Rulings in Special Proceedings (Rules 74-76)

CASE DOCTRINES IN SPECIAL PROCEEDINGS (Rules 74-76)

Prepared by Glenn Rey Anino
University of Cebu

RULE 74. SUMMARY SETTLEMENT OF ESTATE

CASES:

1. Rodriguez v. Tan, G.R. No. L-6044, November 24, 1952 (92 Phil 273)
Section 1 of Rule 74 does not preclude the heirs from instituting administration proceedings, even if the
estate has no debts or obligations, if they do not desire to resort for good reasons to an ordinary action of
partition. While section 1 allows the heirs to divide the estate among themselves as they may see fit, or to
resort to an ordinary action of partition, it does not compel them to do so if they have good reasons to
take a different course of action. Said section is not mandatory or compulsory as may be gleaned from
the use made therein of the word may. If the intention were otherwise the framer of the rule would have
employed the word shall as was done in other provisions that are mandatory in character. Note that the
word may is used not only once but in the whole section which indicates an intention to leave the matter
entirely to the discretion of the heirs.
2. Pereira v. CA, G.R. No. L-81147 June 20, 1989 (174 SCRA 154)
Petitioner asks this Court to declare that the properties specified do not belong to the estate of the
deceased on the basis of her bare allegations as aforestated and a handful of documents. Inasmuch as
this Court is not a trier of facts, We cannot order an unqualified and final exclusion or non-exclusion of the
property involved from the estate of the deceased.
The resolution of this issue is better left to the probate court before which the administration proceedings
are pending. The trial court is in the best position to receive evidence on the discordant contentions of the
parties as to the assets of the decedent's estate, the valuations thereof and the rights of the transferees of
some of the assets, if any. The function of resolving whether or not a certain property should be included
in the inventory or list of properties to be administered by the administrator is one clearly within the
competence of the probate court. However, the court's determination is only provisional in character, not
conclusive, and is subject to the final decision in a separate action which may be instituted by the parties.
It should be noted that recourse to an administration proceeding even if the estate has no debts is
sanctioned only if the heirs have good reasons for not resorting to an action for partition. Where partition
is possible, either in or out of court, the estate should not be burdened with an administration proceeding
without good and compelling reasons.
Thus, it has been repeatedly held that when a person dies without leaving pending obligations to be paid,
his heirs, whether of age or not, are not bound to submit the property to a judicial administration, which is
always long and costly, or to apply for the appointment of an administrator by the Court. It has been
uniformly held that in such case the judicial administration and the appointment of an administrator are
superfluous and unnecessary proceedings.
The only conceivable reason why private respondent seeks appointment as administratrix is for her to
obtain possession of the alleged properties of the deceased for her own purposes, since these properties
are presently in the hands of petitioner who supposedly disposed of them fraudulently. We are of the
opinion that this is not a compelling reason which will necessitate a judicial administration of the estate of
the deceased. To subject the estate of Andres de Guzman Pereira, which does not appear to be
substantial especially since the only real property left has been extrajudicially settled, to an administration
proceeding for no useful purpose would only unnecessarily expose it to the risk of being wasted or
squandered. In most instances of a similar nature, 16 the claims of both parties as to the properties left by
the deceased may be properly ventilated in simple partition proceedings where the creditors, should there
be any, are protected in any event.
We, therefore, hold that the court below before which the administration proceedings are pending was not
justified in issuing letters of administration, there being no good reason for burdening the estate of the
deceased Andres de Guzman Pereira with the costs and expenses of an administration proceeding.
 3. Cease v. CA, G.R. No. L-33172 October 18, 1979 (93 SCRA 483)
If there were a valid genuine claim of Exclusive ownership of the inherited properties on the part of
petitioners to respondents' action for partition, then under the Miranda ruling, petitioners would be
sustained, for as expressly held therein " the general rule of partition that an appeal will not lie until the
partition or distribution proceedings are terminated will not apply where appellant claims exclusive
ownership of the whole property and denies the adverse party's right to any partition."
4. Sampilo v. CA, G.R. No. L-10474, February 28, 1958 (103 Phil 71)
There are two significant provisions in Sections 1 and 4 of Rule 74. In Section 1, it is required that if there
are two or more heirs, both or all of them should take part in the extrajudicial settlement. This requirement
is made more imperative in the old law (Section 596, Act No. 190) by the addition of the clause "and not
otherwise." By the title of Section 4, the "distributees and estate" are indicates the persons to answer for
rights violated by the extrajudicial settlement. On the other hand, it is also significant that no mention is
made expressly of the effect of the extrajudicial settlement on persons who did not take part therein or
had no notice or knowledge thereof. There cannot be any doubt that those who took part or had
knowledge of the extrajudicial settlement are bound thereby. As to them the law is clear that if they claim
to have been in any manner deprived of their lawful right or share in the estate by the extrajudicial
settlement, they may demand their rights or interest within the period of two years, and both the
distributes and estate would be liable to them for such rights or interest. Evidently, they are the persons in
accordance with the provision, may seek to remedy, the prejudice to their rights within the two-year
period. But as to those who did not take part in the settlement or had no notice of the death of the
decedent or of the settlement, there is no direct or express provision is unreasonable and unjust that they
also be required to assert their claims within the period of two years. To extend the effects of the
settlement to them, to those who did not take part or had no knowledge thereof, without any express legal
provision to that effect, would be violative of the fundamental right to due process of law.
The procedure outlined in Section 1 of Rule 74 of extrajudicial settlement, or by affidavit, is an ex
parteproceeding. It cannot by any reason or logic be contended that such settlement or distribution would
affect third persons who had no knowledge either of the death of the decedent or of the extrajudicial
settlement or affidavit, especially as no mention of such effect is made, either directly or by implication.
The provisions of Section 4 of Rule 74, barring distributees or heirs from objecting to an extrajudicial
partition after the expiration of two years from such extrajudicial partition, is applicable only (1) to persons
who have participated or taken part or had notice of the extrajudicial partition, and, in addition, (2) when
the provisions of Section 1 of Rule 74 have been strictly complied with, i.e., that all the persons or heirs of
the decedent have taken part in the extrajudicial settlement or are represented by themselves or through
guardians.
There is nothing in Section 4 of Rule 74, or in its source (Section 596 of Act 190), which shows clearly a
statute of limitations and a bar of action against third person's. It is only a bar against the parties who had
taken part in the extrajudicial proceedings but not against third persons not Parties thereto. In the second
place, the statute of limitations is contained in a different chapter of Act No. 190, Chapter XL, and if
Section 596 of the Act had been meant to be a statute of limitations, it would naturally have been included
in the chapter which defines the statute.
5. Amerol v. Bagumbaran, G.R. No. L-33261. September 30, 1987 (154
SCRA 396)
Indubitably, the act of respondent in misrepresenting that he was in actual possession and occupation of
the property in question, obtaining a patent and Original Certificate of Title No. P- 466 in his name,
created an implied trust in favor of the actual possessor of the said property. In this case, the land in
question was patented and titled in respondent's name by and through his false pretenses. Molok
Bagumbaran fraudulently misrepresented that he was the occupant and actual possessor of the land in
question when he was not because it was Liwalug Datomanong. Bagumbaran falsely pretended that
there was no prior applicant for a free patent over the land but there was — Liwalug Datomanong. By
such fraudulent acts, Molok Bagumbaran is deemed to hold the title of the property in trust and for the
benefit of petitioner Liwalug Datomanong.
Notwithstanding the irrevocability of the Torrens title already issued in the name of respondent, he, even
being already the registered owner under the Torrens system, may still be compelled under the law to
reconvey the subject property to Liwalug Datomanong. After all, the Torrens system was not designed to
 shield and protect one who had committed fraud or misrepresentation and thus holds title in bad faith.
Further, contrary to the erroneous claim of the respondent, reconveyance does not work to set aside and
put under review anew the findings of facts of the Bureau of Lands. In an action for reconveyance, the
decree of registration is respected as incontrovertible. What is sought instead is the transfer of the
property, in this case the title thereof, which has been wrongfully or erroneously registered in another
person's name, to its rightful and legal owner, or to one with a better right. That is what reconveyance is
all about.
An action for reconveyance based on an implied or constructive trust must perforce prescribed in ten
years and not otherwise. A long line of decisions of this Court, and of very recent vintage at that,
illustrates this rule. Undoubtedly, it is now well-settled that an action for reconveyance based on an
implied or constructive trust prescribes in ten years from the issuance of the Torrens title over the
property. The only discordant note, it seems, isBalbin vs. Medalla, which states that the prescriptive
period for a reconveyance action is four years. However, this variance can be explained by the erroneous
reliance on Gerona vs. de Guzman. But in Gerona, the fraud was discovered on June 25, 1948, hence
Section 43(3) of Act No. 190, was applied, the new Civil Code not coming into effect until August 30, 1950
as mentioned earlier. It must be stressed, at this juncture, that Article 1144 and Article 1456, are new
provisions. They have no counterparts in the old Civil Code or in the old Code of Civil Procedure, the
latter being then resorted to as legal basis of the four-year prescriptive period for an action for
reconveyance of title of real property acquired under false pretenses.
It is abundantly clear from all the foregoing that the action of petitioner Datomanong for reconveyance, in
the nature of a counterclaim interposed in his Answer, filed on December 4, 1964, to the complaint for
recovery of possession instituted by the respondent, has not yet prescribed. Between August 16, 1955,
the date of reference, being the date of the issuance of the Original Certificate of Title in the name of the
respondent, and December 4, 1964, when the period of prescription was interrupted by the filing of the
Answer cum Counterclaim, is less than ten years.
The respondent also interposed as a deterrent to reconveyance the existence of a mortgage on the
property. It is claimed by the respondent that reconveyance would not be legally possible because the
property under litigation has already been mortgaged by him to the Development Bank of the
Philippines. This claim is untenable otherwise the judgment for reconveyance could be negated at the will
of the holder of the title. By the simple expedient of constituting a mortgage or other encumbrance on the
property, the remedy of reconveyance would become illusory. In the instant case, the respondent being
doubly in bad faith — for applying for and obtaining a patent and the Original Certificate of Title therefor
without being in possession of the land and for mortgaging it to the Development Bank knowing that his
Original Certificate of Title was issued under false pretenses — must alone suffer the consequences.
Besides, given the undisputed facts, we cannot consider the mortgage contracted by the respondent in
favor of the Development Bank of the Philippines as valid and binding against petitioner Liwalug
Datomanong. It would be most unjust to saddle him, as owner of the land, with a mortgage lien not of his
own making and from which he derived no benefit whatsoever. The consequences of the void mortgage
must be left between the mortgagor and the mortgagee. In no small measure the Development Bank of
the Philippines might even be faulted for not making the requisite investigation on the possession of the
land mortgaged.
6. Marquez v. CA, G.R. No. 125715, December 29, 1998 (300 SCRA 653)
As such, when Rafael Marquez Sr., for one reason or another, misrepresented in his unilateral affidavit
that he was the only heir of his wife when in fact their children were still alive, and managed to secure a
transfer of certificate of title under his name, a constructive trust under Article 1456 was
established. Constructive trusts are created in equity in order to prevent unjust enrichment. They arise
contrary to intention against one who, by fraud, duress or abuse of confidence, obtains or holds the legal,
right to property which he ought not, in equity and good conscience, to hold.
Prescinding from the foregoing discussion, did the action for reconveyance filed by the petitioners
prescribe, as held by the Court of Appeals?
In this regard, it is settled that an action for reconveyance based on an implied or constructive trust
prescribes in ten years from the isuance of the Torrens title over the property. For the purpose of this
case, the prescriptive period shall start to run when TCT No. 33350 was issued, which was on June 16,
1982. Thus, considering that the action for reconveyance was filed on May 31, 1991, or approximately
nine years later, it is evident that prescription had not yet barred the action.
 To bolster the foregoing position, the Court of Appeal's reliance on Gerona v. de Guzman, is misplaced.
In Amerol v. Bagumbaran, we ruled that the doctrine laid down in the earlier Gerona case was based on
the old Code of Civil Procedure which provided that an action based on fraud prescribes within four years
from the date of discovery. However, with the effectivity of the present Civil Code on August 30, 1950, the
provisions on prescriptive periods are now governed by Articles 1139 to 1155. Since implied or
constructive trusts are obligations created by law then the prescriptive period to enforce the same
prescribes in ten years.
While we rule in favor of petitioners, we cannot grant their plea for moral damages and attorney's
fees 20since they have not satisfactorily shown that they have suffered "mental anguish" as provided in
Article 2219 and Article 2290 of the Civil Code.
7. GSIS v. Santiago, G.R. No. 155206, October 28, 2008 (414 SCRA 563)
At the outset, it bears emphasis that the jurisdiction of this Court in a petition for review on certiorari under
Rule 45 of the Rules of Court, as amended, is limited to reviewing only errors of law. This Court is not a
trier of facts. Case law has it that the findings of the trial court especially when affirmed by the CA are
binding and conclusive upon this Court. Although there are exceptions to the said rule, we find no reason
to deviate therefrom. By assailing the findings of facts of the trial court as affirmed by the CA, that it acted
in bad faith, the petitioner thereby raised questions of facts in its petition.
The Court agrees with the findings and conclusion of the trial court and the CA. The petitioner is not an
ordinary mortgagee. It is a government financial institution and, like banks, is expected to exercise greater
care and prudence in its dealings, including those involving registered lands.8 Due diligence required of
banks extend even to persons, or institutions like the petitioner, regularly engaged in the business of
lending money secured by real estate mortgages.
On the issue of prescription, generally, an action for reconveyance of real property based on fraud
prescribes in four years from the discovery of fraud; such discovery is deemed to have taken place upon
the issuance of the certificate of title over the property. Registration of real property is a constructive
notice to all persons and, thus, the four-year period shall be counted therefrom.12 On the other hand,
Article 1456 of the Civil Code provides:
Art. 1456. If property is acquired through mistake or fraud, the person obtaining it is, by force of law,
considered a trustee of an implied trust for the benefit of the person from whom the property comes.
An action for reconveyance based on implied or constructive trust prescribes in ten years from the alleged
fraudulent registration or date of issuance of the certificate of title over the property.
The petitioner’s defense of prescription is untenable. As held by the CA, the general rule that the
discovery of fraud is deemed to have taken place upon the registration of real property because it is
"considered a constructive notice to all persons" does not apply in this case. The CA correctly cited the
cases of Adille v. Court of Appeals and Samonte v. Court of Appeals, where this Court reckoned the
prescriptive period for the filing of the action for reconveyance based on implied trust from the actual
discovery of fraud.
Following the Court’s pronouncements in Adille and Samonte, the institution of the action for
reconveyance in the court a quo in 1990 was thus well within the prescriptive period. Having acted in bad
faith in securing titles over the subject lots, the petitioner is a holder in bad faith of certificates of title over
the subject lots. The petitioner is not entitled to the protection of the law for the law cannot be used as a
shield for frauds.
RULE 75. PRODUCTION OF WILL. ALLOWANCE OF WILL NECESSARY.

CASES:

8. Mang-oy v. CA, G.R. No. L-27421, September 12, 1986 (144 SCRA 33)
After examining the musty records, we sustain the ruling-made both by the trial court and the Court of
Appeals-that the will, not having been probated as required by law, was inoperative as such. The settled
principle, as announced in a long line of decisions in accordance with the Rules of Court, is that no will
shall pass either real or personal property unless it is proved or allowed in court. 9
None of these objections is valid in law. The appellants evidently fail to realize that Article 1056 of the
Civil Code of 1889 authorizes a testator to partition inter vivos his property, and distribute them among his
heirs, and that this partition is not necessarily either a donation nor a testament, but an instrument of a
special character, sui generis, which is revocable at any time by the causante during his lifetime, and
does not operate as a conveyance of title until his death. It derives its binding force on the heirs from the
respect due to the will of the owner of the property, limited only by his creditors and the intangibility of the
legitime of the forced heirs. 'El testador es libre y sus herederos han de pasar por lo que haga en cuanto
no perjudique la legitime de los forsozos. Inutil es sonar en otras limitaciones que no existen.' (7 Manresa
Commentaries, 6th Ed., p. 639.
That such partition is not governed by the rules of wills or donations inter vivos is a consequence of its
special nature.
There is no difference in legal effect between Agustin Albela's deed of partition and Old Man Tumpao's
"last will and testament." Both are sustainable under Article 1056 of the Civil Code, which was in force at
the time they were executed Even as Agustin Albela's partition was signed by the two daughters
themselves, so was Old Man Tumpao's "will" affirmed by the beneficiaries in their agreement of
September 7, 1937, which reiterated and recognized the terms of such "will." While not valid as a
partition inter vivos under Articles 816 and 1271 of the old Civil Code, it was nevertheless binding on the
parties as proof of their conformity to the dispositions made by Old Man Tumpao in his "last will and
testament."
We may add that the agreement entered into by the parties in implementation of Old Man Tumpao's "will"
did not have to be approved by the Director of the Bureau of Non-Christian Tribes because the
Administrative Code of Mindanao and Sulu was not extended to the Mountain Province. Moreover, the
document was not a conveyance of properties or property right.
It remains to state that the property in dispute having been registered in 1917, the presumption is that it
was acquired during the second marriage and so cannot be claimed by the respondents as the conjugal
property of their mother and Old Man Tumpao. Hence, they are not entitled to retain the entire land as
their exclusive inheritance or to collect rentals for the lots occupied by the petitioners.
The trial judge, the Hon. Feliciano Belmonte, was correct in ordering the reconveyance to the petitioners
of their respective shares. We affirm his decision in toto.
9. Nufable v. Nufable, G.R. No. 126950, July 2, 1999 (309 SCRA 692)
As a general rule, courts in probate proceedings are limited only to passing upon the extrinsic validity of
the will sought to be probated, the due execution thereof, the testator's testamentary capacity and the
compliance with the requisites or solemnities prescribes by law. Said court at this stage of the
proceedings is not called to rule on the rule on the intrinsic validity or efficacy of the will. The question of
the intrinsic validity of a will normally comes only after the court has declared that the will has been duly
authenticated.
when Angel Nufable and his spouses mortgaged the subject property to DBP on March 15, 1966, they
had no right to mortgage the entire property. Angel's right over the subject property was limited only to
1/4 pro indivisoshare. As co-owner of the subject property, Angel's right to sell, assign or mortgage is
limited to that portion that may be allotted to him upon termination of the co-ownership. Well-entrenched
is the rule that a co-owner can only alienate his pro indiviso share in the co-owned property.
The Court of Appeals did not err in ruling that Angel Custodio Nufable "had no right to mortgage the
subject property in its entirety. His right to encumber said property was limited only to 1/4 pro
indiviso share of the property in question." Article 493 of the Civil Code spells out the rights or co-owners
over a co-owned property. Pursuant to said Article, a co-owner shall have full ownership of his part and of
the fruits and benefits pertaining thereto. He has the right to alienate, assign or mortgage it, and even
substitute another person in its enjoyment. As a mere part owner, he cannot alienate the shares of the
other co-owners. The prohibition is premised on the elementary rule that "no one can give what he does
not have."
Moreover, respondents stipulated that they were not aware of the mortgage by petitioners of the subject
property. This being the case, a co-owner does not lose his part ownership of a co-owned property when
his share is mortgaged by another co-owner without the former's knowledge and consent as in the case
at bar. It has likewise been ruled that the mortgage of the inherited property is not binding against co-
heirs who never benefitted.
The rule is that indispensable parties, i.e., parties in interest without whom no final determination can be
had of an action, shall be joined either as plaintiffs or defendants; the inclusion as a party, i.e., persons
who are not indispensable but ought to be parties if complete relief is to be accorded as between those
already parties, the court may, in its discretion, proceed in the action without making such persons
parties, and the judgment rendered therein shall be without prejudice to the rights of such
 persons. Proper parties, therefore, have been described as parties whose presence in necessary in order
to adjudicate the whole controversy, but whose interests are so far separable that a final decree can be
made in their absence without affecting them. Any claim against a party may be severed and proceeded
with separately.
Private respondents do not question the legality of the foreclosure of the mortgaged property and the
subsequent sale of the same to DBP. The subject property was already purchased by petitioner Nelson
from DBP and latter, by such sale, transferred its rights and obligations to the former. Clearly, petitioners'
interest in the controversy is distinct and separable from the interest of DBP and a final determination can
be had of the action despite the non-inclusion of DBP as party-defendant. Hence, DBP, not being an
indispensable party, did not have to be impleaded in this case.
10. Nuguid v. Nuguid, G.R. No. L-23445, June 23, 1966 (17 SCRA 449)
In a proceeding for the probate of a will, the Court's area of inquiry is limited to an examination of, and
resolution on, the extrinsic validity of the will, the due execution thereof, the testatrix's testamentary
capacity and the compliance with the requisites or solemnities prescribed by law. The intrinsic validity of
the will normally comes only after the court has declared that the will has been duly
authenticated.However, where practical considerations demand that the intrinsic validity of the will be
passed upon, even before it is probated, the Court should meet that issue.

Where the deceased left no descendants, legitimate or illegitimate, but she left forced heirs in the direct
ascending line - her parents, and her holographic will does not explicitly disinherit them but simply omits
their names altogether, the case is one of preterition of the parents, not a case of ineffective
disinheritance.

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." (Neri vs. Akutin, 72 Phil. 325). Disinheritance, in turn, "is a testamentary
disposition depriving any compulsory heirs of his share in the legitimate for a cause authorized by law."
(Justice J.B.L. Reyes and R.C. Puno, "An Outline of Philippine Civil Law", 1956 ed., Vol. III, p. 8, citing
cases) Disinheritance is always "voluntary", preterition upon the other hand, is presumed to be
"involuntary" (Sanchez Roman, Estudios de Derecho Civil 2nd edition, Volume 2.o p. 1131).

The effects flowing from preterition are totally different from those of disinheritance. Pretention under
Article 854 of the New Civil Code shall annul the institution of heir. This annulment is in toto, unless in the
wail there are, in addition, testamentary dispositions in the form of devises or legacies. In ineffective
disinheritance under Article 918 of the same Code, such disinheritance shall also "annul the institution of
heirs", but only "insofar as it may prejudice the person disinherited", which last phrase was omitted in the
case of preterition (III Tolentino, Civil Code of the Philippines, 1961 Edition, p. 172). Better stated yet, in
disinheritance the nullity is limited to that portion of the estate of which the disinherited heirs have been
illegally deprived.

Where the one-sentence will institutes petitioner as the sole, universal heir and preterits the parents of the
testatrix, and it contains no specific legacies or bequests, such universal institution of petitioner, by itself,
is void. And intestate succession ensues.

Legacies and devises merit consideration only when they are so expressly given as such in a will.
Nothing in Article 854 suggests that the mere institution of a universal heir in a will — void because of
preterition — would give the heir so instituted a share in the inheritance. As to him, the will is inexistent.
There must be, in addition to such institution, a testamentary disposition granting him bequests or
legacies apart and separate from the nullified institution of heir.
If every case of institution of heirs may be made to fall into the concept of legacies and betterments
reducing the bequest accordingly, then the provisions of Articles 814 and 851 regarding total or partial
nullity of the institution, would. be absolutely meaningless and will never have any application at all. And
the remaining provisions contained in said article concerning the reduction of inofficious legacies or
betterments would be a surplusage because they would be absorbed by Article 817 of the same
Code.
11. Alvarado v. Gaviola, G.R. No. 74695, September 14, 1993 (226
SCRA 347)
Clear from the foregoing is that Art. 808 applies not only to blind testators but also to those who, for one
reason or another, are "incapable of reading the(ir) will(s)." Since Brigido Alvarado was incapable of
reading the final drafts of his will and codicil on the separate occasions of their execution due to his
"poor," "defective," or "blurred" vision, there can be no other course for us but to conclude that Brigido
Alvarado comes within the scope of the term "blind" as it is used in Art. 808. Unless the contents were
read to him, he had no way of ascertaining whether or not the lawyer who drafted the will and codicil did
so confortably with his instructions.
Article 808 requires that in case of testators like Brigido Alvarado, the will shall be read twice; once, by
one of the instrumental witnesses and, again, by the notary public before whom the will was
acknowledged. The purpose is to make known to the incapacitated testator the contents of the document
before signing and to give him an opportunity to object if anything is contrary to his instructions.
This Court has held in a number of occasions that substantial compliance is acceptable where the
purpose of the law has been satisfied, the reason being that the solemnities surrounding the execution of
wills are intended to protect the testator from all kinds of fraud and trickery but are never intended to be
so rigid and inflexible as to destroy the testamentary privilege.
The spirit behind the law was served though the letter was not. Although there should be strict
compliance with the substantial requirements of the law in order to insure the authenticity of the will, the
formal imperfections should be brushed aside when they do not affect its purpose and which, when taken
into account, may only defeat the testator's will.
12. Pastor v. CA, G.R. No. L-56340, June 24, 1983 (122 SCRA 85)
In a special proceeding for the probate of a will, the issue by and large is restricted to the extrinsic validity
of the will, i.e., whether the testator, being of sound mind, freely executed the will in accordance with the
formalities prescribed by law. (Rules of Court, Rule 75, Section 1; Rule 76, Section 9.) As a rule, the
question of ownership is an extraneous matter which the Probate Court cannot resolve with finality. Thus,
for the purpose of determining whether a certain property should or should not be included in the
inventory of estate properties, the Probate Court may pass upon the title thereto, but such determination
is provisional, not conclusive, and is subject to the final decision in a separate action to resolve title.
The rule is that execution of a judgment must conform to that decreed in the dispositive part of the
decision. (Philippine-American Insurance Co. vs. Honorable Flores, 97 SCRA 811.) However, in case of
ambiguity or uncertainty, the body of the decision may be scanned for guidance in construing the
judgment. (Heirs of Presto vs. Galang, 78 SCRA 534; Fabular vs. Court of Appeals, 119 SCRA 329;
Robles vs. Timario. 107 Phil. 809.)
Nowhere in the dispositive portion is there a declaration of ownership of specific properties. On the
contrary, it is manifest therein that ownership was not resolved. For it confined itself to the question of
extrinsic validity of the will, and the need for and propriety of appointing a special administrator. Thus it
allowed and approved the holographic win "with respect to its extrinsic validity, the same having been
duly authenticated pursuant to the requisites or solemnities prescribed by law." It declared that the
intestate estate administration aspect must proceed " subject to the outcome of the suit for reconveyance
of ownership and possession of real and personal properties in Civil Case 274-T before Branch IX of the
CFI of Cebu." [Parenthetically, although the statement refers only to the "intestate" aspect, it defies
understanding how ownership by the estate of some properties could be deemed finally resolved for
purposes of testate administration, but not so for intestate purposes. Can the estate be the owner of a
property for testate but not for intestate purposes?] Then again, the Probate Order (while indeed it does
not direct the implementation of the legacy) conditionally stated that the intestate administration aspect
must proceed "unless . . . it is proven . . . that the legacy to be given and delivered to the petitioner does
not exceed the free portion of the estate of the testator," which clearly implies that the issue of impairment
of legitime (an aspect of intrinsic validity) was in fact not resolved. Finally, the Probate Order did not rule
on the propriety of allowing QUEMADA to remain as special administrator of estate properties not
covered by the holographic will, "considering that this (Probate) Order should have been properly issued
solely as a resolution on the issue of whether or not to allow and approve the aforestated will. "
What, therefore, the Court of Appeals and, in effect, the Supreme Court affirmed en toto when they
reviewed the Probable Order were only the matters properly adjudged in the said Order.
It was, therefore, error for the assailed implementing Orders to conclude that the Probate Order adjudged
with finality the question of ownership of the mining properties and royalties, and that, premised on this
conclusion, the dispositive portion of the said Probate Order directed the special administrator to pay the
legacy in dispute.
When PASTOR, SR. died in 1966, he was survived by his wife, aside from his two legitimate children and
one illegitimate son. There is therefore a need to liquidate the conjugal partnership and set apart the
share of PASTOR, SR.'s wife in the conjugal partnership preparatory to the administration and liquidation
of the estate of PASTOR, SR. which will include, among others, the determination of the extent of the
statutory usufructuary right of his wife until her death. * When the disputed Probate order was issued on
December 5, 1972, there had been no liquidation of the community properties of PASTOR, SR. and his
wife.
So, also, as of the same date, there had been no prior definitive determination of the assets of the estate
of PASTOR, SR. There was an inventory of his properties presumably prepared by the special
administrator, but it does not appear that it was ever the subject of a hearing or that it was judicially
approved. The reconveyance or recovery of properties allegedly owned but not in the name of PASTOR,
SR. was still being litigated in another court. There was no appropriate determination, much less
payment, of the debts of the decedent and his estate.
Under the circumstances of the case at bar, the challenge must be rejected. Grave abuse of discretion
amounting to lack of jurisdiction is much too evident in the actuations of the probate court to be
overlooked or condoned.
Without a final, authoritative adjudication of the issue as to what properties compose the estate of
PASTOR, SR. in the face of conflicting claims made by heirs and a non-heir (MA. ELENA ACHAVAL DE
PASTOR) involving properties not in the name of the decedent, and in the absence of a resolution on the
intrinsic validity of the will here in question, there was no basis for the Probate Court to hold in its Probate
Order of 1972, which it did not, that private respondent is entitled to the payment of the questioned
legacy. Therefore, the Order of Execution of August 20, 1980 and the subsequent implementing orders
for the payment of QUEMADA's legacy, in alleged implementation of the dispositive part of the Probate
Order of December 5, 1972, must fall for lack of basis.
The ordered payment of legacy would be violative of the rule requiring prior liquidation of the estate of the
deceased, i.e., the determination of the assets of the estate and payment of all debts and expenses,
before apportionment and distribution of the residue among the heirs and legatees. (Bernardo vs. Court of
Appeals, 7 SCRA 367.)
Neither has the estate tax been paid on the estate of PASTOR, SR. Payment therefore of the legacy to
QUEMADA would collide with the provision of the National Internal Revenue Code requiring payment of
estate tax before delivery to any beneficiary of his distributive share of the estate (Section 107 [c])
The above provision clearly authorizes execution to enforce payment of debts of estate. A legacy is not a
debt of the estate; indeed, legatees are among those against whom execution is authorized to be issued.
It is within a court's competence to order the execution of a final judgment; but to order the execution of a
final order (which is not even meant to be executed) by reading into it terms that are not there and in utter
disregard of existing rules and law, is manifest grave abuse of discretion tantamount to lack of jurisdiction.
Consequently, the rule that certiorari may not be invoked to defeat the right of a prevailing party to the
execution of a valid and final judgment, is inapplicable. For when an order of execution is issued with
grave abuse of discretion or is at variance with the judgment sought to be enforced (PVTA vs. Honorable
Gonzales, 92 SCRA 172), certiorari will lie to abate the order of execution.
Petitioner MA. ELENA ACHAVAL DE PASTOR, wife of PASTOR, JR., is the holder in her own right of
three mining claims which are one of the objects of conflicting claims of ownership. She is not an heir of
PASTOR, SR. and was not a party to the probate proceedings. Therefore, she could not appeal from the
Order of execution issued by the Probate Court. On the other hand, after the issuance of the execution
order, the urgency of the relief she and her co-petitioner husband seek in the petition for certiorari states
against requiring her to go through the cumbersome procedure of asking for leave to intervene in the
probate proceedings to enable her, if leave is granted, to appeal from the challenged order of execution
which has ordered the immediate transfer and/or garnishment of the royalties derived from mineral
properties of which she is the duly registered owner and/or grantee together with her husband. She could
not have intervened before the issuance of the assailed orders because she had no valid ground to
 intervene. The matter of ownership over the properties subject of the execution was then still being
litigated in another court in a reconveyance suit filed by the special administrator of the estate of
PASTOR, SR.
13. Maninang v. CA, G.R. No. L-57848, June 19, 1982 (114 SCRA 473)
Generally, the probate of a Will is mandatory. 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.
Normally, the probate of a Will does not look into its intrinsic validity.
The authentication of a will decides no other question than such as touch upon the capacity of the testator
and the compliance with those requisites or solemnities which the law prescribes for the validity of wills. It
does not determine nor even by implication prejudge the validity or efficiency (sic) of the provisions, these
may be impugned as being vicious or null, notwithstanding its authentication. The questions relating to
these points remain entirely unaffected, and may be raised even after the will has been authenticated ....
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." (Neri vs. Akutin, 72 Phil. 325). Disinheritance, in turn, "is a testamentary
disposition depriving any compulsory heirs of his share in the legitimate for a cause authorized by law."
(Justice J.B.L. Reyes and R.C. Puno, "An Outline of Philippine Civil Law", 1956 ed., Vol. III, p. 8, citing
cases) Disinheritance is always "voluntary", preterition upon the other hand, is presumed to be
"involuntary" (Sanchez Roman, Estudios de Derecho Civil 2nd edition, Volume 2.o p. 1131).
The effects flowing from preterition are totally different from those of disinheritance. Pretention under
Article 854 of the New Civil Code shall annul the institution of heir. This annulment is in toto, unless in the
wail there are, in addition, testamentary dispositions in the form of devises or legacies. In ineffective
disinheritance under Article 918 of the same Code, such disinheritance shall also "annul the institution of
heirs", but only "insofar as it may prejudice the person disinherited", which last phrase was omitted in the
case of preterition (III Tolentino, Civil Code of the Philippines, 1961 Edition, p. 172). Better stated yet, in
disinheritance the nullity is limited to that portion of the estate of which the disinherited heirs have been
illegally deprived.
As held in the case of Vda. de Precilla vs. Narciso
... it is as important a matter of public interest that a purported will is not denied legalization on dubious
grounds. Otherwise, the very institution of testamentary succession will be shaken to its foundation, ...
Coming now to the procedural aspect, suffice it to state that in view of our finding that respondent Judge
had acted in excess of his jurisdiction in dismissing the Testate Case, certiorari is a proper remedy. An
act done by a Probate Court in excess of its jurisdiction may be corrected by Certiorari. And even
assuming the existence of the remedy of appeal, we harken 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.
14. Coronado v. CA, G.R. No. 78778, December 3, 1990 (191 SCRA
894)
As found by the respondent appellate court, Monterola never claimed ownership over the property in
question. As a matter of fact, one of the deeds of donation executed by Monterola in favor of Leonida
Coronado acknowledged that the boundary owner on the property conveyed to her is JUANA. This is
precisely the reason why during the lifetime of the late Dalmacio Monterola, JUANA had always been
allowed to enter and reap the benefits or produce of the said property. It was only after the death of said
Monterola in 1970 that Leonida Coronado prohibited JUANA from entering it.

Even assuming arguendo that Monterola was indeed in continued possession of the said property for
over ten years since 1934, said possession is insufficient to constitute the fundamental basis of the
prescription. Possession, under the Civil Code, to constitute the foundation of a prescriptive right, must be
possession under claim of title (en concepto de dueno), or to use the common law equivalent of the term,
it must be adverse. Acts of possessory character performed by one who holds by mere tolerance of the
owner are clearly not en concepto de dueno, and such possessory acts, no matter how long so
continued, do not start the running of the period of prescription.
While it is true that no will shall pass either real or personal property unless it is proved and allowed in the
proper court (Art. 838, Civil Code), the questioned will, however, may be sustained on the basis of Article
1056 of the Civil Code of 1899, which was in force at the time said document was executed by Melecio
Artiaga in 1918. The said article read as follows:
"Article 1056. If the testator should make a partition of his properties by an act inter vivos, or by will, such
partition shall stand in so far as it does not prejudice the legitime of the forced heir." (Mang-Oy v. Court of
Appeals, 144 SCRA 33 [1986])
It does not determine nor even by implication prejudge the validity or efficiency of the provisions of the
will, thus may be impugned as being vicious or null, notwithstanding its authentication. The question
relating to these points remain entirely unaffected, and may be raised even after the will has been
authenticated (Maninang, et al., v. Court of Appeals, 114 SCRA 473 [1982]). Consequently, JUANA is not
estopped from questioning the ownership of the property in question, notwithstanding her having objected
to the probate of the will executed by Monterola under which Leonida Coronado is claiming title to the
said property.
Moreover, the lower court found sufficient evidence to support the conclusion that the property in question
is the same property adjudicated to JUANA under the will of Melecio Artiaga, and that CORONADO has
no right whatsoever to said property (Ibid., p. 20). Such findings are conclusive upon this Court (Reynolds
Philippine Corporation v. Court of Appeals, 169 SCRA 220 [1989]).

15. Balanay v. Martinez, G.R. No. L-39247, June 27, 1975

The trial court acted correctly in passing upon the will's intrinsic validity even before its formal validity had
been established. The probate of a will might become an idle ceremony if on its face it appears to be
intrinsically void. Where practical considerations demand that the intrinsic validity of the will be passed
upon, even before it is probated, the court should meet the issue.

The rule is that "the invalidity of one of several dispositions contained in a will does not result in the
invalidity of the other dispositions, unless it is to be presumed that the testator would not have made such
other dispositions if the first invalid disposition had not been made"
The statement of the testatrix that she owned the "southern half of the conjugal lands is contrary to law
because, although she was a coowner thereof, her share was inchoate and proindiviso (Art. 143, Civil
Code; Madrigal and Paterno vs. Rafferty and Concepcion, 38 Phil. 414). But That illegal declaration does
not nullify the entire will. It may be disregarded.
The provision of the will that the properties of the testatrix should not be divided among her heirs during
her husband's lifetime but should be kept intact and that the legitimes should be paid in cash is contrary
to article 1080 of the Civil Code. The testatrix in her will made a partition of the entire conjugal estate
among her six children (her husband had renounced his hereditary rights and his one-half conjugal
share). She did not assign the whole estate to one or more children as envisaged in article 1080. Hence,
she had no right to require that the legitimes be paid in cash. On the other hand, her estate may remain
undivided only for a period of twenty years.
Felix Balanay, Sr. could validly renounce his hereditary rights and his one-half share of the conjugal
partnership (Arts. 179[1] and 1041, Civil Code) but insofar as said renunciation partakes of a donation of
his hereditary rights and his one-half share in the conjugal estate (Art. 1060[1] Civil Code), it should be
subject to the limitations prescribed in articles 750 and 752 of the Civil Code. A portion of the estate
should be adjudicated to the widower for his support and maintenance. Or at least his legitime should be
respected.
It should be stressed that by reason of the surviving husband's conformity to his wife's will and his
renunciation of his hereditary rights, his one-half conjugal share became a part of his deceased wife's
estate. His conformity had the effect of validating the partition made in paragraph V of the will without
prejudice, of course, to the rights of the creditors and the legitimes of the compulsory heirs.
In the instant case, the preterited heir was the surviving spouse. His preterition did not produce intestacy.
Moreover, he signified his conformity to his wife's will and renounced his hereditary rights. .
Testacy is favored. Doubts are resolved in favor of testacy especially where the will evinces an intention
on the part of the testator to dispose of practically his whole estate. So compelling is the principle that
 intestacy should be avoided and that the wishes of the testator should prevail that sometimes the
language of the will can be varied for the purpose of giving it effect.
A notice to creditors is not in order if only a special administrator has been appointed. Section 1, Rule 86
of the Rules of Court, in providing that "immediately after granting letters of testamentary or of
administration, the court shall issue a notice requiring all persons having money claims against the
decedent to file them in the office of the clerk of said court" clearly contemplates the appointment of an
executor or regular administrator and not that of a special administrator.
The probate court's appointment of its branch clerk of court as special administrator (p. 30, Rollo) is not a
salutary practice because it might engender the suspicion that the probate Judge and his clerk of court
are in cahoots in milking the decedent's estate. Should the branch clerk of court commit any abuse or
devastavit in the course of his administration, the probate Judge might find it difficult to hold him to a strict
accountability. A court employee should devote his official time to his official duties and should not have
as a sideline the administration of a decedent's estate.
16. Ajero v. CA, G.R. No. 106720, September 15, 1994 (236 SCRA 488)
Section 9, Rule 76 of the Rules of Court provides the cases in which wills shall be disallowed. In the
same vein, Article 839 of the New Civil Code enumerates the grounds for disallowance of wills. These
lists are exclusive; no other grounds can serve to disallow a will. Thus, in a petition to admit a holographic
will to probate, the only issues to be resolved are: (1) whether the instrument submitted is, indeed, the
decedent's last will and testament; (2) whether said will was executed in accordance with the formalities
prescribed by law; (3) whether the decedent had the necessary testamentary capacity at the time the will
was executed; and, (4) whether the execution of the will and its signing were the voluntary acts of the
decedent.
We reiterate what we held in Abangan vs. Abangan, 40 Phil. 476, 479 (1919), that:
The object of the solemnities surrounding the execution of wills is to close the door against bad faith and
fraud, to avoid substitution of wills and testaments and to guaranty their truth and authenticity. Therefore,
the laws on this subject should be interpreted in such a way as to attain these primordial ends. But, on the
other hand, also one must not lose sight of the fact that it is not the object of the law to restrain and curtail
the exercise of the right to make a will. So when an interpretation already given assures such ends, any
other interpretation whatsoever, that adds nothing but demands more requisites entirely unnecessary,
useless and frustrative of the testator's last will, must be disregarded.
For purposes of probating non-holographic wills, these formal solemnities include the subscription,
attestation, and acknowledgment requirements under Articles 805 and 806 of the New Civil Code.
In the case of holographic wills, on the other hand, what assures authenticity is the requirement that they
be totally autographic or handwritten by the testator himself, as provided under Article 810 of the New
Civil Code, thus:
A person may execute a holographic will which must be entirely written, dated, and signed by the hand of
the testator himself. It is subject to no other form, and may be made in or out of the Philippines, and need
not be witnessed. (Emphasis supplied.)
Failure to strictly observe other formalities will not result in the disallowance of a holographic will that is
unquestionably handwritten by the testator.
A reading of Article 813 of the New Civil Code shows that its requirement affects the validity of the
dispositions contained in the holographic will, but not its probate. If the testator fails to sign and date
some of the dispositions, the result is that these dispositions cannot be effectuated. Such failure,
however, does not render the whole testament void.
Likewise, a holographic will can still be admitted to probate, notwithstanding non-compliance with the
provisions of Article 814. Thus, unless the unauthenticated alterations, cancellations or insertions were
made on the date of the holographic will or on testator's signature, their presence does not invalidate the
will itself. The lack of authentication will only result in disallowance of such changes.
It is also proper to note that the requirements of authentication of changes and signing and dating of
dispositions appear in provisions (Articles 813 and 814) separate from that which provides for the
necessary conditions for the validity of the holographic will (Article 810). The distinction can be traced to
Articles 678 and 688 of the Spanish Civil Code, from which the present provisions covering holographic
wills are taken. This separation and distinction adds support to the interpretation that only the
requirements of Article 810 of the New Civil Code — and not those found in Articles 813 and 814 of the
same Code — are essential to the probate of a holographic will.
As a general rule, courts in probate proceedings are limited to pass only upon the extrinsic validity of the
will sought to be probated. However, in exceptional instances, courts are not powerless to do what the
situation constrains them to do, and pass upon certain provisions of the will. In the case at bench,
decedent herself indubitably stated in her holographic will that the Cabadbaran property is in the name of
her late father, John H. Sand (which led oppositor Dr. Jose Ajero to question her conveyance of the same
in its entirety). Thus, as correctly held by respondent court, she cannot validly dispose of the whole
property, which she shares with her father's other heirs.
17. Acain v. IAC, G.R. No. 72706, October 27, 1987
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.
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.
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.
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]).
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.

18. Vda. de Bacang v. CA, G.R. No. L-50143, October 24, 1983
We hold that the appeal is palpably bereft of merit. Petitioners' 1975 action is clearly barred by valid prior
judgments and prescription (See Ramos vs. Ramos, L-19872, December 3, 1974, 61 SCRA 284;
Gallanosa vs. Arcangel, L-29300, June 21, 1978, 83 SCRA 676; Sinco vs. Longa 51 Phil. 507). Private
respondents' Torrens titles over the hacienda have long become indefeasible. Since 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.
19. Manahan v. Manahan, G.R. No. 38050, September 22, 1933 (58 Phil
448)
The appellant was not entitled to notification of the probate of the will and neither had she the right to
expect it, inasmuch as she was not an interested party, not having filed an opposition to the petition for
the probate thereof. Her allegation that she had the status of an heir, being the deceased's sister, did not
confer on her the right to be notified on the ground that the testatrix died leaving a will in which the
appellant has not been instituted heir. Furthermore, not being a forced heir, she did not acquire any
successional right.
In the phraseology of the procedural law, there is no essential difference between the authentication of a
will and the probate thereof. The words authentication and probate are synonymous in this case. All the
law requires is that the competent court declared that in the execution of the will the essential external
formalities have been complied with and that, in view thereof, the document, as a will, is valid and
effective in the eyes of the law.
 The decree admitting a will to probate is conclusive with respect to the due execution thereof and it
cannot be impugned on any of the grounds authorized by law, except that of a fraud, in any separate or
independent action or proceeding.
The proceedings followed in a testamentary case being in rem, the decree admitting the will to probate
was effective and conclusive against her, in accordance with the provisions of section 306 of the said
Code of Civil Procedure.
The appellant could not appeal from the trial court’s order denying the motion for reconsideration and a
new trial in view of the fact that said order was interlocutory in character.
20. Heirs of Fran v. Salas, G.R. No. L-53546, June 25, 1992 (210 SCRA
303)
After the probate court rendered its decision on 13 November 1972, and there having been no claim
presented despite publication of notice to creditors, petitioner Fran submitted a Project of Partition which
private respondent Maria M. Vda. de Gandiongco voluntarily signed and to which private respondent
Espina expressed her conformity through a certification filed with the probate court. Assuming for the
sake of argument that private respondents did not receive a formal notice of the decision as they claim in
their Omnibus Motion for Reconsideration, these acts nevertheless constitute indubitable proof of their
prior actual knowledge of the same. A formal notice would have been an idle ceremony. In testate
proceedings, a decision logically precedes the project of partition, which is normally an implementation of
the will and is among the last operative acts to terminate the proceedings. If private respondents did not
have actual knowledge of the decision, they should have desisted from performing the above acts and
instead demanded from petitioner Fran the fulfillment of his alleged promise to show them the will. The
same conclusion refutes and defeats the plea that they were not notified of the order authorizing the Clerk
of Court to receive the evidence and that the Clerk of Court did not notify them of the date of the reception
of evidence. Besides, such plea must fail because private respondents were present when the court
dictated the said order.
Lim Tanhu then cannot be used as authority to nullify the order of the probate court authorizing the Clerk
of Court to receive the evidence for the rule is settled that "when a doctrine of this Court is overruled and
a different view is adopted, the new doctrine should be applied prospectively, and should not apply to
parties who had relied on the old doctrine and acted on the faith thereof." 37 It may also be emphasized in
this connection that Lim Tanhu did not live long; it was subsequently overruled in Gochangco vs. Court of
First Instance of Negros Occidental, 38 wherein this Court, en banc, through Justice, now Chief Justice,
Andres R. Narvasa, in reference to what the trial court termed as "the doctrinal rule laid down in the
recent case of Lim Tan Hu (sic) vs. Ramolete," ruled:
Now, that declaration does not reflect long observed and established judicial practice with respect to
default cases. It is not quite consistent, too, with the several explicitly authorized instances under the
Rules where the function of receiving evidence and even of making recommendatory findings of facts on
the basis thereof may be delegated to commissioners, inclusive of the Clerk of Court. These instances
are set out in Rule 33, . . . ; Rule 67 and 69, . . . ; Rule 86, . . . ; Rule 136, . . . . In all these instances, the
competence of the clerk of court is assumed.
The alternative claim that the proceedings before the Clerk of Court were likewise void because said
official did not take an oath is likewise untenable. The Clerk of Court acted as such when he performed
the delegated task of receiving evidence. It was not necessary for him to take an oath for that purpose; he
was bound by his oath of office as a Clerk of Court. Private respondents are obviously of the impression
that by the delegation of the reception of evidence to the Clerk of Court, the latter became
a commissioner as defined under Rule 33 of the Rules of Court entitled Trial by Commissioner.

In Santos vs. Castillo 39 and Salazar vs. Court of First Instance of Laguna, 40 decided six (6) months apart
in 1937, this Court already ruled that it is not necessary that the original of the will be attached to the
petition. In the first, it ruled: "The original of said document [the will] must be presented or sufficient
reasons given to justify the nonpresentation of said original and the acceptance of the copy or duplicate
thereof."

It is not likewise disputed that the original of the will was submitted in evidence and marked as Exhibit "F".
It forms part of the records of the special proceedings — a fact which private respondents admit in their
Omnibus Motion for Reconsideration.
 Granting for the sake of argument that the non-fulfillment of said promise constitutes fraud, such fraud is
not of the kind which provides sufficient justification for a motion for reconsideration or a petition for relief
from judgment under Rule 37 and Rule 38, respectively, of the Rules of Court, or even a separate action
for annulment of judgment. It is settled that for fraud to be invested with, sufficiency, it must be extrinsic or
collateral to the matters involved in the issues raised during the trial which resulted in such judgment. 48
In Our jurisdiction, the following courses of action are open to an aggrieved party to set aside or attack
the validity of a final judgment:
(1) Petition for relief under Rule 38 of the Rules of Court which must be filed within sixty (60) days after
learning of the decision, but not more than six (6) months after such decision is entered;
(2) By direct action, via a special civil action for certiorari, or by collateral attack, assuming that the
decision is void for want of jurisdiction;
(3) By an independent civil action under Article 1114 of the Civil Code, assuming that the decision was
obtained through fraud and Rule 38 can not be applied. 49
The probate judgment of 13 November 1972, long final and undisturbed by any attempt to unsettle it, had
inevitably passed beyond the reach of the court below to annul or set the same aside, by mere motion, on
the ground that the will is a forgery. Settled is the rule that the decree of probate is conclusive with
respect to the due execution of the will and it cannot be impugned on any of the grounds authorized by
law, except that of fraud, in any separate or independent action or proceeding. 50We wish also to advert to
the related doctrine which holds that final judgments are entitled to respect and should not be disturbed;
otherwise, there would be a wavering of trust in the courts. 51
The non-distribution of the estate, which is vigorously denied by the petitioners, is not a ground for the re-
opening of the testate proceedings. A seasonable motion for execution should have been filed. In De
Jesus vs.Daza, 57 this Court ruled that if the executor or administrator has possession of the share to be
delivered, the probate court would have jurisdiction within the same estate proceeding to order him to
transfer that possession to the person entitled thereto. This is authorized under Section 1, Rule 90 of the
Rules of Court. However, if no motion for execution is filed within the reglementary period, a separate
action for the recovery of the shares would be in order.
RULE 76. ALLOWANCE OR DISALLOWANCE OF WILL

CASES:

21. Leviste v. CA, G.R. No. L-29184, January 30, 1989 (169 SCRA 580)
The argument is devoid of merit. Article 1052 of the Civil Code does not apply to this case. That legal
provision protects the creditor of a repudiating heir. Petitioner is not a creditor of Rosa del Rosario. The
payment of his fees is contingent and dependent upon the successful probate of the holographic will.
Since the petition for probate was dismissed by the lower court, the contingency did not occur. Attorney
Leviste is not entitled to his fee.
Furthermore, Article 1052 presupposes that the obligor is an heir. Rosa del Rosario is not a legal heir of
the late Maxima C. Reselva. Upon the dismissal of her petition for probate of the decedent's will, she lost
her right to inherit any part of the latter's estate. There is nothing for the petitioner to accept in her name.
This Court had ruled in the case of Recto vs. Harden, 100 Phil. 1427, that "the contract (for contingent
attorney's fees) neither gives, nor purports to give, to the appellee (lawyer) any right whatsoever, personal
or real, in and to her (Mrs. Harden's) aforesaid share in the conjugal partnership. The amount thereof is
simply a basis for the computation of said fees."
The Court of Appeals did not err in dismissing the petition for mandamus, for while it is true that, as
contended by the petitioner, public policy favors the probate of a will, it does not necessarily follow that
every will that is presented for probate, should be allowed. The law lays down procedures which should
be observed and requisites that should be satisfied before a will may be probated. Those procedures and
requirements were not followed in this case resulting in the disallowance of the will. There being no valid
will, the motion to withdraw the probate petition was inconsequential.
Petitioner was not a party to the probate proceeding in the lower court. He had no direct interest in the
probate of the will. His only interest in the estate is an indirect interest as former counsel for a prospective
heir. In Paras vs. Narciso, 35 Phil. 244, We had occassion to rule that one who is only indirectly
interested in a will may not interfere in its probate.
 22. Rodriguez v. Borja, G.R. No. L-21993, June 21, 1966 (17 SCRA
418)
The jurisdiction of a probate court became vested upon the delivery thereto of the will, even if no petition
for its allowance was filed until later, because upon the will being deposited the court could, motu proprio,
have taken steps to fix the time and place for proving the will, and issued the corresponding notices
conformably to what is prescribed by section 3, Rule 76, of the Revised Rules of Court (Section 3, Rule
77, of the old Rules). The use of the disjunctive in the words "when a will is delivered to OR a petition for
the allowance of a will is filed" plainly indicates that the court may act upon the mere deposit therein of a
decedent's testament, even if no petition for its allowance is as yet filed. Where the petition for probate is
made after the deposit of the will, the petition is deemed to relate back to the time when the will was
delivered.
The power to settle decedents' estates is conferred by law upon all courts of first instance, and the
domicile of the testator only affects the venue but not the jurisdiction of the Court (In re Kaw Singco, 74
Phil. 239; Reyes vs. Diaz, 73 Phil. 484; Bernabe vs. Vergara, 73 Phil. 676).
Where the estate proceedings were initiated in the Bulacan Court of First Instance ahead of any other,
that court is entitled to assume jurisdiction to the exclusion of all other courts, even if it were a case of
wrong venue. (Sec.1, Rule 73, Revised Rules of Court)

Intestate succession is only subsidiary or subordinate to the testate, since intestacy only takes place in
the absence of a valid operative will. Only after final decision as to the nullity of testate succession could
an intestate succession be instituted. The institution of intestacy proceedings in Rizal may not thus
proceed while the probate of the purported will of Father Rodriguez is pending.

23. Maravilla v. Maravilla, G.R. No. L-23225, February 27, 1971 (37
SCRA 672)
The variation in the expressions used by the witness is the best evidence that he was being candid and
careful, and it is a clear badge of truthfulness rather than the reverse.

A will may be allowed even if some witnesses not remember having attested it, if other evidence
satisfactorily show due execution (V. Act 190, Section 632), and that failure of witness to identify his
signature does not bar probate.

It should be remembered, in this connection, that the test is not whether a witness did see the signing of
the will but whether he was in a position to see if he chose to do so.

In weighing the testimony of the attesting witnesses to a will, the statements of a competent attorney, who
has been charged with the responsibility of seeing to the proper execution of the instrument, is entitled to
greater weight than the testimony of a person casually called to participate in the act, supposing of course
that no motive is revealed that should induce the attorney to prevaricate. The reason is that the mind of
the attorney, being conversant with the requisites of proper execution of the instrument, is more likely to
become fixed on details, and he is more likely than other persons to retain those incidents in his memory.

To be of sound mind, it is not necessary that the testator be in full possession of all his reasoning faculties
or that his mind be wholly unbroken, unimpaired or unshattered by disease, injury or other cause.

24. Labrador v. CA, G.R. Nos. 83843-44, April 5, 1990 (184 SCRA 170)
The will has been dated in the hand of the testator himself in perfect compliance with Article 810. It is
worthy of note to quote the first paragraph of the second page of the holographic will, viz:
And this is the day in which we agreed that we are making the partitioning and assigning the respective
assignment of the said fishpond, and this being in the month of March, 17th day, in the year 1968, and
 this decision and or instruction of mine is the matter to be followed. And the one who made this writing is
no other than MELECIO LABRADOR, their father. (emphasis supplied) (p. 46,Rollo)
The law does not specify a particular location where the date should be placed in the will. The only
requirements are that the date be in the will itself and executed in the hand of the testator. These
requirements are present in the subject will.
Respondents are in error. The intention to show 17 March 1968 as the date of the execution of the will is
plain from the tenor of the succeeding words of the paragraph. As aptly put by petitioner, the will was not
an agreement but a unilateral act of Melecio Labrador who plainly knew that what he was executing was
a will. The act of partitioning and the declaration that such partitioning as the testator's instruction or
decision to be followed reveal that Melecio Labrador was fully aware of the nature of the estate property
to be disposed of and of the character of the testamentary act as a means to control the disposition of his
estate.
25. De Jesus v. De Jesus, G.R. No. L-38338, January 28, 1985 (134
SCRA 245)
This will not be the first time that this Court departs from a strict and literal application of the statutory
requirements regarding the due execution of Wills. We should not overlook the liberal trend of the Civil
Code in the manner of execution of Wills, the purpose of which, in case of doubt is to prevent intestacy.
Thus, the prevailing policy is to require satisfaction of the legal requirements in order to guard against
fraud and bad faith but without undue or unnecessary curtailment of testamentary privilege Icasiano v.
Icasiano, 11 SCRA 422). If a Will has been executed in substantial compliance with the formalities of the
law, and the possibility of bad faith and fraud in the exercise thereof is obviated, said Win should be
admitted to probate (Rey v. Cartagena 56 Phil. 282).
The purpose of the solemnities surrounding the execution of Wills has been expounded by this Court
in Abangan v. Abanga 40 Phil. 476, where we ruled that:
The object of the solemnities surrounding the execution of wills is to close the door against bad faith and
fraud, to avoid substitution of wills and testaments and to guaranty their truth and authenticity. ...
We have carefully reviewed the records of this case and found no evidence of bad faith and fraud in its
execution nor was there any substitution of Wins and Testaments. There is no question that the
holographic Will of the deceased Bibiana Roxas de Jesus was entirely written, dated, and signed by the
testatrix herself and in a language known to her. There is also no question as to its genuineness and due
execution. All the children of the testatrix agree on the genuineness of the holographic Will of their mother
and that she had the testamentary capacity at the time of the execution of said Will.
As a general rule, the "date" in a holographic Will should include the day, month, and year of its
execution. However, when as in the case at bar, there is no appearance of fraud, bad faith, undue
influence and pressure and the authenticity of the Will is established and the only issue is whether or not
the date "FEB./61" appearing on the holographic Will is a valid compliance with Article 810 of the Civil
Code, probate of the holographic Will should be allowed under the principle of substantial compliance.
26. Ajero v. Court of Appeals, G.R. No. 106720, September 15, 1994
(236 SCRA 488)
Section 9, Rule 76 of the Rules of Court provides the cases in which wills shall be disallowed. In the
same vein, Article 839 of the New Civil Code enumerates the grounds for disallowance of wills. These
lists are exclusive; no other grounds can serve to disallow a will. Thus, in a petition to admit a holographic
will to probate, the only issues to be resolved are: (1) whether the instrument submitted is, indeed, the
decedent's last will and testament; (2) whether said will was executed in accordance with the formalities
prescribed by law; (3) whether the decedent had the necessary testamentary capacity at the time the will
was executed; and, (4) whether the execution of the will and its signing were the voluntary acts of the
decedent.
We reiterate what we held in Abangan vs. Abangan, 40 Phil. 476, 479 (1919), that:
The object of the solemnities surrounding the execution of wills is to close the door against bad faith and
fraud, to avoid substitution of wills and testaments and to guaranty their truth and authenticity. Therefore,
the laws on this subject should be interpreted in such a way as to attain these primordial ends. But, on the
other hand, also one must not lose sight of the fact that it is not the object of the law to restrain and curtail
the exercise of the right to make a will. So when an interpretation already given assures such ends, any
 other interpretation whatsoever, that adds nothing but demands more requisites entirely unnecessary,
useless and frustrative of the testator's last will, must be disregarded.
For purposes of probating non-holographic wills, these formal solemnities include the subscription,
attestation, and acknowledgment requirements under Articles 805 and 806 of the New Civil Code.
In the case of holographic wills, on the other hand, what assures authenticity is the requirement that they
be totally autographic or handwritten by the testator himself, 7 as provided under Article 810 of the New
Civil Code, thus:
A person may execute a holographic will which must be entirely written, dated, and signed by the hand of
the testator himself. It is subject to no other form, and may be made in or out of the Philippines, and need
not be witnessed. (Emphasis supplied.)
Failure to strictly observe other formalities will not result in the disallowance of a holographic will that is
unquestionably handwritten by the testator.
A reading of Article 813 of the New Civil Code shows that its requirement affects the validity of the
dispositions contained in the holographic will, but not its probate. If the testator fails to sign and date
some of the dispositions, the result is that these dispositions cannot be effectuated. Such failure,
however, does not render the whole testament void.
Likewise, a holographic will can still be admitted to probate, notwithstanding non-compliance with the
provisions of Article 814. Thus, unless the unauthenticated alterations, cancellations or insertions were
made on the date of the holographic will or on testator's signature, their presence does not invalidate the
will itself. The lack of authentication will only result in disallowance of such changes.
It is also proper to note that the requirements of authentication of changes and signing and dating of
dispositions appear in provisions (Articles 813 and 814) separate from that which provides for the
necessary conditions for the validity of the holographic will (Article 810). The distinction can be traced to
Articles 678 and 688 of the Spanish Civil Code, from which the present provisions covering holographic
wills are taken. This separation and distinction adds support to the interpretation that only the
requirements of Article 810 of the New Civil Code — and not those found in Articles 813 and 814 of the
same Code — are essential to the probate of a holographic will.
As a general rule, courts in probate proceedings are limited to pass only upon the extrinsic validity of the
will sought to be probated. However, in exceptional instances, courts are not powerless to do what the
situation constrains them to do, and pass upon certain provisions of the will. In the case at bench,
decedent herself indubitably stated in her holographic will that the Cabadbaran property is in the name of
her late father, John H. Sand (which led oppositor Dr. Jose Ajero to question her conveyance of the same
in its entirety). Thus, as correctly held by respondent court, she cannot validly dispose of the whole
property, which she shares with her father's other heirs.
27. Kalaw v. Relova, G.R. No. L-40207 September 28, 1984 (132 SCRA
237)
Ordinarily, when a number of erasures, corrections, and interlineations made by the testator in a
holographic Will have not been noted under his signature, . . . the Will is not thereby invalidated as a
whole, but at most only as respects the particular words erased, corrected or interlined. Manresa gave an
identical commentary when he said "la omission de la salvedad no anula el testamento, segun la regla de
jurisprudencia establecida en la sentencia de 4 de Abril de 1985."
However, when as in this case, the holographic Will in dispute had only one substantial provision, which
was altered by substituting the original heir with another, but which alteration did not carry the requisite of
full authentication by the full signature of the testator, the effect must be that the entire Will is voided or
revoked for the simple reason that nothing remains in the Will after that which could remain valid. To state
that the Will as first written should be given efficacy is to disregard the seeming change of mind of the
testatrix. But that change of mind can neither be given effect because she failed to authenticate it in the
manner required by law by affixing her full signature,
The ruling in Velasco, supra, must be held confined to such insertions, cancellations, erasures or
alterations in a holographic Will, which affect only the efficacy of the altered words themselves but not the
essence and validity of the Will itself. As it is, with the erasures, cancellations and alterations made by the
testatrix herein, her real intention cannot be determined with certitude.

28. Vda. de Perez v. Tolete, G.R. No. 76714, June 2, 1994.

The respective wills of the Cunanan spouses, who were American citizens, will only be effective in this
country upon compliance with the following provision of the Civil Code of the Philippines:
Art. 816. The will of an alien who is abroad produces effect in the Philippines if made with the formalities
prescribed by the law of the place in which he resides, or according to the formalities observed in his
country, or in conformity with those which this Code prescribes.
Thus, proof that both wills conform with the formalities prescribed by New York laws or by Philippine laws
is imperative.
The evidence necessary for the reprobate or allowance of wills which have been probated outside of the
Philippines are as follows: (1) the due execution of the will in accordance with the foreign laws; (2) the
testator has his domicile in the foreign country and not in the Philippines; (3) the will has been admitted to
probate in such country; (4) the fact that the foreign tribunal is a probate court, and (5) the laws of a
foreign country on procedure and allowance of wills (III Moran Commentaries on the Rules of Court, 1970
ed., pp. 419-429; Suntay v. Suntay, 95 Phil. 500 [1954]; Fluemer v. Hix, 54 Phil. 610 [1930]).
The necessity of presenting evidence on the foreign laws upon which the probate in the foreign country is
based is impelled by the fact that our courts cannot take judicial notice of them (Philippine Commercial
and Industrial Bank v. Escolin, 56 SCRA 266 [1974]).
Petitioner must have perceived this omission as in fact she moved for more time to submit the pertinent
procedural and substantive New York laws but which request respondent Judge just glossed over. While
the probate of a will is a special proceeding wherein courts should relax the rules on evidence, the goal is
to receive the best evidence of which the matter is susceptible before a purported will is probated or
denied probate (Vda. de Ramos v. Court of Appeals, 81 SCRA 393 [1978]).
There is merit in petitioner’s insistence that the separate wills of the Cunanan spouses should be
probated jointly. Respondent Judge’s view that the Rules on allowance of wills is couched in singular
terms and therefore should be interpreted to mean that there should be separate probate proceedings for
the wills of the Cunanan spouses is too literal and simplistic an approach. Such view overlooks the
provisions of Section 2, Rule 1 of the Revised Rules of Court, which advise that the rules shall be
"liberally construed in order to promote their object and to assist the parties in obtaining just, speedy, and
inexpensive determination of every action and proceeding."
A literal application of the Rules should be avoided if they would only result in the delay in the
administration of justice (Acain v. Intermediate Appellate Court, 155 SCRA 100 [1987]; Roberts v.
Leonidas, 129 SCRA 33 [1984]).
What the law expressly prohibits is the making of joint wills either for the testator’s reciprocal benefit or for
the benefit of a third person (Civil Code of the Philippines, Article 818). In the case at bench, the Cunanan
spouses executed separate wills. Since the two wills contain essentially the same provisions and pertain
to property which in all probability are conjugal in nature, practical considerations dictate their joint
probate. As this Court has held a number of times, it will always strive to settle the entire controversy in a
single proceeding leaving no root or branch to bear the seeds of future litigation (Motoomull v. Dela Paz,
187 SCRA 743 [1990]).
The rule that the court having jurisdiction over the reprobate of a will shall "cause notice thereof to be
given as in case of an original will presented for allowance" (Revised Rules of Court, Rule 27, Section 2)
means that with regard to notices, the will probated abroad should be treated as if it were an "original will"
or a will that is presented for probate for the first time. Accordingly, compliance with Sections 3 and 4 of
Rule 76, which require publication and notice by mail or personally to the "known heirs, legatees, and
devisees of the testator resident in the Philippines" and to the executor, if he is not the petitioner, are
required.
This petition cannot be completely resolved without touching on a very glaring fact — petitioner has
always considered herself the sole heir of
Dr. Evelyn Perez Cunanan and because she does not consider herself an heir of Dr. Jose F. Cunanan,
she noticeably failed to notify his heirs of the filing of the proceedings. Thus, even in the instant petition,
she only impleaded respondent Judge, forgetting that a judge whose order is being assailed is merely a
nominal or formal party (Calderon v. Solicitor General, 215 SCRA 876 [1992]).