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CASE 48 Guevara vs Guevara

GR No L-5405


-26 August 1931- Victorino L. Guevara, resident of Bayambang, Pangasinan executed a

will. The will contains the distribution of assorted movables and residential lot of
Victorino L. Guevara among his children, Rosario and Ernesto Guevara and
stepchildren, Vivencio, Edwigis, Dionista, Candida and Pio Guevara.

-Victorino Guevara also bequeathed to his 2nd wife Augustia Posada various movables,
portion of 25 ha to be taken out of a 259 odd ha parcel outlined in Plan Psu-68618 And
another 5 ha in settlement of her widow’s usufruct.

-Ernesto Guevara was appointed executor without bond

-12 July 1933- Victorino executed a deed of sale in favor of Ernesto Guevara, conveying
to the latter the southern hall of the 259 ha lot heretofore mentioned and expressly
recognized Ernesto Guevara as owner of the northern half.

-1 November 1932- Victorino and Ernesto jointly applied for registration of the big parcel
in view of the sale from the former to the latter. The decree was issued in the name of
Ernesto Guevara exclusively and for the whole tract, a certificate of title being issued in
his sole name on 12 October 1933.

-27 September 1933- Victorino Guevara died but his will was not filed for probate

-1937- Rosario Guevara, claiming to be a recognized natural child of the deceased

Victorino and on the assumption that he had died intestate, brought suit against Ernesto
Guevara to recover 423,492 sq m.

-CA rendered decision in favor of Rosario but SC modified judgment upon certiorari.

-Ernesto Guevara appeared and opposed the probate. Pedro L. Quinto, counsel for
Rosario in the former litigation, was allowed to intervene in view of his duly recorded
attorney’s lien

-31 January 1946- Ernesto Guevara, through counsel filed a motion to dismiss petition
on grounds:

a. petition itself alleged that will was revoked

b. whatever right to probate the parties may have has already prescribed
c. purpose of the probate was solely to have petitioner Rosario declared on
acknowledged natural child of the deceased.

-9 December 1946- motion to dismiss was denied


1. Whether or not the original of the record on appeal did not comply with the Rules of

2. Whether or not CA has jurisdiction over the case?

3. Whether or not the petition for probate of the will of Victorino L. Guevara is
barred by the statute of limitations, considering that the testator died on September
27, 1933, and that the petition for probate of said will was filed twelve (12) years
later, or, to be exact, on October 5, 1945.


1. No. The first ground is predicated upon the fact that, instead of transcribing the
motions, petitions, orders and resolutions incorporated in the original record on appeal,
Respondents herein merely attached to the original copy of said record on appeal, filed
with the Court of First Instance of Pangasinan, their own copies of said motions,
petitions, orders and resolutions. Accordingly, the copy of said record on appeal
furnished to Petitioner herein did not contain or enclose the aforementioned parts of
the record. It appears, however, that the Respondents were given several extensions of
time within which to comply with the pertinent provisions of the Rules of Court and that
Respondents eventually did so. There being no question about the authority of the court
of first instance to grant said extensions of time, it is clear that the first ground, relied
upon by Petitioner herein, is untenable.

2. No. Petitioner maintains the negative, upon the ground that the appeal involved only
questions of law. This is not correct, for the very motion for reconsideration
adverted to above, indicated that the appeal raised some issues of fact, such
as, for instance, whether or not the will in question was in the possession of
Respondent Rosario Guevara and whether Respondent Quinto had been authorized by
her to perfect the appeal on her behalf. At any rate, the case is now before us and, upon
examination of the record and consideration of all the issues therein raised, we are of
the opinion that, had the appeal been forwarded directly to this Court, we would have
disposed of it in the manner set forth in the decision of the Court of Appeals, the review
of which is sought by herein Appellant.

3. No. Section 1299 declares that any

person interested in the estate ‘may at any time after the death of the testator, petition
the court having jurisdiction to have the will proved.’ This implies that there is no
arbitrary time limit.’

Section 1317 declares:chanroblesvirtuallawlibrary If the court is satisfied, upon the proof

taken or from the facts found by the jury that the will was duly executed and that the will
testator at the time of its execution was of sound and disposing mind and not acting
under duress menace fraud, or undue influence, a certificate of the proof and the facts
found, signed by the judge and attested by the seal of the court, must be attached to the

Under Section 1 of Rule 74, in relation to Rule 76, if the decedent left a will and no
debts and the heirs and legatees desire to make an extrajudicial partition of the
estate, they must first present that will to the court for probate and divide the estate in
accordance with the will. They may not disregard the provisions of the will unless
those provisions are contrary to law. Neither may they do away with the presentation of
the will to the court for probate, because such suppression of the will is contrary to law
and public policy. The law enjoins the probate of the will and public policy requires it,
because unless the will is probated and notice thereof given to the whole world, the right
of a person to dispose of his property by will may be rendered nugatory, as is attempted
to be done in the instant case. Absent legatees and devisees, or such of them as
may have no knowledge of the will, could be cheated of their inheritance thru the
collusion of some of the heirs who might agree to the partition of the estate among
themselves to the exclusion of others.’

“In holding the statute of limitations applicable to the probate of wills, the court below
failed to notice that its doctrine was destructive of the right of testamentary disposition
and violative of the owner’s right to control his property within the legal limits. The
appealed order in fact leaves wills at the mercy and whim of custodians and heirs
interested in their suppression.


Petition denied

CASE 49 full case

G.R. No. 45642 September 25, 1937


Crispin Oben for petitioner.
Estanislao A. Fernandez for respondent Rivera.


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

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

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.,

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.

Avanceña, C.J., Villa-Real, Abad Santos, Diaz, Laurel and Concepcion, JJ., concur.


G.R. No. L-23372 June 14, 1967 BENGZON J.P, J.:

appellants,vs.JOSEFINA B. DURAN, movant-oppositor and appellee.

Pio Duran died without testament on February 28, 1961 in Guinobatan Albay. Among his alleged heirs are
Josefina Duran, as surviving spouse; several brothers and sisters; nephews and nieces.

Cipriano Duran, one of the surviving brothers, executed a public instrument assigning and renouncing his
hereditary rights to the decedent's estate in favor of Josefina Duran, for the consideration of P2,500.00.

A year later, Cipriano Duran filed in the Court of First Instance of Albay a petition for intestate proceedings
to settle Pio Duran's estate, further asking that he be named the administrator. Josefina Duran filed an
opposition, praying for its dismissal upon the ground that the petitioner is not an "interested person" in
the estate, in view of the deed of transfer and renunciation.

Cipriano contended that the deed of assignment did not operate to render him a person without interest
in the estate. Relying on In re Irene Santos, L-11848, May 31, 1962, it is argued that an assignment by one
heir of his share in the estate to a co-heir amounts to a partition needing approval by the settlement court
to be effective; and that the assigning heir does not lose his status as a person interested in the estate,
even after said assignment is approved by the court.

Whether Cipriano did not lose his interest in the estate, thus, he could file for a petition for administration
and settlement of an estate as an "interested person" under Rule 79.

The situation in the Santos case involves an assignment between co-heirs pendente lite, during the course
of settlement proceedings, properly and validly commenced. At the time of said assignment, therefore,
the settlement court had already acquired jurisdiction over the properties of estate. As a result, any
assignment regarding the same had to be approved by said court. And since the approval the court is not
deemed final until the estate is closed the assigning heir remains an interested person in proceedings
even after said approval, which can be vacated is given.

In the present case, however, the assignment took place when no settlement proceedings was pending.
The properties subject matter of the assignment were not under the jurisdiction of a settlement court.
Allowing that the assignment must be deemed a partition as between the assignor and assignee, the same
does not need court approval to be effective as between the parties. An extrajudicial partition is valid as
between the participants even if the requisites of Sec. 1, Rule 74 for extrajudicial partition are not
followed, since said requisites are for purposes of binding creditors and non-participating heirs only
(Hernandez v. Andal, 78 Phil. 196). Should it be contended that said partition was attended with fraud,
lesion or inadequacy of price, the remedy is to rescind or to annul the same in an action for that purpose.
And in the meanwhile, assigning heir cannot initiate a settlement proceedings, for until the deed of
assignment is annulled or rescinded, it is deemed valid and effective against him, so that he is left without
that "interest" in the estate required to petite for settlement proceedings.


Basa vs Mercado Case Digest

Persons and Family Relations GR No. L- 42226 :

Facts: Honorable Hermogenes Reyes, Judge of the Court of First Instance of Pampanga,
allowed and probated the last will and testament of Ines Basa, deceased. On January 30, 1932,
the same judge approved the account of the administrator of the estate, declared him the only
heir of the deceased under the will and closed the administration proceedings. On April 11, 1934,
the herein petitioners-appellants filed a motion in which they prayed that said proceedings be
reopened and alleged that the court lacked jurisdiction to act in the matter because there was a
failure to comply with requirements as to the publication of the notice of hearing prescribed in
the following section of the Code of Civil Procedure. Appellants claim that the provisions of
section 630 of the Code of Civil Procedure have not been complied with in view of the fact that
although the trial judge, on May 29, 1931, ordered the publication of the required notice for
"three weeks successively" previous to the time appointed for the hearing on the will, the first
publication was on June 6, 1931, the third on June 20, 1931, and the hearing took place on the
27th of that month, only twenty-one days after the date of the first publication instead of three
full weeks before the day set for the hearing. The appellants also contend that the trial court
erred in ruling that the weekly newspaper, Ing Katipunan, in which the notice of hearing was
published, was a newspaper of general circulation in the Province of Pampanga.

Issues: Whether the 21 days requirement for publication be followed pursuant to the sec. 630
of Code of Civil Procedure?

Whether the said Ing Katipunan newspaper considered a newspaper of general


Held: In view of the foregoing, it is held that the language used in section 630 of the Code of
Civil Procedure does not mean that the notice, referred to therein, should be published for three
full weeks before the date set for the hearing on the will. In other words the first publication of
the notice need not be made twenty-one days before the day appointed for the hearing. The
record shows that Ing Katipunan is a newspaper of general circulation in view of the fact that it
is published for the dissemination of local news and general information; that it has a bona
fide subscription list of paying subscribers; that it is published at regular intervals and that the
trial court ordered the publication to be made inIng Katipunan precisely because it was a
"newspaper of general circulation in the Province of Pampanga." The law does not require that
publication of the notice, referred to in the Code of Civil Procedure, should be made in the
newspaper with the largest numbers is necessary to constitute a newspaper of general


Cayetano v. Leonidas, G.R. No. L-54919, May 30, 1984.



The testatrix was an American citizen at the time of her death and was a
permanent resident of Pennsylvania, U.S.A.; that the testatrix died in Manila while
temporarily residing with her sister; that during her lifetime, the testatrix made
her last will and testament according to the laws of Pennsylvania, U.S.A.; that
after the testatrix death, her last will and testament was presented, probated,
allowed, and registered with the Registry of Wills at the County of Philadelphia,
U.S.A. An opposition to the reprobate of the will was filed by herein petitioner
alleging among other things that the intrinsic provisions of the will are null and
void. The petitioner maintains that since the respondent judge allowed the
reprobate of Adoracion’s will, Hermogenes C. Campos was divested of his
legitime which was reserved by the law for him.


[1]Whether or not the Philippine law will apply to determine the intrinsic validity
of a will executed by an undisputed foreigner.

[2] Whether or not Philippine law will apply to determine the capacity to succeed
of Adoracion’s heirs.

[1] NO. 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).“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.”

[2] NO. Capacity to succeed is governed by the law of the nation of the decedent.
(Article 1039, Civil Code) 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.