G.R. No.

16680

September 13, 1920

BROADWELL
HAGANS,
petitioner,
vs.
ADOLPH WISLIZENUS, Judge of First Instance
of Cebu, ET AL., respondents.
Block, Johnston & Greenbaum for petitioner.
The respondent judge in his own behalf.
No appearance for the other respondents.
JOHNSON, J.:
This is an original petition, presented in the Supreme
Court, for writ of certiorari. The facts alleged in the
petition are admitted by a demurrer. The only
question presented is, whether or not a judge of the
Court of First Instance, in "special proceedings," is
authorized under the law to appoint assessors for the
purpose of fixing the amount due to an administrator
or executor for his services and expenses in the care,
management, and settlement of the estate of a
deceased person.
The respondent judge, in support of his demurrer,
argues that the provision of Act No. 190 permit him
to appoint assessors in "special proceedings," The
petitioner contends that no authority in law exists for
the appointment of assessors in such proceedings.
The only provisions of law which authorize the
appointment of assessors are the following; (a)
Section 57-62 of Act No. 190; (b) sections 153-161
of Act No. 190; (c) section 44 (a) of Act No. 267; (d)
section 2477 of Act No. 2711; and (e) section 2 of
Act No. 2369.
Said section 44 (a) of Act No. 267 and section 2477
of Act No. 2711 apply to the city of Manila only. Act
No. 2369 provides for the appointment of assessors in
criminal cases only. Sections 57-62 of Act No. 190
provide for the appointment of assessors in the court
of justice of the peace. Therefore, the only provisions
of law which could, by any possibility, permit the
appointment of assessors in "special proceedings" are
sections 153-161 of Act No. 190.

Section 154 provides that "either party to an action

may apply in writing to the judge for assessors to sit
in the trial. Upon the filing of such application, the
judge shall direct that assessors be provided, . . . ."
Is a "special proceeding," like the present, an
"action"? If it is, then, the court is expressly
authorized by said section 154 to appoint assessors.
But we find, upon an examination of section 1 of Act
No. 190, which gives us an interpretation of the
words used in said Act, that a distinction is made
between an "action" and a "special proceeding." Said
section 1 provides that an "action" means an ordinary
suit in a court of justice, while "every other remedy
furnished by law is a 'special proceeding."
In view of the interpretation given to the words
"action" and "special proceeding" by the Legislature
itself, we are driven to the conclusion that there is a
distinction between an "action" and a "special
proceeding," and that when the Legislature used the
word "action" it did not mean "special proceeding."
There is a marked distinction between an "action"
and a "special proceeding. "An action is a formal
demand of one's legal rights in a court of justice in
the manner prescribed by the court or by the law. It is
the method of applying legal remedies according to
definite established rules. (People vs. County Judge,
13 How. Pr. [N. Y.], 398.) The term "special
proceeding" may be defined as an application or
proceeding to establish the status or right of a party,
or a particular fact. (Porter vs. Purdy, 29 N. Y., 106,
110; Chapin vs. Thompson, 20 Cal., 681.) Usually, in
special proceedings, no formal pleadings are
required, unless the statute expressly so provides. The
remedy in special proceedings is generally granted
upon an application or motion. Illustrations of special
proceedings, in contradistinction to actions, may be
given: Proceedings for the appointment of an
administrator, guardians, tutors; contest of wills; to
perpetuate testimony; to change the name of persons;
application for admission to the bar, etc., etc. (Bliss
on Code Pleading, 3d ed., sec. 1.)
From all of the foregoing we are driven to the
conclusion that in proceedings like the present the
judge of the Court of First Instance is without

authority to appoint assessors. Therefore, the

demurrer is hereby overruled and the prayer of the
petition is hereby granted, and it is hereby ordered
and decreed that the order of the respondent judge
appointing the assessors described in the petition be
and the same is hereby annulled and set aside; and,
without any finding as to costs, it is so ordered.
Araullo, Malcolm, Avancea, Moir and Villamor, JJ.,
concur.

SECOND DIVISION
G.R. No. 133000

October 2, 2001

PATRICIA
NATCHER,
petitioner,
vs.
HON. COURT OFAPPEALS AND THE HEIR OF
GRACIANO DEL ROSARIO LETICIA DEL
ROSARIO, EMILIA DEL RESORIO
MANANGAN, ROSALINDA FUENTES LLANA,
RODOLFO FUENTES, ALBERTO FUENTES,
EVELYN DEL ROSARIO, and EDUARDO DEL
ROSARIO, respondent..
BUENA, J.:
May a Regional Trial Court, acting as a court of
general jurisdiction in an action for reconveyance
annulment of title with damages, adjudicate matters
relating to the settlement of the estate of a deceased
person particularly on questions as to advancement of
property made by the decedent to any of the heirs?
Sought to be reversed in this petition for review on
certiorari under Rule 45 is the decision1 of public
respondent Court of Appeals, the decretal portion of
which declares:
"Wherefore in view of the foregoing
considerations, judgment appealed from is
reversed and set aside and another one
entered annulling the Deed of Sale executed
by Graciano Del Rosario in favor of
defendant-appellee Patricia Natcher, and
ordering the Register of Deeds to Cancel

TCT No. 186059 and reinstate TCT No.

107443 without prejudice to the filing of a
special proceeding for the settlement of the
estate of Graciano Del Rosario in a proper
court. No costs.
"So ordered."
Spouses Graciano del Rosario and Graciana Esguerra
were registered owners of a parcel of land with an
area of 9,322 square meters located in Manila and
covered by Transfer Certificate of Title No. 11889.
Upon the death of Graciana in 1951, Graciano,
together with his six children, namely: Bayani,
Ricardo, Rafael, Leticia, Emiliana and Nieves,
entered into an extrajudicial settlement of Graciana's
estate on 09 February 1954 adjudicating and dividing
among themselves the real property subject of TCT
No. 11889. Under the agreement, Graciano received
8/14 share while each of the six children received
1/14 share of the said property. Accordingly, TCT No.
11889 was cancelled, and in lieu thereof, TCT No.
35980 was issued in the name of Graciano and the
Six children.1wphi1.nt
Further, on 09 February 1954, said heirs executed and
forged an "Agreement of Consolidation-Subdivision
of Real Property with Waiver of Rights" where they
subdivided among themselves the parcel of land
covered by TCT No. 35980 into several lots.
Graciano then donated to his children, share and
share alike, a portion of his interest in the land
amounting to 4,849.38 square meters leaving only
447.60 square meters registered under Graciano's
name, as covered by TCT No. 35988. Subsequently,
the land subject of TCT No. 35988 was further
subdivided into two separate lots where the first lot
with a land area of 80.90 square meter was registered
under TCT No. 107442 and the second lot with a land
area of 396.70 square meters was registered under
TCT No. 107443. Eventually, Graciano sold the first
lot2 to a third person but retained ownership over the
second lot.3
On 20 March 1980, Graciano married herein
petitioner Patricia Natcher. During their marriage,
Graciano sold the land covered by TCT No. 107443
to his wife Patricia as a result of which TCT No.

1860594 was issued in the latter's name. On 07

October 1985,Graciano died leaving his second wife
Patricia and his six children by his first marriage, as
heirs.
In a complaint5 filed in Civil Case No. 71075 before
the Regional Trial Court of Manila, Branch 55, herein
private respondents alleged that upon Graciano's
death, petitioner Natcher, through the employment of
fraud, misrepresentation and forgery, acquired TCT
No. 107443, by making it appear that Graciano
executed a Deed of Sale dated 25 June 19876 in favor
herein petitioner resulting in the cancellation of TCT
No. 107443 and the issuance of TCT no. 186059 in
the name of Patricia Natcher. Similarly, herein private
respondents alleged in said complaint that as a
consequence of such fraudulent sale, their legitimes
have been impaired.
In her answer7 dated 19 August 1994, herein
petitioner Natcher averred that she was legally
married to Graciano in 20 March 1980 and thus,
under the law, she was likewise considered a
compulsory heir of the latter. Petitioner further
alleged that during Graciano's lifetime, Graciano
already distributed, in advance, properties to his
children, hence, herein private respondents may not
anymore claim against Graciano's estate or against
herein petitioner's property.
After trial, the Regional Trial Court of Manila,
Branch 55, rendered a decision dated 26 January
1996 holding:8
"1) The deed of sale executed by the late
Graciano del Rosario in favor of Patricia
Natcher is prohibited by law and thus a
complete nullity. There being no evidence
that a separation of property was agreed
upon in the marriage settlements or that
there has been decreed a judicial separation
of property between them, the spouses are
prohibited from entering (into) a contract of
sale;
"2) The deed as sale cannot be likewise
regarded as a valid donation as it was

equally prohibited by law under Article 133

of the New Civil Code;
"3) Although the deed of sale cannot be
regarded as such or as a donation, it may
however be regarded as an extension of
advance inheritance of Patricia Natcher
being a compulsory heir of the deceased."
On appeal, the Court of Appeals reversed and set
aside the lower court's decision ratiocinating, inter
alia:
"It is the probate court that has exclusive
jurisdiction to make a just and legal
distribution of the estate. The court a quo,
trying an ordinary action for reconveyance /
annulment of title, went beyond its
jurisdiction when it performed the acts
proper only in a special proceeding for the
settlement of estate of a deceased person.
XXX
"X X X Thus the court a quo erred in
regarding the subject property as advance
inheritance. What the court should have
done was merely to rule on the validity of
(the) sale and leave the issue on
advancement to be resolved in a separate
proceeding instituted for that purpose.
XXX"
Aggrieved, herein petitioner seeks refuge under our
protective mantle through the expediency of Rule 45
of the Rules of Court and assails the appellate court's
decision "for being contrary to law and the facts of
the case."
We concur with the Court of Appeals and find no
merit in the instant petition.
Section 3, Rule 1 of the 1997 Rules of Civil
Procedure defines civil action and special
proceedings, in this wise:
"XXX a) A civil action is one by which a
party sues another for the enforcement or

protection of a right, or the prevention or

redress of a wrong.

independently of a pending action, by

petition or motion upon notice."10

"A civil action may either be ordinary or

special. Both are government by the rules
for ordinary civil actions, subject to specific
rules prescribed for a special civil action.

Applying these principles, an action for reconveyance

and annulment of title with damages is a civil action,
whereas matters relating to settlement of the estate of
a deceased person such as advancement of property
made by the decedent, partake of the nature of a
special proceeding, which concomitantly requires the
application of specific rules as provided for in the
Rules of Court.

"XXX
"c) A special proceeding is a remedy by
which a party seeks to establish a status, a
right or a particular fact."
As could be gleaned from the foregoing, there lies a
marked distinction between an action and a special
proceeding. An action is a formal demand of one's
right in a court of justice in the manner prescribed by
the court or by the law. It is the method of applying
legal remedies according to definite established rules.
The term "special proceeding" may be defined as an
application or proceeding to establish the status or
right of a party, or a particular fact. Usually, in
special proceedings, no formal pleadings are required
unless the statute expressly so provides. In special
proceedings, the remedy is granted generally upon an
application or motion."9
Citing American Jurisprudence, a noted authority in
Remedial Law expounds further:
"It may accordingly be stated generally that
actions include those proceedings which are
instituted and prosecuted according to the
ordinary rules and provisions relating to
actions at law or suits in equity, and that
special
proceedings
include
those
proceedings which are not ordinary in this
sense, but is instituted and prosecuted
according to some special mode as in the
case of proceedings commenced without
summons and prosecuted without regular
pleadings, which are characteristics of
ordinary actions. XXX A special proceeding
must therefore be in the nature of a distinct
and independent proceeding for particular
relief, such as may be instituted

Clearly, matters which involve settlement and

distribution of the estate of the decedent fall within
the exclusive province of the probate court in the
exercise of its limited jurisdiction.
Thus, under Section 2, Rule 90 of the Rules of Court,
questions as to advancement made or alleged to have
been made by the deceased to any heir may be heard
and determined by the court having jurisdiction of
the estate proceedings; and the final order of the
court thereon shall be binding on the person raising
the questions and on the heir.
While it may be true that the Rules used the word
"may", it is nevertheless clear that the same
provision11 contemplates a probate court when it
speaks of the "court having jurisdiction of the estate
proceedings".
Corollarily, the Regional Trial Court in the instant
case, acting in its general jurisdiction, is devoid of
authority to render an adjudication and resolve the
issue of advancement of the real property in favor of
herein petitioner Natcher, inasmuch as Civil Case No.
471075 for reconveyance and annulment of title with
damages is not, to our mind, the proper vehicle to
thresh out said question. Moreover, under the present
circumstances, the RTC of Manila, Branch 55 was
not properly constituted as a probate court so as to
validly pass upon the question of advancement made
by the decedent Graciano Del Rosario to his wife,
herein petitioner Natcher.
At this point, the appellate court's disquisition is
elucidating:

"Before a court can make a partition and

distribution of the estate of a deceased, it
must first settle the estate in a special
proceeding instituted for the purpose. In the
case at hand, the court a quo determined the
respective legitimes of the plaintiffsappellants and assigned the subject property
owned by the estate of the deceased to
defendant-appellee without observing the
proper proceedings provided (for) by the
Rules of Court. From the aforecited
discussions, it is clear that trial courts trying
an ordinary action cannot resolve to perform
acts pertaining to a special proceeding
because it is subject to specific prescribed
rules. Thus, the court a quo erred in
regarding the subject property as an advance
inheritance."12
In resolving the case at bench, this Court is not
unaware of our pronouncement in Coca vs.
Borromeo13 and Mendoza vs. Teh14 that whether a
particular matter should be resolved by the Regional
Trial Court (then Court of First Instance) in the
exercise of its general jurisdiction or its limited
probate jurisdiction is not a jurisdictional issue but a
mere question of procedure. In essence, it is
procedural question involving a mode of practice
"which may be waived".15
Notwithstanding, we do not see any waiver on the
part of herein private respondents inasmuch as the six
children of the decedent even assailed the authority
of the trail court, acting in its general jurisdiction, to
rule on this specific issue of advancement made by
the decedent to petitioner.
Analogously, in a train of decisions, this Court has
consistently enunciated the long standing principle
that although generally, a probate court may not
decide a question of title or ownership, yet if the
interested parties are all heirs, or the question is one
of collation or advancement, or the parties consent
to the assumption of jurisdiction by the probate court
and the rights of third parties are not impaired, then
the probate court is competent to decide the question
of ownership.16

Similarly in Mendoza vs. Teh, we had occasion to

hold:
"In the present suit, no settlement of estate is
involved, but merely an allegation seeking
appointment as estate administratrix which
does not necessarily involve settlement of
estate that would have invited the exercise
of the limited jurisdiction of a probate
court.17 (emphasis supplied)
Of equal importance is that before any conclusion
about the legal share due to a compulsory heir may
be reached, it is necessary that certain steps be taken
first.18 The net estate of the decedent must be
ascertained, by deducting all payable obligations and
charges from the value of the property owned by the
deceased at the time of his death; then, all donations
subject to collation would be added to it. With the
partible estate thus determined, the legitime of the
compulsory heir or heirs can be established; and only
thereafter can it be ascertained whether or not a
donation had prejudiced the legitimes.19
A perusal of the records, specifically the antecedents
and proceedings in the present case, reveals that the
trial court failed to observe established rules of
procedure governing the settlement of the estate of
Graciano Del Rosario. This Court sees no cogent
reason to sanction the non-observance of these wellentrenched rules and hereby holds that under the
prevailing circumstances, a probate court, in the
exercise of its limited jurisdiction, is indeed the best
forum to ventilate and adjudge the issue of
advancement as well as other related matters
involving the settlement of Graciano Del Rosario's
estate.1wphi1.nt
WHEREFORE, premises considered, the assailed
decision of the Court of Appeals is hereby
AFFIRMED and the instant petition is DISMISSED
for lack of merit.
SO ORDERED.
Bellosillo, Mendoza, Quisumbing, De Leon, Jr.,
Davide, Jr., JJ., concur.

[G.R. No. 129242. January 16, 2001]

PILAR S. VDA. DE MANALO, ANTONIO S.
MANALO, ORLANDO S. MANALO, and
ISABELITA MANALO, petitioners, vs. HON.
COURT OF APPEALS, HON. REGIONAL TRIAL
COURT OF MANILA (BRANCH 35), PURITA S.
JAYME, MILAGROS M. TERRE, BELEN M.
ORILLANO, ROSALINA M. ACUIN, ROMEO S.
MANALO, ROBERTO S. MANALO, AMALIA
MANALO and IMELDA MANALO, respondents.
DECISION
DE LEON, JR., J.:
This is a petition for review on certiorari filed by
petitioners Pilar S. Vda. De Manalo, et. al., seeking to
annul the Resolution1[1] of the Court of Appealsi[2]
affirming the Ordersii[3] of the Regional Trial Court
and the Resolutioniii[4]which denied petitioners
motion for reconsideration.
The antecedent factsiv[5] are as follows:
Troadio Manalo, a resident of 1966 Maria Clara
Street, Sampaloc, Manila died intestate on February
14, 1992. He was survived by his wife, Pilar S.
Manalo, and his eleven (11) children, namely: Purita
M. Jayme, Antonio Manalo, Milagros M. Terre,
Belen M. Orillano, Isabelita Manalo, Rosalina M.
Acuin, Romeo Manalo, Roberto Manalo, Amalia
Manalo, Orlando Manalo, and Imelda Manalo, who
are all of legal age.
At the time of his death on February 14, 1992,
Troadio Manalo left several real properties located in
Manila and in the province of Tarlac including a
business under the name and style Manalos Machine
Shop with offices at No. 19 Calavite Street, La Loma,
Quezon City and at No. 45 Gen. Tinio Street, Arty
Subdivision, Valenzuela, Metro Manila.
On November 26, 1992, herein respondents, who are
eight (8) of the surviving children of the late Troadio
Manalo, namely: Purita, Milagros, Belen, Rosalina,
Romeo, Roberto, Amalia, and Imelda filed a
petitionv[6] with the respondent Regional Trial Court
of Manilavi[7] for the judicial settlement of the estate

of their late father, Troadio Manalo, and for the

appointment of their brother, Romeo Manalo, as
administrator thereof.
On December 15, 1992, the trial court issued an order
setting the said petition for hearing on February 11,
1993 and directing the publication of the order for
three (3) consecutive weeks in a newspaper of
general circulation in Metro Manila, and further
directing service by registered mail of the said order
upon the heirs named in the petition at their
respective addresses mentioned therein.
On February 11, 1993, the date set for hearing of the
petition, the trial court issued an order declaring the
whole world in default, except the government, and
set the reception of evidence of the petitioners therein
on March 16, 1993. However, this order of general
default was set aside by the trial court upon motion of
herein petitioners (oppositors therein) namely: Pilar
S. Vda. De Manalo, Antonio, Isabelita and Orlando
who were granted ten (10) days within which to file
their opposition to the petition.
Several pleadings were subsequently filed by herein
petitioners, through counsel, culminating in the filing
of an Omnibus Motionvii[8] on July 23, 1993 seeking:
(1) to set aside and reconsider the Order of the trial
court dated July 9, 1993 which denied the motion for
additional extension of time to file opposition; (2) to
set for preliminary hearing their affirmative defenses
as grounds for dismissal of the case; (3) to declare
that the trial court did not acquire jurisdiction over
the persons of the oppositors; and (4) for the
immediate inhibition of the presiding judge.
On July 30, 1993, the trial court issued an order viii[9]
which resolved, thus:
A.To admit the so-called Opposition filed by counsel
for the oppositors on July 20, 1993, only for the
purpose of considering the merits thereof;
B.
To deny the prayer of the oppositors for a
preliminary hearing of their affirmative defenses as
ground for the dismissal of this proceeding, said
affirmative defenses being irrelevant and immaterial
to the purpose and issue of the present proceeding;
C.
To declare that this court has acquired
jurisdiction over the persons of the oppositors;
D.
To deny the motion of the oppositors for the
inhibition of this Presiding Judge;

E.
To set the application of Romeo Manalo for
appointment as regular administrator in the intestate
estate of the deceased Troadio Manalo for hearing on
September 9, 1993 at 2:00 oclock in the afternoon.

Par. 8. xxx the said surviving son continued to

manage and control the properties aforementioned,
without proper accounting, to his own benefit and
advantage xxx.

Herein petitioners filed a petition for certiorari under

Rule 65 of the Rules of Court with the Court of
Appeals, docketed as CA-G.R. SP. No. 39851, after
their motion for reconsideration of the Order dated
July 30, 1993 was denied by the trial court in its
Orderix[10] dated September 15, 1993. In their
petition for certiorari with the appellate court, they
contend that: (1) the venue was improperly laid in SP.
PROC. No. 92-63626; (2) the trial court did not
acquire jurisdiction over their persons; (3) the share
of the surviving spouse was included in the intestate
proceedings; (4) there was absence of earnest efforts
toward compromise among members of the same
family; and (5) no certification of non-forum
shopping was attached to the petition.

Finding the contentions untenable, the Court of

Appeals dismissed the petition for certiorari in its
Resolutionx[11] promulgated on September 30, 1996.
On May 6, 1997 the motion for reconsideration of the
said resolution was likewise dismissed.xi[12]
The only issue raised by herein petitioners in the
instant petition for review is whether or not the
respondent Court of Appeals erred in upholding the
questioned orders of the respondent trial court which
denied their motion for the outright dismissal of the
petition for judicial settlement of estate despite the
failure of the petitioners therein to aver that earnest
efforts toward a compromise involving members of
the same family have been made prior to the filing of
the petition but that the same have failed.
Herein petitioners claim that the petition in SP. PROC
No. 92-63626 is actually an ordinary civil action
involving members of the same family. They point
out that it contains certain averments which,
according to them, are indicative of its adversarial
nature, to wit:
xx

Par. 7. One of the surviving sons, ANTONIO

MANALO, since the death of his father, TROADIO
MANALO, had not made any settlement, judicial or
extra-judicial of the properties of the deceased father,
TROADIO MANALO.

Par. 12. That said ANTONIO MANALO is managing

and controlling the estate of the deceased TROADIO
MANALO to his own advantage and to the damage
and prejudice of the herein petitioners and their coheirs xxx.
x

Par. 14. For the protection of their rights and

interests, petitioners were compelled to bring this suit
and were forced to litigate and incur expenses and
will continue to incur expenses of not less than,
P250,000.00 and engaged the services of herein
counsel committing to pay P200,000.00 as and for
attorneys fees plus honorarium of P2,500.00 per
appearance in court xxx.xii[13]
Consequently, according to herein petitioners, the
same should be dismissed under Rule 16, Section 1(j)
of the Revised Rules of Court which provides that a
motion to dismiss a complaint may be filed on the
ground that a condition precedent for filing the claim
has not been complied with, that is, that the
petitioners therein failed to aver in the petition in SP.
PROC. No. 92-63626, that earnest efforts toward a
compromise have been made involving members of
the same family prior to the filing of the petition
pursuant to Article 222xiii[14] of the Civil Code of the
Philippines.
The instant petition is not impressed with merit.
It is a fundamental rule that, in the determination of
the nature of an action or proceeding, the
avermentsxiv[15] and the character of the relief
soughtxv[16] in the complaint, or petition, as in the
case at bar, shall be controlling. A careful scrutiny of
the Petition for Issuance of Letters of Administration,
Settlement and Distribution of Estate in SP. PROC.
No. 92-63626 belies herein petitioners claim that the
same is in the nature of an ordinary civil action. The
said petition contains sufficient jurisdictional facts
required in a petition for the settlement of estate of a
deceased person such as the fact of death of the late
Troadio Manalo on February 14, 1992, as well as his
residence in the City of Manila at the time of his said
death. The fact of death of the decedent and of his

residence within the country are foundation facts

upon which all the subsequent proceedings in the
administration of the estate rest.xvi[17] The petition in
SP. PROC. No. 92-63626 also contains an
enumeration of the names of his legal heirs including
a tentative list of the properties left by the deceased
which are sought to be settled in the probate
proceedings. In addition, the reliefs prayed for in the
said petition leave no room for doubt as regard the
intention of the petitioners therein (private
respondents herein) to seek judicial settlement of the
estate of their deceased father, Troadio Manalo, to
wit:
PRAYER
WHEREFORE, premises considered, it
respectfully prayed for of this Honorable Court:

is

(a)That after due hearing, letters of administration be

issued to petitioner ROMEO MANALO for the
administration of the estate of the deceased
TORADIO MANALO upon the giving of a bond in
such reasonable sum that this Honorable Court may
fix.
(b)
That after all the properties of the deceased
TROADIO MANALO have been inventoried and
expenses and just debts, if any, have been paid and
the legal heirs of the deceased fully determined, that
the said estate of TROADIO MANALO be settled
and distributed among the legal heirs all in
accordance with law.
c)
That the litigation expenses o these
proceedings in the amount of P250,000.00 and
attorneys fees in the amount of P300,000.00 plus
honorarium of P2,500.00 per appearance in court in
the hearing and trial of this case and costs of suit be
taxed solely against ANTONIO MANALO.xvii[18]
Concededly, the petition in SP. PROC. No. 92-63626
contains certain averments which may be typical of
an ordinary civil action. Herein petitioners, as
oppositors therein, took advantage of the said defect
in the petition and filed their so-called Opposition
thereto which, as observed by the trial court, is
actually an Answer containing admissions and
denials, special and affirmative defenses and
compulsory counterclaims for actual, moral and
exemplary damages, plus attorney's fees and
costsxviii[19] in an apparent effort to make out a case
of an ordinary civil action an ultimately seek its
dismissal under Rule 16, Section 1(j) of the Rules of
Court vis--vis, Article 222 of the Civil Code.

It is our view that herein petitioners may not be

allowed to defeat the purpose of the essentially valid
petition for the settlement of the estate of the late
Troadio Manalo by raising matters that are irrelevant
and immaterial to the said petition. It must be
emphasized that the trial court, sitting, as a probate
court, has limited and special jurisdiction xix[20] and
cannot hear and dispose of collateral matters and
issues which may be properly threshed out only in an
ordinary civil action. In addition, the rule has always
been to the effect that the jurisdiction of a court, as
well as the concomitant nature of an action, is
determined by the averments in the complaint and not
by the defenses contained in the answer. If it were
otherwise, it would not be too difficult to have a case
either thrown out of court or its proceedings unduly
delayed by simple strategem.xx[21] So it should be in
the instant petition for settlement of estate.
Herein petitioners argue that even if the petition in
SP. PROC. No. 92-63626 were to be considered as a
special proceeding for the settlement of estate of a
deceased person, Rule 16, Section 1(j) of the Rules of
Court vis-a-vis Article 222 of the Civil Code of the
Philippines would nevertheless apply as a ground for
the dismissal of the same by virtue of Rule 1, Section
2 of the Rules of Court which provides that the rules
shall be liberally construed in order to promote their
object and to assist the parties in obtaining just,
speedy and inexpensive determination of every action
and proceeding. Petitioners contend that the term
proceeding is so broad that it must necessarily
include special proceedings.
The argument is misplaced. Herein petitioners may
not validly take refuge under the provisions of Rule
1, Section 2, of the Rules of Court to justify the
invocation of Article 222 of the Civil Code of the
Philippines for the dismissal of the petition for
settlement of the estate of the deceased Troadio
Manalo inasmuch as the latter provision is clear
enough, to wit:
Art. 222. No suit shall be filed or maintained between
members of the same family unless it should appear
that earnest efforts toward a compromise have been
made, but that the same have failed, subject to the
limitations in Article 2035 (underscoring supplied).xxi
[22]
The above-quoted provision of the law is applicable
only to ordinary civil actions. This is clear from the
term suit that it refers to an action by one person or
persons against another or others in a court of justice
in which the plaintiff pursues the remedy which the

law affords him for the redress of an injury or the

enforcement of a right, whether at law or in equity. xxii
[23] A civil action is thus an action filed in a court of
justice, whereby a party sues another for the
enforcement of a right, or the prevention or redress of
a wrong.xxiii[24] Besides, an excerpt from the Report
of the Code Commission unmistakably reveals the
intention of the Code Commission to make that legal
provision applicable only to civil actions which are
essentially adversarial and involve members of the
same family, thus:
It is difficult to imagine a sadder and more tragic
spectacle than a litigation between members of the
same family. It is necessary that every effort should
be made toward a compromise before a litigation is
allowed to breed hate and passion in the family. It is
known that lawsuit between close relatives generates
deeper bitterness than strangers.xxiv[25]
It must be emphasized that the oppositors (herein
petitioners) are not being sued in SP. PROC. No. 9263626 for any cause of action as in fact no defendant
was impleaded therein. The Petition for Issuance of
Letters of Administration,
Settlement
and
Distribution of Estate in SP. PROC. No. 92-63626 is
a special proceeding and, as such, it is a remedy
whereby the petitioners therein seek to establish a
status, a right, or a particular fact. xxv[26] The
petitioners therein (private respondents herein)
merely seek to establish the fact of death of their
father and subsequently to be duly recognized as
among the heirs of the said deceased so that they can
validly exercise their right to participate in the
settlement and liquidation of the estate of the
decedent consistent with the limited and special
jurisdiction of the probate court.
WHEREFORE, the petition in the above-entitled
case, is DENIED for lack of merit. Costs against
petitioners.
SO ORDERED.

Banks and Banking; Insolvency; Liquidation Court;

Jurisdiction; The exclusive jurisdiction of the
liquidation court pertains only to the adjudication of
claims against the bankit does not cover the
reverse situation where it is the bank which files a
claim against another person or legal entity.
Petitioner apparently failed to appreciate the correct
meaning and import of the above-quoted law. The
legal provision only finds operation in cases where
there are claims against an insolvent bank. In fine, the
exclusive jurisdiction of the liquidation court pertains
only to the adjudication of claims against the bank. It
does not cover the reverse situation where it is the
bank which files a claim against another person or
legal entity.

Same; Same; Same; Same; The requirement that all

claims against the bank under liquidation be pursued
in the liquidation proceedings filed by the Central
Bank is intended to prevent multiplicity of actions
against the insolvent bank and designed to establish
due process and orderliness in the liquidation of the
bank.This interpretation of Section 29 becomes
more obvious in the light of its intent. The
requirement that all claims against the bank be
pursued in the liquidation proceedings filed by the
Central Bank is intended to prevent multiplicity of
actions against the insolvent bank and designed to
establish due process and orderliness in the
liquidation of the bank, to obviate the proliferation of
litigations and to avoid injustice and arbitrariness.
The lawmaking body contemplated that for
convenience, only one court, if possible, should pass
upon the claims against the insolvent bank and that
the
liquidation
court
should
assist
the
Superintendents of Banks and regulate his operations.

Bellosillo, (Chairman), Mendoza, Quisumbing, and

Buena, JJ., concur.

G.R. No. 141297. October 8, 2001.*

DOMINGO R. MANALO, petitioner, vs. COURT
OF APPEALS (Special Twelfth Division) and PAIC
SAVINGS AND MORTGAGE BANK, respondents.

Same; Foreclosure of Mortgage; Writs of Possession;

Jurisdiction; Act 3135, entitled An Act to Regulate
the Sale of Property Under Special Powers Inserted
In or Annexed To Real Estate Mortgages, mandates
that jurisdiction over a Petition for Writ of Possession
lies with the court of the province, city, or
municipality where the property subject thereof is

situated.To be sure, the liquidator took the proper

course of action when it applied for a writ in the
Pasay City RTC. Act 3135, entitled An Act to
Regulate the Sale of Property Under Special Powers
Inserted In or Annexed To Real

______________

* FIRST DIVISION.
Estate Mortgages, mandates that jurisdiction over a
Petition for Writ of Possession lies with the court of
the province, city, or municipality where the property
subject thereof is situated. This is sanctioned by
Section 7 of the said Act, thus: Section 7. In any sale
made under the provisions of this Act, the purchaser
may petition the Court of First Instance of the
province or place where the property or any part
thereof is situated, to give him possession thereof
during the redemption period, furnishing bond in an
amount equivalent to the use of the property for a
period of twelve months, to indemnify the debtor in
case it be shown that the sale was made without
violating the mortgage or without complying with the
requirements of this Act. x x x (emphasis supplied)

Actions; Pleadings and Practice; Forum Shopping;

The Supreme Court has laid down the yardstick to
determine whether a party violated the rule against
forum shopping as where the elements of litis
pendentia are present or where a final judgment in
one case will amount to res judicata in the other.
Anent petitioners auxiliary contention that
respondent should be held guilty of forum shopping
for not filing the case in the liquidation court, suffice
it to state here that the doctrine only ponders
situations where two (or more) cases are pending
before different tribunals. Well to point, we have laid
down the yardstick to determine whether a party
violated the rule against forum shopping as where the
elements of litis pendentia are present or where a
final judgment in one case will amount to res judicata
in the other. Inasmuch as the case at bar is the only
one filed by the respondent for the issuance of a writ

of possession over the subject property, there is no

occasion for the doctrine to apply.

Banks and Banking; Liquidation; A bank which had

been ordered closed by the monetary board retains its
juridical personality which can sue and be sued
through its liquidator.Petitioner next casts doubt on
the capacity of the respondent to continue litigating
the petition for the issuance of the writ. He asserts
that, being under liquidation, respondent bank is
already a dead corporation that cannot maintain the
suit in the RTC. Hence, no writ may be issued in its
favor. The argument is devoid of merit. A bank which
had been ordered closed by the monetary board
retains its juridical personality which can sue and be
sued through its liquidator. The only limitation being
that the prosecution or defense of the action must be
done through the liquidator. Otherwise, no suit for or
against an insolvent entity would prosper. In such
situation, banks in liquidation would lose what justly
belongs to them through a mere technicality.

Actions; Prejudicial Questions; Words and Phrases; A

prejudicial question is one which arises in a case the
resolution of which is a logical antecedent of the
issue involved therein, and the cognizance of which
pertains to another tribunal.A prejudicial question
is one which arises in a case the resolution of which
is a logical antecedent of the issue involved therein,
and the cognizance of which pertains to another
tribunal. It generally comes into play in a situation
where a civil action and a criminal action are both
pending and there exists in the former an issue which
must be preemptively resolved before the criminal
action may proceed, because howsoever the issue
raised in the civil action is resolved would be
determinative juris et de jure of the guilt or innocence
of the accused in the criminal case. The rationale
behind the principle of prejudicial question is to
avoid two conflicting decisions.

Same; Same; A case where the issue is whether the

purchaser
in
the
extrajudicial
foreclosure
proceedings, may be compelled to have the property

repurchased or resold to the mortgagors successorin-interest can proceed separately and take its own
direction independent of another case where the issue
is whether the purchaser in the extrajudicial
foreclosure proceedings, is entitled to a writ of
possession after the statutory period for redemption
has expired.At any rate, it taxes our imagination
why the questions raised in Case No. 98-0868 must
be considered determinative of Case No. 9011. The
basic issue in the former is whether the respondent,
as the purchaser in the extrajudicial foreclosure
proceedings, may be compelled to have the property
repurchased or resold to a mortgagors successor-ininterest (petitioner); while that in the latter is merely
whether the respondent, as the purchaser in the
extrajudicial foreclosure proceedings, is entitled to a
writ of possession after the statutory period for
redemption has expired. The two cases, assuming
both are pending, can proceed separately and take
their own direction independent of each other.

Same; Intervention; Words and Phrases; Intervention

is a remedy by which a third party, not originally
impleaded in the proceedings, becomes a litigant
therein to enable him to protect or preserve a right or
interest which may be affected by such proceeding.
Intervention is a remedy by which a third party, not
originally impleaded in the proceeding, becomes a
litigant therein to enable him to protect or preserve a
right or interest which may be affected by such
proceeding. The pertinent provision is stated in
Section 1, Rule 19 of the 1997 Rules of Civil
Procedure, thus: Section 1. Who may intervene.A
person who has a legal interest in the matter in
litigation, or in the success of either of the parties, or
an interest against both, or is so situated as to be
adversely affected by a distribution or other
disposition of property in the custody of the court or
of an officer thereof may, with leave of court, be
allowed to intervene in the action. The court shall
consider whether or not the intervention will unduly
delay or prejudice the adjudication of the rights of the
original parties, and whether or not the intervenors
rights may be fully protected in a separate
proceeding.

Same; Same; The allowance or disallowance of a

motion to intervene is addressed to the sound
discretion of the court.Intervention is not a matter
of right but may be permitted by the courts only
when the statutory conditions for the right to
intervene is shown. Thus, the allowance or
disallowance of a motion to intervene is addressed to
the sound discretion of the court. In determining the
propriety of letting a party intervene in a case, the
tribunal should not limit itself to inquiring whether a
person (1) has a legal interest in the matter in
litigation; (2) or in the success of either of the parties;
(3) or an interest against both; (4) or when is so
situated as to be adversely affected by a distribution
or other disposition of property in the custody of the
court or of an officer thereof. Just as important, as
we have stated in Big Country Ranch Corporation v.
Court of Appeals, is the function to consider whether
or not the intervention will unduly delay or prejudice
the adjudication of the rights of the original parties,
and whether or not the intervenors rights may be
fully protected in a separate proceeding.

Same; Same; Pleadings and Practice; The motion to

intervene must be filed before the rendition of
judgment, otherwise it will not be warranted
anymore.The period within which a person may
intervene is also restricted. Section 2, Rule 19 of the
1997 Rules of Civil Procedure requires: Section 2.
Time to intervene.The motion to intervene may be
filed at any time before the rendition of judgment by
the trial court, x x x After the lapse of this period, it
will not be warranted anymore. This is because,
basically, intervention is not an independent action
but is ancillary and supplemental to an existing
litigation.

Same; Same; Foreclosure of Mortgage; Writs of

Possession; The issuance of an Order granting the
Writ of Possession is in essence a rendition of
judgment within the purview of Section 2, Rule 19.
In the first place, petitioners Ex-parte Permission to
File a Motion to Intervene was submitted to the RTC
only on June 25, 1998. At that stage, the lower court
had already granted respondents petition for the writ
in an Order dated April 21, 1998. It had issued the

Writ of Possession on April 24, 1998. Petitioners

motion then was clearly out of time, having been
filed only at the execution stage. For that reason
alone, it must meet the consequence of denial. While
it is true that on May 8, 1998, Vargas and S.
Villanueva Enterprises moved to quash the writ, that
did not in any way affect the nature of the RTCs
Order as an adjudication on the merits. The issuance
of the Order is in essence a rendition of judgment
within the purview of Section 2, Rule 19.

PETITION for review on certiorari of a decision of

the Court of Appeals.

The facts are stated in the opinion of the Court.

Mauricio C. Ulep for petitioner.

The Chief Legal Counsel for private respondent.

Same; Same; Same; Same; After the consolidation of
title in the buyers name, for failure of the mortgagor
to redeem, the writ of possession becomes a matter of
rightits issuance to a purchaser in an extrajudicial
foreclosure is merely a ministerial function.
Allowing petitioner to intervene, furthermore, will
serve no other purpose but to unduly delay the
execution of the writ, to the prejudice of the
respondent. This cannot be countenanced considering
that after the consolidation of title in the buyers
name, for failure of the mortgagor to redeem, the writ
of possession becomes a matter of right. Its issuance
to a purchaser in an extrajudicial foreclosure is
merely a ministerial function. As such, the court
neither exercises its official discretion nor judgment.
If only to stress the writs ministerial character, we
have, in previous cases, disallowed injunction to
prohibit its issuance, just as we have held that
issuance of the same may not be stayed by a pending
action for annulment of mortgage or the foreclosure
itself.

Sales; It is axiomatic that one can not transmit what

one does not have.Being herself bereft of valid title
and rights, Vargas can not legitimately convey any to
some other person. She could not have lawfully sold
the land to Angsico nor leased it to petitioner for her
own account. It is axiomatic that one can not transmit
what one does not have. It ought to follow that
petitioner could not have acquired any right or
interest from Vargas.

PUNO, J.:

This petition for certiorari seeks the review of the

Decision of the Court of Appeals in C A.-G.R. SP No.
50341 promulgated December 23, 1999, which
affirmed an Order issued by the Regional Trial Court,
Branch 112, Pasay City, in Civil Case No. 9011 dated
December 9, 1998.

On July 19, 1983, S. Villanueva Enterprises,

represented by its president, Therese Villanueva
Vargas, obtained a loan of three million pesos
(P3,000,000.00)
and
one
million
pesos
(1,000,000.00) from the respondent PAIC Savings
and Mortgage Bank and the Philippine American
Investments Corporation (PAIC), respectively. To
secure payment of both debts, Vargas executed in
favor of the respondent and PAIC a Joint First
Mortgage1 over two parcels of land registered under
her name. One of the lots, located in Pasay City with
an area of nine hundred nineteen square meters (919
sq. m.) and covered by TCT No. 6076, is the subject
of the present case. Section 2 of the mortgage
contract states that the properties mortgaged therein
shall include all buildings and improvements existing
on the mortgaged property at the time of the
execution of the mortgage contract and thereafter.2

S. Villanueva Enterprises defaulted in paying the

amortizations due. Despite repeated demands from
the respondent, it failed to settle its loan obligation.
Accordingly, respondent instituted extrajudicial
foreclosure proceedings over the mortgaged lots. On
August 22, 1984, the Pasay City property was sold at
a public auction to the respondent itself, after
tendering the highest bid. The respondent then caused
the annotation of the corresponding Sheriffs
Certificate of Sale3 on the title of the land on
December 4, 1984. After the lapse of one year, or the
statutory period extended by law to a mortgagor to
exercise his/her right of redemption, title was
consolidated in respondents name for failure of
Vargas to redeem.

On October 29, 1986, the Central Bank of the

Philippines filed a Petition4 for assistance in the
liquidation of the respondent with the Regional Trial
Court. The petition was given due course in an
Order5 dated May 19, 1987.

It appears that from the years 1986 to 1991, Vargas

negotiated with the respondent (through its then
liquidator, the Central Bank) for the repurchase of the
foreclosed property. The negotiations, however,
fizzled out as Vargas cannot afford the repurchase
price fixed by the respondent based on the appraised
value of the land at that time. On October 4, 1991,
Vargas filed a case for annulment of mortgage and
extrajudicial foreclosure sale before Branch 116 of
the Pasay City Regional Trial Court. On July 22,
1993, the court rendered a decision6 dismissing the
complaint and upholding the validity of the mortgage
and foreclosure sale. On appeal, the appellate court
upheld the assailed judgment and declared the said
mortgage and foreclosure proceedings to be in accord
with law.7 This decision of the Court of Appeals
subsequently became final and executory when we
summarily dismissed Vargass Petition for Review on
Certiorari for having been filed beyond the
reglementary period.8

In the meantime, on June 22, 1992, respondent

petitioned the Regional Trial Court, Branch 112, of
Pasay City, herein court a quo, for the issuance of a
writ of possession for the subject property in Civil
Case No. 9011. This is in view of the consolidation of
its ownership over the same as mentioned earlier.
Vargas and S. Villanueva Enterprises, Inc. filed their
opposition thereto. After which, trial ensued.

During the pendency of Civil Case No. 9011 (for the

issuance of a writ of possession), Vargas, on
December 23, 1992, executed a Deed of Absolute
Sale9 selling, transferring, and conveying ownership
of the disputed lot in favor of a certain Armando
Angsico. Notwithstanding this sale, Vargas, still
representing herself to be the lawful owner of the
property, leased the same to petitioner Domingo R.
Manalo on August 25, 1994. Pertinent provisions of
the lease agreement10 state:

3. (a) The lease is for a period often year lease

(sic), involving 450 square meters, a portion of the
above 919 square meter property.

x x x (d) The LESSEE has to introduce into the said

450 square meter premises improvements thereon
(sic) consisting of one story building to house a
Karaoke Music Restaurant Business, which
improvements constructed therof (sic), upon the
termination of the lease contract, by said LESSEE be
surrendered in favor of the LESSOR (sic).11

Later, on June 29, 1997, Armando Angsico, as buyer

of the property, assigned his rights therein to
petitioner.12

On April 21, 1998, the court a quo granted the

petition for the issuance of the Writ of Possession.13
The writ was subsequently issued on April 24, 1998,
the pertinent portion of which reads:14

NOW THEREFORE you are hereby commanded

that you cause oppositors THERESE VILLANUEVA
VARGAS and S. VILLANUEVA ENTERPRISES,
INC. and any and all persons claiming rights or title
under them, to forthwith vacate and surrender the
possession of subject premises in question known as
that parcel of land and improvements covered by
TCT No. 6076 of the Registry of Deeds of Pasay
City; you are hereby further ordered to take
possession and deliver to the petitioner PAIC
SAVINGS AND MORTGAGE BANK the subject
parcel of land and improvements.

Shortly, on May 8, 1998, S. Villanueva Enterprises

and Vargas moved for its quashal.15 Thereafter on
June 25, 1998, petitioner, on the strength of the lease
contract and Deed of Assignment made in his favor,
submitted a Permission to File an Ex-parte Motion to
Intervene.16 It bears mentioning, however, that
before petitioner sought intervention in the present
case, he had separately instituted a Complaint for
Mandamus, docketed as Civil Case No. 98-0868
before another branch17 of the Pasay City RTC to
compel PAIC Bank to allow him to repurchase the
subject property.

On October 7, 1998, the court a quo denied the

Motion to Quash and Motion to Intervene filed
respectively by Vargas and petitioner.18 A Motion for
Reconsideration and a Supplemental Motion for
Reconsideration were filed by the petitioner which,
however, were similarly denied on December 9,
1998.

Petitioner then sought relief with the Court of

Appeals, filing therein a Petition for Certiorari. While
this was awaiting resolution, he entered into another
lease agreement,19 this time with the respondent,
represented by its liquidator, over the same 450 sq.
m. portion of the lot. The contract fixed a period of
one month beginning January 28, 1999, renewable

for another month at the exclusive option of the

lessor, respondent PAIC Bank.

On December 23, 1999, the appellate court rendered

the impugned Decision, dismissing the petition, thus:

All told, WE find the Order, subject of the instant

Petition for Certiorari and Prohibition, to be not
without rational bases and we observe that the court a
quo, in issuing its questioned Order, committed no
grave abuse of discretion amounting to lack of
jurisdiction.

WHEREFORE, the Petition for Certiorari and

Prohibition is hereby DISMISSED and the assailed
December 9, 1998 Order is AFFIRMED in all
respects.

SO ORDERED.20

Hence, this appeal, where petitioner raises and argues

the following legal issues:

I. Whether or not public respondent acted without

or in excess of its jurisdiction and/or was patently in
error when it affirmed the denial of petitioners
motion for intervention, despite the fact that he has a
legal interest, being a lessee and an assignee of the
property subject matter of this case.
II. Whether or not the public respondent committed
grave abuse of discretion when it held that what are
required to be instituted before the liquidation court
are those claims against the insolvent banks only
considering that the private respondent bank is
legally dead due to insolvency and considering
further that there is already a liquidation court
(Regional Trial Court of Makati, Branch 57, docketed
as Spec. Pro. No. M-1280) which is exclusively
vested with jurisdiction to hear all matters and

incidents on liquidation pursuant to Section 29,

Republic Act No. 265, otherwise known as The
Central Bank Act, as amended.
III. Whether or not the public respondent
committed grave abuse of discretion and/or was
patently in error in affirming the ruling of the trial
court, totally disregarding the arguments raised in
petitioners supplemental motion for reconsideration
only through a minute order and without taking into
consideration the fact that there is a pending action in
another court (RTC, Pasay City, Branch 231) which
presents a prejudicial question to the case at bar.
IV. Whether or not the petitioner is estopped from
questioning private respondents ownership when it
entered into a contract of lease involving the property
in question.21

We will first resolve the jurisdictional and procedural

questions raised by the petitioner.
I.

Petitioner postulates that the lower court should have

dismissed respondents Ex-Parte Petition for
Issuance of Writ of Possession in Civil Case No. P9011 for want of jurisdiction over the subject matter
of the claim. The power to hear the same, he insists,
exclusively vests with the Liquidation Court pursuant
to Section 29 of Republic Act No. 265, otherwise
known as The Central Bank Act.22 He then cites our
decision in Valenzuela v. Court of Appeals,23 where
we held that if there is a judicial liquidation of an
insolvent bank, all claims against the bank should be
filed in the liquidation proceeding. For going to
another court, the respondent, he accuses, is guilty of
forum shopping.

These contentions can not pass judicial muster. The

pertinent portion of Section 29 states:

x x x The liquidator designated as hereunder

provided shall, by the Solicitor General, file a
petition in the Regional Trial Court reciting the
proceedings which have been taken and praying the
assistance of the court in the liquidation of such
institution. The court shall have jurisdiction in the
same proceedings to assist in the adjudication of
disputed claims against the bank or non-bank
financial intermediary performing quasi-banking
functions and the enforcement of individual liabilites
of the stockholders and do all that is necessary to
preserve the assets of such institution and to
implement the liquidation plan approved by the
Monetary Board, x x x24 (emphasis supplied.)

Petitioner apparently failed to appreciate the correct

meaning and import of the above-quoted law. The
legal provision only finds operation in cases where
there are claims against an insolvent bank. In fine, the
exclusive jurisdiction of the liquidation court pertains
only to the adjudication of claims against the bank. It
does not cover the reverse situation where it is the
bank which files a claim against another person or
legal entity.

This interpretation of Section 29 becomes more

obvious in the light of its intent. The requirement that
all claims against the bank be pursued in the
liquidation proceedings filed by the Central Bank is
intended to prevent multiplicity of actions against the
insolvent bank and designed to establish due process
and orderliness in the liquidation of the bank, to
obviate the proliferation of litigations and to avoid
injustice and arbitrariness.25 The lawmaking body
contemplated that for convenience, only one court, if
possible, should pass upon the claims against the
insolvent bank and that the liquidation court should
assist the Superintendents of Banks and regulate his
operations.26
It then ought to follow that petitioners reliance on
Section 29 and the Valenzuela case is misplaced. The
Petition for the Issuance of a Writ of Possession in
Civil Case No. 9011 is not in the nature of a disputed
claim against the bank. On the contrary, it is an action
instituted by the respondent bank itself for the

preservation of its asset and protection of its property.

It was filed upon the instance of the respondents
liquidator in order to take possession of a tract of
land over which it has ownership claims.

To be sure, the liquidator took the proper course of

action when it applied for a writ in the Pasay City
RTC. Act 3135,27 entitled An Act to Regulate the
Sale of Property Under Special Powers Inserted In or
Annexed To Real Estate Mortgages, mandates that
jurisdiction over a Petition for Writ of Possession lies
with the court of the province, city, or municipality
where the property subject thereof is situated. This is
sanctioned by Section 7 of the said Act, thus:

Section 7. In any sale made under the provisions of

this Act, the purchaser may petition the Court of First
Instance of the province or place where the property
or any part thereof is situated, to give him possession
thereof during the redemption period, furnishing
bond in an amount equivalent to the use of the
property for a period of twelve months, to indemnify
the debtor in case it be shown that the sale was made
without violating the mortgage or without complying
with the requirements of this Act. x x x28 (emphasis
supplied)

Since the land subject of this controversy is located in

Pasay City, then the citys RTC should rightly take
cognizance of the case, to the exclusion of other
courts.

Anent petitioners auxiliary contention that

respondent should be held guilty of forum shopping
for not filing the case in the liquidation court, suffice
it to state here that the doctrine only ponders
situations where two (or more) cases are pending
before different tribunals.29 Well to point, we have
laid down the yardstick to determine whether a party
violated the rule against forum shopping as where the
elements of litis pendentia are present or where a
final judgment in one case will amount to res judicata
in the other.30 Inasmuch as the case at bar is the only

one filed by the respondent for the issuance of a writ

of possession over the subject property, there is no
occasion for the doctrine to apply.

Petitioner next casts doubt on the capacity of the

respondent to continue litigating the petition for the
issuance of the writ. He asserts that, being under
liquidation, respondent bank is already a dead
corporation that cannot maintain the suit in the RTC.
Hence, no writ may be issued in its favor.

The argument is devoid of merit. A bank which had

been ordered closed by the monetary board retains its
juridical personality which can sue and be sued
through its liquidator. The only limitation being that
the prosecution or defense of the action must be done
through the liquidator.31 Otherwise, no suit for or
against an insolvent entity would prosper. In such
situation, banks in liquidation would lose what justly
belongs to them through a mere technicanty.32

That the law allows a bank under liquidation to

participate in an action can be clearly inferred from
the third paragraph of the same Section 29 of The
Central Bank Act earlier quoted, which authorizes or
empowers a liquidator to institute actions, thus:

x x x and he (liquidator) may in the name of the

bank or non-bank financial intermediary performing
quasi-banking functions and with the assistance of
counsel as he may retain, institute such actions as
may be necessary in the appropriate court to collect
and recover accounts and assests of such institution
or defend any action filed against the institution.33
(emphasis supplied.)

It is therefore beyond dispute that respondent was

legally capacitated to petition the court a quo for the
issuance of the writ.
II.

Petitioner likewise proffers one other procedural

obstacle, which is the pendency of Civil Case No. 980868 in Branch 231 of Pasay City RTC. The said
action is the complaint he filed against the respondent
for the latter to receive and accept the redemption
price of eighteen million pesos for the subject
property. He argues that the primary issue therein
constitutes a prejudicial question in relation to the
present case in that if the Court therein will grant
petitioners prayer, then this will necessarily negate
the possessory writ issued by the court a quo.

Again, we are not persuaded. A prejudicial question

is one which arises in a case the resolution of which
is a logical antecedent of the issue involved therein,
and the cognizance of which pertains to another
tribunal.34 It generally comes into play in a situation
where a civil action and a criminal action are both
pending and there exists in the former an issue which
must be preemptively resolved before the criminal
action may proceed, because howsoever the issue
raised in the civil action is resolved would be
determinative juris et de jure of the guilt or innocence
of the accused in the criminal case. The rationale
behind the principle of prejudicial question is to
avoid two conflicting decisions.35

Here, aside from the fact that Civil Case No. 98-0868
and the present one are both civil in nature and
therefore no prejudicial question can arise from the
existence of the two actions,36 it is apparent that the
former action was instituted merely to frustrate the
Courts ruling in the case at bar granting the
respondent the right to possess the subject property. It
is but a canny and preemptive maneuver on the part
of the petitioner to delay, if not prevent, the execution
of a judgment adverse to his interests. It bears
stressing that the complaint for mandamus was filed
only on May 7, 1998, sixteen days after the lower
court granted respondents petition and thirteen days
after it issued the writ. It cannot then possibly
prejudice a decided case.

At any rate, it taxes our imagination why the

questions raised in Case No. 98-0868 must be
considered determinative of Case No. 9011. The
basic issue in the former is whether the respondent,
as the purchaser in the extrajudicial foreclosure
proceedings, may be compelled to have the property
repurchased or resold to a mortgagors successor-ininterest (petitioner); while that in the latter is merely
whether the respondent, as the purchaser in the
extrajudicial foreclosure proceedings, is entitled to a
writ of possession after the statutory period for
redemption has expired. The two cases, assuming
both are pending, can proceed separately and take
their own direction independent of each other.
III.

Having disposed of the jurisdictional and procedural

issues, we now come to the merits of the case.
Petitioner seeks intervention in this case by virtue of
the lease agreement and the deed of assignment
executed in his favor by the mortgagor (Vargas) and
an alleged buyer (Angsico) of the land, respectively.
He posits that as a lessee and assignee in possession
of the foreclosed real estate, he automatically
acquires interest over the subject matter of the
litigation. This interest is coupled with the fact that he
introduced improvements thereon, consisting of a
one-storey building which houses a karaoke-music
restaurant, allegedly to the tune of fifteen million
pesos (P15,000,000.00). Enforcing the writ, he adds,
without hearing his side would be an injustice to him.

Intervention is a remedy by which a third party, not

originally impleaded in the proceeding, becomes a
litigant therein to enable him to protect or preserve a
right or interest which may be affected by such
proceeding.37 The pertinent provision is stated in
Section 1, Rule 19 of the 1997 Rules of Civil
Procedure, thus:

Section 1. Who may intervene.A person who has

a legal interest in the matter in litigation, or in the
success of either of the parties, or an interest against

both, or is so situated as to be adversely affected by a

distribution or other disposition of property in the
custody of the court or of an officer thereof may, with
leave of court, be allowed to intervene in the action.
The court shall consider whether or not the
intervention will unduly delay or prejudice the
adjudication of the rights of the original parties, and
whether or not the intervenors rights may be fully
protected in a separate proceeding.38

Intervention is not a matter of right but may be

permitted by the courts only when the statutory
conditions for the right to intervene is shown.39
Thus, the allowance or disallowance of a motion to
intervene is addressed to the sound discretion of the
court.40 In determining the propriety of letting a
party intervene in a case, the tribunal should not limit
itself to inquiring whether a person (1) has a legal
interest in the matter in litigation; (2) or in the
success of either of the parties; (3) or an interest
against both; (4) or when is so situated as to be
adversely affected by a distribution or other
disposition of property in the custody of the court or
of an officer thereof.41 Just as important, as we
have stated in Big Country Ranch Corporation v.
Court of Appeals,42 is the function to consider
whether or not the intervention will unduly delay or
prejudice the adjudication of the rights of the original
parties, and whether or not the intervenors rights
may be fully protected in a separate proceeding.

The period within which a person may intervene is

also restricted. Section 2, Rule 19 of the 1997 Rules
of Civil Procedure requires:

Section 2. Time to intervene.The motion to

intervene may be filed at any time before the
rendition of judgment by the trial court, x x x

After the lapse of this period, it will not be warranted

anymore. This is because, basically, intervention is
not an independent action but is ancillary and
supplemental to an existing litigation.43

Taking into account these fundamental precepts, we

rule that the petitioner may not properly intervene in
the case at bar. His insistence to participate in the
proceeding is an unfortunate case of too little, too
late.

In the first place, petitioners Ex-parte Permission to

File a Motion to Intervene was submitted to the RTC
only on June 25, 1998. At that stage, the lower court
had already granted respondents petition for the writ
in an Order dated April 21, 1998. It had issued the
Writ of Possession on April 24, 1998. Petitioners
motion then was clearly out of time, having been
filed only at the execution stage. For that reason
alone, it must meet the consequence of denial. While
it is true that on May 8, 1998, Vargas and S.
Villanueva Enterprises moved to quash the writ, that
did not in any way affect the nature of the RTCs
Order as an adjudication on the merits. The issuance
of the Order is in essence a rendition of judgment
within the purview of Section 2, Rule 19.

Allowing petitioner to intervene, furthermore, will

serve no other purpose but to unduly delay the
execution of the writ, to the prejudice of the
respondent. This cannot be countenanced considering
that after the consolidation of title in the buyers
name, for failure of the mortgagor to redeem, the writ
of possession becomes a matter of right.44 Its
issuance to a purchaser in an extrajudicial foreclosure
is merely a ministerial function.45 As such, the court
neither exercises its official discretion nor
judgment.46 If only to stress the writs ministerial
character, we have, in previous cases, disallowed
injunction to prohibit its issuance,47 just as we have
held that issuance of the same may not be stayed by a
pending action for annulment of mortgage or the
foreclosure itself.48

Even if he anchors his intervention on the purported

interest he has over the land and the improvements

thereon, petitioner, still, should not be allowed to do

so. He admits that he is a mere lessee and assignee.
Whatever possessory rights he holds only emanate
from that of Vargas, from whom he leased the lot, and
from whom his assignor/predecessor-in-interest
bought it. Therein lies the precariousness of his title.
Petitioner cannot validly predicate his supposed
interest over the property in litigation on that of
Vargas, for the simple reason that as early as
December 4, 1985, the latter has already been
stripped of all her rights over the land when she, as
mortgagor, failed to redeem it. A mortgagor has only
one year within which to redeem her foreclosed real
estate.49 After that period, she loses all her interests
over it. This is in consonance with Section 78 of the
General Banking Act,50 viz.:

50 R.A. 337, as amended.

x x x In the event of foreclosure, whether judicially

or extrajudicially, of any mortgage on real estate
which is security for any loan granted before the
passage of this Act or the provisions of this Act, the
mortgagor or debtor whose real property has been
sold at public auction, judicially or extrajudicially, for
the full or partial payment of an obligation to any
bank, banking or credit institution, within the
purview of this Act shall have the right, within one
year after the sale of the real estate mortgage as a
result of the foreclosure of the respective mortgage,
to redeem the property by paying the amount fixed by
the court in the order or execution x x x.51
(emphasis supplied.)

770

Being herself bereft of valid title and rights, Vargas

can not legitimately convey any to some other
person. She could not have lawfully sold the land to
Angsico nor leased it to petitioner for her own
account. It is axiomatic that one can not transmit
what one

_______________

51 Likewise, Section 6 of Act 3135 states:

Section 6. In all cases in which an extrajudicial sale

is made under the special power herein before
referred to, the debtor, his successors in interest or
any judicial creditor or judgment creditor of said
debtor, or any person having a lien on the property
subsequent to the mortgage or deed of trust under
which the property was sold, may redeem the same at
any time within the term of one year from and after
the date of the sale. x x x (emphasis supplied)

770

SUPREME COURT REPORTS ANNOTATED

Manalo vs. Court of Appeals

does not have.52 It ought to follow that petitioner

could not have acquired any right or interest from
Vargas.

Withal, all is not lost for the petitioner. He can still

fully protect his rights in Civil Case No. 98-0868 or
the complaint for mandamus he filed before Branch
231 of the Pasay City RTC. There, he can ventilate
his side to a fuller extent as that would be the more
appropriate venue for elucidating whatever legal
basis he alleges in compelling the respondent to sell
to him the currently disputed land.

IV.

This brings us to petitioners final point. He briefly

asserts that his act of entering into a lease contract
with the respondent should not affect his right to
redeem the subject property.

The possible legal implication of the lease on the

petitioners act of trying to redeem the disputed lot is
a question which, in our opinion, can best be resolved
in the mandamus complaint. Whether the agreement
must be construed as a waiver on his part of
exercising his purported right of redemption is an
issue best left for the court therein to decide. Whether
by acknowledging the legality of the respondents
claim and title over the land at the time of the
execution of the contract, he likewise perpetually
barred himself from redeeming the same is a matter
which can be addressed most aptly in that pending
action. Hence, there is presently no need for us to
squarely rule on this ultimate point.

IN VIEW WHEREOF, finding no cogent reason to

disturb the assailed Decision, the instant petition is
hereby DENIED.

SO ORDERED.

Davide, Jr. (C.J., Chairman), Pardo and YnaresSantiago, JJ., concur.

Kapunan, J., On official leave.

Petition denied.

_______________

SUPREME COURT REPORTS ANNOTATED

Mangaliman vs. Gonzales

No. L-21033. December 28, 1970.

TESTATE
ESTATE
OF
ALEJANDRO
GONZALES
y
TOLENTINO,
deceased,
LORETO
ESGUERRA
(GONZALES)MANGALIMAN,
petitionerappellant,
vs.
MANUEL
I.
GONZALES,respondent-appellee.

Court of First Instance; Jurisdiction; Jurisdiction of a

probate court.The Court of First Instance, as a
probate court, has no jurisdiction to take cognizance
of the petition for reconveyance. The remedy sought
by petitioner for the reconveyance to her of her share
in the Hacienda Evangelista upon the ground that the
same was acquired by respondent through fraud or
misrepresentation cannot be obtained by a mere
petition in the probate proceedings. The court of first
instance, acting as a probate court, has limited
jurisdiction and can take cognizance only of "matters
of probate, both testate and intestate estates, xxx and
all such special cases and proceedings are not
otherwise provided for." The jurisdiction of a probate
court is limited and special, and this should be
understood to comprehend only cases related to those
powers specified in the law, and cannot extend to the
adjudication of collateral matters. The petition for
reconveyance has given rise to a controversy
involving rights over a real property which would
require the presentation of evidence and the
determination of legal questions that should be
ventilated in a court of general jurisdiction.

APPEAL from an order of the Court of First Instance

of Manila.

Facts are stated in the opinion of the Court.

Umali & Tagle for petitioner-appellant.

Eventually, on July 27, 1950 the Hacienda

Evangelista, which had previously been levied on
execution, was sold by the sheriff to respondent for
the sum of P2,307.46. The one-year redemption
period having elapsed without petitioner's guardian
having taken any step to redeem her undivided share
of the hacienda, the sheriff executed, on October 31,
1951, a final deed of sale in favor of respondent.

Recto Law Office for respondent-appellee.

ZALDIVAR, J.:

Appeal, on a question of law, from the order of the

Court of First Instance of Manila in its Special
Proceedings No. 42412. This case is one of the many
incidents in the testamentary proceedings for the
settlement of the estate of the late Alejandro
Gonzales y Tolentino.

Petitioner-appellant Loreto Esguerra (Gonzales)

Mangaliman, an illegitimate daughter of Alejandro
Gonzales y Tolentino, was given a legacy of oneeighth (1/8) undivided portion of the Hacienda
Evangelista located at Umingan, Pangasinan, having
an area of 137 hectares. Because she was a minor
when her father died, petitioner's share was placed
under the guardianship of her half-brother, Alejandro
Gonzales, Jr., a legitimate son of the testator.

Respondent-appellee Manuel I. Gonzales is a

legitimate son of the testator, and was for some time
the administrator of the estate. For the payment of the
services of said respondent as administrator, it was
agreed on November 5, 1943 among the testator's
widow and legitimate children that he would be paid
the sum of P11,000.00. This agreement was approved
by the probate court on December 2, 1943. Alleging
that he had not been paid his fee of P11,000.00, as
provided in the compromise agreement, respondent
filed before the probate court a motion for execution
on July 28, 1948, which motion was granted in an
order issued by the court on August 23, 1948.

After coming of age, petitioner sought to recover her

legacy by filing a motion in the probate court to set
aside the sale of the Hacienda Evangelista. Having
found, however, that her guardian was duly notified
of such sale, the court a quo denied her motion on
October 15, 1954. Petitioner did not appeal from this
order, instead she filed an action in the Court of First
Instance of Manila against her former guardian for
damages for the loss of her share in the hacienda
(Civil Case No. 25986).1

Much later, or in April, 1962, petitioner allegedly

learned that before the sale to respondent of the
Hacienda Evangelista, including her one-eighth
undivided share thereof, said respondent had actually
been paid for his services as administrator an amount
more than the P11,000.00, claimed by him.
Contending that respondent, through fraud and
misrepresentations had obtained the order of payment
for his services and the subsequent writs of execution
which ultimately led to his acquisition of the
property, thereby enriching himself at her expense,
petitioner, on April 21, 1962, filed a petition before
the same probate court for the reconveyance to her of
her one-eighth undivided share in the Hacienda
Evangelista by the respondent. After the filing by
respondent of his opposition, and the respective
memorandum of the parties herein, the probate court,
on November 12, 1962, issued an order, as follows:
"After considering the petition for reconveyance of
Loreto Esguerra (Gonzales) Mangaliman, dated April
21, 1962, and the opposition thereto, dated May 14,
1962, of Manuel Gonzales in support of which
opposition said Manuel Gonzales filed his
memorandum on September 12, of this year, and in
reply to which Loreto Esguerra (Gonzales)

Mangaliman filed hers on October 24, same year, the

Court is of the opinion that inasmuch as the question
of title or ownership is involved, said Manuel
Gonzales may not be divested of his title within these
probate proceedings but in an independent suit fiied
with a competent court."

petition for reconveyance has given rise to a

controversy involving rights over a real property
which would require the presentation of evidence and
the determination of legal questions that should be
ventilated in a court of general jurisdiction.

We, therefore, find no merit in this appeal.

Hence the present appeal by the petitioner.

The only question to be resolved in this appeal is,

whether or not the Court of First Instance of Manila,
as a probate court, has jurisdiction to entertain
petitioner's petition for reconveyance.

We hold that the probate court has no jurisdiction to

take cognizance of the petition for reconveyance, in
question. The remedy sought by petitioner for the
reconveyance to her of her share in the Hacienda
Evangelista upon the ground that the same was
acquired by respondent through fraud or
misrepresentation cannot be obtained by a mere
petition in the probate proceedings. The court of first
instance, acting as a probate court, has limited
jurisdiction and can take cognizance only of "matters
of probate, both testate and intestate estates, * * * and
all such special cases and proceedings as are not
otherwise provided for."2 The jurisdiction of a
probate court is limited and special, and this should
be understood to comprehend only cases related to
those powers specified in the law, and can not extend
to the adjudication of collateral matters.3

The petition filed by petitioner before the probate

court which seemingly seeks merely the
reconveyance to her of her undivided share in a
parcel of land which originally formed part of the
estate of her father in fact calls for the nullification,
of the order of execution issued by the probate court
which is already final, and of the subsequent sale of a
property to respondent, upon the alleged ground of
fraud. The defense interposed by respondent is that
petitioner's action to recover the property is already
barred by prescription, laches, and res judicata. The

WHEREFORE, the order appealed from is affirmed,

without prejudice to petitioner-appellant's filing an
action in the proper court. No pronouncement as to
costs. It is so ordered.

Concepcion, C.J., Reyes, J.B.L., Dizon,

Makalintal, Fernando, Teekankee, Villamor and
Makasiar, JJ., concur.

Castro and Barredo, JJ., did not take part.

Order affirmed.

G.R. No. L-42678 April 9, 1987

PEDRO
E.
BAYBAYAN,
CIPRIANO
EVANGELISTA, and SPOUSES BARTOLOME
and CONSUELO BAYBAYAN, petitioners,
vs.
HON. NARCISO A. AQUINO, as Presiding Judge
CFI Pangasinan Branch XIV; Deputy Sheriff
CONSTANCIO
PAGADUAN;
EULALIA
EVANGELISTA,
NORBERTO,
PAULINA,
FELIZA, all surnamed PADUA; DIONISIA,
LAUREANO,
JOSEFINA,
LEONARDO,
ANASTACIA, VALENTINA, all surnamed
ORPIANO;
SERVILLANO,
GERTRUDES,
PASTORA, LORENZO, FAUSTA, all surnamed
DELFIN; and DIONISIO, FAUSTINA, AMADO
BENJAMIN, all surnamed ORIA, respondents.

PADILLA, J.:
This is a petition for certiorari to annul and set aside
the Order issued by the respondent Judge on 4
December 1975, which dismissed, without prejudice,
the petitioners' complaint filed in Civil Case No. 23 1
-R of the then Court of First Instance of Pangasinan,
as well as the Order, dated 24 December 1975, which
denied petitioners' motion for the reconsideration of
said order.
The antecedent facts of the case are as follows:
On 19 January 1960, herein private respondents
Norberto Padua, Paulina Padua, Felisa Padua,
Dionisia Orpiano, Laureano Orpiano, Leonardo
Orpiano, Josefina Orpiano, Valentina Orpiano,
Servillano Delfin, Gertrudes Delfin, Pastors Delfin
Lorenzo Delfin, Fausta Delfin, Dionisio Oria,
Faustina Oria, Amado Oria, and Benjamin Oria, all
claiming to be the nephews and nieces of one Vicente
Oria who died intestate sometime in 1945 in
Balungao, Pangasinan, filed a petition for the
summary settlement of the decedent's estate, the
value of which did not exceed P6,000.00. The
petition was filed in the then Court of First Instance
of Pangasinan, Tayug Branch. The case was docketed
therein as Special Proceeding No. T-300. 1
After due publication and hearing, the probate court
issued an order adjudicating the estate to the heirs of
the decedent, who were ordered to submit a project of
partition. 2 Sometime in 1971, the case was
transferred to the Resales Branch of the Court of First
Instance of Pangasinan where it was docketed as
Spec. Proc. No. 24-R.
On 18 September 1974, the probate court confirmed
the adjudication earlier made and ordered Eulalia
Evangelista to deliver the respective shares of her coheirs; to make an accounting of the produce thereof
from 1960; and to deliver said produce to her co-heirs
or pay its equivalent. A writ of execution was
subsequently issued pursuant thereto. 3

A writ of possession was also issued sometime

thereafter, and the private respondents were placed in
possession of their respective shares. 4 However,
when a representative of the private respondents went
to cultivate the portion adjudicated to said private
respondents, he was prevented by Jose Diaz and
Cipriano Evangelista. In view thereof, the private
respondents filed a motion to cite said Jose Diaz and
Cipriano Evangelista in contempt of court. 5
As a consequence, herein petitioners Pedro
Baybayan, Cipriano Evangelists, and the spouses
Bartolome and Consuelo Baybayan, claiming to be
the registered owners of the lots involved, filed a
complaint in the Court of First Instance of
Pangasinan, Rosales Branch docketed therein as Civil
Case No. 231-R, against the Deputy Sheriff and the
herein private respondents, for the quieting of their
title, plus damages, and to restrain said defendants
from enforcing the writ of execution issued in Spec.
Proc. No. 24-R. 6
Meanwhile, at the hearing of the motion for contempt
in Spec. Proc. No. 24-R, the question of the Identity
of the lands subject of Spec. Proc. No. 24-R, was
brought up, so that the probate court ordered a
relocation survey and commissioned a geodetic
engineer to undertake said survey. After the survey,
the commissioner submitted to the Court a report
stating, among others, that the lands which were
delivered by the Deputy Sheriff to the heirs of
Vicente Oria, pursuant to the writ of possession
issued by the probate court, are registered in the
names of herein petitioners under TCT No. 50269
and TCT No. 50270 of the Register of Deeds of
Pangasinan. 7
By reason thereof, the probate court, in an order
dated 30 October 1975, dismissed the contempt
charge against Jose Diaz and Cipriano Evangelists.
However, the same court ordered the petitioners to
amend their complaint filed in Civil Case No. 231-R
since "it is necessary that an amended complaint be
filed by Pedro Baybayan in order to determine
whether or not the property in question is part of the
property under Spec. Proc. No. 24-R, inasmuch as it
is now the property claimed by him which is covered
by Transfer Certificate of Title No. 50269." 8

Pursuant thereto, the herein petitioners filed an

Omnibus Motion in Civil Case No. 231-R, to which
was attached an amended complaint wherein some
defendants were dropped. 9 The respondent Judge,
however, found that the Amended Complaint did not
comply with his order of 30 October 1975 to exclude
Lot E and dismissed the case, "without prejudice on
the part of the plaintiffs to file a proper complaint for
the recovery of ownership or possession of the
property in controversy which is Lot B in the
relocation plan and formerly covered by Original
Certificate of Title No. 23684, now under Transfer
Certificate of Title No. 50269." 10
The petitioners filed a motion for reconsideration of
the order, 11 but the motion was denied on 24
December 1975. 12 Thereupon, they filed with this
Court a petition for certiorari for the review of the
orders of the lower court. The Court treated the
petition as a special civil action for certiorari. 13
Counsel for the petitioners, in this petition, contends
that the respondent Judge had no authority under the
law, both substantive and procedural, to issue the
questioned orders because the order to amend the
complaint was issued in, and in connection with
Spec. Proc. No. 24-R where the herein petitioners are
not even parties.
The contention, in our opinion, is not meritorious.
While it may be true that the order to amend the
complaint filed in Civil Case No. 231-R was issued
in Spec. Proc. No. 24-R, so that it cannot ordinarily
bind the herein petitioners who are not parties in said
special proceedings, it appears, however, that the
petitioners voluntarily submitted themselves to the
jurisdiction of the probate court, when they filed an
Omnibus Motion in Civil Case No. 231-R, wherein
they prayed for leave to amend their complaint in
accordance with the order of the probate court of 30
October 1975. They cannot now be allowed belatedly
to adopt an inconsistent posture by attacking the
jurisdiction of the respondent trial Judge to whom
they submitted their cause voluntarily. 14
We find, however, that the respondent Judge
committed a grave abuse of discretion, amounting to
lack of jurisdiction, in dismissing the complaint filed

by the petitioners, for their alleged failure to amend

their complaint to exclude therefrom Lot E which the
respondent Judge found, in his order of 30 October
1975, issued in the probate court, to be owned by the
petitioners Cipriano Evangelists and Consuelo
Baybayan. The findings of the respondent Judge as to
the ownership of Lot E after the hearing conducted in
Spec. Proc. No. 24-R do not justify the order to
amend the complaint since the determination of the
ownership of the said lot by the respondent Judge
presiding over a court exercising probate jurisdiction
is not final or ultimate in nature and is without
prejudice to the right of an interested party to raise
the question of ownership in a proper action. 15
It is a well-settled rule in this jurisdiction, sanctioned
and reiterated in a long fine of decisions, that "when
questions arise as to ownership of property alleged to
be a part of the estate of a deceased person, but
claimed by some other person to be his property, not
by virtue of any right of inheritance from the
deceased, but by title adverse to that of the deceased
and his estate, such questions cannot be determined
in the courts of administrative proceedings. The
Court of First Instance, acting, as a probate court, has
no jurisdiction to adjudicate such contentions, which
must be submitted to the Court of First Instance in
the exercise of its general jurisdiction as a court of
first instance." 16
Besides, the order to amend the complaint is vague
and hazy and does not specify what the amendments
should be or how the complaint should be amended
so that the petitioners should not be faulted if the
amended complaint subsequently filed by them in
Civil Case No. 231-R does not contain the allegations
that the respondent Judge would want to appear
therein.
WHEREFORE, the petition is GRANTED and a writ
issued, setting aside the Orders issued by the
respondent Judge on 7 December 1975 and 24
December 1975, in Civil Case No. 231-R of the then
Court of First Instance of Pangasinan. Without costs.
SO ORDERED.

Fernan (Chairman), Gutierrez, Jr., Paras, Bidin and

Cortes, JJ., concur.

G.R. No. L-18799 March 31, 1964

HON. JOSE F. FERNANDEZ, Judge of the Court
of First Instance, Negros Occidental,
ASUNCION MARAVILLA, ET AL. Petitioners,
vs. HERMINIO MARAVILLA, Respondent.
Jose Gutierrez David, A. Aveto, A. Mirasol and P. C.
Ramos
for
petitioners.
Paredes, Poblador, Cruz and Nazareno for appellee.
BARRERA, J.:chanrobles virtual law library
Petitioners herein appeal by certiorari from the
decision of the Court of Appeals (in CA-G.R. No.
27200-R) wherein, over their objection, raising the
question of jurisdiction petition, the appellate court
took cognizance of the petition for certiorari and
prohibition filed by Herminio Maravilla and, in
consequence thereof, set aside the appointment of
petitioner Eliezar Lopez as a special co-administrator
of the estate of the deceased Digna Maravilla. The
pertinent antecedent facts are as follows:
On August 25, 1958, respondent Herminio Maravilla
filed with he Court of First Instance of Negros
Occidental a petition for probate of the will (Spec.
Proc. No. 4977) of his deceased wife Digna
Maravilla who died on August 12 of that same year.
In the will the surviving spouse was named as the
universal heir and executor.
On September 30, 1958, Pedro, Asuncion, and
Regina Maravilla (brother and sisters of the deceased
Digna Maravilla) filed an opposition to the probate of
the will, on the ground, inter alia, that the will was
not signed on each page by the testatrix in the
presence of the attesting witnesses and of one
another.chanroblesvirtualawlibrarychanrobles virtual
law library
On March 16, 1959, on motion of respondent
Herminio, which was opposed by Pedro, Asuncion,

and Regina Maravilla, the court issued an order

appointing him special administrator of the estate of
the deceased, for the reason that:
... all the properties subject of the will are conjugal
properties of the petitioner and his late wife, Digna
Maravilla, and before any partition of the conjugal
property is done, the Court cannot pinpoint which of
the property subject of the Will belongs to Digna
Maravilla, exclusively, that shall be administered by
the special administrator. Hence, although it is true
that the petitioner Herminio Maravilla has an adverse
interest in the property subject of the Will, the Court
finds it impossible for the present time to appoint any
person other than the petitioner as special
administrator of the property until after the partition
is ordered, for the reason that the properties
mentioned in the Will are in the name of the
petitioner who is the surviving spouse of the
deceased.
On February 8, 1960, the court rendered a decision
denying probate of the will, as it was not duly signed
on each page by the testatrix in the presence of the
attesting witnesses and of one another.
On February 17, 1960, Pedro, Asuncion, and Regina
Maravilla, filed with the court a petition for
appointment of Eliezar Lopez (son of Asuncion
Maravilla) as special co-administrator to protect their
interests, on the ground that the will, having been
denied probate, they are the legal heirs of the
decedent. Said petition was heard on February 20, at
which hearing, respondent's counsel orally moved for
postponement, because respondent's principal counsel
(Salonga) had not been notified and was not present.
The court ordered presentation of oral evidence,
consisting of the testimonies of Eliezar Lopez, and
Regina and Francisco Maravilla.
On February 26, 1960, respondent filed with the
court his notice of appeal, appeal bond and record on
appeal, from the decision denying probate of the will.
Some devisees under the will, likewise, appealed
from said decision.
On February 25, 1960, Pedro, Asuncion, and Regina
Maravilla, filed with the court a petition for the

removal of respondent as special administrator, as he

failed to file an inventory within 3 months from his
appointment
and
qualification
as
special
administrator, as provided for in Section 1, Rule 84,
of the Rules of Court. To this petition, respondent
filed an opposition, on the ground that said provision
of the Rules of Court does not apply to a special
administrator, and an inventory had already been
submitted by him, before said petition for his removal
was filed.

From this order, respondent, on March 7, 1960, filed

with the Court of Appeals a petition for certiorari and
prohibition (with prayer for preliminary injunction)
to annul the order appointing Eliezar Lopez as special
co-administrator, and to prohibit the probate court
from further proceeding with the petition for the
removal of respondent as special administrator. The
Court of Appeals issued a writ of preliminary
injunction on March 9, 1960 which was amended on
March 11, 1960 to make it more specific.

On February 27, 1960, the devisees Conchita and

Rose Marie Kohlhaas filed with the court a petition
for appointment of Conchita as special coadministratrix. Devisee Adelina Sajo, likewise, filed a
similar
petition
February
29.chanroblesvirtualawlibrarychanrobles virtual law
library

On October 6, 1960, petitioners Regina Maravilla, et

al. filed with the Court of Appeals a petition to certify
the case to the Supreme Court, on the grounds that
the principal amount in controversy in this case
exceeds P200,000.00, and the writs (of certiorari and
prohibition) prayed for are not in aid of appellate
jurisdiction of the Court of Appeals, since the probate
case is not on appeal before it. To this petition,
respondent filed an opposition. on the grounds that
the amount in controversy is less than P200,000.00
and the decision of the probate court (of February 8,
1960) is now on appeal before the Court of Appeals
(CA-G.R. No. 27478-R); hence, the writ prayed for is
in aid of its appellate jurisdiction, and the present
case does not involve title to or possession of real
estate exceeding in value P200,000.00.1chanrobles
virtual law library

On March 5, 1960, the court held a joint hearing the

(1) petition to appoint Eliezar Lopez as special
administrator, (2) approval of respondent's record
appeal and appeal bond, (3) petition to remove
respondent as special administrator, (4) petition to
appoint Conchita Kohlhaas as special coadministratrix, and (5) petition to appoint Adelina
Sajo as special co-administrator. At said hearing,
respondent objected to the appointment of Eliezar
Lopez was special co-administratrix, on grounds that
(a) the law allows only one special co-administrator
(b) the order of March 16, 1959 estops the court from
appointing Eliezar Lopez as special co-administrator
(c) such appointment is unfair to respondent, because
owns at least 3/4 of the whole property, conjugal
nature, which would be subjected to the administrate
of a stranger, and (d) a deadlock between two special
administrators would ruin the management of the
property, including those of respondent. On crossexamination of Eliezar Lopez, respondent's counsel
elicited the facts that (1) Lopez was employed full
time in the PCAPE, with office in Manila. and could
not discharge the functions of a co-administrator, and
(2) there was merely intention on Lopez part to resign
from office.
After said joint hearing, the court appointed Eliezar
Lopez as special co-administrator in an order dictated
open court, to protect the interests of Pedro, Asuncion
and Regina Maravilla.

On May 16, 1961, the Court of Appeals rendered a

decision granting the writs (certiorari and
prohibition) prayed for by respondent, and declaring
null and void the appointment of Eliezar Lopez as
special co-administrator.
Petitioners Regina Maravilla, et al. filed a motion for
reconsideration of said decision, but it was denied by
the Court of Appeals. Hence, this appeal.
Petitioners claim that the Court of Appeals had no
jurisdiction to issue the writs of certiorari and
prohibition prayed for by respondent, the same not
being in aid of its appellate jurisdiction.
We agree with petitioners. The Court of Appeals, in
the decision appealed from, assumed jurisdiction over
the present case on the theory that "the amount in
controversy relative to the appointment of Eliezar

Lopez as special co-administrator to protect the

interests of respondents (herein petitioners) is only
P90,000.00 more or less, i.e., one fourth of the
conjugal property" (of respondent and the deceased
Digna Maravilla) which, is per inventory submitted
by respondent as special administrator is valued at
P362,424.90. This theory is untenable. Note that the
proceedings had on the appointment of Eliezar Lopez
as special co-administrator are merely incidental to
the probate or testate proceedings of the deceased
Digna Maravilla presently on appeal before the Court
of Appeals (CA-G.R. No. 27478-R) where
petitioners' motion to elevate the same to the
Supreme Court, on the ground that the amount herein
involved is within the latter's exclusive jurisdiction, is
still pending, resolution. That the Court of Appeals
has no appellate jurisdiction over said testate
proceedings cannot be doubted, considering that the
properties therein involved are valued at
P362,424,90, as per inventory of the special
administrator.
Under Section 2, Rule 75, of the Rules of Court, the
property to be administered and liquidated in testate
or intestate proceedings of the deceased spouse is, not
only that part of the conjugal estate pertaining to the
deceased spouse, but the entire conjugal estate. This
Court has already held that even if the deceased had
left no debts, upon the dissolution of the marriage by
the death of the husband or wife, the community
property shall be inventoried, administered, and
liquidated in the testate or intestate proceedings of
the deceased spouse (Vda. de Roxas v. Pecson, et al.,
L-2211, December 20, 1948; 82 Phil. 407; see also
Vda. de Chantengco v. Chantengco, et al., L-10663,
October 31, 1958). In a number of cases where
appeal was taken from an order of a probate court
disallowing a will, this Court, in effect, recognized
that the amount or value involved or in controversy
therein is that of the entire estate (Suntay v. Suntay,
L-3087, July 31, 1954, 50 O.G. 5321; Vano v. Vda.
de Garces, et al., L-6303, June 30, 1954, 50 O.G.
3045). Not having appellate jurisdiction over the
proceedings in probate (CA-G.R. No. 27478-R),
considering that the amount involved therein is more
than P200,000.00, the Court of Appeals cannot also
have original jurisdiction to grant the writs of
certiorari and prohibition prayed for by respondent in
the instant case, which are merely incidental thereto.

In the United States, the rule is that "proceedings in

probate are appealable where the amount or value
involved is reducible to a pecuniary standard, the
amount involved being either the appellant's interest
or the value of the entire estate according as the
issues on appeal involve only the appellant's rights or
the entire administration of the estate. ... In a contest
for administration of an estate the amount or value of
the assets of the estate is the amount in controversy
for purposes of appeal." (4 C.J.S. 204). In line with
this ruling, it is to be observed that respondent's
interest as appellant in the probate proceedings (CAG.R. No. 27478-R) is, according to his theory, the
whole estate amounting to P362,424.90, or, at least
more than 3/4 thereof, or approximately P270,000.00.
Such interest, reduced to a pecuniary standard on the
basis of the inventory, is the amount or value of the
matter in controversy, and such amount being more
than P200,000.00, it follows that the appeal taken in
said proceedings falls within the exclusive
jurisdiction of the Supreme Court and should,
therefore, be certified to it pursuant to Section 17 of
the Judiciary Act of 1948, as amended.
Note also that the present proceedings under review
were for the annulment of the appointment of Eliezar
Lopez as special co-administrator and to restrain the
probate court from removing respondent as special
administrator. It is therefore, a contest for the
administration of the estate and, consequently, the
amount or value of the assets of the whole estate is
the value in controversy (4 C.J.S. 204). It appearing
that the value of the estate in dispute is much more
than P200,000.00, the Court of Appeals clearly had
no original jurisdiction to issue the writs in question.
The Court of Appeals, in the decision appealed from,
arrived at the amount of "P90,000.00 more or less",
as the amount involved in the case, upon authority of
the case of Vistan v. Archbishop (73 Phil. 20). But this
case is inapplicable, as it does not refer to the
question of administration of the estate, nor to an
order denying probate of a will, but only to the
recovery of a particular legacy consisting of the
rentals of a fishpond belonging to the estate. In an
analogous case involving the administration of a trust
fund, the United States Supreme Court held:

Where the trust fund administered and ordered to be

distributed by the circuit court, in a suit to compel the
stockholders of a corporation to pay their
subscriptions to stock to realize the fund, amounts to
more than $5,000.00, this court has jurisdiction of the
appeal, which is not affected by the fact that the
amounts decreed to some of the creditors are less
than that sum (Handly et al. vs. Stutz, et al., 34 Law
Ed. 706).
Respondent also contends that appeals in special
proceedings, as distinguished from ordinary civil
cases, are within the exclusive appellate jurisdiction
of the Court of Appeals, since they are not
enumerated in Section 17 of the Judiciary Act, as
amended. Granting, arguendo, that a special
proceeding is not a civil action, it has never been
decided that a special proceeding is not a "civil case"
(Carpenter v. Jones, 121 Cal. 362; 58 p. 842). On the
other hand, it has been held that the term "civil case"
includes special proceedings (Herkimer v. Keeler,
100 Iowa 680, N.W. 178). Moreover, Section 2, Rule
73, of the Rules of Court provides that the rules on
ordinary civil actions are applicable in special
proceedings where they are not inconsistent with, or
when they may serve to supplement the provisions
relating to special proceedings. Consequently, the
procedure of appeal is the same in civil actions as in
special proceedings. (See Moran's Comments on the
Rules of Court, Vol. II, 1957 Ed., p. 326.)chanrobles
virtual law library
The cases cited by respondent where this Court ruled
that the separate total claim of the parties and not the
combined claims against each other determine the
appellate jurisdictional amount, are not applicable to,
the instant case, because Section 2, Rule 75 of the
Rules of Court is explicit that the amount or value
involved or in controversy in probate proceedings is
that of the entire estate. Assuming, arguendo, that the
rule in the cases cited by respondent is here
applicable, it should be noted that respondent claims
the whole estate of at least more than 3/4 thereof.
Said claim, reduced to a pecuniary standard, on the
basis of the inventory, would amount to more than
P200,000.00 and, consequently, within the exclusive
jurisdiction of the Supreme Court.

The case of Ledesma v. Natividad (L-6115, May 10,

1954) cited by respondent in his brief, is also
inapplicable, because unlike the instant case, it did
not involve a contest in the administration of the
estate.
While it is true that questions of fact have been raised
in the probate proceedings (Spec. Proc. No. 4977,
CFI of Negros Occidental) which was appealed by
respondent to the Court of Appeals, it becomes
immaterial, in view of Sections 17 and 31 of the
Judiciary Act of 1948, as amended, providing that the
Supreme Court shall have exclusive appellate
jurisdiction over "all cases in which the value in
controversy exceeds two hundred thousand pesos,
exclusive of interests and costs", and that "all cases
which may be erroneously brought to the Supreme
Court, or to the Court of Appeals shall be sent to the
proper court, which shall hear the same as if it had
originally been brought before it".
On the question of the appointment of petitioner
Eliezar Lopez as special administrator, we agree with
respondent that there was no need for it. Note that the
Rules of Court contain no provision on special coadministrator, the reason being, that the appointment
of such special administrator is merely temporary and
subsists only until a regular executor or administrator
is duly appointed. Thus, it would not only be
unnecessary but also impractical, if for the temporary
duration of the need for a special administrator,
another one is appointed aside from the husband, in
this case, upon whom the duty to liquidate the
community property devolves merely to protect the
interests of petitioners who, in the event that the
disputed will is allowed to probate, would even have
no right to participate in the proceedings at all.
(Roxas v. Pecson, 82 Phil. 407.)
In view of the conclusion herein reached, in
connection with the amount involved in the
controversy, it is suggested that appropriate steps be
taken on the appeal pending in the Court of Appeals
involving the probate of the will (CA-G.R. No.
27478-R) to comply with the provisions of the
Judiciary Act on the matter.

WHEREFORE, the decision of the Court of Appeals

of May 16, 1961 is set aside and another one entered
also setting aside the order of the trial court of March
5, 1960, appointing Eliezar Lopez as special coadministrator. Without costs. So ordered.
Bengzon, C.J., Padilla Bautista Angelo, Labrador,
Concepcion, Reyes, J.B.L., Paredes, Dizon and
Regala,
JJ.,
concur.
Makalintal, J., took no part.

Villegas, case No. 4217 of the Court of First Instance

of Laguna; and injunction commanding the
respondent judge, Honorable Isidro Paredes, to
suspend the proceedings in the registration case No.
954 of the Court of First Instance of Laguna, wherein
the Philippine Food Co. is the applicant and the
minors Lazaro and Daria Mendieta opponents, until
the termination of the proceeding for the probate of
the will of Francisco Villegas, in which said minors
are named legatees of the land involved in said
registration case.

Footnote
1

Said Petition to certify is still pending resolution by

the Court of Appeals.

Manila
EN BANC
G.R. No. 24168

September 22, 1925

FLORENCIO MANALO, as guardian of the

minors Lazaro Mendieta and Daria Mendieta,
petitioner,
vs.
Honorable ISIDRO PAREDES, Judge of First
Instance of Laguna, and PHILIPPINE FOOD
COMPANY, respondents.
Francisco, Lualhati and Lopez and Juan S. Rustia for
petitioner.
Claro M. Recto, Ross, Lawrence and Selph and
Antonio T. Carrascoso, Jr., for respondents.
J.E. Blanco for the intervenor Hidalgo.
VILLA-REAL, J.:
This is a proceeding for mandamus commenced
originally in this court by Florencio Manalo, as
guardian of the minors Lazaro and Daria Mendieta,
for the issuance of a writ of mandamus addressed to
the Honorable Isidro Paredes, Judge of the Court of
First Instance of Laguna, and the Philippine Food
Co., ordering the publication of the petition for the
probate of the will of the deceased Francisco

On March 22, 1924, Laureana Hidalgo, surviving

spouse of Francisco Villegas, filed with the Court of
First Instance of Laguna an application for letters of
administration of the estate left by her deceased
husband, who, according to the application, died
intestate (rec. No. 4031, file 1, of the Court of First
Instance of Laguna).
In the course of said administration and on May 5,
1924, Justina Mendieta, Lazaro Mendieta, Daria
Mendieta and Melecio Fule, supposed testamentary
executor, through their attorney, Mr. Eusebio Lopez,
filed a motion with the court, praying for the probate
of the supposed will of Francisco Villegas, wherein
most of his property was given as a legacy to said
Justina Mendieta, the latter's children and the
legitimate wife of the deceased Francisco Villegas
(rec. No. 4031, file 1. fol. 47).
On August 8, 1924, Messrs. E.M. Lopez and V.F.
Reyes, attorneys, on behalf of the executor Melecio
Fule, filed a motion (Exhibit 3) wherein they stated
that the attesting witnesses, Exequiel Evidente and
Albino Villegas, had assured them that the supposed
will had not been executed by Francisco Villegas in
accordance with law, and that the executor Melecio
Fule no longer took interest in the case (rec. No.
4031, fol. 116).
On June 5, 1924, having received an order of the
court requiring her to produce the supposed will of
Francisco Villegas, Justina Mendieta filed a motion
wherein, among other things, she said:
That having learned of the aforesaid order of
this court, I hereby freely and spontaneously

state that I know not of any will executed by

the deceased Francisco Villegas, except the
one that I had had said deceased Francisco
Villegas sign on January 18, 1924, which he
signed at my request and inducement in
order that my children begotten by him
might have a share in his estate, as said
deceased did in fact sign said will only in
my presence and compelled by the pressure
exerted by me and for my aforesaid children.
(Rec. No. 4031, file 1, fol. 70.)
Notwithstanding the foregoing motions, the court, on
September 3, 1924, ordered the publication in the
newspaper El Debate, of Manila, of the application of
Melecio Fule and of Justina Mendieta, Lazaro
Mendieta, and Daria Mendieta for the probate of the
supposed will of the deceased Francisco Villegas,
setting said application for hearing on the 3rd day of
October, 1924 (rec. No. 4031, file 1, fol. 192).
On September 5, 1924, Justina Mendieta, together
with her children Lazaro Mendieta and Daria
Mendieta, filed another application for the probate of
the same will through their attorneys, Messrs. Azada
and Veluz (rec. No. 4031, file 1, fol. 199), and on
October 13, 1924, the same attorneys and Attorney
Marcelino Lontok, on behalf of Justina Mendieta and
her minor children, filed a motion for the
appointment of a guardian ad litem for said minors
(rec. No. 4031, file 2, fol. 117).
At the trial which was held October 16, 1924, the
court below appointed Justina Mendieta, natural
mother of said minors, as their guardian ad litem.
Laureana Hidalgo entered her objection to the
probate of the will (rec. No. 4031, file 2, fol. 136)
and immediately the court proceeded to hear the
evidence of the parties, each and everyone of the
attesting witnesses of the supposed will, named
Tomas Dizon, Albino Villegas, and Exequiel
Evidente having testified, and the applicants having
introduced Exhibits A, B, C, D, E, F, G, H, I, J, K, L,
M, and N and the opponent Exhibits 1, 2, 3, and 4,
the trial having been suspended thereafter, to be
continued on October 24, 1924.

When the case was filed on October 24, 1924, for the
continuation of the trial, Justina Mendieta, for herself
and in her capacity as guardian ad litem of her minor
children Lazaro Mendieta and Daria Mendieta,
represented by their attorneys, Messrs. Marcelino
Lontok and Marcial Azada, on the one hand, and
Laureana Hidalgo, represented by her attorney, Mr.
J.E. Blanco, on the other, submitted to the court an
agreement wherein Justina Mendieta stated that she
withdrew her application for the probate of the
supposed will of the deceased Francisco Villegas on
the ground that the evidence was insufficient to
justify the probate of said will, and consequently, she
prayed that said will be held not allowable to probate
and that the deceased died intestate, without leaving
any more heirs than his legitimate wife, Laureana
Hidalgo, and his two adulterous children, Lazaro and
Daria Mendieta, and that the property of the deceased
be distributed in accordance with said agreement
(rec. No. 4031, file 2, fol. 171).
By an order dated October 25, 1924, the court
approved said stipulation and rendered judgment,
holding that the supposed will of Francisco Villegas
could not be probated, and awarding to the heirs of
the deceased the estate left by Francisco Villegas in
accordance with said agreement (rec. No. 4031, file
2, fol. 173). From this order no appeal has been
taken.
On January 7, 1925, one Gelacio Malihan, who
claimed to be first cousin of the deceased Francisco
Villegas, filed with the court a new application for
the probate of the same supposed will of the deceased
Francisco Villegas (rec. No. 4217).
As may be seen from the facts above stated, the will,
the probate of which is applied for in the petition
dated January 7, 1925, is the same one that was the
subject of the application of May 5, 1924, and of
September 5, 1924. The only difference lies in that
the first application was filed by Justina Mendieta
and her minor children Lazaro Mendieta and Daria
Mendieta and Melecio Fule, supposed testamentary
executor, all represented by the attorney, Mr. Eusebio
M. Lopez; the second by Justina Mendieta and her
minor children Lazaro Mendieta and Daria Mendieta,
represented by the attorneys Messrs. Azada and
Veluz; and the third and last by one Gelacio Malihan

who claimed to be first cousin of the deceased

Francisco Villegas.

of them taking what pertained to him (25 R.C.L.,

359).

The proceeding for the probate of a will is a

proceeding in rem (40 Cyc., p. 1265), and the court
acquires jurisdiction over all the persons interested
through the publication of the notice prescribed by
section 630 of the Code of Civil Procedure, and any
order that may be entered is binding against all of
them. Through the publication ordered by the Court
of First Instance of Laguna of the application for the
probate of the supposed will of Francisco Villegas,
filed by Justina Mendieta and her minor children
Lazaro and Daria Mendieta and Melecio Fule,
testamentary executor, through their attorney, Mr.
Eusebio Lopez, said court acquired jurisdiction over
all such persons as were interested in the supposed
will, including Gelacio Malihan. The court having
tried said application for probate, hearing all the
testimony of the attesting witnesses of the said
supposed will, the applicant Justina Mendieta for
herself and as guardian ad litem of her minor
children, represented by their attorneys, Messrs.
Marcelino Lontok and Marcial Azada, on the one
hand, and Laureana Hidalgo, widow of Francisco
Villegas, represented by her attorney, Jesus. E.
Blanco, on the other, having submitted a stipulation
wherein the former withdrew her application and the
latter reserved certain rights over the estate left by
Francisco Villegas in favor of Justina Mendieta and
her minor children; and the court having approved
said stipulation and declared that Francisco Villegas
died intestate according to said agreement, all the
parties became bound by said judgment; and if any of
them or other persons interested were not satisfied
with the court's decision, they had the remedy of
appeal to correct any injustice that might have been
committed, and cannot now through the special
remedy of mandamus, obtain a review of the
proceeding upon a new application for the probate of
the same will in order to compel the respondent judge
to comply with his ministerial duty imposed by
section 330 of the Code of Civil Procedure; because
this remedy, being extraordinary, cannot be used in
lieu of appeal, or writ of error (26 Cyc., 177; 18
R.C.L., par. 443); especially when the parties
interested have agreed to disregard the testamentary
provisions and divide the estate as they pleased, each

The first ground of the petition for mandamus is a

consequence of the second and we need not deal with
it.
As to the motion of the petitioner that the record of
the proceeding be transmitted to the AttorneyGeneral for investigation, in order to discover any
irregularity or fraud that may have been committed,
and to institute the proper proceeding against those
who may be found guilty, this court will take no
action unless specific charges are filed.
For all the foregoing, the petition for mandamus is
denied with the costs against the petitioner. So
ordered.
Avancea, C.J., Johnson, Street, Malcolm, Villamor,
Ostrand, Johns and Romualdez, JJ., concur.

EN BANC
G.R. No. 45642

September 25, 1937

FRANCISCO
SALAZAR,
petitioner,
vs.
THE COURT OF FIRST INSTANCE OF
LAGUNA and SABINA RIVERA, respondents.
Crispin
Oben
for
petitioner.
Estanislao A. Fernandez for respondent Rivera.
IMPERIAL, J.:
The petitioner instituted special proceeding No. 3109
in the court of First Instance of Laguna and, in the
petition filed by him, prayed for the probate of the
will allegedly made on May 13, 1924, by his
deceased mother Damiana Capistrano, who died in
the municipality of Pagsanjan, Laguna, on December
21, 1936. The petition was opposed by the respondent
Sabina Rivera, who filed a pleading entitled
"Opposition and Counter-Petition." In her pleading
the respondent, after opposing the probate of said will
for the reasons stated therein, prayed for the probate
of the will of the deceased alleged made on May 11,
1930, copy of which was attached thereto, and for the

issuance, to that effect, of the order setting the

hearing thereof and directing such publications as
required by law. The court denied the motion for
publication and ordered the respondent to institute
another proceeding and apply separately for the
probate of the alleged will. The respondent filed a
motion for reconsideration and the court, on March
31, 19937, issued an order setting aside the former
one and directing that the will presented by the
respondent be set for hearing, that the publications
required by law be made and that said will be heard
jointly with the will presented by the petitioner in the
same proceeding instituted by the latter. Sometime
later, the court ordered that the expenses for the
publications made in the newspapers be defrayed by
the respondent. The petitioner filed two motions for
reconsideration which were denied and, finally,
instituted this certiorari proceeding. In order that the
hearing and publications ordered by the court may be
carried out, the respondent, on July 20, 1937,
deposited P24 and filed the original of the will the
probate of which had been sought by her.
I. The petitioner raises only one question of law, to
wit: that the court acquired no jurisdiction to take
cognizance of the counter-petition for the probate of
the second will, or to set the same for hearing of said
will to be held in the same proceeding jointly with
the first will, on the ground that the respondent had
not previously filed her pleading nor paid the fees of
the clerk of court fixed by section 788 of the Code of
Civil Procedure, as amended by Act No. 3395. The
pertinent part of said section, as amended, reads as
follows:
SEC. 788. Fees of clerks of Court of First
Instance. Fees shall assessed in
accordance with the following schedule:
xxx

xxx

xxx

(g) For all clerical services in the allowance

of wills, granting letters of administration,
appointment
of
guardians,
trustees,
settlement of the accounts of executors,
administrators, guardians, trustees, and
recording final and interlocutory orders,
judgment, and decrees therein, filing all
inventories and appraisements, and for all
other work as clerk pertaining to any one
estate, fees payable out of the estate shall be
collected in accordance with the value of the
property involved in each proceeding, as
follows:

xxx

xxx

xxx

The jurisdiction of the Courts of First Instance in

probate matters is determined in the following
sections of the above-cited Code:
SEC. 599. Jurisdiction. Courts of First
Instance shall have jurisdiction in all matters
relating to the settlement of estate and
probate of wills of deceased persons, the
appointment and removal of guardians and
trustees, and the powers, duties, and rights
of guardians and wards, trustees, and cestuis
que trust. This jurisdiction shall be called
probate jurisdicton.
SEC. 600. Where resident's estate settled.
If an inhabitant of the Philippine Islands
dies, whether a citizen or alien, his will shall
be proved, or letters of administration
granted, and his estate settled, in the Court
of First Instance in the province in which he
resided at the time of his death.
SEC. 601. Where nonresident's estate
settled. If a person resided out of the
Philippine Islands at the time of his death,
his will shall be allowed and recorded, and
letters testamentary or of administration
shall be granted in the Court of First
Instance of any province in which he had
estate.
xxx

xxx

xxx

SEC. 626. Custodian of will to deliver.

The person who has the custody of a will
shall, within thirty days after he knows of
the death of the testator, deliver the will into
the court which has jurisdiction, or to the
executor named in the will.
SEC. 627. Executor to present will and
accept or refuse trust. A person named as
executor in a will, shall within thirty days
after he knows of the death of the testator, or
within thirty days after he knows that he is
named executor, if he obtained such
knowledge after knowing of the death of the
testator, present such will to the court which
has jurisdiction, unless the will has been
otherwise returned to said court, and shall,
within such period, signify to the court his

acceptance of the trust, or make known in

writing his refusal to accept it.
xxx

xxx

xxx

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 newspapers as the court directs 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.
Under the foregoing provisions, a Court of First
Instance acquires jurisdiction to probate a will when
it is shown by evidence before it: (1) That a person
has died leaving a will; (2) in the case of a resident of
this country, that he died in the province where the
court exercises territorial jurisdiction; (3) in the case
of a nonresident, that he has left a estate in the
province where the court is situated, and (4) that the
testament or last will of the deceased has been
delivered to the court and is in the possession thereof.
The law is silent as to the specific manner of bringing
the jurisdictional allegations before the court but
practice and jurisprudence have established that they
should be made in the form of an application and
filed with the original of the will attached thereto. It
has been the practice in some courts to permit
attachment of a mere copy of the will to the
application, without prejudice to producing the
original thereof at the hearing or when the court so
requires. This precaution has been adapted by some
attorneys to forestall its disappearance, which has
taken place in certain cases.
According to the facts alleged and admitted by the
parties, it is evident that the court has acquired
jurisdiction to probate the second will, in view of the
presence of all the jurisdictional facts above-stated.
The respondent's counter-petition should, in this case,
be considered as a petition for the probate of the
second will, the original of which was filed by her on
July 20, 1937.
II. The payment of the fees of the clerk of court for
all services to be rendered by him in connection with

the probate of the second will and for the successive

proceedings to be conducted and others to be issued,
in accordance with section 788, as amended, is not
jurisdiction in the sense that its omission does not
deprive the court of its authority to proceed with the
probate of a will, as expressly provided for by section
630. It is the inevitable duty of the court, when a will
is presented to it, to appoint hearing for its allowance
and to cause notice thereof to be given by
publication. The duty imposed by said section is
imperative and noncompliance therewith would be a
mockery at the law and at last will of the testator.
Section 785 (a) of the Code of Civil Procedure, as
amended recently by Act No. 3250, permits the
remission or postponement of the payment of the
clerk's fees in cases of poverty, at the discretion of the
court, and if this were done in one case and the
payment of the fees for filing the application were
jurisdictional, is claimed, then the court, in admitting
the will to probate and in allowing it, would have
acted entirely without jurisdiction. Finally, it should
be taken into consideration that the court, in this case,
did not exempt the respondents from paying the fees
in question but merely failed to make provision
therefor.
III. When the court ordered that the second will be set
for hearing that publication be made thereof and that
said will be heard in the same proceeding jointly with
the first will, it merely ordered the consolidation of
the two applications and the two hearing on the
probate of both wills, instead of conducting separate
hearing, undoubtedly because it understood that the
form so chosen was the most convenient for the
parties and their attorneys.
There are three ways of consolidation action or
special proceedings where the questions at issue and
the parties in interest are the same. The first consists
in recasting the cases already instituted, conducting
only one hearing and rendering only one decision; the
second takes place when the existing cases are
consolidated, only one hearing held and only one
decision rendered; and the third takes place when,
without recasting or consolidating the cases, the
principal one is heard, the hearing on the others being
suspended until judgment has been rendered in the
first case. The court, in the exercise of its sound
discretion, may adopt any of these three forms of
consolidation whenever in its opinion the proceeding
is beneficial to and convenient for the parties. The
power so exercised is discretionary. In the case under
consideration, the court acquired jurisdiction from the
moment the counter-petition was presented and the
second will came to its possession and under its

control and, consequently, it likewise had full

discretion to order, as it did, the probate thereof in the
proceeding already instituted for the purpose of
rendering later only one decision. It should
furthermore be taken into consideration that the
consolidation so ordered was the form most
convenient for and beneficial to the parties as well as
to the court because if the first will were opposed on
the ground that it was revoked by the second will, the
best evidence of the revocation would be said second
will and once the publications are made, if the second
will was executed with the formalities prescribed by
law, the court could order the probate thereof, without
the necessity of multiplying the proceedings.
The decisions inserted hereinbelow are in support of
the consolidation of special proceedings in the cases
where more than one will of a deceased person has
been presented:
The question involved in the two cases is,
which, if either, of the instruments presented
for probate is the last will of Margaret
Roulett. The trial of one case would not
necessarily determine the other, as a verdict
in one for the caveat would not establish the
instrument propounded in the other, and a
verdict in Roulett's case, finding that the
paper offered by him was the last will of
Margaret Roulett, would not be binding
upon Mulherin, because he is not a party to
Roulett's proceeding. We are, therefore, of
the opinion, in view of the complications
that might arise from separate trials and the
facility with which the whole matter may be
determined by consolidating the cases, that
the trial judge might, in his discretion, pass
an order directing that the two cases be
consolidated and heard together, and in this
manner have all the issues disposed of by a
judgment binding and conclusive upon all
the parties before the court. In such trial the
person who filed the first application in the
court of ordinary would be entitled to open
and conclude. (Roulett vs Mulherin, 100
Ga., 594.)
In probate proceeding it was a proper course
to try the validity of two alleged wills, the
latest of which had been lost or destroyed at
the same time, and evidence as to the
revoking clause in the lost will was
admissible, but its effect on the earlier will
must be determined in view of the
admissibility of the latter will to probate as a

will. (In re Thompson's Estate, 1987 Pac.,

795.).
Where two wills are offered for probate and
applications consolidated, submission of
both for determination as to whether one, or
if not that the other, is true will, held not
erroneous. (Lillard vs Tolliver, 285 S. W.,
576.).
Where two instruments are propounded by
different parties as wills, and several
application are made for probate, they will
be consolidated and tried together as one
proceeding. (In re Potter's Will, 155 N. Y. S.,
939.).
The
question
of
consolidation
is
discretionary with the court. In both of the
above-entitled proceedings, the parties are
identical. No issues have been tried in either
proceeding. It therefore would be an
unnecessary expense to both the parties in
interest and the country, and an unnecessary
delay in the determination of both
proceedings, not to consolidate them. I am
therefore of the opinion that a seasonable
demand was made for a jury trial of the
issues raised by the objections filed to the
probate of the will dated May 8, 1912, and
that the proceedings should be consolidated,
and also that the issues raised in said
proceedings can be more speedily and
conveniently tried before the acting
surrogate and a jury. (In re Potter's Will, 158
N.Y., 1001.)
Where separate scripts are propounded for
probate as the last will and testament of an
alleged testator, the probate proceedings in a
proper case may be consolidated for trial.
(In re Martin's Will, 141 N. Y. S., 784.)
Consolidation of proceedings. At
common law the court could order all
testamentary papers to be produced in court
in a proceeding to probate any one of them,
and now, under the statutory procedure in
effect in the various jurisdiction, the validity
of two or more papers claimed to be the last
will and testament of deceased may be tried
at the same time, or a consolidation of
separate proceedings to probate or contest
various testamentary papers purported to be
by the same testator may be made. A motion

for such a consolidation, however, is

addressed to the surrogate presiding at the
trial and should be made when the trial of
the probate proceeding comes on for the
hearing and not prior thereto, or before the
surrogate sitting for the dispatch of
chambers business. (68 C. J., 1038. 1039,
sec. 830.).
The court may, in its discretion, consolidate
proceedings instituted by different persons
for the purpose of having different
instrument each probated as the last will and
testament of decedent. Separate contests of a
will and a codicil, or of two wills, each
claimed to be the last will of testator, may be
consolidated by the court and heard together.
(Page on Wills, Page 375, paragraph 323.)
It is the conclusion of this court, therefore, that the
respondent court did not act in excess of its sound
discretion in issuing the other of March 31, 1937, and
for the foregoing reasons, the remedy applied for is
hereby denied, with costs to the petitioner. So
ordered.
Avancea, C.J., Villa-Real, Abad Santos, Diaz,
Laurel and Concepcion, JJ., concur.

R ES OLUTION
October 13, 1937
IMPERIAL, J.:
The attorney for the petitioner seeks permission to
file a second motion for reconsideration already
attached to his petition. With the motion for
reconsideration before it this court will now take up
the same for decision on its merits.
It is alleged that the interpretation of paragraph (g) of
section 788 of the Code of Civil Procedure, as
amended by section 1 of Act No. 3395, was one of
the questions raised by the petition for certiorari, but
that both in the decision and in the resolution of the
motion for reconsideration this court has neither
given nor interpreted the meaning and scope of the
phrase "in each proceeding" appearing at the end of
the legal provision in question.

On page 2 of the decision, this court stated that the

only question of law raised by the petition was
whether or not the court had acquired jurisdiction
when it provided in its orders that the counter-petition
and the second will be heard in the proceeding
already instituted at the initiative of the petitioner and
that the expenses of publication of the hearing be
defrayed by the respondent. This court then said:
"The petitioner raises only one question of law, to
writ: that the court acquired no jurisdiction to take
cognizance of the counter-petition for the probate of
the second will, or to set the same for hearing and to
order, as it did, the publications to be made and the
hearing of said will to be held in the same proceeding
jointly with the first will, on the ground that the
respondent had not previously filed her pleading nor
paid the fees of the clerk of court amended by Act
No. 3395."
In connection with the fees of the clerk of court
prescribed by section 788 (g) of the Code of Civil
Procedure, as amended, this court, on pages 6 and 7
of the decision, said: "The payment of the fees of the
clerk of court for all services to be rendered by him in
connection with the probate of the second will and
for the successive proceedings to be conducted and
orders to be issued, in accordance with section 788,
as amended, is not jurisdictional in the sense that its
omission does not deprive the court of its authority to
proceed with the probate of a will, as expressly
provided for by section 630. It is the inevitable duty
of the court, when a will is presented to it, to appoint
hearing for its allowance and to cause notices the to,
be given by publication. The duty imposed said
section is imperative and noncompliance therewith
would be a mockery at the law and at the last will of
the Section 785 (a) of the Code of Civil Procedure, as
amended recently by Act No. 3250, permits the
remission or postponement of the payment of the
clerk's fees in case of poverty, at the discretion of the
court, and if this were done in one case and the
payment of the fees for filing the application were
jurisdiction, as claimed, then the court, in admitting
the will to probate and in allowing it, would have
acted entirely without jurisdiction. Finally, it should
be taken into consideration that the court, in this case,
did not exempt the respondents from paying the fees
in question but merely failed to make provision
therefor."
It having been decided that the payment of said fees
is not jurisdictional, this court, in fact, determined the
principal and only question of law raised by the
petition and there was no necessity of interpreting

said legal provision for the purpose of laying another

unnecessary conclusion.
In the second motion for reconsideration, however,
the attorney for the petitioner asks this court to
interpret expressly the phrase "in each proceeding" to
determine whether or not the respondent was and is
obtained to pay said clerk's fees. If the interpretation
asked for is to determine the question of jurisdiction,
that is, whether or not the court acquired jurisdiction
in issuing its orders appealed from, it has already
been done and it was said that the payment of said
fees is not jurisdictional. If the interpretation sought
to be obtained is for the purpose of having this court
decide now whether the respondent should, or should
not, pay the clerk's fees, then this court holds that
such pronouncement is unnecessary and improper for
the following reasons: (1) Because to decide whether
or not the petition is meritorious, there is no necessity
of determining whether or not the respondent is
obliged to pay the clerk's fees, and (2) because it
behooves the lower court to decide this question in
the first instance and it is improper for this appellate
court to exercise the function belonging to the former.
In view of the foregoing the second motion for
reconsideration is denied.
Avancea, C.J., Villa-Real, Abad Santos, Diaz,
Laurel and Concepcion, JJ., concur.

G.R. No. L-54919 May 30, 1984

POLLY
CAYETANO,
petitioner,
vs.
HON. TOMAS T. LEONIDAS, in his capacity as
the Presiding Judge of Branch XXXVIII, Court of
First Instance of Manila and NENITA CAMPOS
PAGUIA, respondents.
Ermelo P. Guzman for petitioner.
Armando Z. Gonzales for private respondent.

GUTIERREZ, JR., J.:

This is a petition for review on certiorari, seeking to
annul the order of the respondent judge of the Court

of First Instance of Manila, Branch XXXVIII, which

admitted to and allowed the probate of the last will
and testament of Adoracion C. Campos, after an exparte presentation of evidence by herein private
respondent.
On January 31, 1977, Adoracion C. Campos died,
leaving her father, petitioner Hermogenes Campos
and her sisters, private respondent Nenita C. Paguia,
Remedios C. Lopez and Marieta C. Medina as the
surviving heirs. As Hermogenes Campos was the
only compulsory heir, he executed an Affidavit of
Adjudication under Rule 74, Section I of the Rules of
Court whereby he adjudicated unto himself the
ownership of the entire estate of the deceased
Adoracion Campos.
Eleven months after, on November 25, 1977, Nenita
C. Paguia filed a petition for the reprobate of a will of
the deceased, Adoracion Campos, which was
allegedly executed in the United States and for her
appointment as administratrix of the estate of the
deceased testatrix.
In her petition, Nenita alleged that the testatrix was
an American citizen at the time of her death and was
a permanent resident of 4633 Ditman Street,
Philadelphia, Pennsylvania, U.S.A.; that the testatrix
died in Manila on January 31, 1977 while temporarily
residing with her sister at 2167 Leveriza, Malate,
Manila; that during her lifetime, the testatrix made
her last wig and testament on July 10, 1975,
according to the laws of Pennsylvania, U.S.A.,
nominating Wilfredo Barzaga of New Jersey as
executor; that after the testatrix death, her last will
and testament was presented, probated, allowed, and
registered with the Registry of Wins at the County of
Philadelphia, U.S.A., that Clement L. McLaughlin,
the administrator who was appointed after Dr.
Barzaga had declined and waived his appointment as
executor in favor of the former, is also a resident of
Philadelphia, U.S.A., and that therefore, there is an
urgent need for the appointment of an administratrix
to administer and eventually distribute the properties
of the estate located in the Philippines.
On January 11, 1978, an opposition to the reprobate
of the will was filed by herein petitioner alleging

among other things, that he has every reason to

believe that the will in question is a forgery; that the
intrinsic provisions of the will are null and void; and
that even if pertinent American laws on intrinsic
provisions are invoked, the same could not apply
inasmuch as they would work injustice and injury to
him.
On December 1, 1978, however, the petitioner
through his counsel, Atty. Franco Loyola, filed a
Motion to Dismiss Opposition (With Waiver of
Rights or Interests) stating that he "has been able to
verify the veracity thereof (of the will) and now
confirms the same to be truly the probated will of his
daughter Adoracion." Hence, an ex-parte presentation
of evidence for the reprobate of the questioned will
was made.
On January 10, 1979, the respondent judge issued an
order, to wit:
At the hearing, it has been
satisfactorily
established
that
Adoracion C. Campos, in her
lifetime, was a citizen of the United
States of America with a permanent
residence at 4633 Ditman Street,
Philadelphia, PA 19124, (Exhibit
D) that when alive, Adoracion C.
Campos executed a Last Will and
Testament in the county of
Philadelphia, Pennsylvania, U.S.A.,
according to the laws thereat
(Exhibits E-3 to E-3-b) that while
in temporary sojourn in the
Philippines, Adoracion C. Campos
died in the City of Manila (Exhibit
C) leaving property both in the
Philippines and in the United States
of America; that the Last Will and
Testament of the late Adoracion C.
Campos was admitted and granted
probate by the Orphan's Court
Division of the Court of Common
Pleas, the probate court of the
Commonwealth of Pennsylvania,
County of Philadelphia, U.S.A.,
and letters of administration were
issued in favor of Clement J.

McLaughlin all in accordance with

the laws of the said foreign country
on procedure and allowance of
wills (Exhibits E to E-10); and that
the petitioner is not suffering from
any disqualification which would
render her unfit as administratrix of
the estate in the Philippines of the
late Adoracion C. Campos.
WHEREFORE, the Last Will and
Testament of the late Adoracion C.
Campos is hereby admitted to and
allowed probate in the Philippines,
and Nenita Campos Paguia is
hereby appointed Administratrix of
the estate of said decedent; let
Letters of Administration with the
Will annexed issue in favor of said
Administratrix upon her filing of a
bond in the amount of P5,000.00
conditioned under the provisions of
Section I, Rule 81 of the Rules of
Court.
Another manifestation was filed by the petitioner on
April 14, 1979, confirming the withdrawal of his
opposition, acknowledging the same to be his
voluntary act and deed.
On May 25, 1979, Hermogenes Campos filed a
petition for relief, praying that the order allowing the
will be set aside on the ground that the withdrawal of
his opposition to the same was secured through
fraudulent means. According to him, the "Motion to
Dismiss Opposition" was inserted among the papers
which he signed in connection with two Deeds of
Conditional Sales which he executed with the
Construction and Development Corporation of the
Philippines (CDCP). He also alleged that the lawyer
who filed the withdrawal of the opposition was not
his counsel-of-record in the special proceedings case.
The petition for relief was set for hearing but the
petitioner failed to appear. He made several motions
for postponement until the hearing was set on May
29, 1980.

On May 18, 1980, petitioner filed another motion

entitled "Motion to Vacate and/or Set Aside the Order
of January 10, 1979, and/or dismiss the case for lack
of jurisdiction. In this motion, the notice of hearing
provided:
Please include this motion in your
calendar for hearing on May 29,
1980 at 8:30 in the morning for
submission for reconsideration and
resolution of the Honorable Court.
Until this Motion is resolved, may I
also request for the future setting of
the case for hearing on the
Oppositor's motion to set aside
previously filed.
The hearing of May 29, 1980 was re-set by the court
for June 19, 1980. When the case was called for
hearing on this date, the counsel for petitioner tried to
argue his motion to vacate instead of adducing
evidence in support of the petition for relief. Thus,
the respondent judge issued an order dismissing the
petition for relief for failure to present evidence in
support thereof. Petitioner filed a motion for
reconsideration but the same was denied. In the same
order, respondent judge also denied the motion to
vacate for lack of merit. Hence, this petition.
Meanwhile, on June 6,1982, petitioner Hermogenes
Campos died and left a will, which, incidentally has
been questioned by the respondent, his children and
forced heirs as, on its face, patently null and void,
and a fabrication, appointing Polly Cayetano as the
executrix of his last will and testament. Cayetano,
therefore, filed a motion to substitute herself as
petitioner in the instant case which was granted by
the court on September 13, 1982.
A motion to dismiss the petition on the ground that
the rights of the petitioner Hermogenes Campos
merged upon his death with the rights of the
respondent and her sisters, only remaining children
and forced heirs was denied on September 12, 1983.
Petitioner Cayetano persists with the allegations that
the respondent judge acted without or in excess of his
jurisdiction when:

1) He ruled the petitioner lost his

standing in court deprived the
Right to Notice (sic) upon the filing
of the Motion to Dismiss
opposition with waiver of rights or
interests against the estate of
deceased Adoracion C. Campos,
thus, paving the way for the
hearing ex-parte of the petition for
the probate of decedent will.
2) He ruled that petitioner can
waive, renounce or repudiate (not
made in a public or authenticated
instrument), or by way of a petition
presented to the court but by way
of a motion presented prior to an
order for the distribution of the
estate-the law especially providing
that repudiation of an inheritance
must be presented, within 30 days
after it has issued an order for the
distribution of the estate in
accordance with the rules of Court.
3) He ruled that the right of a
forced heir to his legitime can be
divested by a decree admitting a
will to probate in which no
provision is made for the forced
heir in complete disregard of Law
of Succession
4) He denied petitioner's petition
for Relief on the ground that no
evidence was adduced to support
the Petition for Relief when no
Notice nor hearing was set to afford
petitioner to prove the merit of his
petition a denial of the due
process and a grave abuse of
discretion amounting to lack of
jurisdiction.
5) He acquired no jurisdiction over
the testate case, the fact that the
Testator at the time of death was a
usual resident of Dasmarias,

Cavite, consequently Cavite Court

of First Instance has exclusive
jurisdiction over the case (De Borja
vs. Tan, G.R. No. L-7792, July
1955).

Adoracion's will, Hermogenes C. Campos was

divested of his legitime which was reserved by the
law for him.

The first two issues raised by the petitioner are

anchored on the allegation that the respondent judge
acted with grave abuse of discretion when he allowed
the withdrawal of the petitioner's opposition to the
reprobate of the will.

Although on its face, the will appeared to have

preterited the petitioner and thus, the respondent
judge should have denied its reprobate outright, the
private respondents have sufficiently established that
Adoracion was, at the time of her death, an American
citizen and a permanent resident of Philadelphia,
Pennsylvania, U.S.A. Therefore, under Article 16 par.
(2) and 1039 of the Civil Code which respectively
provide:

We find no grave abuse of discretion on the part of

the respondent judge. No proof was adduced to
support petitioner's contention that the motion to
withdraw was secured through fraudulent means and
that Atty. Franco Loyola was not his counsel of
record. The records show that after the firing of the
contested motion, the petitioner at a later date, filed a
manifestation wherein he confirmed that the Motion
to Dismiss Opposition was his voluntary act and
deed. Moreover, at the time the motion was filed, the
petitioner's former counsel, Atty. Jose P. Lagrosa had
long withdrawn from the case and had been
substituted by Atty. Franco Loyola who in turn filed
the motion. The present petitioner cannot, therefore,
maintain that the old man's attorney of record was
Atty. Lagrosa at the time of filing the motion. Since
the withdrawal was in order, the respondent judge
acted correctly in hearing the probate of the will exparte, there being no other opposition to the same.
The third issue raised deals with the validity of the
provisions of the will. As a general rule, the probate
court's authority is limited only to the extrinsic
validity of the will, the due execution thereof, the
testatrix's testamentary capacity and the compliance
with the requisites or solemnities prescribed by law.
The intrinsic validity of the will normally comes only
after the court has declared that the will has been
duly authenticated. However, where practical
considerations demand that the intrinsic validity of
the will be passed upon, even before it is probated,
the court should meet the issue. (Maninang vs. Court
of Appeals, 114 SCRA 478).
In the case at bar, the petitioner maintains that since
the respondent judge allowed the reprobate of

This contention is without merit.

Art. 16 par. (2).

xxx xxx xxx
However,
intestate
and
testamentary successions, both with
respect to the order of succession
and to the amount of successional
rights and to the intrinsic validity of
testamentary provisions, shall be
regulated by the national law of the
person whose succession is under
consideration, whatever may be the
nature of the property and
regardless of the country wherein
said property may be found.
Art. 1039.
Capacity to succeed is governed by
the law of the nation of the
decedent.
the law which governs Adoracion Campo's will is the
law of Pennsylvania, U.S.A., which is the national
law of the decedent. Although the parties admit that
the Pennsylvania law does not provide for legitimes
and that all the estate may be given away by the
testatrix to a complete stranger, the petitioner argues
that such law should not apply because it would be
contrary to the sound and established public policy

and would run counter to the specific provisions of

Philippine Law.
It is a settled rule that as regards the intrinsic validity
of the provisions of the will, as provided for by
Article 16(2) and 1039 of the Civil Code, the national
law of the decedent must apply. This was squarely
applied in the case of Bellis v. Bellis (20 SCRA 358)
wherein we ruled:
It is therefore evident that whatever
public policy or good customs may
be involved in our system of
legitimes, Congress has not
intended to extend the same to the
succession of foreign nationals. For
it has specifically chosen to leave,
inter alia, the amount of
successional
rights,
to
the
decedent's national law. Specific
provisions must prevail over
general ones.
xxx xxx xxx
The parties admit that the decedent,
Amos G. Bellis, was a citizen of
the State of Texas, U.S.A., and
under the law of Texas, there are no
forced
heirs
or
legitimes.
Accordingly, since the intrinsic
validity of the provision of the will
and the amount of successional
rights are to be determined under
Texas law, the Philippine Law on
legitimes cannot be applied to the
testacy of Amos G. Bellis.
As regards the alleged absence of notice of hearing
for the petition for relief, the records wig bear the fact
that what was repeatedly scheduled for hearing on
separate dates until June 19, 1980 was the petitioner's
petition for relief and not his motion to vacate the
order of January 10, 1979. There is no reason why the
petitioner should have been led to believe otherwise.
The court even admonished the petitioner's failing to
adduce evidence when his petition for relief was
repeatedly set for hearing. There was no denial of due

process. The fact that he requested "for the future

setting of the case for hearing . . ." did not mean that
at the next hearing, the motion to vacate would be
heard and given preference in lieu of the petition for
relief. Furthermore, such request should be embodied
in a motion and not in a mere notice of hearing.
Finally, we find the contention of the petition as to
the issue of jurisdiction utterly devoid of merit.
Under Rule 73, Section 1, of the Rules of Court, it is
provided that:
SECTION 1. Where estate of
deceased persons settled. If the
decedent is an inhabitant of the
Philippines at the time of his death,
whether a citizen or an alien, his
will shall be proved, or letters of
administration granted, and his
estate settled, in the Court of First
Instance in the province in which
he resided at the time of his death,
and if he is an inhabitant of a
foreign country, the Court of First
Instance of any province in which
he had estate. The court first taking
cognizance of the settlement of the
estate of a decedent, shall exercise
jurisdiction to the exclusion of all
other courts. The jurisdiction
assumed by a court, so far as it
depends on the place of residence
of the decedent, or of the location
of his estate, shall not be contested
in a suit or proceeding, except in an
appeal from that court, in the
original case, or when the want of
jurisdiction appears on the record.
Therefore, the settlement of the estate of Adoracion
Campos was correctly filed with the Court of First
Instance of Manila where she had an estate since it
was alleged and proven that Adoracion at the time of
her death was a citizen and permanent resident of
Pennsylvania, United States of America and not a
"usual resident of Cavite" as alleged by the petitioner.
Moreover, petitioner is now estopped from
questioning the jurisdiction of the probate court in the
petition for relief. It is a settled rule that a party

cannot invoke the jurisdiction of a court to secure

affirmative relief, against his opponent and after
failing to obtain such relief, repudiate or question that
same jurisdiction. (See Saulog Transit, Inc. vs. Hon.
Manuel Lazaro, et al., G. R. No. 63 284, April 4,
1984).
WHEREFORE, the petition for certiorari and
prohibition is hereby dismissed for lack of merit.
SO ORDERED.
Melencio-Herrera, Plana, Relova and De la Fuente,
JJ., concur.
Teehankee, J., (Chairman), took no part.

EN BANC
G.R. No. L-48444

June 30, 1943

In the matter of the intestate estate of the late Kaw

Singco (alias Co Chi Seng). SY OA, administratrixappellee,
vs.
CO HO, oppositor-appellant.
Ramon Diokno and Marcelino Lontok for petitioner.
Quintin Paredes and Geronimo Paredes for
respondents.
MORAN, J.:

and Bernabe vs. Vergara, G.R. No. 48652,

September 16, 1942, this case is hereby
certified to the Court of Appeals for further
proceedings.
It is maintained that our interpretation of Article VIII,
section 2, No. 3, of the Constitution, and section 138,
No. 3, of the Revised Administrative Code, as
enunciated in Reyes vs. Diaz, G.R. No. 48754 and
Bernabe et al. vs. Vergara, G.R. No. 48652, is
erroneous. In Reyes vs. Diaz we said that the term
"jurisdiction" as used in the Constitution and in the
statutes, means jurisdiction over the subject-matter
only, unless an exception is clearly intended by
reason of its employment in a breader sense. We do
ruled, because, independently of the American laws
and facts involved in the American decision therein
cited, such interpretation appears to be the clear
intent of our substantive laws. A perusal of all the
laws of jurisdiction in the Philippines Act No. 136
and its amendments; Philippine Constitution, Article
VIII, sections 2 and 3; and Commonwealth Acts Nos.
3 and 259 will readily show that the word
"jurisdiction" as used in their different provisions is
intended to have reference to the subject-matter only.
It may fairly be assumed, therefore, that when
particularly the same word is used in clause 3 of the
section 2 of Article VIII of the Constitution and in
clause 3 of section 138 of the Revised Administrative
Code as amended by Commonwealth Acts Nos. 3 and
259, it is also intended to refer to the same kind of
jurisdiction, since there is nothing therein to show
that it is employed in a broader sense.

Oppositor-appellant Co Ho seeks the reconsideration

of our resolution which reads as follows:

Our attention is also directed to a comparison 138 of

the Revised Administrative Code, as amended by
Commonwealth Acts Nos. 3 and 259. Said section
reads:

The question involved in G.R. No. 43444,

Sy Oa, administratrix-appellee, vs. Co Ho,
oppositor-appellant, not being one of
jurisdiction over the subject-matter but
rather of venue which in turn hinges on a
question of fact, i.e., whether the deceased,
at the time of his death, was residing in
Camarines Sur on in the City of Manila,
pursuant to the ruling laid down in Reyes vs.
Diaz G.R. No. 48754, November 26, 1941,

Sec. 138. Jurisdiction of the Supreme Court.

The Supreme Court shall have such
original jurisdiction as may be possessed
and exercised by the Supreme Court of the
Philippines at the time of the approval of
this Act, including cases affecting
ambassador, other public ministers, and
consuls.

The Supreme Court shall have exclusive

jurisdiction to review, revise, reverse,
modify or affirm, on appeal certiorari or writ
or error, as the law of rules of court may
provide, final judgments and decrees of
inferior court as herein provided, in
(1) All cases in which the constitutionality
or validity of any treaty, law, ordinance, or
executive order or regulation as in question;
(2) All cases involving the legality of any
tax, impost, assessment or toll, or any
penalty imposed in relation thereto;
(3) All cases in which the jurisdiction of any
inferior court is issue:
(4) All criminal cases involving offenses for
which the penalty imposed is death or life
imprisonment, and those involving other
offenses which, although not so punished,
arose out of the same occurrence or which
may have been committed by the accused on
the same occasion, as the giving rise to the
more serious offense, regardless of whether
the accused are charged as principals,
accomplices, or accessories, or whether they
have been tried jointly or separately.
(5) All civil cases in which the value in
controversy exceeds fifty thousand pesos,
exclusive of interests and costs, or in which
the title or possession of real estate
exceeding in value of sum of fifty thousand
pesos to be ascertained by the oath of a party
to the cause or by other competent evidence,
is involved or brought in question. The
Supreme Court shall likewise have exclusive
jurisdiction over all appeals in civil cases,
even though the value in controversy,
exclusive of interests and costs, is fifty
thousand pesos or less, when the evidence
involved in said cases is the same as the
evidence submitted in an appealed civil case
within the exclusive jurisdiction of the
Supreme Court as provided herein.

(6) All other cases in which only errors or

questions of law are involved.
We said in our decision in Reyes vs. Diaz, supra, that
the question of jurisdiction referred to in clause 3 of
the above-quoted provision, is one which calls for
interpretation and application of the law of
jurisdiction which distributes the judicial power
among the different courts in the Philippines. It is
now maintained that if such issue of jurisdiction is
merely question of law, then clause 3 would be a
surplusage, for it would be covered by clause 6 of the
same provision which confers upon the Supreme
Court exclusive appellate jurisdiction over all cases
in which only errors or question of law are involved.
This is certainly a misapprehension. Under clause 6,
the Supreme Court may entertain appellate
jurisdiction when absolutely no question of fact are
involved in the appeal. But under clause 3, there may
be issues of fact involved, but if aside from such
issues the question of jurisdiction over the subject
matter is properly raised, the Supreme Court shall
have appellate jurisdiction, in exactly the same
manner as under clause No. 1 where the Supreme
Court shall have the same appellate jurisdiction when
the constitutionality or validity of a law is raised
regardless of any question of fact that there might be
upon other issues.
We are not unaware of existing decisions to the effect
that in probate cases the place of residence of the
deceased is regarded as a question of jurisdiction
over the subject-matter. But we declined to follow
this view because of its mischievous consequences.
For instance, a probate case has been submitted in
good faith to a Court of First Instance of a province
whether the deceased had not resided. All the parties,
however, including all the creditors, have submitted
themselves to the jurisdiction of the court and the
case is therein completely finished except for a claim
of a creditor who also voluntarily filed it with said
court but on appeal from an adverse decision raises
for the first time in this Court the question of
jurisdiction of the trial court for lack of the residence
of the deceased in the province. If we consider such
question of residence as one affecting the jurisdiction
of the trial court over the subject-matter, the effect
shall be that the whole proceedings including all
decisions on the different incidents which have arisen

in court will have to be annulled and the same case

will have to be commenced anew before another
court of the same rank in another province. That this
ministration of justice is too obvious to require
comment. (Cf. Tanunchuan vs. Dy Buncio & Co.,
G.R. No. 48206, December 31, 1942.) Furthermore,
section 600 of Act. No. 190, providing that the estate
of a deceased person shall be settled in the province
whether he had last resided could not have been
intended as defining the jurisdiction of the probate
court over the subject-matter, because such legal
provision is contained in law of procedure dealing
merely with procedural matters, and, as we have said
time and again, procedure is one thing and
jurisdiction over the subject-matter is another.
(Attorney-General vs. Manila Railroad Company, 20
Phil., 523.) The law of jurisdiction Act No. 136,
Section 56, No. 5 confers upon Courts of First
Instance jurisdiction over all probate cases
independently of the place of residence of the
deceased. Since, however, there are many courts of
First Instance in the Philippines, the Law of
Procedure, Act No. 190, section 600, fixes the venue
or the place where each case shall be brought. Thus,
the place of residence of the deceased is not an
element of jurisdiction of venue. And it is upon this
ground that in the new Rules of Court the province
where the estate of a deceased person shall be settled
is properly called "venue." (Rule 75, section 1.)
Motion for reconsideration is denied.
Yulo, C.J., Ozaeta, Paras and Bocobo, JJ., concur.

FIRST DIVISION
G.R. No. L-40502 November 29, 1976
VIRGINIA GARCIA FULE, and HONORABLE
SEVERO A. MALVAR, Presiding Judge, Court of
First Instance of Laguna, Branch Vl, petitioners,
vs.
THE HONORABLE COURT OF APPEALS, *
PRECIOSA B. GARCIA and AGUSTINA B.
GARCIA, respondents.
G.R. No. L-42670 November 29, 1976

VIRGINIA GARCIA FULE, petitioner,

vs.
HONORABLE ERNANI C. PAO, Presiding
Judge of Court of First Instance of Rizal, Quezon
City, Branch XVIII, and PRECIOSA B. GARCIA,
respondents.
Francisco Carreon for petitioners.
Augusto G. Gatmaytan for private respondents.

MARTIN, J.:
These two interrelated cases bring to Us the question
of what the word "resides" in Section 1, Rule 73 of
the Revised Rules Of Court, referring to the situs of
the settlement of the estate of deceased persons,
means. Additionally, the rule in the appointment of a
special administrator is sought to be reviewed.
On May 2, 1973, Virginia G. Fule filed with the
Court of First Instance of Laguna, at Calamba,
presided over by Judge Severo A. Malvar, a petition
for letters of administration, docketed as Sp. Proc.
No. 27-C, alleging, inter alia, "that on April 26, 1973,
Amado G. Garcia, a property owner of Calamba,
Laguna, died intestate in the City of Manila, leaving
real estate and personal properties in Calamba,
Laguna, and in other places, within the jurisdiction of
the Honorable Court." At the same time, she moved
ex parte for her appointment as special administratrix
over the estate. On even date, May 2, 1973, Judge
Malvar granted the motion.
A motion for reconsideration was filed by Preciosa B.
Garcia on May 8, 1973, contending that the order
appointing Virginia G. Fule as special administratrix
was issued without jurisdiction, since no notice of the
petition for letters of administration has been served
upon all persons interested in the estate; there has
been no delay or cause for delay in the proceedings
for the appointment of a regular administrator as the
surviving spouse of Amado G. Garcia, she should be
preferred in the appointment of a special
administratrix; and, Virginia G. Fule is a debtor of the
estate of Amado G. Garcia. Preciosa B. Garcia,

therefore, prayed that she be appointed special

administratrix of the estate, in lieu of Virginia G.
Fule, and as regular administratrix after due hearing.
While this reconsideration motion was pending
resolution before the Court, Preciosa B. Garcia filed
on May 29, 1973 a motion to remove Virginia G.
Fule as special administratrix alleging, besides the
jurisdictional ground raised in the motion for
reconsideration of May 8, 1973 that her appointment
was obtained through erroneous, misleading and/or
incomplete misrepresentations; that Virginia G. Fule
has adverse interest against the estate; and that she
has shown herself unsuitable as administratrix and as
officer of the court.
In the meantime, the notice of hearing of the petition
for letters of administration filed by Virginia G. Fule
with the Court of First Instance of Calamba, Laguna,
was published on May 17, 24, and 31, 1973, in the
Bayanihan, a weekly publication of general
circulation in Southern Luzon.
On June 6, 1973, Preciosa B. Garcia received a
"Supplemental Petition for the Appointment of
Regular Administrator ' filed by Virginia G. Fule.
This supplemental petition modified the original
petition in four aspects: (1) the allegation that during
the lifetime of the deceased Amado G. Garcia, he was
elected as Constitutional Delegate for the First
District of Laguna and his last place of residence was
at Calamba, Laguna; (2) the deletion of the names of
Preciosa B. Garcia and Agustina Garcia as legal heirs
of Amado G. Garcia; (3) the allegation that Carolina
Carpio, who was simply listed as heir in the original
petition, is the surviving spouse of Amado G. Garcia
and that she has expressly renounced her preferential
right to the administration of the estate in favor of
Virginia G. Fule; and (4) that Virginia G. Fule be
appointed as the regular administratrix. The
admission of this supplemental petition was opposed
by Preciosa B. Garcia for the reason, among others,
that it attempts to confer jurisdiction on the Court of
First Instance of Laguna, of which the court was not
possessed at the beginning because the original
petition was deficient.

On July 19, 1973, Preciosa B. Garcia filed an

opposition to the original and supplemental petitions
for letters of administration, raising the issues of
jurisdiction, venue, lack of interest of Virginia G.
Fule in the estate of Amado G. Garcia, and
disqualification of Virginia G Fule as special
administratrix.
An omnibus motion was filed by Virginia G. Fule on
August 20, 1973, praying for authority to take
possession of properties of the decedent allegedly in
the hands of third persons as well as to secure cash
advances from the Calamba Sugar Planters
Cooperative Marketing Association, Inc. Preciosa B.
Garcia opposed the motion, calling attention to the
limitation made by Judge Malvar on the power of the
special administratrix, viz., "to making an inventory
of the personal and real properties making up the
state of the deceased."
However, by July 2, 1973, Judge Malvar and already
issued an order, received by Preciosa B. Garcia only
on July 31, 1973, denying the motion of Preciosa B.
Garcia to reconsider the order of May 2, 1973,
appointing Virginia G. Fule as special administratrix,
and admitting the supplementation petition of May
18,1973.
On August 31, 1973, Preciosa B. Garcia moved to
dismiss the petition, because (1) jurisdiction over the
petition or over the parties in interest has not been
acquired by the court; (2) venue was improperly laid;
and (3) Virginia G. Fule is not a party in interest as
she is not entitled to inherit from the deceased Amado
G. Garcia.
On September 28, 1973, Preciosa B. Garcia filed a
supplemental motion to substitute Virginia G. Fule as
special administratrix, reasoning that the said Virginia
G. Fule admitted before before the court that she is a
full-blooded sister of Pablo G. Alcalde, an
illegitimate son of Andrea Alcalde, with whom the
deceased Amado G. Garcia has no relation.
Three motions were filed by Preciosa B. Garcia on
November 14, 1973, one, to enjoin the special
administratrix from taking possession of properties in
the hands of third persons which have not been

determined as belonging to Amado G. Garcia;

another, to remove the special administratrix for
acting outside her authority and against the interest of
the estate; and still another, filed in behalf of the
minor Agustina B. Garcia, to dismiss the petition for
want of cause of action, jurisdiction, and improper
venue.
On November 28, 1973, Judge Malvar resolved the
pending omnibus motion of Virgina G. Fule and the
motion to dismiss filed by Preciosa B. Garcia.
Resolving the motion to dismiss, Judge Malvar ruled
that the powers of the special administratrix are those
provided for in Section 2, Rule 80 of the Rules of
Court, 1 subject only to the previous qualification
made by the court that the administration of the
properties subject of the marketing agreement with
the Canlubang Sugar Planters Cooperative Marketing
Association should remain with the latter; and that
the special administratrix had already been
authorized in a previous order of August 20, 1973 to
take custody and possession of all papers and
certificates of title and personal effects of the
decedent with the Canlubang Sugar Planters
Cooperative Marketing Association, Inc. Ramon
Mercado, of the Canlubang Sugar Planters
Cooperative Marketing Association, Inc., was
ordered to deliver to Preciosa B. Garcia all
certificates of title in her name without any
qualifying words like "married to Amado Garcia"
does not appear. Regarding the motion to dismiss,
Judge Malvar ruled that the issue of jurisdiction had
already been resolved in the order of July 2, 1973,
denying Preciosa B. Garcia's motion to reconsider the
appointment of Virginia G. Fule and admitting the
supplemental petition, the failure of Virginia G. Fule
to allege in her original petition for letters of
administration in the place of residence of the
decedent at the time of his death was cured. Judge
Malvar further held that Preciosa B. Garcia had
submitted to the jurisdiction of the court and had
waived her objections thereto by praying to be
appointed as special and regular administratrix of the
estate.
An omnibus motion was filed by Preciosa B. Garcia
on December 27, 1973 to clarify or reconsider the
foregoing order of Judge Malvar, in view of previous
court order limiting the authority of the special

administratrix to the making of an inventory. Preciosa

B. Garcia also asked for the resolution of her motion
to dismiss the petitions for lack of cause of action,
and also that filed in behalf of Agustina B. Garcia.
Resolution of her motions to substitute and remove
the special administratrix was likewise prayed for.
On December 19, 1973, Judge Malvar issued two
separate orders, the first, denying Preciosa B.
Garcia's motions to substitute and remove the special
administratrix, and the second, holding that the power
allowed the special administratrix enables her to
conduct and submit an inventory of the assets of the
estate.
On January 7, 1974, Preciosa B. Garcia moved for
reconsideration of the foregoing orders of November
28, 1973 and December 19, 1973, insofar as they
sustained or failed to rule on the issues raised by her:
(a) legal standing (cause of action) of Virginia G.
Fule; (b) venue; (c) jurisdiction; (d) appointment,
qualification and removal of special administratrix;
and (e) delivery to the special administratrix of
checks and papers and effects in the office of the
Calamba Sugar Planters Cooperative Marketing
Association, Inc.
On March 27, 1973, Judge Malvar issued the first
questioned order denying Preciosa B. Garcia's motion
for reconsideration of January 7, 1974. On July 19,
1974, Judge Malvar issued the other three questioned
orders: one, directing Ramon Mercado, of the
Calamba Sugar Planters Cooperative Marketing
Association, Inc., to furnish Virginia G. Fule, as
special administratrix, copy of the statement of
accounts and final liquidation of sugar pool, as well
as to deliver to her the corresponding amount due the
estate; another, directing Preciosa B. Garcia to deliver
to Virginia G. Fule two motor vehicles presumably
belonging to the estate; and another, directing Ramon
Mercado to deliver to the court all certificates of title
in his possession in the name of Preciosa B. Garcia,
whether qualified with the word "single" or "married
to Amado Garcia."
During the hearing of the various incidents of this
case (Sp. Proc. 27-C) before Judge Malvar, 2 Virginia
G. Fule presented the death certificate of Amado G.

Garcia showing that his residence at the time of his

death was Quezon City. On her part, Preciosa B.
Garcia presented the residence certificate of the
decedent for 1973 showing that three months before
his death his residence was in Quezon City. Virginia
G. Fule also testified that Amado G. Garcia was
residing in Calamba, Laguna at the time of his death,
and that he was a delegate to the 1971 Constitutional
Convention for the first district of Laguna.
On July 26, 1974, Preciosa B. Garcia and Agustina B.
Garcia commenced a special action for certiorari
and/or prohibition and preliminary injunction before
the Court of Appeals, docketed as CA-G.R. No.
03221-SP. primarily to annul the proceedings before
Judge Malvar in Sp. Proc. No. 27-C of the Court of
First Instance of Laguna, or, in the alternative, to
vacate the questioned four orders of that court, viz.,
one dated March 27, 1974, denying their motion for
reconsideration of the order denying their motion to
dismiss the criminal and supplemental petitions on
the issue, among others, of jurisdiction, and the three
others, all dated July 19, 1974, directing the delivery
of certain properties to the special administratrix,
Virginia G. Fule, and to the court.
On January 30, 1975, the Court of Appeals rendered
judgment annulling the proceedings before Judge
Severo A. Malvar in Sp. Proc. 27-C of the Court of
First Instance of Calamba, Laguna, for lack of
jurisdiction.
Denied of their motion for reconsideration on March
31, 1975, Virginia G. Fule forthwith elevated the
matter to Us on appeal by certiorari. The case was
docketed as G.R. No. L-40502.

However, even before Virginia G. Fule could receive

the decision of the Court of Appeals, Preciosa B.
Garcia had already filed on February 1, 1975 a
petition for letters of administration before the Court
of First Instance of Rizal, Quezon City Branch,
docketed as Sp. Proc. No. Q-19738, over the same
intestate estate of Amado G. Garcia. On February 10,
1975, Preciosa B. Garcia urgently moved for her
appointment as special administratrix of the estate.
Judge Vicente G. Ericta granted the motion and
appointed Preciosa B. Garcia as special
administratrix upon a bond of P30,000.00. Preciosa
B. Garcia qualified and assumed the office.
For the first time, on February 14, 1975, Preciosa B.
Garcia informed Judge Ericta of the pendency of Sp.
Proc. No. 27-C before Judge Malvar of the Court of
First Instance of Laguna, and the annulment of the
proceedings therein by the Court of Appeals on
January 30, 1975. She manifested, however, her
willingness to withdraw Sp. Proc. Q-19738 should
the decision of the Court of Appeals annulling the
proceedings before the Court of First Instance of
Laguna in Sp. Proc. No. 27-C have not yet become
final, it being the subject of a motion for
reconsideration.
On March 10, 1973, Judge Ericta ordered the
suspension of the proceedings before his court until
Preciosa B. Garcia inform the court of the final
outcome of the case pending before the Court of
Appeals. This notwithstanding, Preciosa B. Garcia
filed on December 11, 1975, an "Urgent Petition for
Authority to Pay Estate Obligations."
On December 13, 1975, Virginia G. Fule filed a
"Special Appearance to Question Venue and
Jurisdiction" reiterating the grounds stated in the
previous special appearance of March 3, 1975, and
calling attention that the decision of the Court of
Appeals and its resolution denying the motion for
reconsideration had been appealed to this Court; that
the parties had already filed their respective briefs;
and that the case is still pending before the Court.
On December 17, 1975, Judge Ernani Cruz Pano,
who succeeded Judge Ericta, issued an order granting
Preciosa B. Garcia's "Urgent Petition for Authority to

Pay Estate Obligations" in that the payments were for

the benefit of the estate and that there hangs a cloud
of doubt on the validity of the proceedings in Sp.
Proc. No. 27-C of the Court of First Instance of
Laguna.
A compliance of this Order was filed by Preciosa B.
Garcia on January 12,1976.
On February 4,1974, VIRGINIA G. FULE instituted
G.R. No. L-42670, a petition for certiorari with
temporary restraining order, to annul the proceedings
in Sp. Proc. No. Q-19738 and to restrain Judge
Ernani Cruz Pao from further acting in the case. A
restraining order was issued on February 9, 1976.
We dismiss the appeal in G.R. No. L-40502 and the
petition for certiorari in G.R. No. L-42670 for the
reasons and considerations hereinafter stated.
1. Section 1, Rule 73 of the Revised Rules of Court
provides: "If the decedent is an inhabitant of the
Philippines at the time of his death, whether a citizen
or an alien, his will shall be proved, or letters of
administration granted, and his estate settled, in the
Court of First Instance in the province in which he
resides at the time of his death, and if he is an
inhabitant of a foreign country, the Court of First
Instance of any province in which he had estate. The
court first taking cognizance of the settlement of the
estate of a decedent, shall exercise jurisdiction to the
exclusion of all other courts. The jurisdiction
assumed by a court, so far as it depends on the place
of residence of the decedent, or of the location of his
estate, shall not be contested in a suit or proceeding,
except in an appeal from that court, in the original
case, or when the want of jurisdiction appears on the
record." With particular regard to letters of
administration, Section 2, Rule 79 of the Revised
Rules of Court demands that the petition therefor
should affirmatively show the existence of
jurisdiction to make the appointment sought, and
should allege all the necessary facts, such as death,
the name and last residence of the decedent, the
existence, and situs if need be, of assets, intestacy,
where this is relied upon, and the right of the person
who seeks administration, as next of kin, creditor, or
otherwise, to be appointed. The fact of death of the

intestate and his last residence within the country are

foundation facts upon which all subsequent
proceedings in the administration of the estate rest,
and that if the intestate was not an inhabitant of the
state at the time of his death, and left no assets in the
state, no jurisdiction is conferred on the court to grant
letters of administration. 3
The aforequoted Section 1, Rule 73 (formerly Rule
75, Section 1), specifically the clause "so far as it
depends on the place of residence of the decedent, or
of the location of the estate," is in reality a matter of
venue, as the caption of the Rule indicates:
"Settlement of Estate of Deceased Persons. Venue and
Processes. 4 It could not have been intended to define
the jurisdiction over the subject matter, because such
legal provision is contained in a law of procedure
dealing merely with procedural matters. Procedure is
one thing; jurisdiction over the subject matter is
another. The power or authority of the court over the
subject matter "existed and was fixed before
procedure in a given cause began." That power or
authority is not altered or changed by procedure,
which simply directs the manner in which the power
or authority shall be fully and justly exercised. There
are cases though that if the power is not exercised
conformably with the provisions of the procedural
law, purely, the court attempting to exercise it loses
the power to exercise it legally. However, this does
not amount to a loss of jurisdiction over the subject
matter. Rather, it means that the court may thereby
lose jurisdiction over the person or that the judgment
may thereby be rendered defective for lack of
something essential to sustain it. The appearance of
this provision in the procedural law at once raises a
strong presumption that it has nothing to do with the
jurisdiction of the court over the subject matter. In
plain words, it is just a matter of method, of
convenience to the parties. 5
The Judiciary Act of 1948, as amended, confers upon
Courts of First Instance jurisdiction over all probate
cases independently of the place of residence of the
deceased. Because of the existence of numerous
Courts of First Instance in the country, the Rules of
Court, however, purposedly fixes the venue or the
place where each case shall be brought. A fortiori, the
place of residence of the deceased in settlement of
estates, probate of will, and issuance of letters of

administration does not constitute an element of

jurisdiction over the subject matter. It is merely
constitutive of venue. And it is upon this reason that
the Revised Rules of Court properly considers the
province where the estate of a deceased person shall
be settled as "venue." 6
2. But, the far-ranging question is this: What does the
term "resides" mean? Does it refer to the actual
residence or domicile of the decedent at the time of
his death? We lay down the doctrinal rule that the
term "resides" connotes ex vi termini "actual
residence" as distinguished from "legal residence or
domicile." This term "resides," like, the terms
"residing" and "residence," is elastic and should be
interpreted in the light of the object or purpose of the
statute or rule in which it is employed. 7 In the
application of venue statutes and rules Section 1,
Rule 73 of the Revised Rules of Court is of such
nature residence rather than domicile is the
significant factor. Even where the statute uses the
word "domicile" still it is construed as meaning
residence and not domicile in the technical sense.
Some cases make a distinction between the terms
"residence" and "domicile" but as generally used in
statutes fixing venue, the terms are synonymous, and
convey the same meaning as the term "inhabitant." 8
In other words, "resides" should be viewed or
understood in its popular sense, meaning, the
personal, actual or physical habitation of a person,
actual residence or place of abode. It signifies
physical presence in a place and actual stay thereat.
In this popular sense, the term means merely
residence, that is, personal residence, not legal
residence or domicile. 9 Residence simply requires
bodily presence as an inhabitant in a given place,
while domicile requires bodily presence in that place
and also an intention to make it one's domicile. 10 No
particular length of time of residence is required
though; however, the residence must be more than
temporary. 11
3. Divergent claims are maintained by Virginia G.
Fule and Preciosa B. Garcia on the residence of the
deceased Amado G. Garcia at the time of his death.
In her original petition for letters of administration
before the Court of First Instance of Calamba,
Laguna, Virginia G. Fule measely stated "(t)hat on
April 26,1973, Amado G. Garcia, a property owner

of Calamba, Laguna, died intestate in the City of

Manila, leaving real estate and personal properties in
Calamba, Laguna, and in other places within the
jurisdiction of this Honorable Court." Preciosa B.
Garcia assailed the petition for failure to satisfy the
jurisdictional requirement and improper laying of
venue. For her, the quoted statement avers no
domicile or residence of the deceased Amado G.
Garcia. To say that as "property owner of Calamba,
Laguna," he also resides in Calamba, Laguna, is,
according to her, non sequitur. On the contrary,
Preciosa B. Garcia claims that, as appearing in his
death certificate presented by Virginia G. Fule herself
before the Calamba court and in other papers, the last
residence of Amado G. Garcia was at 11 Carmel
Avenue, Carmel Subdivision, Quezon City.
Parenthetically, in her amended petition, Virginia G.
Fule categorically alleged that Amado G. Garcia's
"last place of residence was at Calamba, Laguna."
On this issue, We rule that the last place of residence
of the deceased Amado G. Garcia was at 11 Carmel
Avenue, Carmel Subdivision, Quezon City, and not at
Calamba, Laguna. A death certificate is admissible to
prove the residence of the decedent at the time of his
death. 12 As it is, the death certificate of Amado G.
Garcia, which was presented in evidence by Virginia
G. Fule herself and also by Preciosa B. Garcia, shows
that his last place of residence was at 11 Carmel
Avenue, Carmel Subdivision, Quezon City. Aside
from this, the deceased's residence certificate for
1973 obtained three months before his death; the
Marketing Agreement and Power of Attorney dated
November 12, 1971 turning over the administration
of his two parcels of sugar land to the Calamba Sugar
Planters Cooperative Marketing Association, Inc.; the
Deed of Donation dated January 8, 1973, transferring
part of his interest in certain parcels of land in
Calamba, Laguna to Agustina B. Garcia; and
certificates of titles covering parcels of land in
Calamba, Laguna, show in bold documents that
Amado G. Garcia's last place of residence was at
Quezon City. Withal, the conclusion becomes
imperative that the venue for Virginia C. Fule's
petition for letters of administration was improperly
laid in the Court of First Instance of Calamba,
Laguna. Nevertheless, the long-settled rule is that
objection to improper venue is subject to waiver.
Section 4, Rule 4 of the Revised Rules of Court

states: "When improper venue is not objected to in a

motion to dismiss, it is deemed waived." In the case
before Us the Court of Appeals had reason to hold
that in asking to substitute Virginia G. Fule as special
administratrix, Preciosa B. Garcia did not necessarily
waive her objection to the jurisdiction or venue
assumed by the Court of First Instance of Calamba,
Laguna, but availed of a mere practical resort to
alternative remedy to assert her rights as surviving
spouse, while insisting on the enforcement of the
Rule fixing the proper venue of the proceedings at the
last residence of the decedent.
4. Preciosa B. Garcia's challenge to Virginia G. Fule's
appointment as special administratrix is another issue
of perplexity. Preciosa B. Garcia claims preference to
the appointment as surviving spouse. Section 1 of
Rule 80 provides that "(w)hen there is delay in
granting letters testamentary or of administration by
any cause including an appeal from the allowance or
disallowance of a will, the court may appoint a
special administrator to take possession and charge
of the estate of the deceased until the questions
causing the delay are decided and executors or
13
administrators appointed.
Formerly, the
appointment of a special administrator was only
proper when the allowance or disallowance of a will
is under appeal. The new Rules, however, broadened
the basis for appointment and such appointment is
now allowed when there is delay in granting letters
testamentary or administration by any cause e.g.,
parties cannot agree among themselves. 14
Nevertheless, the discretion to appoint a special
administrator or not lies in the probate court. 15 That,
however, is no authority for the judge to become
partial, or to make his personal likes and dislikes
prevail over, or his passions to rule, his judgment.
Exercise of that discretion must be based on reason,
equity, justice and legal principle. There is no reason
why the same fundamental and legal principles
governing the choice of a regular administrator
should not be taken into account in the appointment
of a special administrator. 16 Nothing is wrong for the
judge to consider the order of preference in the
appointment of a regular administrator in appointing
a special administrator. After all, the consideration
that overrides all others in this respect is the
beneficial interest of the appointee in the estate of the
decedent. 17 Under the law, the widow would have the

right of succession over a portion of the exclusive

property of the decedent, besides her share in the
conjugal partnership. For such reason, she would
have as such, if not more, interest in administering
the entire estate correctly than any other next of kin.
The good or bad administration of a property may
affect rather the fruits than the naked ownership of a
property. 18
Virginia G. Fule, however, disputes the status of
Preciosa B. Garcia as the widow of the late Amado
G. Garcia. With equal force, Preciosa B. Garcia
maintains that Virginia G. Fule has no relation
whatsoever with Amado G. Garcia, or that, she is a
mere illegitimate sister of the latter, incapable of any
successional rights. 19 On this point, We rule that
Preciosa B. Garcia is prima facie entitled to the
appointment of special administratrix. It needs be
emphasized that in the issuance of such appointment,
which is but temporary and subsists only until a
regular administrator is appointed, 20 the appointing
court does not determine who are entitled to share in
the estate of the decedent but who is entitled to the
administration. The issue of heirship is one to be
determined in the decree of distribution, and the
findings of the court on the relationship of the parties
in the administration as to be the basis of distribution.
21
The preference of Preciosa B. Garcia is with
sufficient reason. In a Donation Inter Vivos executed
by the deceased Amado G. Garcia on January 8, 1973
in favor of Agustina B. Garcia, he indicated therein
that he is married to Preciosa B. Garcia. 22 In his
certificate of candidacy for the office of Delegate to
the Constitutional Convention for the First District of
Laguna filed on September 1, 1970, he wrote therein
the name of Preciosa B. Banaticla as his spouse. 23
Faced with these documents and the presumption that
a man and a woman deporting themselves as husband
and wife have entered into a lawful contract of
marriage, Preciosa B. Garcia can be reasonably
believed to be the surviving spouse of the late Amado
G. Garcia. Semper praesumitur pro matrimonio. 24
5. Under these circumstances and the doctrine laid
down in Cuenco vs. Court of Appeals, 25 this Court
under its supervisory authority over all inferior courts
may properly decree that venue in the instant case
was properly assumed by and transferred to Quezon
City and that it is in the interest of justice and

avoidance of needless delay that the Quezon City

court's exercise of jurisdiction over the settlement of
the estate of the deceased Amado G. Garcia and the
appointment of special administratrix over the latter's
estate be approved and authorized and the Court of
First Instance of Laguna be disauthorized from
continuing with the case and instead be required to
transfer all the records thereof to the Court of First
Instance of Quezon City for the continuation of the
proceedings.
6. Accordingly, the Order of Judge Ernani Cruz Pano
of December 17, 1975, granting the "Urgent Petition
for Authority to Pay Estate Obligations" filed by
Preciosa B. Garcia in Sp. Proc. No. Q-19738, subject
matter of G.R. No. L-42670, and ordering the
Canlubang Sugar Estate to deliver to her as special
administratrix the sum of P48,874.70 for payment of
the sum of estate obligations is hereby upheld.
IN VIEW OF THE FOREGOING, the petitions of
petitioner Virginia Garcia Fule in G.R. No. L-40502
and in G.R. No. L42670 are hereby denied, with costs
against petitioner.
SO ORDERED.
Teehankee (Chairman), Makasiar, Aquino and
Concepcion, Jr., JJ., concur.
Muoz Palma, J., took no part.

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

ROSA CAYETANO CUENCO, petitioners,
vs.
THE HONORABLE COURT OF APPEALS,
THIRD DIVISION, MANUEL CUENCO,
LOURDES CUENCO, CONCEPCION CUENCO
MANGUERRA,
CARMEN
CUENCO,
CONSUELO CUENCO REYES, and TERESITA
CUENCO GONZALEZ, respondents.
Ambrosio Padilla Law Office for petitioner.

Jalandoni and Jamir for respondents.

TEEHANKEE, J.:
Petition for certiorari to review the decision of
respondent Court of Appeals in CA-G.R. No. 34104R, promulgated 21 November 1964, and its
subsequent Resolution promulgated 8 July 1964
denying petitioner's Motion for Reconsideration.
The pertinent facts which gave rise to the herein
petition follow:
On 25 February 1964 Senator Mariano Jesus Cuenco
died at the Manila Doctors' Hospital, Manila. He was
survived by his widow, the herein petitioner, and their
two (2) minor sons, Mariano Jesus, Jr. and Jesus
Salvador, both surnamed Cuenco, all residing at 69 Pi
y Margal St., Sta. Mesa Heights, Quezon City, and by
his children of the first marriage, respondents herein,
namely, Manuel Cuenco, Lourdes Cuenco,
Concepcion Cuenco Manguera, Carmen Cuenco,
Consuelo Cuenco Reyes and Teresita Cuenco
Gonzales, all of legal age and residing in Cebu.
On 5 March 1964, (the 9th day after the death of the
late Senator) 1 respondent Lourdes Cuenco filed a
Petition for Letters of Administration with the court
of first instance of Cebu (Sp. Proc. No. 2433-R),
alleging among other things, that the late senator died
intestate in Manila on 25 February 1964; that he was
a resident of Cebu at the time of his death; and that
he left real and personal properties in Cebu and
Quezon City. On the same date, the Cebu court issued
an order setting the petition for hearing on 10 April
1964, directing that due notice be given to all the
heirs and interested persons, and ordering the
requisite publication thereof at LA PRENSA, a
newspaper of general circulation in the City and
Province of Cebu.
The aforesaid order, however, was later suspended
and cancelled and a new and modified one released
on 13 March 1964, in view of the fact that the
petition was to be heard at Branch II instead of
Branch I of the said Cebu court. On the same date, a

third order was further issued stating that respondent

Lourdes Cuenco's petition for the appointment of a
special administrator dated 4 March 1964 was not yet
ready for the consideration of the said court, giving
as reasons the following:
It will be premature for this Court
to act thereon, it not having yet
regularly acquired jurisdiction to
try this proceeding, the requisite
publication of the notice of hearing
not yet having been complied with.
Moreover, copies of the petition
have not been served on all of the
heirs specified in the basic petition
for the issuance of letters of
administration. 2
In the meantime, or specifically on 12 March 1964, (a
week after the filing of the Cebu petition) herein
petitioner Rosa Cayetano Cuenco filed a petition with
the court of first instance of Rizal (Quezon City) for
the probate of the deceased's last will and testament
and for the issuance of letters testamentary in her
favor, as the surviving widow and executrix in the
said last will and testament. The said proceeding was
docketed as Special Proceeding No. Q-7898.
Having learned of the intestate proceeding in the
Cebu court, petitioner Rosa Cayetano Cuenco filed in
said Cebu court an Opposition and Motion to
Dismiss, dated 30 March 1964, as well as an
Opposition to Petition for Appointment of Special
Administrator, dated 8 April 1964. On 10 April 1964,
the Cebu court issued an order holding in abeyance
its resolution on petitioner's motion to dismiss "until
after the Court of First Instance of Quezon City shall
have acted on the petition for probate of that
document purporting to be the last will and testament
of the deceased Don Mariano Jesus Cuenco." 3 Such
order of the Cebu court deferring to the probate
proceedings in the Quezon City court was neither
excepted to nor sought by respondents to be
reconsidered or set aside by the Cebu court nor did
they challenge the same by certiorari or prohibition
proceedings in the appellate courts.

Instead, respondents filed in the Quezon City court an

Opposition and Motion to Dismiss, dated 10 April
1964, opposing probate of the will and assailing the
jurisdiction of the said Quezon City court to entertain
petitioner's petition for probate and for appointment
as executrix in Sp. Proc. No. Q-7898 in view of the
alleged exclusive jurisdiction vested by her petition
in the Cebu court in Sp. Proc. No. 2433-R. Said
respondent prayed that Sp. Proc. No. Q-7898 be
dismissed for lack of jurisdiction and/or improper
venue.
In its order of 11 April 1964, the Quezon City court
denied the motion to dismiss, giving as a principal
reason the "precedence of probate proceeding over an
intestate proceeding." 4 The said court further found
in said order that the residence of the late senator at
the time of his death was at No. 69 Pi y Margal, Sta.
Mesa Heights, Quezon City. The pertinent portion of
said order follows:
On the question of residence of the
decedent, paragraph 5 of the
opposition and motion to dismiss
reads as follows: "that since the
decedent Don Mariano Jesus
Cuenco was a resident of the City
of Cebu at the time of his death, the
aforesaid petition filed by Rosa
Cayetano Cuenco on 12 March
1964 was not filed with the proper
Court (wrong venue) in view of the
provisions of Section 1 of Rule 73
of the New Rules of Court ...".
From the aforequoted allegation,
the Court is made to understand
that the oppositors do not mean to
say that the decedent being a
resident of Cebu City when he
died, the intestate proceedings in
Cebu City should prevail over the
probate proceedings in Quezon
City, because as stated above the
probate of the will should take
precedence, but that the probate
proceedings should be filed in the
Cebu City Court of First Instance.
If the last proposition is the desire
of the oppositors as understood by

this Court, that could not also be

entertained as proper because
paragraph 1 of the petition for the
probate of the will indicates that
Don Mariano Jesus Cuenco at the
time of his death was a resident of
Quezon City at 69 Pi y Margal.
Annex A (Last Will and Testament
of Mariano Jesus Cuenco) of the
petition for probate of the will
shows that the decedent at the time
when he executed his Last Will
clearly stated that he is a resident of
69 Pi y Margal, Sta. Mesa Heights,
Quezon City, and also of the City
of Cebu. He made the former as his
first choice and the latter as his
second choice of residence." If a
party has two residences, the one
will be deemed or presumed to his
domicile which he himself selects
or considers to be his home or
which appears to be the center of
his affairs. The petitioner, in thus
filing the instant petition before this
Court, follows the first choice of
residence of the decedent and once
this court acquires jurisdiction of
the probate proceeding it is to the
exclusion of all others. 5
Respondent
Lourdes Cuenco's motion for
reconsideration of the Quezon City court's said order
of 11 April 1964 asserting its exclusive jurisdiction
over the probate proceeding as deferred to by the
Cebu court was denied on 27 April 1964 and a second
motion for reconsideration dated 20 May 1964 was
likewise denied.
On 11 May 1964, pursuant to its earlier order of 11
April 1964, the hearing for probate of the last will of
the decedent was called three times at half-hour
intervals, but notwithstanding due notification none
of the oppositors appeared and the Quezon City court
proceeded at 9:00 a.m. with the hearing in their
absence.
As per the order issued by it subsequently on 15 May
1964, the Quezon City court noted that respondents-

oppositors had opposed probate under their

opposition and motion to dismiss on the following
grounds:
(a) That the will was not executed
and attested as required by law;
(b) That the will was procured by
undue and improper pressure and
influence on the part of the
beneficiary or some other persons
for his benefit;
(c) That the testator's signature was
procured by fraud and/or that the
testator acted by mistake and did
not intend that the instrument he
signed should be his will at the
time he affixed his signature
thereto. 6
The Quezon City court further noted that the requisite
publication of the notice of the hearing had been duly
complied with and that all the heirs had been duly
notified of the hearing, and after receiving the
testimony of the three instrumental witnesses to the
decedent's last will, namely Atty. Florencio Albino,
Dr. Guillermo A. Picache and Dr. Jose P. Ojeda, and
of the notary public, Atty. Braulio A. Arriola, Jr., who
ratified the said last will, and the documentary
evidence (such as the decedent's residence
certificates, income tax return, diplomatic passport,
deed of donation) all indicating that the decedent was
a resident of 69 Pi y Margal St., Quezon City, as also
affirmed by him in his last will, the Quezon City
court in its said order of 15 May 1964 admitted to
probate the late senator's last will and testament as
having been "freely and voluntarily executed by the
testator" and "with all formalities of the law" and
appointed petitioner-widow as executrix of his estate
without bond "following the desire of the testator" in
his will as probated.
Instead of appealing from the Quezon City court's
said order admitting the will to probate and naming
petitioner-widow as executrix thereof, respondents
filed a special civil action of certiorari and
prohibition with preliminary injunction with

respondent Court of Appeals (docketed as case CAG.R. No. 34104-R) to bar the Rizal court from
proceeding with case No. Q-7898.
On 21 November 1964, the Court of Appeals
rendered a decision in favor of respondents
(petitioners therein) and against the herein petitioner,
holding that:
Section 1, Rule 73, which fixes the
venue in proceedings for the
settlement of the estate of a
deceased person, covers both
testate and intestate proceedings.
Sp. Proc. 2433-R of the Cebu CFI
having been filed ahead, it is that
court whose jurisdiction was first
invoked and which first attached. It
is that court which can properly and
exclusively pass upon the factual
issues of (1) whether the decedent
left or did not leave a valid will,
and (2) whether or not the decedent
was a resident of Cebu at the time
of his death.
Considering therefore that the first
proceeding was instituted in the
Cebu CFI (Special Proceeding
2433-R), it follows that the said
court must exercise jurisdiction to
the exclusion of the Rizal CFI, in
which the petition for probate was
filed by the respondent Rosa
Cayetano
Cuenco
(Special
Proceeding Q-7898). The said
respondent should assert her rights
within the framework of the
proceeding in the Cebu CFI,
instead of invoking the jurisdiction
of another court.
The respondents try to make capital
of the fact that on March 13, 1964,
Judge Amador Gomez of the Cebu
CFI, acting in Sp. Proc. 2433-R,
stated that the petition for
appointment
of
special

administrator was "not yet ready

for the consideration of the Court
today. It would be premature for
this Court to act thereon, it not
having yet regularly acquired
jurisdiction to try this proceeding ...
. " It is sufficient to state in this
connection that the said judge was
certainly not referring to the court's
jurisdiction over the res, not to
jurisdiction itself which is acquired
from the moment a petition is filed,
but only to the exercise of
jurisdiction in relation to the stage
of the proceedings. At all events,
jurisdiction is conferred and
determined by law and does not
depend on the pronouncements of a
trial judge.
The dispositive part of respondent appellate court's
judgment provided as follows:
ACCORDINGLY, the writ of
prohibition will issue, commanding
and directing the respondent Court
of First Instance of Rizal, Branch
IX, Quezon City, and the
respondent Judge Damaso B.
Tengco to refrain perpetually from
proceeding and taking any action in
Special
Proceeding
Q-7898
pending before the said respondent
court. All orders heretofore issued
and actions heretofore taken by
said
respondent
court
and
respondent Judge, therein and
connected therewith, are hereby
annulled. The writ of injunction
heretofore issued is hereby made
permanent. No pronouncement as
to costs.
Petitioner's motion for reconsideration was denied in
a resolution of respondent Court of Appeals, dated 8
July 1965; hence the herein petition for review on
certiorari.

The principal and decisive issue at bar is, theretofore,

whether the appellate court erred in law in issuing the
writ of prohibition against the Quezon City court
ordering it to refrain perpetually from proceeding
with the testate proceedings and annulling and setting
aside all its orders and actions, particularly its
admission to probate of the decedent's last will and
testament and appointing petitioner-widow as
executrix thereof without bond in compliance with
the testator's express wish in his testament. This issue
is tied up with the issue submitted to the appellate
court, to wit, whether the Quezon City court acted
without jurisdiction or with grave abuse of discretion
in taking cognizance and assuming exclusive
jurisdiction over the probate proceedings filed with it,
in pursuance of the Cebu court's order of 10 April
1964 expressly consenting in deference to the
precedence of probate over intestate proceedings that
it (the Quezon City court) should first act "on the
petition for probate of the document purporting to be
the last will and testament of the deceased Don
Mariano Jesus Cuenco" - which order of the Cebu
court respondents never questioned nor challenged by
prohibition or certiorari proceedings and thus
enabled the Quezon City court to proceed without
any impediment or obstruction, once it denied
respondent Lourdes Cuenco's motion to dismiss the
probate proceeding for alleged lack of jurisdiction or
improper venue, to proceed with the hearing of the
petition and to admit the will to probate upon having
been satisfied as to its due execution and authenticity.
The Court finds under the above-cited facts that the
appellate court erred in law in issuing the writ of
prohibition against the Quezon City court from
proceeding with the testate proceedings and annulling
and setting aside all its orders and actions,
particularly its admission to probate of the deceased's
last will and testament and appointing petitionerwidow as executrix thereof without bond pursuant to
the deceased testator's express wish, for the following
considerations:
1. The Judiciary Act 7 concededly confers original
jurisdiction upon all Courts of First Instance over "all
matter of probate, both of testate and intestate
estates." On the other hand, Rule 73, section of the
Rules of Court lays down the rule of venue, as the
very caption of the Rule indicates, and in order to

prevent conflict among the different courts which

otherwise may properly assume jurisdiction from
doing so, the Rule specifies that "the court first
taking cognizance of the settlement of the estate of a
decedent, shall exercise jurisdiction to the exclusion
of all other courts." The cited Rule provides:
Section 1. Where estate of
deceased persons settled. If the
decedent is an inhabitant of the
Philippines at the time of his death,
whether a citizen or an alien, his
will shall be proved, or letters of
administration granted, and his
estate settled, in the Court of First
Instance in the Province in which
he resides at the time of his death,
and if he is an inhabitant of a
foreign country, the Court of First
Instance of the province in which
he had estate. The court first taking
cognizance of the settlement of the
estate of a decedent, shall exercise
jurisdiction to the exclusion of all
other courts. The jurisdiction
assumed by a court, so far as it
depends on the place of residence,
of the decedent, or of the location
of his estate, shall not be contested
in a suit or proceeding, except in an
appeal from that court, in the
original case, or when the want of
jurisdiction appears on the record.
(Rule 73) 8
It is equally conceded that the residence of the
deceased or the location of his estate is not an
element of jurisdiction over the subject matter but
merely of venue. This was lucidly stated by the late
Chief Justice Moran in Sy Oa vs. Co Ho 9 as follows:
We are not unaware of existing
decisions to the effect that in
probate cases the place of residence
of the deceased is regarded as a
question of jurisdiction over the
subject-matter. But we decline to
follow this view because of its
mischievous consequences. For

instance, a probate case has been

submitted in good faith to the Court
of First Instance of a province
where the deceased had not resided.
All the parties, however, including
all the creditors, have submitted
themselves to the jurisdiction of the
court and the case is therein
completely finished except for a
claim of a creditor who also
voluntarily filed it with said court
but on appeal from an adverse
decision raises for the first time in
this Court the question of
jurisdiction of the trial court for
lack of residence of the deceased in
the province. If we consider such
question of residence as one
affecting the jurisdiction of the trial
court over the subject-matter, the
effect shall be that the whole
proceedings including all decisions
on the different incidents which
have arisen in court will have to be
annulled and the same case will
have to be commenced anew before
another court of the same rank in
another province. That this is of
mischievous effect in the prompt
administration of justice is too
obvious to require comment. (Cf.
Tanunchuan vs. Dy Buncio & Co.,
G.R. No. 48206, December 31,
1942) Furthermore, section 600 of
Act No. 190, 10 providing that the
estate of a deceased person shall be
settled in the province where he
had last resided, could not have
been intended as defining the
jurisdiction of the probate court
over the subject-matter, because
such legal provision is contained in
a law of procedure dealing merely
with procedural matters, and, as we
have said time and again, procedure
is one thing and jurisdiction over
the subject matter is another.
(Attorney-General
vs.
Manila
Railroad Company, 20 Phil. 523.)

The law of jurisdiction Act No.

136, 11 Section 56, No. 5 confers
upon Courts of First Instance
jurisdiction over all probate cases
independently of the place of
residence of the deceased. Since,
however, there are many courts of
First Instance in the Philippines, the
Law of Procedure, Act No. 190,
section 600, fixes the venue or the
place where each case shall be
brought. Thus, the place of
residence of the deceased is not an
element of jurisdiction over the
subject-matter but merely of venue.
And it is upon this ground that in
the new Rules of Court the
province where the estate of a
deceased person shall be settled is
properly called "venue".
It should be noted that the Rule on venue does not
state that the court with whom the estate or intestate
petition is first filed acquires exclusive jurisdiction.
The Rule precisely and deliberately provides that
"the court first taking cognizance of the settlement of
the estate of a decedent, shall exercise jurisdiction to
the exclusion of all other courts."
A fair reading of the Rule since it deals with venue
and comity between courts of equal and co-ordinate
jurisdiction indicates that the court with whom the
petition is first filed, must also first take cognizance
of the settlement of the estate in order to exercise
jurisdiction over it to the exclusion of all other
courts.
Conversely, such court, may upon learning that a
petition for probate of the decedent's last will has
been presented in another court where the decedent
obviously had his conjugal domicile and resided with
his surviving widow and their minor children, and
that the allegation of the intestate petition before it
stating that the decedent died intestate may be
actually false, may decline to take cognizance of the
petition and hold the petition before it in abeyance,
and instead defer to the second court which has

before it the petition for probate of the decedent's

alleged last will.
2. This exactly what the Cebu court did. Upon
petitioner-widow's filing with it a motion to dismiss
Lourdes' intestate petition, it issued its order holding
in abeyance its action on the dismissal motion and
deferred to the Quezon City court, awaiting its action
on the petition for probate before that court. Implicit
in the Cebu court's order was that if the will was duly
admitted to probate, by the Quezon City court, then it
would definitely decline to take cognizance of
Lourdes' intestate petition which would thereby be
shown to be false and improper, and leave the
exercise of jurisdiction to the Quezon City court, to
the exclusion of all other courts. Likewise by its act
of deference, the Cebu court left it to the Quezon City
court to resolve the question between the parties
whether the decedent's residence at the time of his
death was in Quezon City where he had his conjugal
domicile rather than in Cebu City as claimed by
respondents. The Cebu court thus indicated that it
would decline to take cognizance of the intestate
petition before it and instead defer to the Quezon City
court, unless the latter would make a negative finding
as to the probate petition and the residence of the
decedent within its territory and venue.
3. Under these facts, the Cebu court could not be held
to have acted without jurisdiction or with grave abuse
of jurisdiction in declining to take cognizance of the
intestate petition and deferring to the Quezon City
court.
Necessarily, neither could the Quezon City court be
deemed to have acted without jurisdiction in taking
cognizance of and acting on the probate petition since
under Rule 73, section 1, the Cebu court must first
take cognizance over the estate of the decedent and
must exercise jurisdiction to exclude all other courts,
which the Cebu court declined to do. Furthermore, as
is undisputed, said rule only lays down a rule of
venue and the Quezon City court indisputably had at
least equal and coordinate jurisdiction over the estate.
Since the Quezon City court took cognizance over the
probate petition before it and assumed jurisdiction
over the estate, with the consent and deference of the

Cebu court, the Quezon City court should be left

now, by the same rule of venue of said Rule 73, to
exercise jurisdiction to the exclusion of all other
courts.
Under the facts of the case and where respondents
submitted to the Quezon City court their opposition
to probate of the will, but failed to appear at the
scheduled hearing despite due notice, the Quezon
City court cannot be declared, as the appellate court
did, to have acted without jurisdiction in admitting to
probate the decedent's will and appointing petitionerwidow as executrix thereof in accordance with the
testator's testamentary disposition.
4. The relatively recent case of Uriarte vs. Court of
First Instance of Negros Occidental 12 with facts
analogous to the present case 13 is authority against
respondent appellate court's questioned decision.
In said case, the Court upheld the doctrine of
precedence of probate proceedings over intestate
proceedings in this wise:
It can not be denied that a special
proceeding intended to effect the
distribution of the estate of a
deceased person, whether in
accordance with the law on
intestate
succession
or
in
accordance with his will, is a
"probate matter" or a proceeding
for the settlement of his estate. It is
equally true, however, that in
accordance
with
settled
jurisprudence in this jurisdiction,
testate proceedings for the
settlement of the estate of a
deceased person take precedence
over intestate proceedings for the
same purpose. Thus it has been
held repeatedly that, if in the
course of intestate proceedings
pending before a court of first
instance it is found that the
decedent had left a last will,
proceedings for the probate of the
latter should replace the intestate

proceedings even if at that state an

administrator had already been
appointed, the latter being required
to render final account and turn
over the estate in his possession to
the
executor
subsequently
appointed. This however, is
understood to be without prejudice
that should the alleged last will be
rejected or is disapproved, the
proceeding shall continue as an
intestacy. As already adverted to,
this is a clear indication that
proceedings for the probate of a
will enjoy priority over intestate
proceedings. 14
The Court likewise therein upheld the jurisdiction of
the second court, (in this case, the Quezon City court)
although opining that certain considerations therein
"would seem to support the view that [therein
respondent] should have submitted said will for
probate to the Negros Court, [in this case, the Cebu
court] either in a separate special proceeding or in an
appropriate motion for said purpose filed in the
already pending Special Proceeding No. 6344," 15
thus:
But the fact is that instead of the aforesaid will being
presented for probate to the Negros Court, Juan
Uriarte Zamacona filed the petition for the purpose
with the Manila Court. We can not accept petitioner's
contention in this regard that the latter court had no
jurisdiction to consider said petition, albeit we say
that it was not the proper venue therefor.
It is well settled in this jurisdiction
that wrong venue is merely a
waivable procedural defect, and, in
the light of the circumstances
obtaining in the instant case, we are
of the opinion, and so hold, that
petitioner has waived the right to
raise such objection or is precluded
from doing so by laches. It is
enough to consider in this
connection that petitioner knew of
the existence of a will executed by
Juan Uriarte y Goite since

December 19, 1961 when Higinio

Uriarte filed his opposition to the
initial petition filed in Special
Proceeding
No.
6344;
that
petitioner likewise was served with
notice of the existence (presence)
of the alleged last will in the
Philippines and of the filing of the
petition for its probate with the
Manila Court since August 28,
1962 when Juan Uriarte Zamacona
filed a motion for the dismissal of
Special Proceeding No. 6344. All
these notwithstanding, it was only
on April 15, 1963 that he filed with
the Manila Court in Special
Proceeding No. 51396 an Omnibus
motion asking for leave to
intervene and for the dismissal and
annulment of all the proceedings
had therein up to that date; thus
enabling the Manila Court not only
to appoint an administrator with the
will annexed but also to admit said
will to probate more than five
months earlier, or more specifically,
on October 31, 1962. To allow him
now to assail the exercise of
jurisdiction over the probate of the
will by the Manila Court and the
validity of all the proceedings had
in Special Proceeding No. 51396
would put a premium on his
negligence. Moreover, it must be
remembered that this Court is not
inclined to annul proceedings
regularly had in a lower court even
if the latter was not the proper
venue therefor, if the net result
would be to have the same
proceedings repeated in some other
court of similar jurisdiction; more
so in a case like the present where
the
objection
against
said
proceedings is raised too late. 16
5. Under Rule 73, section 1 itself, the Quezon City
court's assumption of jurisdiction over the decedent's
estate on the basis of the will duly presented for

probate by petitioner-widow and finding that Quezon

City was the first choice of residence of the decedent,
who had his conjugal home and domicile therein
with the deference in comity duly given by the Cebu
court could not be contested except by appeal
from said court in the original case. The last
paragraph of said Rule expressly provides:

Cebu, besides Quezon City, as his

residence. We reiterate that this
matter requires airing in the proper
court, as so indicated in the leading
and controlling case of Borja vs.
Hon. Bienvenido Tan, et al., G.R.
L-7792, July 27, 1955.

... The jurisdiction assumed by a

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

In the case at bar, however, the Cebu court declined

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

The exception therein given, viz, "when the want of

jurisdiction appears on the record" could probably be
properly invoked, had such deference in comity of
the Cebu court to the Quezon City court not appeared
in the record, or had the record otherwise shown that
the Cebu court had taken cognizance of the petition
before it and assumed jurisdiction.
6. On the question that Quezon City established to be
the residence of the late senator, the appellate court
while recognizing that "the issue is a legitimate one"
held in reliance on Borja vs. Tan 17 that.
... The issue of residence comes
within
the
competence
of
whichever court is considered to
prevail in the exercise jurisdiction in this case, the Court of First
Instance of Cebu as held by this
Court. Parenthetically, we note that
the question of the residence of the
deceased is a serious one, requiring
both factual and legal resolution on
the basis of ample evidence to be
submitted in the ordinary course of
procedure in the first instance,
particularly in view of the fact that
the deceased was better known as
the Senator from Cebu and the will
purporting to be his also gives

7. With more reason should the Quezon City

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

This tallies with the established legal concept as

restated by Moran that "(T)he probate of a will is a
proceeding in rem. The notice by publication as a
pre-requisite to the allowance of a will, is a
constructive notice to the whole world, and when
probate is granted, the judgment of the court is
binding upon everybody, even against the State. The
probate of a will by a court having jurisdiction
thereof is conclusive as to its due execution and
validity." 19 The Quezon City court acted regularly
within its jurisdiction (even if it were to be conceded
that Quezon City was not the proper venue
notwithstanding the Cebu court's giving way and
deferring to it,) in admitting the decedent's last will to
probate and naming petitioner-widow as executrix
thereof. Hence, the Quezon city court's action should
not be set aside by a writ of prohibition for supposed
lack of jurisdiction as per the appellate court's
appealed decision, and should instead be sustained in
line with Uriarte, supra, where the Court, in
dismissing the certiorari petition challenging the
Manila court's action admitting the decedent's will to
probate and distributing the estate in accordance
therewith in the second proceeding, held that "it must
be remembered that this Court is not inclined to annul
proceedings regularly had in a lower court even if the
latter was not the proper venue therefor, if the net
result would be to have the same proceedings
repeated in some other court of similar jurisdiction."
As stressed by Chief Justice Moran in Sy Oa, supra,
"the mischievous effect in the administration of
justice" of considering the question of residence as
affecting the jurisdiction of the trial court and
annulling the whole proceedings only to start all over
again the same proceedings before another court of
the same rank in another province "is too obvious to
require comment."
8. If the question of jurisdiction were to be made to
depend only on who of the decedent's relatives gets
first to file a petition for settlement of the decedent's
estate, then the established jurisprudence of the Court
that Rule 73, section 1 provides only a rule of venue
in order to preclude different courts which may
properly assume jurisdiction from doing so and
creating conflicts between them to the detriment of
the administration of justice, and that venue is
waivable, would be set at naught. As between
relatives who unfortunately do not see eye to eye, it

would be converted into a race as to who can file the

petition faster in the court of his/her choice regardless
of whether the decedent is still in cuerpo presente and
in disregard of the decedent's actual last domicile, the
fact that he left a last will and testament and the right
of his surviving widow named as executrix thereof.
Such dire consequences were certainly not intended
by the Rule nor would they be in consonance with
public policy and the orderly administration of
justice.
9. It would finally be unjust and inequitable that
petitioner-widow, who under all the applicable rules
of venue, and despite the fact that the Cebu court
(where respondent Lourdes Cuenco had filed an
intestate petition in the Cebu court earlier by a week's
time on 5 March 1964) deferred to the Quezon City
court where petitioner had within fifteen days (on
March 12, 1964) after the decedent's death (on
February 25, 1964) timely filed the decedent's last
will and petitioned for letters testamentary and is
admittedly entitled to preference in the administration
of her husband's estate, 20 would be compelled under
the appealed decision to have to go all the way to
Cebu and submit anew the decedent's will there for
probate either in a new proceeding or by asking that
the intestate proceedings be converted into a testate
proceeding when under the Rules, the proper
venue for the testate proceedings, as per the facts of
record and as already affirmed by the Quezon City
court is Quezon City, where the decedent and
petitioner-widow had their conjugal domicile.
It would be an unfair imposition upon petitioner as
the one named and entitled to be executrix of the
decedent's last will and settle his estate in accordance
therewith, and a disregard of her rights under the rule
on venue and the law on jurisdiction to require her to
spend much more time, money and effort to have to
go from Quezon City to the Cebu court everytime she
has an important matter of the estate to take up with
the probate court.
It would doubly be an unfair imposition when it is
considered that under Rule 73, section 2, 21 since
petitioner's marriage has been dissolved with the
death of her husband, their community property and
conjugal estate have to be administered and
liquidated in the estate proceedings of the deceased

spouse. Under the appealed decision, notwithstanding

that petitioner resides in Quezon City, and the proper
venue of the testate proceeding was in Quezon City
and the Quezon City court properly took cognizance
and exercised exclusive jurisdiction with the
deference in comity and consent of the Cebu court,
such proper exercise of jurisdiction would be
nullified and petitioner would have to continually
leave her residence in Quezon City and go to Cebu to
settle and liquidate even her own community
property and conjugal estate with the decedent.
10. The Court therefore holds under the facts of
record that the Cebu court did not act without
jurisdiction nor with grave abuse of discretion in
declining to take cognizance of the intestate petition
and instead deferring to the testate proceedings filed
just a week later by petitioner as surviving widow
and designated executrix of the decedent's last will,
since the record before it (the petitioner's opposition
and motion to dismiss) showed the falsity of the
allegation in the intestate petition that the decedent
had died without a will. It is noteworthy that
respondents never challenged by certiorari or
prohibition proceedings the Cebu court's order of 10
April 1964 deferring to the probate proceedings
before the Quezon City court, thus leaving the latter
free (pursuant to the Cebu court's order of deference)
to exercise jurisdiction and admit the decedent's will
to probate.

11. Finally, it should be noted that in the Supreme

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

For the same reasons, neither could the Quezon City

court be held to have acted without jurisdiction nor
with grave abuse of discretion in admitting the
decedent's will to probate and appointing petitioner as
executrix in accordance with its testamentary
disposition, in the light of the settled doctrine that the
provisions of Rule 73, section 1 lay down only a rule
of venue, not of jurisdiction.

Makalintal, C.J., Zaldivar, Makasiar, Antonio and

Esguerra, JJ., concur.

Since respondents undisputedly failed to appeal from

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

Separate Opinions

Fernando and Castro, JJ., took no part.

BARREDO, J., concurring:

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

I only want to stress that in my view, the failure of

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

Jose W. Diokno, Sycip, Quisumbing and Salazar for

petitioner.
David Guevara for respondents.
BAUTISTA ANGELO, J.:
This is a petition for certiorari with prohibition to
annul and restrain the enforcement of two orders of
respondent judge dated January 20, 1954 and
February 18, 1954 issued in Special Proceedings No.
7866 of the Court of First Instance of Rizal entitled
"Testate Estate of the Deceased Josefa Tangco" which
prohibit petitioner, inter alia, from continuing in
possession of certain parcels of land situated in Santa
Rosa, Nueva Ecija, on the ground that they were
issued without or in excess of his jurisdiction.

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

EN BANC
G.R. No. L-7635

July 25, 1955

TASIANA ONGSINGCO, Guardian of Francisco

de
Borja,
petitioner,
vs.
HON. BIENVENIDO A. TAN, as Judge of the
Court of First Instance of Rizal and JOSE DE
BORJA, administrator of the estate of the late
Josefa Tangco, respondents.

Petitioner Tasiana Ongsingco is the wife and judicial

guardian of one Francisco de Borja who was declared
incompetent by the Court of First Instance of Rizal in
Special Proceedings No. 1764. Francisco de Borja is
the surviving spouse of Josefa Tangco whose estate is
being settled in Special Proceedings No. 7866 of the
same court. Respondent Jose de Borja is the son of
Francisco de Borja, who, on June 29, 1953, was
appointed administrator of the estate of Josefa
Tangco.
Francisco de Borja, according to petitioner, is the
owner of two parcels of land situated in Santa Rosa,
Nueva Ecija, which he acquired by inheritance from
his late father Marcelo de Borja and as such form part
of his separate properties.
On October 27, 1953, Francisco de Borja was
declared incompetent by the court as aforesaid, and
petitioner, his second wife, was appointed his
guardian. As such guardian, petitioner took over from
her husband the possession of said two parcels of
land and commenced the threshing of the palay crop
standing thereon for the benefit of her ward.
On January 16, 1954, respondent Jose de Borja, as
administrator of the estate of Josefa Tangco, filed a
motion in the estate proceedings of the latter praying
that petitioner be restrained from threshing the palay
on the lands until the ownership thereof has been
definitely determined either by the court or by

agreement of the parties. Petitioner opposed the

motion challenging the jurisdiction of the court and
contending that if its purpose is to pass on the
question of ownership, such can only be threshed out
elsewhere and not by the probate court.
Because it became obvious to petitioner that
respondent administrator would insist in his motion
whose main aim is to prevent petitioner and her
laborers from threshing the crop standing on the
lands and, on the other hand, the several attempts
made to agree on the identity of the lands had failed,
petitioner filed an action on January 21, 1954 in the
Court of First Instance of Nueva Ecija to restrain
respondent administrator from interferring with the
harvesting and threshing of the crop on the claim that
the lands were the exclusive property of her ward
Francisco de Borja (Civil Case No. 1350). On the
same date, the court granted the preliminary
injunction prayed for upon the filing by petitioner of
a bond of P5,000. On January 25, 1954, respondent
Jose de Borja filed an urgent petition in the same case
asking the court to dismiss the action for lack of
jurisdiction and to dissolve the preliminary injunction
that was issued. This petition was denied.
On January 29, 1954, respondent court issued an
order the dispositive part of which reads:
IN VIEW OF THE FOREGOING
CONSIDERATIONS, the guardian Tasiana
Ongsingco is hereby ordered not to meddle
in the threshing of the palay harvested in the
lands declared under Tax Declaration No.
540 (Annexes A and A-1). The administrator
and the guardian are ordered to find from
among the properties of the incapacitated
Francisco de Borja in Tabuanting, Sta. Rosa,
Nueva Ecija, the two parcels of land having
an approximate area as those two lots
adjudicated in his favor by the
Commissioners on Partition, and once
found, let the parties agree on the matter, so
as to avoid any future controversy, and to
notify this Court of their agreement.
IT IS SO ORDERED.

On February 10, 1954, petitioner filed a motion for

reconsideration calling attention to the fact that both
the guardian and the administrator had already
attempted to arrive at an agreement as to the identity
of the lots which are claimed to be the exclusive
property of Francisco de Borja, but they failed to do
so, and because of such inability and the immediate
need of harvesting and threshing the crop standing
thereon, petitioner filed an action in the Court of First
Instance of Nueva Ecija precisely to determine once
and for all the title to, and ownership of, said lands
and to issue a preliminary injunction restraining
respondent Jose de Borja from interferring with the
work of petitioner; but, in view of respondent Borja's
opposition, respondent court denied the motion for
reconsideration.
The present petition poses the following issues: (1)
considering that the dispute between petitioner and
respondent administrator involves the ownership of
two parcels of land now the subject of an action in
the Court of First Instance of Nueva Ecija, has
respondent court jurisdiction to determine said
dispute in the estate proceedings of the late Josefa
Tangco?; and (2) having the Court of First Instance of
Nueva Ecija issued a writ of preliminary injunction to
restrain respondent administrator from interferring
with the threshing of the crop standing on said lands,
can respondent court, after having been apprised of
said order, issue an order the effect of which is to
nullify and render ineffective said writ of preliminary
injunction?.
There is no dispute that the two parcels of land in
Santa Rosa, Nueva Ecija are claimed by petitioner as
part of the separate property of Francisco de Borja so
much so that she took possession thereof when she
assumed her commission as guardian on October 27,
1953. That she succeeded in taking actual possession
of said lands is shown by the fact that when she
commenced the threshing of the crop standing
thereon, respondent Jose de Borja filed a petition in
the estate proceedings of Josefa Tangco to restrain
her from threshing said crop. Then a dispute arose as
to the ownership of said parcels of land. On one
hand, petitioner claims that they belong exclusively
to her ward having inherited them from his late father
Marcelo de Borja, while, on the other, respondent
administrator contends that they are not the land

adjudicated to the incompetent by the commissioners

on partition. The parties had made several attempts to
arrive at an agreement as to the identity of the
disputed lands, but they failed, and because there was
a pressing need of immediately threshing the crop
standing thereon, petitioner filed an action in the
Court of First Instance of Nueva Ecija to determine
once and for all the title and ownership of said lands.
In the same case, the court issued a preliminary
injunction restraining respondent administrator from
interferring with the administration of said properties.
But such action notwithstanding, respondent court
issued the orders in question which not only go into
the issue of ownership but render ineffective the writ
of injunction issued by the Court of First Instance of
Nueva Ecija. Can respondent court do so?
It is a well-settled rule in this jurisdiction, sanctioned
and reiterated in a long line of decisions that, "the
question of ownership of property is one which
should be determined in an ordinary action and not in
probate proceedings, and this whether or not the
property is alleged to belong to the estate" (Franco
vs. O'Brien, 13 Phil., 359). In another case, it was
held that "The general rule is that questions as to title
to property cannot be passed upon in testate or
intestate proceedings" (Pascual vs. Pascual, 73 Phil.,
561, 562; See also Cordova Vda. de Maalac vs.
Ocampo, 73 Phil., 661, 662), or stating the rule more
elaborately, "When questions arise as to the
ownership of property alleged to be a part of the
estate of a deceased person, but claimed by some
other person to be his property, not by virtue of any
right of inheritance from the deceased, but by title
adverse to that of the deceased and his estate, such
questions cannot be determined in the courts of
administrative proceedings. The Court of First
Instance, acting as a probate court, has no jurisdiction
to adjudicate such contentions, which must be
submitted to the court in the exercise of its general
jurisdiction as a court of first instance . . .." (Guzman
vs. Anog, 37 Phil., 61.)
The dispute between petitioner and respondent
administrator involving, as it does, the ownership of
two parcels of land situated in Santa Rosa, Nueva
Ecija, and this question having been squarely raised
in an action pending in the court of first instance of
said province, which was instituted by petitioner

against respondent administrator precisely because of

the dispute that had arisen between them over said
property, it is the sense of this Tribunal that
respondent court exceeded its jurisdiction in acting
upon the said question in its capacity as probate
court. On the face of such issue which necessarily
involves the ownership of the properties, we consider
of no consequence the claim that what respondent
court merely did was to look into the identity of said
properties. This question is necessarily imbibed in the
greater issue of ownership and being interwoven one
can hardly draw the line of demarcation that would
separate one from the other.
As regards the question whether the order of
respondent court restraining petitioner from threshing
the palay crop standing on the lands has been
properly issued on the face of the writ of preliminary
injunction issued by the Court of First Instance of
Nueva Ecija, the answer is not difficult to find: the
court should not have issued the order, for "It is
settled by an overwhelming weight of authority that
no court has power to interfere by injunction with the
judgments or decree of a court of concurrent or
coordinate jurisdiction having equal power to grant
the relief sought by injunction. . . . The various
branches of the Court of First Instance of Manila are
in a sense coordinate courts and to allow them to
interfere with each other's judgments or decrees by
injunctions would obviously lead to confusion and
might seriously hinder the administration of justice."
(Cabigao vs. Del Rosario, 44 Phil., 182; See also
Philippine National Bank vs. Javellana, 92 Phil., 525;
Montesa vs. Manila Cordage Company, 92 Phil., 25.)
Wherefore, petition is granted without costs. The
orders of respondent court dated January 29, 1954
and February 18, 1954 are hereby set aside.
Bengzon, Acting C. J., Padilla, Montemayor, Reyes,
A., Jugo, Labrador, Concepcion, and Reyes, J. B. L.,
JJ., concur.

G.R. No. L-8409

December 28, 1956

In the Matter of the Intestate of the deceased

Andres Eusebio. EUGENIO EUSEBIO, petitioner-

appellee,
vs.
AMANDA EUSEBIO, JUAN EUSEBIO, DELFIN
EUSEBIO, VICENTE EUSEBIO, and CARLOS
EUSEBIO, oppositors-appellants.
Francisco M. Ramos and Valeriano Silva for
appellee.
Filemon Cajator for appellants.

CONCEPCION, J.:
This case instituted on November 16, 1953, when
Eugenio Eusebio filed with the Court of First
Instance of Rizal, a petition for his appointment as
administrator of the estate of his father, Andres
Eusebio, who died on November 28, 1952, residing,
according to said petition, in the City of Quezon. On
December 4, 1953, Amanda, Virginia, Juan, Delfin,
Vicente and Carlos, all surnamed Eusebio, objected
to said petition, stating that they are illegitimate
children of the deceased and that the latter was
domiciled in San Fernando, Pampanga, and praying,
therefore, that the case be dismissed upon the ground
that venue had been improperly filed. By an order,
dated March 10, 1954, said court overruled this
objection and granted said petition. Hence, the case is
before us on appeal taken, from said order, by
Amanda Eusebio, and her aforementioned sister and
brothers.
The appeal hinges on the situs of the residence of
Andres Eusebio on November 28, 1952, for Rule 75,
section 1, of the Rules of Court, provides:
Where estate of deceased persons settled.
If the decedent is an inhabitant of the
Philippines at the time of his death, whether
a citizens or an alien, his will shall be
proved, or letters of administration granted,
and his estate, in the Court of First Instance
in the province in which he resides at the
time of his death, and if he is an inhabitant
of a foreign country, the Court of First
Instance of any province in which he had
estate. The court first taking cognizance of

the settlement of the estate of a decedent,

shall exercise jurisdiction to the exclusion of
all other courts. The jurisdiction assumed by
a court, so far as it depends on the place of
residence of the decedent, or of the location
of his estate, shall not be contested in a suit
or proceeding, except in an appeal from that
court, in the original case, or when the want
of jurisdiction appears on the record.
It is not disputed that up to, at least, October 29,
1952, Andres Eusebio was, and had always been,
domiciled in San Fernando, Pampanga, where he had
his home, as well as some other properties. Inasmuch
as his heart was in bad condition and his son, Dr.
Jesus Eusebio, who treated him, resided at No. 41 P.
Florentino St., Quezon City, on October 29, 1952,
Andres Eusebio bought a house and lot at 889-A
Espaa Extention, in said City (Exhibit 2). While
transferring his belongings to this house, soon
thereafter, the decedent suffered a stroke (probably
heart failure), for which reason Dr. Eusebio took him
to his (Dr. Eusebio's) aforementioned residence,
where the decedent remained until he was brought to
the UST Hospital, in the City of Manila, sometimes
before November 26, 1952. On this date, he
contracted marriage in articulo mortis with his
common law wife, Concepcion Villanueva, in said
hospital. Two (2) days later, he died therein of "acute
left ventricular failure secondary to hypertensive
heart disease", at the age of seventy-four (74) years
(Exhibit A). Consequently, he never stayed or even
slept in said house at Espaa Extention.
It being apparent from the foregoing that the domicile
of origin of the decedent was San Fernando,
Pampanga, where he resided for over seventy (70)
years, the presumption is that he retained such
domicile, and, hence, residence, in the absence of
satisfactory proof to the contrary, for it is well-settled
that "a domicile once acquired is retained until a new
domicile is gained" (Minor, Conflict of Laws, p.70;
Restatement of the Law on Conflict of Laws, p. 47;
In re Estate of Johnson, 192 Iowa, 78). Under the
circumstances surrounding the case at bar, if Andres
Eusebio established another domicile, it must have
been one of choice, for which the following
conditions are essential, namely: (1) capacity to
choose and freedom of choice; (2) physical presence

at the place chosen; and (3) intention to stay therein

permanently (Minor, Conflict of Laws, pp. 109-110;
Googrich, Conflict of Laws, p. 169; Velilla vs.
Posadas, 62 Phil., 624; Zuellig vs. Republic of the
Philippines, 46 Off. Gaz. Suppl. No. 11, p. 220).
Admittedly, the decedent was juridically capable of
choosing a domicile and had been in Quezon City
several days prior to his demise. Thus, the issue
narrows down to whether he intended to stay in that
place permanently.
There is no direct evidence of such intent. Neither
does the decedent appears to have manifested his
wish to live indefinitely in said city. His son,
petitioner-appellee, who took the witness stand, did
not testify thereon, despite the allegation, in his
answer to the aforemention, opposition of the
appellants herein, that "the deceased (had) decided to
reside . . . for the rest of his life, in Quezon City".
Moreover, said appellee did not introduce the
testimony of his legitimate full brother and son of the
decedent, Dr. Jesus Eusebio, upon whose advice,
presumably, the house and lot at No. 889-A Espaa
Extention was purchased, and who, therefore, might
have cast some light on his (decedent's) purpose in
buying said property. This notwithstanding, the lower
court held that the decedent's intent to stay
permanently in Quezon City is "manifest" from the
acquisition of said property and the transfer of his
belonging
thereto.
This
conclusion
is
untenable.lawphil.net
The aforementioned house and lot were bought by
the decedent because he had been adviced to do so
"due to his illness", in the very words of herein
appellee. It is not improbable in fact, its is very
likely that said advice was given and followed in
order that the patient could be near his doctor and
have a more effective treatment. It is well settled that
"domicile is not commonly changed by presence in a
place merely for one's own health", even if coupled
with "knowledge that one will never again be able, on
account of illness, to return home." (The Conflict of
Laws, by Beale, Vol. I, pp. 172-173; see, also,
Shenton vs. Abbott, Md., 15., A. 2d. 906; U.S. vs.
Knight, D. C. Mont., 291 Fed. 129).
Again, the decedent did not part with, or alienate, his
house in San Fernando, Pampanga. Moreover, some

of his children, who used to live with him in San

Fernando, Pampanga, remained in that municipality.
Then, again, in the deed Exhibit 2, by virtue of which
said property at No. 889-A Espaa Extention, Quezon
City, was conveyed to him, on October 29, 1952, or
less than a month before his death, the decedent gave
San Fernando, Pampanga, as his residence.
Similarly, the "A" and "B" residence certificates used
by the decedent in aknowledging said Exhibit 2,
before a notary public, was issued in San Fernando,
Pampanga. Lastly, the marriage contract Exhibit 1,
signed by the deceased when he was married, in
articulo mortis, to Concepcion Villanueva, at the
UST Hospital, on November 26, 1952, or two (2)
days prior to his demise, stated that his residence is
San Fernando, Pampanga. It is worthy of notice that
Alfonso Eusebio, one of the legitimate full brothers
of the herein appellee, was a witness to said wedding,
thus indicating that the children of the deceased by
his first marriage, including said appellee, were
represented on that occasion and would have objected
to said statement about his residence, if it were false.
Consequently, apart from appellee's failure to prove
satisfactory that the decedent had decided to establish
his home in Quezon City, the acts of the latter, shortly
and immediately before his death, prove the contrary.
At any rate, the presumption in favor of the retention
of the old domicile 1 which is particularly strong
when the domicile is one of the origin 2as San
Fernando, Pampanga, evidently was, as regards said
decedent has not been offset by the evidence of
record.
The lower court, however, rejected said Exhibits 1
and 2, upon being offered in evidence, and refused to
entertain the same in the order appealed from. The
reason therefor are deducible from its resolution in
rejecting said documents during the hearing of the
incident at bar. The court then held:
Exihibits "1" and "2" are rejecting but the
same may be attached to the records for
whatever action oppositors may want to take
later on because until now the personality of
the oppositors has not been established
whether or not they have a right to intervene
in this case, and the Court cannot pass upon
this question as the oppositors refuse to
submit to the jurisdiction of this Court and

they maintain that these proceedings should

be dismissed. (P. 10, t. s. n.)
In short, the lower court believed that said documents
should not be admitted in evidence before appellants
had established their "personality" to intervene in the
case, referring seemingly to their filiation. When
appellants, however, sought, during said hearing, to
establish their relation with the deceased, as his
alleged illegitimate children, His Honor, the trial
Judge sustained appellee's objection thereto stating:
Your stand until now is to question the
jurisdiction of this Court, and it seems that
you are now trying to prove the status of
your client; you are leading so that. The
main point here is your contention that the
deceased was never a resident of Quezon
City and that is why I allowed you to crossexamine. If you are trying to establish the
status of the oppositors, I will sustain the
objection, unless you want to submit to the
jurisdiction of the Court. This is not yet the
time to declare who are persons who should
inherit. (p. 1, t. s. n.)
Thus, the lower court refused to consider appellant's
evidence on the domicile of the decedent, because of
their alleged lack of "personality", but, when tried to
establish such "personality", they were barred from
doing so on account of the question of venue raised
by him. We find ourselves unable to sanction either
the foregoing procedure adopted by the lower court
or the inference it drew from the circumstances
surrounding the case.
To begin with, His Honor, the trial Judge had taken
inconsistent positions. While, on the one hand, he
declared that appellants could not be permitted to
introduce evidence on the residence of the decedent,
for they contested the jurisdiction of court, on the
other hand, he held, in the order appealed from, that,
by cross-examining the appellee, said appellants had
submitted themselves to the authority of the court.
What is more, this conclusion is refuted by the
record. At the beginning of the hearing, in the lower
court, appellants' counsel announced that he would

take part therein "only to question the jurisdiction, for

the purpose of dismissing this proceeding," (p. 2,
t.s.n.). During the cross-examination of petitioner
herein, said counsel tried to elicit the relation
between the decedent and the appellants. As, the
appellee objected thereto, the court said, addressing
appellants' counsel: "Your stand until now is to
question the jurisdiction of the court. . . . It you are
trying to establish the status of the oppositors, I will
sustain the objection, unless you want to submit to
the jurisdiction of the court" (p. 7, t.s.n.). Thereupon,
appellants' counsel refused to do so, stating: "I will
insist on my stand." Then, too, at the conclusion of
the hearing, the court rejected Exhibits 1 and 2, for
the reason that appellants "refuse to submit to the
jurisdiction of this court and they maintain that these
proceedings should be dismissed." Thus, appellants
specially made of record that they were not
submitting themselves to the jurisdiction of the court,
except for the purpose only of assailing the same, and
the court felt that appellants were not giving up their
stand, which was, and is, a fact.
At any rate, appellants were entitled to establish facts
tending to prove, not only their right to object to
appellee's petition, but, also, that venue had been laid
improperly. Such facts were: (a) their alleged
relationship with the decedent, 3 which, if true,
entitle them to proceed him under the Civil Code of
the Philippines; and (b) his alleged residence is
Pampanga. In other words, the lower court should
have admitted Exhibits 1 and 2 in evidence and given
thereto the proper effect, in connection with the issue
under consideration.
Appellee, however, asks: "What will happen if this
case be dismissed in the Court of First Instance of
Quezon City on the ground of lack of jurisdiction or
improper venue?" In this connection, it appears that
on November 14, 1953, the Clerk of the Court of
First Instance of Pampanga received a petition of
appellants herein, dated November 4, 1953, for the
settlement of the "Intestate Estate of the late Don
Andres Eusebio". Attached to said petition was
petition for the docketing thereof free charge,
pursuant to Rule 3, section 22, of the Rules of Court.
The latter petition was granted by an order dated
November 16, 1953, which was received by the
cashier of said court on November 17, 1953, on

which date the case was docketed as Special

Proceedings No. 957. On December 14, 1953, Jesus,
Eugenio, Amando and Alfonso, all surnamed Eusebio
(the children of the decedent by first marriage,
including petitioner herein), moved for the dismissal
of said proceedings, owing to the pendency of the
present case, before the Court of First Instance of
Rizal, since November 16, 1953. This motion was
granted in an order dated December 21, 1953, relying
upon the above Rule 75, section 1, of the Rules of
Court, pursuant to which "the court first taking
cognizance of the settlement of the estate of a
decedent, shall exercise jurisdiction to the exclusion
of all other courts."
Although said order is now final, it cannot affect the
outcome of the case at bar. Said order did not pass
upon the question of domicile or residence of the
decedent. Moreover, in granting the court first taking
cognizance of the case exclusive jurisdiction over the
same, said provision of the Rules of Court evidently
refers to cases triable before two or more courts with
concurrent jurisdiction. It could not possibly have
intended to deprive a competent court of the authority
vested therein by law, merely because a similar case
had been previously filed before a court to which
jurisdiction is denied by law, for the same would then
be defeated by the will of one of the parties. More
specially, said provision refers mainly to non-resident
decedents who have properties in several provinces in
the Philippines, for the settlement of their respective
estates may undertaken before the court of first
instance of either one of said provinces, not only
because said courts then have concurrent jurisdiction
and, hence, the one first taking cognizance of the
case shall exclude the other courts but, also,
because the statement to this effect in said section 1
of Rule 75 of the Rules of the Court immediately
follows the last part of the next preceding sentence,
which deals with non-resident decedents, whose
estate may settled the court of first instance of any
province in which they have properties.lawphil.net
In view, however, of the last sentence of said section,
providing that:
. . . The jurisdiction assumed by a court, so
far as it depends on the place of residence of
the decedent, or of the location of his estate,

shall not be contested in a suit or

proceedings, except in an appeal from that
court, in the original case, or when the want
of jurisdiction appears on the record.
if proceedings for the settlement of the estate of a
deceased resident are instituted in two or more courts,
and the question of venue is raised before the same,
the court in which the first case was filed shall have
exclusive jurisdiction to decide said issue, and we so
held in the case of Taciana Vda. De Borja vs. Tan, L7792 (July 27, 1955). Should it be decided, in the
proceedings before the said court, that venue had
been improperly laid, the case pending therein should
be dismissed and the corresponding proceedings may,
thereafter, be initiated in the proper court.
In conclusion, we find that the decedent was, at the
time of his death, domiciled in San Fernando,
Pampanga; that the Court of First Instance of Rizal
had no authority, therefore, to appoint an
administrator of the estate of the deceased, the venue
having been laid improperly; and that it should,
accordingly, have sustained appellants' opposition
and dismissed appellee's petition.
Wherefore, the order appealed from is hereby
reversed and appellee's petition is dismissed, with
costs against the appellee. It is so ordered.
Paras, C.J., Bengzon, Padilla, Bautista Angelo,
Labrador, Reyes, J.B.L., Endencia and Felix, JJ.,
concur.

EN BANC
G.R. No. L-1723

May 30, 1949

LUZ MARQUEZ DE SANDOVAL, petitioner,

vs.
VICENTE SANTIAGO, judge of the Court of
First Instance of Quezon Province, Branch III,
respondent.

Potenciano
A.
Magtibay
for
petitioner.
First Assistant Solicitor General Roberto A. Gianzon
and Solicitor MartinianoP. Vivo for respondent.
FERIA, J.:
This is a special civil action of certiorari filed by the
petitioner against the respondent Judge Hon. Vicente
Santiago.
The herein petitioner instituted a special proceeding
in the Court of First Instance of First Instance of
Quezon Province for then probate of the will and
codicil executed by the deceased Daniel Marquez in
which she was designated as executrix. The will and
codicil were allowed and the petitioner was appointed
on August 16, 1946, executrix in accordance with the
will but before the petitioner qualified as executrix
the three heirs instituted in the will all age made an
extrajudicial partition of all the properties of he
deceased on October 5, 1946 and entered into the
possession of their respective share without the
authority and approval of the court. On August 22,
1947, that is one year after the probate of the will and
appointment of the petitioner as executrix the
respondent judge required the petitioner to quality as
such and file a bind of P5,000. In response thereto the
petitioner informed the respondent judge that it was
not necessary for her to qualify because the heirs had
already made an extrajudicial partition in accordance
with the will as shown by the copy the copy of said
partition which she submitted to the court. In view of
the answer of the petitioner the respondent judge
ordered the executrix to qualify as such within fortyeight hour and declared the extrajudicial agreement
of partition entered into by the heirs null and void, on
the ground that the probate proceedings having been
commenced judicially it must also be terminated
judicially. A motion for reconsideration was filed by
the petitioner and denied by the court hence, the
filing of the present petition for certiorari.
We are of the opinion, and so hold, that the
respondent, Judge or Court of First Instance of
Quezon Province, wherein the deceased was residing
at the time of his death, has acquired exclusive
jurisdiction to settle the testate estate of the deceased
Daniel Marquez and over the heirs and other person

interested in the estate of the deceased from the

moment the application for the probate of the
decedent's will was filed with the said court and the
publication required by law were made; and the heirs
of the deceased Marquez could not divest the Court
of First Instance of its already acquired jurisdiction
by the mere fact of dividing extrajudicially the estate
of the deceased among themselves.
If the extrajudicial partition made by the heirs of the
deceased wassubmitted to the court and approved by
the respondent judge after verifying that it does not
prejudicially affect the rights of third parties, the
testate proceedings pending in the court would have
been legally thereby terminated. An extrajudicial
partition of the estate of a deceased by the heirs
becomes a judicial partition after its approval by the
court which had previously acquired jurisdiction of
the estate by the filing of an application for the
probate of the decedent's will; but as the testate
proceeding is terminated in such case without the
necessary publication ofnotices to creditors and other
persons interested in the estate required ina required
in a regular judicial administration, the effect of such
judicial partition would be the same as if it had been
effected extrajudicially without the intervention of
the court under the provisions of section1,of Rule 74,
that is, subject to the claims against the distributees
by persons mentioned in sections 4 and 5, of the same
rule. (McMicking vs. Sy Conbieng. 21 Phil., 211.)
In view of the foregoing, the petition for certiorari is
denied with costs against the petitioner, because the
respondent judge did not exceed his jurisdiction in
not giving the deed of extrajudicial settlement or
partition of the estate of the deceased the effect of
terminating the testate proceedingover which the
court has acquired exclusive jurisdiction since said
partition was not submitted to said court for approval.
So ordered.
Ozaeta, Paras, Pablo, Perfecto,
Montemayor and Reyes, JJ., concur.

G.R. No. L-44042

August 23, 1935

Bengzon,

REMEDIOS
BONGON
VIUDA
DE
MANZANERO,
petitioner,
vs.
THE COURT OF FIRST INSTANCE OF
BATANGAS,
FORTUNATO,
BARBARA,
MARCELINA and FERNANDA, surnamed
MANZANERO,
and
FILIPINAS
LIFE
ASSURANCE CO., respondents.
Ramon
Diokno
for
petitioner.
J.E.
Blanco
for
respondents.
Ramirez and Ortigas for respondent Filipinas Life
Assurance Co.
VILLA-REAL, J.:
This is an original petition for certiorari filed by
Remedios Bongon Viuda de Manzanero against the
Court of First Instance of Batangas and others,
praying for the annulment, after due process, of the
proceedings of said court in the case for the summary
settlement of the estate left by deceased Esteban M.
Manzanero, for having acted without jurisdiction and
committed therein irregularities nullifying said
proceedings.
The following pertinent facts are necessary for the
resolution of the question raised in this petition, to
wit:
Esteban M. Manzanero, then assistant district
engineer of the Province of Albay, died in the
provincial hospital of said province on February 15,
1935. On March 7, 1935, his brother, Fortunato
Manzanero, filed in the Court of First Instance of
Batangas a sworn application which was docketed as
special proceedings No. 3128, alleging that his
deceased brother, Esteban M. Manzanero, in life, had
his legal residence in Santo Tomas, Batangas; that he
had left no property except a life insurance policy of
P5,000 with the Filipinas Life Assurance Co., of
Manila; that his said deceased brother owed him the
sum of P500; that he was survived by a widow, the
herein petitioner, Remedios Bongon, residing in
Tabaco, Albay; and praying for a summary settlement
of his estate. A copy of said application was sent by
ordinary mail to said widow.

On March 11, 1935, the herein respondent, Court of

First Instance of Batangas, issued an order setting
said application for hearing at 8:30 o'clock in the
morning of April 11, 1935, and directing the
publication of the notice for the time fixed by law in
Kayumangui, a newspaper published in Lipa,
Batangas, and of general circulation in the province.
When the application was called for hearing on April
11, 1935, only the applicant Fortunato Manzanero
appeared through his attorney, Epitacio Panganiban.
As the vacation Judge, Eduardo Gutierrez David, was
holding judicial session in Lucena, Tayabas, said
applicant and his attorney requested the clerk of the
Court of First Instance of Batangas to send the record
to Lucena which he did.
Upon petition of the applicant, and after making sure
that no opposition to the application had been
presented, Judge Eduardo Gutierrez David ordered
the clerk of court of Tayabas to take the evidence in
the case and to submit his report.
On April 15, 1935, the clerk of the Court of First
Instance of Tayabas forwarded the evidence with his
report to said court.
On April 20, 1935, the case was set for hearing at 8
o'clock in the morning of April 22, 1935, and the
corresponding notice thereof sent by registered
special delivery mail to the herein petitioner,
Remedios Bongon Viuda de Manzanero, and to
Fortunato Manzanero on the same day, April 22,
1935.
On April 23, 1935, the case was called for hearing
without the petitioner having appeared to oppose the
application. On the same date, Judge Eduardo
Gutierrez David issued an order stating, among other
things, that the evidence presented by said applicant
disclosed that Esteban M. Manzanero was a resident
of Santo Tomas, Batangas, with temporary residence
in Tabaco, Albay, where he was assistant district
engineer, and directing the summary distribution of
the sum of P5,000, after payment of the sum of P500
which said deceased supposedly owed his brother,
Fortunato Manzanero, and after the filing of a bond
of P3,500 by the alleged heirs, said distribution to be

subject to any valid claim that might be presented

within two years against said distribution.
In an order of May 4, 1935, Eduardo Gutierrez
David, vacation Judge of the Court of First Instance
of Batangas, required the Filipinas Assurance
Company to pay to the heirs of the deceased Esteban
M. Manzanero the proceeds of his insurance policy.
Pursuant to said order, said insurance company sent
the net proceeds of the policy amounting to
P4,276.03 to the clerk of said court.
Having been informed that the proceeds of the policy
had been distributed among the heirs of her deceased
husband, the petitioner, on June 21, 1935, filed a
motion praying for the return and delivery to her of
the money, the hearing of said motion having been set
for June 28, 1935. This motion was not heard as
Judge Platon then presiding the Court of First
Instance of Batangas refrained from trying the case.
The first question to be decided is whether or not the
question of jurisdiction of a court to take cognizance
of a summary settlement of the estate of a deceased
person, by reason of residence, may be raised by
means of the extraordinary remedy of certiorari.
Section 603 of the Code of Civil Procedure provides:
SEC. 603. Jurisdiction, when may be
contested. The jurisdiction assumed by a
Court of First Instance, for the settlement of
an estate, so far as it depends on the place of
residence of a person, or of the location of
his estate, shall not be contested in a suit or
proceeding, except in an appeal from that
court, in the original case, or when the want
of jurisdiction appears on the record.
According to the above cited legal provision, the
jurisdiction assumed by a Court of First Instance, for
the settlement of an estate, so far as it depends on the
place of residence of a person, or of the location of
his estate, cannot be contested in a suit or proceeding,
except in an appeal from that court, in the original
case, or when the want of jurisdiction appears on the
record.

From the pleadings before us, which are copies of

their originals attached to the record in the Court of
First Instance of Batangas, the want of jurisdiction of
said court does not clearly appear. The
communication of the municipal treasurer of Tabaco,
Albay, stating that the deceased Esteban M.
Manzanero appears in the list of registered voters,
and the affidavit of the municipal president thereof
stating that the deceased resided before his death in
Tabaco, Albay, do not form part of the record of the
lower court. It not appearing from the orders of the
lower court, as disclosed by the copies thereof
attached to the record of these certiorari proceedings,
that said court lacks jurisdiction to take cognizance of
the application for summary settlement by reason of
the legal residence of the deceased, Esteban M.
Manzanero, certiorari does not lie, an appeal being
specially provided in such case by section 603 of the
Code of Civil Procedure.
As to the alleged irregularities, some involve a
question of fact, as the absence of publication of the
hearing, and they cannot be the object of certiorari;
and others, as the taking of evidence before the clerk
of court of Tayabas, while involving questions of law
which may affect the validity of the proceedings, it
does not appear that the lower court's attention has
been called thereto by means of a motion to
reconsider its proceedings, without which requisite
certiorari does not lie, as held in the case of the
Municipal Council of Masantol vs. Guevara (44
Phil., 580); and Herrera vs. Barretto and Joaquin (25
Phil., 245).
Furthermore, it appears of record that there is a
motion in the special proceeding for the summary
settlement of the estate under consideration, praying
that the heirs of the deceased Esteban M. Manzanero,
who received the latter's property, be ordered to
return it to the court for delivery to the herein
petitioner, Remedios Bongon Viuda de Manzanero, as
the only alleged beneficiary named in the insurance
policy of her deceased husband. This motion is
pending decision and is in accordance with the
reservation made by Judge Eduardo Gutierrez David
in his order of April 23, 1935, directing the
distribution of the net proceeds of the insurance
policy among the brothers and sisters of the deceased,
after payment of the only indebtedness of P500. Said

reservation is in accordance with the provision of

section 598 of said Code of Civil Procedure.
Under the law and under said order, the petitioner,
therefore, has a plain, speedy and adequate remedy
for the enforcement of her rights, and consequently,
this petition for certiorari does not lie.
For the foregoing considerations, it is held that the
petition for certiorari filed by the petitioner
Remedios Bongon Viuda de Manzanero does not lie
and it is ordered dismissed, with costs to the
petitioner. So ordered.
Malcolm, Imperial, Butte, and Goddard, JJ., concur.

G.R. No. L-3751

February 21, 1908

EDUARDA BENEDICTO, administratrix of the

estate of Maximino Jalandoni, plaintiff-appellee,
vs.
JULIO JAVELLANA, defendant-appellant.
C.
Ledesma
for
Rothrock and Foss for appellee.

appellant.

TORRES, J.:
For the purpose of enforcing the terms of the will
made on the 26th of June, 1903, by Maximo
Jalandoni, resident of Jaro, the brother of the testator,
Maximino Jalandoni, petitioned by a writing dated
August 20, 1906, that the administrator or executor,
Julio Javellana, be directed to pay him the sum of
P985 which he held in lieu of the land donated to
petitioner. To this end he alleged that according to the
said will, one-half of the hacienda "Lantad", situated
in the pueblo of Silay, Occidental Negros, had been
bequeathed to him, which gift was subject to the
payment of certain debts and expenses of the estate,
with respect to the products of the years 1903 and
1904 only, and which had already been applied to that
object by the administrator, Javellana; that one-half
of said hacienda was sold with the consent of the
administrator, the sum P985 remaining in the
possession of the latter, from the entire proceeds of

the sale, to meet any just or lawful claim which might

arise against the gift made to him, or until such time
as the court should confirm the legacy; that, as the
administrator had already received the products of the
hacienda, he is no longer entitled to retain any
portion of the legacy, nor demand that he should
respond for other debts or expenses of the estate,
because with the value of the portion inherited by the
heirs Francisco Jalandoni and Sofia Jalandoni, there
was more than would be required to pay the other
debts of the estate, and the expenses.
Owing to the death of the plaintiff, Eduarda
Benedicto, the administratrix of his estate,
represented him.
The administrator of the estate, Julio Javellana, in
answer to the above motion, alleged that it was not
proper to ask, by means of a motion, for the relief
that Maximino Jalandoni claimed, but that a
complaint should have been filed and action brought
against the other legatees, or rather against all the
parties concerned in the estate, and not against the
administrator alone; that Francisco Jalandoni and
Sofia Jalandoni should not be considered as heirs but
simply as the legatees of the testator, and that they are
in the same position as the petitioner, Maximino
Jalandoni, with respect to the charges against the
estate; that the obligation to pay all the debts of the
same was imposed on the entire inheritance, and not
any particular property, nor on any determined party
in interest named in the will; and that the amount in
deposit with the administrator was not P985 but
P949.29, voluntarily deposited not only to pay certain
debts but also to meet all the charges against the
estate and proportionately by the share allotted to
Maximino Jalandoni, as had been done by applying
the said sum toward the payment of debts, and for
other reasons appearing therein.
The pertinent clauses or paragraphs of the will above
referred to are as follows:
The hacienda "Malogo," owned by me and
situated in the pueblo of Eustaquio Lopez,
Province of Occidental Negros, P.I., and one
parcel of land situated in the pueblo of
Mandurriao, Province of Iloilo, P.I., I

bequeath to Jose Jalbuena, the son of Benito

Jalbuena, to whom I profess particular
affection, having taken care of him in my
own house from his most tender age.
I institute Francisco Jalandoni and Sofia
Jalandoni, the children of my late brother
Nicolas Jalandoni, whose memory is so dear
to me for the favors I have received of him,
as heirs to all the property real and personal,
which I own in the Province of Iloilo, P.I.,
with the exception of the parcel of land
previously assigned to Jose Jalbuena, which
property shall be divided between the abovementioned heirs in equal parts.
It is my will that my hacienda denominated
"Lantad" shall be divided one half to my
brother, Maximino Jalandoni, and the other
half to the sisters Maria, Felisa, and
Felicidad Jalandoni, daughters of Nazaria
Hojilla.
On my entire estate I impose the obligation
that out of the products thereof, all my debts
shall be paid, the same being about 2,300
pesos which I owe Francisco Villanueva,
without interest, and 2,550 pesos which I
received on loan from Julio Javellana, with
interest thereon at the rate of 10 percent per
annum, provided, however, that one-half of
the products which each parcel of land
pertaining to the estate may yield this year
shall be devoted to the payment of said
debts, and should the said one-half not prove
sufficient to meet the liabilities, two-thirds
of the said products, or the total amount
thereof, shall be applied; and provided,
further, that in any case, the balance of such
products shall remain in charge of the
administrator for the settlement of such
other charges as the estate may be subjected
to.
And further on Francisco and Sofia
Jalandoni I particularly impose the
obligation to pay Teodora Berola, for a
period of ten years, an annuity of 300 pesos,

Mexican currency, or the equivalent thereof

in Philippine currency; said obligation
becoming extinguished by the death of the
said Teodora, in case of her demise before
the expiration of the said period of ten years.
The judge in view of the result of the proceedings
issued an order on the 27th of October, 1906,
granting the motion filed by the legatee Maximino
Jalandoni, as stated therein, from which order the
opponent appealed to this court.
From the printed and certified copy of the
proceedings, and from the will inserted therein, it
appears that the testator, Maximo Jalandoni, on his
death, left no lawful ascendants or descendants
having any direct claim as hereditary successors.
It also appears, by the will in question, that the
testator has distributed all his property in legacies,
and that, notwithstanding the manner in which he
designates his nephews Francisco and Sofia
Jalandoni in paragraph 3 of the same, in order to
leave in their favor all the real and personal property
that he owned in Iloilo, with the exception of the
parcel of land situated in Mandurriao, bequeathed to
Jose Jalbuena, the truth is that such nephews of the
testator are likewise legatees the same as the last
beneficiary under paragraph two of the said will.
Respect for the will of a testator as expressed in his
last testamentary disposition, constitutes the principal
basis of the rules which the law prescribes for the
correct interpretation of all of the clauses of the will;
the words and provisions therein written must be
plainly construed in order to avoid a violation of his
intentions and real purpose.
The will of the testator clearly and explicitly stated
must be respected and complied with as an inviolable
law among the parties in interest. such is the doctrine
established by the Supreme Court of Spain,
constantly maintained in a great number of decisions,
among which are those of March 24, 1863, April 28,
1882, and December 16, 1903.
The testator, under clause 5 of his will, has imposed
on his entire estate the obligation to pay his debts

with the products of the same, and has prescribed the

manner in which the same shall be done until all
obligations are extinguished.

A testator may charge with legacies and

bequests not only his heir, but also the
legatees.

Such a testamentary disposition is not contrary to

law, and as a matter of fact article 1027 of the Civil
Code provides that

The latter shall not be liable for the charge

except to the extent of the value of the
legacy.

The administrator can not pay the legacies

until he has paid all the creditors.
Section 728 of the Code of Civil Procedure provides
as follows:
If the testator makes provision by his will, or
designates the estate to be appropriated for
the payment of his debts and the expenses of
administration or family expenses, they shall
be paid according to the provisions of the
will. But if the provision made by the will or
the estate appropriated is not sufficient for
that purpose, such part of the estate of the
testator, real or personal, as is not disposed
of by will, if any shall be appropriated for
that purpose.
Therefore, in accordance with the above legal
provisions and with the doctrine established by the
courts, the aforesaid will of the late Maximo
Jalandoni must be complied with and carried into
execution; and, considering that all those who are
benefited thereby have not received from the testator
a universal succession to his estate, but certain
property expressly stated in his will, they should,
under the law be considered merely as legatees,
without the right to received their share of the
property of the deceased until after his debts have
been paid. (Secs. 729, 731 and 754, Code of Civil
Procedure).
None of the parties interested in the will of Maximo
Jalandoni is invested with the character of heir
designated by law, and consequently, the provisions
he has incorporated in his last will do not injure any
of the rights covered by the law which protects the
legitimate portions of such heirs. Article 858 of the
Civil Code reads:

Article 859, following provides:

When the testator charges one of the heirs
with a legacy the latter only shall be obliged
to fulfill the same.
Should he not charge any one in particular,
all shall be liable in the same proportion in
which they may be heirs.
It is to be noticed that in the present case, where the
whole of the inheritance was distributed by legacies,
the parties in interest are indiscriminately designated
as heirs or legatees.
As to specific devices, section 729 of the Code of
Civil Procedure provides exemption from the
payment of debts and expenses if there is sufficient
other property and if it appears to the court necessary
to carry into effect the intention of the testator; and,
as the legacies stated in the aforesaid will consist of
specific property, less the annuity provided for by
clause 6, which is made a special lien upon the
property for by clause 6, which is made a special lien
upon the property bequeathed to Francisco and Sofia
Jalandoni, it is unquestionable that in this case the
debts and expenses of the estate must be paid pro rata
by the legatees in the manner provided in the will, or
in accordance with the provisions of sections 753 and
754 of the Code of Civil Procedure.
On the other hand, and for such effects as may be
proper, it should be stated herein that any challenge
to the validity of a will, any objection to the
authentication thereof, and every demand or claim
which any heir, legatee, or party in interest in a
testate or intestate succession may make, must be
acted upon and decided within the same special
proceedings not in a separate action and the same
judge having jurisdiction in the administration of the

estate shall take cognizance of the question raised,

inasmuch as when the day comes he will be called
upon to make distribution and adjudication of the
property to the interested parties, as may be seen in
part II of the Code of Civil Procedure, from section
551 forward.
By the foregoing it has been shown that the judgment
appealed from is not in accordance with the law,

therefore it is our opinion that the same should be

reversed, and that the request of the representative of
Maximino Jalandoni, now sustained by Eduarda
Benedicto, the administratrix of his estate, should be
dismissed without any special ruling as to costs. So
ordered.

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