will were would operate unduly to protract the right of appeal.
State thereby becomes a citizen of that State as well as of the
procured by fraud.
United States.
However, for the purpose of arriving at a just conception of the
The circumstance that the judgment of the trial court recites case from the point of view of the petitioner, we propose to
In this connection it should be remembered that the Fourteenth
that the will was executed in conformity with the law of Illinois examine the evidence submitted upon the original hearing, in
Amendment to the Constitution of the United States declares,
and also, in effect, that the testator was a citizen of that State connection with the allegations of the petition, in order to see,
in its opening words, that all persons naturalized in the United
places the judgment upon an unassailable basis so far as any first, whether the evidence submitted to the trial court was
States, and subject to the jurisdiction thereof, are citizens of the
supposed error apparent upon the fact of the judgment is sufficient to justify its findings, and, secondly, whether the
United States and of the State wherein they reside.
concerned. It is, however, probable that even if the judgment petition contains any matter which would justify the court in
had not contained these recitals, there would have been a setting the judgment, aside. In this connection we shall for a
It is noteworthy that the petition by which it is sought to annul presumption from the admission of the will to probate as the moment ignore the circumstance that the petition was filed after
the probate of this will does not assert that the testator was not will of a citizen of Illinois that the facts were as recited in the the expiration of the six months allowed by section 113 of the
a citizen of Illinois at the date when the will was executed. The order of probate. Code of Civil Procedure.
most that is said on this point is he was "never a resident of the
State of Illinois after the year 1898, but became and was a
resident of the city of Manila," etc. But residence in the
The principal controversy is over the citizenship of the testator. but only asserts that the testator was a resident of the contains provisions which cannot be given effect consistently
The evidence adduced upon this point in the trial court consists Philippine Islands, demonstrates the impossibility of setting the with the laws of the Philippine Islands; and it is suggested that
of the certificate of naturalization granted upon January 10, probate aside for lack of the necessary citizenship on the part as the petitioner is a legitimate heir of the testator she cannot
1903, in the Circuit Court of Cook County, Illinois, in connection of the testator. As already observed, the allegation of the be deprived of the legitime to which she is entitled under the
with certain biographical facts contained in the oral evidence. petition on this point is wholly insufficient to justify any relief law governing testamentary successions in these Islands.
The certificate of naturalization supplies incontrovertible proof whatever. Upon this point it is sufficient to say that the probate of the will
that upon the date stated the testator became a citizen of the does not affect the intrinsic validity of its provisions, the decree
United States, and inferentially also a citizen of said State. In of probate being conclusive only as regards the due execution
Upon the other point — as to whether the will was executed in
the testimony submitted to the trial court it appears that, when of the will. (Code of Civil Procedure, secs. 625, 614;
conformity with the statutes of the State of Illinois — we note
Johnson first came to the United States as a boy, he took up Sahagun vs. De Gorostiza, 7 Phil. Rep., 347, 349; Chiong Joc-
that it does not affirmatively appear from the transaction of the
his abode in the State of Illinois and there remained until he Soy vs. Vaño, 8 Phil. Rep., 119, 121; Limjuco vs. Ganara, 11
testimony adduced in the trial court that any witness was
came as a soldier in the United States Army to the Philippine Phil. Rep., 393, 395.)
examined with reference to the law of Illinois on the subject of
Islands. Although he remained in these Islands for sometime
the execution of will. The trial judge no doubt was satisfied that
after receiving his discharge, no evidence was adduced
the will was properly executed by examining section 1874 of If, therefore, upon the distribution of this estate, it should
showing that at the time he returned to the United States, in the
the Revised Statutes of Illinois, as exhibited in volume 3 of appear that any legacy given by the will or other disposition
autumn of 1902, he had then abandoned Illinois as the State of
Starr & Curtis's Annotated Illinois Statutes, 2nd ed., p. 426; and made therein is contrary to the law applicable in such case, the
his permanent domicile, and on the contrary the certificate of
he may have assumed that he could take judicial notice of the will must necessarily yield upon that point and the law must
naturalization itself recites that at that time he claimed to be a
laws of Illinois under section 275 of the Code of Civil prevail. Nevertheless, it should not be forgotten that the
resident of Illinois.
Procedure. If so, he was in our opinion mistaken. that section intrinsic validity of the provisions of this will must be determined
authorizes the courts here to take judicial notice, among other by the law of Illinois and not, as the appellant apparently
Now, if upon January 10, 1903, the testator became a citizen of things, of the acts of the legislative department of the United assumes, by the general provisions here applicable in such
the United States and of the State of Illinois, how has he lost States. These words clearly have reference to Acts of the matters; for in the second paragraph of article 10 of the Civil
the character of citizen with respect to either of these Congress of the United States; and we would hesitate to hold Code it is declared that "legal and testamentary successions,
jurisdictions? There is no law in force by virtue of which any that our courts can, under this provision, take judicial notice of with regard to the order of succession, as well as to the amount
person of foreign nativity can become a naturalized citizen of the multifarious laws of the various American States. Nor do we of the successional rights and to the intrinsic validity of their
the Philippine Islands; and it was, therefore, impossible for the think that any such authority can be derived from the broader provisions, shall be regulated by the laws of the nation of the
testator, even if he had so desired, to expatriate himself from language, used in the same action, where it is said that our person whose succession is in question, whatever may be the
the United States and change his political status from a citizen courts may take judicial notice of matters of public knowledge nature of the property and the country where it may be situate."
of the United States to a citizen of these Islands. This being "similar" to those therein enumerated. The proper rule we think
true, it is to be presumed that he retained his citizenship in the is to require proof of the statutes of the States of the American
From what has been said, it is, we think, manifest that the
State of Illinois along with his status as a citizen of the United Union whenever their provisions are determinative of the
petition submitted to the court below on October 31, 1916, was
States. It would be novel doctrine to Americans living in the issues in any action litigated in the Philippine courts.
entirely insufficient to warrant the setting aside of the other
Philippine Islands to be told that by living here they lose their
probating the will in question, whether said petition be
citizenship in the State of their naturalization or nativity.
Nevertheless, even supposing that the trial court may have considered as an attack on the validity of the decree for error
erred in taking judicial notice of the law of Illinois on the point in apparent, or whether it be considered as an application for a
We are not unmindful of the fact that when a citizen of one question, such error is not now available to the petitioner, first, rehearing based upon the new evidence submitted in the
State leaves it and takes up his abode in another State with no because the petition does not state any fact from which it would affidavits which accompany the petition. And in this latter
intention of returning, he immediately acquires citizenship in appear that the law of Illinois is different from what the court aspect the petition is subject to the further fatal defect that it
the State of his new domicile. This is in accordance with that found, and, secondly, because the assignment of error and was not presented within the time allowed by law.
provision of the Fourteenth Amendment to the Constitution of argument for the appellant in this court raises no question
the United States which says that every citizen of the United based on such supposed error. Though the trial court may
It follows that the trial court committed no error in denying the
States is a citizen of the State where in he resides. The effect have acted upon pure conjecture as to the law prevailing in the
relief sought. The order appealed from is accordingly affirmed
of this provision necessarily is that a person transferring his State of Illinois, its judgment could not be set aside, even upon
with costs. So ordered.
domicile from one State to another loses his citizenship in the application made within six months under section 113 of the
State of his original above upon acquiring citizenship in the Code of Civil procedure, unless it should be made to appear
State of his new abode. The acquisition of the new State affirmatively that the conjecture was wrong. The petitioner, it is Torres, Johnson, Malcolm, Avanceña and Fisher, JJ., concur.
citizenship extinguishes the old. That situation, in our opinion, true, states in general terms that the will in question is invalid
has no analogy to that which arises when a citizen of an and inadequate to pass real and personal property in the State
American State comes to reside in the Philippine Islands. Here of Illinois, but this is merely a conclusion of law. The affidavits
he cannot acquire a new citizenship; nor by the mere change of by which the petition is accompanied contain no reference to
domicile does he lose that which he brought with him. the subject, and we are cited to no authority in the appellant's
brief which might tent to raise a doubt as to the correctness of
the conclusion of the trial court. It is very clear, therefore, that
The proof adduced before the trial court must therefore be
this point cannot be urged as of serious moment.
taken as showing that, at the time the will was executed, the
testator was, as stated in the order of probate, a citizen of the
State of Illinois. This, in connection with the circumstance that But it is insisted in the brief for the appellant that the will in
the petition does not even so much as deny such citizenship question was not properly admissible to probate because it
G.R. No. 38050           September 22, 1933 the will but limited itself to decreeing its authentication; and (3) 1. In case of a judgment or order against a specific
that the will is null and void ab initio on the ground that the thing, or in respect to the probate of a will, or the
external formalities prescribed by the Code of Civil Procedure administration of the estate of a deceased person, or
In the matter of the will of Donata Manahan. TIBURCIA
have not been complied with in the execution thereof. in respect to the personal, political, or legal condition
MANAHAN, petitioner-appellee,
or relation of a particular person the judgment or
vs.
order is conclusive upon the title of the thing, the will
ENGRACIA MANAHAN, opponent-appellant. The appellant's first contention is obviously unfounded and
or administration, or the condition or relation of the
untenable. She was not entitled to notification of the probate of
person: Provided, That the probate of a will or
the will and neither had she the right to expect it, inasmuch as
J. Fernando Rodrigo for appellant. granting of letters of administration shall only
she was not an interested party, not having filed an opposition
Heraclio H. del Pilar for appellee. be prima facie evidence of the death of the testator
to the petition for the probate thereof. Her allegation that she
or intestate; . . . .
had the status of an heir, being the deceased's sister, did not
IMPERIAL, J.: confer on her the right to be notified on the ground that the
testatrix died leaving a will in which the appellant has not been On the other hand, we are at a loss to understand how it was
instituted heir. Furthermore, not being a forced heir, she did not possible for the herein appellant to appeal from the order of the
This is an appeal taken by the appellant herein, Engracia acquire any successional right. trial court denying her motion for reconsideration and a new
Manahan, from the order of the Court of the First Instance of trial, which is interlocutory in character. In view of this
Bulacan dated July 1, 1932, in the matter of the will of the erroneous interpretation, she succeeded in appealing indirectly
deceased Donata Manahan, special proceedings No. 4162, The second contention is puerile. The court really decreed the
from the order admitting the will to probate which was entered
denying her motion for reconsideration and new trial filed on authentication and probate of the will in question, which is the
one year and seven months ago.
May 11, 1932. only pronouncement required of the trial court by the law in
order that the will may be considered valid and duly executed
in accordance with the law. In the phraseology of the Before closing, we wish to state that it is not timely to discuss
The fact in the case are as follows: procedural law, there is no essential difference between the herein the validity and sufficiency of the execution of the will in
authentication of a will and the probate thereof. The words question. As we have already said, this question can no more
On August 29, 1930, Tiburcia Manahan instituted special authentication and probate are synonymous in this case. All the be raised in this case on appeal. After due hearing, the court
proceedings No. 4162, for the probate of the will of the law requires is that the competent court declared that in the found that the will in question was valid and effective and the
deceased Donata Manahan, who died in Bulacan, Province of execution of the will the essential external formalities have order admitting it to probate, thus promulgated, should be
Bulacan, on August 3, 1930. The petitioner herein, niece of the been complied with and that, in view thereof, the document, as accepted and respected by all. The probate of the will in
testatrix, was named the executrix in said will. The court set the a will, is valid and effective in the eyes of the law. question now constitutes res judicata.
date for the hearing and the necessary notice required by law
was accordingly published. On the day of the hearing of the The last contention of the appellant may be refuted merely by Wherefore, the appeal taken herein is hereby dismissed, with
petition, no opposition thereto was filed and, after the evidence stating that, once a will has been authenticated and admitted to costs against the appellant. So ordered.
was presented, the court entered the decree admitting the will probate, questions relative to the validity thereof can no more
to probate as prayed for. The will was probated on September be raised on appeal. The decree of probate is conclusive with
22, 1930. The trial court appointed the herein petitioner Avanceña, C.J., Malcolm, Villa-Real, and Hull, JJ., concur.
respect to the due execution thereof and it cannot impugned on
executrix with a bond of P1,000, and likewise appointed the any of the grounds authorized by law, except that of fraud, in
committed on claims and appraisal, whereupon the any separate or independent action or proceedings (sec. 625,
testamentary proceedings followed the usual course. One year Code of Civil Procedure; Castañeda vs. Alemany, 3 Phil., 426;
and seven months later, that is, on My 11, 1932, to be exact, Pimentel vs. Palanca, 5 Phil., 436; Sahagun vs. De Gorostiza,
the appellant herein filed a motion for reconsideration and a 7 Phil., 347; Limjuco vs. Ganara, 11 Phil., 393; Montañano vs.
new trial, praying that the order admitting the will to probate be Suesa, 14 Phil., 676; In re Estate of Johnson, 39 Phil., 156;
vacated and the authenticated will declared null and void ab Riera vs. Palmaroli, 40 Phil., 105; Austria vs. Ventenilla, 21
initio. The appellee herein, naturally filed her opposition to the Phil., 180; Ramirez vs. Gmur, 42 Phil., 855; and Chiong Joc-
petition and, after the corresponding hearing thereof, the trial Soy vs. Vaño, 8 Phil., 119).
court erred its over of denial on July 1, 1932. Engracia
Manahan, under the pretext of appealing from this last order,
likewise appealed from the judgment admitting the will to But there is another reason which prevents the appellant herein
probate. from successfully maintaining the present action and it is that
inasmuch as the proceedings followed in a testamentary case
are in rem, the trial court's decree admitting the will to probate
In this instance, the appellant assigns seven (7) alleged errors was effective and conclusive against her, in accordance with
as committed by the trial court. Instead of discussing them one the provisions of section 306 of the said Code of Civil
by one, we believe that, essentially, her claim narrows down to Procedure which reads as follows:
the following: (1) That she was an interested party in the
testamentary proceedings and, as such, was entitled to and
should have been notified of the probate of the will; (2) that the SEC. 306. EFFECT OF JUDGMENT. — . . . .
court, in its order of September 22, 1930, did not really probate
G.R. No. 156021 September 23, 2005 testamentary issued to respondent be withdrawn and the Court has yet to decide a case involving Rule 47 of the Rules
estate of the decedent disposed of under intestate succession. 9 of Court and, therefore, the instant petition should be given due
course for the guidance of the bench and bar.21
CYNTHIA C. ALABAN, FRANCIS COLLADO, JOSE P.
COLLADO, JUDITH PROVIDO, CLARITA PROVIDO, On 11 January 2002, the RTC issued an Order10 denying
ALFREDO PROVIDO, MANUEL PROVIDO, JR., LORNA petitioners’ motion for being unmeritorious. Resolving the issue For his part, respondent claims that petitioners were in a
DINA E. PROVIDO, SEVERO ARENGA, JR., SERGIO of jurisdiction, the RTC held that petitioners were deemed position to avail of the remedies provided in Rules 37 and 38,
ARENGA, EDUARDO ARENGA, CAROL ARENGA, RUTH notified of the hearing by publication and that the deficiency in as they in fact did when they filed a motion for new
BABASA, NORMA HIJASTRO, DOLORES M. FLORES, the payment of docket fees is not a ground for the outright trial.22 Moreover, they could have resorted to a petition for relief
ANTONIO MARIN, JR., JOSE MARIN, SR., and MATHILDE dismissal of the petition. It merely required respondent to pay from judgment since they learned of the RTC’s judgment only
MARIN, Petitioners, the deficiency.11 Moreover, the RTC’s Decision was already three and a half months after its promulgation. 23 Respondent
vs. final and executory even before petitioners’ filing of the motion likewise maintains that no extrinsic fraud exists to warrant the
COURT OF APPEALS and FRANCISCO H. to reopen.12 annulment of the RTC’s Decision, since there was no showing
PROVIDO, Respondent. that they were denied their day in court. Petitioners were not
made parties to the probate proceedings because the decedent
Petitioners thereafter filed a petition13 with an application for
did not institute them as her heirs.24 Besides,
DECISION preliminary injunction with the CA, seeking the annulment of
assuming arguendo that petitioners are heirs of the decedent,
the RTC’s Decision dated 30 May 2001 and Order dated 11
lack of notice to them is not a fatal defect since personal notice
January 2002. They claimed that after the death of the
Tinga, J.: upon the heirs is a matter of procedural convenience and not a
decedent, petitioners, together with respondent, held several
jurisdictional requisite.25 Finally, respondent charges petitioners
conferences to discuss the matter of dividing the estate of the
of forum–shopping, since the latter have a pending suit
This is a petition for review of the Resolutions1 of the decedent, with respondent agreeing to a one-sixth (1/6) portion
involving the same issues as those in SP No. 00-135, that is
Court of Appeals (CA) in CA-G.R. SP No. 69221, 2 dismissing as his share. Petitioners allegedly drafted a compromise
SP No. 118126 filed before Branch 23, RTC of General Santos
petitioners’ petition for annulment of judgment. agreement to implement the division of the estate. Despite
City and subsequently pending on appeal before the CA in CA-
receipt of the agreement, respondent refused to sign and return
G.R. No.74924.27
the same. Petitioners opined that respondent feigned interest in
On 8 November 2000, respondent Francisco Provido participating in the compromise agreement so that they would
(respondent) filed a petition, docketed as SP Proc. No. 00-135, not suspect his intention to secure the probate of the It appears that one of the petitioners herein, Dolores M. Flores
for the probate of the Last Will and Testament3 of the late will.14 They claimed that they learnt of the probate proceedings ("Flores"), who is a niece of the decedent, filed a petition for
Soledad Provido Elevencionado ("decedent"), who died on 26 only in July of 2001, as a result of which they filed their motion letters of administration with the RTC of General Santos City,
October 2000 in Janiuay, Iloilo.4 Respondent alleged that he to reopen the proceedings and admit their opposition to the claiming that the decedent died intestate without any issue,
was the heir of the decedent and the executor of her will. On 30 probate of the will only on 4 October 2001. They argued that survived by five groups of collateral heirs. Flores, armed with a
May 2001, the Regional Trial Court (RTC), Branch 68, in P.D. the RTC Decision should be annulled and set aside on the Special Power of Attorney from most of the other petitioners,
Monfort North, Dumangas, Iloilo, rendered ground of extrinsic fraud and lack of jurisdiction on the part of prayed for her appointment as administratrix of the estate of
its Decision,5 allowing the probate of the will of the decedent the RTC.15 the decedent. The RTC dismissed the petition on the ground of
and directing the issuance of letters testamentary to lack of jurisdiction, stating that the probate court in Janiuay,
respondent.6 Iloilo has jurisdiction since the venue for a petition for the
In its Resolution16 promulgated on 28 February 2002, the CA
settlement of the estate of a decedent is the place where the
dismissed the petition. It found that there was no showing that
More than four (4) months later, or on 4 October 2001, herein decedent died. This is also in accordance with the rule that the
petitioners failed to avail of or resort to the ordinary remedies of
petitioners filed a motion for the reopening of the probate first court acquiring jurisdiction shall continue hearing the case
new trial, appeal, petition for relief from judgment, or other
proceedings.7 Likewise, they filed an opposition to the to the exclusion of other courts, the RTC added.28 On 9
appropriate remedies through no fault of their own.17 Moreover,
allowance of the will of the decedent, as well as the issuance of January 2002, Flores filed a Notice of Appeal 29 and on 28
the CA declared as baseless petitioners’ claim that the
letters testamentary to respondent,8 claiming that they are the January 2002, the case was ordered forwarded to the CA.30
proceedings in the RTC was attended by extrinsic fraud.
intestate heirs of the decedent. Petitioners claimed that the Neither was there any showing that they availed of this ground
RTC did not acquire jurisdiction over the petition due to non- in a motion for new trial or petition for relief from judgment in Petitioners maintain that they were not made parties to the
payment of the correct docket fees, defective publication, and the RTC, the CA added.18 Petitioners sought reconsideration of case in which the decision sought to be annulled was rendered
lack of notice to the other heirs. Moreover, they alleged that the the Resolution, but the same was denied by the CA for lack of and, thus, they could not have availed of the ordinary remedies
will could not have been probated because: (1) the signature of merit.19 of new trial, appeal, petition for relief from judgment and other
the decedent was forged; (2) the will was not executed in appropriate remedies, contrary to the ruling of the CA. They
accordance with law, that is, the witnesses failed to sign below aver that respondent’s offer of a false compromise and his
the attestation clause; (3) the decedent lacked testamentary Petitioners now come to this Court, asserting that the CA
failure to notify them of the probate of the will constitute
capacity to execute and publish a will; (4) the will was executed committed grave abuse of discretion amounting to lack of
extrinsic fraud that necessitates the annulment of the RTC’s
by force and under duress and improper pressure; (5) the jurisdiction when it dismissed their petition for the alleged
judgment.31
decedent had no intention to make a will at the time of affixing failure to show that they have not availed of or resorted to the
of her signature; and (6) she did not know the properties to be remedies of new trial, appeal, petition for relief from judgment
disposed of, having included in the will properties which no or other remedies through no fault of their own, and held that The petition is devoid of merit.
longer belonged to her. Petitioners prayed that the letters petitioners were not denied their day in court during the
proceedings before the RTC.20 In addition, they assert that this
Section 37 of the Rules of Court allows an aggrieved party to eventually became parties thereto as a consequence of the To sustain their allegation of extrinsic fraud, petitioners assert
file a motion for new trial on the ground of fraud, accident, publication of the notice of hearing. that as a result of respondent’s deliberate omission or
mistake, or excusable negligence. The same concealment of their names, ages and residences as the other
heirs of the decedent in his petition for allowance of the will,
As parties to the probate proceedings, petitioners could have
they were not notified of the proceedings, and thus they were
Rule permits the filing of a motion for reconsideration on the validly availed of the remedies of motion for new trial or
denied their day in court. In addition, they claim that
grounds of excessive award of damages, insufficiency of reconsideration and petition for relief from judgment. In fact,
respondent’s offer of a false compromise even before the filing
evidence to justify the decision or final order, or that the petitioners filed a motion to reopen, which is essentially a
of the petition prevented them from appearing and opposing
decision or final order is contrary to law.32 Both motions should motion for new trial, with petitioners praying for the reopening
the petition for probate.
be filed within the period for taking an appeal, or fifteen (15) of the case and the setting of further proceedings. However,
days from notice of the judgment or final order. the motion was denied for having been filed out of time, long
after the Decision became final and executory. The Court is not convinced.
Meanwhile, a petition for relief from judgment under Section 3
of Rule 38 is resorted to when a judgment or final order is Conceding that petitioners became aware of the Decision after According to the Rules, notice is required to be personally
entered, or any other proceeding is thereafter taken, against a it had become final, they could have still filed a petition for relief given to known heirs, legatees, and devisees of the
party in any court through fraud, accident, mistake, or from judgment after the denial of their motion to reopen. testator.48 A perusal of the will shows that respondent was
excusable negligence. Said party may file a petition in the Petitioners claim that they learned of the Decision only on 4 instituted as the sole heir of the decedent. Petitioners, as
same court and in the same case to set aside the judgment, October 2001, or almost four (4) months from the time nephews and nieces of the decedent, are neither compulsory
order or proceeding. It must be filed within sixty (60) days after the Decision had attained finality. But they failed to avail of the nor testate heirs49 who are entitled to be notified of the probate
the petitioner learns of the judgment and within six (6) months remedy. proceedings under the Rules. Respondent had no legal
after entry thereof.33 obligation to mention petitioners in the petition for probate, or to
personally notify them of the same.
For failure to make use without sufficient justification of the said
A motion for new trial or reconsideration and a petition for relief remedies available to them, petitioners could no longer resort
from judgment are remedies available only to parties in the to a petition for annulment of judgment; otherwise, they would Besides, assuming arguendo that petitioners are entitled to be
proceedings where the assailed benefit from their own inaction or negligence. 41 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
judgment is rendered.34 In fact, it has been held that a person Even casting aside the procedural requisite, the petition for
who was never a party to the case, or even summoned to annulment of judgment must still fail for failure to comply with
appear therein, cannot avail of a petition for relief from the substantive requisites, as the appellate court ruled. The non-inclusion of petitioners’ names in the petition and the
judgment.35 alleged failure to personally notify them of the proceedings do
not constitute extrinsic fraud. Petitioners were not denied their
An action for annulment of judgment is a remedy in law
day in court, as they were not prevented from participating in
However, petitioners in this case are mistaken in asserting that independent of the case where the judgment sought to be
the proceedings and presenting their case before the probate
they are not or have not become parties to the probate annulled was rendered.42 The purpose of such action is to have
court.
proceedings. 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 One other vital point is the issue of forum-shopping against
Under the Rules of Court, any executor, devisee, or legatee
judgment, or other appropriate remedies are no longer petitioners. Forum-shopping consists of filing multiple suits in
named in a will, or any other person interested in the estate
available through no fault of the petitioner, 43 and is based on different courts, either simultaneously or successively, involving
may, at any time after the death of the testator, petition the
only two grounds: extrinsic fraud, and lack of jurisdiction or the same parties, to ask the courts to rule on the same or
court having jurisdiction to have the will allowed. 36 Notice of the
denial of due process.44 A person need not be a party to the related causes and/or to grant the same or substantially same
time and place for proving the will must be published for three
judgment sought to be annulled, and it is only essential that he reliefs,51 on the supposition that one or the other court would
(3) consecutive weeks, in a newspaper of general circulation in
can prove his allegation that the judgment was obtained by the make a favorable disposition.52 Obviously, the parties in the
the province,37 as well as furnished to the designated or other
use of fraud and collusion and he would be adversely affected instant case, as well as in the appealed case before the CA,
known heirs, legatees, and devisees of the testator.38 Thus, it
thereby.45 are the same. Both cases deal with the existence and validity
has been held that a proceeding for the probate of a will is
of the alleged will of the decedent, with petitioners anchoring
one in rem, such that with the corresponding publication of the
their cause on the state of intestacy. In the probate
petition the court's jurisdiction extends to all persons interested An action to annul a final judgment on the ground of fraud lies
proceedings, petitioners’ position has always been that the
in said will or in the settlement of the estate of the decedent. 39 only if the fraud is extrinsic or collateral in character. 46 Fraud is
decedent left no will and if she did, the will does not comply
regarded as extrinsic where it prevents a party from having a
with the requisites of a valid will. Indeed, that position is the
trial or from presenting his entire case to the court, or where it
Publication is notice to the whole world that the proceeding has bedrock of their present petition. Of course, respondent
operates upon matters pertaining not to the judgment itself but
for its object to bar indefinitely all who might be minded to maintains the contrary stance. On the other hand, in the
to the manner in which it is procured. The overriding
make an objection of any sort against the right sought to be petition for letters of administration, petitioner Flores prayed for
consideration when extrinsic fraud is alleged is that the
established. It is the publication of such notice that brings in the her appointment as administratrix of the
fraudulent scheme of the prevailing litigant prevented a party
whole world as a party in the case and vests the court with
from having his day in court.47
jurisdiction to hear and decide it.40 Thus, even though
estate on the theory that the decedent died intestate. The
petitioners were not mentioned in the petition for probate, they
petition was dismissed on the ground of lack of jurisdiction, and
it is this order of dismissal which is the subject of review in CA- CERTIFICATION Id. at 62.
15

G.R. No. 74924. Clearly, therefore, there is forum-shopping.

Pursuant to Section 13, Article VIII of the Constitution, and the Id. at 69.
16

Moreover, petitioners failed to inform the Court of the said Division Chairman’s Attestation, it is hereby certified that the
pending case in their certification against forum- shopping. conclusions in the above Decision were reached in consultation
Ibid.
17
Neither have they done so at any time thereafter. The Court before the case was assigned to the writer of the opinion of the
notes that even in the petition for annulment of judgment, Court’s Division.
petitioners failed to inform the CA of the pendency of their Id. at 70.
18

appeal in CA-G.R. No. 74924, even though the notice of appeal

HILARIO G. DAVIDE, JR.
was filed way before the petition for annulment of judgment
Resolution dated 12 November 2002, Id. at 92.
19
was instituted.
Chief Justice
Id. at 15.
20
WHEREFORE, the petition is DENIED. Costs against
petitioners.
Id. at 15.
21

SO ORDERED.
Id. at 103.
22
Footnotes
DANTE O. TINGA
Id. at 107.
23
1
Dated 8 February 2002 and 12 November 2002.
Associate Justice
Id. at 108
24
2
Cynthia C. Alaban, et al. v. Gerardo D. Diaz, et al.
WE CONCUR:
Id. at 109.
25
3
Rollo, pp. 47-52.
REYNATO S. PUNO
Entitled "In the Matter of the Issuance of Letters of
26
4
Entitled "In Re: Petition for Probate of Will of Administration in the Intestate Estate of Soledad
Associate Justice Decedent Soledad Provido Elevencionado, Provido-Elevencionado, Dolores M. Flores,
Francisco H. Provido, Petitioner"; Id. at 31-32. Petitioner."
Chairman
5
Id. at 34-37. Rollo, pp. 109-110.
27

MA. ALICIA AUSTRIA-MARTINEZ, ROMEO J. CALLEJO,

SR. 6
Ibid. Id. at 126.
28

Associate Justice Associate Justice 7

Id. at 38-39. CA Rollo, p.78.
29

MINITA V. CHICO-NAZARIO 8
Id. at 41-45. Id. at 79.
30

Associate Justice 9
Id. at 42-44. Id. at 21.
31

ATTESTATION 10
Id. at 53-56. Sec. 1, Rule 37.
32

I attest that the conclusions in the above Decision were 11

Id. at 55, 56. Sec. 1, Rule 38.
33
reached in consultation before the case was assigned to the
writer of the opinion of the Court’s Division. 12
Id. at 55. Section 1 of Rule 37 of the Rules of Court provides:
34

REYNATO S. PUNO 13
Docketed as CA-G.R. SP No. 69221. Section 1. Grounds of and period for filing motion for
new trial or reconsideration.- Within the period for
Associate Justice 14
Rollo, pp. 58-59. taking an appeal, the aggrieved party may move the
Chairman, Second Division
trial court to set aside the judgment or final order and
grant a new trial for one or more of the following
causes materially affecting the substantial rights of Pinlac v. Court of Appeals, G.R. No. 91486, 19
44

said party: January 2001, 349 SCRA 635, 650.

.... Islamic Da’Wah Council of the Philippines v. Court

45

of Appeals, supra note 42 at 187.
Meanwhile, Sections 1 and 2 of Rule 38 state:
Bobis et al. v. Court of Appeals, et al., G.R. No.
46

113796, 14 December 2000, 348 SCRA 23, 27-28.

Section 1. Petition for relief from judgment, order, or
other proceedings.- When a judgment or final order
is entered, or any other proceeding is thereafter 47
Teodoro v. Court of Appeals, 437 Phil. 336, 345
taken against a party in any court through fraud, (2002).
accident, mistake or excusable negligence, he may
file a petition in such court and in the same case
Sec. 3, Rule 76, Rules of Court.
48
praying that the judgment, order or proceeding be set
aside.
Art. 842, Civil Code.
49

Section 2. Petition for relief from denial of appeal.-

When a judgment or final order is rendered by any 50
F.D. Regalado, Remedial Law Compendium, Vol. II
court in a case, and a party thereto, by fraud, (2001 ed.) p. 27, citing In Re Estate of Johnson, 39
accident, mistake, or excusable negligence, has Phil 156; In Re Testate Estate of Deceased Jose B.
been prevented from taking an appeal, he may file a Suntay, 95 Phil 500; Abut v. Abut, et al., 150-A Phil.
petition in such court and in the same case praying 679 (1972).
that the appeal be given due course.
J. Feria & M.C.S. Noche, Civil Procedure Annotated
51

(Emphasis supplied.)
35
Vol. 1 (2001) p. 297.

[35]Metropolitan Bank and Trust Co. v. Alejo, G.R. 52

Gatmaytan v. Court of Appeals, 335 Phil. 155, 167
No. 141970, 10 September 2001, 364 SCRA 812, (1997).
817.

Sec. 1, Rule 76, Rules of Court.

36

Sec. 3, Rule 76, id.

37

Sec. 4, Rule 76, id.

38

Abut v. Abut, 150-A Phil. 679, 683 (1972).

39

Barco v. Court of Appeals, G.R. No. 120587, 20

40

January 2004, 420 SCRA 162, 174, citing Adez

Realty v. Court of Appeals, G.R. No. 100643, 14
August 1992, 22 SCRA 623, 628.

Manipor, et al. v. Spouses Ricafort, G.R. No.

41

150159, 25 July 2003, 407 SCRA 298, 303.

Islamic Da’Wah Council of the Philippines v. Court

42

of Appeals, G.R. No. 80892, 29 September 1989,

178 SCRA 185, 184.

Sec. 1, Rule 47, Rules of Court.

43
 FIRST DIVISION behalf and as guardian of the minor acknowledged
natural children of the deceased Nicolas Azores, for the On January 19th, the court issued an order which
[G.R. No. 45463. March 18, 1937.] purpose of applying for the probate of the will, Exhibit reads as follows:jgc:chanrobles.com.ph
A, which she claims to be the expression of the last will
EMERITA SANTOS, in her behalf and as guardian and testament of said Nicolas Azores, who died in the "Considering the petition of Atty. Jesus E. Blanco in
of the persons and property of the minors municipality of San Pablo, Laguna, on January 5, 1937. representation of petitioner Emerita Santos for the
Bienvenido, Apolonio, Manuel, Juana and appointment of a special administrator in this case, and
Norberta, surnamed Azores y Santos, Petitioner, Two days after the petition in question had been the opposition filed thereto by Atty. Claro M. Recto in
v. MODESTO CASTILLO, Judge of First Instance of docketed, the petitioner filed a motion praying for the representation of the children of the deceased in his
Laguna, and JOSE, SINFOROSA, and ANTONIO appointment of a special administrator and first marriage; and considering further the arguments
AZORES, Respondents. commissioners on appraisal, of the properties of the in favor of and against said petition given by the
deceased Nicolas Azores. At the hearing of said motion parties, as well as the manifestation in open court
Claro M. Recto for respondents Azores. which took place on January 13th, the herein made by Atty. Recto that the opponents will present for
respondents Jose, Sinforosa and Antonio Azores, probate the original last will and testament of the
No appearance for the respondent Judge. legitimate children of said deceased, opposed the deceased together with the codicil as soon as the
court’s taking action thereon in the ground that it had novena for the deceased is through; and taking into
SYLLABUS not acquired jurisdiction over the case, the allegations account the period of time that has elapsed since the
made in the petition being insufficient to confer death of Nicolas Azores;
1. WILLS; PROBATE; JURISDICTION. — In order that jurisdiction upon said court, because the petitioner did
the court may acquire jurisdiction over the case for the not allege that she had the custody of the will and, "Said petition for the appointment of a special
probate of a will and for the administration of the therefore, was not entitled to present it for probate; administrator is hereby denied; and Jose Azores under
properties left by a deceased person, the application and furthermore because that will that should be whose custody the last will and testament and all other
must allege, in addition to the residence of the ceased probated is the original and not a copy thereof, as the documents having relation thereto are supposed to be,
and other indispensable facts or circumstances, that one presented by the petitioner. Before the court is hereby ordered to deliver said papers to the court
the applicant is the executor named in the will or is the decided the incident relative to its lack of jurisdiction, within ten (10) days from notice hereof; . . . ."cralaw
person who had the custody of the will to be probated. the petitioner, on January 16th, filed an amended virtua1aw library
petition with an affidavit, adding to the original
2. ID.; ID.; ID. — With the application the original of application the following On January 20th, the petitioner filed a motion praying
the will must be presented or sufficient reasons given paragraph:jgc:chanrobles.com.ph that her amended petition be admitted, that a special
to justify the non- presentation of said original and the administrator and commissioners on appraisal be
acceptance of the copy or duplicate thereof. "That four typewritten copies of said will Exhibit A, all appointed and that Jose Azores and Manuel Azores
identically containing each and every provision thereof, Concordia be required to present in said case the
3. ID.; ID.; ID.; DISMISSAL OF THE APPLICATION. — were made, which were at once signed and subscribed copies of the will and the codicil that they had in their
Inasmuch as the foregoing requisites had not been by the testator and the instrumental witnesses, and possession. Before this motion was decided, the
complied with in the application filed by the petitioner, that after the will had been made, the testator Nicolas respondents, On January 21st, that is, 16 days after
the respondent judge did not exceed his jurisdiction in Azores designated nobody in particular as "custodian" their father’s death, presented the original of the will
dismissing the application in question, upon motion of thereof but instead he directed his nephew, Attorney and codicil made by the deceased Nicolas Azores, with
the custodian who had in his possession the original of Manuel Azores Concordia, to deliver a copy to the a petition docketed as case No. 3104, praying for the
the will and the codicil the respective probate of which petitioner Emerita Santos, to keep the other copy in his probate of said will and codicil.
has been applied for by him in a separate case. (Manuel Azores Concordia’s) possession, and to deliver
the other two copies to his son Jose Azores, with On the 23rd of said month, the petitioner’s motion of
instructions to the effect that if the herein petitioner January 20th was heard. It was opposed by the
Emerita Santos or his son Jose Azores failed to present respondents Azores on the ground that as the
DECISION said will for probate, he (Manuel Azores Concordia) jurisdiction of the court to pass upon the original
should take charge of presenting it to the court for said petition for probate filed by the petitioner is
purpose, as stated more particularly in the affidavit questioned, the amendment thereto could not legally
CONCEPCION, J.: Exhibit B. The copy Exhibit A belonged to the be considered until the previous question is decided by
petitioner."cralaw virtua1aw library the court. The respondents prayed that said original
petition of the petitioner be dismissed on the ground
This is a petition for a writ of certiorari to have this In said amended petition, the petitioner prayed that that as the originals of the will and codicil of the
court declare null and void the order issued by the Jose Azores and Manuel Azores Concordia be required deceased Azores had been presented together with a
respondent judge of the Court of First Instance of to present immediately, in said case No. 3101, the petition for the probate thereof, the petitioner’s
Laguna on January 26, 1937, dismissing the petition copies of the will in their possession as well as any defective petition was unfounded.
docketed therein as case No. 3101. Said petition had alleged codicil claimed by them to have been made by
been filed by the petitioner Emerita Santos, in her the testator. On the 26th of said month, the respondent Judge
Modesto Castillo issued the order in question, coercive means to compel a person having the custody discretion.
dismissing the petition filed by the petitioner which of a will to deliver it to the court having jurisdiction.
gave rise to the proceeding docketed as case No. 3101 The petitioner contends that instead of dismissing her
of the Court of First Instance of Laguna. The day The petitioner alleges that the deceased Azores application, the respondent judge should have
following the issuance of said order, the petitioner designated nobody as custodian of his will but that he compelled the respondents Azores to present the copy
excepted thereto and filed a motion for reconsideration directed his nephew Manuel Azores Concordia to of the will and the alleged codicil in case No. 3101. The
which was denied by the court. The petitioner excepted deliver a copy thereof to the petitioner, to preserve the court could not prudently do so: first, because in said
to the order denying her motion. other copy in his (Manuel Azores Concordia’s) case the petitioner applied for the probate of the will
possession, and to turn over the other two copies to and nothing more; and second, because the petitioner
It is alleged in the petitioner’s petition filed in this court his son Jose Azores, with instructions to the effect that has clearly stated that even if she had the codicil in her
that the respondent judge exceeded his jurisdiction if the petitioner or his son Jose Azores failed to present possession, she would not have presented it to the
and acted arbitrarily and irregularly in dismissing the said will for probate, he (Manuel Azores Concordia) court because said codicil was allegedly "marked", not
petition for probate filed by her in case No. 3101 as should take charge of presenting it to the court for said signed, by the testator about fifteen days before his
well as in ordering the publication of the notice of the purpose. Granting that the entire paragraph in death, that is, on a date when, according to the
hearing of the probate of the will in case No. 3104 question were true, with the exception of the medical opinion of Doctors Manuel B. Calupitan and
instituted by the Azores brothers and sister before the conclusion that the testator designated nobody as Fortunato Manzanero, he was physically and mentally
order of January 26, 1937, issued in said case No. custodian of his will, the petitioner is silent as to the incapacitated to govern his properties, thereby making
3101 became final. It is claimed that said judge also disposition made by the testator of the original of his it clearly understood that she would oppose the
exceeded his jurisdiction and acted arbitrarily and will. To whom was the original delivered? It is, of probate of the codicil in question. If such is the
irregularly in giving preference to the petition for course, evident that there must be an original of the petitioner’s attitude and intention, were the codicil
probate filed by the Azores brothers and sister, will in question even if four equal copies have been attached to case No. 3101, there would be the anomaly
disregarding the petition filed by the herein petitioner, made thereof. Well, one of the two copies of the will of her being applicant and at the same time oppositor
instead of ordering said respondents Jose Azores Et. Al. turned over to Jose Azores must be the original therein. Who would be the applicant for the probate of
to present their copies of the will and alleged codicil in because the respondents had the original of the will as the codicil? Could the court, or rather, would the court
case No. 3101. well as the codicil. The petitioner did not dispute this have authority to compel the legitimate children of the
fact. Taking this into account, we may conclude that it deceased Azores to appear as applicants in case No.
First of all, it is advisable to separate in this case the was Jose Azores, the son of the deceased, who had the 3101 where they have precisely questioned the
actuations of the respondent judge in case No. 3101 custody of the will because the original thereof was jurisdiction of the court?
from his actuations in case No. 3104. This court is of turned over to him. If in addition to the foregoing it is
the opinion that the petitioner is not entitled at all to considered that the respondents Azores also had the With respect to the court’s jurisdiction, this court finds
interpose this appeal in connection with case No. 3104 original of the codicil, it necessarily follows that, by that it is a fact impliedly admitted by the petitioner,
instituted by the legitimate children of the deceased provision of the testator, it was said respondents who from the time she presented an amended petition for
Azores, on the ground that she is not a party thereto had the custody of his will and of his codicil. the purpose of curing the deficiencies of her
and has not asked therein for the reconsideration of application, that the allegations of said application
the court’s order directing the publication of the notice For the sake of argument, however, let us admit that were insufficient to confer jurisdiction upon the court.
of the hearing of the probate of the will in said case the testator had designated nobody as custodian of his As said amendment had not been admitted by the
No. 3104. will in distributing the copies thereof and in entrusting court, the lack of jurisdiction continued to be manifest
his nephew Manuel Azores Concordia, as above-stated, upon the face of the proceedings.
With respect to case No. 3101, in order to decide the with the presentation of a copy of said will to the court
question whether or not the respondent judge for probate. Even so, it cannot be denied that as the Wherefore, this court holds in conclusion that in order
exceeded his jurisdiction in dismissing the petitioner’s testator had subsequently made his codicil and had that the court may acquire jurisdiction over the case
application, we should first consider who was entitled entrusted the custody thereof to his legitimate for the probate of a will and for the administration of
to apply for the probate of the will of Nicolas Azores. children, his last will, as to the custody of his will and the properties left by a deceased person, the
To get to the bottom of this question, it is necessary to codicil, was clearly modified in the sense of entrusting application must allege, in addition to the residence of
ascertain beforehand who was bound by law to apply the custody of both to his legitimate children and not the deceased and other indispensable facts or
for the probate of the will. to Manuel Azores Concordia or to the petitioner. circumstances, that the applicant is the executor
named in the will or is the person who had the custody
Section 625 of the Code of Civil Procedure provides Therefore, as the legitimate children of the deceased of the will to be probated. The original of said
that no will shall pass either the real or personal had custody of the originals of the will and of the document must be presented or sufficient reasons
estate, unless it is proved and allowed. For this codicil, they alone could, had the right and were bound given to justify the nonpresentation of said original and
purpose, section 626 provides that the person who has by law to apply for the probate of their father’s last the acceptance of the copy or duplicate thereof.
the custody of a will shall within thirty days after he will. Consequently, the respondent judge, in dismissing Inasmuch as these requisites had not been complied
knows of the death of the testator, deliver the will into the application presented by the petitioner, neither with in the application filed by the petitioner, the
the court which has jurisdiction, or to the executor exceeded his jurisdiction nor acted arbitrarily or respondent judge did not exceed his jurisdiction in
named in the will, and sections 628 and 629 prescribe irregularly, but reasonably made use of his sound dismissing the application in question.
 I concur in the conclusion that the extraordinary
The petition is denied, with the costs to the petitioner. remedy of certiorari does not lie in this case. Inasmuch On January 12, 1937, the petitioner filed the
So ordered. as the original of the will has been presented together corresponding affidavit in support of her motion for the
with the codicil, there should be only one testamentary appointment of a special administrator alleging inter
Avanceña, C.J., Villa-Real and Abad Santos, JJ., proceeding of the deceased in court and, therefore, the alia that the property of the deceased produced a
concur. court did not abuse its sound discretion in dismissing monthly income of around P5,000; that such produce
the first case arising from the application filed by the as well as around P150,000 in cash, and jewelry and
Separate Opinions petitioner. The jurisdiction of the court in a evidences of credit, were in the possession of the
testamentary proceeding is not separable and divisible legitimate children, and were in imminent danger of
into several cases. All proceedings having for their being lost or abstracted in view of the manifest hostility
IMPERIAL, J., concurring:chanrob1es virtual 1aw purpose the probate of the will, payment of the debts of said legitimate children to the children of the herein
library and other expenses of administration and distribution petitioner.
of the estate among the heirs instituted, should be
In my opinion, the question to be determined is not embodied in only one case, the only exception thereto At the hearing of the foregoing motion on January 13,
who had the custody of the will and was bound to being an ancillary proceeding. (Fraser v. Jennison; 106 1937, the legitimate children of the deceased entered
deliver it to the court for probate, but which will, U. S., 131; People v. Wayne Cir. Judge, 39 Mich., 198; their special appearance and objected to the
according to law, should be presented for said Glos v. Glos, 173 N.E., 604; In re Christensen’s Estate, jurisdiction of the court on the ground that the
purpose? Sections 614, 618, 619, 625, 626, 627, 628, 68 P., 112; In re Taggart’s Estate, 16 N. Y. S., 514; petitioner failed to allege that she was the custodian of
629, and 630 of the Code of Civil Procedure, which Austin First Nat. Bank v. Sharpe, 33 S. W., 676.) the will of the deceased. They further contended that
treat of the will and the presentation thereof to the the petitioner had no personality to petition for the
court for probate, refer to the original of the will and LAUREL, J., dissenting:chanrob1es virtual 1aw library probate of the will of the deceased because she was
not to the duplicates or copies which may be made not the custodian of said will; that the will presented
thereof. If the delivery has for its purpose the probate I regret that I find myself compelled to dissent from by her for probate was not the original but only a
of the will, the question of who is the custodian, holder the opinion of my brethren in this case. carbon copy of the same; and that said will did not
or possessor thereof is merely secondary, particularly express the last will and testament of the deceased
because such capacity, according to law, only gives rise At the risk of repetition, I desire to give a more because a codicil had been executed subsequently by
to the duty of presenting it to the court for probate, comprehensive statement of the facts for the purposes the testator, and hence said will cannot be probated
within the statutory period. of this dissent. without the codicil. Counsel further manifested to the
court their intention to file the original of the will and
Much importance is given to the custodian of the will Nicolas Azores, a wealthy resident of San Pablo, the codicil for probate as soon as the novenaire for
because there seems to be an attempt to convey the Laguna, died in the aforesaid municipality on January deceased shall have been terminated.
idea that it is he who should apply for the probate 5, 1937. His forced heirs were his legitimate children
thereof, but the above-cited sections confer no such named Jose, Sinforosa, and Antonio Azores, all of legal On January 16, 1937, the petitioner filed an amended
right upon said custodian. Section 630 expressly age and residents of San Pablo, Laguna, and his petition for the probate of the will of the deceased
provides that it is the court that must appoint hearing acknowledged natural children had by Emerita Santos, substantially reproducing the allegations of her original
for the probate of the will. The proposition can better named Bienvenido, Apolonia, Manuel, Juana, and petition with the additional allegation that the will
be illustrated by the case of a custodian who has a will Roberta Azores y Santos, all minors and also residents Exhibit A was executed and signed in quadruplicate
in his possession but has no interest whatsoever in the of San Pablo, Laguna. and delivered by the deceased to his nephew, Attorney
property of the testator because he is not a creditor Manuel Azores Concordia, who was instructed to keep
and has not been appointed executor thereof. Would On January 7, 1937, Emerita Santos, as legal guardian one copy for himself. and to give one copy to Emerita
there be any doubt that he cannot ask for the probate of the aforementioned natural children, filed with the Santos, and turn over the rest to Jose Azores, with the
of the will and that the duty imposed upon him by law Court of First Instance of Laguna a petition for the advertence that in case both Emerita Santos and Jose
ceases from the moment de delivers or presents the probate of a document attached thereto and marked Azores should fail to present the will for probate, said
will to the court? Exhibit A, as the last will and testament of Nicolas Attorney Concordia was to present said will for
Azores. She also prayed for the appointment of a probate, which facts were particularly set forth in the
It being alleged and admitted that there are four copies special administrator. This petition was registered as affidavit of Attorney Concordia attached to the
of the will, the logical and unavoidable conclusion is case No. 3101 of said court, the petitioner being amended petition and marked Exhibit B. It was also
that an original exists and that the other three are authorized by the court to litigate as a pauper. prayed that a special administrator be appointed after
either duplicates or copies thereof. If my foregoing hearing all the heirs, and that Jose Azores and Manuel
opinion is correct, as I understand it to be, it is the On January 9, 1937, herein petitioner filed a motion for Azores Concordia be ordered to submit to the court the
original that must be presented and consequently, the the appointment of Tomas Dizon as special copies of the will in their possession as well as any
will presented by the respondents is the one that administrator, the appointment of a committee on codicil which might have been posteriorly executed by
should be published and probated if it has all the claims and appraisals, and for the determination of the the deceased.
conditions required by law. monthly pension to which her children were entitled,
which motion was set for hearing on January 13, 1937. On January 19, 1937, the respondent judge denied the
petitioner’s motion for the appointment of a special this case by Atty. Blanco and of the petition of Atty. motion was denied on February 1, 1937. Petitioner also
administrator and at the same time ordered that Jose Recto dated January 21, 1937 wherein it appears that moved for the suspension of the publication ordered in
Azores deliver the will and codicil in his possession to the originals of the last will and testament and of the case No. 3104, on the ground that the order dismissing
the court within a peremptory period of ten days, as codicil of the deceased Nicolas Azores have already case No. 3101 had not yet become final, but said
follows:jgc:chanrobles.com.ph been presented to this court, together with a petition motion was not acted upon by the respondent judge.
signed by Jose Azores, Antonio Azores and Sinforosa
"Considering the petition of Atty. Jesus E. Blanco in Azores de Gomez, praying for the probate of the said Herein petitioner now comes before this court and asks
representation of petitioner Emerita Santos, for the last will and codicil, and it appearing further that the for the issuance of a writ of certiorari directing the
appointment of a special administrator in this case, and aforementioned petition of Atty. Recto was in fact filed respondent judge to elevate to this court the records of
the opposition filed thereto by Atty. Claro M. Recto in on January 21, 1937 under special proceedings No. cases Nos. 3101 and 3104 of the Court of First
representation of the children of the deceased in his 3104, entitled In re Testate Estate of the Deceased Instance of Laguna, that meanwhile the said court be
first marriage and considering further the arguments in Nicolas Azores; ordered to refrain from taking further proceedings in
favor of and against said petition given by the parties, case No. 3104 pending the resolution of the present
as well as the manifestation in open court made by "Without passing upon the merits of the various petition, and that thereafter this court declare the
Atty. Recto that the opponents will present for probate petitions filed by Atty. Blanco and as the court is of the order of the respondent judge of January 26, 1937
the original last will and testament of the deceased opinion that this case cannot stand alone without the dismissing case No. 3101, as well as his order of the
together with the codicil as soon as the novena for the codicil filed thereto, nor can the court oblige the same date setting case No. 3104 for hearing on
deceased is through; and taking into account the petitioners in special proceedings No. 3104 to abandon February 18, 1937 and ordering publication of notice of
period of time that has elapsed since the death of their petition duly filed with all the requisites of the law said hearing, null and void because they were issued
Nicolas Azores; in order to give way to the petition filed by Emerita without or in excess of his jurisdiction, and further
Santos, nor can this court allow these two proceedings requiring the respondent judge to reinstate case No.
"Said petition for the appointment of a special Nos. 3101 and 3104 to remain pending in the dockets, 3101 and continue taking cognizance of the said case.
administrator is hereby denied; and Jose Azores, under dealing as they are with the same subject matter; Petitioner alleges that she has no plain, speedy and
whose custody the last will and testament and all other adequate remedy at law by appeal or otherwise; she
documents having relation thereto are supposed to be, "It is, therefore, ordered, that this case No. 3101 be also prays for such other equitable relief to which she
is hereby ordered to deliver said papers to the court and is hereby dismissed without prejudice on the part might be entitled in the premises.
within ten (10) days from notice hereof; and the clerk of Atty. Blanco, in representation of Emerita Santos, to
of court ordered to send by registered mail copies of file similar petitions in special proceedings No. 3104 as Herein respondents in their answer reproduce all their
this order to the attorneys of both parties and also to to the appointment of a special administrator, the arguments advanced in the lower court against giving
Jose Azores for his information and all legal appointment of commissioners on claims and appraisal, due course to the petition for probate filed by herein
consequences. It is so ordered. and the payment of allowance to the natural children of petitioner in case No. 3101. As first special defense,
the deceased pending the settlement of the estate. respondents allege that herein petitioner does not posit
"Santa Cruz, Laguna, January 19, 1937. any question of jurisdiction which would serve as a
"Let the exception interposed by Atty. Blanco to the basis for the issuance of a writ of certiorari; that if the
(Sgd.) "MODESTO CASTILLO order of this court dated January 19, 1937 be made of lower court committed an error in dismissing
record; and the petition or the reconsideration of said petitioner’s petition for probate prematurely presented,
"Judge" order not being well founded, it is hereby denied. It is the same does not affect the jurisdiction of the lower
so ordered. court; that if the petitioner has the right, and the lower
On January 20, 1937, the petitioner filed another court has the duty, to continue the proceedings in case
motion asking for the admission of her amended "Santa Cruz, Laguna, January 26, 1937. No. 3101, the remedy available is the issuance of a
petition for the probate of the will of the deceased, writ of mandamus and not that of certiorari prayed for.
which motion was set for hearing on January 23, 1937. (Sgd.) ’MODESTO CASTILLO
As second special defense, respondents allege that as
On January 21, 1937, Jose Azores delivered to the "Judge" legitimate heirs they are the ones entitled to present
court the original copy of the will and the codicil the will and codicil of the deceased within thirty days
together with a petition for the probate o the same, Simultaneously with the issuance of the foregoing after the latter’s death as in fact they exercised such
subscribed by himself and his legitimate brother and order the respondent judge on January 26, 1937, right before the expiration of said period; that before
sister, which petition was registered as case No. 3104. dictated another order in case No. 3104 setting it for the expiration of said period of thirty days no other
hearing on February 18, 1937 and ordering publication person can supplant said respondents who had actual
On January 26, 1937, the respondent judge issued the of the corresponding notice of hearing in the custody of the will and codicil, in their exercise of the
following order dismissing the proceedings in case No. Philippines Herald. right to present the same for probate; that said
3101 instituted by the herein respondents are willing to concede the right of any
petitioner:jgc:chanrobles.com.ph On January 30, 1937 the petitioner moved for a other person to compel them to produce said will and
reconsideration of the order of the respondent judge of codicil before the court only in the eventuality that said
"Upon due consideration of the various petitions filed in January 26, 1937, in case No. 3101, and the said respondents refuse or fail to produce such will and
codicil within said period of thirty days, which is not the for the probate of a will and for the administration of petitioner was bound to produce the will of the
case in the instant proceedings, that the lower court, the properties left by a deceased person, the deceased in her possession as required by section 626
therefore, committed no error in dismissing case No. application must allege, in addition to the residence of of the Code of Civil Procedure aforementioned. This
3101 and in giving due course to case No. 3104 for the the deceased and other indispensable facts or brings us to the question as to whether the will Exhibit
reason that the jurisdiction of Courts of First Instance circumstances, that the applicant is the executor A in case No. 3101 is the will required by said section
in probate proceedings is special and limited and the named in the will or is the person who had the custody 626 to be delivered to the court having jurisdiction. (In
petitioner in any probate case is bound to comply with of the will to be probated. The original of said 22 Corpus Juris, P. 1024, sec. 1314, we find the
all the legal requisites necessary to confer such document must be presented or sufficient reasons following rule:jgc:chanrobles.com.ph
jurisdiction upon the court, and that such requisites given to justify the nonpresentation of said original and
have not been complied with by the petitioner herein: the acceptance of the copy or duplicate thereof. "Several Copies Produced at Same Time. — Where
because she has not and as a matter of fact she cannot Inasmuch as these requisites had not been complied several copies of a writing are made at the same time
allege that she is the custodian of the will of the with in the application filed by the petitioner, the by the same mechanical operation, each is regarded as
deceased; because the will which must be probated is respondent judge did not exceed his jurisdiction in an original and is admissible as such. The most usual
the original thereof and not a mere copy like that dismissing the application in question."cralaw application of this rule is found in the case of carbon
presented by the herein petitioner unless such original virtua1aw library copies, which are usually admitted as duplicate
copy has been lost or destroyed which has not been originals, but a distinction has been drawn with respect
alleged by the petitioner; because admitting that the The above conclusion seems sound viewed in the to instruments requiring signature, such as contracts, it
will submitted by the petitioner for probate is a abstract and detached from the pleadings, but being considered that where several carbon copies are
duplicate and not a mere copy the incontrovertible fact considered in the light of the facts and authorities made, all the copies are originals until signed, and
still remains that there is a codicil modifying the will hereinbelow referred to, it is, my humble opinion, when one is signed the other become copies with the
which codicil was not presented by the petitioner, and erroneous. It is predicated on what I consider is a signature missing."cralaw virtua1aw library
inasmuch as the will and the codicil jointly express the wrong premise as to the character of the document
last will and testament of the deceased, the will presented by the petitioner for probate in the It is to be observed that the will submitted by the
presented by the petitioner cannot be admitted to proceedings of the court below. petitioner, although apparently a carbon copy only, is
probate without the codicil; and because sections 626 signed by the testator and the attesting witnesses as
and 627 of our Code of Civil Procedure recognize only As well observed in another portion of the majority required by law, and is therefore as much an original
the custodian of the will or the executor named therein opinion (p. 6), the law governing the institution of document as the first copy. So long as the duplicate
as the only persons entitled to submit the will for probate proceedings in this jurisdiction is found in our original of the will presented by the petitioner fulfills
probate. Code of Civil Procedure (secs. 625 to 630). It is clear the requisites prescribed by section 618 of the Code of
from the provisions of this Code that an obligation is Civil Procedure as amended by section 1 of Act No.
As third special defense, respondents contend that the imposed on the custodian of the will, within thirty days 2645, therefore, it is perfectly admissible to probate,
questions herein submitted by the petitioner are purely after he knows of the death of the testator, to deliver unless of course it has been revoked. The majority of
academic; that there is no practical difference between the will into the court which has jurisdiction, or to the the court hold the contrary. Apparently, it accepts the
continuing the proceedings in case No. 3101 and executor named in the will (sec. 626, Code of Civil citations offered from 68 C. J., sec. 615, p. 886 which
continuing the proceedings in case No. 3104 and that if Procedure). The executor named in the will is also says:jgc:chanrobles.com.ph
the lower court chose the latter procedure it was charged with the duty to present such will to the court
because the codicil to the will was presented in case which has jurisdiction, unless the will has otherwise "Copies or Duplicates. — Except in the case of lost wills
No. 3104 which was not done in case No. 3101; and been returned to said court, within thirty days after he and wills already probated in another jurisdiction, and
that inasmuch as case No. 3104 has already been knows of the death of the testator, or within thirty days of a will of a resident made in a foreign jurisdiction and
given due course by the lower court, the present after he knows that he is named executor, if he which cannot be produced in the local court, probate of
petition has become a moot case. obtained such knowledge after knowing of the death of a copy or duplicate of a will, as a general rule, is
the testator, and within such period to signify to the neither necessary nor permissible, unless the other is
The supplementary petition of the petitioner for the court his acceptance of the trust or make known in produced or its absence satisfactorily explained. But is
issuance of preliminary injunction against the herein writing his refusal to accept it (sec. 627, Code of Civil has been held that two holographic wills, of even date
respondents ordering them to refrain from further Procedure). For neglect of such duties without and identical provisions, having the same subscribing
proceedings in case No. 3104, dated February 11, 1937 satisfactory excuse, the person so defaulting is liable to witnesses, and one marked "duplicate:, should both be
was denied by order of this court on February 13, a fine not exceeding one thousand dollars (sec. 628, admitted to probate."cralaw virtua1aw library
1937. Code of Civil Procedure); moreover, the custodian of
the will is further subject to commitment in prison in Examining the cases cited in support of the foregoing
Upon the merits, this court now denies the petition close confinement until he delivers the will, in case he rule, however, we find their ratio decidendi to be that
for certiorari. Its conclusion is expressed as follows: neglects to deliver the same to the court having where a will is executed in duplicate, only one of the
(Paragraph before the last on p. 10.) jurisdiction after notice by the court so to do (sec. 629, duplicates need be probated, but that the other must
Code of Civil Procedure). be produced in court, that it may be seen whether
"Wherefore, this court holds in conclusion that in order there has been any revocation, as a revocation of one
that the court may acquire jurisdiction over the case It behooves us to inquire, therefore, whether the part is a revocation of both, and whether each
completely contains the will of the testator. (Crossman probate primarily upon the executor named therein and administration of the estate of deceased persons (U. S.
v. Crossman, 95 N.Y., 145, 150; Roche v. Nason, 185 also upon the custodian of the will, there is nothing in v. Chiu Guimco, 36 Phil., 917, 921), and inasmuch as,
N. Y., 128; 77 N. E., 1007, 1008, In re Field’s Will, 178 our law which prohibits the heirs, or legatees of the on January 19, 1937, when the order under discussion
N. Y. S., 778; In re Schofield’s Will, 129 N. Y. S., 190, deceased or any other interested person, from was issued, the only petition for the probate of the will
193.) Upon the other hand, and as Professor Wigmore themselves filing a petition for the probate of his will. of Nicolas Azores and the administration of his estate
observes in his unprecedented treatise on Evidence. As a matter of fact it is immaterial as far as practice is before the court was filed by herein petitioner in case
"original" is a relative term only" and that in order to concerned, by whom a will is presented for probate (68 No. 3101, the logical inference is that said order was
state the rule, then, in terms which will indicate in the C. J., sec. 605, p. 879), the only restriction being "that issued by the lower court in the exercise of its probate
rule itself what documents are included in its scope, it before any person may intervene in proceedings had in jurisdiction in case No. 3101.
must be noted that the production required is the the Courts of First Instance for the probate of a will, he
production of the document whose contents are to be should be required to show an interest in the will or in The lower court having acquired and exercised
proved in the state of the issues." (Vol. II, 2d ed., par. the property affected thereby either as executor or jurisdiction over case No. 3101, has it exceeded its
1232, p. 830.) otherwise; and that strangers should not be permitted, jurisdiction in ordering the dismissal of said case in
over the objection of the real parties in interest, to order to give way to the hearing of another petition for
That the petitioner had custody of the will submitted by embarrass the proceedings by meddling or intruding the probate of the said will (Case No. 3104) which was
her for probate is presumed from her physical themselves in matters with which they have no filed only on January 21, 1937 or two weeks after the
possession of the same which made possible its concern." (Paras v. Narciso, 35 Phil., 244, 246.) And no institution of proceedings in case No. 3101? The
introduction in court. Moreover, the amended petition one can gainsay that herein petitioner as legal respondent judge reasons out that he cannot compel
filed by the petitioner on January 16, 1937, in case No. guardian and in behalf of the acknowledged natural the legitimate children to abandon their petition for
3101 incorporates the affidavit of Attorney Manuel children of the deceased, had sufficient interest to probate registered as case No. 3104. And, apparently,
Azores Concordia who apparently prepared the will in intervene in proceedings for the probate of the will of to do justice to them, the respondent judge had to do
question, stating that Nicolas Azores executed and the deceased, apart from her duty to so present the an injustice to herein petitioner and to compel her to
signed his will in quadruplicate and instead of duplicate original of said will in her possession for abandon her petition for probate registered as case No.
designating a particular person to keep said will, said probate. 3101. We find no warrant in law for such an irregular
Nicolas Azores instructed the affiant to deliver one procedure.
copy to herein petitioner, to keep one copy for himself It is to be further observed that to present a will for
and turn over the rest of the copies to Jose Azores, and probate is one thing, and proving said will is another This court has held in the case of Dais v. Court of First
in the event that herein petitioner or Jose Azores thing. By order of the court dated January 19, 1937, Instance of Capiz (51 Phil., 396, 401) that an answer
should fail to present said will for probate after the Jose Azores actually delivered to the court the in a cadastral proceeding, which partakes of the nature
testator’s death, said affiant was to institute the proper "original" of the will and the codicil in his possession. A of a complaint in an ordinary action, can only be
proceedings for such probate. The amended petition codicil, as I understand it, is necessarily a modification, dismissed by a failure to prosecute, by default, by
further prays for the issuance of an order directing qualification, addition or supplement to an existing last abandonment, or by defects provided by laws as
Manuel Azores Concordia and Jose Azores to deliver to will or testament. It does not supersede the will as an grounds for a demurrer (secs. 100 and 127, Code of
the court the copies of the will and the alleged codicil after-made will but, logically and legally, is a part of it Civil Procedure); and therefore a motion for dismissal
in their possession. to be considered with it as one instrument and cannot, that is not based on any of said grounds does not
as a rule, be authenticated independently of the will. confer jurisdiction on the court to dismiss the
It was not necessary for the petitioner to allege the The codicil should therefore follow the principal complaint, and if it does so, it exceeds its powers. This
fact that she had custody of the will submitted by her instrument. But independently of the question of court also held in the aforesaid
for probate in order to confer jurisdiction upon the whether a will can be proved without the codicil, the case:jgc:chanrobles.com.ph
probate court to consider her petition, for the delivery delivery of said codicil has given the lower court
of the will to the court is the operative act which sufficient jurisdiction to allow or disallow the same in "In ordering the dismissal of the answers presented by
confers upon the probate court the jurisdiction to connection with the probate of the will as petitioned in the judicial administrator of the intestate estate of
conduct a hearing on the allowance of said will (sec. case No. 3101. Serapion Dais, in the name of the latter’s heirs,
630, Code of Civil Procedure), the only restriction being notwithstanding their opposition and for a cause not
that the will shall be delivered and probed in the Court That the lower court acquired jurisdiction over the provided by law as a ground for dismissal, the
of First Instance in the province in which the testator estate of the deceased Nicolas Azores is fully respondent court did really exceed its jurisdiction;
resided at the time of his death (sec. 600, Code of Civil demonstrated by its order of January 19, 1937 denying because it is not enough that a court have jurisdiction
Procedure) which fact was sufficiently alleged in the petitioner’s motion for the appointment of a special over the subject matter in litigation and the parties,
petition for probate registered as case No. 3101 of the administrator and ordering Jose Azores to deliver his but it is necessary that it have authority in and over
Court of First Instance of Laguna and which fact is no copy of the will to the court with the codicil alleged to each and every one of the essential particulars of the
less emphasized in the conclusion of the majority have been made by the deceased subsequent to the case.
opinion (p. 10, decision). execution of the will. An order to produce a will before
the court under section 629 of the Code of Civil "In the case of Larrobis v. Wislizenus and Smith, Bell &
It is to be observed that while the law imposes the Procedure can not be made by the court motu proprio Co. (42 Phil., 401), this court laid down the doctrine
duty of presenting the will of a deceased person for except in the exercise of its jurisdiction over the that the erroneous exercise of interlocutory powers is
irregular and justifies the institution board, or officer has not regularly pursued its technical and irrelevant distinction between expediente
of certiorari proceedings." (Italics mine.) authority, it shall thereupon give final judgment, either No. 3101 and 3104 (pp. 5-6, decision) for the purposes
affirming, or annulling, or modifying the proceedings of the remedy sought in this case? Why refer to the
"And on page 104 of volume 11 of Corpus Juris, the below, as the law requires. Said section, applying immaterial objection of the petitioner being applicant
following rule may be found:jgc:chanrobles.com.ph to certiorari proceedings, directs the superior court, and oppositor in case No. 3104 (p. 9, decision) and
when an inferior court, board, or officer has not overlook the irregularity and substantial injustice to the
". . . But it has been held that ’any departure from the regularly followed the law, to annul the proceedings petitioner? Moreover, if the petitioner is compelled to
recognized and established requirements of law, and direct the inferior tribunal, etc., etc., to follow the abandon her petition in case No. 3101, she will play a
however close the apparent adherence to mere form in law. secondary role in the probate of the will of the
method of procedure, which has the effect to deprive deceased, which would not be the case if case No.
one of a constitutional right is as much an excess of "The doctrine has been frequently announced that 3101 is continued for in the latter case she has the role
jurisdiction as where there is an inceptive lack of although a court may have unquestioned jurisdiction of principal actor. And this is of no mean practical
power.’" (51 Phil., 396, 402.) (Italics mine.) over the principal cause of action, it may nevertheless importance in the prosecution of her case. And, apart
act irregularly or in excess of its jurisdiction during the from the material damage, does she not — as anybody
In granting the remedy of certiorari in the case of course of the proceedings in granting an auxiliary else would in her place — suffer a moral injury which is
Conde v. Judge of First Instance and Fiscal of Tayabas remedy. In such a case the party aggrieved may incapable of pecuniary estimation, that of undeserved
(45 Phil., 173), this court also prosecute a proceeding by the writ of certiorari in the humiliation consequent upon the dismissal of her case
held:jgc:chanrobles.com.ph Supreme Court. (Herrera v. Barretto and Joaquin, 25 without any valid legal ground? To say the least, strong
Phil., 245; Leung Ben v. O’Brien, 38 Phil., 182.)" (41 reasons of public policy demand that the administration
". . . Without attempting to deny the facts, the Phil., 45, 48.) (Italics mine.) While certiorari as an of justice should be a matter of legal right and
contention of the law officer of the government is, that extraordinary legal remedy is therefore generally conscientious application of legal principles.
the trial judge had jurisdiction of the proceedings, and restricted to the correction of excess and defects of
consequently said jurisdiction should not be interfered jurisdiction, it has been extended to the correction of In view of the foregoing, I am of the opinion that the
with. What was said by this court in the case of Herrera abuse of discretion in appropriate cases. writ of certiorari should be granted.
v. Barretto and Joaquin ([1913], 25 Phil., 245), to the
effect that the appellate court will not issue a writ In the case at bar, the lower court had jurisdiction over DIAZ, J.:
of certiorari unless it clearly appears that the court to the subject matter, and the persons in case No. 3101;
which it was directed acted without or in excess of in fact, and as already observed hereinabove, it did
jurisdiction, is a good rule. In one sense, it is correct to exercise that jurisdiction by issuing the order of I concur in the preceding dissenting opinion of Justice
say that the Court of First Instance of Tayabas had January 19, 1937 by requiring the production of the Laurel.
jurisdiction of this case. In another sense, it is likewise copy of the will and the codicil alleged to be in the
correct to say that the writ of certiorari and prohibition possession of Jose Azores. Having exercised that
will issue when necessary to the accomplishment of jurisdiction and proceeded to take cognizance of the
justice in the particular case. There is here more than case, the dismissal thereof must be based on some
mere error in procedure. There is an abuse of legal ground. The subsequent filing of another petition
discretion in the application of the law. The discretion in case No. 3104 on the allegation that the applicant
vested in the fiscal and trial judge is not an arbitrary therein had the "original," which in reality is but one of
power and must be exercised wisely and impartially in the quadruplicates and the codicil, is not a legal ground
accordance with the law. Errors in the proceedings for the dismissal of the case. This seems very clear to
prejudicial to defendant’s substantial rights which me.
would, if the case were to proceed and appeal were to
be taken, constitute ground for reversal, exist in this From another angle, it is reasonable to presume that
case." (45 Phil., 173, 177.) (Italics mine.) the petitioner has incurred some expenses in
connection with the preparation of her petition, for
Moreover, in the case of Salvador Campos y Cia v. Del which she has engaged the services of counsel, and the
Rosario (41 Phil., 45), this court clearly enunciated the hardship which the petitioner had to suffer to protect
office of the writ of certiorari as correcting an irregular the interests of her minor children is made more
exercise by a court of its authority or jurisdiction in a apparent when we consider that the petitioner was
particular case, as follows:jgc:chanrobles.com.ph allowed by the lower court to litigate as a pauper. Time
and again we have spoken of social justice! Needless to
"Section 220 of Act No. 190 provides, say, all the trouble undergone by her will be set to
in certiorari proceedings, that the court shall hear the naught, at least in so far as the prosecution of the case
parties and determine whether the inferior tribunal, originally filed by her is concerned, if the order of the
board, or officer has regularly pursued its authority; lower court dismissing her petition in case No. 3101, is
and if it (the court) finds that said inferior tribunal, allowed to stand. Why permit this result? Why make a
G.R. No. 77047 May 28, 1988 Mercedes R-Infante Roxas de Lednicky On 14 May 1986, petitioners filed a motion for reconsideration
residing at #386 P. Guevarra St., San of the order of 12 May 1986 alleging that, as named legatees,
Juan, Metro Manila; no notices were sent to them as required by Sec. 4, Rule 76 of
JOAQUINA R-INFANTE DE ARANZ, ANTONIO R-INFANTE,
the Rules of Court and they prayed that they be given a period
CARLOS R. INFANTE, MERCEDES R-INFANTE DE
of ten (10) days within which to file their opposition to the
LEDNICKY, ALFREDO R-INFANTE, TERESITA R-INFANTE, Alfredo R-Infante Roxas residing at #27 A
probate of the will.
RAMON R-INFANTE, FLORENCIA R-INFANTE DE DIAS, Scout Tobias St., Quezon City, Metro
MARTIN R-INFANTE, JOSE R-INFANTE LINK and JOAQUIN Manila;
R-INFANTE CAMPBELL, petitioners, On 30 May 1986, the probate court, acting on the opposition of
vs. private respondent and the reply thereto of petitioners, issued
Teresita R-Infante Roxas residing at #121
THE HON. NICOLAS GALING, PRESIDING JUDGE, an order denying petitioners motion for reconsideration.
9th Street, New Manila, Quezon City,
REGIONAL TRIAL COURT, NATIONAL CAPITAL JUDICIAL
Metro Manila;
REGION, BRANCH NO. 166, PASIG, METRO MANILA AND
Thereafter, petitioners filed with this Court a petition for
JOAQUIN R-INFANTE, respondents.
certiorari and prohibition which was, however, referred to the
Ramon R-Infante Roxas residing at #27 B
Court of Appeals. On 13 January 1987, the Court of Appeals
Scout Tobias St., Quezon City, Metro
Belo, Abiera and Associates for petitioners. promulgated a decision dismissing the petition. 5 Hence, the
Manila;
instant petition.
Miguel J. Lagman for respondents.
Florencia R-Infante Roxas de Diaz residing
It is the view of petitioners that the Court of Appeals erred in
at Calle Sancho Davila, 13-19-D, Madrid,
holding that personal notice of probate proceedings to the
28028 Spain;
known legatees and devisees is not a jurisdictional requirement
in the probate of a will. Contrary to the holding of the Court of
PADILLA, J.: Martin R-Infante Roxas residing at #2 Appeals that the requirement of notice on individual heirs,
Bongavilla St., Cubao, Quezon City, Metro legatees and devisees is merely a matter of procedural
Manila; convenience to better satisfy in some instances the
This is a petition for review on certiorari of the decision 1 of the requirements of due process, petitioners allege that under Sec.
Court of Appeals, dated 13 January 1987, in CA-G.R. SP No. 4 of Rule 76 of the Rules of Court, said requirement of the law
09622, entitled "Joaquina R-Infante de Aranz, et al., petitioners Jose R-Infante Link residing at 174R- is mandatory and its omission constitutes a reversible error for
vs. Hon. Nicolas Galing, etc., et al., respondents," dismissing Pascual St., San Juan, Metro Manila; being constitutive of grave abuse of discretion. 6
petitioners' petition for certiorari and prohibition as-, sailing the
orders 2 of the Regional Trial Court of Pasig, Branch 166, dated
Joaquin R-Infante Campbell C/O Pilar
12 May 1986 and 30 May 1986, respectively, in Sp. Proc. No. We grant the petition:
Campbell, 15 Briones, Makati, Metro
9995, entitled, "In the Matter of Petition for Approval of the Last
Marta. 3
Will and Testament of Montserrat R-Infante y G-Pola Joaquin Sec. 4, Rule 76 of the Rules of Cof reads:
R. Infante, Petitioner."
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 SEC. 4. Heirs, devisees, legatees, and
On 3 March 1986, private respondent filed with the Regional executors to be notified by mail or
morning. Said order was published in the "Nueva Era" A
Trial Court of Pasig, Branch 166, a petition for the probate and personally. — The court shag also cause
newspaper of general circulation in Metro Manila once a week
allowance of the last will and testament of the late Montserrat copies of the notice of the time and place
for three (3) consecutive weeks. On the date of the hearing, no
R-Infante y G-Pola The petition specified the names and ad- fixed for proving the will to be addressed to
oppositor appeared. The hearing was then reset to 12 May
dresses of herein petitioners as legatees and devisees, as the designated or other known heirs,
1986, on which date, the probate court issued the following
follows: legatees, and devisees of the testator
order:
resident in the Philippines at their places of
Joaquina R-Infante Roxas de Aranz residence, and deposited in the post office
There being no opposition to this instant
residing at No. 86 10th St., New Manila, with the postage thereon prepaid at least
case, as prayed for, the oner to-receive
Quezon City, Metro Manila; twenty (20) days before the hearing, if
Branch Clerk of Court is hereby designated such places of residence be known. A
Co evidence ex-parte of the petitioner. copy of the notice must in like manner be
Antonio R-Infante Roxas residing at #91 mailed to the person named as executor, if
Cambridge, North Forbes, Makati, Metro he be not, the petitioner; also, to any
SO ORDERED. 4
Manila; person named as co-executor not
petitioning, if their places of residence be
On the same day (12 May 1986), private respondent presented known. Personal service of copies of the
Carlos R-Infante Roxas residing at #46
his evidence ex-parte and placed Arturo Arceo one of the notice at least ten (10) days before the day
Washington St., Greenhills, San Juan,
testamentary witnesses, on the witness stand. During the of hearing shall be equivalent to mailing.
Metro Manila;
proceedings, private respondent was appointed executor.
It is clear from the aforecited rule that notice of the time and court of Amoy, China, may be likened to a 6 Petition, p. 13.
place of the hearing for the allowance of a will shall be deposition or to a perpetuation of
forwarded to the designated or other known heirs, legatees, testimony, and even if it were so it does
7 Annex F, Rollo, pp. 38-39.
and devisees residing in the Philippines at their places of not measure or come up to the standard of
residence, if such places of residence be known. There is no such proceedings in the Philippines for
question that the residences of herein petitioners legatees and lack of notice to all interested parties and 8 87 Phil. 337.
devisees were known to the probate court. The petition for the the proceedings were held at the back of
allowance of the wig itself indicated the names and addresses such interested parties.
9 Ibid., pp. 339-340
of the legatees and devisees of the testator. 7 But despite such
knowledge, the probate court did not cause copies of the notice
xxx xxx xxx
to be sent to petitioners. The requirement of the law for the 10 95 Phil. 500.
allowance of the will was not satisfied by mere publication of
the notice of hearing for three (3) weeks in a newspaper of ... In view thereof, the will and the alleged
general circulation in the province. 11 Ibid., pp. 511-512.
probate thereof cannot be said to have
been done in accordance with the
accepted basic and fundamental concepts
The case of Joson vs. Nable 8 cited by the Court of Appeals in
and principles followed in the probate and
its assailed decision to support its theory is not applicable in
allowance of wills. Consequently, the
the present case. In that case, petitioners Purificacion Joson
authenticated transcript of proceedings
and Erotica Joson failed to contest the will of Tomas Joson
held in the municipal district court of Amoy,
because they had not been notified of the hearing of the
China, cannot be deemed and accepted as
petition for probate. he the petition included the residence of
proceedings leading to the probate or
petitioners as Dagupan Street No. 83, Manila, petitioners
allowance of a will and, therefore, the will
claimed that their residence was not Dagupan Street No. 83,
referred to therein cannot be allowed, filed
Manila. There the Court said:
and recorded by a competent court of
court. 11
Petitioners maintain that no notice was
received by them partly because their
WHEREFORE, the decision of the Court of Appeals dated 13
residence was not Dagupan Street No. 83
January 1987 is hereby ANNULLED and SET ASIDE. The
as alleged in the petition for probate. If the
case is hereby ordered remanded to the Regional Trial Court of
allegation of the petition was wrong and
Pasig for further proceedings in accordance with this decision.
the true residence of petitioners was not
No costs.
known, then notice upon them individually
was not necessary. Under the provision
abovequoted, individual notice upon heirs, SO ORDERED.
legatees and devisees is necessary only
when they are known or when their places
Yap (Chairman), Melencio-Herrera, Paras and Sarmiento, JJ.,
of residence are known. In other instances,
concur.
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
Footnotes
In Re: Testate Estate of Suntay, 10 the Court, speaking thru Mr.
Justice Sabino Padilla, said:
1 Penned by Justice Jose A.R. Melo.
Justices Ricardo L. Pronove and Oscar M.
... It is a proceedings in rem and for the Herrera, concurring.
validity of such proceedings personal
notice or by publication or both to all
interested parties must be made. The 2 Issued by Judge Nicolas Galing.
interested parties in the case were known
to reside in the Philippines. The evidence 3 Decision of the Court of Appeals, p. 2.
shows that no such notice was received by
the interested parties residing in the
Philippines (pp. 474, 476, 481, 503-4, 4 Annex G, Rollo, p. 40.
t.s.n., hearing of 24 February 1948). The
proceedings had in the municipal district 5 Rollo, pp. 24-29.
G.R. No. L-42226             July 26, 1935

In re estate of the deceased Ines Basa de Mercado.

JOAQUINA BASA, ET AL., petitioners-appellants,
vs.
ATILANO G. MERCADO, respondent-appellee.

Briones and Martinez for appellants.

Jose Gutierrez David for appellee.

GODDARD, J.:

By virtue of an order dated June 27, 1931, the Honorable

Hermogenes Reyes, Judge of the Court of First Instance of
Pampanga, allowed and probated the last will and testament of
Ines Basa, deceased. On January 30, 1932, the same judge
approved the account of the administrator of the estate,
declared him the only heir of the deceased under the will and
closed the administration proceedings. On April 11, 1934, the
herein petitioners-appellants filed a motion in which they
prayed that said proceedings be reopened and alleged that the
court lacked jurisdiction to act in the matter because there was
a failure to comply with requirements as to the publication of
the notice of hearing prescribed in the following section of the
Code of Civil Procedure:

SEC. 630. Court to appoint hearing on will. — When

a will is delivered to a court having jurisdiction of the
same, the court shall appoint a time and place when
all concerned may appear to contest the allowance
of the will, and shall cause public notice thereof to be
given by publication in such newspaper or
newspapers as the court directs of general
circulation in the province, three weeks successively,
previous to the time appointed, and no will shall be
allowed until such notice has been given. At the
hearing all testimony shall be taken under oath,
reduced to writing and signed by the witnesses.

In this motion the appellants claim that the provisions of section

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

Section 630 of our Code of Civil Procedure is taken from the

Code of Civil Procedure of the State of Vermont. The Supreme
Court of that State, commenting on the phrase "three weeks
successively", held:
 The date of examining and allowing P.A. Barlett's Furthermore no attempt has been made to prove that it was a
final account of administration, and for decreeing the newspaper devoted to the interests or published for the
residue of the estate to the lawful claimants of the entertainment of a particular class, profession, trade, calling,
same, was set by the probate court for December 19, race or religious denomination. The fact that there is another
1919, at the probate office in Brighton, and an order paper published in Pampanga that has a few more subscribers
was made to this effect on November 28, 1919. The (72 to be exact) and that certain Manila dailies also have a
order provided also that notice should be given by larger circulation in that province is unimportant. The law does
publication for three weeks successively in the Essex not require that publication of the notice, referred to in the Code
County Herald. In accordance with this order, the of Civil Procedure, should be made in the newspaper with the
notice was published in the issues for December 4, largest numbers is necessary to constitute a newspaper of
11 and 18, respectively. This was "public notice" to general circulation.
all persons interested of the time and place of
examining and allowing said account and making
The assignments of error of the appellants are overruled and
decree of distribution, and was sufficient under the
the appealed order of the trial court is affirmed with costs in this
provisions of G.L. 3276. (Lenehen vs. Spaulding, 57
instance against the appellants.
Vt., 115.) "The proceeding was according to law in all
respects, and being in the nature of a proceeding in
rem, it binds everybody by its legal effect." Malcolm, Villa-Real, Imperial, and Butte, JJ., concur.
(Burbeck vs. Little, 50 Vt., 713.) At the time and
place set for the hearing none of the petitioners or
other legatees under the will of Nickerson Warner
appeared. Thereupon the judge of probate then and
there continued the hearing until April 6, 1920, at
which time the final account of P.A .Barlett as
administrator de bonis non with will annexed was
filed and, no one appearing to object, the same was
allowed, and the decree of distribution was entered.
(In re Warner's Estate [Supreme Court of Vermont]
1925; 127 Atl. Rep., 362, 364; 98 Vt., 254, 261.)

It will be noted that in the above cited case the last of the three
publications was on December 18, 1919, and the hearing on
the administrators's final account was set for December 19 of
that year, only fifteen days after the date of the first publication.

In view of the foregoing, it is held that the language used in

section 630 of the Code of Civil Procedure does not mean that
the notice, referred to therein, should be published for three full
weeks before the date set for the hearing on the will. In other
words the first publication of the notice need not be made
twenty-one days before the day appointed for the hearing.

The appellants also contend that the trial court erred in ruling
that the weekly newspaper, Ing Katipunan, in which the notice
of hearing was published, was a newspaper of general
circulation in the Province of Pampanga.

The record shows that Ing Katipunan is a newspaper of general

circulation in view of the fact that it is published for the
dissemination of local news and general information; that it has
a bona fide subscription list of paying subscribers; that it is
published at regular intervals and that the trial court ordered
the publication to be made in Ing Katipunan precisely because
it was a "newspaper of general circulation in the Province of
Pampanga."
G.R. No. L-12190             August 30, 1958 From the oppositor's proof it appears that Felicidad Esguerra
(Lagda) Felicidad E. Alto-Yap. had been suffering from heart disease for several years before
her death; that she had been treated by prominent physicians,
TESTATE ESTATE OF FELICIDAD ESGUERRA ALTO-YAP
Dr. Agerico Sison, Dr. Agustin Liboro and others; that in May
deceased. FAUSTO E. GAN, petitioner-appellant, Opposing the petition, her surviving husband Ildefonso Yap 1950 husband and wife journeyed to the United States wherein
vs. asserted that the deceased had not left any will, nor executed for several weeks she was treated for the disease; that
ILDEFONSO YAP, oppositor-appellee. any testament during her lifetime. thereafter she felt well and after visiting interesting places, the
couple returned to this country in August 1950. However, her
Benedicto C. Belran, Crispin D. Baizas and Roberto H. Benitez After hearing the parties and considering their evidence, the ailment recurred, she suffered several attacks, the most
for appellant. Hon. Ramon R. San Jose, Judge,1 refused to probate the serious of which happened in the early morning of the first
Arturo M. Tolentino for appellee. alleged will. A seventy-page motion for reconsideration failed. Monday of November 1951 (Nov. 5). The whole household was
Hence this appeal. surprised and alarmed, even the teachers of the Harvardian
Colleges occupying the lower floors and of by the Yap
BENGZON, J.: spouses. Physician's help was hurriedly called, and Dr.
The will itself was not presented. Petitioner tried to establish its Tanjuaquio arrived at about 8:00 a.m., found the patient hardly
On November 20, 1951, Felicidad Esguerra Alto Yap died of contents and due execution by the statements in open court of breathing, lying in bed, her head held high by her husband.
heart failure in the University of Santo Tomas Hospital, leaving Felina Esguerra, Primitivo Reyes, Socorro Olarte and Rosario Injections and oxygen were administered. Following the
properties in Pulilan, Bulacan, and in the City of Manila. Gan Jimenez, whose testimonies may be summarized as doctor's advice the patient stayed in bed, and did nothing the
follows: whole day, her husband and her personal attendant, Mrs.
Bantique, constantly at her side. These two persons swore that
On March 17, 1952, Fausto E. Gan initiated them proceedings Mrs. Felicidad Esguerra Yap made no will, and could have
in the Manila court of first instance with a petition for the Sometime in 1950 after her last trip abroad, Felicidad Esguerra
mentioned to her first cousin, Vicente Esguerra, her desire to made no will on that day.
probate of a holographic will allegedly executed by the
deceased, substantially in these words: make a will. She confided however that it would be useless if
her husband discovered or knew about it. Vicente consulted The trial judge refused to credit the petitioner's evidence for
with Fausto E. Gan, nephew of Felicidad, who was then several reasons, the most important of which were these: (a) if
preparing for the bar examinations. The latter replied it could according to his evidence, the decedent wanted to keep her will
Nobyembre 5, 1951.
be done without any witness, provided the document was a secret, so that her husband would not know it, it is strange
entirely in her handwriting, signed and dated by her. Vicente she executed it in the presence of Felina Esguerra, knowing as
Esguerra lost no time in transmitting the information, and on she did that witnesses were unnecessary; (b) in the absence of
Ako, si Felicidad E. Alto-Yap, may asawa, at ganap the strength of it, in the morning of November 5, 1951, in her a showing that Felina was a confidant of the decedent it is hard
na pag-iisip, ay nagsasalaysay na ang aking residence at Juan Luna Street, Manila, Felicidad wrote, signed to believe that the latter would have allowed the former to see
kayamanan sa bayan ng Pulilan, Bulacan ay aking and dated a holographic will substantially of the tenor above and read the will several times; (c) it is improbable that the
ipinamamana sa aking mga kamag-anakang transcribed, in the presence of her niece, Felina Esguerra decedent would have permitted Primitivo Reyes, Rosario Gan
sumusunod: (daughter of Vicente), who was invited to read it. In the Jimenez and Socorro Olarte to read her will, when she
afternoon of that day, Felicidad was visited by a distant relative, precisely wanted its contents to remain a secret during her
Vicente Esguerra, Sr. ............................................. Primitivo Reyes, and she allowed him to read the will in the lifetime; (d) it is also improbable that her purpose being to
presence of Felina Esguerra, who again read it. conceal the will from her husband she would carry it around,
Fausto E. Gan .........................................................
even to the hospital, in her purse which could for one reason or
Rosario E. Gan .........................................................Nine days later, he had other visitors: Socorro Olarte a cousin, another be opened by her husband; (e) if it is true that the
and Rosario Gan Jimenez, a niece. To these she showed the husband demanded the purse from Felina in the U.S.T.
Filomena Alto ..........................................................
will, again in the presence of Felina Esguerra, who read it for Hospital and that the will was there, it is hard to believe that he
Beatriz Alto ..............................................................
the third time. returned it without destroying the will, the theory of the
petitioner being precisely that the will was executed behind his
back for fear he will destroy it.
At ang aking lahat ng ibang kayamanan sa Maynila When on November 19, 1951, Felicidad was confined at the
at iba panglugar ay aking ipinamamana sa aking U.S.T. Hospital for her last illness, she entrusted the said will,
asawang si Idelfonso D. Yap sa kondisyong siya'y which was contained in a purse, to Felina Esguerra. But a few In the face of these improbabilities, the trial judge had to accept
magpapagawa ng isang Health Center na hours later, Ildefonso Yap, her husband, asked Felina for the the oppositor's evidence that Felicidad did not and could not
nagkakahalaga ng di kukulangin sa halagang purse: and being afraid of him by reason of his well-known have executed such holographic will.
P60,000.00 sa bayan ng Pulilan, Bulacan, na violent temper, she delivered it to him. Thereafter, in the same
nakaukit ang aking pangalang Felicidad Esguerra- day, Ildefonso Yap returned the purse to Felina, only to In this appeal, the major portion of appellant's brief discussed
Alto. At kung ito ay may kakulangan man ay bahala demand it the next day shortly before the death of Felicidad. the testimony of the oppositor and of his witnesses in a
na ang aking asawa ang magpuno upang matupad Again, Felina handed it to him but not before she had taken the vigorous effort to discredit them. It appears that the same
ang aking kagustuhan. purse to the toilet, opened it and read the will for the last time.2 arguments, or most of them, were presented in the motion to
reconsider; but they failed to induce the court a quo to change
its mind. The oppositor's brief, on the other hand, aptly answers
the criticisms. We deem it unnecessary to go over the same holographic will" says the New Civil Code, "it shall be The Rules of Court, (Rule 77) approved in 1940 allow proof
matters, because in our opinion the case should be decided not necessary that at least one witness who knows the handwriting (and probate) of a lost or destroyed will by secondary —
on the weakness of the opposition but on the strength of the and signature of the testator explicitly declare that the will and evidence the testimony of witnesses, in lieu of the original
evidence of the petitioner, who has the burden of proof. the signature are in the handwriting of the testator. If the will is document. Yet such Rules could not have contemplated
contested, at least three such witnesses shall be required. In holographic wills which could not then be validly made here.
the absence of any such witnesses, (familiar with decedent's (See also Sec. 46, Rule 123; Art. 830-New Civil Code.)
The Spanish Civil Code permitted the execution of holographic
handwriting) and if the court deem it necessary, expert
wills along with other forms. The Code of Civil Procedure (Act
testimony may be resorted to."
190) approved August 7, 1901, adopted only one form, thereby Could Rule 77 be extended, by analogy, to holographic wills?
repealing the other forms, including holographic wills.
The witnesses so presented do not need to have seen the
Spanish commentators agree that one of the greatest
execution of the holographic will. They may be mistaken in their
The New Civil Code effective in 1950 revived holographic wills objections to the holographic will is that it may be lost or
opinion of the handwriting, or they may deliberately lie in
in its arts. 810-814. "A person may execute a holographic will stolen4 — an implied admission that such loss or theft renders it
affirming it is in the testator's hand. However, the oppositor
which must be entirely written, dated, and signed by the hand useless..
may present other witnesses who also know the testator's
of the testator himself. It is subject to no other form and may be
handwriting, or some expert witnesses, who after comparing
made in or out of the Philippines, and need not be witnessed."
the will with other writings or letters of the deceased, have This must be so, because the Civil Code requires it to be
come to the conclusion that such will has not been written by protocoled and presented to the judge, (Art. 689) who shall
This is indeed a radical departure from the form and the hand of the deceased. (Sec. 50, Rule 123). And the court, subscribe it and require its identity to be established by the
solemnities provided for wills under Act 190, which for fifty in view of such contradictory testimony may use its own visual three witnesses who depose that they have no reasonable
years (from 1901 to 1950) required wills to be subscribed by sense, and decide in the face of the document, whether the will doubt that the will was written by the testator (Art. 691). And if
the testator and three credible witnesses in each and every submitted to it has indeed been written by the testator. the judge considers that the identity of the will has been proven
page; such witnesses to attest to the number of sheets used he shall order that it be filed (Art. 693). All these, imply
and to the fact that the testator signed in their presence and presentation of the will itself. Art. 692 bears the same
Obviously, when the will itself is not submitted, these means of
that they signed in the presence of the testator and of each implication, to a greater degree. It requires that the surviving
opposition, and of assessing the evidence are not available.
other. spouse and the legitimate ascendants and descendants be
And then the only guaranty of authenticity3 — the testator's
summoned so that they may make "any statement they may
handwriting — has disappeared.
desire to submit with respect to the authenticity of the will." As it
The object of such requirements it has been said, is to close
is universally admitted that the holographic will is usually done
the door against bad faith and fraud, to prevent substitution of
Therefore, the question presents itself, may a holographic will by the testator and by himself alone, to prevent others from
wills, to guarantee their truth and authencity
be probated upon the testimony of witnesses who have knowing either its execution or its contents, the above article
(Abangan vs. Abangan, 40 Phil., 476) and to avoid those who
allegedly seen it and who declare that it was in the handwriting 692 could not have the idea of simply permitting such relatives
have no right to succeed the testator would succeed him and
of the testator? How can the oppositor prove that such to state whether they know of the will, but whether in the face
be benefited with the probate of same. (Mendoza vs. Pilapil, 40
document was not in the testator's handwriting? His witnesses of the document itself they think the testator wrote it.
Off. Gaz., 1855). However, formal imperfections may be
who know testator's handwriting have not examined it. His Obviously, this they can't do unless the will itself is presented
brushed aside when authenticity of the instrument is duly
experts can not testify, because there is no way to compare the to the Court and to them.
proved. (Rodriguez vs Yap, 40 Off. Gaz. 1st Supp. No. 3 p.
alleged testament with other documents admittedly, or proven
194.)
to be, in the testator's hand. The oppositor will, therefore, be
Undoubtedly, the intention of the law is to give the near
caught between the upper millstone of his lack of knowledge of
relatives the choice of either complying with the will if they think
Authenticity and due execution is the dominant requirements to the will or the form thereof, and the nether millstone of his
it authentic, or to oppose it, if they think it spurious.5 Such
be fulfilled when such will is submitted to the courts for inability to prove its falsity. Again the proponent's witnesses
purpose is frustrated when the document is not presented for
allowance. For that purpose the testimony of one of the may be honest and truthful; but they may have been shown a
their examination. If it be argued that such choice is not
subscribing witnesses would be sufficient if there is no faked document, and having no interest to check the
essential, because anyway the relatives may oppose, the
opposition (Sec. 5, Rule 77). If there is, the three must testify, if authenticity thereof have taken no pains to examine and
answer is that their opposition will be at a distinct
available. (Cabang vs. Delfinado, 34 Phil., 291; compare. Or they may be perjurers boldly testifying, in the
disadvantage, and they have the right and privilege to comply
Tolentino vs. Francisco, 57 Phil., 742). From the testimony of knowledge that none could convict them of perjury, because no
with the will, if genuine, a right which they should not be denied
such witnesses (and of other additional witnesses) the court one could prove that they have not "been shown" a document
by withholding inspection thereof from them.
may form its opinion as to the genuineness and authenticity of which they believed was in the handwriting of the deceased. Of
the testament, and the circumstances its due execution. course, the competency of such perjured witnesses to testify as
to the handwriting could be tested by exhibiting to them other We find confirmation of these ideas--about exhibition of the
writings sufficiently similar to those written by the deceased; document itself--in the decision of the Supreme Court of Spain
Now, in the matter of holographic wills, no such guaranties of but what witness or lawyer would not foresee such a move and of June 5, 1925, which denied protocolization or probate to a
truth and veracity are demanded, since as stated, they need no prepare for it? His knowledge of the handwriting established, document containing testamentary dispositions in the
witnesses; provided however, that they are "entirely written, the witness (or witnesses) could simply stick to his statement: handwriting of the deceased, but apparently mutilated, the
dated, and signed by the hand of the testator himself." The law, he has seen and read a document which he believed was in signature and some words having been torn from it. Even in the
it is reasonable to suppose, regards the document itself as the deceased's handwriting. And the court and the oppositor face of allegations and testimonial evidence (which was
material proof of authenticity, and as its own safeguard, since it would practically be at the mercy of such witness (or controverted), ascribing the mutilation to the opponents of the
could at any time, be demonstrated to be — or not to be — in witnesses) not only as to the execution, but also as to the will. The aforesaid tribunal declared that, in accordance with
the hands of the testator himself. "In the probate of a contents of the will. Does the law permit such a situation? the provision of the Civil Code (Spanish) the will itself, whole
and unmutilated, must be presented; otherwise, it shall produce Ripert, Derecho Civil Frances, traduccion por Diaz Cruz, 1946, added to the several objections to this kind of wills listed by
no effect. Tomo V, page 555). Castan, Sanchez Roman and Valverde and other well-known
Spanish Commentators and teachers of Civil Law.10
Considerando que sentado lo anterior, y Taking all the above circumstances together, we reach the
estableciendose en el parrafo segundo del articulo conclusion that the execution and the contents of a lost or One more fundamental difference: in the case of a lost will, the
688 del Codigo civil, que para que sea valido el destroyed holographic will may not be proved by the bare three subscribing witnesses would be testifying to a fact which
testamento olografo debera estar escrito todo el y testimony of witnesses who have seen and/or read such will.8 they saw, namely the act of the testator of subscribing the will;
firmado por testador, con expression del año, mes y whereas in the case of a lost holographic will, the witnesses
dia en que se otorque, resulta evidente que para la would testify as to their opinion of the handwriting which they
Under the provisions of Art. 838 of the New Civil Code, we are
validez y eficacia de esos testamentos, no basta la allegedly saw, an opinion which can not be tested in court, nor
empowered to adopt this opinion as a Rule of Court for the
demostracion mas o menos cumplida de que cuando directly contradicted by the oppositors, because the
allowance of such holographic wills. We hesitate, however, to
se otorgaron se Ilenaron todos esos requisitos, sino handwriting itself is not at hand.
make this Rule decisive of this controversy, simultaneously
que de la expresada redaccion el precepto legal, y
with its promulgation. Anyway, decision of the appeal may rest
por el tiempo en que el verbo se emplea,
on the sufficiency, rather the insufficiency, of the evidence Turning now to the evidence presented by the petitioner, we
se desprende la necesidad de que el documento se
presented by petitioner Fausto E. Gan. find ourselves sharing the trial judge's disbelief. In addition to
encuentre en dichas condiciones en el momento de
the dubious circumstances described in the appealed decision,
ser presentado a la Autoridad competente, para au
we find it hard to believe that the deceased should show her
adveracion y protocolizacion; y como consecuencia At this point, before proceeding further, it might be convenient
will precisely to relatives who had received nothing from it:
ineludible de ello, forzoso es affirmar que el de autos to explain why, unlike holographic wills, ordinary wills may be
Socorro Olarte and Primitivo Reyes. These could pester her
carece de validez y aficacia, por no estarfirmado por proved by testimonial evidence when lost or destroyed. The
into amending her will to give them a share, or threaten to
el testador, cualquiera que sea la causa de la falta difference lies in the nature of the wills. In the first, the only
reveal its execution to her husband Ildefonso Yap. And this
de firma, y sin perjuicio de las acciones que puedan guarantee of authenticity is the handwriting itself; in the
leads to another point: if she wanted so much to conceal the
ejercitar los perjudicados, bien para pedir second, the testimony of the subscribing or instrumental
will from her husband, why did she not entrust it to her
indemnizacion por el perjuicio a la persona culpable, witnesses (and of the notary, now). The loss of the holographic
beneficiaries? Opportunity to do so was not lacking: for
si la hubiere, o su castigo en via criminal si will entails the loss of the only medium of proof; if the ordinary
instance, her husband's trip to Davao, a few days after the
procediere, por constituir dicha omision un defecto will is lost, the subscribing witnesses are available to
alleged execution of the will.
insubsanable . . . . authenticate.

In fine, even if oral testimony were admissible to establish and

This holding aligns with the ideas on holographic wills in the In the case of ordinary wills, it is quite hard to convince three
probate a lost holographic will, we think the evidence submitted
Fuero Juzgo, admittedly the basis of the Spanish Civil Code witnesses (four with the notary) deliberately to lie. And then
by herein petitioner is so tainted with improbabilities and
provisions on the matter.6 their lies could be checked and exposed, their whereabouts
inconsistencies that it fails to measure up to that "clear and
and acts on the particular day, the likelihood that they would be
distinct" proof required by Rule 77, sec. 6.11
called by the testator, their intimacy with the testator, etc. And if
PRECEDENTES LEGALES--Fuero Juzgo, libro
they were intimates or trusted friends of the testator they are
segundo, titulo V, ley 15--E depues que los
not likely to end themselves to any fraudulent scheme to distort Wherefore, the rejection of the alleged will must be sustained.
herederos e sus fijos ovieren esta manda, fasta ...
his wishes. Last but not least, they can not receive anything on
annos muestrenla al obispo de la tierra, o al juez
account of the will.
fasta VI meses y el obispo o el juez tomen otros Judgment affirmed, with costs against petitioner.
tales tres escritos, que fuesen fechos por su mano
daquel que fizo la manda; e por aquellos escriptos, si Whereas in the case of holographic wills, if oral testimony were
Paras, C. J., Padilla, Montemayor, Reyes, A., Bautista Angelo,
semjara la letra de la manda, sea confirmada la admissible9 only one man could engineer the fraud this way:
Concepcion, Reyes, J. B. L., Endencia and Felix, JJ., concur.
manda. E depues que todo esto fuere connoscido, el after making a clever or passable imitation of the handwriting
obispo o el juez, o otras testimonios confirmen el and signature of the deceased, he may contrive to let three
escripto de la manda otra vez, y en esta manera vala honest and credible witnesses see and read the forgery; and
la manda. (Art. 689, Scaevola--Codigo Civil.) the latter, having no interest, could easily fall for it, and in court
they would in all good faith affirm its genuineness and
authenticity. The will having been lost — the forger may have
(According to the Fuero above, the will itself must be compared
purposely destroyed it in an "accident" — the oppositors have Footnotes
with specimens of the testators handwriting.)
no way to expose the trick and the error, because the
document itself is not at hand. And considering that the 1
 Now a member of the Court of Appeals.
All of which can only mean: the courts will not distribute the holographic will may consist of two or three pages, and only
property of the deceased in accordance with his holographic one of them need be signed, the substitution of the unsigned
will, unless they are shown his handwriting and signature.7 pages, which may be the most important ones, may go 2
 The contents of the alleged will are for the purposes
undetected. of this decision, immaterial.
Parenthetically, it may be added that even the French Civil Law
considers the loss of the holographic will to be fatal. (Planiol y If testimonial evidence of holographic wills be permitted, one
more objectionable feature — feasibility of forgery — would be
3
 "Una forma de testamento" (holographic will) "en la
que toda la garantia consiste en la letra del testador."
(Scaevola, Codigo Civil, Tomo 12, p. 348.)

4
 V. Sanchez Roam, Derecho Civil (2nd Ed.) (1910)
Vol. 6 pp. 343, 350; Castan, Derecho Civil Español
(1944) Tomo 4 p. 337; Valverde, Derecho Civil
(1939) Vol. 5, p. 77.

5
 V. Sanchez Roman Op. Cit. Vol. 6, p. 357.

6
 Manresa, Codigo Civil, 1932, Vol. 5, p. 481.

7
 We have no doubt that this concept and these
doctrines concerning the Spanish Civil Code apply to
our New Civil Code, since the Commission in its
Report (p. 52) merely "revived" holographic wills, i.e.,
those known to the Spanish Civil Law, before Act
190.

8
 Perhaps it may be proved by a photographic or
photostatic copy. Evena mimeographed or carbon
copy; or by other similar means, if any, whereby the
authenticity of the handwriting of the deceased may
be exhibited and tested before the probate court.

9
 We are aware of some American cases that
admitted lost holographic wills, upon verbal
testimony. (Sec. 41, American Law Reports, 2d. pp.
413, 414.) But the point here raised was not
discussed. Anyway it is safer to follow, in this matter,
the theories of the Spanish law.

 Justice Jose B. L. Reyes, professor of Civil Law,

10

makes this Comment:

"Holographic wills are peculiarly dangerous kin case

of persons who have written very title. The validity of
these wills depends, exclusively on the authenticity
of handwriting, and if writing standards are not
procurable, or not contemporaneous, the courts are
left to the mercy of the mendacity of witnesses. It is
questionable whether the recreation of the
holographic testament will prove wise." (Lawyer's
Journal, Nov. 30, 1950, pp. 556-557.)

11
 Intestate of Suntay, 50 Off. Gaz., 5321.
G.R. No. L-58509 December 7, 1982 (4 ) The deceased did not leave any will, MOREOVER, this Court notes that the
holographic or otherwise, executed and alleged holographic will was executed on
attested as required by law. January 25, 1962 while Ricardo B. Bonilla
IN THE MATTER OF THE PETITION TO APPROVE THE
died on May 13, 1976. In view of the lapse
WILL OF RICARDO B. BONILLA deceased, MARCELA
of more than 14 years from the time of the
RODELAS, petitioner-appellant, The appellees likewise moved for the
execution of the will to the death of the
vs. consolidation of the case with another
decedent, the fact that the original of the
AMPARO ARANZA, ET AL., oppositors-appellees, ATTY. case Sp. Proc. No, 8275). Their motion
will could not be located shows to our mind
LORENZO SUMULONG, intervenor. was granted by the court in an order dated
that the decedent had discarded before his
April 4, 1977.
death his allegedly missing Holographic
Luciano A. Joson for petitioner-appellant. Will.
On November 13, 1978, following the
consolidation of the cases, the appellees
Cesar Paralejo for oppositor-appellee. Appellant's motion for reconsideration was denied. Hence, an
moved again to dismiss the petition for the
appeal to the Court of Appeals in which it is contended that the
probate of the will. They argued that:
dismissal of appellant's petition is contrary to law and well-
settled jurisprudence.
(1) The alleged holographic was not a last
RELOVA, J.: will but merely an instruction as to the
On July 7, 1980, appellees moved to forward the case to this
management and improvement of the
Court on the ground that the appeal does not involve question
schools and colleges founded by decedent
This case was certified to this Tribunal by the Court of Appeals of fact and alleged that the trial court committed the following
Ricardo B. Bonilla; and
for final determination pursuant to Section 3, Rule 50 of the assigned errors:
Rules of Court.
(2) Lost or destroyed holographic wills
I. THE LOWER COURT ERRED IN
cannot be proved by secondary evidence
As found by the Court of Appeals: HOLDING THAT A LOST HOLOGRAPHIC
unlike ordinary wills.
WILL MAY NOT BE PROVED BY A COPY
THEREOF;
... On January 11, 1977, appellant filed a Upon opposition of the appellant, the
petition with the Court of First Instance of motion to dismiss was denied by the court
Rizal for the probate of the holographic will II. THE LOWER COURT ERRED IN
in its order of February 23, 1979.
of Ricardo B. Bonilla and the issuance of HOLDING THAT THE DECEDENT HAS
letters testamentary in her favor. The DISCARDED BEFORE HIS DEATH THE
petition, docketed as Sp. Proc. No. 8432, The appellees then filed a motion for MISSING HOLOGRAPHIC WILL;
was opposed by the appellees Amparo reconsideration on the ground that the
Aranza Bonilla, Wilferine Bonilla Treyes order was contrary to law and settled
III. THE LOWER COURT ERRED IN
Expedita Bonilla Frias and Ephraim Bonilla pronouncements and rulings of the
DISMISSING APPELLANT'S WILL.
on the following grounds: Supreme Court, to which the appellant in
turn filed an opposition. On July 23, 1979,
the court set aside its order of February The only question here is whether a holographic will which was
(1) Appellant was estopped from claiming 23, 1979 and dismissed the petition for the lost or cannot be found can be proved by means of a
that the deceased left a will by failing to probate of the will of Ricardo B. Bonilla. photostatic copy. Pursuant to Article 811 of the Civil Code,
produce the will within twenty days of the The court said: probate of holographic wills is the allowance of the will by the
death of the testator as required by Rule court after its due execution has been proved. The probate
75, section 2 of the Rules of Court; may be uncontested or not. If uncontested, at least one
... It is our considered opinion that once
Identifying witness is required and, if no witness is available,
the original copy of the holographic will is
(2) The alleged copy of the alleged experts may be resorted to. If contested, at least three
lost, a copy thereof cannot stand in lieu of
holographic will did not contain a Identifying witnesses are required. However, if the holographic
the original.
disposition of property after death and was will has been lost or destroyed and no other copy is available,
not intended to take effect after death, and the will can not be probated because the best and only
therefore it was not a will In the case of Gam vs. Yap, 104 Phil. 509, evidence is the handwriting of the testator in said will. It is
522, the Supreme Court held that 'in the necessary that there be a comparison between sample
matter of holographic wills the law, it is handwritten statements of the testator and the handwritten will.
(3) The alleged hollographic will itself,and But, a photostatic copy or xerox copy of the holographic will
reasonable to suppose, regards the
not an alleged copy thereof, must be may be allowed because comparison can be made with the
document itself as the material proof of
produced, otherwise it would produce no standard writings of the testator. In the case of Gam vs. Yap,
authenticity of said wills.
effect, as held in Gam v. Yap, 104 Phil. 104 PHIL. 509, the Court ruled that "the execution and the
509; and contents of a lost or destroyed holographic will may not be
proved by the bare testimony of witnesses who have seen
and/or read such will. The will itself must be presented;
otherwise, it shall produce no effect. The law regards the
document itself as material proof of authenticity." But, in
Footnote 8 of said decision, it says that "Perhaps it may be
proved by a photographic or photostatic copy. Even a
mimeographed or carbon copy; or by other similar means, if
any, whereby the authenticity of the handwriting of the
deceased may be exhibited and tested before the probate
court," Evidently, the photostatic or xerox copy of the lost or
destroyed holographic will may be admitted because then the
authenticity of the handwriting of the deceased can be
determined by the probate court.

WHEREFORE, the order of the lower court dated October 3,

1979, denying appellant's motion for reconsideration dated
August 9, 1979, of the Order dated July 23, 1979, dismissing
her petition to approve the will of the late Ricardo B. Bonilla, is
hereby SET ASIDE.

SO ORDERED.

Teehankee, Actg. C.J., Melencio-Herrera, Plana, Vasquez and

Gutierrez, Jr., JJ., concur.