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Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 72706 October 27, 1987 CONSTANTINO C.

ACAIN, petitioner, vs. HON. INTERMEDIATE APPELLATE COURT (Third Special Cases Division), VIRGINIA A. FERNANDEZ and ROSA DIONGSON, respondents.

PARAS, J.: This is a petition for review on certiorari of the decision * of respondent. Court of Appeals in AC-G.R. SP No. 05744 promulgated on August 30, 1985 (Rollo, p. 108) ordering the dismissal of the petition in Special Proceedings No, 591 ACEB and its Resolution issued on October 23, 1985 (Rollo, p. 72) denying respondents' (petitioners herein) motion for reconsideration. The dispositive portion of the questioned decision reads as follows: WHEREFORE, the petition is hereby granted and respondent Regional Trial Court of the Seventh Judicial Region, Branch XIII (Cebu City), is hereby ordered to dismiss the petition in Special Proceedings No. 591 ACEB No special pronouncement is made as to costs. The antecedents of the case, based on the summary of the Intermediate Appellate Court, now Court of Appeals, (Rollo, pp. 108-109) are as follows: On May 29, 1984 petitioner Constantino Acain filed on the Regional Trial Court of Cebu City Branch XIII, a petition for the probate of the will of the late Nemesio Acain and for the issuance to the same petitioner of letters testamentary, docketed as Special Proceedings No. 591 ACEB (Rollo, p. 29), on the premise that Nemesio Acain died leaving a will in which petitioner and his brothers Antonio, Flores and Jose and his sisters Anita, Concepcion, Quirina and Laura were instituted as heirs. The will allegedly executed by Nemesio Acain on February 17, 1960 was written in Bisaya (Rollo, p. 27) with a translation in English (Rollo, p. 31) submi'tted by petitioner without objection raised by private respondents. The will contained provisions on burial rites, payment of debts, and the appointment of a certain Atty. Ignacio G. Villagonzalo as the executor of the testament. On the disposition of the testator's property, the will provided: THIRD: All my shares that I may receive from our properties. house, lands and money which I earned jointly with my wife Rosa Diongson shall all be given by me to my brother SEGUNDO ACAIN Filipino, widower, of legal age and presently residing at 357-C Sanciangko Street, Cebu City. In case my brother Segundo Acain predeceased me, all the money properties, lands, houses there in Bantayan and here in Cebu City which constitute my share shall be given to me to his children, namely: Anita, Constantino, Concepcion, Quirina, laura, Flores, Antonio and Jose, all surnamed Acain.

Obviously, Segundo pre-deceased Nemesio. Thus it is the children of Segundo who are claiming to be heirs, with Constantino as the petitioner in Special Proceedings No. 591 ACEB After the petition was set for hearing in the lower court on June 25, 1984 the oppositors (respondents herein Virginia A. Fernandez, a legally adopted daughter of tile deceased and the latter's widow Rosa Diongson Vda. de Acain filed a motion to dismiss on the following grounds for the petitioner has no legal capacity to institute these proceedings; (2) he is merely a universal heir and (3) the widow and the adopted daughter have been pretirited. (Rollo, p. 158). Said motion was denied by the trial judge. After the denial of their subsequent motion for reconsideration in the lower court, respondents filed with the Supreme Court a petition for certiorari and prohibition with preliminary injunction which was subsequently referred to the Intermediate Appellate Court by Resolution of the Court dated March 11, 1985 (Memorandum for Petitioner, p. 3; Rollo, p. 159). Respondent Intermediate Appellate Court granted private respondents' petition and ordered the trial court to dismiss the petition for the probate of the will of Nemesio Acain in Special Proceedings No. 591 ACEB His motion for reconsideration having been denied, petitioner filed this present petition for the review of respondent Court's decision on December 18, 1985 (Rollo, p. 6). Respondents' Comment was filed on June 6, 1986 (Rollo, p. 146). On August 11, 1986 the Court resolved to give due course to the petition (Rollo, p. 153). Respondents' Memorandum was filed on September 22, 1986 (Rollo, p. 157); the Memorandum for petitioner was filed on September 29, 1986 (Rollo, p. 177). Petitioner raises the following issues (Memorandum for petitioner, p. 4): (A) The petition filed in AC-G.R. No. 05744 for certiorari and prohibition with preliminary injunction is not the proper remedy under the premises; (B) The authority of the probate courts is limited only to inquiring into the extrinsic validity of the will sought to be probated and it cannot pass upon the intrinsic validity thereof before it is admitted to probate; (C) The will of Nemesio Acain is valid and must therefore, be admitted to probate. The preterition mentioned in Article 854 of the New Civil Code refers to preterition of "compulsory heirs in the direct line," and does not apply to private respondents who are not compulsory heirs in the direct line; their omission shall not annul the institution of heirs; (D) DICAT TESTATOR ET MERIT LEX. What the testator says will be the law; (E) There may be nothing in Article 854 of the New Civil Code, that suggests that mere institution of a universal heir in the will would give the heir so instituted a share in the inheritance but there is a definite distinct intention of the testator in the case at bar, explicitly expressed in his will. This is what matters and should be in violable. (F) As an instituted heir, petitioner has the legal interest and standing to file the petition in Sp. Proc. No. 591 ACEB for probate of the will of Nemesio Acain and

(G) Article 854 of the New Civil Code is a bill of attainder. It is therefore unconstitutional and ineffectual. The pivotal issue in this case is whether or not private respondents have been pretirited. Article 854 of the Civil Code provides: Art. 854. The preterition or omission of one, some, or all of the compulsory heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator, shall annul the institution of heir; but the devisees and legacies shall be valid insofar as they are not; inofficious. If the omitted compulsory heirs should die before the testator, the institution shall he effectual, without prejudice to the right of representation. Preterition consists in the omission in the testator's will of the forced heirs or anyone of them either because they are not mentioned therein, or, though mentioned, they are neither instituted as heirs nor are expressly disinherited (Nuguid v. Nuguid, 17 SCRA 450 [1966]; Maninang v. Court of Appeals, 114 SCRA 478 [1982]). Insofar as the widow is concerned, Article 854 of the Civil Code may not apply as she does not ascend or descend from the testator, although she is a compulsory heir. Stated otherwise, even if the surviving spouse is a compulsory heir, there is no preterition even if she is omitted from the inheritance, for she is not in the direct line. (Art. 854, Civil code) however, the same thing cannot be said of the other respondent Virginia A. Fernandez, whose legal adoption by the testator has not been questioned by petitioner (.Memorandum for the Petitioner, pp. 8-9). Under Article 39 of P.D. No. 603, known as the Child and Youth Welfare Code, adoption gives to the adopted person the same rights and duties as if he were a legitimate child of the adopter and makes the adopted person a legal heir of the adopter. It cannot be denied that she has totally omitted and preterited in the will of the testator and that both adopted child and the widow were deprived of at least their legitime. Neither can it be denied that they were not expressly disinherited. Hence, this is a clear case of preterition of the legally adopted child. Pretention annuls the institution of an heir and annulment throws open to intestate succession the entire inheritance including "la porcion libre (que) no hubiese dispuesto en virtual de legado mejora o donacion" Maniesa as cited in Nuguid v. Nuguid, supra; Maninang v. Court of Appeals, 114 SCRA [1982]). The only provisions which do not result in intestacy are the legacies and devises made in the will for they should stand valid and respected, except insofar as the legitimes are concerned. The universal institution of petitioner together with his brothers and sisters to the entire inheritance of the testator results in totally abrogating the will because the nullification of such institution of universal heirs-without any other testamentary disposition in the will-amounts to a declaration that nothing at all was written. Carefully worded and in clear terms, Article 854 of the Civil Code offers no leeway for inferential interpretation (Nuguid v. Nuguid), supra. No legacies nor devises having been provided in the will the whole property of the deceased has been left by universal title to petitioner and his brothers and sisters. The effect of annulling the "Institution of heirs will be, necessarily, the opening of a total intestacy (Neri v. Akutin, 74 Phil. 185 [1943]) except that proper legacies and devises must, as already stated above, be respected. We now deal with another matter. In order that a person may be allowed to intervene in a probate proceeding he must have an interest iii the estate, or in the will, or in the property to be affected by it either as executor or as a claimant of the estate and an interested party is one who would be benefited by the estate such as an heir or one who has a claim against the estate like a creditor (Sumilang v. Ramagosa, 21 SCRA 1369/1967). Petitioner is not the appointed executor, neither a

devisee or a legatee there being no mention in the testamentary disposition of any gift of an individual item of personal or real property he is called upon to receive (Article 782, Civil Code). At the outset, he appears to have an interest in the will as an heir, defined under Article 782 of the Civil Code as a person called to the succession either by the provision of a will or by operation of law. However, intestacy having resulted from the preterition of respondent adopted child and the universal institution of heirs, petitioner is in effect not an heir of the testator. He has no legal standing to petition for the probate of the will left by the deceased and Special Proceedings No. 591 A-CEB must be dismissed. As a general rule certiorari cannot be a substitute for appeal, except when the questioned order is an oppressive exercise of j judicial authority (People v. Villanueva, 110 SCRA 465 [1981]; Vda. de Caldito v. Segundo, 117 SCRA 573 [1982]; Co Chuan Seng v. Court of Appeals, 128 SCRA 308 [1984]; and Bautista v. Sarmiento, 138 SCRA 587 [1985]). It is axiomatic that the remedies of certiorari and prohibition are not available where the petitioner has the remedy of appeal or some other plain, speedy and adequate remedy in the course of law (DD Comendador Construction Corporation v. Sayo (118 SCRA 590 [1982]). They are, however, proper remedies to correct a grave abuse of discretion of the trial court in not dismissing a case where the dismissal is founded on valid grounds (Vda. de Bacang v. Court of Appeals, 125 SCRA 137 [1983]). Special Proceedings No. 591 ACEB is for the probate of a will. As stated by respondent Court, the general rule is that the probate court's authority is limited only to the extrinsic validity of the will, the due execution thereof, the testator's testamentary capacity and the compliance with the requisites or solemnities prescribed by law. The intrinsic validity of the will normally comes only after the Court has declared that the will has been duly authenticated. Said court at this stage of the proceedings is not called upon to rule on the intrinsic validity or efficacy of the provisions of the will (Nuguid v. Nuguid, 17 SCRA 449 [1966]; Sumilang v. Ramagosa, supra; Maninang v. Court of Appeals, 114 SCRA 478 [1982]; Cayetano v. Leonides, 129 SCRA 522 [1984]; and Nepomuceno v. Court of Appeals, 139 SCRA 206 [1985]). The rule, however, is not inflexible and absolute. Under exceptional circumstances, the probate court is not powerless to do what the situation constrains it to do and pass upon certain provisions of the will (Nepomuceno v. Court of Appeals, supra). In Nuguid v. Nuguid the oppositors to the probate moved to dismiss on the ground of absolute preteriton The probate court acting on the motion held that the will in question was a complete nullity and dismissed the petition without costs. On appeal the Supreme Court upheld the decision of the probate court, induced by practical considerations. The Court said: We pause to reflect. If the case were to be remanded for probate of the will, nothing will be gained. On the contrary, this litigation will be protracted. And for aught that appears in the record, in the event of probate or if the court rejects the will, probability exists that the case will come up once again before us on the same issue of the intrinsic validity or nullity of the will. Result: waste of time, effort, expense, plus added anxiety. These are the practical considerations that induce us to a belief that we might as well meet head-on the issue of the validity of the provisions of the will in question. After all there exists a justiciable controversy crying for solution. In Saguimsim v. Lindayag (6 SCRA 874 [1962]) the motion to dismiss the petition by the surviving spouse was grounded on petitioner's lack of legal capacity to institute the proceedings which was fully substantiated by the evidence during the hearing held in connection with said motion. The Court upheld the probate court's order of dismissal.

In Cayetano v. Leonides, supra one of the issues raised in the motion to dismiss the petition deals with the validity of the provisions of the will. Respondent Judge allowed the probate of the will. The Court held that as on its face the will appeared to have preterited the petitioner the respondent judge should have denied its probate outright. Where circumstances demand that intrinsic validity of testamentary provisions be passed upon even before the extrinsic validity of the will is resolved, the probate court should meet the issue. (Nepomuceno v. Court of Appeals,supra; Nuguid v. Nuguid, supra). In the instant case private respondents filed a motion to dismiss the petition in Sp. Proceedings No. 591 ACEB of the Regional Trial Court of Cebu on the following grounds: (1) petitioner has no legal capacity to institute the proceedings; (2) he is merely a universal heir; and (3) the widow and the adopted daughter have been preterited (Rollo, p. 158). It was denied by the trial court in an order dated January 21, 1985 for the reason that "the grounds for the motion to dismiss are matters properly to be resolved after a hearing on the issues in the course of the trial on the merits of the case (Rollo, p. 32). A subsequent motion for reconsideration was denied by the trial court on February 15, 1985 (Rollo, p. 109). For private respondents to have tolerated the probate of the will and allowed the case to progress when on its face the will appears to be intrinsically void as petitioner and his brothers and sisters were instituted as universal heirs coupled with the obvious fact that one of the private respondents had been preterited would have been an exercise in futility. It would have meant a waste of time, effort, expense, plus added futility. The trial court could have denied its probate outright or could have passed upon the intrinsic validity of the testamentary provisions before the extrinsic validity of the will was resolved (Cayetano v. Leonides, supra; Nuquid v. Nuguid, supra. The remedies of certiorari and prohibition were properly availed of by private respondents. Thus, this Court ruled that where the grounds for dismissal are indubitable, the defendants had the right to resort to the more speedy, and adequate remedies of certiorari and prohibition to correct a grave abuse of discretion, amounting to lack of jurisdiction, committed by the trial court in not dismissing the case, (Vda. de Bacang v. Court of Appeals, supra) and even assuming the existence of the remedy of appeal, the Court harkens to the rule that in the broader interests of justice, a petition for certiorari may be entertained, particularly where appeal would not afford speedy and adequate relief. (Maninang Court of Appeals, supra). PREMISES CONSIDERED, the petition is hereby DENIED for lack of merit and the questioned decision of respondent Court of Appeals promulgated on August 30, 1985 and its Resolution dated October 23, 1985 are hereby AFFIRMED. SO ORDERED. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-26808 March 28, 1969

REV. FATHER LUCIO V. GARCIA, petitioner, vs. HON. CONRADO M. VASQUEZ, respondent.

Antonio Enrile Inton and Conrado B. Enriquez for petitioner. No appearance for respondent. FERNANDO, J.: Petitioner in this certiorari proceeding was averse to paying the docket fees in the amount of P940.00 for the probate of a will of the decedent, Gliceria A. del Rosario. He was of the belief that no such fee should be collected as previously another alleged will of the same deceased was filed for probate by another party with the corresponding docket fee having been paid. He would assert, as set forth in the petition, "that after [such payment] by the original petitioner, Consuelo Gonzales, there is no more need for [him] to pay additional or separate docket fees for their petitions, since they all refer to the settlement of only one estate, the Estate of Gliceria A. del Rosario." 1 Petitioner had to pay just the same, his belief that he would be thus exempted having failed to command the assent of respondent Judge, the Honorable Conrado M. Vasquez, who issued the following order of November 6, 1965: "'Oppositor, Father Lucio Garcia is hereby ordered to pay the corresponding fees of the filing of his petition for allowance of will and issuance of letters of administration with the will annexed, dated September 30, 1965 within fifteen (15) days from notice hereof, failure of which the said petition will be considered dismissed.'" 2Payment was made by him on December 2, 1965, coupled with a reservation that he would seek a definite ruling from us. Hence this petition for certiorari filed on November 9, 1966, the sole question raised being the alleged error of the respondent Judge in ordering the payment of the aforesaid docket fee considering that previously, with reference to an alleged will of the same estate of the decedent in connection with the petition for probate filed, such a fee had been collected. It is petitioner's contention that the challenged order of respondent Judge amounted to a grave abuse of discretion correctible by certiorari.

Respondent Judge did not even bother to answer the petition. It is understandable why. On its face, it is obviously without merit. A petition for probate of a will having been filed by petitioner, he could not escape the payment of the corresponding docket fee. The argument based on the allegation that there was such a previous payment in connection with another will of the same decedent sought to be probated does not carry the day. It is bereft of any persuasive force. Petitioner should have been aware that there is no escape from the payment of the corresponding docket fee, otherwise, the Court is not called upon to act on a complaint or petition. Nor does it suffice to vary the rule simply because there is only one decedent whose estate is thus to be disposed of by will that must first be probated. It is not farfetched or implausible that a decedent could have left various wills. Under such circumstances, there is nothing inherently objectionable in thus exacting the payment of a docket fee, every time a will is sought to be probated. Petitioner here could have sought the probate of the will presented by him in the same proceeding. He did not; he filed instead a separate action. One last point. The Rules of Court require that for all clerical services in the allowance of will, the "fees payable out of the estate shall be collected in accordance with the value of the property involved ...." 3 The specific legal provision is thus clear and unmistakable. It is the clerical service in the allowance of the will that has to be paid for. The docket fees exist for that purpose and must be collected at the outset. There is no exception according to the above legal provision. It needs no interpretation. It must be applied in accordance with the specific language thus employed. 4 Respondent Judge acted in accordance with the clear tenor of the controlling legal norm. The alleged grievance of petitioner that there was a grave abuse of discretion does not merit any

attention. As a matter of fact, on this point, respondent Judge had no discretion to abuse. The docket fees had to be paid. There is no escape for petitioner. WHEREFORE, this petition for certiorari is denied, with costs against petitioner.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-6303 June 30, 1954

In the matter of the last will and testament of JOSE VAO, deceased. TEODORO VAO, petitioner-appellant, vs. PAZ VAO VDA. DE GARCES, et al., oppositors-appellees. Pedro R. Luspo, Vicente L. Faelnar and Roque R. Luspo for appellant. Pelaez, Pelaez and Pelaez and Ramon Duterte for appellees. MONTEMAYOR, J.: This is an appeal by petitioner Teodoro Vao from a decision of the Court of First Instance of Cebu denying probate of the document (Exhibit "A"), said to be the LAST WILL AND TESTAMENT OF JOSE VAO. The appeal was first taken to the Court of Appeals where the record on appeal and the briefs of petitioner and oppositors were filed. Subsequently, however, on joint motion of both parties requesting that the appeal be elevated to the Supreme Court on the ground that the value of the properties involved as shown by the inventory was more than P50,000, the case was forwarded to this Tribunal where memoranda were filed in lieu of oral argument. Jose Vao died on January 28, 1950, in the City of Cebu. According to the certificate of the City Health Officer and Local Civil Registrar, Exhibit "C", he was 78 years old and he die of P. T. B. (pulmonary tuberculosis). He left properties valued at P95,913.05 as per inventory of the administrator but which according to the evidence are worth much more. On February 11, 1950, Teodoro Ceblero Vao petitioned the Court of First Instance of Cebu to have a document supposed to be the last will and testament of Jose Vao, and which he attached to his petition, probated. We reproduce said document LAST WILL AND TESTAMENT IN THE NAME OF THE FATHER, THE SON AND THE HOLY GHOST, AMEN: I, Jose Vao, single, Filipino citizen, of legal age and resident of Cebu City, being of sound and disposing mind and memory, do hereby make, execute and publish, this my Last Will and Testament in English, which language is known to me, and which I talk, read and understand, hereby revoking and cancelling any and all testamentary provisions heretofore made by me, and the following shall be my Last Will:

1. I hereby make known to the world that Teodoro Ceblero Vao is my son. 2. That I hereby bequeath to aforesaid Teodoro Ceblero Vao all my properties. In witness whereof, I have hereunto affixed my name at the City of Cebu, Philippines this 11th day of December, 1949. (Sgd.) Jose Vao Testator We, the undersigned attesting witnesses, whose residences are stated opposite our respective names, do hereby certify that the testator whose name is signed hereinabove, has published unto us the foregoing WILL consisting of one page, as his Last Will and Testament, and has signed the same in our presence, and in witness whereof we have each signed the same in the presence of said testator and in the presence of each other. Cebu City, Philippines, this 11th day of December, 1949. Pedro C. Ceniza 494-B. Junquera, Cebu City O. Rama, M. D. Basak, Sn. Nicolas, Cebu City Nazario R. Paquiao 553 A. P. del Rosario, St., Cebu City Teodoro asked that he be appointed administrator of the estate and that pending his appointment as regular administrator, he be designated special administrator. On March 24, 1950, Paz Vao Vda. de Garces and the supposed heirs of Jesus Vao, brother of Jose Vao, filed the following opposition OPPOSITION Comes now Paz Vao Vda. de Garces, and the heirs of Jesus Vao, thru their undersigned attorneys, and to this Honorable Court respectfully states: 1. That the oppositor Paz Vao Vda. de Garces is the sister of the deceased Jose Vao, and Filomena Vao, Felicidad Vano, Angel Vao, Salvador Vao, Norberto Vao, Teodorico Vao, and Ireneo Vao, are the children and heirs of Jesus (brother of Jose Vao), and all of them are entitled to participate in the said Estate of the deceased Jose Vao in case of intestacy; 2. That the instrument now offered for probate as will of the deceased Jose Vao was procured by undue and improper pressure and influence on the part of Teodoro Ceblero who is not an acknowledged natural child of the deceased Jose Vao; 3. That the said Jose Vao was mentally incapable to make a will on December 11th, 1949; 4. 4. That the signature of the testator Jose Vao was procured by fraud and trick on the part of Teodoro Ceblero and the said deceased Jose Vao never intended that the said document should be his will at the time of fixing his signature thereto;

5. That the instrument now offered for probate as will of the deceased Jose Vao is written in English language which is not the usual and proper language of the deceased, and if the deceased would have had made any will he should have it written in Spanish; 6. That the said deceased Jose Vao never recognized Teodoro Ceblero as his acknowledged natural child, the same being a mere protege of the deceased, and not an adopted or acknowledged natural child; 7. That the deceased Jose Vao had time and again told his sister and nephews that he will not execute a will because he wants to leave all his estate in favor of his brother and sister, and nephews; 8. That Dolores Garces de Falcon, a niece of the deceased Jose Vao, being the nearest of kin, is a competent person to act as Administratrix of the estate of the deceased, and she is willing to serve as such; PRAYER For all the foregoing considerations, we respectfully pray this Honorable Court that the said will of the deceased Jose Vao be declared null and void, and that it be not admitted to probate; That an administratrix of the said estate be appointed who shall distribute the same among the legal heirs of the deceased; That Dolores Garces de Falcon be appointed as Administratrix of the Estate of the deceased Jose Vao. Cebu City, Philippines, March 23, 1950. On August 29, 1950, Ireneo Vao one of the persons included in the opposition, filed a motion of the following tenor. MOTION Comes now Ireneo Vao and to this Honorable Court respectfully stated: 1. That he is the son and only heir of Jesus Vao, now deceased. 2. That his father Jesus Vao is a brother of Jose Vao, also deceased. 3. That in this case a petition has been presented for the probate of the last will and testament of Jose Vao. 4. That an opposition has been filed against the probate of said will. 5. That he is named as one of the oppositors, without his knowledge and consent. 6. That he does not oppose nor intends to oppose the probate of the will in question, because that document contains a true expression of the wish and desire of Jose Vao as to who shall inherit his property. 7. That he has not authorized anybody to file an opposition in his name.

PRAYER Wherefore, the undersigned respectfully prays his Honorable Court to cancel his name from the list of oppositors mentioned in the opposition to the petition filed by Teodoro Vao. Tagbilaran, Bohol (for the City of Cebu), August 8, 1950 Said motion of Ireneo Vao was granted by the Court. In the course of the hearing, he was presented as one of the witnesses for petitioner Teodoro and he declared that he was the son of Jesus Vao, already dead; that he knew Filomena Falcon, Felicidad Calibo, Angle Falcon, Salvador Flores, Norberto Calibo, and Teodorico Falcon, who are sometimes known by the surname Vao but that they were not related to him because he had no brothers or sisters; that his father Jesus Vao was a younger brother of the testator Jose Vao; that petitioner Teodoro Vao was the cousin, son of Jose Vao, and that he knew of the blood relationship between the testator and Teodoro Vao because he (Ireneo) since childhood used to go to his uncle's house where Teodoro lived and he saw that Teodoro was treated as a son by Jose Vao, who paid for Teodoro's board at the Colegio del Nio where the two of them were students; that he (Ireneo) never authorized anyone to include him as oppositor to the probate of the will of Jose Vao and that he did not oppose its probate. The three attesting witnesses Pedro Ceniza, Dr. Osmundo Rama and Atty. Nazario Pacquiao testified for the petitioner and assured the court that Exhibit "A" was the last will and testament of the late Jose Vao; that he signed Exhibit "A" in their presence, and that each of them signed the same after him in his presence and in the presence of each other; that at the time of the execution of the document in the afternoon of December 11, 1949, the testator was of sound and disposing mind and memory and that it was his voluntary act, no pressure or influence having been exerted on him; that the blank space after the letter "I" in the first paragraph of Exhibit "A" was filled out by the testator himself although they (witnesses) differ as to who filled out the blank spaces on the document where the words "11th" and "December" appear. Atty. Pacquiao told the court that it was he who prepared the will (Exhibit A) pursuant to the wishes of the testator. For the opposition Ciriaca Alse who formerly worked as a servant in the household of Teodoro Vao, Dolores Garces de Falcon, a daughter of Paz Vao Vda. de Garces and Carmen Vallore testified. The burden of their testimony is that from November 1949, Jose Vao was already very sick; that in December he was in serious if not critical condition; that he was always in bed, oftentimes unable to move or open his eyes and he could not maintain any conversation with anyone; that he had to be fed by someone; and that he was bed-ridden and already had bed-sores. The idea sought to be conveyed by them was that the testator was in no condition to execute a will. Mr. Edgar Bond, an examiner of questioned documents and chief of the Questioned Documents and Ballistics Division of the National Bureau of Investigation was also presented by the opposition as a handwriting expert and he told the court that after examining the supposed signature of Jose Vao on Exhibit "A" and comparing them with his accepted standard signatures, he was convinced that the signatures on Exhibit "A" were forgeries. His testimony was vigorously objected to by counsel for the petitioner on the ground that the genuineness of the signature of the testator on Exhibit "A" was never placed in issue because the written opposition of the opponents virtually admitted said genuineness and merely claimed that the will was not the testator's voluntary act because said signature was obtained thru trickery and that undue pressure and influence were brought to bear upon him. To counteract the testimony of Bond, the deposition of Dr. Paul Rodriguez Versoza, another handwriting expert was taken and introduced in evidence. Dr. Versoza claims that after examining the signatures of Jose Vao on Exhibit "A" and comparing them with accepted standard signatures

of the testator, he was convinced that the signatures on Exhibit "A" were genuine and that any difference noted between them were due to the age, weakness, and illness of the testator, especially the fact that he was suffering from rheumatism. After hearing, the learned trial court noting discrepancies in the testimonies of the three attesting witnesses as to the due execution of Exhibit "A", and accepting the expert testimony of Mr. Bond over that of Dr. Versoza, came to the conclusion that the supposed signatures of Jose Vao on Exhibit "A" are not genuine but imitated and held that Exhibit "A" was not the last will and testament of Jose Vao. One of the errors assigned by petitioner-appellant is that the trial court erred in permitting appellees over the objection of appellant to present evidence which are contrary to their allegations in their opposition. It is his contention that the opponents not only failed to allege as a basis of their opposition that the signatures of the testator on the supposed will were forged but that on the contrary, they impliedly admitted the genuineness of said signatures, merely claiming that said signatures were obtained through trickery and fraud and under pressure and influence. This point brings us to a discussion of what evidence an opponent to a probate of a will may be permitted to present at the hearing whether or not he is limited to presenting evidence to sustain the particular objection or ground on which he bases his opposition to the probate. In some jurisdictions in the United States the rule is that the issue in contested wills is made up by the pleadings or framed from the same, and no evidence can be introduced except in support of allegations contained in such pleadings. For instance, if the only opposition to the probate of a will is lack of mental capacity of the testator, then the oppositor in presenting evidence will be confined to that point. In other jurisdictions, however, it is said that the issue is fixed by the statute and is practically the old common law issue "devisavit vel non," is the instrument presented for probate the last will and testament of the testator?; that said issue may not be varied by the pleadings and that every ground of attack on the validity of the will may be employed. As the law in our jurisdiction on the probate of wills now stands, we are inclined to adopt the second view, namely, that the law itself fixes or determines the issue, because under section 12, Rule 77, of the Rules of Court, before the probate court can allow the will it must be satisfied upon proof taken and filed that the will was duly executed, and that the testator at the time of its execution was of sound and disposing mind and not acting under duress, menace, and undue influence, or fraud. Also, under section 9 of the same rule, a will may be disallowed (a) if not executed and attested as required by law; (b) if the testator was mentally incapable of making a will; (c) if it was executed under duress, or the influence of fear, or threats; (d) if it was procured by undue and improper pressure and influence on the part of the beneficiary; and (e) if the signature of the testator was procured by fraud and trick. The oppositors in the present case therefore were not precluded from attacking the will on the ground of forgery despite the fact that their opposition was confined to grounds (b), (c) and (d) of section 12, Rule 77 as stated above. On the other hand, section 10 of the same rule 77 provides that "anyone appearing to contest the will must file a writing stating his grounds for opposing its allowance; and serve a copy thereof on the petitioner and other residents of the province interested in the estate." The purpose of this legal provision is clear, and it is to apprise the person or persons seeking the probate of will, as well as any other person interested in the estate, of the reasons in opposing probate so that they may prepare the necessary evidence to counteract and disprove said ground of opposition, this, in addition to apprising the court itself of the issue involved in the proceedings so that it may intelligently direct the presentation of evidence during the hearing. Of course, as we have already stated, an oppositor objecting to the probate of the will on one or two specific grounds may, during the hearing add to the grounds and submit evidence in support of the same, but when this happen as it did in the present case, one is more or less justified in inferring that the oppositors were not sure of their ground; that they were in doubt as to the basis of their opposition, a fact which naturally and not inconsiderably weakens their stand. One of the grounds of their opposition was that the

signature of the testator was procured by fraud and trick, thereby leading one to believe, including the court and the petitioner that said signature was genuine but was not valid. At the hearing, said oppositors completely changed their stand and claimed that the signature was actually forged. As we have already said, that conduct and attitude, changeable and uncertain, does not strengthen their position. Let us now go to the evidence on the alleged forgery of the signatures of the testator Jose Vao. We have carefully read the testimony of Mr. Bond for the oppositors and the deposition of Dr. Verzosa for the petitioner. There is no reason for doubting the qualifications, sincerity, and honesty of these two witnesses. Their opinions seem to be plausible, arrived at after an analysis and comparison of the questioned signatures with the standard and accepted signatures of the testator; but we fear that the infirmity, age, and state of health of the testator had not been given due consideration by the witness of the opponents and by the court. There is no question that there are differences and discrepancies between the two signatures reading "Jose Vao" on Exhibit "A" and the genuine, accepted signatures of the testator even as late as the last part of the year 1949. But we should not forget that on December 11th of the same year when he executed Exhibit "A", he was suffering from apparently advanced pulmonary tuberculosis as well as rheumatism which according to Dr. Osmundo Rama who had been treating him until the day he died, affected his joints. The testator was then 78 years old, lying in bed most of the time, so much so that he developed bed-sores, sitting up in bed only once in a while, and at those times, his hands trembled. It is natural that his signatures on Exhibit "A" should lack the firmness, rhythm, lack of effort and continuity of motion that they had before he became quite ill and infirm. Examining the signatures on Exhibit "A", the original of the will, and those on "3-A", a carbon copy thereof, it will be readily observed that while the signatures on the original are already infirm, rough and jagged, suggesting a hand infirm and trembling, those on the duplicate (Exhibit "3-A") are still more so, showing the effects of the concentration of attention, exertion and effort of the testator in reading and singing the original. But there are other and equally important considerations which favor the conclusion that Exhibit "A" was duly signed written opposition the opponents did not question but on the contrary, assumed if not conceded the genuineness of the signatures of the testator. Then at the hearing, they changed their attitude and for the first time put in issue the genuineness of said signatures; this despite the fact that the original of the will (Exhibit "A") was filed in court on February 11, 1950, and the opposition was filed on March 24th of the same year. In other words the opponents and their lawyers had almost one and a half months within which to examine and scrutinize the signatures on Exhibit "A", after which examination they did not doubt their genuineness. Again, the opponents include Ireneo Vao, a son of Jesus Vao, brother of the testator, among the oppositors. This same Ireneo later filed a motion in court repudiating the action taken by the opponents, saying that he was include among the oppositors without his knowledged or consent; that far from opposing the probate of the will of his uncle, he believed that said will was a true expression of the wish and desire of the testator. Not only this, but he testified for the petitioner and said that the petitioner Teodoro Vao was the son of the testator and had been treated by him as such since childhood. The learned trial court lays emphasis on the uncertainty of the three subscribing witnesses as to who filled out the blank spaces on the will now occupied by the words "11th" and "December", while they are sure that the name Jose Vao on the space at the beginning of the first paragraph was written by the testator himself. Said uncertainty on the part of the said three subscribing witnesses instead of affecting their veracity, in our opinion, strengthens it, because it refers to minor detail and shows that they had not been rehearsed but on the contrary, testified to what they remember. In this connection, there is every reason to believe that the fact that the space for the name Jose Vao on Exhibit "A" was left in blank to be filled out later by the testator himself argues against the theory of forgery, because if there had been forgery by leaving the blank space for the name of the testator to

be filled out later, including the space for the date and the month, the forgers would be laying themselves open and unnecessarily creating an additional opportunity for the opponents and for the to detect the forgery. After all, there was neither necessity nor occasion for forging the signatures of the testator in the will because there is every reason to believe that said testator would leave all his property to petitioner Teodoro Vao. The evidence shows that Teodoro was a natural son of the testator. From childhood he had been raised by Jose Vao, treated like a son, and sent to school, and even after Teodoro had married, he and his wife and family continued to live with the old man, or rather, the old man lived with them. Jose Vao in 1945, in a public instrument entitled "Special Power of Attorney" (Exhibit "E") referred to Teodoro Vao as his son and appointed him as his attorney-in-fact to leave to the United States of America any, some or all real properties owned by him in the City of Cebu, under such terms and conditions which Teodoro may deem just and reasonable, and to execute and sign the corresponding deeds of lease, and to collect and receive the rents. This was accepted and acted by Teodoro Vao. In 1946 and 1947 the testator appointed Teodoro his attorney-in-fact giving him a power of attorney with extensive powers such as to lease to the Republic of the Philippines some of his real personal properties in the City of Cebu, and to collect and receive the rentals accruing from the leased properties; to ask, demand, sue form recover, and collect any and all sums of money, debts, dues, accounts, legacies, bequests, interests, dividends, etc. which thereafter become due or owing to him and to make, sign, execute, and deliver contracts, documents, agreements, and other writings of whatever nature with any and all third persons upon terms and conditions acceptable to him (Teodoro), Exhibits "F" and "G". In 1946 while the testator was in Bohol, he wrote to Teodoro a note (Exhibit "I") addressing him as his "dear son" and with the complimentary clause "your loving Dad", signing the same, asking Teodoro to send P5,000 to him. It seems that at least in Cebu and Bohol petitioner Teodoro Vao was known by everyone to be the son of Jose Vao because the latter had treated and accepted, even recognized him as such, and shortly before his death, entrusted him with the complete management of his business. One of the witness for the opposition, Carmen Vallore, cousin-in-law of the testator, in her testimony called Milagros Vao, wife of Teodoro Vao, as the daughter-in-law of Jose Vao, meaning that Teodoro was the son of the testator. During the hearing and while Teodoro Vao was testifying, counsel for the oppositors repeatedly reffered to the testator as his (Teodoro's) father. Under all these circumstances, is it any wonder that Jose Vao should voluntarily by means of a will, leave all his properties to his only son, though natural? It is not improbable that one of the reasons prompting the filling of the opposition to the petition for probate was that Paz Vao Vda. de Garces, sister of the testator, could not understand why her brother, a wealthy man should leave all his wealth to a mere natural son (Teodoro) and leave nothing to her; but it was not altogether strange because it seems that the relations between Paz and the testator, were rather strained and in 1949, according to the evidence, Paz had brought a civil action against Jose Vao and Irineo Vao, the nephew of Jose Vao who refused to oppose the probate of the will. And during the last and prolonged illness of the testator, Paz living in the same city of Cebu, did not even once visit her ailing and bed-ridden brother. The three subscribing witnesses to the will, under oath assured the court that Jose Vao voluntarily signed Exhibit "A", and these three witnesses were in no way related to Teodoro or to the testator, had no interest in the execution of the will and stood to gain nothing by its probate. Pedro Ceniza is a responsible businessman, Dr. Osmundo Rama, is a practising physician and Atty. Nazario Pacquio, is a member of the bar and at the time he prepared Exhibit "A", he was Assistant Provincial Fiscal of Cebu. Their disinterested testimony cannot be taken lightly. On this question of the weight to be given to the testimony of subscribing witnesses, we held in the case ofRoxas vs. Roxas, et al., 48 Off. Gaz. (6) 2177; 87 Phil. 692, that

We do not venture to impute bias to the experts introduced during the trial but we hasten to state that the positive testimony of the three attesting witnesses ought to prevail over the expert opinions which cannot be mathematically precise but which, on the contrary are "subject to inherent infirmities." The law impliedly recognizes the almost conclusive weight of the testimony of attesting witnesses when it provides that "if the will is contested, all the subscribing witnesses present in the Philippines and not insane, must be produced and examined, and the death, absence or insanity of any one of them must be satisfactorily shown to the Court." (Section 11, Rule 77 Rules of Court.) In the present case, the opinions of the two handwriting experts presented by the parties are conflicting and even assuming that there is doubt to our mind as to which of the two is to be accepted, the positive and clear testimony of the three subscribing witnesses should prevail. In the case of In re Will of Medina, 60 Phil., 391, this Court said: In the present case, two of the subscribing witnesses are lawyers. This fact together with the circumstance that they were not shown to have any interest in the subject of the litigation, lead the trial court to consider their testimony as worthy of credit. The intervention of professional men specially lawyers, in the preparation and execution of wills, has been given by this Court the consideration deserved. Reiterating the doctrine laid down in the case of Sotelo vs. Luzan, 59 Phil., 908, we further held in the same case: In one case it was said: "It is hardly conceivable that any attorney of any standing would risk his professional reputation by falsifying a will and then go before a court and give false testimony." There is no reason to believe that Atty. Pacquio who, at the time was not only a member of the bar but was an assistant provincial fiscal, should commit forgery by drafting Exhibit "A" and take part in forging the signature of the testator and later falsely testify in court on the due execution of said will and subject himself not only to criminal prosecution and dismissal from his post as assistant provincial fiscal, but also to disbarment proceedings. In view of the foregoing, the decision appealed from his reversed and Exhibit "A" is hereby allowed probate as the Last Will and Testament of Jose Vao, with costs against appellees.


- versus -

NACHURA, and PERALTA, JJ. Promulgated: SERVILLANO BANAYAD, JR., Respondent. July 30, 2009


NACHURA, J.: Before the court is a petition for review on certiorari under Rule 45 of the Rules of Court assailing the June 17, 2005 Decision[1] of the Court of Appeals (CA) in CA-G.R. CV No. 53929, and the August 17, 2005 Resolution[2] denying the motion for partial reconsideration thereof. Narrated in brief are the antecedent facts and proceedings, to wit: Following the death of her uncle, the testator Moises F. Banayad, petitioner, who was named as devisee in the will, filed before the Regional Trial Court (RTC) of Pasay City, on June 3, 1991, Sp. Proc. No. 3664-P[3] for the allowance of the November 18, 1985 holographic will of the decedent. Petitioner alleged that Moises died without issue and left to her the following properties, namely: (1) a parcel of land situated in Pasay City and described in Transfer Certificate of Title No. 9741; (2) images of Oracion del Huerto and Pieta including the crown; and (3) all personal belongings.[4] Respondent, a cousin of the petitioner, filed his opposition and counterpetitioned for the allowance of two other holographic wills of the decedent, one dated September 27, 1989 and another dated September 28, 1989.[5] After trial on the merits, the RTC, on September 29, 1995, rendered its Decision[6] declaring the September 27, 1989 holographic will as having revoked

the November 18, 1985 will, allowing the former, and appointing respondent as administrator of Moisess estate.[7] On appeal, the CA, in the assailed June 17, 2005 Decision,[8] modified the decision of the trial court and ruled that the September 27, 1989 holographic will had only revoked the November 18, 1985 will insofar as the testamentary disposition of Moisess real property was concerned.[9] With the denial of her motion for reconsideration in the further assailed August 17, 2005 Resolution,[10] petitioner elevated the case before us via the instant petition.[11] The Court notes that the trial court focused all of its attention on the merits of the case without first determining whether it could have validly exercised jurisdiction to hear and decide Sp. Proc. No. 3664-P. On appeal, the appellate court also overlooked the issue on the jurisdictional competence of the trial court over the said case. This Court, after a meticulous review of the records, finds that the RTC of Pasay City had no jurisdiction over the subject matter in Sp. Proc. No. 3664-P. The jurisdiction of the court to hear and decide a case is conferred by the law in force at the time of the institution of the action unless such statute provides for a retroactive application thereof.[12] Jurisdiction is moreover determined by the allegations or averments in the complaint or petition.[13] In this case, at the time the petition for the allowance of Moisess holographic will was instituted, the then Sections 19 and 33 [14] of Batas Pambansa (B.P.) Blg. 129[15] were in force, thus
SECTION 19. Jurisdiction in civil cases. Regional Trial Courts shall exercise exclusive original jurisdiction: xxxx (4) In all matters of probate, both testate and intestate, where the gross value of the estate exceeds twenty thousand pesos (P20,000.00);

xxxx SECTION 33. Jurisdiction of Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts in civil cases. Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts shall exercise: (1) Exclusive original jurisdiction over civil actions and probate proceedings, testate and intestate, including the grant of provisional remedies in proper cases, where the demand does not exceed twenty thousand pesos exclusive of interest and costs but inclusive of damages of whatever kind, the amount of which must be specifically alleged: Provided, That where there are several claims or causes of action between the same or different parties, embodied in the same complaint, the amount of the demand shall be the totality of the claims in all the causes of action irrespective of whether the causes of action arose out of the same or different transactions; and xxxx

The applicable law, therefore, confers jurisdiction on the RTC or the MTCs over probate proceedings depending on the gross value of the estate, [16] which value must be alleged in the complaint or petition to be filed. Significantly, in this case, the original petition docketed before the trial court contains only the following averments:
xxxx 1. That Petitioner is of legal age, married, Filipino and residing at 2237 P. Burgos St., Pasay City who is named devisee in the Last Will and Testament of MOISES BANAYAD, deceased who died in Pasay City General Hospital on March 27, 1991 xerox copy of his death certificate is herewith attached as Annex A to form integral part hereof;

2. That the said Last Will and Testament is herewith (sic) attached as Annex B and made an integral part of this Petition, the original thereof will be presented to this Honorable Court at the time of probate; 3. That the decedent is an inhabitant of the Philippines and residing at 2237 P. Burgos St., Pasay City at the time of his death; 4. That the properties left by the decedent consist of real and personal properties particularly described herein below, which decedent all bequeathed to petitioner; A. A parcel of land described under TCT No. 9741 xerox copy of which is herewith (sic) attached as Annex C. B. Imahen ng Oracion del Huerto at Pieta, kasama and korona. C. All personal belongings. 5. That the testator at the time of the execution of the said Will was of sound and disposing mind. WHEREFORE, it is most respectfully prayed of the Honorable Court that: a. Upon proper notice and hearing, the above mentioned Will be admitted to probate; b. That letters testamentary or administration be issued to herein petitioner without bond; Petitioner prays for such other reliefs just and equitable in (sic) the premises. x x x x[17]

Nowhere in the petition is there a statement of the gross value of Moisess estate. Thus, from a reading of the original petition filed, it cannot be determined which court has original and exclusive jurisdiction over the proceedings.[18] The RTC therefore committed gross error when it had perfunctorily assumed jurisdiction despite the fact that the initiatory pleading filed before it did not call for the exercise of its jurisdiction. The RTC should have, at the outset, dismissed

the case for lack of jurisdiction. Be it noted that the dismissal on the said ground may be ordered motu proprio by the courts.[19] Further, the CA, on appeal, should have dismissed the case on the same ground. Settled is the doctrine that the issue of jurisdiction may be raised by any of the parties or may be reckoned by the court, at any stage of the proceedings, even on appeal, and is not lost by waiver or by estoppel.[20] Despite the pendency of this case for around 18 years, the exception laid down in Tijam v. Sibonghanoy[21] and clarified recently in Figueroa v. People[22] cannot be applied. First, because, as a general rule, the principle of estoppel by laches cannot lie against the government.[23] No injustice to the parties or to any third person will be wrought by the ruling that the trial court has no jurisdiction over the instituted probate proceedings. Second and most important, because in Tijam, the delayed invocation of lack of jurisdiction has been made during theexecution stage of a final and executory ruling of a court. In Figueroa, the Court has emphasized that estoppel by laches only supervenes in exceptional cases similar to the factual milieu in Tijam. It is well to note the following factual setting of Tijam:
On July 19, 1948 barely one month after the effectivity of Republic Act No. 296 known as the Judiciary Act of 1948 the spouses Serafin Tijam and Felicitas Tagalog commenced Civil Case No. R-660 in the Court of First Instance of Cebu against the spouses Magdaleno Sibonghanoy and Lucia Baguio to recover from them the sum of P1,908.00, with legal interest thereon from the date of the filing of the complaint until the whole obligation is paid, plus costs. As prayed for in the complaint, a writ of attachment was issued by the court against defendants' properties, but the same was soon dissolved upon the filing of a counter-bond by defendants and the Manila Surety and Fidelity Co., Inc. hereinafter referred to as the Surety, on the 31st of the same month. After being duly served with summons the defendants filed their answer in which, after making some admissions and denials of the material averments of the complaint, they interposed a counterclaim. This counterclaim was answered by the plaintiffs.

After trial upon the issues thus joined, the Court rendered judgment in favor of the plaintiffs and, after the same had become final and executory, upon motion of the latter, the Court issued a writ of execution against the defendants. The writ having been returned unsatisfied, the plaintiffs moved for the issuance of a writ of execution against the Surety's bond (Rec. on Appeal pp. 46-49), against which the Surety filed a written opposition (Id. pp. 49) upon two grounds, namely, (1) Failure to prosecute and (2) Absence of a demand upon the Surety for the payment of the amount due under the judgment. Upon these grounds the Surety prayed the Court not only to deny the motion for execution against its counter-bond but also the following affirmative relief: "to relieve the herein bonding company of its liability, if any, under the bond in question" (Id. p. 54) The Court denied this motion on the ground solely that no previous demand had been made on the Surety for the satisfaction of the judgment. Thereafter the necessary demand was made, and upon failure of the Surety to satisfy the judgment, the plaintiffs filed a second motion for execution against the counter-bond. On the date set for the hearing thereon, the Court, upon motion of the Surety's counsel, granted the latter a period of five days within which to answer the motion. Upon its failure to file such answer, the Court granted the motion for execution and the corresponding writ was issued. Subsequently, the Surety moved to quash the writ on the ground that the same was issued without the required summary hearing provided for in Section 17 of Rule 59 of the Rules of Court. As the Court denied the motion, the Surety appealed to the Court of Appeals from such order of denial and from the one denying its motion for reconsideration (Id. p. 97). Its record on appeal was then printed as required by the Rules, and in due time it filed its brief raising therein no other question but the ones covered by the following assignment of errors:
I. That the Honorable Court a quo erred in issuing its order dated November 2, 1957, by holding the incident as submitted for resolution, without a summary hearing and compliance with the other mandatory requirements provided for in Section 17, Rule 59 of the Rules of Court. II. That the Honorable Court a quo erred in ordering the issuance of execution against the herein bonding company-appellant. III. That the Honorable Court a quo erred in denying the motion to quash the writ of execution filed by the herein bonding company- appellant as well as its subsequent motion for reconsideration, and/or in not quashing or setting aside the writ of execution.

Not one of the assignment of errors it is obvious raises the question of lack of jurisdiction, neither directly nor indirectly.

Although the appellees failed to file their brief, the Court of Appeals, on December 11, 1962, decided the case affirming the orders appealed from. On January 8, 1963 five days after the Surety received notice of the decision, it filed a motion asking for extension of time within which to file a motion for reconsideration. The Court of Appeals granted the motion in its resolution of January 10 of the same year. Two days later the Surety filed a pleading entitled MOTION TO DISMISS, alleging substantially that appellees' action was filed in the Court of First Instance of Cebu on July 19, 1948 for the recovery of the sum of P1,908.00 only; that a month before that date Republic Act No. 296, otherwise known as the Judiciary Act of 1948, had already become effective, Section 88 of which placed within the original exclusive jurisdiction of inferior courts all civil actions where the value of the subject-matter or the amount of the demand does not exceed P2,000.00, exclusive of interest and costs; that the Court of First Instance therefore had no jurisdiction to try and decide the case. Upon these premises the Surety's motion prayed the Court of Appeals to set aside its decision and to dismiss the case. By resolution of January 16, 1963 the Court of Appeals required the appellees to answer the motion to dismiss, but they failed to do so. Whereupon, on May 20 of the same year, the Court resolved to set aside its decision and to certify the case to Us. x x x x[24]

Clearly, then, in Tijam, the issue of lack of jurisdiction has only been raised during the execution stage, specifically when the matter of the trial courts denial of the suretys motion to quash the writ of execution has been brought to the appellate court for review. Here, the trial courts assumption of unauthorized jurisdiction over the probate proceedings has been discovered by the Court during the appeal stage of the main case, not during the execution stage of a final and executory decision. Thus, the exceptional rule laid down in Tijam cannot apply. Since the RTC has no jurisdiction over the action, all the proceedings therein, including the decision rendered, are null and void.[25] With the above

disquisition, the Court finds it unnecessary to discuss and resolve the other issues raised in the petition. IN THE LIGHT OF THE FOREGOING, Sp. Proc. No. 3664-P before the Regional Trial Court of Pasay City isDISMISSED for lack of jurisdiction. SO ORDERED.