2. ID.; ID.; ID.; ID.; NUMBER OF WITNESSES REQUIRED.
—
FIRST DIVISION
[G.R. No. L-58509. December 7, 1982.]
IN THE MATTER OF THE PETITION TO APPROVE THE
WILL OF RICARDO B. BONILLA, deceased, MARCELA
RODELAS, petitioner-appellant, vs. AMPARO ARANZA,
ET AL., oppositors-appellees, ATTY. LORENZO
SUMULONG, intervenor.
Luciano A. Joson for petitioner-appellant.
Cesar C. Paralejo for oppositor-appellee.
SYNOPSIS
The probate court ordered the dismissal of appellant's
petition for the allowance of the holographic will of deceased
Ricardo B. Bonilla on the ground that the alleged photostatic copy
of the will which was presented for probate, cannot stand in lieu of
the lost original, for the law regards the document itself as the
material proof of the authenticity of the said will, citing the case of
Gan vs. Yap, 104 Phil. 509, 522. On appeal, the only question is
whether a holographic will which was lost or cannot be found can
be proved by means of a photostatic copy.
The Supreme Court, in setting aside the lower court's
order of dismissal, held that a photostatic or xerox copy of a lost or
destroyed holographic will may be admitted because the
authenticity of the handwriting of the deceased can he determined
by the probate court, as comparison can be made with the
standard writings of the testator.
RELOVA, J p:
Assailed order of dismissal, set aside.
SYLLABUS
1. CIVIL LAW; SUCCESSION; HOLOGRAPHIC WILLS;
PROBATE THEREOF; DEFINITION. — Pursuant to Article 811 of the
Civil Code, probate of holographic wills is the allowance of the will by the
Court after its due execution has been proved.
The probate of holographic wills may be uncontested or not. If
uncontested, at least one identifying witness is required and, if no
witness is available, experts may be resorted to. If contested, at least
three identifying witnesses are required.
3. ID.; ID.; ID.; ID.; NOT POSSIBLE WHERE ORIGINAL WILL
HAS BEEN LOST OR DESTROYED AND NO OTHER COPY IS
AVAILABLE; REASON. — If the holographic will has been lost or
destroyed and no other copy is available, the will cannot be probated
because the best and only evidence is the handwriting of the testator in
said will. It is necessary that there be a comparison between sample
handwritten statements of the testator and the handwritten will.
4. ID.; ID.; ID.; ID.; ID.; PHOTOSTATIC COPY OR XEROX
COPY MAY BE ALLOWED; CASE AT BAR. — A photostatic copy or
xerox copy of the holographic will may be allowed because comparison
can be made with the standard writings of the testator. In the case of
Gan vs. Yap, 104 Phil. 509, the Court ruled that "the execution and the
contents of a lost or destroyed holographic will may not be proved by the
bare testimony of witnesses who have seen and/or read such will. The
will itself must be presented; otherwise, it shall produce no effect. The
law regards the document itself as material proof of authenticity." But, in
Footnote 8 of said decision, it says that "Perhaps it may be proved by a
photographic or photostatic copy. Even a mimeographed or carbon copy;
or by other similar means, if any, whereby the authenticity of the
handwriting of the deceased may be exhibited and tested before the
probate court." Evidently, the photostatic or xerox copy of the lost or
destroyed holographic will may be admitted because then the
authenticity of the handwriting of the deceased can be determined by the
probate court.
DECISION
This case was certified to this Tribunal by the Court of
Appeals for final determination pursuant to Section 3, Rule 50 of
the Rules of Court.
As found by the Court of Appeals:
". . . On January 11, 1977, appellant filed a
petition with the Court of First Instance of Rizal for
the probate of the holographic will of Ricardo B.
Bonilla and the issuance of letters testamentary in
her favor. The petition, docketed as Sp. Proc. No.
8432, was opposed by the appellees Amparo
Aranza Bonilla, Wilferine Bonilla Treyes, Expedita
Bonilla Frias and Ephraim Bonilla on the following
grounds:
"(1) Appellant was estopped from claiming
that the deceased left a will by failing to produce the
will within twenty days of the death of the testator as
required by Rule 75, section 2 of the Rules of Court:
"(2) The alleged copy of the alleged
holographic will did not contain a disposition of
property after death and was not intended to take
effect after death, and therefore it was not a will;
"(3) The alleged holographic will itself, and
not an alleged copy thereof, must be produced,
otherwise it would produce no effect, as held in Gan
v. Yap, 104 Phil. 509; and
"(4) The deceased did not leave any will,
holographic or otherwise, executed and attested as
required by law.
"The appellees likewise moved for the
consolidation of the case with another case (Sp.
Proc. No. 8275). Their motion was granted by the
court in an order dated April 4, 1977.
"On November 13, 1978, following the
consolidation of the cases, the appellees moved
again to dismiss the petition for the probate of the
will. They argued that:
"(1) The alleged holographic was not a last
will but merely an instruction as to the management
and improvement of the schools and colleges
founded by decedent Ricardo B. Bonilla; and
"(2) Lost or destroyed holographic wills
cannot be proved by secondary evidence unlike
ordinary wills.
"Upon opposition of the appellant, the
motion to dismiss was denied by the court in its
order of February 23, 1979.
"The appellees then filed a motion for
reconsideration on the ground that the order was
contrary to law and settled pronouncements and
rulings of the Supreme Court, to which the appellant
in turn filed an opposition. On July 23, 1979, the
court set aside its order of February 23, 1979 and
dismissed the petition for the probate of the will of
Ricardo B. Bonilla. The court said:
'. . . It is our considered opinion that
once the original copy of the holographic will
is lost, a copy thereof cannot stand in lieu of
the original.
'In the case of Gan vs. Yap, 104
Phil. 509, 522, the Supreme Court held that
'in the matter of holographic wills the law, it
is reasonable to suppose, regards the
document itself as the material proof of
authenticity of said wills.
'MOREOVER, this Court notes that
the alleged holographic will was executed
on January 25, 1962 while Ricardo B.
Bonilla died on May 13, 1976. In view of the
lapse of more than 14 years from the time of
the execution of the will to the death of the
decedent, the fact that the original of the will
could not be located shows to our mind that
the decedent had discarded before his
death his allegedly missing Holographic
Will.
Appellant's motion for reconsideration was denied. Hence,
an appeal to the Court of Appeals in which it is contended that the
dismissal of appellant's petition is contrary to law and well-settled
jurisprudence.
On July 7, 1980, appellees moved to forward the case to
this Court on the ground that the appeal does not involve question
of fact and alleged that the trial court committed the following
assigned errors:
"I. THE LOWER COURT ERRED IN
HOLDING THAT A LOST HOLOGRAPHIC WILL
MAY NOT BE PROVED BY A COPY THEREOF;
"II. THE LOWER COURT ERRED IN
HOLDING THAT THE DECEDENT HAS
DISCARDED BEFORE HIS DEATH THE MISSING
HOLOGRAPHIC WILL;
"III. THE LOWER COURT ERRED IN
DISMISSING APPELLANT'S WILL."
 The only question here is whether a holographic will which
was lost or can not be found can be proved by means of a
photostatic copy. Pursuant to Article 811 of the Civil Code, probate
of holographic wills is the allowance of the will by the court after its
due execution has been proved. The probate may be uncontested
or not. If uncontested, at least one identifying witness is required
and, if no witness is available, experts may be resorted to. If
contested, at least three identifying witnesses are required.
However, if the holographic will has been lost or destroyed and no
other copy is available, the will can not be probated because the
best and only evidence is the handwriting of the testator in said
will. It is necessary that there be a comparison between sample
handwritten statements of the testator and the handwritten will.
But, a photostatic copy or xerox copy of the holographic will may
be allowed because comparison can be made with the standard
writings of the testator. In the case of Gan vs. Yap, 104 Phil. 509,
the Court ruled that "the execution and the contents of a lost or
destroyed holographic will may not be proved by the bare
testimony of witnesses who have seen and/or read such will. The
will itself must be presented; otherwise, it shall produce no effect.
The law regards the document itself as material proof of
authenticity." But, in Footnote 8 of said decision, it says that
"Perhaps it may be proved by a photographic or photostatic copy.
Even a mimeographed or carbon copy; or by other similar means,
if any, whereby the authenticity of the handwriting of the deceased
may be exhibited and tested before the probate court." Evidently,
the photostatic or xerox copy of the lost or destroyed holographic
will may be admitted because then the authenticity of the
handwriting of the deceased can be determined by the probate
court.
WHEREFORE, the order of the lower court dated October
3, 1979, denying appellant's motion for reconsideration dated
August 9, 1979, of the Order dated July 23, 1979, dismissing her
petition to approve the will of the late Ricardo B. Bonilla, is hereby
SET ASIDE.
SO ORDERED.
Teehankee, Actg. C.J., Melencio-Herrera, Plana,
Vasquez and Gutierrez, Jr., JJ., concur.
||| (In Re: Bonilla v. Aranza, G.R. No. L-58509, [December 7, 1982], 204
PHIL 402-407)
SECOND DIVISION
[G.R. No. 106720. September 15, 1994.]
SPOUSES ROBERTO AND THELMA
AJERO, petitioners, vs. THE COURT OF APPEALS AND
CLEMENTE SAND, respondents.
DECISION
PUNO, J p:
This is an appeal by certiorari from the Decision of the Court of
Appeals 1 in CA-G.R. CV No. 22840, dated March 30, 1992, the dispositive
portion of which reads:
"PREMISES CONSIDERED, the questioned
decision of November 19, 1988 of the trial court is hereby
REVERSED and SET ASIDE, and the petition for probate
is hereby DISMISSED. No costs."
The earlier Decision was rendered by the RTC of Quezon City, Branch
94, 2 in Sp. Proc. No. Q-37171, and the instrument submitted for probate
is the holographic will of the late Annie Sand, who died on November 25,
1982.
In the will, decedent named as devisees, the following: petitioners
Roberto and Thelma Ajero, private respondent Clemente Sand, Meriam S.
Arong, Leah Sand, Lilia Sand, Edgar Sand, Fe Sand, Lisa S. Sand, and Dr.
Jose Ajero, Sr., and their children. prLL
On January 20, 1983, petitioners instituted Sp. Proc. No. Q-37171,
for allowance of decedent's holographic will. They alleged that at the time of
its execution, she was of sound and disposing mind, not acting under duress,
fraud or undue influence, and was in every respect capacitated to dispose of
her estate by will.
Private respondent opposed the petition on the grounds that: neither
the testament's body nor the signature therein was in decedent's handwriting;
it contained alterations and corrections which were not duly signed by
decedent; and, the will was procured by petitioners through improper
pressure and undue influence. The petition was likewise opposed by Dr.
Jose Ajero. He contested the disposition in the will of a house and lot located
in Cabadbaran, Agusan Del Norte. He claimed that said property could not
be conveyed by decedent in its entirety, as she was not its sole owner.
 Notwithstanding the oppositions, the trial court admitted the
decedent's holographic will to probate. It found, inter alia:
"Considering then that the probate proceedings
herein must decide only the question of identity of the will,
its due execution and the testamentary capacity of the
testatrix, this probate court finds no reason at all for the
disallowance of the will for its failure to comply with the
formalities prescribed by law nor for lack of testamentary
capacity of the testatrix.
"For one, no evidence was presented to show that
the will in question is different from the will actually
executed by the testatrix. The only objections raised by the
oppositors . . . are that the will was not written in the
handwriting of the testatrix which properly refers to the
question of its due execution, and not to the question of
identity of will. No other will was alleged to have been
executed by the testatrix other than the will herein
presented. Hence, in the light of the evidence adduced,
the identity of the will presented for probate must be
accepted, i.e., the will submitted in Court must be deemed
to be the will actually executed by the testatrix.
"xxx xxx xxx
"While the fact that it was entirely written, dated
and signed in the handwriting of the testatrix has been
disputed, the petitioners, however, have satisfactorily
shown in Court that the holographic will in question was
indeed written entirely, dated and signed in the handwriting
of the testatrix. Three (3) witnesses who have convincingly
shown knowledge of the handwriting of the testatrix have
been presented and have explicitly and categorically
identified the handwriting with which the holographic will in
question was written to be the genuine handwriting and
signature of the testatrix. Given then the aforesaid
evidence, the requirement of the law that the holographic
will be entirely written, dated and signed in the handwriting
of the testatrix has been complied with.
"xxx xxx xxx
"As to the question of the testamentary capacity of
the testatrix, (private respondent) Clemente Sand himself
has testified in Court that the testatrix was completely in
her sound mind when he visited her during her birthday
celebration in 1981, at or around which time the
holographic will in question was executed by the testatrix.
To be of sound mind, it is sufficient that the testatrix, at the
time of making the will, knew the value of the estate to be
disposed of, the proper object of her bounty, and the
character of the testamentary act . . . The will itself shows
that the testatrix even had detailed knowledge of the
nature of her estate. She even identified the lot number
and square meters of the lots she had conveyed by will.
The objects of her bounty were likewise identified
explicitly. And considering that she had even written a
nursing book which contained the law and jurisprudence
on will and succession, there is more than sufficient
showing that she knows the character of the testamentary
act.
"In this wise, the question of identity of the will, its
due execution and the testamentary capacity of the
testatrix has to be resolved in favor of the allowance of
probate of the will submitted herein.
"Likewise, no evidence was presented to show
sufficient reason for the disallowance of herein holographic
will. While it was alleged that the said will was procured by
undue and improper pressure and influence on the part of
the beneficiary or of some other person, the evidence
adduced have not shown any instance where improper
pressure or influence was exerted on the testatrix. (Private
respondent) Clemente Sand has testified that the testatrix
was still alert at the time of the execution of the will, i.e., at
or around the time of her birth anniversary celebration in
1981. It was also established that she is a very intelligent
person and has a mind of her own. Her independence of
character and to some extent, her sense of superiority,
which has been testified to in Court, all show the
unlikelihood of her being unduly influenced or improperly
pressured to make the aforesaid will. It must be noted that
the undue influence or improper pressure in question
herein only refer to the making of a will and not as to the
specific testamentary provisions therein which is the
proper subject of another proceeding. Hence, under the
circumstances, this Court cannot find convincing reason
for the disallowance of the will herein.
"Considering then that it is a well-established
doctrine in the law on succession that in case of doubt,
testate succession should be preferred over intestate
succession, and the fact that no convincing grounds were
 presented and proven for the disallowance of the
holographic will of the late Annie Sand, the aforesaid will
submitted herein must be admitted to
probate." 3 (Emphasis omitted.)
On appeal, said Decision was reversed, and the petition for probate
of decedent's will was dismissed. The Court of Appeals found that, "the
holographic will fails to meet the requirements for its validity." 4 It held that
the decedent did not comply with Articles 813 and 814 of the New Civil Code,
which read, as follows:
"Article 813: When a number of dispositions
appearing in a holographic will are signed without being
dated, and the last disposition has a signature and date,
such date validates the dispositions preceding it, whatever
be the time of prior dispositions."
"Article 814: In case of insertion, cancellation,
erasure or alteration in a holographic will, the testator must
authenticate the same by his full signature."
It alluded to certain dispositions in the will which were either unsigned
and undated, or signed but not dated. It also found that the erasures,
alterations and cancellations made thereon had not been authenticated
by decedent. llcd
Thus, this appeal which is impressed with merit.
Section 9, Rule 76 of the Rules of Court provides that wills shall be
disallowed in any of the following cases:
"(a) If not executed and attested as required by
law;
(b) If the testator was insane, or otherwise
mentally incapable to make a will, at the time of its
execution;
(c) If it was executed under duress, or the
influence of fear, or threats;
(d) If it was procured by undue and improper
pressure and influence, on the part of the beneficiary, or of
some other person for his benefit;
(e) If the signature of the testator was procured by
fraud or trick, and he did not intend that the instrument
should be his will at the time of fixing his signature
thereto."
In the same vein, Article 839 of the New Civil Code reads:
"Article 839: The will shall be disallowed in any of
the following cases:
(1) If the formalities required by law have not been
complied with;
(2 If the testator was insane, or otherwise mentally
incapable of making a will, at the time of its execution;
(3) If it was executed through force or under
duress, or the influence of fear, or threats;
(4) If it was procured by undue and improper
pressure and influence, on the part of the beneficiary or of
some other person;
(5) If the signature of the testator was procured by
fraud;
(6) If the testator acted by mistake or did not
intend that the instrument he signed should be his will at
the time of affixing his signature thereto."
These lists are exclusive; no other grounds can serve to disallow a
will. 5 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 decedents. 6
In the case at bench, respondent court held that the holographic will
of Anne Sand was not executed in accordance with the formalities prescribed
by law. It held that Articles 813 and 814 of the New Civil Code, ante, were
not complied with, hence, it disallowed the probate of said will. This is
erroneous. cdrep
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. In the
case of Kalaw vs. Relova,132 SCRA 237, 242 (1984), this Court held: cdrep
"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 omision de la salvedad no
anula el testamento, segun la regla de jurisprudencia
establecida en la sentencia de 4 de Abril de
1895.'" 8 (Emphasis omitted.)
Thus, unless the unauthenticated alterations, cancellations or
insertions were made on the date of the holographic will or on testator's
signature, 9 their presence does not invalidate the will itself. 10 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. They read as
follows:
"Article 678: A will is called holographic when the
testator writes it himself in the form and with the requisites
required in Article 688.
"Article 688: Holographic wills may be executed
only by persons of full age.
"In order that the will be valid it must be drawn on
stamped paper corresponding to the year of its execution,
written in its entirety by the testator and signed by him, and
must contain a statement of the year, month and day of its
execution.
"If it should contain any erased, corrected, or
interlined words, the testator must identify them over his
signature.
"Foreigners may execute holographic wills in their
own language."
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.
The Court of Appeals further held that decedent Annie Sand could
not validly dispose of the house and lot located in Cabadbaran, Agusan del
Norte, in its entirety. This is correct and must be affirmed. LexLib
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. 11 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.
IN VIEW WHEREOF, the instant petition is GRANTED. The Decision
of the Court of Appeals in CA-G.R. CV No. 22840, dated March 30, 1992, is
REVERSED and SET ASIDE, except with respect to the invalidity of the
disposition of the entire house and lot in Cabadbaran, Agusan del Norte. The
Decision of the Regional Trial Court of Quezon City, Branch 94 in Sp. Proc.
No. Q-37171, dated November 19, 1988, admitting to probate the
holographic will of decedent Annie Sand, is hereby REINSTATED, with the
above qualification as regards the Cabadbaran property. No costs. LexLib
SO ORDERED.
Narvasa, C.J., Padilla, Regalado and Mendoza, JJ., concur.
||| (Spouses Ajero v. Court of Appeals, G.R. No. 106720, [September 15,
1994], 306 PHIL 500-510)
FIRST DIVISION
[G.R. No. L-62952. October 9, 1985.]
SOFIA J. NEPOMUCENO, petitioner, vs. THE
HONORABLE COURT OF APPEALS, RUFINA GOMEZ,
OSCAR JUGO ANG CARMELITA JUGO, respondents.
DECISION
GUTIERREZ, JR., J p:
This is a petition for certiorari to set aside that portion of the
decision of the respondent Court of Appeals (now Intermediate Appellate
Court) dated June 3, 1982, as amended by the resolution dated August
10, 1982, declaring as null and void the devise in favor of the petitioner
and the resolution dated December 28, 1982 denying petitioner's motion
for reconsideration.
Martin Jugo died on July 16, 1974 in Malabon, Rizal. He left a
last Will and Testament duly signed by him at the end of the Will on page
three and on the left margin of pages 1, 2 and 4 thereof in the presence
of Celestina Alejandro, Myrna C. Cortez, and Leandro Leaño, who in
turn, affixed their signatures below the attestation clause and on the left
margin of pages 1, 2 and 4 of the Will in the presence of the testator and
of each other and the Notary Public. The Will was acknowledged before
the Notary Public Romeo Escareal by the testator and his three attesting
witnesses.
In the said Will, the testator named and appointed herein
petitioner Sofia J. Nepomuceno as his sole and only executor of his
estate. It is clearly stated in the Will that the testator was legally married
to a certain Rufina Gomez by whom he had two legitimate children,
Oscar and Carmelita, but since 1952, he had been estranged from his
lawfully wedded wife and had been living with petitioner as husband and
wife. In fact, on December 5, 1952, the testator Martin Jugo and the
petitioner herein, Sofia J. Nepomuceno were married in Victoria, Tarlac
before the Justice of the Peace. The testator devised to his forced heirs,
namely, his legal wife Rufina Gomez and his children Oscar and
Carmelita his entire estate and the free portion thereof to herein
petitioner. The Will reads in part: LibLex
"Art. III. That I have the following legal heirs,
namely: my aforementioned legal wife, Rufina Gomez, and
our son, Oscar, and daughter Carmelita, both surnamed
Jugo, whom I declare and admit to be legally and properly
entitled to inherit from me; that while I have been
estranged from my above-named wife for so many years, I
cannot deny that I was legally married to her or that we
have been separated up to the present for reasons and
justifications known fully well by them;
"Art IV. That since 1952, I have been living,
as man and wife, with one Sofia J. Nepomuceno, whom I
declare and avow to be entitled to may love and affection,
for all the things which she has done for me, now and in
the past; that while Sofia J. Nepomuceno has with my full
knowledge and consent, did comport and represent myself
as her own husband, in truth and in fact, as well as in the
eyes of the law, I could not bind her to me in the holy
bonds of matrimony because of my aforementioned
previous marriage;"
On August 21, 1974, the petitioner filed a petition for the probate
of the last Will and Testament of the deceased Martin Jugo in the Court
of First Instance of Rizal, Branch XXXIV, Caloocan City and asked for
the issuance to her of letters testamentary.
On May 13, 1975, the legal wife of the testator, Rufina Gomez
and her children filed an opposition alleging inter alia that the execution
of the Will was procured by undue and improper influence on the part of
the petitioner; that at the time of the execution of the Will, the testator
was already very sick and that petitioner having admitted her living in
concubinage with the testator, she is wanting in integrity and thus letters
testamentary should not be issued to her.
On January 6, 1976, the lower court denied the probate of the
Will on the ground that as the testator admitted in his Will to cohabiting
with the petitioner from December 1952 until his death on July 16, 1974,
the Will's admission to probate will be an idle exercise because on the
face of the Will, the invalidity of its intrinsic provisions is evident.
The petitioner appealed to the respondent-appellate court.
On June 2, 1982, the respondent court set aside the decision of
the Court of First Instance of Rizal denying the probate of the Will. The
respondent court declared the Will to be valid except that the devise in
favor of the petitioner is null and void pursuant to Article 739 in relation
with Article 1028 of the Civil Code of the Philippines. The dispositive
portion of the decision reads:
"WHEREFORE, the decision a quo is hereby set
aside, the will in question declared valid except the devise
in favor of the appellant which is declared null and void.
The properties so devised are instead passed on in
intestacy to the appellant in equal shares, without
pronouncement as to costs."
On June 15, 1982, oppositors Rufina Gomez and her children
filed a "Motion for Correction of Clerical Error" praying that the word
"appellant" in the last sentence of the dispositive portion of the decision
be changed to "appellees" so as to read: "The properties so devised are
instead passed on intestacy to theappellees in equal shares, without
pronouncement as to costs." The motion was granted by the respondent
court on August 10, 1982.
On August 23, 1982, the petitioner filed a motion for
reconsideration. This was denied by the respondent court in a resolution
dated December 28, 1982. Cdpr
The main issue raised by the petitioner is whether or not the
respondent court acted in excess of its jurisdiction when after declaring
the last Will and Testament of the deceased Martin Jugo validly drawn, it
went on to pass upon the intrinsic validity of the testamentary provision in
favor of herein petitioner.
The petitioner submits that the validity of the testamentary
provision in her favor cannot be passed upon and decided in the probate
proceedings but in some other proceedings because the only purpose of
the probate of a Will is to establish conclusively as against everyone that
a Will was executed with the formalities required by law and that the
testator has the mental capacity to execute the same. The petitioner
further contends that even if the provisions of paragraph 1 of Article 739
of the Civil Code of the Philippines were applicable, the declaration of its
nullity could only be made by the proper court in a separate action
brought by the legal wife for the specific purpose of obtaining a
declaration of the nullity of the testamentary provision in the Will in favor
of the person with whom the testator was allegedly guilty of adultery or
concubinage.
The respondents on the other hand contend that the fact that the
last Will and Testament itself expressly admits indubitably on its face the
meretricious relationship between the testator and the petitioner and the
fact that petitioner herself initiated the presentation of evidence on her
alleged ignorance of the true civil status of the testator, which led private
respondents to present contrary evidence, merits the application of the
doctrine enunciated in Nuguid v. Felix Nuguid, et al. (17 SCRA 449)
and Felix Balanay, Jr. v. Hon. Antonio Martinez, et al (G.R. No. L-39247,
June 27, 1975). Respondents also submit that the admission of the
testator of the illicit relationship between him and the petitioner put in
issue the legality of the devise.
We agree with the respondents.
The respondent court acted within its jurisdiction when after
declaring the Will to be validly drawn, it went on to pass upon the intrinsic
validity of the Will and declared the devise in favor of the petitioner null
and void.
The general rule is that in probate proceedings, the court's area
of inquiry is limited to an examination and resolution of the extrinsic
validity of the Will. The rule is expressed thus: LLphil
xxx xxx xxx
". . . It is elementary that a probate decree finally
and definitively settles all questions concerning capacity of
the testator and the proper execution and witnessing of his
last Will and testament, irrespective of whether its
provisions are valid and enforceable or otherwise."
(Fernandez v. Dimagiba, 21 SCRA 428).
"The petition below being for the probate of a Will,
the court's area of inquiry is limited to the extrinsic validity
thereof. The testator's testamentary capacity and the
compliance with the formal requisites or solemnities
prescribed by law are the only questions presented for the
resolution of the court. Any inquiry into theintrinsic validity
or efficacy of the provisions of the will or the legality of any
devise or legacy is premature.
 xxx xxx xxx
"True or not, the alleged sale is no ground for the
dismissal of the petition for probate. Probate is one thing;
the validity of the testamentary provisions is another. The
first decides the execution of the document and the
testamentary capacity of the testator; the second relates to
descent and distribution." (Sumilang v. Ramagosa 21
SCRA 1369).
xxx xxx xxx
"To establish conclusively as against everyone,
and once for all, the facts that a will was executed with the
formalities required by law and that the testator was in a
condition to make a will, is the only purpose of the
proceedings under the new code for the probate of a will.
(Sec. 625). The judgment in such proceedings determines
and can determine nothing more. In them the court has no
power to pass upon the validity of any provisions made in
the will. It can not decide, for example, that a certain
legacy is void and another one valid. . . ." (Castañeda v.
Alemany, 3 Phil. 426)
The rule, however, is not inflexible and absolute. Given
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.
In Nuguid v. Nuguid (17 SCRA 449) cited by the trial court, the
testator instituted the petitioner as universal heir and completely
preterited her surviving forced heirs. A will of this nature, no matter how
valid it may appear extrinsically, would be null and void. Separate or
latter proceedings to determine the intrinsic validity of the testamentary
provisions would be superfluous.
Even before establishing the formal validity of the will, the Court
in Balanay, Jr. v. Martinez (64 SCRA 452) passed upon the validity of its
intrinsic provisions.
Invoking "practical considerations", we stated:
"The basic issue is whether the probate court
erred in passing upon the intrinsic validity of the will,
before ruling on its allowance or formal validity, and in
declaring it void.
"We are of the opinion that in view of certain
unusual provisions of the will, which are of dubious
legality, and because of the motion to withdraw the petition
for probate (which the lower court assumed to have been
filed with the petitioner's authorization), 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 (Nuguid v. Nuguid, 64 O.G. 1527,
17 SCRA 449. Compare with Sumilang v. Ramagosa, L-
23135, December 26, 1967, 21 SCRA 1369; Cacho v.
Udan, L-19996, April 30, 1965, 13 SCRA 693).
There appears to be no more dispute at this time over the
extrinsic validity of the Will. Both parties are agreed that the Will of Martin
Jugo was executed with all the formalities required by law and that the
testator had the mental capacity to execute his Will. The petitioner states
that she completely agrees with the respondent court when in resolving
the question of whether or not the probate court correctly denied the
probate of Martin Jugo's last Will and Testament, it ruled:
"This being so, the will is declared validly drawn."
(Page 4, Decision, Annex A of Petition.)
On the other hand the respondents pray for the affirmance of the
Court of Appeals' decision in toto.
The only issue, therefore, is the jurisdiction of the respondent
court to declare the testamentary provision in favor of the petitioner as
null and void.
We sustain the respondent court's jurisdiction. As stated
in Nuguid v. Nuguid, (supra):
"We pause to reflect. If the case were to be
remanded for probate of the will, nothing will be gained.
On the contrary, this litigation will be protracted. And for
aught that appears in the record, in the event of probate or
if the court rejects the will, probability exists that the case
will come up once again before us on the same issue of
the intrinsic validity or nullity of the will. Result. waste of
time, effort, expense, plus added anxiety. These are the
practical considerations that induce us to a belief that we
might as well meet head-on the issue of the validity of the
provisions of the will in question. (Section 2, Rule 1, Rules
of Court. Case, et al. v. Jugo, et al., 77 Phil. 517, 522).
After all, there exists a justiciable controversy crying for
solution.
 We see no useful purpose that would be served if we remand the
nullified provision to the proper court in a separate action for that
purpose simply because, in the probate of a will, the court does not
ordinarily look into the intrinsic validity of its provisions. cdphil
Article 739 of the Civil Code provides:
"The following donations shall be void:
(1) Those made between persons who were guilty
of adultery or concubinage at the time of the donation;
(2) Those made between persons found guilty of
the same criminal offense, in consideration thereof;
(3) Those made to a public officer or his wife,
descendants and ascendants, by reason of his office.
"In the case referred to in No. 1, the action for
declaration of nullity may be brought by the spouse of the
donor or donee; and the guilt of the donor and donee may
be proved by preponderance of evidence in the same
action.
Article 1028 of the Civil Code provides:
"The prohibitions mentioned in Article 739,
concerning donations inter vivos shall apply to
testamentary provisions."
In Article III of the disputed Will, executed on August 15, 1968, or
almost six years before the testator's death on July 16, 1974, Martin
Jugo stated that respondent Rufina Gomez was his legal wife from whom
he had been estranged "for so many years." He also declared that
respondents Carmelita Jugo and Oscar Jugo were his legitimate
children. In Article IV, he stated that he had been living as man and wife
with the petitioner since 1952. Testator Jugo declared that the petitioner
was entitled to his love and affection. He stated that Nepomuceno
represented Jugo as her own husband but "in truth and in fact, as well as
in the eyes of the law, I could not bind her to me in the holy bonds of
matrimony because of my aforementioned previous marriage."
There is no question from the records about the fact of a prior
existing marriage when Martin Jugo executed his Will. There is also no
dispute that the petitioner and Mr. Jugo lived together in an ostensible
marital relationship for 22 years until his death.
It is also a fact that on December 2, 1952, Martin Jugo and Sofia
J. Nepomuceno contracted a marriage before the Justice of the Peace of
Victoria, Tarlac. The man was then 51 years old while the woman was
48. Nepomuceno now contends that she acted in good faith for 22 years
in the belief that she was legally married to the testator. prcd
The records do not sustain a finding of innocence or good faith.
As argued by the private respondents:
"First. The last will and testament itself expressly
admits indubitably on its face the meretricious relationship
between the testator and petitioner, the devisee.
"Second. Petitioner herself initiated the
presentation of evidence on her alleged ignorance of the
true civil status of the testator, which led private
respondents to present contrary evidence.
"In short, the parties themselves dueled on the
intrinsic validity of the legacy given in the will to petitioner
by the deceased testator at the start of the proceedings.
"Whether or not petitioner knew that testator
Martin Jugo, the man he had lived with as man and wife,
as already married was an important and specific issue
brought by the parties before the trial court, and passed
upon by the Court of Appeals.
"Instead of limiting herself to proving the extrinsic
validity of the will, it was petitioner who opted to present
evidence on her alleged good faith in marrying the testator.
(Testimony of Petitioner, TSN of August 1, 1982, pp. 56-57
and pp. 62-64).
"Private respondents, naturally, presented
evidence that would refute the testimony of petitioner on
the point.
"Sebastian Jugo, younger brother of the deceased
testator, testified at length on the meretricious relationship
of his brother and petitioner. (TSN of August 18, 1975).
"Clearly, the good faith of petitioner was by option
of the parties made a decisive issue right at the inception
of the case.
"Confronted by the situation, the trial court had to
make a ruling on the question.
"When the court a quo held that the testator Martin
Jugo and petitioner 'were deemed guilty of adultery or
concubinage', it was a finding that petitioner was not the
innocent woman she pretended to be."
 xxx xxx xxx
"3' If a review of the evidence must be made
nonetheless, then private respondents respectfully offer
the following analysis:
"FIRST: The secrecy of the marriage of
petitioner with the deceased testator
in a town in Tarlac where neither she
nor the testator ever resided. If there
was nothing to hide from, why the
concealment? Of course, it maybe
argued that the marriage of the
deceased with private respondent
Rufina Gomez was likewise done in
secrecy. But it should be remembered
that Rufina Gomez was already in the
family way at that time and it would
seem that the parents of Martin Jugo
were not in favor of the marriage so
much so that an action in court was
brought concerning the marriage.
(Testimony of Sebastian Jugo, TSN of
August 18, 1975, pp. 29-30).
"SECOND: Petitioner was a sweetheart of
the deceased testator when they were
still both single. That would be in 1922
as Martin Jugo married respondent
Rufina Gomez on November 29, 1923
(Exh. 3). Petitioner married the
testator only on December 5, 1952.
There was a space of about 30 years
in-between. During those 30 years,
could it be believed that she did not
even wonder why Martin Jugo did not
marry her nor contact her anymore
after November, 1923 — facts that
should impel her to ask her groom
before she married him in secrecy,
especially so when she was already
about 50 years old at the time of
marriage.
"THIRD: The fact that petitioner broke off
from Martin Jugo in 1923 is by itself
conclusive demonstration that she
knew that the man she had openly
lived for 22 years as man and wife
was a married man with already two
children.
"FOURTH: Having admitted that she knew
the children of respondent Rufina
Gomez, is it possible that she would
not have asked Martin Jugo whether
or not they were ms illegitimate or
legitimate children and by whom?
That is un-Filipino.
"FIFTH: Having often gone to Pasig to the
residence of the parents of the
deceased testator, is it possible that
she would not have known that the
mother of private respondent Oscar
Jugo and Carmelita Jugo was
respondent Rufina Gomez,
considering that the houses of the
parents of Martin Jugo (where he had
lived for many years) and that of
respondent Rufina Gomez were just a
few meters away?
"Such pretentions of petitioner Sofia Nepomuceno
are unbelievable. They are, to say the least, inherently
improbable, for they are against the experience in common
life and the ordinary instincts and promptings of human
nature that a woman would not bother at all to ask the man
she was going to marry whether or not he was already
married to another, knowing that her groom had children. It
would be a story that would strain human credulity to the
limit if petitioner did not know that Martin Jugo was already
a married man in view of the irrefutable fact that it was
precisely his marriage to respondent Rufina Gomez that
led petitioner to break off with the deceased during their
younger years."
Moreover, the prohibition in Article 739 of the Civil Code is
against the making of a donation between persons who are living in
adultery or concubinage. It is the donation which becomes void. The
giver cannot give even assuming that the recipient may receive. The very
wordings of the Will invalidate the legacy because the testator admitted
he was disposing the properties to a person with whom he had been
living in concubinage. prcd
 WHEREFORE, the petition is DISMISSED for lack of merit. The
decision of the Court of Appeals, now Intermediate Appellate Court, is
AFFIRMED. No costs.
SO ORDERED.
Teehankee (Chairman), Melencio-Herrera, Plana, Relova, Dela
Fuente and Patajo, JJ., concur.
||| (Nepomuceno v. Court of Appeals, G.R. No. L-62952, [October 9, 1985],
223 PHIL 418-429)
FIRST DIVISION
[G.R. No. 54919. May 30, 1984.]
POLLY CAYETANO, petitioner, vs. HON. TOMAS T.
LEONIDAS, in his capacity as the Presiding Judge of
Branch XXXVIII, Court of First Instance of Manila and
NENITA CAMPOS PAGUIA, respondents.
Ermelo P. Guzman for petitioner.
Armando Z. Gonzales for private respondent.
SYLLABUS
1. REMEDIAL LAW; SPECIAL CIVIL ACTION; CERTIORARI;
GRAVE ABUSE OF DISCRETION; GRANT OF MOTION TO
WITHDRAW OPPOSITION TO PROBATE OF WILL IN CASE AT BAR,
NOT A CASE OF. — We find no grave abuse of discretion on the part of
the respondent judge when he allowed withdrawal of petitioner's
opposition to the probate of the will. No proof was adduced to support
petitioner's contention that the motion to withdraw was secured through
fraudulent means and that Atty. Franco Loyola was not his counsel of
record. The records show that after the filing of the contested motion, the
petitioner at a later date, filed a manifestation wherein he confirmed that
the Motion to Dismiss Opposition was his voluntary act and deed.
Moreover, at the time the motion was filed, the petitioner's former
counsel, Atty. Jose P. Lagrosa had long withdrawn from the case and
had been substituted by Atty. Franco Loyola who in turn filed the motion.
The present petitioner cannot, therefore, maintain that the old man's
attorney of record was Atty. Lagrosa at the time of filing the motion.
Since the withdrawal was in order, the respondent judge acted correctly
in hearing the probate of the will ex-parte, there being no other
opposition to the same.
2. ID.; SPECIAL PROCEEDINGS; PROBATE OF WILL;
PROBATE COURT, SCOPE OF AUTHORITY. — As a general rule, the
probate court's authority is limited only to the extrinsic validity of the will,
the due execution thereof, the testatrix's testamentary capacity and the
compliance with the requisites or solemnities prescribed by law. The
intrinsic validity of the will normally comes only after the court has
declared that the will has been duly authenticated. However, where
practical considerations demand that the intrinsic validity of the will be
passed upon, even before it is probated, the court should meet the issue
(Maninang, v. Court of Appeals, 114 SCRA 478).
3. CIVIL LAW; WILLS AND SUCCESSION; INTRINSIC
VALIDITY OF WILLS GOVERNED BY THE NATIONAL LAW OF THE
DECEDENT; CASE AT BAR. — It is a settled rule that as regards the
intrinsic validity of the provisions of the will, as provided for by Articles
16(2) and 1039 of the Civil Code, the national law of the decedent must
apply. In the case at bar, although on its face, the will appeared to have
preterited the petitioner and thus, the respondent judge should have
denied its probate outright, the private respondents have sufficiently
established that Adoracion Campos was, at the time of her death, an
American citizen and a permanent resident of Philadelphia,
Pennsylvania, U.S.A.. Therefore, the law governing Adoracion Campos'
will is the law of Pennsylvania, U.S.A., which is the national law of the
decedent. Under the Pennsylvania law, no legitimes are provided for,
and all the estate may be given away by the testatrix to a complete
stranger.
4. REMEDIAL LAW; SPECIAL PROCEEDINGS; SETTLEMENT
OF ESTATE; COURT OF FIRST INSTANCE OF THE PROVINCE
WHERE THE ESTATE IS LOCATED HAS JURISDICTION. — The
settlement of the estate of Adoracion Campos was correctly filed with the
Court of First Instance of Manila where she had an estate since it was
alleged and proven the Adoracion at the time of her death was a citizen
and permanent resident of Pennsylvania, United States of America and
not a "usual resident of Cavite" as alleged by the petitioner.
5. ID.; ID.; ID.; ID.; PETITIONER ESTOPPED FROM
QUESTIONING JURISDICTION OF COURT IN CASE AT BAR. —
Petitioner is now estopped from questioning the jurisdiction of the
probate court in the petition for relief. It is a settled rule that a party
cannot invoke the jurisdiction of a court to secure affirmative relief,
against his opponent and after failing to obtain such relief, repudiate or
question that same jurisdiction (See Saulog Transit, Inc. v. Hon. Manuel
Lazaro, et al., G.R. No. 63284, April 4, 1984).
 DECISION
GUTIERREZ, JR., J p:
This is a petition for review on certiorari, seeking to annul the
order of the respondent judge of the Court of First Instance of Manila,
Branch XXXVIII, which admitted to and allowed the probate of the last
will and testament of Adoracion C. Campos, after an ex-parte
presentation of evidence by herein private respondent.LLjur
On January 31, 1977, Adoracion C. Campos died, leaving her
father, petitioner Hermogenes Campos and her sisters, private
respondent Nenita C. Paguia, Remedios C. Lopez and Marieta C.
Medina as the surviving heirs. As Hermogenes Campos was the only
compulsory heir, he executed an Affidavit of Adjudication under Rule 74,
Section I of the Rules of Court whereby he adjudicated unto himself the
ownership of the entire estate of the deceased Adoracion Campos.
Eleven months after, on November 25, 1977, Nenita C. Paguia
filed a petition for the reprobate of a will of the deceased, Adoracion
Campos, which was allegedly executed in the United States and for her
appointment as administratrix of the estate of the deceased testatrix.
In her petition, Nenita alleged that the testatrix was an American
citizen at the time of her death and was a permanent resident of 4633
Ditman Street, Philadelphia, Pennsylvania, U.S.A.; that the testatrix died
in Manila on January 31, 1977 while temporarily residing with her sister
at 2167 Leveriza, Malate, Manila; that during her lifetime, the testatrix
made her last will and testament on July 10, 1975, according to the laws
of Pennsylvania, U.S.A., nominating Wilfredo Barzaga of New Jersey as
executor; that after the testatrix' death, her last will and testament was
presented, probated, allowed, and registered with the Registry of Wills at
the County of Philadelphia, U.S.A., that Clement L. McLaughlin, the
administrator who was appointed after Dr. Barzaga had declined and
waived his appointment as executor in favor of the former, is also a
resident of Philadelphia, U.S.A., and that therefore, there is an urgent
need for the appointment of an administratrix to administer and
eventually distribute the properties of the estate located in the
Philippines. Cdpr
On January 11, 1978, an opposition to the reprobate of the will
was filed by herein petitioner alleging among other things, that he has
every reason to believe that the will in question is a forgery; that the
intrinsic provisions of the will are null and void; and that even if pertinent
American laws on intrinsic provisions are invoked, the same could not
apply inasmuch as they would work injustice and injury to him.
On December 1, 1978, however, the petitioner through his
counsel, Atty. Franco Loyola, filed a Motion to Dismiss Opposition (With
Waiver of Rights or Interests) stating that he "has been able to verify the
veracity thereof (of the will) and now confirms the same to be truly the
probated will of his daughter Adoracion." Hence, an ex-parte
presentation of evidence for the reprobate of the questioned will was
made.
On January 10, 1979, the respondent judge issued an order to
wit:
"At the hearing, it has been satisfactorily
established that Adoracion C. Campos, in her lifetime, was
a citizen of the United States of America with a permanent
residence at 4633 Ditman Street, Philadelphia, PA 19124,
(Exhibit D); that when alive, Adoracion C. Campos
executed a Last Will and Testament in the county of
Philadelphia, Pennsylvania, U.S.A., according to the laws
thereat (Exhibits E-3 to E-3-b); that while in temporary
sojourn in the Philippines, Adoracion C. Campos died in
the City of Manila (Exhibit C) leaving property both in the
Philippines and in the United States of America; that the
Last Will and Testament of the late Adoracion C. Campos
was admitted and granted probate by the Orphan's Court
Division of the Court of Common Pleas, the probate court
of the Commonwealth of Pennsylvania, County of
Philadelphia, U.S.A., and letters of administration were
issued in favor of Clement J. McLaughlin, all in accordance
with the laws of the said foreign country on procedure and
allowance of wills (Exhibits E to E-10); and that the
petitioner is not suffering from any disqualification which
would render her unfit as administratrix of the estate in the
Philippines of the late Adoracion C. Campos.
"WHEREFORE, the Last Will and Testament of
the late Adoracion C. Campos is hereby admitted to and
allowed probate in the Philippines, and Nenita Campos
Paguia is hereby appointed Administratrix of the estate of
said decedent; let Letters of Administration with the Will
annexed issue in favor of said Administratrix upon her
filing of a bond in the amount of P5,000.00 conditioned
under the provisions of Section I, Rule 81 of the Rules of
Court.
Another manifestation was filed by the petitioner on April 14,
1979, confirming the withdrawal of his opposition, acknowledging the
same to be his voluntary act and deed.
 On May 25, 1979, Hermogenes Campos filed a petition for relief,
praying that the order allowing the will be set aside on the ground that
the withdrawal of his opposition to the same was secured through
fraudulent means. According to him, the "Motion to Dismiss Opposition"
was inserted among the papers which he signed in connection with two
Deeds of Conditional Sales which he executed with the Construction and
Development Corporation of the Philippines (CDCP). He also alleged
that the lawyer who filed the withdrawal of the opposition was not his
counsel-of-record in the special proceedings case.
The petition for relief was set for hearing but the petitioner failed
to appear. He made several motions for postponement until the hearing
was set on May 29, 1980.
On May 18, 1980, petitioner filed another motion entitled "Motion
to Vacate and/or Set Aside the Order of January 10, 1979, and/or
dismiss the case for lack of jurisdiction. In this motion, the notice of
hearing provided:
"Please include this motion in your calendar for
hearing on May 29, 1980 at 8:30 in the morning for
submission for reconsideration and resolution of the
Honorable Court. Until this Motion is resolved, may I also
request for the future setting of the case for hearing on the
Oppositor's motion to set aside previously filed."
The hearing of May 29, 1980 was re-set by the court for June 19,
1980. When the case was called for hearing on this date, the counsel for
petitioner tried to argue his motion to vacate instead of adducing
evidence in support of the petition for relief. Thus, the respondent judge
issued an order dismissing the petition for relief for failure to present
evidence in support thereof. Petitioner filed a motion for reconsideration
but the same was denied. In the same order, respondent judge also
denied the motion to vacate for lack of merit. Hence, this petition. cdll
Meanwhile, on June 6, 1982, petitioner Hermogenes Campos
died and left a will, which, incidentally has been questioned by the
respondent, his children and forced heirs as, on its face patently null and
void, and a fabrication, appointing Polly Cayetano as the executrix of his
last will and testament. Cayetano, therefore, filed a motion to substitute
herself as petitioner in the instant case which was granted by the court
on September 13, 1982.
A motion to dismiss the petition on the ground that the rights of
the petitioner Hermogenes Campos merged upon his death with the
rights of the respondent and her sisters, only remaining children and
forced heirs was denied on September 12, 1983.
Petitioner Cayetano persists with the allegations that the
respondent judge acted without or in excess of his jurisdiction when:
"1) He ruled the petitioner lost his standing in court
deprived the Right to Notice (sic) upon the filing of the
Motion to Dismiss opposition with waiver of rights or
interests against the estate of deceased Adoracion C.
Campos, thus, paving the way for the ex-parte hearing of
the petition for the probate of decedent will.
"2) He ruled that petitioner can waive, renounce or
repudiate (not made in a public or authenticated
instrument), or by way of a petition presented to the court
but by way of a motion presented prior to an order for the
distribution of the estate — the law especially providing
that repudiation of an inheritance must be presented,
within 30 days after it has issued an order for the
distribution of the estate in accordance with the rules of
Court.
"3) He ruled that the right of a forced heir to his
legitime can be divested by a decree admitting a will to
probate in which no provision is made for the forced heir in
complete disregard of Law of Succession.
"4) He denied petitioner's petition for Relief on the
ground that no evidence was adduced to support the
Petition for Relief when no Notice nor hearing was set to
afford petitioner to prove the merit of his petition — a
denial of the due process and a grave abuse of discretion
amounting to lack of jurisdiction.
"5) He acquired no jurisdiction over the testate
case, the fact that the Testator at the time of death was a
usual resident of Dasmariñas, Cavite, consequently Cavite
Court of First Instance has exclusive jurisdiction over the
case (De Borja vs. Tan, G.R. No. L-7792, July 1955)."
The first two issues raised by the petitioner are anchored on the
allegation that the respondent judge acted with grave abuse of discretion
when he allowed the withdrawal of the petitioner's opposition to the
reprobate of the will.
We find no grave abuse of discretion on the part of the
respondent judge. No proof was adduced to support petitioner's
contention that the motion to withdraw was secured through fraudulent
means and that Atty. Franco Loyola was not his counsel of record. The
records show that after the filing of the contested motion, the petitioner at
a later date, filed a manifestation wherein he confirmed that the Motion to
Dismiss Opposition was his voluntary act and deed. Moreover, at the
time the motion was filed, the petitioner's former counsel, Atty. Jose P.
Lagrosa had long withdrawn from the case and had been substituted by
Atty. Franco Loyola who in turn filed the motion. The present petitioner
cannot, therefore, maintain that the old man's attorney of record was
Atty. Lagrosa at the time of filing the motion. Since the withdrawal was in
order, the respondent judge acted correctly in hearing the probate of the
will ex-parte, there being no other opposition to the same. LLpr
The third issue raised deals with the validity of the provisions of
the will. As a general rule, the probate court's authority is limited only to
the extrinsic validity of the will, the due execution thereof, the testatrix's
testamentary capacity and the compliance with the requisites or
solemnities prescribed by law. The intrinsic validity of the will normally
comes only after the court has declared that the will has been duly
authenticated. However, where practical considerations demand that the
intrinsic validity of the will be passed upon, even before it is probated, the
court should meet the issue. (Maninang v. Court of Appeals, 114 SCRA
478).
In the case at bar, the petitioner maintains that since the
respondent judge allowed the reprobate of Adoracion's will, Hermogenes
C. Campos was divested of his legitime which was reserved by the law
for him.
This contention is without merit.
Although on its face, the will appeared to have preterited the
petitioner and thus, the respondent judge should have denied its
reprobate outright, the private respondents have sufficiently established
that Adoracion was, at the time of her death, an American citizen and a
permanent resident of Philadelphia, Pennsylvania, U.S.A. Therefore,
under Article 16 par. (2) and 1039 of the Civil Code which respectively
provide:
Art. 16 par. (2).
xxx xxx xxx
"However, intestate and testamentary
successions, both with respect to the order of succession
and to the amount of successional rights and to the
intrinsic validity of testamentary provisions, shall be
regulated by the national law of the person whose
succession is under consideration, whatever may be the
nature of the property and regardless of the country
wherein said property may be found."
Art. 1039.
"Capacity to succeed is governed by the law of the
nation of the decedent."
the law which governs Adoracion Campo's will is the law of
Pennsylvania, U.S.A., which is the national law of the decedent.
Although the parties admit that the Pennsylvania law does not provide for
legitimes and that all the estate may be given away by the testatrix to a
complete stranger, the petitioner argues that such law should not apply
because it would be contrary to the sound and established public policy
and would run counter to the specific provisions of Philippine Law.
It is a settled rule that as regards the intrinsic validity of the
provisions of the will, as provided for by Article 16 (2) and 1039 of the
Civil Code, the national law of the decedent must apply. This was
squarely applied in the case of Bellis v. Bellis (20 SCRA 358) wherein we
ruled:
"It is therefore evident that whatever public policy
or good customs may be involved in our system of
legitimes, Congress has not intended to extend the same
to the succession of foreign nationals. For it has
specifically chosen to leave, inter alia, the amount of
successional rights, to the decedent's national law.
Specific provisions must prevail over general ones.
xxx xxx xxx
"The parties admit that the decedent, Amos G.
Bellis, was a citizen of the State of Texas, U.S.A., and
under the law of Texas, there are no forced heirs or
legitimes. Accordingly, since the intrinsic validity of the
provision of the will and the amount of successional rights
are to be determined under Texas law, the Philippine Law
on legitimes cannot be applied to the testacy of Amos G.
Bellis."
As regards the alleged absence of notice of hearing for the
petition for relief, the records will bear the fact that what was repeatedly
scheduled for hearing on separate dates until June 19, 1980 was the
petitioner's petition for relief and not his motion to vacate the order of
January 10, 1979. There is no reason why the petitioner should have
been led to believe otherwise. The court even admonished the
petitioner's failing to adduce evidence when his petition for relief was
repeatedly set for hearing. There was no denial of due process. The fact
that he requested "for the future setting of the case for hearing . . ." did
not mean that at the next hearing, the motion to vacate would be heard
and given preference in lieu of the petition for relief. Furthermore, such
request should be embodied in a motion and not in a mere notice of
hearing. prcd
 Finally, we find the contention of the petition as to the issue of
jurisdiction utterly devoid of merit. Under Rule 73, Section 1, of the Rules
of Court, it is provided that:
"SECTION 1. Where estate of deceased persons
settled. — If the decedent is an inhabitant of the
Philippines at the time of his death, whether a citizen or an
alien, his will shall be proved, or letters of administration
granted, and his estate settled, in the Court of First
Instance in the province in which he resided at the time of
his death, and if he is an inhabitant of a foreign country,
the Court of First Instance of any province in which he had
estate. The court first taking cognizance of the settlement
of the estate of a decedent, shall exercise jurisdiction to
the exclusion of all other courts. The jurisdiction assumed
by a court, so far as it depends on the place of residence
of the decedent, or of the location of his estate, shall not
be contested in a suit or proceeding, except in an appeal
from that court, in the original case, or when the want of
jurisdiction appears on the record."
Therefore, the settlement of the estate of Adoracion Campos
was correctly filed with the Court of First Instance of Manila where she
had an estate since it was alleged and proven the Adoracion at the time
of her death was a citizen and permanent resident of Pennsylvania,
United States of America an not a "usual resident of Cavite" as alleged
by the petitioner. Moreover, petitioner is now estopped from questioning
the jurisdiction of the probate court in the petition for relief. It is a settled
rule that a party cannot invoke the jurisdiction of a court to secure
affirmative relief, against his opponent and after failing to obtain such
relief, repudiate or question that same jurisdiction. (See Saulog Transit,
Inc. v. Hon. Manuel Lazaro, et al., G.R. No. 63284, April 4, 1984). LLphil
WHEREFORE, the petition for certiorari and prohibition is hereby
dismissed for lack of merit.
SO ORDERED.
Melencio-Herrera, Plana, Relova and De la Fuente, JJ ., concur.
Teehankee, J ., took no part.
||| (Cayetano v. Leonidas, G.R. No. 54919, [May 30, 1984], 214 PHIL 460-
470)
BAUTISTA ANGELO, J p:
EN BANC
[G.R. No. L-2538. September 21, 1951.]
Testate Estate of the Deceased MARIANO MOLO Y
LEGASPI. JUANA JUAN VDA. DE MOLO, petitioner-
appellee, vs. LUZ, GLICERIA and CORNELIO
MOLO, oppositor-appellants.
Claro M. Recto and Serafin C. Dizon, for appellants.
Delgado & Flores, for appellee.
SYLLABUS
1. WILLS; REVOCATION BY SUBSEQUENT WILL; EFFECT OF
VOID REVOCATORY CLAUSE. — A subsequent will containing a
clause revoking a previous will, having been disallowed for the reason
that it was not executed in conformity with the provisions of section 618
of the Code of Civil Procedure as to the making of wills, cannot produce
the effect of annuling the previous will, inasmuch as said revocatory
clause is void (Samson vs. Naval, 41 Phil., 838).
2. ID.; PROBATE; DEPENDENT RELATIVE REVOCATION. —
Even in the supposition that the destruction of the original will by the
testator could be presumed from the failure of the petitioner to produce it
in court, such destruction cannot have the effect of defeating the prior will
where it is founded on the mistaken belief that the later will has been
validly executed and would be given due effect. The earlier will can still
be admitted to probate under the principle of "dependent relative
revocation". The theory on which this principle is predicated is that the
testator did not intend to die intestate. And this intention is clearly
manifest where he executed two wills on two different occasions and
instituted his wife as his universal heir.
DECISION
This is an appeal from an order of the Court of First Instance of
Rizal admitting to probate the last will and testament of the deceased
Mariano Molo y Legaspi executed on August 17, 1918. The oppositors-
appellants brought the case on appeal to this Court for the reason that
the value of the properties involved exceeds P50,000.
Mariano Molo y Legaspi died on January 24, 1941, in the
municipality of Pasay, province of Rizal, without leaving any forced heir
either in the descending or ascending line. He was survived, however, by
his wife, the herein petitioner Juana Juan Vda. de Molo, and by his
nieces and nephew, the oppositors-appellants, Luz, Gliceria and
Cornelio, all surnamed Molo, who were the legitimate children of
Candido Molo y Legaspi, deceased brother of the testator. Mariano Molo
y Legaspi left two wills, one executed on August 17, 1918, (Exhibit A)
and another executed on June 20, 1939, (Exhibit I). The latter will
contains a clause which expressly revokes the will executed in 1918.
On February 7, 1941, Juana Juan Vda. de Molo filed in the Court
of First Instance of Rizal a petition, which was docketed as special
proceeding No. 8022, seeking the probate of the will executed by the
deceased on June 20, 1939. There being no opposition, the will was
probated. However, upon petition filed by the herein oppositors, the order
of the court admitting the will to probate was set aside and the case was
reopened. After hearing, at which both parties presented their evidence,
the court rendered decision denying the probate of said will on the
ground that the petitioner failed to prove that the same was executed in
accordance with law.
In view of the disallowance of the will executed on June 20,
1939, the widow on February 24, 1944, filed another petition for the
probate of the will executed by the deceased on August 17, 1918, which
was docketed as special proceeding No. 56, in the same court. Again,
the same oppositors filed an opposition to the petition based on three
grounds: (1) that petitioner is now estopped from seeking the probate of
the will of 1918; (2) that said will has not been executed in the manner
required by law and (3) that the will has been subsequently revoked. But
before the second petition could be heard, the battle for liberation came
and the records of the case were destroyed. Consequently, a petition for
reconstitution was filed, but the same was found to be impossible
because neither petitioner nor oppositors could produce the copies
required for its reconstitution. As a result, petitioner filed a new petition
on September 14, 1946, similar to the one destroyed, to which the
oppositors filed an opposition based on the same grounds as those
contained in their former opposition. Then, the case was set for trial, and
on May 28, 1948, the court issued an order admitting the will to probate
as already stated in the early part of this decision. From this order the
oppositors appealed assigning six errors, to wit:
"I. The probate court erred in not holding that the
present petitioner voluntarily and deliberately frustrated the
probate of the will dated June 20, 1939, in special
proceeding No. 8022, in order to enable her to obtain the
probate of another alleged will of Molo dated 1918.
"II. The court a quo erred in not holding that the
petitioner is now estopped from seeking the probate of
Molo's alleged will of 1918.
"III. The lower court erred in not holding that
petitioner herein has come to court with 'unclean hands'
and as such is not entitled to relief.
"IV. The probate court erred in not holding that
Molo's alleged will of August 17, 1918 was not executed in
the manner required by law.
"V. The probate court erred in not holding that the
alleged will of 1918 was deliberately revoked by Molo
himself.
"VI. The lower court erred in not holding that
Molo's will of 1918 was subsequently revoked by the
decedent's will of 1939."
In their first assignment of error, counsel for oppositors contend
that the probate court erred in not holding that the petitioner voluntarily
and deliberately frustrated the probate of the will dated June 20, 1939, in
order to enable her to obtain the probate of the will executed by the
deceased on August 17, 1918, pointing out certain facts and
circumstances which in their opinion indicate that petitioner connived
with witness Canuto Perez in an effort to defeat and frustrate the probate
of the 1939 will because of her knowledge that said will was intrinsically
defective in that "the one and only testamentary disposition thereof was a
'disposición captatoria'". These circumstances, counsel for the appellants
contend, constitute a series of steps deliberately taken by petitioner with
a view to insuring the realization of her plan of securing the probate of
the 1918 will which she believed would better safeguard her right to
inherit from the deceased.
These imputations of fraud and bad faith allegedly committed in
connection with special proceedings No. 8022, now closed and
terminated, are vigorously met by counsel for petitioner who contends
that to raise them in these proceedings which are entirely new and
distinct and completely independent from the other is improper and unfair
as they find no support whatsoever in any evidence submitted by the
parties in this case. They are merely based on presumptions and
conjectures not supported by any proof. For this reason, counsel
contends, the lower court was justified in disregarding them and in
passing them sub silentio in its decision.
A careful examination of the evidence available in this case
seems to justify this contention. There is indeed no evidence which may
justify the insinuation that petitioner had deliberately intended to frustrate
the probate of the 1939 will of the deceased to enable her to seek the
probate of another will other than a mere conjecture drawn from the
apparently unexpected testimony of Canuto Perez that he went out of the
room to answer an urgent call of nature when Artemio Reyes was
signing the will and the failure of petitioner later to impeach the character
of said witness in spite of the opportunity given her by the court to do so.
Apart from this insufficiency of evidence, the record discloses that this
failure has been explained by petitioner when she informed the court that
she was unable to impeach the character of her witness Canuto Perez
because of her inability to find witnesses who may impeach him, and this
explanation stands uncontradicted. Whether this explanation is
satisfactory or not, it is not now for us to determine. It is an incident that
comes within the province of the former case. The failure of petitioner to
present the testimony of Artemio Reyes at the rehearing has also been
explained, and it appears that petitioner has failed because his
whereabouts could not be found. Whether this is true or not is not also
for this Court to determine. It is likewise within the province and function
of the court in the former case. And the unfairness of this imputation
becomes more glaring when we take stock of the developments that had
taken place in these proceedings which show in bold relief the true
nature of the conduct, behavior and character of the petitioner so bitterly
assailed and held in disrepute by the oppositors.
It should be recalled that the first petition for the probate of the
will executed on June 20, 1939, was filed on February 7, 1941, by the
petitioner. There being no opposition, the will was probated.
Subsequently, however, upon petition of the herein oppositors, the order
of the court admitting said will to probate was set aside, over the
vigorous opposition of the herein petitioner, and the case was reopened.
The reopening was ordered because of the strong opposition of the
oppositors who contended that the will had not been executed as
required by law. After the evidence of both parties had been presented,
the oppositors filed an extensive memorandum wherein they reiterated
their view that the will should be denied probate. And on the strength of
this opposition, the court disallowed the will.
If petitioner then knew that the 1939 will was inherently defective
and would make the testamentary disposition in her favor invalid and
ineffective, because it is a "disposición captatoria", which knowledge she
may easily acquire through consultation with a lawyer, there was no
need for her to go through the ordeal of filing the petition for the probate
of the will. She could accomplish her desire by merely suppressing the
will or tearing or destroying it, and then take steps leading to the probate
of the will executed in 1918. But her conscience was clear and bade her
to take the only proper step possible under the circumstances, which is
to institute the necessary proceedings for the probate of the 1939 will.
This she did and the will was admitted to probate. But then the
unexpected happened. Over her vigorous opposition, the herein
appellants filed a petition for reopening, and over her vigorous objection,
the same was granted and the case was reopened. Her motion for
reconsideration was denied. Is it her fault that the case was reopened? Is
it her fault that the order admitting the will to probate was set aside? That
was a contingency which petitioner never expected. Had appellants not
filed their opposition to the probate of the will and had they limited their
objection to the intrinsic validity of said will, their plan to defeat the will
and secure the intestacy of the deceased would have perhaps been
accomplished. But they failed in their strategy. If said will was denied
probate it is due to their own effort. It is now unfair to impute bad faith to
petitioner simply because she exerted every effort to protect her own
interest and prevent the intestacy of the deceased to happen.
Having reached the foregoing conclusions, it is obvious that the
court did not commit the second and third errors imputed to it by the
counsel for appellants. Indeed, petitioner cannot be considered guilty of
estoppel which would prevent her from seeking the probate of the 1918
will simply because her effort to obtain the allowance of the 1939 will has
failed considering that in both the 1918 and 1939 wills she was instituted
by her husband as his universal heir. Nor can she be charged with bad
faith far having done so because of her desire to prevent the intestacy of
her husband. She cannot be blamed for being zealous in protecting her
interest.
The next contention of appellants refers to the revocatory clause
contained in the 1939 will of the deceased which was denied probate.
They contend that, notwithstanding the disallowance of said will, the
revocatory clause is valid and still has the effect of nullifying the prior will
of 1918.
Counsel for petitioner meets this argument by invoking the
doctrine laid down in the case of Samson vs. Naval, (41 Phil., 838). He
contends that the facts involved in that case are on all fours with the
facts of this case. Hence, the doctrine in that case is here controlling.
There is merit in this contention. We have carefully read the facts
involved in the Samson case and we are indeed impressed by their
striking similarity with the facts of this case. We do not need to recite
here what those facts are; it is enough to point out that they contain
many points and circumstances in common. No reason, therefore, is
seen why the doctrine laid down in that case (which we quote hereunder)
should not apply and control the present case.
"A subsequent will, containing a clause revoking a
previous will, having been disallowed, for the reason that it
was not executed in conformity with the provisions of
section 618 of the Code of Civil Procedure as to the
making of wills, cannot produce the effect of annulling the
 previous will, inasmuch as said revocatory clause is void."
(41 Phil., 838.)
Apropos of this question, counsel for oppositors make the
remark that, while they do not disagree with the soundness of the ruling
laid down in the Samson case, there is reason to abandon said ruling
because it is archaic or antiquated and runs counter to the modern trend
prevailing in American jurisprudence. They maintain that said ruling is no
longer controlling but merely represents the point of view of the minority
and should, therefore, be abandoned, more so if we consider the fact
that section 623 of our Code of Civil Procedure, which governs the
revocation of wills, is of American origin and as such should follow the
prevailing trend of the majority view in the United States. A long line of
authorities is cited in support of this contention. And these authorities
hold the view, that "an express revocation is immediately effective upon
the execution of the subsequent will, and does not require that it first
undergo the formality of a probate proceeding". (p 63, appellants' brief).
While there are many cases which uphold the view entertained
by counsel for oppositors, and that view appears to be controlling in the
states where the decisions had been promulgated, however, we are
reluctant to fall in line with the assertion that is now the prevailing view in
the United States. In the search we have made of American authorities
on the subject, we found ourselves in a pool of conflicting opinions
perhaps because of the peculiar provisions contained in the statutes
adopted by each State on the subject of revocation of wills. But the
impression we gathered from a review and study of the pertinent
authorities is that the doctrine laid down in the Samson case is still a
good law. On page 328 of the American Jurisprudence, Vol. 57, which is
a revision published in 1948, we found the following passages which in
our opinion truly reflect the present trend of American jurisprudence on
this matter affecting the revocation of prior wills:
"SEC. 471. Observance of Formalities in
Execution of Instrument. — Ordinarily, statutes which
permit the revocation of a will by another writing provide
that to be effective as a revocation, the writing must be
executed with the same formalities which are required to
be observed in the execution of a will. Accordingly, where,
under the statutes, attestation is necessary to the making
of a valid will, an unattested nontestamentary writing is not
effective to revoke a prior will. It has been held that a
writing fails as a revoking instrument where it is not
executed with the formalities requisite for the execution of
a will, even though it is inscribed on the will itself, although
it may effect a revocation by cancellation or obliteration of
the words of the will. A testator cannot reserve to himself
the power to modify a will by a written instrument
subsequently prepared but not executed in the manner
required for a will.
"SEC. 472. Subsequent Unexecuted, Invalid, or
Ineffective Will or Codicil. — A will which is invalid because
of the incapacity of the testator or of undue influence can
have no effect whatever as a revoking will. Moreover, a will
is not revoked by the unexecuted draft of a later one. Nor
is a will revoked by a defectively executed will or codicil,
even though the latter contains a clause expressly
revoking the former will, in a jurisdiction where it is
provided by a controlling statute that no writing other than
a testamentary instrument is sufficient to revoke a will, for
the simple reason that there is no revoking will. Similarly
where the statute provides that a will may be revoked by a
subsequent will or other writing executed with the same
formalities as are required in the execution of wills, a
defectively executed will does not revoke a prior will, since
it cannot be said that there is a writing which complies with
the statute. Moreover, a will or codicil which, on account of
the manner in which it is executed, is sufficient to pass
only personally does not affect dispositions of real estate
made by a former will, even though it may expressly
purport to do so. The intent of the testator to revoke is
immaterial, if he has not complied with the statute." (57
Am. Jur., 328, 329.)
We find the same opinion in the American Law Reports,
Annotated, edited in 1939. On page 1400, Volume 123, there appear
many authorities on the "application of rules where second will is invalid",
among which a typical one is the following:
"It is universally agreed that where the second will
is invalid on account of not being executed in accordance
with the provisions of the statute, or where the testator has
not sufficient mental capacity to make a will or the will is
procured through undue influence, or the such, in other
words, where the second will is really no will, it does not
revoke the first will or affect it in any manner." Mort vs.
Baker University (1935) 229 Mo. App., 632, 78 S. W. (2d),
498."
These treaties cannot be mistaken. They uphold the view on
which the ruling in the Samson case is predicated. They reflect the
opinion that this ruling is sound and good and for this reason we see no
justification for abandoning it as now suggested by counsel for the
oppositors.
 It is true that our law on the matter (sec. 623, Code of Civil
Procedure) provides that a will may be revoked "by some will, codicil, or
other writing executed as provided in case of wills"; but it cannot be said
that the 1939 will should be regarded, not as a will within the meaning of
said word, but as "other writing executed as provided in the case of
wills", simply because it was denied probate. And even if it be regarded
as any other writing within the meaning of said clause, there is authority
for holding that unless said writing is admitted to probate, it cannot have
the effect of revocation. (See 57 Am. Jur. pp. 329-330).
But counsel for oppositors contend that, regardless of said
revocatory clause, said will of 1918 cannot still be given effect because
of the presumption that it was deliberately revoked by the testator
himself. The oppositors contend that the testator, after executing the
1939 will, and with full knowledge of the revocatory clause contained in
said will, himself deliberately destroyed the original of the 1918 will, and
that for this reason the will submitted by petitioner for probate in these
proceedings is only a duplicate of said original.
There is no evidence which may directly indicate that the testator
deliberately destroyed the original of the 1918 will because of his
knowledge of the revocatory clause contained in the will he executed in
1939. The only evidence we have is that when the first will was executed
in 1918, Juan Salcedo, who prepared it, gave the original and copies to
the testator himself and apparently they remained in his possession until
he executed his second will in 1939. And when the 1939 will was denied
probate on November 29, 1943, and petitioner was asked by her
attorney to look for another will, she found the duplicate copy (Exhibit A)
among the papers or files of the testator. She did not find the original.
If it can be inferred that the testator deliberately destroyed the
1918 will because of his knowledge of the revocatory clause of the 1939
will, and it is true that he gave a duplicate copy thereof to his wife, the
herein petitioner, the most logical step for the testator to take is to recall
said duplicate copy in order that it may likewise be destroyed. But this
was not done as shown by the fact that said duplicate copy remained in
the possession of petitioner. It is possible that because of the long lapse
of twenty-one (21) years since the first will was executed, the original of
the will had been misplaced or lost, and forgetting that there was a copy,
the testator deemed it wise to execute another will containing exactly the
same testamentary dispositions. Whatever may be the conclusion we
may draw from this chain of circumstances, the stubborn fact is that
there is no direct evidence of voluntary or deliberate destruction of the
first will by the testator. This matter cannot be left to mere inference or
conjecture.
Granting for the sake of argument that the earlier will was
voluntarily destroyed by the testator after the execution of the second
will, which revoked the first, could there be any doubt, under this theory,
that said earlier will was destroyed by the testator in the honest belief
that it was no longer necessary because he had expressly revoked it in
his will of 1939? In other words, can we not say that the destruction of
the earlier will was but the necessary consequence of the testator's belief
that the revocatory clause contained in the subsequent will was valid and
the latter would be given effect? If such is the case, then it is our opinion
that the earlier will can still be admitted to probate under the principle of
"dependent relative revocation".
"This doctrine is known as that of dependent
relative revocation, and is usually applied where the
testator cancels or destroys a will or executes an
instrument intended to revoke a will with a present
intention to make a new testamentary disposition as a
substitute for the old, and the new disposition is not made
or, if made, fails of effect for some reason. The doctrine is
not limited to the existence of some other document,
however, and has been applied where a will was
destroyed as a consequence of a mistake of law . . .." (68
C. J. p. 799).
"The rule is established that where the act of
destruction is connected with the making of another will so
as fairly to raise the inference that the testator meant the
revocation of the old to depend upon the efficacy of the
new disposition intended to be substituted, the revocation
will be conditional and dependent upon the efficacy of the
new disposition; and if, for any reason, the new will
intended to be made as a substitute is inoperative, the
revocation fails and the original will remains in full force."
(Gardner, pp. 232, 233.)
"This is the doctrine of dependent relative
revocation. The failure of the new testamentary
disposition, upon whose validity the revocation depends, is
equivalent to the non-fulfillment of a suspensive condition,
and hence prevents the revocation of the original will. But
a mere intent to make at some time a will in place of that
destroyed will not render the destruction conditional. It
must appear that the revocation is dependent upon the
valid execution of a new will." (1 Alexander, p. 751;
Gardner, p. 233.)
We hold, therefore, that even in the supposition that the
destruction of the original will by the testator could be presumed from the
failure of the petitioner to produce it in court, such destruction cannot
have the effect of defeating the prior will of 1918 because of the fact that
it is founded on the mistaken belief that the will of 1939 has been validly
executed and would be given due effect. The theory on which this
 principle is predicated is that the testator did not intend to die intestate.
And this intention is clearly manifest when he executed two wills on two
different occasions and instituted his wife as his universal heir. There can
therefore be no mistake as to his intention of dying testate.
The remaining question to be determined refers to the sufficiency
of the evidence to prove the due execution of the will.
The will in question was attested, as required by law, by three
witnesses, Lorenzo Morales, Rufino Enriquez, and Angel Cuenca. The
first two witnesses died before the commencement of the present
proceedings. So the only instrumental witness available was Angel
Cuenca and under our law and precedents, his testimony is sufficient to
prove the due execution of the will. However, petitioner presented not
only the testimony of Cuenca but placed on the witness stand Juan
Salcedo, the notary public who prepared and notarized the will upon the
express desire and instruction of the testator. The testimony of these
witnesses shows that the will had been executed in the manner required
by law. We have read their testimony and we were impressed by their
readiness and sincerity. We are convinced that they told the truth.
Wherefore, the order appealed from is hereby affirmed, with
costs against the appellants.
Paras, C.J., Feria, Pablo, Bengzon, Tuason and Jugo,
JJ., concur.
Reyes, J., concurs in the result.
||| (Vda. de Molo v. Molo, G.R. No. L-2538, [September 21, 1951], 90 PHIL
37-49)
THIRD DIVISION
[G.R. No. 53546. June 25, 1992.]
THE HEIRS OF THE LATE JESUS FRAN and CARMEN
MEJIA RODRIGUEZ, petitioner, vs. HON. BERNARDO
LL. SALAS, CONCEPCION MEJIA ESPINA and MARIA
MEJIA GANDIONGCO, respondents.
SYLLABUS
1. REMEDIAL LAW; SPECIAL PROCEEDINGS; RESPONDENT
JUDGE COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING
TO LACK OF JURISDICTION WHEN HE GRANTED THE OMNIBUS
MOTION FOR RECONSIDERATION. — We do not hesitate to rule that
the respondent Judge committed grave abuse of discretion amounting to
lack of jurisdiction when he granted the Omnibus Motion for
Reconsideration and thereafter set aside the probate judgment of 13
November 1972 in Sp. Proc. No. 3309-R, declared the subject will of the
testatrix a forgery, nullified the testamentary dispositions therein and
ordered the conversion of the testate proceedings into one of intestacy. It
is not disputed that private respondents filed on the date of the initial
hearing of the petition their "Withdrawal of Opposition To Allowance of
Probate (sic) Will" wherein they unequivocally state that they have no
objection to the allowance of the will. For all legal intents and purposes,
they became proponents of the same. 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.
2. RECEPTION OF EVIDENCE BY THE CLERK OF COURT
UPHELD; DOCTRINE LAID DOWN IN LIM TANHU V. RAMOLETE NOT
APPLICABLE; NEW DOCTRINE SHOULD BE APPLIED
PROSPECTIVELY. — Neither do We give any weight to the contention
that the reception of evidence by the Clerk of Court is null and void per
the doctrine laid down in Lim Tanhu v. Ramolete. In the first place, Lim
Tanhu was decided on 29 August 1975, nearly four (4) years after the
probate court authorized the Clerk of Court to receive the evidence for
the petitioner in this case. A month prior to Lim Tanhu, or on 30 July
1975, this Court, in Laluan vs. Malpaya, recognized and upheld the
practice of delegating the reception of evidence to Clerks of Court. Thus:
"No provision of law or principle of public policy prohibits a court from
authorizing its clerk of court to receive the evidence of a party litigant.
After all, the reception of evidence by the clerk of court constitutes but a
ministerial task — the taking down of the testimony of the witnesses and
the marking of the pieces of documentary evidence, if any, adduced by
the party present. This task of receiving evidence precludes, on the part
of the clerk of court, the exercise of judicial discretion usually called for
when the other party who is present objects to questions propounded
and to the admission of the documentary evidence proffered. More
importantly, the duty to render judgment on the merits of the case still
rests with the judge who is obliged to personally and directly prepare the
decision based upon the evidence reported. But where the proceedings
before the clerk of court and the concomitant result thereof, i.e., the
judgment rendered by the court based on the evidence presented in
such limited proceedings, prejudice the substantial rights of the
aggrieved party, then there exists sufficient justification to grant the latter
complete opportunity to thresh out his case in court." Monserrate
vs. Court of Appeals, decided on 29 September 1989, reiterated this
rule. 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."
3. CLERK OF COURT NEED NOT TAKE ANOTHER OATH OF
OFFICE TO RECEIVE EVIDENCE. — 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. This is not correct; as this Court said in Laluan:
"The provisions of Rule 33 of the Rules of Court invoked by both parties
properly relate to the reference by a court of any or all of the issues in a
case to a person so commissioned to act or report thereon. These
provisions explicitly spell out the rules governing the conduct of the court,
the commissioner, and the parties before, during, and after the reference
proceedings. Compliance with these rules of conduct becomes
imperative only when the court formally orders a reference of the case to
a commissioner. Strictly speaking then, the provisions of Rule 33 find no
application to the case at bar where the court a quo merely directed the
clerk of court to take down the testimony of the witnesses presented and
the mark the documentary evidence proffered on a date previously set
for hearing."
4. ANNEXING OF THE ORIGINAL WILL TO THE PETITION
NOT A JURISDICTIONAL REQUIREMENT. — In Santos
vs. Castillo and Salazar vs. Court of First Instance of Laguna, 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." In the
second case, this Court was more emphatic in holding that: "The law is
silent as to the specific manner of bringing the jurisdictional allegations
before the court, by practice the jurisprudence have established that they
should be made in the form of an application and filed with the original of
the will attached thereto. It has been the practice in some courts to
permit attachment of a mere copy of the will to the application, without
prejudice to producing the original thereof at the hearing or when the
court so requires. This precaution has been adopted by some attorneys
to forestall its disappearance, which has taken place in certain cases."
That the annexing of the original will to the petition is not a jurisdictional
requirement is clearly evident in Section 1, Rule 76 of the Rules of Court
which allows the filing of a petition for probate by the person named
therein regardless of whether or not he is in possession of the will, or the
same is lost or destroyed.
5. COURSES OF ACTION OPENED TO AN AGGRIEVED
PARTY TO ATTACK A FINAL JUDGMENT; PRIVATE RESPONDENTS
HAD LOST THE RIGHT TO FILE A PETITION FOR RELIEF FROM
JUDGMENT; REASON. — 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. It is not difficult to see that private respondents had lost their
right to file a petition for relief from judgment, it appearing that their
omnibus motion for reconsideration was filed exactly six (6) years, ten
(10) months and twenty-two (22) days after the rendition of the decision,
and six (6) years, one (1) month and thirteen (13) days after the court
issued the order approving the Project of Partition, to which they
voluntarily expressed their conformity through their respective
certifications, and closing the testate proceedings.
6. DECREE OF PROBATE IS CONCLUSIVE AS TO DUE
EXECUTION OF THE WILL; CAN BE IMPUGNED ONLY ON
GROUNDS OF FRAUD. — The probate judgment of 13 November 1972,
long final and undistributed 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 in
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. We 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.
In Lee Bun Ting vs. Aligaen, this Court had the occasion to state the
rationale of this doctrine, thus: "Reasons of public policy, judicial
orderliness, economy and judicial time and the interests of litigants, as
well as the peace and order of society, all require that stability be
accorded the solemn and final judgments of the courts or tribunals of
competent jurisdiction."
7. NON-DISTRIBUTION OF THE ESTATE NOT A GROUND
FOR THE RE-OPENING OF THE TESTATE PROCEEDINGS. — 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. InDe Jesus
vs. Daza, 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, 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. As We see it, the attack of 10 September 1973
on the Order was just a clever ploy to give a semblance of strength and
substance to the Omnibus Motion for Reconsideration by depicting
therein a probate court committing a series of fatal, substantive and
procedural blunders, which We find to be imaginary, if not deliberately
fabricated.
DECISION
DAVIDE, JR., J p:
This is a petition for certiorari and prohibition under Rule 65 of
the Revised Rules of Court, with payer for a writ of preliminary injunction,
to annul and set aside, for having been issued without jurisdiction or with
grave abuse of discretion amounting to lack of jurisdiction, the following
Orders of the respondent Judge in Special Proceedings No. 3309-R of
Branch VIII of the then Court of First Instance (now Regional Trial Court)
of Cebu entitled "In The Matter of the Petition for Probate of the Last Will
and Testament of Remedios Mejia Vda. de Tiosejo:"
1. The Order of 26 February 1980 setting for hearing
private respondents' Omnibus Motion for
Reconsideration 1 which was filed six (6) years, ten (10)
months and eighteen (18) days after the probate judgment
was rendered and six (6) years and twenty-one (21) days
after the testate proceedings was declared closed and
terminated; and
2. The Order of 2 June 1980 finding the signature of the
testatrix in the last will and testament to be a forgery and
(a) declaring the testatrix as having died intestate; (b)
declaring the testamentary dispositions in said last will and
testament as null and void; (c) setting aside the order
dated 10 September 1973 declaring the testate
proceedings closed and terminated; (d) revoking the
appointment of Jesus Fran as executor while appointing
respondent Concepcion M. Espina as administratrix; and
(e) ordering the conversion of the proceedings to one of
intestacy. 2 This Order effectively annulled and set aside
the probate judgment of 13 November 1972.
Petitioners would also have this Court nullify all other actions of
respondent Judge in said Sp. Proc. No. 3309-R; restore the status
quo therein prior to the issuance of the foregoing orders; and
permanently enjoin respondent Judge from reopening said proceedings.
The following facts are not controverted:
Remedios M. Vda. de Tiosejo, a widow, died on 10 July 1972 in
Cebu City with neither descendants nor ascendants; she left real and
personal properties located in Cebu City, Ormoc City and Puerto Bello,
Merida, Leyte. Earlier, on 23 April 1972, she executed a last will and
testament 3 wherein she bequeathed to her collateral relatives (brothers,
sisters, nephews and nieces) all her properties, and designated Rosario
Tan or, upon the latter's death, Jesus Fran, as executor to serve without
bond. Instrumental witnesses to the will were Nazario Pacquiao, Alcio
Demerre and Primo Miro. LLpr
On 15 July 1972, Jesus Fran filed a petition with the Court of
First Instance of Cebu for the probate of Remedios' last will and
testament. 4 The case was raffled to the original Branch VIII thereof
which was then presided over by Judge Antonio D. Cinco. The petition
alleged that Rosario Tan is not physically well and, therefore, will not be
assuming the position of administratix. Tan signed a waiver in favor of
Jesus Fran on the third page of the said petition. The probate court
issued an order setting the petition for hearing on 18 September 1972.
Meanwhile, on 31 July 1972, the court appointed petitioner Jesus Fran
as special administrator.
On 10 August 1972, the private respondents, who are sisters to
the deceased, filed a manifestation 5 alleging that they needed time to
study the petition because some heirs who are entitled to receive their
respective shares have been intentionally omitted therein, and praying
that they be given ample time to file their opposition, after which the
hearing be reset to another date.
Private respondents did not file any opposition. Instead, they
filed on 18 September 1972 a "Withdrawal of Opposition to the
Allowance of Probate (sic) of the Will" wherein they expressly
manifested, with their "full knowledge and consent that . . . they have no
objection of (sic) the allowance of the . . . will of the late Remedios Mejia
Vda. de Tiosejo," and that they have "no objection to the issuance of
letters testamentary in favor of petitioner, Dr. Jesus Fran." 6
No other party filed an opposition. The petition thus became
uncontested.
During the initial hearing, petitioner Fran introduced the requisite
evidence to establish the jurisdictional facts.
Upon a determination that the court had duly acquired
jurisdiction over the uncontested petition for probate, Judge Cinco issued
in open court an order directing counsel for petitioner to present
evidence proving the authenticity and due execution of the will before the
Clerk of Court who was, accordingly, so authorized to receive the same.
The reception of evidence by the Clerk of Court immediately
followed. Petition Fran's first witness was Atty. Nazario R. Pacquiao, one
of the subscribing witnesses to the will. The original of the will, marked
as Exhibit "F", and its English translation, marked as Exhibit "F-
Translation", were submitted to the Clerk of Court.7 Petition Fran was the
second and also the last witness. He enumerated the names of the
surviving heirs of the deceased.
On 13 November 1972, the probate court rendered a decision
admitting to probate the will of the testatrix, Remedios Mejia Vda. de
Tiosejo, and appointing petitioner Fran as executor thereof. 8 The
dispositive portion of the decision reads:
"WHEREFORE, in view of all the foregoing, judgment is
hereby rendered declaring the last will and testament of
the deceased Remedios Mejia Vda. de Tiosejo marked as
Exhibit F as admitted to probate. Dr. Jesus Fran is hereby
appointed as executor of the will. Let letters testamentary
be issued in favor of Dr. Jesus Fran. The special
administrator's bond put up by Dr. Jesus Fran as special
administrator duly approved by this Court shall serve and
be considered as the executor's bond considering that the
special administrator and executor are one and the same
person."
The requisite notice to creditors was issued, but despite the
expiration of the period therein fixed, no claim was presented against the
estate.
On 4 January 1973, petitioner Fran filed an Inventory of the
Estate; 9 copies thereof were furnished each of the private respondents.
Subsequently, a Project of Partition based on the dispositions
made in the will and signed by all the devisees and legatees, with the
exception of Luis Fran, Remedios C. Mejia and respondent Concepcion
M. Espina, was submitted by the executor for the court's
approval. 10 Said legatees and devisees submitted certificates wherein
they admit receipt of a copy of the Project of Partition together with the
notice of hearing, and state that they had no objection to its approval. 11
The notice of hearing referred to in these certifications is the 6
August 1973 notice issued by the Clerk of Court setting the hearing on
the Project of Partition for 29 August 1973. 12
After the hearing on the Project of Partition, the court issued its
Order of 10 September 1973 13 approving the same, declaring the
parties therein as the only heirs entitled to the estate of Remedios Mejia
Vda. de Tiosejo, directing the administrator to deliver to the said parties
their respective shares and decreeing the proceedings closed. The
dispositive portion thereof reads:
"WHEREFORE, the signers (sic) to the project of partition
are declared the only heirs entitled to the estate; the
project of partition submitted is ordered approved and the
administrator is ordered to deliver to each one of them
their respective aliquot parts as distributed in the said
project of partition. It is understood that if there are
expenses incurred or to be incurred as expenses of
partition, Section 3 of Rule 90 shall be followed.
Let this proceedings be now declared closed.
SO ORDERED."
Thereafter, the aforesaid Branch VIII of the Court of First
Instance of Cebu was converted to a Juvenile and Domestic Relations
Court. On November 1978, by virtue of Presidential Decree No. 1439,
Branch XVII (Danao City) of the Court of First Instance of Cebu, presided
over by herein respondent Judge, was officially transferred to Cebu City
and renumbered as Branch VIII.
On 1 October 1979, private respondents filed with the new
Branch VIII an Omnibus Motion for Reconsideration of the probate
judgment of 13 November 1972 and on the Order of partition of 10
September 1973; in said motion, they ask the court to declare the
proceedings still open and admit their opposition to the allowance of the
will, 14 which they filed on 1 October 1979. They allege that: (a) they
were not furnished with a copy of the will; (b) the will is a forgery; (c) they
were not notified of any resolution or order on their manifestation
requesting time within which to file their opposition, or of the order
authorizing the clerk of court to receive the evidence for the petitioner, or
of the order closing the proceedings; (d) the reception of evidence by the
clerk of court was void per the ruling in Lim Tanhu vs. Ramolete; 15 (e)
the project of partition contains no notice of hearing and they were not
notified thereof; (f) the petitioner signed the project of partition as
administrator and not as executor, thereby proving that the decedent
died intestate; (g) the petitioner did not submit any accounting as
required by law; and (h) the petitioner never distributed the estate to the
devisees and legatees.
In a detailed opposition 16 to the above Omnibus Motion for
Reconsideration, petitioner Fran refuted all the protestations of private
respondents. Among other reasons, he stresses therein that: (a) private
respondents are in estoppel to question the will because they filed their
Withdrawal Of Opposition To The Allowance of Will which states that
after thoroughly studying the petition, to which was attached a copy of
the English translation of the will, they have no objection to its allowance;
the order directing the clerk of court to receive the evidence was dictated
in open court in the presence of private respondents; private respondent
Maria M. Gandiongco signed the Project of Partition and private
respondent Concepcion M. Espina submitted a certification stating
therein that she received the notice of hearing therefore and has no
objection to its approval; (b) except for some properties, either covered
by a usufruct under the will or agreed upon by the parties to be held in
common by reason of its special circumstance, there was an actual
distribution of the estate in accordance with the Project of Partition;
insofar as private respondents are concerned, they not only received
their respective shares, they even purchased the shares of the other
devisees. To top it all, private respondents' children, namely Rodrigo M.
Gandiongco, Jr. and Victor Espina, mortgaged their respective shares in
favor of a bank.
Notwithstanding petitioners' objections, respondent Judge issued
on 26 February 1980 an Order setting for hearing the said Omnibus
Motion for Reconsideration on 8 April 1980 so that "the witnesses and
the exhibits (may be) properly ventilated." 17
On 25 March 1980, petitioners filed a Motion to Dismiss the
Omnibus Motion and to Reconsider the 26 February 1980 Order setting it
for hearing on 17 April 1980, 18 but the respondent Judge prematurely
denied it for lack of merit in his Order of 31 March 1980. 19
Consequently, on 8 April 1980, the instant petition was filed
challenging the jurisdiction of the lower court in taking cognizance of the
Omnibus Motion for Reconsideration considering that the probate
judgment and the order approving the Project of Partition and terminating
the proceedings had long become final and had in fact been executed.
Private respondents had long lost their right to appeal therefrom. The
Omnibus Motion for Reconsideration cannot likewise be treated as a
petition for relief from judgment for under Rule 38 of the Revised Rules
of Court, the same must be filed within sixty (60) days from receipt of
notice of the judgment/order and within six (6) months from the date of
said judgment. Therefore, this remedy can no longer be availed
of. LexLib
On 8 April 1980, the date the instant petition was filed,
respondent Judge proceeded with the hearing of the Omnibus Motion for
Reconsideration. He received the testimonies of private respondents and
one Romeo O. Varena, an alleged handwriting expert fro the Philippine
Constabulary, who averred that the signature of the testatrix on the will is
a forgery. The respondent Judge likewise issued an Order on the same
date stating that unless he received a restraining order from this Court
within twenty (20) days therefrom, he will reopen Sp. Proc. No. 3309-R.
On 14 April 1980, petitioners filed a Supplemental Petition asking
this Court to restrain respondent Judge from reopening the case. 20
In their voluminous Comments and Opposition to the petition and
Supplemental Petition, 21 private respondents not only amplify in great
detail the grounds raised in their Omnibus Motion for Reconsideration,
they also squarely raise for the first time the following issues:
(a) The probate court never acquired jurisdiction over the
case since petitioner Jesus Fran failed to submit to the
court the original of the will.
(b) They were deprived of the opportunity to examine the
will as petitioner Jesus Fran did not attach it to the petition;
what was attached was only the English translation of the
will.
(c) Even assuming that the probate judge could validly
delegate the reception of evidence to the Clerk of Court,
the proceeding before the latter would sill be void as he
failed to take an oath of office before entering upon his
duties as commissioner and failed to render a report on
the matters submitted to him.
(d) Respondent Maria M. Vda. de Gandiongco was
defrauded into (sic) signing the Project of Partition and
respondent Concepcion M. Espina, her certification, when
 they were misled by petitioner Fran into believing that the
Agreement of Partition to be submitted to the court is the
Extra Judicial Patrician they signed on 7 May 1973.
(e) Petitioner Fran is guilty of fraud in undervaluing the
estate of the late Remedios Media Vda. de Tiosejo by
reporting properties worth only P400,000.00 when in truth
and in fact the estate has an aggregate value of
P2,094,333.00.
In the Resolution dated 2 June 1980, We issued a restraining
order enjoining respondent Judge from reopening Sp. Proc. No. 3309-
R. 22
However, on the same date, before the restraining order was
served on him, respondent Judge issued the impugned order declaring
the testamentary dispositions of the will void, finding the signature of the
late Remedios Media Vda. de Tiosejo to be a forgery, decreeing the
reopening of Sp. Proc. No. 3309-R and converting the same into an
intestate proceeding. 23
Hence, on 6 June 1980, petitioners filed their Second
Supplemental Petition 24 asking this Court to declare as null and void
the Order of 2 June 1980 and, pending such declaration, to restrain
respondent Judge from enforcing the same. Private respondents filed
their Comment and Opposition to the Second Supplemental Petition on 9
July 1980.
Thereafter, as mandated in the resolution of 30 June
1980, 25 this Court gave due course to this case and required the parties
to file their respective Memoranda, which private respondents complied
with on 16 August 1980; 26 petitioners filed theirs on 27 August
1980. 27 Consequently, the parties continued to file several pleadings
reiterating substantially the same allegations and arguments earlier
submitted to this Court.
On 22 March 1984, counsel for petitioners filed a manifestation
informing this Court of the death of petitioner Fran on 29 February 1984
and enumerating therein his surviving heirs. On 2 April 1984, this Court
resolved to have said heirs substitute him in this case.
Over a year later, respondent Maria M. Vda. de Gandiongco filed
an affidavit, 28 sworn to before the acting Clerk of Court of the Regional
Trial Court in Cebu City, disclosing the following material facts: (a) she
signed the Omnibus Motion for Reconsideration dated 1 October 1979
without knowing or reading the contents thereof; (b) she saw the will of
the late Remedios Media Vda. de Tiosejo written in the Cebuano dialect
after the same was executed by the latter; the said will bearing the
authentic signature of Remedios was the very one presented to the
probate court by petitioner's counsel; (c) she received the notice of
hearing of the petition for probate and because she was convinced that
the signature of the testatrix was genuine, she, together with Concepcion
M. Espina, withdrew her opposition; (d) she received her share of the
estate of the late Remedios Media Vda. de Tiosejo which was distributed
in accordance with the provisions of the latter's will; and (e) she did not
authorize Atty. Numeriano Estenzo or other lawyers to present a motion
to this Court after 25 February 1981 when Estenzo withdrew as counsel
for private respondents. She then asks this Court to consider as
withdrawn her Opposition to the Allowance of the Will, her participation in
the Omnibus Motion for Reconsideration and her Opposition to this
petition.
Due to the development, We required private respondent
Concepcion M. Espina to comment on the affidavit of private respondent
Maria M. Vda. de Gandiongco.
On 17 August 1985, private respondents filed a joint
manifestation 29 wherein they claim that Maria M. Vda. de Gandiongco
does not remember executing the affidavit. A few weeks before the
affidavit was filed, particularly on 17 June 1985, Maria M. Vda. de
Gandiongco was confined in the hospital; she could not recall having
signed, during this period, any affidavit or recognized her sisters and
other relatives.
On 19 September 1985, respondent Maria M. Vda. de
Gandiongco, through special counsel, filed a Manifestation/Motion with a
second Affidavit attached thereto 30 confessing that she signed the Joint
Manifestation dated 16 August 1985 "without knowing or being informed
of its contents, and only upon Mrs. Concepcion Espina's request." She
reiterated her desire to withdraw from the Omnibus Motion for
Reconsideration filed in Sp. Proc. No. 3309-R as well as from the instant
petition.
Despite the valiant attempt of private respondent Concepcion M.
Espina to influence and control the action of Maria Gandiongco, there is
nothing in the records that would cast any doubt on the irrevocability of
the latter's decision to withdraw her participation in the Omnibus Motion
for Reconsideration and Opposition to this case. That decision, however,
is not a ground for dropping her as a private respondent as the
respondent Judge had already issued the abovementioned Order of 2
June 1980.
The petition and the supplemental petitions are impressed with
merit.
We do not hesitate to rule that the respondent Judge committed
grave abuse of discretion amounting to lack of jurisdiction when he
granted the Omnibus Motion for Reconsideration and thereafter set aside
the probate judgment of 13 November 1972 in Sp. Proc. No. 3309-R,
declared the subject will of the testatrix a forgery, nullified the
testamentary dispositions therein and ordered the conversion of the
testate proceedings into one of intestacy.
It is not disputed that private respondents filed on the date of the
initial hearing of the petition their "Withdrawal of Opposition To
Allowance of Probate (sic) Will" wherein they unequivocally state that
they have no objection to the allowance of the will. For all legal intents
and purposes, they became proponents of the same.
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.
Neither do We give any weight to the contention that the
reception of evidence by the Clerk of Court is null and void per the
doctrine laid down in Lim Tanhu v.Ramolete. 31 In the first place, Lim
Tanhu was decided on 29 August 1975, nearly four (4) years after the
probate court authorized the Clerk of Court to receive the evidence for
the petitioner in this case. A month prior to Lim Tanhu, or on 30 July
1975, this Court, in Laluan vs. Malpaya, 32 recognized and upheld the
practice of delegating the reception of evidence to Clerks of Court. Thus:
"No provision of law or principle of public policy prohibits a
court from authorizing its clerk of court to receive the
evidence of a party litigant. After all, the reception of
evidence by the clerk of court constitutes but a ministerial
task — the taking down of the testimony of the witnesses
and the marking of the pieces of documentary evidence, if
any, adduced by the party present. This task of receiving
evidence precludes, on the part of the clerk of court, the
exercise of judicial discretion usually called for when the
other party who is present objects to questions
propounded and to the admission of the documentary
evidence proffered. 33 More importantly, the duty to render
judgment on the merits of the case still rests with the judge
who is obliged to personally and directly prepare the
decision based upon the evidence reported. 34
But where the proceedings before the clerk of court and
the concomitant result thereof, i.e., the judgment rendered
by the court based on the evidence presented in such
limited proceedings, prejudice the substantial rights of the
aggrieved party, then there exists sufficient justification to
grant the latter complete opportunity to thresh out his case
in court." 35
Monserrate vs. Court of Appeals, 36 decided on 29 September 1989,
reiterated this rule. 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 in 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, . . .; Rules 67 and 69, . . .;
Rule 86, . . .; Rule 136, . . . In all these instances, the
competence of the clerk of court is assumed. Indeed, there
would seem, to be sure, nothing intrinsically wrong in
allowing presentation of evidenceex parte before a Clerk of
Court. Such a procedure certainly does not foreclose relief
to the party adversely affected who, for valid cause and
upon appropriate and seasonable application, may bring
about the undoing thereof or the elimination of prejudice
 thereby caused to him; and it is, after all, the Court itself
which is duty bound and has the ultimate responsibility to
pass upon the evidence received in this manner,
discarding in the process such proofs as are incompetent
and then declare what facts have thereby been
established. In considering and analyzing the evidence
preparatory to rendition of judgment on the merits, it may
not unreasonably be assumed that any serious error in
the ex-parte presentation of evidence, prejudicial to any
absent party, will be detected and duly remedied by the
Court, and/or may always, in any event, be drawn to its
attention by any interested party.
xxx xxx xxx
It was therefore error for the Court a quo to have declared
the judgment by default to be fatally flawed by the fact that
the plaintiff's evidence had been received not by the Judge
himself but by the clerk of court."
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. This is not correct; as this Court
said inLaluan:
"The provisions of Rule 33 of the Rules of Court invoked
by both parties properly relate to the reference by a court
of any or all of the issues in a case to a person so
commissioned to act or report thereon. These provisions
explicitly spell out the rules governing the conduct of the
court, the commissioner, and the parties before, during,
and after the reference proceedings. Compliance with
these rules of conduct becomes imperative only when the
court formally orders a reference of the case to a
commissioner. Strictly speaking then, the provisions of
Rule 33 find no application to the case at bar where the
court a quo merely directed the clerk of court to take down
the testimony of the witnesses presented and to mark the
documentary evidence proffered on a date previously set
for hearing."
Belatedly realizing the absence of substance of the above
grounds, private respondents now claim in their Comments to the
Petition and the Supplemental Petition that the trial court never acquired
jurisdiction over the petition because only the English translation of the
will — and not a copy of the same — was attached to the petition; the will
was not even submitted to the court for their examination within twenty
(20) days after the death of the testatrix; and that there was fraud in the
procurement of the probate judgment principally because they were not
given any chance to examine the signature of the testatrix and were
misled into signing the withdrawal of their opposition on the assurance of
petitioner Fran and their sister, Rosario M. Tan, that the will would be
shown to them during the trial. These two grounds easily serve as the
bases for the postulation that the decision is null and void and so,
therefore, their omnibus motion became all the more timely and proper.
The contentions do not impress this Court.
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 ." 41 In
the second case, this Court was more emphatic in holding that:
"The law is silent as to the specific manner of bringing the
jurisdictional allegations before the court, but through
practice the jurisprudence have established that they
should be made in the form of an application and filed with
the original of the will attached thereto. It has been the
practice in some courts to permit attachment of a mere
copy of the will to the application, without prejudice to
producing the original thereof at the hearing or when the
court so requires. This precaution has been adopted by
some attorneys to forestall its disappearance, which has
taken place in certain cases." 42
That the annexing of the original will to the petition is not a
jurisdictional requirement is clearly evident in Section 1, Rule 76 of the
Rules of Court which allows the filing of a petition for probate by the
person named therein regardless of whether or not he is in possession of
the will, or the same is lost or destroyed. The section reads in full as
follows:
"SECTION 1. Who may petition for the allowance of will. —
Any executor, devisee, or legatee named in a will, or any
other person interested in the estate, may, at any time
after the death of the testator, petition the court having
 jurisdiction to have the will allowed, whether the same be
in his possession or not, or is lost or destroyed."
In the instant case, a copy of the original will and its English
translation were attached to the petition as Annex "A" and Annex "A-1",
respectively, and made integral part of the same. It is to be presumed
that upon the filing of the petition the Clerk of Court, or his duly
authorized subordinate, examined the petition and found that the
annexes mentioned were in fact attached thereto. If they were not, the
petition cannot be said to have been properly presented and the Clerk of
Court would not have accepted it for docketing. Under Section 6, Rule
136 of the Rules of Court, the Clerk of Court shall receive and file all
pleadings and other papers properly presented, endorsing on each such
paper the time when it was filed. The presumption of regularity in the
performance of official duty militates against private respondents' claim
that Annex "A" of the petition was not in fact attached thereto.
The certification of the Assistant Clerk of Court issued on 8 April
1980, 43 or SIX (6) months after the filing of the motion for
reconsideration, to the effect that as per examination of the records of
Sp. Proc. No. 3309-R, "the copy of the Will mentioned in the petition as
Annex "A" is not found to be attached as of this date in the said petition;
only the English Translation of said Will is attached thereof (sic) as
Annex "A-1" does not even save the day for private respondents. It is not
conclusive because it fails to state the fact that as hereafter shown, the
pages of the records which correspond to the four (4) pages of Annex "A"
were missing or were detached therefrom. As emphatically asserted by
the petitioners in their Reply to the Comments of private
respondents, 44 duly supported by a certification of the former Clerk of
Court of the original Branch VIII of the court below, 45 and which private
respondents merely generally denied in their motion for reconsideration
with comments and opposition to consolidated reply, 46 the four-page
xerox copy of the will, marked as Annex "A" of the petition, became, as
properly marked by the personnel of the original Branch VIII of the court
below upon the filing of the petition, pages 5, 6, 7 and 8 while the
translation thereof, marked as Annex "A-1", became pages 9, 10, 11 and
12 of the records. The markings were done in long hand. The records of
the case were thereafter sent to the Clerk of Court, 14th Judicial District,
Cebu City on 9 February 1978. These records, now in the possession of
the respondent Judge, show that said pages 5, 6, 7 and 8 in long hand
are missing. As a consequence thereof, petitioners filed with the
Executive Judge of the court below an administrative complaint.
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, thus:
"9. That an examination of the alleged will of our deceased
sister has revealed that the signatures at the left hand
margin of Exhibit "F", are written by (sic) different person
than the signature appearing at the bottom of said alleged
will . . ." 47
The availability of the will since 18 September 1972 for their
examination renders completely baseless the private respondents' claim
of fraud on petitioner Fran's part in securing the withdrawal of their
opposition to the probate of the will. If indeed such withdrawal was
conditioned upon Fran's promise that the private respondents would be
shown the will during the trial, why weren't the appropriate steps taken by
the latter to confront Fran about this promise before certifications of
conformity to the project of partition were filed?
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 such 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
It is not difficult to see that private respondents had lost their
right to file a petition for relief from judgment, it appearing that their
omnibus motion for reconsideration was filed exactly six (6) years, ten
(10) months and twenty-two (22) days after the rendition of the decision,
and six (6) years, one (1) month and thirteen (13) days after the court
issued the order approving the Project of Partition, to which they
voluntarily expressed their conformity through their respective
certifications, and closing the testate proceedings.
 Private respondents did not avail of the other two (2) modes of 10 September 1973 on the Order was just a clever ploy to give a
attack. semblance of strength and substance to the Omnibus Motion for
Reconsideration by depicting therein a probate court committing a series
The probate judgment of 13 November 1972, long final and
of fatal, substantive and procedural blunders, which We find to be
undistributed by any attempt to unsettle it, had inevitably passed beyond
imaginary, if not deliberately fabricated.
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 in the rule that the WHEREFORE, the instant petition and supplemental petitions
decree of probate is conclusive with respect to the due execution of the are GRANTED. The Order of respondent Judge of 2 June 1980 and all
will and it cannot be impugned on any of the grounds authorized by law, other orders issued by him in Sp. Proc. No. 3309-R, as well as all other
except that of fraud, in any separate or independent action or proceedings had therein in connection with or in relation to the Omnibus
proceeding. 50 We wish also to advert to the related doctrine which Motion for Reconsideration, are hereby ANNULLED and SET ASIDE.
holds that final judgments are entitled to respect and should not be
The restraining order issued on 2 June 1980 is hereby made
disturbed; otherwise, there would be a wavering of trust in the
PERMANENT.
courts. 51 In Lee Bun Ting vs. Aligaen, 52 this Court had the occasion to
state the rationale of this doctrine, thus: Costs against private respondent Concepcion M. Espina.
"Reasons of public policy, judicial orderliness, economy SO ORDERED.
and judicial time and the interests of litigants, as well as
the peace and order of society, all require that stability be Gutierrez, Jr., Bidin and Romero, JJ ., concur.
accorded the solemn and final judgments of the courts or Feliciano, J ., took no part.
tribunals of competent jurisdiction."
||| (Heirs of Fran v. Salas, G.R. No. 53546, [June 25, 1992], 285 PHIL 789-
This is so even if the decision is incorrect 53 or, in criminal case, 814)
the penalty imposed is erroneous. 54
Equally baseless and unmeritorious is private respondents'
contention that the order approving the Project of Partition and closing SECOND DIVISION
the proceedings is null and void because the Project of Partition did not
contain a notice of hearing and that they were not notified of the hearing
[G.R. No. 103554. May 28, 1993.]
thereon. In truth, in her own certification 55dated 5 September 1973,
private respondent Concepcion M. Espina admitted that she "received a
copy of the Project of Partition and the Notice of Hearing in the above- TEODORO CANEDA, LORENZA CANEDA, TERESA
entitled proceeding, and that she has no objection to the approval of the CANEDA, JUAN CABALLERO, AUREA CABALLERO,
said Project of Partition." The notice of hearing she referred to is the OSCAR LAROSA, HELEN CABALLERO, SANTOS
Notice of Hearing For Approval of Project of Partition issued on 6 August CABALLERO, PABLO CABALLERO, VICTOR RAGA,
1973 by the Clerk of Court. 56 Private respondent Espina was lying MAURICIA RAGA, QUIRICA RAGA, RUPERTO ABAPO,
through her teeth when she claimed otherwise. represented herein by his Attorney-in-Fact,
ARMSTICIA * ABAPO VELANO, and CONSESO
The non-distribution of the estate, which is vigorously denied by
CANEDA, represented herein by his heirs, JESUS
the petitioners, is not a ground for the re-opening of the testate
CANEDA, NATIVIDAD CANEDA and ARTURO
proceedings. A seasonable motion for execution should have been filed.
CANEDA,petitioners, vs. HON. COURT OF APPEALS
In De Jesus vs. Daza, 57 this Court ruled that if the executor or
and WILLIAM CABRERA, as Special Administrator of
administrator has possession of the share to be delivered, the probate
the Estate of Mateo Caballero, respondents.
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,
Palma, Palma & Associates for petitioners.
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 Emilio Lumontad, Jr. for private respondent.
the recovery of the shares would be in order. As We see it, the attack of
 SYLLABUS
1. CIVIL LAW; SUCCESSION; WILL; DEFINED. — A will has been defined
as a species of conveyance whereby a person is permitted, with the
formalities prescribed by law, to control to a certain degree the disposition of
his estate after his death (Rivera vs. Palmanori, 40 Phil. 116 (1919); Art. 810,
Civil Code).
2. ID.; ID.; ID.; KINDS; REQUIREMENTS FOR EACH. — Under the Civil
Code, there are two kinds of wills which a testator may execute. The first kind
is the ordinary or attested will, the execution of which is governed by Articles
804 to 809 of the Code. In addition to the requirements under Article 805, the
ordinary will must be acknowledged before a notary public by the testator
and the attesting witnesses (Art. 806, Civil Code), hence it is likewise known
as a notarial will. Where the testator is deaf or a deaf-mute, Article 807
requires that he must personally read the will, if able to do so. Otherwise, he
should designate two persons who will read the will and communicate its
contents to him in a practicable manner. On the other hand, if the testator is
blind, the will should be read to him twice; once, by anyone of the witnesses
thereto, and then again, by the notary public before whom it is acknowledged
(Art. 808, Civil Code). The other kind of will is the holographic will, which
Article 810 defines as one that is entirely written, dated, and signed by the
hand of the testator himself. This kind of will, unlike the ordinary type,
requires no attestation by witnesses. A common requirement in both kinds of
wills is that they should be in writing and must have been executed in a
language or dialect known to the testator (Art. 804, Civil Code).
3. ID.; ID.; ID.; ATTESTATION CLAUSE; CONSTRUED. — An attestation
clause refers to that part of an ordinary will whereby the attesting witnesses
certify that the instrument has been executed before them and to the manner
of the execution of the same (Testate Estate of Paula Toray, 87 Phil. 139
[1950]). It is a separate memorandum or record of the facts surrounding the
conduct of execution and once signed by the witnesses, it gives affirmation to
the fact that compliance with the essential formalities required by law has
been observed. (Vda. de Ramos, et al. vs. Court of Appeals, et. al., 81 SCRA
393 [1978]). It is made for the purpose of preserving in a permanent form a
record of the facts that attended the execution of a particular will, so that in
case of failure of the memory of the attesting witnesses, or other casualty,
such facts may still be proved (Leynez vs. Leynez, 68 Phil. 745 [1939]).
4. ID.; ID.; ID.; ID.; ATTESTATION AND SUBSCRIPTION,
DIFFERENTIATED. — It will be noted that Article 805 requires that the
witnesses should both attest and subscribe to the will in the presence of the
testator and of one another. "Attestation" and "subscription" differ in
meaning. Attestation is that act of the senses, while subscription is the act of
the hand. The former is mental, the latter mechanical, and to attest a will is to
know that it was published as such, and to certify the facts required to
constitute an actual and legal publication; but to subscribe a paper published
as a will is only to write on the same paper the names of the witnesses, for
the sole purpose of identification (Hill vs. Davis, 167 P. 465, 466, 64 Okl.
253, L.R.A. 1918 B 687).
5. ID.; ID.; ID.; ID.; REQUIREMENTS; PURPOSES THEREOF. — Under the
third paragraph of Article 805, such a clause, the complete lack of which
would result in the invalidity of the will, should state (1) the number of pages
used upon which the will is written; (2) that the testator signed, or expressly
caused another to sign, the will and every page thereof in the presence of the
attesting witnesses; and (3) that the attesting witnesses witnessed the
signing by the testator of the will and all its pages,and that said witnesses
also signed the will and every page thereof in the presence of the testator
and of one another. The purpose of the law in requiring the clause to state
the number of pages on which the will is written is to safeguard against
possible interpolation or omission of one or some of its pages and to prevent
any increase or decrease in the pages; (In the matter of the Estate of
Sanguinsin, 41 Phil. 875 [1920]; In re Will of Andrada, 42 Phil. 180 [1921])
whereas the subscription of the signatures of the testator and the attesting
witnesses is made for the purpose of authentication and identification, and
thus indicates that the will is the very same instrument executed by the
testator and attested to by the witnesses. (Testate Estate of Paula Toray, 87
Phil. 611 [1938]). Further, by attesting and subscribing to the will, the
witnesses thereby declare the due execution of the will as embodied in the
attestation clause. (Gonzales vs. Gonzales de Carungcong, 90 Phil. 444
[1951]). The attestation clause, therefore, provides strong legal guaranties for
the due execution of a will and to insure the authenticity thereof ( Echevarria
vs. Sarmiento, 66 Phil. 611 [1938]). As it appertains only to the witnesses
and not to the testator, it need be signed only by them (Abangan vs.
Abangan, 40 Phil. 476 [1919]). Where it is left unsigned, it would result in the
invalidation of the will as it would be possible and easy to add the clause on
a subsequent occasion in the absence of the testator and the witnesses.
(Cagro vs. Cagro, 92 Phil. 1032 [1953]). In Taboada vs. Rosal, (118 SCRA
195 [1982]), we clarified that attestation consists in witnessing the testator's
execution of the will in order to see and take note mentally that those things
are done which the statute requires for the execution of a will and that the
signature of the testator exists as a fact. On the other hand, subscription is
the signing of the witnesses' names upon the same paper for the purpose of
identification of such paper as the will which was executed by the testator. As
it involves a mental act, there would be no means, therefore, of ascertaining
by a physical examination of the will whether the witnesses had indeed
signed in the presence of the testator and of each other unless this is
substantially expressed in the attestation.
6. ID.; ID.; ID.; ID.; ID.; NOT SATISFIED IN CASE AT BAR. — What is fairly
apparent upon a careful reading of the attestation clause herein assailed is
the fact that while it recites that the testator indeed signed the will and all its
pages in the presence of the three attesting witnesses and states as well the
number of pages that were used, the same does not expressly state therein
the circumstance that said witnesses subscribed their respective signatures
to the will in the presence of the testator and of each other. The phrase "and
he has signed the same and every page thereof, on the spaces provided for
his signature and on the left hand margin," obviously refers to the testator
and not the instrumental witnesses as it is immediately preceded by the
words "as his Last Will and Testament." On the other hand, although the
words "in the presence of the testator and in the presence of each and all of
us" may, at first blush, appear to likewise signify and refer to the witnesses, it
must however, be interpreted as referring only to the testator signing in the
presence of the witnesses since said phrase immediately follows the words
"he has signed the same and every page thereof, on the spaces provided
for his signature and on the left hand margin." What is then clearly lacking, in
the final logical analysis, is the statement that the witnesses signed the will
and every page thereof in the presence of the testator and of one another. It
is our considered view that the absence of that statement required by law is a
fatal defect or imperfection which must necessarily result in the disallowance
of the will that is here sought to be admitted to probate. Petitioners are
correct in pointing out that the aforestated defect in the attestation clause
obviously cannot be characterized as merely involving the form of the will or
the language used therein which would warrant the application of the
substantial compliance rule, as contemplated in Article 809 of the Civil Code.
Where the attestation clause totally omits the fact that the attesting witnesses
signed each and every page of the will in the presence of the testator and of
each other, the defect is not only in the form or the language of the
attestation clause but the total absence of a specific element required by
Article 805 to be specifically stated in the attestation clause of a will. That is
precisely the defect complained of in the present case since there is no
plausible way by which we can read into the questioned attestation clause
any statement, or an implication thereof, that the attesting witnesses did
actually bear witness to the signing by the testator of the will and all its pages
and that said instrumental witnesses also signed the will and every page
thereof in the presence of the testator and of one another.
7. ID.; ID.; ID.; ID.; ID.; RULE ON SUBSTANTIAL COMPLIANCE UNDER
ART. 809 OF THE CIVIL CODE; NOT APPLICABLE IN CASE AT BAR. —
The rule on substantial compliance in Article 809 cannot be invoked or relied
on by respondents since it presupposes that the defects in the attestation
clause can be cured or supplied by the text of the will or a consideration of
matters apparent therefrom which would provide the data not expressed in
the attestation clause or from which it may necessarily be gleaned or clearly
inferred that the acts not stated in the omitted textual requirements were
actually complied with in the execution of the will. In other words, the defects
must be remedied by intrinsic evidence supplied by the will itself. In the case
at bar, contrarily, proof of the acts required to have been performed by the
attesting witnesses can be supplied only by extrinsic evidence thereof, since
an overall appreciation of the contents of the will yields no basis whatsoever
from which such facts may be plausibly deduced. What private respondent
insists on are the testimonies of his witnesses alleging that they saw the
compliance with such requirements by the instrumental witnesses, oblivious
of the fact that he is thereby resorting to extrinsic evidence to prove the same
and would accordingly be doing by indirection what in law he cannot do
directly. It may thus be stated that the rule, as it now stands, is that
omissions which can be supplied by an examination of the will itself, without
the need of resorting to extrinsic evidence, will not be fatal and,
correspondingly, would not obstruct the allowance to probate of the will being
assailed. However, those omissions which cannot be supplied except by
evidence aliunde would result in the invalidation of the attestation clause and
ultimately, of the will itself.
DECISION
REGALADO, J p:
Presented for resolution by this Court in the present petition for review on
certiorari is the issue of whether or not the attestation clause contained in the
last will and testament of the late Mateo Caballero complies with the
requirements of Article 805, in relation to Article 809, of the Civil Code.
The records show that on December 5, 1978, Mateo Caballero, a widower
without any children and already in the twilight years of his life, executed a
last will and testament at his residence in Talisay, Cebu before three
attesting witnesses, namely, Cipriano Labuca, Gregorio Cabando and
Flaviano Toregosa. The said testator was duly assisted by his lawyer, Atty.
Emilio Lumontad, and a notary public, Atty. Filoteo Manigos, in the
preparation of that last will. 1 It was declared therein, among other things,
that the testator was leaving by way of legacies and devises his real and
personal properties to Presentacion Gaviola, Angel Abatayo, Rogelio
Abatayo, Isabelito Abatayo, Benoni G. Cabrera and Marcosa Alcantara, all of
whom do not appear to be related to the testator. 2
Four months later, or on April 4, 1979, Mateo Caballero himself filed a
petition docketed as Special Proceeding No. 3899-R before Branch II of the
then Court of First Instance of Cebu seeking the probate of his last will and
testament. The probate court set the petition for hearing on August 20, 1979
but the same and subsequent scheduled hearings were postponed for one
reason or another. On May 29, 1980, the testator passed away before his
petition could finally be heard by the probate court. 3 On February 25, 1981,
Benoni Cabrera, one of the legatees named in the will, sought his
appointment as special administrator of the testator's estate, the estimated
value of which was P24,000.00, and he was so appointed by the probate
court in its order of March 6, 1981. 4
Thereafter, herein petitioners, claiming to be nephews and nieces of the
testator, instituted a second petition, entitled "In the Matter of the Intestate
Estate of Mateo Caballero" and docketed as Special Proceeding No. 3965-R,
before Branch IX of the aforesaid Court of First Instance of Cebu. On
October 18, 1982, herein petitioners had their said petition for intestate
proceedings consolidated with Special Proceeding No. 3899-R in Branch II of
the Court of First Instance of Cebu and opposed thereat the probate of the
testator's will and the appointment of a special administrator for his estate. 5
Benoni Cabrera died on February 8, 1982 hence the probate court, now
known as Branch XV of the Regional Trial Court of Cebu, appointed William
Cabrera as special administrator on June 21, 1983. Thereafter, on July 20,
1983, it issued an order for the return of the records of Special Proceeding
No. 3965-R to the archives since the testate proceedings for the probate of
the will had to be heard and resolved first. On March 26, 1984 the case was
reraffled and eventually assigned to Branch XII of the Regional Trial Court of
Cebu where it remained until the conclusion of the probate proceedings. 6
In the course of the hearing in Special Proceeding No. 3899-R, herein
petitioners appeared as oppositors and objected to the allowance of the
testator's will on the ground that on the alleged date of its execution, the
testator was already in a poor state of health such that he could not have
possibly executed the same. Petitioners likewise reiterated the issue as to
the genuineness of the signature of the testator therein. 7
On the other hand, one of the attesting witnesses, Cipriano Labuca, and the
notary public, Atty. Filoteo Manigos, testified that the testator executed the
will in question in their presence while he was of sound and disposing mind
and that, contrary to the assertions of the oppositors, Mateo Caballero was in
good health and was not unduly influenced in any way in the execution of his
will. Labuca also testified that he and the other witnesses attested and
signed the will in the presence of the testator and of each other. The other
two attesting witnesses were not presented in the probate hearing as they
had died by then. 8
On April 5, 1988, the probate court rendered a decision declaring the will in
question as the last will and testament of the late Mateo Caballero, on the
ratiocination that:
". . . The self-serving testimony of the two witnesses of the
oppositors cannot overcome the positive testimonies of
Atty. Filoteo Manigos and Cipriano Labuca who clearly told
the Court that indeed Mateo Caballero executed this Last
Will and Testament now marked Exhibit 'C' on December
5, 1978. Moreover, the fact that it was Mateo Caballero
who initiated the probate of his Will during his lifetime
when he caused the filing of the original petition now
marked Exhibit 'D' clearly underscores the fact that this
was indeed his Last Will. At the start, counsel for the
oppositors manifested that he would want the signature of
Mateo Caballero in Exhibit 'C' examined by a handwriting
expert of the NBI but it would seem that despite their
avowal and intention for the examination of this signature
of Mateo Caballero in Exhibit 'C', nothing came out of it
because they abandoned the idea and instead presented
Aurea Caballero and Helen Caballero Campo as
witnesses for the oppositors.
"All told, it is the finding of this Court that Exhibit `C' is the
Last Will and Testament of Mateo Caballero and that it
was executed in accordance with all the requisites of
law." 9
Undaunted by said judgment of the probate court, petitioners elevated the
case to the Court of Appeals in CA-G.R. CV No. 19669. They asserted
therein that the will in question is null and void for the reason that its
attestation clause is fatally defective since it fails to specifically state that the
instrumental witnesses to the will witnessed the testator signing the will in
their presence and that they also signed the will and all the pages thereof in
the presence of the testator and of one another.
On October 15, 1991, respondent court promulgated its decision 10 affirming
that of the trial court, and ruling that the attestation clause in the last will of
Mateo Caballero substantially complies with Article 805 of the Civil Code,
thus:
"The question therefore is whether the attestation clause in
question may be considered as having substantially
complied with the requirements of Art. 805 of the Civil
Code. What appears in the attestation clause which the
oppositors claim to be defective is `we do certify that the
testament was read by him and the testator, Mateo
Caballero, has published unto us the foregoing will
consisting of THREE PAGES, including the
acknowledgment, each page numbered correlatively in
letters on the upper part of each page, as his Last Will and
Testament, and he has signed the same and every page
thereof, on the spaces provided for his signature and on
the left hand margin in the presence of the said testator
and in the presence of each and all of us' (emphasis
supplied).
 "To our thinking, this is sufficient compliance and no
evidence need be presented to indicate the meaning that
the said will was signed by the testator and by them (the
witnesses) in the presence of all of them and of one
another. Or as the language of the law would have it that
the testator signed the will 'in the presence of the
instrumental witnesses, and that the latter witnessed and
signed the will and all the pages thereof in the presence of
the testator and of one another.' If not completely or ideally
perfect in accordance with the wordings of Art. 805 but
(sic) the phrase as formulated is in substantial compliance
with the requirement of the law." 11
Petitioners moved for the reconsideration of said ruling of respondent court,
but the same was denied in the latter's resolution of January 14, 1992, 12
hence this appeal now before us. Petitioners assert that respondent court
has ruled upon said issue in a manner not in accord with the law and the
settled jurisprudence on the matter and are now questioning once more, on
the same ground as that raised before respondent court, the validity of the
attestation clause in the last will of Mateo Caballero.
We find the present petition to be meritorious, as we shall shortly hereafter
explain, after some prefatory observations which we feel should be made in
aid of the rationale for our resolution of the controversy.
1. A will has been defined as a species of conveyance whereby a person is
permitted, with the formalities prescribed by law, to control to a certain
degree the disposition of his estate after his death. 13 Under the Civil Code,
there are two kinds of wills which a testator may execute. 14 The first kind is
the ordinary or attested will, the execution of which is governed by Articles
804 to 809 of the Code. Article 805 requires that:
"Art. 805. Every will, other than a holographic will, must be
subscribed at the end thereof by the testator himself or by
the testator's name written by some other person in his
presence, and by his express direction, and attested and
subscribed by three or more credible witnesses in the
presence of the testator and of one another.
The testator or the person requested by him to write his
name and the instrumental witnesses of the will, shall also
sign, as aforesaid, each and every page thereof, except
the last, on the left margin, and all the pages shall be
numbered correlatively in letters placed on the upper part
of each page.
The attestation shall state the number of pages used upon
which the will is written, and the fact that the testator
signed the will and every page thereof, or caused some
other person to write his name, under his express
direction, in the presence of the instrumental witnesses,
and that the latter witnessed and signed the will and all the
pages thereof in the presence of the testator and of one
another. LLphil
If the attestation clause is in a language not known to the
witnesses, it shall be interpreted to them."
In addition, the ordinary will must be acknowledged before a notary public by
the testator and the attesting witnesses, 15 hence it is likewise known as a
notarial will. Where the testator is deaf or a deaf-mute, Article 807 requires
that he must personally read the will, if able to do so. Otherwise, he should
designate two persons who will read the will and communicate its contents to
him in a practicable manner. On the other hand, if the testator is blind, the
will should be read to him twice; once, by anyone of the witnesses thereto,
and then again, by the notary public before whom it is acknowledged. 16
The other kind of will is the holographic will, which Article 810 defines as one
that is entirely written, dated, and signed by the hand of the testator himself.
This kind of will, unlike the ordinary type, requires no attestation by
witnesses. A common requirement in both kinds of wills is that they should
be in writing and must have been executed in a language or dialect known to
the testator. 17
However, in the case of an ordinary or attested will, its attestation clause
need not be written in a language or dialect known to the testator since it
does not form part of the testamentary disposition. Furthermore, the
language used in the attestation clause likewise need not even be known to
the attesting witnesses. 18 The last paragraph of Article 805 merely requires
that, in such a case, the attestation clause shall be interpreted to said
witnesses.
An attestation clause refers to that part of an ordinary will whereby the
attesting witnesses certify that the instrument has been executed before
them and to the manner of the execution of the same. 19 It is a separate
memorandum or record of the facts surrounding the conduct of execution
and once signed by the witnesses, it gives affirmation to the fact that
compliance with the essential formalities required by law has been
observed. 20 It is made for the purpose of preserving in a permanent form a
record of the facts that attended the execution of a particular will, so that in
case of failure of the memory of the attesting witnesses, or other casualty,
such facts may still be proved. 21
Under the third paragraph of Article 805, such a clause, the complete lack of
which would result in the invalidity of the will, 22 should state (1) the number
of pages usedupon which the will is written; (2) that the testator signed, or
expressly caused another to sign, the will and every page thereof in the
presence of the attesting witnesses; and (3) that the attesting witnesses
witnessed the signing by the testator of the will and all its
pages, and that said witnesses also signed the will and every page thereof in
the presence of the testator and of one another.
The purpose of the law in requiring the clause to state the number of pages
on which the will is written is to safeguard against possible interpolation or
omission of one or some of its pages and to prevent any increase or
decrease in the pages; 23 whereas the subscription of the signatures of the
testator and the attesting witnesses is made for the purpose of authentication
and identification, and thus indicates that the will is the very same instrument
executed by the testator and attested to by the witnesses. 24
Further, by attesting and subscribing to the will, the witnesses thereby
declare the due execution of the will as embodied in the attestation
clause. 25 The attestation clause, therefore, provides strong legal guaranties
for the due execution of a will and to insure the authenticity thereof. 26 As it
appertains only to the witnesses and not to the testator, it need be signed
only by them. 27 Where it is left unsigned, it would result in the invalidation of
the will as it would be possible and easy to add the clause on a subsequent
occasion in the absence of the testator and the witnesses. 28
In its report, the Code Commission commented on the reasons of the law for
requiring the formalities to be followed in the execution of wills, in the
following manner: cdll
"The underlying and fundamental objectives permeating
the provisions on the law on wills in this Project consists in
the liberalization of the manner of their execution with the
end in view of giving the testator more freedom in
expressing his last wishes, but with sufficient safeguards
and restrictions to prevent the commission of fraud and the
exercise of undue and improper pressure and influence
upon the testator.
"This objective is in accord with the modern tendency with
respect to the formalities in the execution of wills. . . ." 29
2. An examination of the last will and testament of Mateo Caballero shows
that it is comprised of three sheets all of which have been numbered
correlatively, with the left margin of each page thereof bearing the respective
signatures of the testator and the three attesting witnesses. The part of the
will containing the testamentary dispositions is expressed in the Cebuano-
Visayan dialect and is signed at the foot thereof by the testator. The
attestation clause in question, on the other hand, is recited in the English
language and is likewise signed at the end thereof by the three attesting
witnesses thereto. 3 0 Since it is the proverbial bone of contention, we
reproduce it again for facility of reference:
"We, the undersigned attesting Witnesses, whose
Residences and postal addresses appear on the Opposite
of our respective names, we do hereby certify that the
Testament was read by him and the testator, MATEO
CABALLERO, has published unto us the foregoing Will
consisting of THREE PAGES, including the
Acknowledgment, each page numbered correlatively in
letters on the upper part of each page, as his Last Will and
Testament and he has signed the same and every page
thereof, on the spaces provided for his signature and on
the left hand margin, in the presence of the said testator
and in the presence of each and all of us."
It will be noted that Article 805 requires that the witnesses should both attest
and subscribe to the will in the presence of the testator and of one another.
"Attestation" and "subscription" differ in meaning. Attestation is that act of the
senses, while subscription is the act of the hand. The former is mental, the
latter mechanical, and to attest a will is to know that it was published as such,
and to certify the facts required to constitute an actual and legal publication;
but to subscribe a paper published as a will is only to write on the same
paper the names of the witnesses, for the sole purpose of identification. 31
In Taboada vs. Rosal, 32 we clarified that attestation consists in witnessing
the testator's execution of the will in order to see and take note mentally that
those things are done which the statute requires for the execution of a will
and that the signature of the testator exists as a fact. On the other hand,
subscription is the signing of the witnesses' names upon the same paper for
the purpose of identification of such paper as the will which was executed by
the testator. As it involves a mental act, there would be no means, therefore,
of ascertaining by a physical examination of the will whether the witnesses
had indeed signed in the presence of the testator and of each other unless
this is substantially expressed in the attestation.
It is contended by petitioners that the aforequoted attestation clause, in
contravention of the express requirements of the third paragraph of Article
805 of the Civil Code for attestation clauses, fails to specifically state the fact
that the attesting witnesses witnessed the testator sign the will and all its
pages in their presence and that they, the witnesses, likewise signed the will
and every page thereof in the presence of the testator and of each other. We
agree.
What is fairly apparent upon a careful reading of the attestation clause herein
assailed is the fact that while it recites that the testator indeed signed the will
and all its pages in the presence of the three attesting witnesses and states
as well the number of pages that were used, the same does not expressly
state therein the circumstance that said witnesses subscribed their
respective signatures to the will in the presence of the testator and of each
other.
The phrase "and he has signed the same and every page thereof, on the
spaces provided for his signature and on the left hand margin," obviously
refers to the testator and not the instrumental witnesses as it is immediately
preceded by the words "as his Last Will and Testament." On the other hand,
although the words "in the presence of the testator and in the presence of
each and all of us" may, at first blush, appear to likewise signify and refer to
the witnesses, it must however, be interpreted as referring only to the testator
signing in the presence of the witnesses since said phrase immediately
follows the words "he has signed the same and every page thereof, on the
spaces provided for his signature and on the left hand margin." What is then
clearly lacking, in the final logical analysis, is the statement that the
witnesses signed the will and every page thereof in the presence of the
testator and of one another. cdll
It is our considered view that the absence of that statement required by law is
a fatal defect or imperfection which must necessarily result in the
disallowance of the will that is here sought to be admitted to probate.
Petitioners are correct in pointing out that the aforestated defect in the
attestation clause obviously cannot be characterized as merely involving the
form of the will or the language used therein which would warrant the
application of the substantial compliance rule, as contemplated in the
pertinent provision thereon in the Civil Code, to wit:
"Art. 809. In the absence of bad faith, forgery, or fraud, or
undue and improper pressure and influence, defects and
imperfections in the form of attestation or inthe
language used therein shall not render the will invalid if it is
proved that the will was in fact executed and attested in
substantial compliance with all the requirements of article
805" (Emphasis supplied.)
While it may be true that the attestation clause is indeed subscribed at the
end thereof and at the left margin of each page by the three, attesting
witnesses, it certainly cannot be conclusively inferred therefrom that the said
witnesses affixed their respective signatures in the presence of the testator
and of each other since, as petitioners correctly observed, the presence of
said signatures only establishes the fact that it was indeed signed, but it does
not prove that the attesting witnesses did subscribe to the will in the
presence of the testator and of each other. The execution of a will is
supposed to be one act so that where the testator and the witnesses sign on
various days or occasions and in various combinations, the will cannot be
stamped with the imprimatur of effectivity. 33
We believe that the following comment of former Justice J.B.L.
Reyes 34 regarding Article 809, wherein he urged caution in the application
of the substantial compliance rule therein, is correct and should be applied in
the case under consideration, as well as to future cases with similar
questions:
". . . The rule must be limited to disregarding those defects
that can be supplied by an examination of the will itself:
whether all the pages are consecutively numbered;
whether the signatures appear in each and every page;
whether the subscribing witnesses are three or the will was
notarized. All these are facts that the will itself can reveal,
and defects or even omissions concerning them in the
attestation clause can be safely disregarded. But the total
number of pages, and whether all persons required to sign
did so in the presence of each other must substantially
appear in the attestation clause, being the only check
against perjury in the probate proceedings." (Emphasis
ours.)
3. We stress once more that under Article 809, the defects or imperfections
must only be with respect to the form of the attestation or the language
employed therein. Such defects or imperfections would not render a will
invalid should it be proved that the will was really executed and attested in
compliance with Article 805. In this regard, however, the manner of proving
the due execution and attestation has been held to be limited to merely an
examination of the will itself without resorting to evidence aliunde, whether
oral or written.
The foregoing considerations do not apply where the attestation
clause totally omits the fact that the attesting witnesses signed each and
every page of the will in the presence of the testator and of each other. 35 In
such a situation, the defect is not only in the form or the language of the
attestation clause but the total absence of a specific element required by
Article 805 to be specifically stated in the attestation clause of a will. That is
precisely the defect complained of in the present case since there is no
plausible way by which we can read into the questioned attestation clause
any statement, or an implication thereof, that the attesting witnesses did
actually bear witness to the signing by the testator of the will and all its pages
and that said instrumental witnesses also signed the will and every page
thereof in the presence of the testator and of one another. cdphil
Furthermore, the rule on substantial compliance in Article 809 cannot be
invoked or relied on by respondents since it presupposes that the defects in
the attestation clause can be cured or supplied by the text of the will or a
consideration of matters apparent therefrom which would provide the data
not expressed in the attestation clause or from which it may necessarily be
gleaned or clearly inferred that the acts not stated in the omitted textual
requirements were actually complied with in the execution of the will. In other
words, the defects must be remedied by intrinsic evidence supplied by the
will itself.
In the case at bar, contrarily, proof of the acts required to have been
performed by the attesting witnesses can be supplied only by extrinsic
evidence thereof, since an overall appreciation of the contents of the will
yields no basis whatsoever from which such facts may be plausibly deduced.
What private respondent insists on are the testimonies of his witnesses
alleging that they saw the compliance with such requirements by the
instrumental witnesses, oblivious of the fact that he is thereby resorting to
extrinsic evidence to prove the same and would accordingly be doing by
indirection what in law he cannot do directly.
4. Prior to the advent of the Civil Code on August 30, 1950, there was a
divergence of views as to which manner of interpretation should be followed
in resolving issues centering on compliance with the legal formalities required
in the execution of wills. The formal requirements were at that time embodied
primarily in Section 618 of Act No. 190, the Code of Civil Procedure. Said
section was later amended by Act No. 2645, but the provisions respecting
said formalities found in Act No. 190 and the amendment thereto were
practically reproduced and adopted in the Civil Code.
One view advanced the liberal or substantial compliance rule. This was first
laid down in the case of Abangan vs. Abangan, 36 where it was held 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 guarantee their truth and authenticity. Therefore, the laws on this
subject should be interpreted in such a way as to attain these primordial
ends. Nonetheless, it was also emphasized that 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, hence 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. The subsequent cases of Avera vs.
Garcia, 37 Aldaba vs. Roque, 38 Unson vs. Abella, 39 Pecson vs.
Coronel, 40 Fernandez vs. Vergel de Dios, et al., 41 and Nayve vs. Mojal, et
al., 42 all adhered to this position.
The other view which advocated the rule that statutes which prescribe the
formalities that should be observed in the execution of wills are mandatory in
nature and are to be strictly construed was followed in the subsequent cases
of In the Matter of the Estate of Saguinsin, 43 In re Will of Andrada, 44 Uy
Coque vs. Sioca, 45 In re Estate of Neumark, 46 and Sano vs. Quintana. 47
Gumban vs. Gorecho, et al., 48 provided the Court with the occasion to
clarify the seemingly conflicting decisions in the aforementioned cases. In
said case of Gumban, the attestation clause had failed to state that the
witnesses signed the will and each and every page thereof on the left margin
in the presence of the testator. The will in question was disallowed, with
these reasons therefor: LLjur
"In support of their argument on the assignment of error
above-mentioned, appellants rely on a series of cases of
this court beginning with (I)n the Matter of the (E)state of
Saguinsin ([1920], 41 Phil., 875), continuing with In re Will
of Andrada [1921], 42 Phil., 180), Uy Coque vs. Navas L.
Sioca [1922], 43 Phil. 405), and In re Estate of Neumark
([1923], 46 Phil., 841), and ending with Sano vs. Quintana
([1925], 48 Phil., 506). Appellee counters with the citation
of a series of cases beginning with Abangan vs. Abangan
([1919], 40 Phil., 476), continuing through Aldaba vs.
Roque ([1922], 43 Phil., 378), and Fernandez vs. Vergel
de Dios ([1924], 46 Phil., 922), and culminating in Nayve
vs. Mojal and Aguilar ([1924], 47 Phil., 152). In its last
analysis, our task is to contrast and, if possible, conciliate,
the last two decisions cited by opposing counsel, namely,
those of Sano vs. Quintana, supra, and Nayve vs. Mojal
and Aguilar, supra.
"In the case of Sano vs. Quintana, supra, it was decided
that an attestation clause which does not recite that the
witnesses signed the will and each and every page thereof
on the left margin in the presence of the testator is
defective, and such a defect annuls the will. The case of
Uy Coque vs. Sioca, supra, was cited, but the case of
Nayve vs. Mojal and Aguilar, supra, was not mentioned. In
contrast, is the decision in Nayve vs. Mojal and
Aguilar, supra, wherein it was held that the attestation
clause must state the fact that the testator and the
witnesses reciprocally saw the signing of the will, for such
an act cannot be proved by the mere exhibition of the will,
if it is not stated therein. It was also held that the fact that
the testator and the witnesses signed each and every
page of the will can be proved also by the mere
examination of the signatures appearing on the document
itself, and the omission to state such evident facts does
not invalidate the will.
"It is a habit of courts to reaffirm or distinguish previous
cases; seldom do they admit inconsistency in doctrine. Yet
here, unless aided by casuistry of the extreme type, it
would be impossible to reconcile the Mojal and Quintana
decisions. They are fundamentally at variance. If we rely
on one, we affirm. If we rely on the other, we reverse.
"In resolving this puzzling question of authority, three
outstanding points may be mentioned. In the first place,
the Mojal decision was concurred in by only four members
of the court, less than a majority, with two strong
dissenting opinions; the Quintana decision was concurred
in by seven members of the court, a clear majority, with
one formal dissent. In the second place, the Mojal decision
was promulgated in December, 1924, while the Quintana
decision was promulgated in December 1925; the
Quintana decision was thus subsequent in point of time.
And in the third place, the Quintana decision is believed
more nearly to conform to the applicable provisions of the
law.
"The right to dispose of property by will is governed
entirely by statute. The law of the case is here found in
section 61 of the Code of Civil Procedure, as amended
byAct No. 2645, and in section 634 of the same Code, as
unamended. It is in part provided in section 61, as
amended that 'No will . . . shall be valid . . . unless . . . .' It
is further provided in the same section that `The
attestation shall state the number of sheets or pages used,
upon which the will is written, and the fact that the testator
signed the will and every page thereof, or caused some
other person to write his name, under his express
direction, in the presence of three witnesses, and the latter
witnessed and signed the will and all pages thereof in the
presence of the testator and of each other.' Codal section
634 provides that 'The will shall be disallowed in either of
the following cases: 1. If not executed and attested as in
this Act provided.' The law not alone carefully makes use
of the imperative, but cautiously goes further and makes
use of the negative, to enforce legislative intention. It is not
within the province of the courts to disregard the legislative
purpose so emphatically and clearly expressed.
"We adopt and reaffirm the decision in the case of Sano
vs. Quintana, supra, and, to the extent necessary, modify
the decision in the case of Nayve vs. Mojal and
Aguilar, supra." (Emphases in the original text).
But after the Gumbanclarificatory pronouncement, there were decisions of
the Court that once more appeared to revive the seeming diversity of view
that was earlier threshed out therein. The cases of Quinto vs.
Morata, 49 Rodriguez vs. Alcala, 50 Echevarria vs.
Sarmiento, 51 and Testate Estate of Toray 52 went the way of the ruling as
restated in Gumban. But De Gala vs. Gonzales, et al., 53 Rey vs.
Cartagena, 54 De Ticson vs. De Gorostiza, 55 Sebastian vs.
Panganiban, 56 Rodriguez vs. Yap, 57 Grey vs. Fabia, 58 Leynez vs.
Leynez, 59 Martir vs. Martir, 60 Alcala vs. De Villa, 61 Sabado vs.
Fernandez, 62 Mendoza vs. Pilapil, 63 and Lopez vs. Liboro, 64 veered away
from the strict interpretation rule and established a trend toward an
application of the liberal view.
The Code Commission, cognizant of such a conflicting welter of views and of
the undeniable inclination towards a liberal construction, recommended the
codification of the substantial compliance rule, as it believed this rule to be in
accord with the modern tendency to give a liberal approach to the
interpretation of wills. Said rule thus became what is now Article 809 of the
Civil Code, with this explanation of the Code Commission:
"The present law provides for only one form of executing a
will, and that is, in accordance with the formalities
prescribed by Section 618 of the Code of Civil
Procedureas amended by Act No. 2645. The Supreme
Court of the Philippines had previously upheld the strict
compliance with the legal formalities and had even said
that the provisions of Section 618 of the Code of Civil
Procedure, as amended regarding the contents of the
attestation clause were mandatory, and non-compliance
therewith invalidated the will (Uy Coque vs. Sioca, 43 Phil.
405). These decisions necessarily restrained the freedom
of the testator in disposing of his property.
"However, in recent years the Supreme Court changed its
attitude and has become more liberal in the interpretation
of the formalities in the execution of wills. This liberal view
is enunciated in the cases of Rodriguez vs. Yap, G.R. No.
45924, May 18, 1939; Leynez vs. Leynez, G.R. No. 46097,
October 18, 1939; Martir vs. Martir, G.R. No. 46995, June
21, 1940; and Alcala vs. Villa, G.R. No. 47351, April 18,
1941.
"In the above mentioned decisions of our Supreme Court,
it has practically gone back to the original provisions of
Section 618 of the Code of Civil Procedure before its
amendment by Act No. 2645 in the year 1916. To turn this
attitude into a legislative declaration and to attain the main
objective of the proposed Code in the liberalization of the
 manner of executing wills, article 829 of the Project is
recommended, which reads:
'ART. 829. In the absence of bad faith, forgery, or
fraud, or undue and improper pressure and
influence, defects and imperfections in the form of
attestation or in the language used therein shall
not render the will invalid if it is proved that the will
was in fact executed and attested in substantial
compliance with all the requirements of article
829.'" 65
The so-called liberal rule, the Court said in Gil vs. Murciano, 66 "does not
offer any puzzle or difficulty, nor does it open the door to serious
consequences. The later decisions do tell us when and where to stop; they
draw the dividing line with precision. They do not allow evidence aliunde to fill
a void in any part of the document or supply missing details that should
appear in the will itself. They only permit a probe into the will, an exploration
into its confines, to ascertain its meaning or to determine the existence or
absence of the requisite formalities of law. This clear, sharp limitation
eliminates uncertainty and ought to banish any fear of dire results."
It may thus be stated that the rule, as it now stands, is that omissions which
can be supplied by an examination of the will itself, without the need of
resorting to extrinsic evidence, will not be fatal and, correspondingly, would
not obstruct the allowance to probate of the will being assailed. However,
those omissions which cannot be supplied except by evidence aliunde would
result in the invalidation of the attestation clause and ultimately, of the will
itself. 67
WHEREFORE, the petition is hereby GRANTED and the impugned decision
of respondent court is hereby REVERSED and SET ASIDE. The court a
quo is accordingly directed to forthwith DISMISS its Special Proceeding No.
3899-R (Petition for the Probate of the Last Will and Testament of Mateo
Caballero) and to REVIVE Special Proceeding No. 3965-R (In the Matter of
the Intestate Estate of Mateo Caballero) as an active case and thereafter
duly proceed with the settlement of the estate of the said decedent.
SO ORDERED.
Narvasa, C .J ., Padilla and Nocon, JJ ., concur.
||| (Caneda v. Court of Appeals, G.R. No. 103554, [May 28, 1993])
SECOND DIVISION
[G.R. No. 116668. July 28, 1997.]
ERLINDA A. AGAPAY, petitioner, vs. CARLINA
(CORNELIA) V. PALANG and HERMINIA P. DELA
CRUZ, respondent.
Simplicio M. Sevilleja for petitioner.
Ray L. Basbas & Fe Fernandez-Bautista for respondents.
SYNOPSIS
Miguel Palang married on July 16, 1949. It was his first marriage.
Their only child, Herminia, was born on May 12, 1950.
On July 15, 1973, Miguel, then 63 years old, contracted his second
marriage with Erlinda Agapay, 19, herein petitioner. Two months earlier,
Miguel and Erlinda purchased a piece of riceland. Transfer Certificate of Title
No. 101736 was issued in their names.
On September 23, 1975, a house and lot was purchased allegedly
by Erlinda as the sole vendee. TCT No. 143120 was later issued in her
name.
Miguel and Erlinda's cohabitation produced a son, Kristoper A.
Palang, born on December 6, 1977. In 1979, Miguel and Erlinda were
convicted of concubinage upon Carlina' s complaint. Two years later, Miguel
died.
On July 11, 1981, Carlina Palang and her daughter Herminia Palang
de la Cruz, herein private respondents, instituted an action for recovery of
ownership and possession with damages against petitioner. Private
respondents sought to get back the riceland and the house and lot allegedly
purchased by Miguel during his cohabitation with petitioner.
After trial on the merits, the lower court dismissed the complaint
declaring that there was little evidence to prove that the subject properties
pertained to the conjugal property of Carlina and Miguel Palang.
On appeal, the Court of Appeals reversed the trial court's decision.
Hence, this petition.
The sale of the riceland was made in favor of Miguel and Erlinda.
The application law is Art. 148 of the Family Code on the cohabitation of a
man and a woman under a void marriage or without the benefit of marriage.
The marriage of Miguel and Erlinda was patently void because the earlier
marriage of Miguel and Carlina was still subsisting. Under Art. 148, only the
properties acquired by both of the parties through their actual joint
contribution of money, property or industry shall be owned by them in
common in proportion to their respective contributions. Actual contribution is
required by this provision, in contrast to Art. 147. If the actual contribution of
the party is not proved, there will be no co-ownership and no presumption of
equal shares. Since petitioner failed to prove that she contributed money to
the purchase price ,of the riceland, we find no basis to justify her co-
ownership with Miguel over the same. Consequently, the riceland should
revert to the conjugal partnership property of the deceased Miguel and
private respondent Carlina Palang.
As regards Kristopher Palang's heirship and filiation, the same
should be ventilated in the proper probate court or in a special proceeding
instituted for the purpose, and cannot be adjudicated in an ordinary civil
action for recovery of ownership and possession.
The decision of the Court of Appeals is affirmed.
SYLLABUS
1. CIVIL LAW; FAMILY CODE; PROPERTY REGIME OF UNIONS
WITHOUT MARRIAGE; PROOF OF ACTUAL CONTRIBUTION BY BOTH
PARTIES, REQUIRED; ABSENCE THEREOF IN CASE AT BAR. — The
provision of law applicable here is Article 148 of the Family Code providing
for cases of cohabitation when a man and a woman who are not capacitated
to marry each other live exclusively with each other as husband and wife
without the benefit of marriage or under a void marriage. While Miguel and
Erlinda contracted marriage on July 15, 1973, said union was patently void
because the earlier marriage of Miguel and Carlina was still subsisting and
unaffected by the latter's de facto separation. Under Article 148, only the
properties acquired by both of the parties through their actual joint
contribution of money, property or industry shall be owned by them in
common in proportion to their respective contributions. It must be stressed
that actual contribution is required by this provision, in contrast to Article 147
which states that efforts in the care and maintenance of the family and
household, are regarded as contributions to the acquisition of common
property by one who has no salary or income or work or industry. If the actual
contribution of the party is not proved, there will be no co-ownership and no
presumption of equal shares. Even assuming that the subject property was
bought before cohabitation, the rules of co-ownership would still apply and
proof of actual contribution would still be essential. Since petitioner failed to
prove that she contributed money to the purchase price of the riceland in
Binalonan, Pangasinan, we find no basis to justify her co-ownership with
Miguel over the same. Consequently, the riceland should, as correctly held
by the Court of Appeals, revert to the conjugal partnership property of the
deceased Miguel and private respondent Carlina Palang.
2. ID.; ID.; SEPARATION OF PROPERTY OF THE SPOUSES
DURING MARRIAGE; JUDICIAL ORDER, REQUIRED. — Separation of
property between spouses during the marriage shall not take place except by
judicial order or without judicial conferment when there is an express
stipulation in the marriage settlements. [Article 134 of the Family Code] The
judgment which resulted from the parties' compromise was not specifically
and expressly for separation of property and should not be so inferred.
3. ID.; ID.; DONATION; BETWEEN PERSONS GUILTY OF
ADULTERY OR CONCUBINAGE; VOID; RATIONALE; CASE AT BAR. —
With respect to the house and lot, Erlinda allegedly bought the same for
P20,000.00 on September 23, 1975 when she was only 22 years old. The
testimony of the notary public who prepared the deed of conveyance for the
property reveals the falsehood of this claim. Atty. Constantino Sagun testified
that Miguel Palang provided the money for the purchase price and directed
that Erlinda's name alone be placed as the vendee. The transaction was
properly a donation made by Miguel to Erlinda, but one which was clearly
void and inexistent by express provision of law because it was made
between persons guilty of adultery or concubinage at the time of the
donation, under Article 739 of the Civil Code. Moreover, Article 87 of the
Family Code expressly provides that the prohibition against donations
between spouses now applies to donations between persons living together
as husband and wife without a valid marriage, for otherwise, the condition of
those who incurred guilt would turn out to be better than those in legal union.
4. ID.; ID.; HEIRSHIP AND FILIATION; CANNOT BE
ADJUDICATED IN AN ORDINARY CIVIL ACTION FOR RECOVERY OF
OWNERSHIP; CASE AT BAR. — The issue concerning Kristopher Palang's
status and claim as an illegitimate son and heir to Miguel's estate is here
resolved in favor of respondent court's correct assessment that the trial court
erred in making pronouncements regarding Kristopher's heirship and filiation
"inasmuch as questions as to who are the heirs of the decedent, proof of
filiation of illegitimate children and the determination of the estate of the latter
and claims thereto should be ventilated in the proper probate court or in a
special proceeding instituted for the purpose and cannot be adjudicated in
the instant ordinary civil action which is for recovery of ownership and
possession." Kristopher, not having been impleaded, was not a party to the
case at bar. His mother, Erlinda, cannot be called his guardian ad litem for he
was not involved in the case at bar.
DECISION
ROMERO, J p:
Before us is a petition for review of the decision of the Court of
Appeals in CA-G.R. CV No. 24199 entitled "Erlinda Agapay v. Carlina
(Cornelia) Palang and Herminia P. Dela Cruz" dated June 22, 1994 involving
the ownership of two parcels of land acquired during the cohabitation of
petitioner and private respondent's legitimate spouse.
Miguel Palang contracted his first marriage on July 16, 1949 when
he took private respondent Carlina (or Cornelia) Vallesterol as a wife at the
Pozorrubio Roman Catholic Church in Pangasinan. A few months after the
wedding, in October 1949, he left to work in Hawaii. Miguel and Carlina's
only child, Herminia Palang, was born on May 12, 1950.
Miguel returned in 1954 for a year. His next visit to the Philippines
was in 1964 and during the entire duration of his year-long sojourn he stayed
in Zambales with his brother, not in Pangasinan with his wife and child. The
trial court found evidence that as early as 1957, Miguel had attempted to
divorced Carlina in Hawaii. 1 When he returned for good in 1972, he refused
to live with private respondents, but stayed alone in a house in Pozorrubio,
Pangasinan.
On July 15, 1973, the then sixty-three-year-old Miguel contracted his
second marriage with nineteen-year-old Erlinda Agapay, herein
petitioner. 2 Two months earlier, on May 17, 1973, Miguel and Erlinda, as
evidenced by the Deed of Sale, jointly purchased a parcel of agricultural land
located at San Felipe, Binalonan, Pangasinan with an area of 10,080 square
meters. Consequently, Transfer Certificate of Title No. 101736 covering said
rice land was issued in their names.
A house and lot in Binalonan, Pangasinan was likewise purchased
on September 23, 1975, allegedly by Erlinda as the sole vendee. TCT No.
143120 covering said property was later issued in her name.
On October 30, 1975, Miguel and Cornelia Palang executed a Deed
of Donation as a form of compromise agreement to settle and end a case
filed by the latter. 3The parties therein agreed to donate their conjugal
property consisting of six parcels of land to their only child, Herminia
Palang. 4
Miguel and Erlinda's cohabitation produced a son, Kristopher A.
Palang, born on December 6, 1977. In 1979, Miguel and Erlinda were
convicted of concubinage upon Carlina's complaint. 5 Two years later, on
February 15, 1981, Miguel died.
On July 11, 1981, Carlina Palang and her daughter Herminia Palang
de la Cruz, herein private respondents, instituted the case at bar, an action
for recovery of ownership and possession with damages against petitioner
before the Regional Trial Court in Urdaneta, Pangasinan (Civil Case No. U-
4265). Private respondents sought to get back the riceland and the house
and lot both located at Binalonan, Pangasinan allegedly purchased by Miguel
during his cohabitation with petitioner.
Petitioner, as defendant below, contented that while the riceland
covered by TCT No. 101736 is registered in their names (Miguel and
Erlinda), she had already given her half of the property to their son Kristopher
Palang. She added that the house and lot covered by TCT No. 143120 is her
sole property, having bought the same with her own money. Erlinda added
that Carlina is precluded from claiming aforesaid properties since the latter
had already donated their conjugal estate to Herminia.
After trial on the merits, the lower court rendered its decision on June
30, 1989 dismissing the complaint after declaring that there was little
evidence to prove that the subject properties pertained to the conjugal
property of Carlina and Miguel Palang. The lower court went on to provide for
the intestate shares of the parties, particularly of Kristopher Palang, Miguel's
illegitimate son. The dispositive portion of the decision reads:
"WHEREFORE, premises considered, judgment is
hereby rendered —
1) Dismissing the complaint, with cost against
plaintiffs;
2) Confirming the ownership of defendant Erlinda
Agapay of the residential lot located at Poblacion,
Binalonan, Pangasinan, as evidenced by TCT No. 143120,
Lot 290-B including the old house standing therein;
3) Confirming the ownership of one half (1/2)
portion of that piece of agricultural land situated at Balisa,
San Felipe, Binalonan, Pangasinan, consisting of 10,080
square meters and as evidenced by TCT No. 101736, Lot
1123-A to Erlinda Agapay;
4) Adjudicating to Kristopher Palang as his
inheritance from his deceased father, Miguel Palang, the
one-half (1/2) of the Agricultural land situated at Balisa,
San Felipe, Binalonan, Pangasinan, under TCT No.
101736 in the name of Miguel Palang, provided that the
former (Kristopher) executes, within 15 days after this
decision becomes final and executory, a quit-claim forever
renouncing any claims to annul/reduce the donation to
Herminia Palang de la Cruz of all conjugal properties of
her parents, Miguel Palang and Carlina Vallesterol Palang,
dated October 30, 1975, otherwise, the state of deceased
 Miguel Palang will have to be settled in another separate
action;
5) No pronouncement as to damages and
attorney's fees.
SO ORDERED." 6
On appeal, respondent court reversed the trial court's decision. The
Court of Appeals rendered its decision on July 22, 1994 within the following
dispositive portion:
"WHEREFORE, PREMISES CONSIDERED, the
appealed decision is hereby REVERSED and another one
entered:
1. Declaring plaintiffs-appellants the owner of the
properties in question;
2. Ordering defendant-appellee to vacate and
deliver the properties in question to herein plaintiffs-
appellants;
3. Ordering the Register of Deeds of Pangasinan
to cancel Transfer Certificate of Title Nos. 143120 and
101736 and to issue in lieu thereof another certificate of
title in the name of the plaintiffs-appellants.
No pronouncement as to costs." 7
Hence, this petition.
Petitioner claims that the Court of Appeals erred in not sustaining the
validity of two deeds of absolute sale covering the riceland and the house
and lot, the first in favor of Miguel Palang and Erlinda Agapay and the
second, in favor of Erlinda Agapay alone. Second, petitioner contends that
respondent appellate court erred in not declaring Kristopher A. Palang as
Miguel Palang's illegitimate son and thus entitled to inherit from Miguel's
estate. Third, respondent court erred, according to petitioner, "in not finding
that there is a sufficient pleading and evidence that Kristoffer A. Palang or
Christopher A. Palang should be considered as party defendant in Civil Case
No. U-4625 before the trial court and in CA-G.R. No. 24199. 8
After studying the merits of the instant case, as well as the pertinent
provision of law and jurisprudence, the Court denies the petition and affirms
the questioned decision of the Court of Appeals.
The first and principal issue is the ownership of the two pieces of
property subject of this action. Petitioner assails the validity of the deeds of
conveyance over the same parcels of land. There is no dispute that the
transfer of ownership from the original owners of the riceland and the house
and lot, Corazon Ilomin and the spouses Cespedes, respectively, were valid.
The sale of the riceland on May 17, 1973, was made in favor of
Miguel and Erlinda. The provision of law applicable here is Article 148 of the
Family Code providing for cases of cohabitation when a man or woman who
are not capacitated to marry each other live exclusively with each other as
husband and wife without the benefit of marriage or under a void marriage.
While Miguel and Erlinda contracted marriage on July 15, 1973, said union
was patently void because the earlier marriage of Miguel and Carlina was still
subsisting and unaffected by the latter's de facto separation.
Under Article 148, only the properties acquired by both of the parties
through their actual joint contribution of money, property or industry shall be
owned by them in common in proportion to their respective contributions. It
must be stressed that actual contribution is required by this provision, in
contrast to Article 147 which states that efforts in the care and maintenance
of the family and household, are regarded as contributions to the acquisition
of common property by one who has no salary or income or work or industry.
If the actual contribution of the party is not proved, there will be no co-
ownership and no presumption of equal shares. 9 cda
In the case at bar, Erlinda tried to establish by her testimony that she
is engaged in the business of buy and sell and had a sari-sari store 10 but
failed to persuade to us that she actually contributed money to buy the
subject riceland. Worth noting is the fact that on the date of the conveyance,
May 17, 1973, petitioner was only around twenty years of age and Miguel
Palang was already sixty-four and a pensioner of the U.S. Government.
Considering her youthfulness, it is unrealistic to conclude that in 1973 she
contributed P3,750.00 as her share in the purchase price of subject
property, 11 there being no proof of the same.
Petitioner now claims that the riceland was bought two months
before Miguel and Erlinda actually cohabited. In the nature of an
afterthought, said added assertion was intended to exclude their case from
operation of Article 148 of the Family Code. Proof of the precise date when
they commenced their adulterous cohabitation not having been adduced, we
cannot state definitively that the riceland was purchased even before they
started living together. In any case, even assuming that the subject property
was bought before cohabitation, the rules of co-ownership would still apply
and proof of actual contribution would still be essential.
Since petitioner failed to prove that she contributed money to the
purchase price of the riceland in Binalonan, Pangasinan, we find no basis to
justify her co-ownership with Miguel over the same. Consequently, the
riceland should, as correctly held by the Court of Appeals, revert to the
conjugal partnership property of the deceased Miguel and private respondent
Carlina Palang.
 Furthermore, it is immaterial that Miguel and Carlina previously the illegitimate son of Miguel, in order to avoid multiplicity of
agreed to donate their conjugal property in favor of their daughter Herminia in suits. 19 Petitioner's grave error has been discussed in the preceding
1975. The trial court erred in holding that the decision adopting their paragraph where the need for probate proceedings to resolve the settlement
compromise agreement "in effect partakes the nature of judicial confirmation of Miguel's estate and Kristopher's successional rights has been pointed out.
of the separation of property between spouses and the termination of the
conjugal partnership." 12 Separation of property between spouse during the WHEREFORE, the instant petition is hereby DENIED. The
marriage shall not take place except by judicial order or without judicial questioned decision of the Court of Appeals is AFFIRMED. Costs against
conferment when there is an express stipulation in the marriage petitioner.
settlements. 13 The judgment which resulted from the parties' compromise
SO ORDERED.
was not specifically and expressly for separation of property and should not
be so inferred. Regalado, Puno and Mendoza, JJ ., concur.
With respect to the house and lot, Erlinda allegedly bought the same Torres, Jr., J ., is on leave.
for P20,000.00 on September 23, 1975 when she was only 22 years old. The
testimony of the notary public who prepared the deed of conveyance for the ||| (Agapay v. Palang, G.R. No. 116668, [July 28, 1997], 342 PHIL 302-314)
property reveals the falsehood of this claim. Atty. Constantino Sagun testified
that Miguel Palang provided the money for the purchase price and directed
that Erlinda's name alone be placed as the vendee. 14 SECOND DIVISION
The transaction was properly a donation made by Miguel to Erlinda,
but one which was clearly void and inexistent by express provision of law [G.R. No. 124099. October 30, 1997.]
because it was made between persons guilty of adultery or concubinage at
the time of the donation, under Article 739 of the Civil Code.
Moreover, Article 87 of the Family Code expressly provides that the MANUEL G. REYES, MILA G. REYES, DANILO G.
prohibition against donation between spouses now applies to donations REYES, LYN AGAPE, MARITES AGAPE, ESTEBANA
between persons living together as husband and wife without a valid GALOLO, and CELSA AGAPE, petitioners, vs. COURT
marriage, 15 for otherwise, the condition of those who incurred guilt would OF APPEALS AND JULIO VIVARES, respondents.
turn out to be better than those in legal union. 16
The second issue concerning Kristopher Palang's status and claim Quimpo Willkom Borja Neri Galejesan Oclarit Law Offices for
as an illegitimate son and heir to Miguel's estate is here resolved in favor of petitioners.
respondent court's correct assessment that the trial court erred in making
pronouncements regarding Kristopher's heirship and filiation "inasmuch as Algarra Mutia and Trinidad Law Offices for private respondents.
questions as to who are the heirs of the decedent, proof of filiation of
illegitimate children and the determination of the estate of the latter and
claims thereto should be ventilated in the proper probate court or in a special SYNOPSIS
proceeding instituted for the purpose and cannot be adjudicated in the instant
ordinary civil action which is for recovery of ownership and possession." 17 Torcuato Reyes executed a last will and testament wherein he stated
that he was bequeathing some of his personal and real properties to his wife,
As regards the third issue, petitioner contends that Kristopher Palang
Asuncion "Oning" Reyes, and designating private respondent as executor.
should be considered as party-defendant in the case at bar following the trial
After his death, private respondent filed a petition for the probate of the will
court's decision which expressly found that Kristopher had not been
which was opposed by petitioners, Torcuato's natural children, and their
impleaded as party defendant but theorized that he had submitted to the
mothers claiming, among others, that Asuncion Reyes was never married to
court's jurisdiction through his mother/guardian ad litem. 18 The trial court
the testator because she was already married to Lupo Ebarle and that their
erred gravely. Kristopher, not having been impleaded, was therefore, not a
marriage was not annulled. The will was admitted to probate but the
party to the case at bar. His mother, Erlinda, cannot be called his
disposition to Asuncion Reyes was declared by the trial court as null and void
guardian ad litem for he was not involved in the case at bar. Petitioner adds
for being contrary to law and morals. On appeal, the Court of Appeals
that there is no need for Kristopher to file another action to prove that he is
modified the trial court's decision declaring valid the assailed disposition on
the ground that the oppositors failed to present competent evidence that
Asuncion Reyes was legally married to another. Hence, this recourse of
petitioners who belatedly presented a copy of the marriage certificate of
Asuncion Reyes and Lupo Abarle.
As a general rule, courts in probate proceedings are limited to pass
upon only the extrinsic validity of wills and without jurisdiction to determine
validity or efficacy of the will's provisions. The propriety of the institution of
Oning Reyes as one of the devisees/legatees already involved inquiry on the
will's intrinsic validity and which need not be inquired upon by the probate
court.
Their failure to present the said certificate before the probate court to
support their position that Asuncion Reyes had an existing marriage with
Ebarle constituted a waiver and the same evidence can no longer be
entertained on appeal, much less in this petition for review. IaSAHC
This Court would not try the case anew or settle factual issues since
its jurisdiction is confined to resolving questions of law which have been
passed upon by the lower courts.
SYLLABUS
1. REMEDIAL LAW; PROBATE COURT; PROCEEDINGS LIMITED
TO EXTRINSIC VALIDITY OF WILL; EXCEPTIONS. — As a general rule,
courts in probate proceedings are limited to pass only upon the extrinsic
validity of the will sought to be probated. Thus, the court merely inquires on
its due execution, whether or not it complies with the formalities prescribed
by law, and the testamentary capacity of the testator. It does not determine
nor even by implication prejudge the validity or efficacy of the will's
provisions. The intrinsic validity is not considered since the consideration
thereof usually comes only after the will has been proved and allowed. There
are, however, notable circumstances wherein the intrinsic validity was first
determined as when the defect of the will is apparent on its face and the
probate of the will may become a useless ceremony if it is intrinsically invalid.
The intrinsic validity of a will may be passed upon because "practical
considerations" demanded it as when there is preterition of heirs or the
testamentary provisions are of doubtful legality. Where the parties agree that
the intrinsic validity be first determined, the probate court may also do so.
Parenthetically, the rule on probate 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. cdrep
2. ID.; ID.; ID.; CASE AT BAR. — The case at bar arose from the
institution of the petition for the probate of the will of the late Torcuato Reyes.
Perforce, the only issues to be settled in the said proceeding were: (1)
whether or not the testator had animus testandi; (2) whether or not vices of
consent attended the execution of the will; and (3) whether or not the
formalities of the will had been complied with. Thus, the lower court was not
asked to rule upon the intrinsic validity or efficacy of the provisions of the will.
As a result, the declaration of the testator that Asuncion "Oming" Reyes was
his wife did not have to be scrutinized during the probate proceedings. The
propriety of the institution of Oning Reyes as one of the devisees/legatees
already involved inquiry on the will's intrinsic validity and which need not be
inquired upon by the probate court.
3. ID.; ID.; ID.; DOCTRINE IN NEPOMUCENO v. COURT OF
APPEALS (139 SCRA 206) NOT APPLICABLE TO CASE AT BAR. — The
lower court erroneously invoked the ruling in Nepomuceno vs. Court of
Appeals (139 SCRA 206) in the instant case. In the case aforesaid, the
testator himself, acknowledged his illicit relationship with the devisee. Thus,
the very tenor of the will invalidates the legacy because the testator admitted
he was disposing of the properties to a person with whom he had been living
in concubinage. To remand the case would only be a waste of time and
money since the illegality or defect was already patent. This case is different
from the Nepomuceno case. Testator Torcuato Reyes merely stated in his
will that he was bequeathing some of his personal and real properties to his
wife, Asuncion "Oning" Reyes. There was never an open admission of any
illicit relationship. In the case of Nepomuceno, the testator admitted that he
was already previously married and that he had an adulterous relationship
with the devisee.
4. ID.; EVIDENCE; UNCORROBORATED TESTIMONIAL
EVIDENCE, HEARSAY. — We agree with the Court of Appeals that the trial
court relied on uncorroborated testimonial evidence that Asuncion Reyes
was still married to another during the time she cohabited with the testator.
The testimonies of the witnesses were merely hearsay and even uncertain as
to the whereabouts or existence of Lupo Ebarle, the supposed husband of
Asunsion.
5. CIVIL LAW; SUCCESSION; WILL, THE TESTATOR SPEAKING
AFTER DEATH. — In the elegant language of Justice Moreland written
decades ago, he said — "A will is the testator speaking after death. Its
provisions have substantially the same force and effect in the probate court
as if the testator stood before the court in full like making the declarations by
word of mouth as they appear in the will. That was the special purpose of the
law in the creation of the instrument known as the last will and testament.
Men wished to speak after they were dead and the law, by the creation of
that instrument, permitted them to do so . . . All doubts must be resolved in
favor of the testator's having meant just what he said." (Santos vs.
Manarang, 27 Phil. 209).
6. REMEDIAL LAW; EVIDENCE; FAILURE TO PRESENT
EVIDENCE TO SUPPORT ALLEGATION THAT DEVISEE/LEGATEE HAD
AN EXISTING MARRIAGE WITH ANOTHER, CONSTITUTES WAIVER. —
Petitioner tried to refute this conclusion of the Court of Appeals by presenting
belatedly a copy of the marriage certificate of Asuncion Reyes and Lupo
Ebarle. Their failure to present the said certificate before that pro- bate court
to support their position that Asuncion Reyes had an existing marriage with
Ebarle constituted a waiver and the same evidence can no longer be
entertained on appeal, much less in this petition for review.
7. ID.; ID.; FACTUAL FINDINGS OF THE COURT OF APPEALS,
GENERALLY NOT DISTURBED ON APPEAL. — This Court would not try
the case anew or settle factual issues since its jurisdiction is confined to
resolving questions of law which have been passed upon by the lower courts.
The settled rule is that the factual findings of the appellate court will not be
disturbed unless shown to be contrary to the evidence on the record, which
petitioners have not shown in this case. Considering the foregoing premises,
we sustain the findings of the appellate court it appearing that it did not
commit a reversible error in issuing the challenged decision. cda
DECISION
TORRES, JR., J p:
Unless legally flawed, a testator's intention in his last will and
testament is its "life and soul" which deserves reverential observance.
The controversy before us deals with such a case.
Petitioners Manuel G. Reyes, Mila G. Reyes, Danilo G. Reyes, Lyn
Agape, Marites Agape, Estebana Galolo and Celsa Agape, the oppositors in
Special Proceedings No. 112 for the probate of the will of Torcuato J. Reyes,
assail in this petition for review the decision of the Court of Appeals 1 dated
November 29, 1995, the dispositive portion of which reads:
"WHEREFORE, premises considered, the
judgment appealed from allowing or admitting the will of
Torcuato J. Reyes to probate and directing the issuance of
Letters Testamentary in favor of petitioner Julio A. Vivares
as executor without bond is AFFIRMED but modified in
that the declaration that paragraph II of the Torcuato
Reyes' last will and testament, including subparagraphs (a)
and (b) are null and void for being contrary to law is hereby
SET ASIDE, said paragraph II and subparagraphs (a) and
(b) are declared VALID. Except as above modified, the
judgment appealed from is AFFIRMED.
SO ORDERED." 2
The antecedent facts:
On January 3, 1992, Torcuato J. Reyes executed his last will and
testament declaring therein in part, to wit:
"xxx xxx xxx
II. I give and bequeath to my wife Asuncion "Oning" R. Reyes the
following properties to wit:
a. All my shares of our personal properties
consisting among others of jewelries, coins, antiques,
statues, tablewares, furnitures, fixtures and the building;
b. All my shares consisting of one half (1/2) or
50% of all the real estates I own in common with my
brother Jose, situated in Municipalities of Mambajao,
Mahinog, Guinsiliban, Sagay all in Camiguin; real estates
in Lunao, Gingoog, Caamulan, Sugbongcogon, Boloc-
Boloc, Kinoguitan, Balingoan, Sta. Ines, Caesta,
Talisayan, all in the province of Misamis Oriental. 3 "
The will consisted of two pages and was signed by Torcuato Reyes
in the presence of three witnesses: Antonio Veloso, Gloria Borromeo, and
Soledad Gaputan. Private respondent Julio A. Vivares was designated the
executor and in his default or incapacity, his son Roch Alan S. Vivares.
Reyes died on May 12, 1992 and on May 21, 1992, private
respondent filed a petition for probate of the will before the Regional Trial
Court of Mambajao, Camiguin. The petition was set for hearing and the order
was published in the Mindanao Daily Post, a newspaper of general
circulation, once a week for three consecutive weeks. Notices were likewise
sent to all the persons named in the petition.
On July 21, 1992, the recognized natural children of Torcuato Reyes
with Estebana Galolo, namely Manuel, Mila, and Danilo all surnamed Reyes,
and the deceased's natural children with Celsa Agape, namely Lyn and
Marites Agape, filed an opposition with the following allegations: a) that the
last will and testament of Reyes was not executed and attested in
accordance with the formalities of law; and b) that Asuncion Reyes Ebarle
exerted undue and improper influence upon the testator at the time of the
execution of the will. The opposition further averred that Reyes was never
married to and could never marry Asuncion Reyes, the woman he claimed to
be his wife in the will, because the latter was already married to Lupo Ebarle
who was still then alive and their marriage was never annulled. Thus,
Asuncion can not be a compulsory heir for her open cohabitation with Reyes
was violative of public morals.
On July 22, 1992, the trial court issued an order declaring that it had
acquired jurisdiction over the petition and, therefore, allowed the presentation
of evidence. After the presentation of evidence and submission of the
respective memoranda, the trial court issued its decision on April 23, 1993.
The trial court declared that the will was executed in accordance with
the formalities prescribed by law. It, however, ruled that Asuncion Reyes,
based on the testimonies of the witnesses, was never married to the
deceased Reyes and, therefore, their relationship was an adulterous one.
Thus:
"The admission in the will by the testator to the
illicit relationship between him and ASUNCION REYES
EBARLE who is somebody else's wife, is further bolstered,
strengthened, and confirmed by the direct testimonies of
the petitioner himself and his two "attesting" witnesses
during the trial.
In both cases, the common denominator is the
immoral, meretricious, adulterous and illicit relationship
existing between the testator and the devisee prior to the
death of the testator, which constituted the sole and
primary consideration for the devise or legacy, thus
making the will intrinsically invalid." 4
The will of Reyes was admitted to probate except for paragraph II (a)
and (b) of the will which was declared null and void for being contrary to law
and morals. Hence, Julio Vivares filed an appeal before the Court of Appeals
with the allegation that the oppositors failed to present any competent
evidence that Asuncion Reyes was legally married to another person during
the period of her cohabitation with Torcuato Reyes.
On November 29, 1995, the Court of Appeals promulgated the
assailed decision which affirmed the trial court's decision admitting the will for
probate but with the modification that paragraph II including subparagraphs
(a) and (b) were declared valid. The appellate court stated:
"Considering that the oppositors never showed
any competent evidence, documentary or otherwise during
the trial to show that Asuncion "Oning" Reyes' marriage to
the testator was inexistent or void, either because of a pre-
existing marriage or adulterous relationship, the trial court
gravely erred in striking down paragraph II (a) and (b) of
the subject Last Will and Testament, as void for being
contrary to law and morals. Said declarations are not
sufficient to destroy the presumption of marriage. Nor is it
enough to overcome the very declaration of the testator
that Asuncion Reyes is his wife." 5
Dissatisfied with the decision of the Court of Appeals, the oppositors
filed this petition for review.
Petitioners contend that the findings and conclusion of the Court of
Appeals was contrary to law, public policy and evidence on record. Torcuato
Reyes and Asuncion "Oning" Reyes were collateral relatives up to the fourth
civil degree. Witness Gloria Borromeo testified that Oning Reyes was her
cousin as her mother and the latter's father were sister and brother. They
were also nieces of the late Torcuato Reyes. Thus, the purported marriage of
the deceased Reyes and Oning Reyes was void ab initio as it was against
public policy pursuant to Article 38 (1) of the Family Code. Petitioners further
alleged that Oning Reyes was already married to Lupo Ebarle at the time she
was cohabiting with the testator hence, she could never contract any valid
marriage with the latter. Petitioners argued that the testimonies of the
witnesses as well as the personal declaration of the testator, himself, were
sufficient to destroy the presumption of marriage. To further support their
contention, petitioners attached a copy of the marriage certificate of Asuncion
Reyes and Lupo Ebarle. 6 cdasia
The petition is devoid of merit.
As a general rule, courts in probate proceedings are limited to pass
only upon the extrinsic validity of the will sought to be probated. 7 Thus, the
court merely inquires on its due execution, whether or not it complies with the
formalities prescribed by law, and the testamentary capacity of the testator. It
does not determine nor even by implication prejudge the validity or efficacy of
the will's provisions. 8 The intrinsic validity is not considered since the
consideration thereof usually comes only after the will has been proved and
allowed. There are, however, notable circumstances wherein the intrinsic
validity was first determined as when the defect of the will is apparent on its
face and the probate of the will may become a useless 9 ceremony if it is
intrinsically invalid. The intrinsic validity of a will may be passed upon
because "practical considerations" demanded it as when there is preterition
of heirs or the testamentary provisions are of doubtful legality. 10 Where the
parties agree that the intrinsic validity be first determined, the probate court
may also do so. 11 Parenthetically, the rule on probate 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. 12
 The case at bar arose from the institution of the petition for the
probate of the will of the late Torcuato Reyes. Perforce, the only issues to be
settled in the said proceeding were: (1) whether or not the testator
had animus testandi; (2) whether or not vices of consent attended the
execution of the will; and (3) whether or not the formalities of the will had
been complied with. Thus, the lower court was not asked to rule upon the
intrinsic validity or efficacy of the provisions of the will. As a result, the
declaration of the testator that Asuncion "Oning" Reyes was his wife did not
have to be scrutinized during the probate proceedings. The propriety of the
institution of Oning Reyes as one of the devisees/legatees already involved
inquiry on the will's intrinsic validity and which need not be inquired upon by
the probate court.
The lower court erroneously invoked the ruling in Nepomuceno vs.
Court of Appeals (139 SCRA 206) in the instant case. In the case aforesaid,
the testator himself, acknowledged his illicit relationship with the devisee, to
wit:
"Art. IV. That since 1952, I have been living, as
man and wife, with one Sofia J. Nepomuceno, whom I
declare and avow to be entitled to my love and affection,
for all the things which she has done for me, now and in
the past; that while Sofia J. Nepomuceno has with my full
knowledge and consent, did comfort and represent myself
as her own husband, in truth and in fact, as well as in the
eyes of the law, I could not bind her to me in the holy
bonds of matrimony because of my aforementioned
previous marriage."
Thus, the very tenor of the will invalidates the legacy because the
testator admitted he was disposing of the properties to a person with whom
he had been living in concubinage. 13 To remand the case would only be a
waste of time and money since the illegality or defect was already patent.
This case is different from the Nepomuceno case. Testator Torcuato Reyes
merely stated in his will that he was bequeathing some of his personal and
real properties to his wife, Asuncion "Oning" Reyes. There was never an
open admission of any illicit relationship. In the case of Nepomuceno, the
testator admitted that he was already previously married and that he had an
adulterous relationship with the devisee.
We agree with the Court of Appeals that the trial court relied on
uncorroborated testimonial evidence that Asuncion Reyes was still married to
another during the time she cohabited with the testator. The testimonies of
the witnesses were merely hearsay and even uncertain as to the
whereabouts or existence of Lupo Ebarle, the supposed husband of
Asuncion. Thus:
"The foregoing testimony cannot go against the
declaration of the testator that Asuncion "Oning" Reyes is
his wife. In Alvarado v. City Government of Tacloban
(supra) the Supreme Court stated that the declaration of
the husband is competent evidence to show the fact of
marriage.
Considering that the oppositors never showed any competent
evidence, documentary or otherwise during the trial to show that Asuncion
"Oning” Reyes' marriage to the testator was inexistent or void, either
because of a pre-existing marriage or adulterous relationship, the trial court
gravely erred in striking down paragraph II (a) and (b) of the subject Last Will
and Testament, as void for being contrary to law and morals. Said
declarations are not sufficient to destroy the presumption of marriage. Nor is
it enough to overcome the very declaration of the testator that Asuncion
Reyes is his wife." 14
In the elegant language of Justice Moreland
written decades ago, he said —
"A will is the testator speaking after death. Its
provisions have substantially the same force and effect in
the probate court as if the testator stood before the court in
full life making the declarations by word of mouth as they
appear in the will. That was the special purpose of the law
in the creation of the instrument known as the last will and
testament. Men wished to speak after they were dead and
the law, by the creation of that instrument, permitted them
to do so. . . . All doubts must be resolved in favor of the
testator's having meant just what he said." (Santos vs.
Manarang, 27 Phil. 209).
Petitioners tried to refute this conclusion of the Court of Appeals by
presenting belatedly a copy of the marriage certificate of Asuncion Reyes
and Lupo Ebarle. Their failure to present the said certificate before the
probate court to support their position that Asuncion Reyes had an existing
marriage with Ebarle constituted a waiver and the same evidence can no
longer be entertained on appeal, much less in this petition for review. This
Court would not try the case anew or settle factual issues since its jurisdiction
is confined to resolving questions of law which have been passed upon by
the lower courts. The settled rule is that the factual findings of the appellate
court will not be disturbed unless shown to be contrary to the evidence on the
record, which petitioners have not shown in this case. 15
Considering the foregoing premises, we sustain the findings of the
appellate court it appearing that it did not commit a reversible error in issuing
the challenged decision. cdasia
 ACCORDINGLY, decision appealed from dated November 29, 1995,
is hereby AFFIRMED and the instant petition for review is DENIED for lack of
merit.
SO ORDERED.
Regalado, Romero, Puno and Mendoza, JJ ., concur.
||| (Reyes v. Court of Appeals, G.R. No. 124099, [October 30, 1997], 346
PHIL 266-276)
THIRD DIVISION
[G.R. No. 108947. September 29, 1997.]
ROLANDO SANCHEZ, FLORIDA MIERLY SANCHEZ,
ALFREDO T. SANCHEZ and MYRNA T.
SANCHEZ, petitioners, vs. THE HONORABLE COURT
OF APPEALS, ROSALIA S. LUGOD, ARTURO S.
LUGOD, EVELYN LUGOD-RANISES and ROBERTO S.
LUGOD, respondents.
Napoleon M. Malamas for petitioners.
Ramon Quisumbing, Jr. Law Office for private respondents.
SYNOPSIS
This is a petition for review on certiorari filed by petitioners Rolando
Sanchez, Florida Mierly Sanchez, Alfredo T. Sanchez and Myrna Sanchez
assailing the November 23, 1992 decision of the Court of Appeals in CA G.R.
SP No. 28761 which annulled the decision of the trial court and which
declared the modified compromise agreement among the parties valid and
binding even without the trial court's approval. Petitioners in this case are
asserting that the respondent Court of Appeals erred in granting the petition
for certiorari under Rule 65 considering that the special civil action
of certiorari may not be availed as a substitute for an appeal and in annulling
the decision of the lower court declaring the compromise agreement
executed by both parties on October 30, 1969 void and unenforceable the
same not having been approved by the intestate court. HSTAcI
The Supreme Court ruled that a petition for certiorari under Rule 65
of the Rules of Court is appropriate and allowable when the following
requisites concur: (1) the writ is directed against a tribunal, board or office
exercising judicial functions; (2) such tribunal, board or officer has acted
without or in excess of jurisdiction or with grave abuse of discretion
amounting to lack or excess of jurisdiction; and (3) there is no appeal or any
plain, speedy and adequate remedy in the ordinary course of law. After a
thorough review of the case at bar, the Court is convinced that all these
requirements were met and thus hold that the questioned decision and
resolutions of the trial court may be challenged through a special civil action
under Rule 65 of the Rules of Court. At the very least, this case is a clear
exception to the general rule thatcertiorari is not a substitute for a lost appeal
because the trial court's decision and resolutions were issued without or
excess of jurisdiction, which may thus be challenged or attacked at any time.
Anent the second issue regarding the necessity of judicial approval
in a compromise agreement, the Court ruled that such contention lacks merit.
Being a consensual contract, it is perfected upon the meeting of the minds of
the parties. Judicial approval is not required for its perfection hence, the court
affirmed the validity of the parties' compromise agreement. In view of the
foregoing, the instant petition is denied and the assailed decision of the Court
of Appeals is affirmed.
SYLLABUS
1. REMEDIAL LAW; SPECIAL CIVIL
ACTIONS; CERTIORARI; REQUISITES THEREOF. — A petition
for certiorari under Rule 65 of the Rules of Court is appropriate and allowable
when the following requisites concur: (1) the writ is directed against a
tribunal, board or officer exercising judicial or quasi-judicial functions; (2)
such tribunal, board or officer has acted without or in excess of jurisdiction, or
with grave abuse of discretion amounting to lack or excess of jurisdiction;
and (3) there is no appeal or any plain, speedy and adequate remedy in the
ordinary course of law.
2. ID.; ID.; ID.; CERTIORARI IS NOT A SUBSTITUTE FOR A LOST
APPEAL; EXCEPTIONS THEREOF. — Doctrinally entrenched is the general
rule that certiorari is not a substitute for a lost appeal. However, Justice
Florenz D. Regalado lists several exceptions to this rule, viz.: "(1) where the
appeal does not constitute a speedy and adequate remedy (Salvadades vs.
Pajarillo et al. 78 Phil. 77) as where 33 appeals were involved from orders
issued in a single proceeding which will inevitably result in a proliferation of
more appeals (PCIB vs. Escolin et al. L-27860 and 27896 Mar. 29 1974); (2)
where the orders were also issued either in excess of or without
jurisdiction(Aguilar vs. Tan L-23600 June 30 1970 Cf. Bautista et al. vs.
Sarmiento et al. L-45137 Sept. 23 1985); (3) for certain special consideration,
as public welfare or public policy (See Jose vs. Zulueta et al., 16598 May 31
1961 and the cases cited therein); (4) where in criminal actions, the court
rejects rebuttal evidence for the prosecution as, in case of acquittal there
could be no remedy (People vs. Abalos L-029039 Nov. 28 1968); (5) where
the order is a patent nullity (Marcelo vs. De Guzman et al. L-29077 June 29
1982); and (6) where the decision in the certiorari case will avoid future
litigations (St. Peter Memorial Park Inc. vs. Campos et al. L-38280 Mar. 21,
1975)." Even in a case where the remedy of appeal was lost, the Court has
issued the writ of certiorari where the lower court patently acted in excess of
or outside its jurisdiction, as in the present case.
3. ID.; ID,; ID.; AN ACT DONE BY A PROBATE COURT IN EXCESS
OF ITS JURISDICTION MAY BE CORRECTED BY CERTIORARI. — The
issues herein clearly involve not only the correctness of the trial court's
decision but also the latter's jurisdiction. They encompass plain errors of
jurisdiction and grave abuse of discretion, not merely errors of judgment.
Since the trial court exceeded its jurisdiction, a petition for certiorari is
certainly a proper remedy. Indeed, it is well-settled that "(a)n act done by a
probate court in excess of its jurisdiction may be corrected by certiorari."
4. ID.; ID.; ID.; FACTUAL MATTERS, NOT REVIEWABLE BY THE
COURT UNDER RULE 45. — In any event, these alleged errors and
deficiencies regarding the delivery of shares provided in the compromise,
concealment of properties and fraud in the deeds of sale are factual in nature
which, as a rule, are not reviewable by this Court in petitions under Rule 45.
5. ID.; JUDGMENT; A VOID JUDGMENT FOR WANT OF
JURISDICTION IS NO JUDGMENT AT ALL. — A void judgment for want of
jurisdiction is no judgment at all. It cannot be the source of any right nor the
creator of any obligation. All acts performed pursuant to it and all claims
emanating from it have no legal effect. Hence, it can never become final and
any writ of execution based on it is void; . . . it may be said to be a lawless
thing which can be treated as an outlaw and slain at sight, or ignored
wherever and whenever it exhibits its head. "
6. ID.; ID.; APPEAL; ISSUE RAISED FOR THE FIRST TIME ON
APPEAL AND NOT RAISED TIMELY IN THE PROCEEDINGS IN LOWER
COURT IS BARRED BY ESTOPPEL. — The issue of minority was first
raised only in petitioners' Motion for Reconsideration of the Court of Appeals'
Decision; thus, it "is as if it was never duly raised in that court at all." Hence,
this Court cannot now, for the first time on appeal, entertain this issue, for to
do so would plainly violate the basic rule of fair play, justice and due process.
We take this opportunity to reiterate and emphasize the well-settled rule that
"(a)n issue raised for the first time on appeal and not raised timely in the
proceedings in the lower court is barred by estoppel. Questions raised on
appeal must be within the issues framed by the parties and, consequently,
issues not raised in the trial court cannot he raised for the first time on
appeal."
7. ID.; SPECIAL PROCEEDINGS; REQUISITES FOR A VALID
PARTITION. — For a partition to be valid. Section 1, Rule 74 of the Rules of
Court, requires the concurrence of the following conditions: (1) the decedent
left no will; (2) the decedent left no debts, or if there were debts left, all had
been paid; (3) the heirs and liquidators are all of age, or if they are minors,
the latter are represented by their judicial guardian or legal representatives,
and (4) the partition was made by means of a public instrument or affidavit
duly filed with the Register of Deeds.
8. ID.; SPECIAL PROCEEDINGS; JURISDICTION OF PROBATE
COURT; DOCTRINE THAT IN SPECIAL PROCEEDINGS FOR THE
PROBATE OF A WILL, THE QUESTION OF OWNERSHIP IS AN
EXTRANEOUS MATTER WHICH THE PROBATE COURT CANNOT
RESOLVE WITH FINALITY, LIKEWISE APPLICABLE TO AN INTESTATE
PROCEEDING; CASE AT BAR. — As a probate court, the trial court was
exercising judicial functions when it issued its assailed resolution. The said
court had jurisdiction to act in the intestate proceedings involved in this case
with the caveat that, due to its limited jurisdiction, it could resolve questions
of title only provisionally. It is hornbook doctrine that "in a special proceeding
for the probate of a will, the question of ownership is an extraneous matter
which the probate court cannot resolve with finality. This pronouncement no
doubt applies with equal force to an intestate proceeding as in the case at
bar." In the instant case, the trial court-rendered a decision declaring as
simulated and fictitious all the deeds of absolute sale which, on July 26, 1963
and June 26, 1967, Juan C. Sanchez and Maria Villafranca executed in favor
of their daughter, Rosalia Sanchez Lugod; and grandchildren, namely, Arturo
S. Lugod, Evelyn S. Lugod and Roberto S. Lugod. The trial court ruled
further that the properties covered by the said sales must be subject to
collation. Citing Article 1409 (2) of the Civil Code, the lower court nullified
said deeds of sale and determined with finality the ownership of the
properties subject thereof. In doing so, it clearly overstepped its Jurisdiction
as a probate court.
9. CIVIL LAW; OBLIGATIONS AND CONTRACTS; FRAUD; NOT
ESTABLISHED IN CASE AT BAR. — Petitioners' allegations of fraud in the
execution of the questioned deeds of sale are bereft of substance, in view of
the palpable absence of evidence to support them. The legal presumption of
validity of the questioned deeds of absolute sale, being duly notarized public
documents, has not been overcome. On the other hand, fraud is not
presumed. It must be proved by clear and convincing evidence, and not by
mere conjectures or speculations.
10. ID.; COMPROMISES; A FORM OF AMICABLE SETTLEMENT
THAT IS NOT ONLY ALLOWED BUT ALSO ENCOURAGED. —
Compromise is a form of amicable settlement that is not only allowed but
also encouraged in civil cases. Article 2029 of the Civil Code mandates that a
"court shall endeavor to persuade the litigants in a civil case to agree upon
some fair compromise."
11. ID.; ID.; JUDICIAL APPROVAL IS NOT REQUIRED FOR THE
PERFECTION THEREOF. — Article 2028 of the Civil Code defines a
compromise agreement as "a contract whereby the parties, by making
reciprocal concessions, avoid a litigation or put an end to one already
commenced.'' Being a consensual contract, it is perfected upon the meeting
of the minds of the parties. Judicial approval is not required for its perfection.
Petitioners' argument that the compromise was not valid for lack of judicial
approval is not novel; the same was raised in Mayuga vs. Court of
Appeals, where the Court, through Justice Irene R. Cortes, ruled: "It is
alleged that the lack of judicial approval is fatal to the compromise. A
compromise is a consensual contract. As such, it is perfected upon the
meeting of the minds of the parties to the contract. (Hernandez v. Barcelon
23 Phil. 599 [1912]; see also De los Reyes v. de Ugarte, 75 Phil. 505[1945])
And from that moment not only does it become binding upon the parties (De
los Reyes v. De Ugarte supra) it also has upon them the effect and authority
of res judicata (Civil Code, Art. 2037), even not judicially
approved (Meneses v. De la Rosa, 77 Phil. 34 [1946]; Vda. De Guilas v.
David, 132 Phil. 241, L-24280,2.3 SCRA 762 [May 27,1968]; Cochingyan v.
Cloribel, L-27070-71 [April 22, 1977], 76 SCRA. 361)."
12. ID.; ID.; A PARTY TO A COMPROMISE AGREEMENT
CANNOT ASK FOR A RESCISSION AFTER IT HAS ENJOYED ITS
BENEFITS. — It is also significant that all the parties, including the then
minors, had already consummated and availed themselves of the benefits of
their compromise. This Court has consistently ruled that a party to a
compromise cannot ask for a rescission after it has enjoyed its benefits." By
their acts, the parties are ineludibly estopped from questioning the validity of
their compromise agreement. Bolstering this conclusion is the fact that
petitioners questioned the compromise only nine years after its execution,
when they filed with the trial court their Motion to Defer Approval of
Compromise Agreement, dated October 26, 1979."
13. ID.; ID.; A COMPROMISE ENTERED INTO AND CARRIED
OUT IN GOOD FAITH WILL NOT BE DISCARDED EVEN IF THERE WAS A
MISTAKE OF LAW OR FACT. — Courts have no jurisdiction to look into the
wisdom of a compromise or to render a decision different therefrom. It is a
well-entrenched doctrine that "the law does not relieve a party from the
effects of an unwise, foolish, or disastrous contract, entered into with all the
required formalities and with full awareness of what he was doing" and "a
compromise entered into and carried out in good faith will not be discarded
even if there was a mistake of law or fact, (McCarthy vs. Barber Steamship
Lines, 45 Phil. 488) because courts have no power to relieve parties from
obligations voluntarily assumed, simply because their contracts turned out to
be disastrous deals or unwise investments. Volenti non fit injuria.
14. ID.; SUCCESSION; COLLATION; PROPERTIES
CONVEYED INTER VIVOS BY THE DECEDENT TO AN HEIR BY WAY OF
SALE, NOT SUBJECT TO COLLATION. — We stress that these deeds of
sale did not involve gratuitous transfers of future inheritance; these were
contracts of sale perfected by the decedents during their lifetime. Hence, the
properties conveyed thereby are not collationable because, essentially,
collation mandated under Article 1061 of the Civil Code contemplates
properties conveyed inter vivos by the decedent to an heir by way of
donation or other gratuitous title. HSCATc
DECISION
PANGANIBAN, J p:
Is a petition for certiorari, in lieu of appeal, the proper remedy to
correct orders of a probate court nullifying certain deeds of sale and, thus,
effectively passing upon title to the properties subject of such deeds? Is a
compromise agreement partitioning inherited properties valid even without
the approval of the trial court hearing the intestate estate of the deceased
owner? cdasia
These questions are answered by this Court as it resolves the
petition for review on certiorari before us assailing the November 23, 1992
Decision 1 of the Court of Appeals 2 in CA-G.R. SP No. 28761 which
annulled the decision 3 of the trial court 4 and which declared the
compromise agreement among the parties valid and binding even without the
said trial court's approval. The dispositive portion of the assailed Decision
reads:
"WHEREFORE, for the reasons hereinabove set
forth and discussed, the instant petition is GRANTED and
the challenged decision as well as the subsequent orders
of the respondent court are ANNULLED and SET ASIDE.
The temporary restraining order issued by this Court on
October 14, 1992 is made PERMANENT. The compromise
agreement dated October 30, 1969 as modified by the
memorandum of agreement of April 13, 1970 is
DECLARED valid and binding upon herein parties. And
Special Proceedings No. 44-M and 1022 are deemed
CLOSED and TERMINATED.
SO ORDERED." 5
The Antecedent Facts
The facts are narrated by the Court of Appeals as follows:
"[Herein private respondent] Rosalia S. Lugod is
the only child of spouses Juan C. Sanchez and Maria
Villafranca while [herein private respondents] Arturo S.
Lugod, Evelyn L. Ranises and Roberto S. Lugod are the
legitimate children of [herein private respondent] Rosalia.
[Herein petitioners] Rolando, Florida Mierly,
Alfredo and Myrna, all surnamed Sanchez, are the
illegitimate children of Juan C. Sanchez.
Following the death of her mother, Maria
Villafranca, on September 29, 1967, [herein private
respondent] Rosalia filed on January 22, 1968, thru
counsel, a petition for letters of administration over the
estate of her mother and the estate of her father, Juan C.
Sanchez, who was at the time in state of senility (Annex
'B', Petition).
On September 30, 1968, [herein private
respondent] Rosalia, as administratrix of the intestate
estate of her mother, submitted an inventory and appraisal
of the real and personal estate of her late mother (Annex
'C', Petition).
Before the administration proceedings in Special
Proceedings No. 44-M could formally be terminated and
closed, Juan C. Sanchez, [herein private respondent]
Rosalia's father, died on October 21, 1968.
On January 14, 1969, [herein petitioners] as heirs
of Juan C. Sanchez, filed a petition for letters of
administration (Special Proceedings No. 1022) over the
intestate estate of Juan C. Sanchez, which petition was
opposed by (herein private respondent) Rosalia. 6
On October 30, 1969, however, [herein private
respondent] Rosalia and [herein petitioners] assisted by
their respective counsels executed a compromise
agreement (Annex 'D', Petition) wherein they agreed to
divide the properties enumerated therein of the late Juan
C. Sanchez.
On November 3, 1969, petitioner Rosalia was
appointed by [the trial court], and took her oath as the
administratrix of her father's intestate estate.
On January 19, 1970, [herein petitioners] filed a
motion to require administratrix, [herein private
respondent] Rosalia, to deliver deficiency of 24 hectares
and or to set aside compromise agreement (Annex 'E',
Petition).
Under date of April 13, 1970, (herein private
respondent) Rosalia and [herein petitioners] entered into
and executed a memorandum of agreement which
modified the compromise agreement (Annex 'F', Petition)
On October 25, 1979, or nine years later, [herein
petitioners] filed, thru counsel, a motion to require [herein
private respondent] Rosalia to submit a new inventory and
to render an accounting over properties not included in the
compromise agreement (Annex 'G', Petition). They
likewise filed a motion to defer the approval of the
compromise agreement (Annex 'H', Ibid), in which they
prayed for the annulment of the compromise agreement on
the ground of fraud.
On February 4, 1980, however, counsel for [herein
petitioners] moved to withdraw his appearance and the two
motions he filed, Annex 'G' and 'H' (Annex 'I', Petition).
On February 28, 1980, the [trial] court issued an
order directing [herein private respondent] Rosalia to
submit a new inventory of properties under her
administration and an accounting of the fruits thereof,
which prompted [herein private respondent] Rosalia to file
a rejoinder on March 31, 1980 (Annex 'K', Petition).
On May 12, 1980, [herein petitioners], thru new
counsel, filed a motion to change administratrix (Annex 'L',
Petition) to which [herein private respondent] Rosalia filed
an opposition (Annex 'M', Ibid).
The parties were subsequently ordered to submit
their respective position papers, which they did (Annexes
'N' and 'O', Petition). On September 14, 1989, former
counsel of (herein petitioners) entered his re-appearance
as counsel for (herein petitioners).
On the bases of memoranda submitted by the
parties, the [trial court], this time presided by Judge
Vivencio A. Galon, promulgated its decision on June 26,
1991, the dispositive portion of which states:
 'WHEREFORE, premises considered,
judgment is hereby rendered as follows by
declaring and ordering:
1. That the entire intestate estate of Maria
Villafranca Sanchez under Special Proceedings
No. 44-M consists of all her paraphernal properties
and one-half (1/2) of the conjugal properties which
must be divided equally between Rosalia Sanchez
de Lugod and Juan C. Sanchez;
2. That the entire intestate estate of Juan
C. Sanchez under Special Proceedings No. 1022
consists of all his capital properties, one-half (1/2)
from the conjugal partnership of gains and one-
half (1/2) of the intestate estate of Maria
Villafranca under Special Proceedings No. 44-M;
3. That one-half (1/2) of the entire
intestate estate of Juan C. Sanchez shall be
inherited by his only legitimate daughter, Rosalia
V. Sanchez de Lugod while the other one-half
(1/2) shall be inherited and be divided equally by,
between and among the six (6) illegitimate
children, namely: Patricia Alburo, Maria Ramuso
Sanchez, Rolando Pedro T. Sanchez, Florida
Mierly T. Sanchez, Alfredo T. Sanchez and Myrna
T. Sanchez;
4. That all the Deed (sic) of Absolute
Sales executed by Juan C. Sanchez and Maria
Villafranca in favor of Rosalia Sanchez Lugod,
Arturo S. Lugod, Evelyn S. Lugod and Roberto S.
Lugod on July 26, 1963 and June 26, 1967 are all
declared simulated and fictitious and must be
subject to collation and partition among all heirs;
5. That within thirty (30) days from finality
of this decision, Rosalia Sanchez Lugod is hereby
ordered to prepare a project of partition of the
intestate estate of Juan C. Sanchez under Special
Proceedings No. 1022 and distribute and deliver to
all heirs their corresponding shares. If she fails to
do so within the said thirty (30) days, then a Board
of Commissioners is hereby constituted, who are
all entitled to honorarium and per diems and other
necessary expenses chargeable to the estate to
be paid by Administratrix Rosalia S. Lugod,
appointing the Community Environment and
Natural Resources Officer (CENRO) of Gingoog
City as members thereof, with the task to prepare
the project of partition and deliver to all heirs their
respective shares within ninety (90) days from the
finality of said decision;
6. That within thirty (30) days from receipt
of this decision, Administratrix Rosalia Sanchez
Vda. de Lugod is hereby ordered to submit two (2)
separate certified true and correct accounting, one
for the income of all the properties of the entire
intestate estate of Maria Villafranca under Special
Proceedings No. 44-M, and another for the
properties of the entire intestate estate of Juan C.
Sanchez under Special Proceedings No. 1022
duly both signed by her and both verified by a
Certified Public Accountant and distribute and
deliver to her six (6) illegitimate brothers and
sisters in equal shares, one-half (1/2) of the net
income of the estate of Juan C. Sanchez from
October 21, 1968 up to the finality of this decision;
7. For failure to render an accounting
report and failure to give cash advances to the
illegitimate children of Juan C. Sanchez during
their minority and hour of need from the net
income of the estate of Juan C. Sanchez, which
adversely prejudiced their social standing and
pursuit of college education, (the trial court)
hereby orders Rosalia Sanchez Vda. de Lugod to
pay her six (6) illegitimate brothers and sisters the
sum of Five Hundred Thousand (P500,000.00)
Pesos, as exemplary damages, and also the sum
of One Hundred Fifty Thousand (P150,000.00)
Pesos for attorney's fees;
8. Upon release of this decision and
during its pendency, should appeal be made, the
Register of Deeds and Assessors of the Provinces
and Cities where the properties of Juan C.
Sanchez and Maria Villafranca are located, are all
ordered to register and annotate in the title and/or
tax declarations, the dispositive portion of this
decision for the protection of all heirs and all those
who may be concerned.
SO ORDERED.'
 [Herein private respondent] Rosalia filed a motion
for reconsideration dated July 17, 1991 (Annex 'P',
Petition) on August 6, 1991.
On August 13, 1991, [herein petitioners] filed a
motion for execution and opposition to [herein private
respondent] Rosalia's motion for reconsideration (Annex
'Q', Petition).
On September 3, 1991, [the trial court] issued an
Omnibus Order (Annex 'S', Petition) declaring, among
other things, that the decision at issue had become final
and executory.
[Herein private respondent] Rosalia then filed a
motion for reconsideration of said Omnibus Order (Annex
'T', Petition). Said [herein private respondent] was allowed
to file a memorandum in support of her motion (Annex 'V',
Petition).
On June 26, 1991, [the trial court] issued and
Order denying petitioner Rosalia's motion for
reconsideration (Annex 'W', Petition)." 7
Thereafter, private respondents elevated the case to the Court of
Appeals via a petition for certiorari and contended:
"I
The [trial court] has no authority to disturb the
compromise agreement.
II
The [trial court] has arbitrarily faulted [herein
private respondent] Rosalia S. Lugod for alleged failure to
render an accounting which was impossible.
III
The [trial court] acted without jurisdiction in
derogation of the constitutional rights of [herein private
respondents] Arturo S. Lugod, Evelyn L. Ranises and
Roberto S. Lugod when [the trial court] decided to annul
the deed of sale between the said [herein private
respondents] and Juan C. Sanchez without affording them
their day in court.
IV
[The trial court judge] defied without rhyme or
reason well-established and entrenched jurisprudence
when he determined facts sans any evidence thereon.
V
[The trial court] grossly misinterpreted [herein
private respondent] Rosalia S. Lugod's right to appeal." 8
For clarity's sake, this Court hereby reproduces verbatim the
compromise agreement 9 of the parties:
"COMPROMISE AGREEMENT
COME NOW, the parties in the above-entitled
case, motivated by their mutual desire to preserve and
maintain harmonious relations between and among
themselves, for mutual valuable consideration and in the
spirit of good will and fair play, and, for the purpose of this
Compromise Agreement, agree to the following:
1. That the deceased Juan C. Sanchez who died
intestate on October 21, 1968 was legally married to Maria
Villafranca de Sanchez, who predeceased him on
September 29, 1967, out of whose wedlock Rosalia
Sanchez Lugod, Oppositor herein, was born, thus making
her the sole and only surviving legitimate heir of her
deceased parents;
2. That the said deceased Juan C. Sanchez, left
illegitimate children, Intervenors-Oppositors and
Petitioners, respectively, herein namely;
(1) Patricio Alburo, born out of wedlock on March
17, 1926 at Cebu City, Philippines to
Emilia Alburo;
(2) Maria Ramoso Sanchez, born out of wedlock
on May 9, 1937 at Gingoog, Misamis
Oriental, now, Gingoog City, to Alberta
Ramoso;
(3) (a) Rolando Pedro Sanchez, born on May 19,
1947,
(b) Florida Mierly Sanchez, born on February 16,
1949,
(c) Alfredo Sanchez, born on July 21, 1950, and
 (d) Myrna Sanchez, born on June 16, 1952, all
born out of wedlock to Laureta Tampus in
Gingoog City, Philippines.
3. That the deceased Juan C. Sanchez left the
following properties, to wit:
I. SEPARATE CAPITAL OF JUAN C. SANCHEZ
NATURE, DESCRIPTION AND AREA ASSESSED VALUE
(1) Agricultural Land. Covered by Tax. Decl. No.
06458, Cad. Lot No. 1041 C-2, located at
Murallon, Gingoog City and bounded on
the North by Lot Nos. 1033, 1035, 1036,
1037, 1039, 1040, 1042 & 1043; South by
Lot No. 1080, 1088, 1087 & 1084; East by
Lot Nos. 1089, 1061 & 2319; West by Lot
Nos. 954, 1038, 1057 & 1056, containing
an area of ONE HUNDRED EIGHTY
THREE THOUSAND SIX HUNDRED
SEVENTY TWO (183,672) sq. ms. more
or less.
P21,690.00
II. CONJUGAL PROPERTY OF JUAN C.
SANCHEZ AND MARIA VILLAFRANCA DE SANCHEZ
(1) Agricultural Land. Covered by Tax Decl. No.
06447, Cad. Lot No. 2745, C-7 located at
Agay-ayan, Gingoog City and bounded on
the North by Lot Nos. 2744, 2742, 2748;
South by Lot No. 2739; East by Lot No.
2746; West by Lot No. 2741, containing
an area of FOURTEEN THOUSAND
SEVEN HUNDRED (14,700) sq. ms. more
or less.
P1,900.00
(2) Agricultural Land. Covered by Tax Decl. No.
06449, Cad, Lot No. 3271 C-7 located at
Panyangan, Lanao, Gingoog City and
bounded on the North by Lot No. 3270;
South by Lot Nos. 2900 & 3462; East by
Panyangan River & F. Lumanao; and Part
of Lot 3272; and West by Samay Creek,
containing an area of ONE HUNDRED
FOUR THOUSAND SIX HUNDRED
(104,600) sq. ms. more or less.
P11,580.00
(3) Agricultural Land. Covered by Tax Decl. No.
06449, Cad. Lot No. 2319, Case 2,
located at Murallon, Gingoog City and
bounded on the North by Lot No. 1061;
South by Hinopolan Creek, East by Lot
No. 1044; and West by Lot No. 1041,
containing an area of THREE THOUSAND
TWO HUNDRED TWENTY FIVE (3,225)
sq. ms. more or less.
(4) Agricultural Land. Covered by Tax Decl. No.
06452, Cad. Lot No. 3272, C-7 Part 4
located at Panyangan, Lunao, Gingoog
City and bounded on the North by Lot
Nos. 3270 & 3273; East by Panyangan
River; South by Panyangan River; and
West by Lot Nos. 3270 & 3271, containing
an area of FIFTY FIVE THOUSAND SIX
HUNDRED (55,600) sq. ms. more or less,
being claimed by Damian Querubin.
P2,370.00
(5) Agricultural Land. Covered by Tax Decl. No.
06453, Cad. Lot No. 3270 Case 7, located
at Sunog, Lunao, Gingoog City and
bounded on the North by Samay Creek &
Lot 3267; South by Lot Nos. 3271 & 3272;
East by Lot Nos. 3269 & 3273; and West
by Samay Creek, containing an area of
FOUR HUNDRED EIGHTY THREE
THOUSAND SIX HUNDRED (483,600)
sq. ms. more or less.
P61,680.00
(6) Agricultural Land. Covered by Tax Decl. No.
06457, Cad. Lot No. 3273, C-7 Part 2
located at Panyangan, Lunao, Gingoog
City and bounded on the North by Lot No.
3269; South by Lot No. 3272; East by
Panyangan River; and West by Lot No.
3270, containing an area of THIRTY
 FOUR THOUSAND THREE HUNDRED
(34,300) sq. ms. more or less, being
claimed by Miguel Tuto. cdpr
P3,880.00
(7) Agricultural Land. Covered by Tax Decl. No.
12000, Cad. Lot No. 2806, Case 7 located
at Agayayan, Gingoog City and bounded
on the North by Agayayan River; South by
Victoriano Barbac; East by Isabelo
Ramoso; and West by Restituto Baol,
containing an area of SIX THOUSAND
SIX HUNDRED SEVENTY SIX (6,676) sq.
ms. more or less.
P380.00
(8) Agricultural Land. Covered by Tax Decl. No.
12924, Cad. Lot No. 1206 C-1 located at
Cahulogan, Gingoog City and bounded on
the NW., by Lot No. 1209; SW., by Lot No.
1207; East by National Highway; and
West by Lot No. 1207; containing an area
of FOUR THOUSAND FIVE HUNDRED
THIRTEEN (4,513) sq. ms. more or less.
P740.00
(9) Agricultural Land. Covered by Tax Decl. No.
12925, Cad. Lot No. 5554, located at
Tinaytayan, Pigsalohan, Gingoog City and
bounded on the North by Lot Nos. 5559 &
5558; South by Lot No. 3486; East by Lot
No. 5555; and West by Lot No. 5355,
containing an area of EIGHTEEN
THOUSAND FIVE HUNDRED TWENTY
EIGHT (18,528) sq. ms. more or less. cdpr
P320.00
(10) Agricultural Land. Covered by Tax Decl. No.
12926, Cad. Lot No. 5555 C-7 located at
Tinaytayan, Pigsalojan, Gingoog City and
bounded on the North by Tinaytayan
Creek & Lot Nos. 5557 & 5558; South by
Lot Nos. 3486, 3487, 3488, 3491 & 3496;
East by Cr. & Lot No. 3496; and West by
Lot No. 5554, containing an area of
SEVENTY SEVEN THOUSAND SEVEN
HUNDRED SEVENTY SIX (77,776) sq.
ms. more or less.
P1,350.00
(11) A Commercial Land. Covered by Tax Decl.
No. 06454, Cad. Lot No. 61-C-1 located at
Guno-Condeza Sts., Gingoog City and
bounded on the North by Lot 64; South by
Road-Lot 613 Condeza St; East by Lot
Nos. 63, and 62; West by Road-Lot 614-
Guno St., containing an area of ONE
THOUSAND FORTY TWO (1,042) sq. ms.
more or less.
P9,320.00
(12) A Commercial Land. Covered by Tax Decl.
No. 06484, Lot No. 5, Block 2, located at
Cabuyoan, Gingoog City and bounded on
the North by Lot No. 4, block 2; South by
Lot No. 8, block 2; East by Lot No. 6, block
2, West by Subdivision Road, containing
an area of FOUR HUNDRED (400) sq.
ms. more or less.
P12,240.00
(13) A Commercial Land. Covered by Tax Decl.
No. 15798, Block No. 7-A-16-0 located at
Cabuyoan, Gingoog City and bounded on
the North by Lot No. 7-A-16-0; South by
Lot No. 7-16-0; East by Lot No. 7-A-18-
Road; West by Lot No. 8, PSU-120704-
Julito Arengo vs. Restituto Baol,
containing an area of TWO HUNDRED
SIXTEEN (216) sq. ms. more or less.
P1,050.00
(14) Agricultural Land. Covered by Tax Decl. No.
06789, Cad. Lot No. 5157-C-7, located at
Kiogat, Agayayan, Gingoog City and
bounded on the North by Lot No. 5158,
5159, 5156; South by SE-Steep Bank;
East by NW, by Lot No. 5158, Villafranca;
containing an area of NINETY SIX
 THOUSAND TWO HUNDRED (96,200)
sq. ms. more or less.
P3,370.00
III. PERSONAL ESTATE (CONJUGAL)
NATURE AND DESCRIPTION LOCATION APPRAISAL
1. Fifty (50) shares of stock
Rural Bank of Gingoog, Inc.
at P100.00 per share P5,000.00
2. Four (4) shares of Preferred Stock
with San Miguel Corporation 400.00
4. That, the parties hereto have agreed to divide the above
enumerated properties in the following manner, to wit:
(a) To Patricio Alburo, Maria Ramoso Sanchez,
Roland Pedro T. Sanchez, Florida Mierly
Sanchez, Alfredo T. Sanchez and Myrna
T. Sanchez, in equal pro-indiviso shares,
considering not only their respective areas
but also the improvements existing
thereon, to wit:
Agricultural Land. Covered by Tax Decl. No.
06453, Cad. Lot No. 3270 Case 7, located
at Sunog, Lunao, Gingoog City and
bounded on the North by Samay Creek &
Lot 3267; South by Lot Nos. 3271 and
3272; East by Lot Nos. 3269 & 3273; and
West by Samay Creek, containing an area
of FOUR HUNDRED EIGHTY THREE
THOUSAND SIX HUNDRED (483,600)
sq. ms. and assessed in the sum of
P61,680.00.
(b) To Rosalia Sanchez Lugod all the rest of the
properties, both real and personal,
enumerated above with the exception of
the following:
(1) Two Preferred Shares of Stock in the San
Miguel Corporation, indicated in San
Miguel Corporation Stock Certificate No.
30217, which two shares she is ceding in
favor of Patricio Alburo;
(2) The house and lot designated as Lot No. 5,
Block 2 together with the improvements
thereon and identified as parcel No. II-12,
lot covered by Tax Decl. No. 15798
identified as Parcel No. II-13 in the above
enumerated, and Cad. Lot No. 5157-C-7
together with the improvements thereon,
which is identified as parcel No. II-14 of
the above-enumeration of properties,
which said Rosalia S. Lugod is likewise
ceding and renouncing in favor of Rolando
Pedro, Florida Mierly, Alfredo and Myrna,
all surnamed Sanchez, in equal pro-
indiviso shares;
5. That Rolando Pedro, Florida Mierly, Alfredo and
Myrna, all surnamed Sanchez hereby acknowledge to
have received jointly and severally in form of advances
after October 21, 1968 the aggregate sum of EIGHT
THOUSAND FIVE HUNDRED THIRTY-THREE PESOS
(P8,533.94) and NINETY-FOUR CENTAVOS;
6. That the parties hereto likewise acknowledge
and recognize in the indebtedness of the deceased Juan
C. Sanchez and his deceased wife Maria Villafranca
Sanchez to the Lugod Enterprises, Inc. in the sum of
P43,064.99;
7. That the parties hereto shall be responsible for
the payment of the estate and inheritance taxes
proportionate to the value of their respective shares as
may be determined by the Bureau of Internal Revenue and
shall likewise be responsible for the expenses of survey
and segregation of their respective shares;
8. That Patricio Alburo, Maria Ramoso Sanchez,
Roland Pedro Sanchez, Florida Mierly Sanchez, Alfredo
Sanchez and Myrna Sanchez hereby waive, relinquish and
renounce, jointly and individually, in a manner that is
absolute and irrevocable, all their rights and interests,
share and participation which they have or might have in
all the properties, both real and personal, known or
unknown and/or which may not be listed herein, or in
excess of the areas listed or mentioned herein, and/or
which might have been, at one time or another, owned by,
registered or placed in the name of either of the spouses
Juan C. Sanchez or Maria Villafranca de Sanchez or both,
and which either one or both might have sold, ceded,
transferred, or donated to any person or persons or entity
and which parties hereto do hereby confirm and ratify
together with all the improvements thereon, as well as all
the produce and proceeds thereof, and particularly of the
properties, real and personal listed herein, as well as
demandable obligations due to the deceased spouses
Juan C. Sanchez, before and after the death of the
aforementioned spouses Juan C. Sanchez and Maria
Villafranca de Sanchez, in favor of oppositor Rosalia S.
Lugod;
9. That the expenses of this litigation including
attorney's fees shall be borne respectively by the parties
hereto;
ceded to petitioners and intervenors immediately after the
signing of this agreement and that the latter also mutually
agree among themselves to have the said lot subdivided
and partitioned immediately in accordance with the
proportion of one sixth (1/6) part of every petitioner and
intervenor and that in the meantime that the partition and
subdivision is not yet effected, the administrations of said
parcel of land shall be vested jointly with Laureta Tampos,
guardian ad litem of petitioners and Maria Ramoso, one of
the intervenors who shall see to it that each petitioner and
intervenor is given one sixth (1/6) of the net proceeds of all
agricultural harvest made thereon.
WHEREFORE, it is most respectfully prayed that
the foregoing compromise agreement be approved.
Medina, Misamis Oriental, October 30, 1969.

10. That Laureta Tampus for herself and guardian (Sgd.) (Sgd.)
ad litem of her minor children, namely: Florida Mierly,
Alfredo, and Myrna, all surnamed Sanchez, hereby declare PATRICIO ALBURO ROSALIA S. LUGOD
that she has no right, interest, share and participation
whatsoever in the estate left by Juan C. Sanchez and/or Intervenor-Oppositor Oppositor
Maria Villafranca de Sanchez, or both, and that she (Sgd.)
likewise waives, renounces, and relinquishes whatever
rigid, share, participation or interest therein which she has
MARIA RAMOSO SANCHEZ ASSISTED BY:
or might have in favor of Rosalia S. Lugod;
Intervenor-Oppositor
11. That, the parties hereto mutually waive and
renounce in favor of each other any whatever claims or
actions, arising from, connected with, and as a result of (Sgd.)
Special Proceedings Nos. 44-M and 1022 of the Court of ASSISTED BY: PABLO S. REYES
First Instance of Misamis Oriental, Rosalia S. Lugod, R-101 Navarro Bldg.
warranting that the parcel of land ceded to the other
parties herein contains 48 hectares and 36 ares. (Sgd.) Don A. Velez St.
REYNALDO L. FERNANDEZ Cagayan de Oro City
12. That, Rosalia S. Lugod shall assume as she
Gingoog City
hereby assumes the payment to Lugod Enterprises, Inc.,
of the sum of P51,598.93 representing the indebtedness of (Sgd.) (Sgd.)
the estate of Juan C. Sanchez and Maria Villafranca de
Sanchez and the advances made to Rolando Pedro,
ROLANDO PEDRO T. SANCHEZ ALFREDO T. SANCHEZ
Mierly, Alfredo, and Myrna all surnamed Sanchez,
mentioned in paragraphs 5 hereto agree to have letters of Petitioner Petitioner
administration issued in favor of Rosalia S. Lugod without
any bond. (Sgd.) (Sgd.)
That Rosalia S. Lugod likewise agrees to deliver
possession and enjoyment of the parcel of land herein
FLORIDA MIERLY T. SANCHEZ MYRNA T. SANCHEZ September 14, 1992 and September 25, 1992, respectively, 11 Respondent
Petitioner Petitioner Court thereafter reinstated private respondents' petition in a
resolution 12 dated October 14, 1992.

(Sgd.) In due course, the Court of Appeals, as earlier stated, rendered its
assailed Decision granting the petition, setting aside the trial court's decision
and declaring the modified compromise agreement valid and binding.
LAURETA TAMPUS
For herself and as Guardian Hence, this appeal to this Court under Rule 45 of the Rules of Court.
Ad-Litem of the minors The Issues
Florida Mierly, Alfredo, and In this appeal, petitioners invite the Court's attention to the following
Myrna, all surnamed Sanchez issues:
ASSISTED BY: "I
The respondent court grossly erred in granting the
TEOGENES VELEZ, JR. petition for certiorari under Rule 65 considering that the
special civil action of certiorari may not be availed of as a
Counsel for Petitioners substitute for an appeal and that, in any event, the grounds
invoked in the petition are merely alleged errors of
Cagayan de Oro City
judgment which can no longer be done in view of the fact
The Clerk of Court that the decision of the lower court had long become final
and executory.
Court of First Instance II
Branch III, Medina, Mis. Or.
Prescinding from the foregoing, the respondent
Greetings: court erred in annulling the decision of the lower court for
Please set the foregoing compromise agreement for the the reason that a compromise agreement or partition as
approval of the Honorable Court today, Oct. 30, 1969. the court construed the same to be, executed by the
parties on October 30, 1969 was void and unenforceable
(Sgd.) the same not having been approved by the intestate court
PABLO S. REYES and that the same having been seasonably repudiated by
(Sgd.) petitioners on the ground of fraud.

TEOGENES VELEZ, JR.

(Sgd.)
REYNALDO L. FERNANDEZ"
The Memorandum of Agreement dated April 13, 1970, which the
parties entered into with the assistance of their counsel, amended the above
compromise. (It will be reproduced later in our discussion of the second issue
raised by the petitioners.)
The Court of Appeals, in a Resolution 10 dated September 4, 1992,
initially dismissed private respondent's petition. Acting, however, on a motion
for reconsideration and a supplemental motion for reconsideration dated
III
The respondent court grossly erred in ignoring and
disregarding findings of facts of the lower court that the
alleged conveyances of real properties made by the
spouses Juan C. Sanchez and Maria Villafranca just
before their death in favor of their daughter and
grandchildren, private respondents herein, are tainted with
fraud or made in contemplation of death, hence,
collationable.
 IV
In any event, the respondent court grossly erred in
treating the lower court's declaration of fictitiousness of the
deeds of sale as a final adjudication of annulment.
V
The respondent court grossly erred in declaring
the termination of the intestate proceedings even as the
lower court had not made a final and enforceable
distribution of the estate of the deceased Juan C.
Sanchez.
VI
Prescinding from the foregoing, the respondent
court grossly erred in not at least directing respondent
Rosalia S. Lugod to deliver the deficiency of eight (8)
hectares due petitioners under the compromise agreement
and memorandum of agreement, and in not further
directing her to include in the inventory properties
conveyed under the deeds of sale found by the lower court
to be part of the estate of Juan C. Sanchez." 13
The salient aspects of some issues are closely intertwined; hence,
they are hereby consolidated into three main issues specifically dealing with
the following subjects: (1) the propriety of certiorari as a remedy before the
Court of Appeals, (2) the validity of the compromise agreement, and (3) the
presence of fraud in the execution of the compromise and/or collation of the
properties sold.
The Court's Ruling
The petition is not meritorious.
First Issue: Propriety of Certiorari
Before the Court of Appeals
Since private respondents had neglected or failed to file an ordinary
appeal within the reglementary period, petitioners allege that the Court of
Appeals erred in allowing private respondent's recourse to Rule 65 of the
Rules of Court. They contend that private respondent's invocation of
certiorari was "procedurally defective." 14They further argue that private
respondents, in their petition before the Court of Appeals, alleged errors of
the trial court which, being merely errors of judgment and not errors of
jurisdiction, were not correctable by certiorari. 15 This Court disagrees.
Doctrinally entrenched is the general rule that certiorari is not a
substitute for a lost appeal. However, Justice Florenz D. Regalado lists
several exceptions to this rule, viz.: "(1) where the appeal does not constitute
a speedy and adequate remedy (Salvadades vs. Pajarillo, et al., 78 Phil. 77),
as where 33 appeals were involved from orders issued in a single proceeding
which will inevitably result in a proliferation of more appeals (PCIB
vs. Escolin, et al., L-27860 and 27896, Mar. 29, 1974; (2) where the orders
were also issued either in excess of or without jurisdiction (Aguilar vs. Tan, L-
23600, Jun. 30, 1970, Cf . Bautista, et al. vs. Sarmiento, et al., L-45137,
Sept.231985); (3) for certain special consideration, as public welfare or public
policy (See Jose vs. Zulueta, et al., L-16598, May 31, 1961 and the cases
cited therein); (4) where in criminal actions, the court rejects rebuttal
evidence for the prosecution as, in case of acquittal, there could be no
remedy (People vs. Abalos, L-029039, Nov. 28, 1968); (5) where the order is
a patent nullity (Marcelo vs. De Guzman, et al., L-29077, June 29, 1982); and
(6) where the decision in the certiorari case will avoid future
litigations(St. Peter Memorial Park, Inc. vs. Campos, et al., L-38280, Mar. 21,
1975)." 16 Even in a case where the remedy of appeal was lost, the Court
has issued the writ of certiorari where the lower court patently acted in
excess of or outside its jurisdiction, 17 as in the present case.
A petition for certiorari under Rule 65 of the Rules of Court is
appropriate and allowable when the following requisites concur: (1) the writ is
directed against a tribunal, board or officer exercising judicial or quasi-judicial
functions; (2) such tribunal, board or officer has acted without or in excess of
jurisdiction, or with grave abuse of discretion amounting to lack or excess of
jurisdiction; and (3) there is no appeal or any plain, speedy and adequate
remedy in the ordinary course of law. 18After a thorough review of the case
at bar, we are convinced that all these requirements were met.
As a probate court, the trial court was exercising judicial functions
when it issued its assailed resolution. The said court had jurisdiction to act in
the intestate proceedings involved in this case with the caveat that, due to its
limited jurisdiction, it could resolve questions of title only provisionally. 19 It is
hornbook doctrine that "in a special proceeding for the probate of a will, the
question of ownership is an extraneous matter which the probate court
cannot resolve with finality. This pronouncement no doubt applies with equal
force to an intestate proceeding as in the case at bar." 20 In the instant case,
the trial court rendered a decision declaring as simulated and fictitious all the
deeds of absolute sale which, on July 26, 1963 and June 26, 1967, Juan C.
Sanchez and Maria Villafranca executed in favor of their daughter, Rosalia
Sanchez Lugod; and grandchildren, namely, Arturo S. Lugod, Evelyn S.
Lugod and Roberto S. Lugod. The trial court ruled further that the properties
covered by the said sales must be subject to collation. Citing Article 1409 (2)
of the Civil Code, the lower court nullified said deeds of sale and determined
with finality the ownership of the properties subject thereof. In doing so, it
clearly overstepped its jurisdiction as a probate court. Jurisprudence teaches:
 "[A] probate court or one in charge of proceedings
whether testate or intestate cannot adjudicate or determine
title to properties claimed to be a part of the estate and
which are claimed to belong to outside parties. All that the
said court could do as regards said properties is to
determine whether they should or should not be included
in the inventory or list of properties to be administered by
the administrator. If there is not dispute, well and good, but
if there is, then the parties, the administrator, and the
opposing parties have to resort to an ordinary action for a
final determination of the conflicting claims of title because
the probate court cannot do so." 21
Furthermore, the trial court committed grave abuse of discretion
when it rendered its decision in disregard of the parties' compromise
agreement. 22 Such disregard, on the ground that the compromise
agreement "was not approved by the court," 23 is tantamount to "an evasion
of positive duty or to a virtual refusal to perform the duty enjoined or to act in
contemplation and within the bounds of law." 24
The foregoing issues clearly involve not only the correctness of
the trial court's decision but also the latter's jurisdiction. They encompass
plain errors of jurisdiction and grave abuse of discretion, not merely
errors of judgment. 25 Since the trial court exceeded its jurisdiction, a
petition for certiorari is certainly a proper remedy. Indeed, it is well-
settled that "(a)n act done by a probate court in excess of its jurisdiction
may be corrected by certiorari." 26
Consistent with the foregoing, the following disquisition by
respondent appellate court is apt:
"As a general proposition, appeal is the proper
remedy of petitioner Rosalia here under Rule 109 of the
Revised Rules of Court. But the availability of the ordinary
course of appeal does not constitute sufficient ground to
[prevent] a party from making use of the extraordinary
remedy of certiorari where appeal is not an adequate
remedy or equally beneficial, speedy and sufficient
(Echauz vs. Court of Appeals, 199 SCRA 381). Here,
considering that the respondent court has disregarded the
compromise agreement which has long been executed as
early as October, 1969 and declared null and void the
deeds of sale with finality, which as a probate court, it has
no jurisdiction to do, We deem ordinary appeal is
inadequate. Considering further the [trial court's] granting
of [herein petitioners'] motion for execution of the assailed
decision, 27 [herein private respondent] Rosalia's resort to
the instant petition [for review on certiorari] is all the more
warranted under the circumstances." 28
We thus hold that questioned decision and resolutions of the trial
court may be challenged through a special civil action for certiorari under
Rule 65 of the Rules of Court. At the very least, this case is a clear exception
to the general rule that certiorari is not a substitute for a lost appeal because
the trial court's decision and resolutions were issued without or in excess of
jurisdiction, which may thus be challenged or attacked at any time. "A void
judgment for want of jurisdiction is no judgment at all. It cannot be the source
of any right nor the creator of any obligation. All acts performed pursuant to it
and all claims emanating from it have no legal effect. Hence, it can never
become final and any writ of execution based on it is void; '. . . it may be said
to be a lawless thing which can be treated as an outlaw and slain at sight, or
ignored wherever and whenever it exhibits its head.' " 29
Second Issue: Validity of Compromise Agreement
Petitioners contend that, because the compromise agreement was
executed during the pendency of the probate proceedings, judicial approval
is necessary to shroud it with validity. They stress that the probate court had
jurisdiction over the properties covered by said agreement. They add that
Petitioners Florida Mierly, Alfredo and Myrna were all minors represented
only by their mother/natural guardian, Laureta Tampus. 30
These contentions lack merit. Article 2028 of the Civil Code
defines a compromise agreement as "a contract whereby the parties, by
making reciprocal concessions, avoid a litigation or put an end to one
already commenced." Being a consensual contract, it is perfected upon
the meeting of the minds of the parties. Judicial approval is not required
for its perfection. 31 Petitioners' argument that the compromise was not
valid for lack of judicial approval is not novel; the same was raised
in Mayuga vs. Court of Appeals, 32 where the Court, through Justice
Irene R. Cortes, ruled:
"It is alleged that the lack of judicial approval is fatal to the
compromise. A compromise is a consensual contract. As such, it is
perfected upon the meeting of the minds of the parties to the contract.
(Hernandez v. Barcelon, 23 Phil. 599 [1912]; see also De los Reyes v. de
Ugarte, 75 Phil. 505 [1945].) And from that moment not only does it
become binding upon the parties (De los Reyes v. De Ugarte, supra), it
also has upon them the effect and authority of res judicata (Civil Code,
Art. 2037), even if not judicially approved(Meneses v. De la Rosa, 77
Phil. 34 [1946]; Vda. De Guilas v. David, 132 Phil. 241, L-24280, 23
SCRA 762 [May 27, 1968]; Cochingyan v. Cloribel, L-27070-71 [April 22,
1977], 76 SCRA 361)." (emphasis found in the original.)
In the case before us, it is ineludible that the parties knowingly and
freely entered into a valid compromise agreement. Adequately assisted by
their respective counsels, they each negotiated its terms and provisions for
four months; in fact, said agreement was executed only after the fourth draft.
As noted by the trial court itself, the first and second drafts were prepared
successively in July, 1969; the third draft on September 25, 1969; and the
fourth draft, which was finally signed by the parties on October 30,
1969, 33 followed. Since this compromise agreement was the result of a long
drawn out process, with all the parties ably striving to protect their respective
interests and to come out with the best they could, there can be no doubt that
the parties entered into it freely and voluntarily. Accordingly, they should be
bound thereby. 34 To be valid, it is merely required under the law to be
based on real claims and actually agreed upon in good faith by the parties
thereto. 35 cdphil
Indeed, compromise is a form of amicable settlement that is not
only allowed but also encouraged in civil cases. 36 Article 2029 of the
Civil Code mandates that a "court shall endeavor to persuade the
litigants in a civil case to agree upon some fair compromise."
In opposing the validity and enforcement of the compromise
agreement, petitioners harp on the minority of Florida Mierly, Alfredo and
Myrna. Citing Article 2032 of the Civil Code, they contend that the court's
approval is necessary in compromises entered into by guardians and
parties in behalf of their wards or children.37
However, we observe that although denominated a compromise
agreement, the document in this case is essentially a deed of partition,
pursuant to Article 1082 of the Civil Code which provides that "[e]very act
which is intended to put an end to indivision among co-heirs and
legatees or devisees is deemed to be partition, although it should purport
to be a sale, an exchange, a compromise, or any other transaction."
For a partition to be valid, Section 1, Rule 74 of the Rules of
Court, requires the concurrence of the following conditions: (1) the
decedent left no will; (2) the decedent left no debts, or if there were debts
left, all had been paid; (3) the heirs and liquidators are all of age, or if
they are minors, the latter are represented by their judicial guardian or
legal representatives; and (4) the partition was made by means of a
public instrument or affidavit duly filed with the Register of Deeds. 38 We
find that all the foregoing requisites are present in this case. We
therefore affirm the validity of the parties' compromise
agreement/partition in this case.
In any event, petitioners neither raised nor ventilated this issue in
the trial court. This new question or matter was manifestly beyond the
pale of the issues or questions submitted and threshed out before the
lower court which are reproduced below, viz.:
"I Are the properties which are the object of the sale by the
deceased spouses to their grandchildren
collationable?
II Are the properties which are the object of the sale by the
deceased spouses to their legitimate daughter
also collationable?
III The first and second issues being resolved, how much
then is the rightful share of the four (4) recognized
illegitimate children?" 39
Furthermore, the 27-page Memorandum dated February 17, 1990
filed by petitioners before the Regional Trial Court 40 readily reveals that
they never questioned the validity of the compromise. In their comment
before the Court of Appeals, 41 petitioners based their objection to said
compromise agreement on the solitary "reason that it was tainted with fraud
and deception," zeroing specifically on the alleged fraud committed by
private respondent Rosalia S. Lugod. 42 The issue of minority was first
raised only in petitioners' Motion for Reconsideration of the Court of Appeals'
Decision; 43 thus, it "is as if it was never duly raised in that court at
all."44 Hence, this Court cannot now, for the first time on appeal, entertain
this issue, for to do so would plainly violate the basic rule of fair play, justice
and due process. 45We take this opportunity to reiterate and emphasize the
well-settled rule that "(a)n issue raised for the first time on appeal and not
raised timely in the proceedings in the lower court is barred by estoppel.
Questions raised on appeal must be within the issues framed by the parties
and, consequently, issues not raised in the trial court cannot be raised for the
first time on appeal." 46
The petitioners likewise assail as void the provision on waiver
contained in No. 8 of the aforequoted compromise, because it allegedly
constitutes a relinquishment by petitioners of "a right to properties which
were not known." 47 They argue that such waiver is contrary to law,
public policy, morals or good custom. The Court disagrees. The assailed
waiver pertained to their hereditary right to properties belonging to the
decedent's estate which were not included in the inventory of the estate's
properties. It also covered their right to other properties originally
belonging to the spouses Juan Sanchez and Maria Villafranca de
Sanchez which have been transferred to other persons. In addition, the
parties agreed in the compromise to confirm and ratify said transfers.
The waiver is valid because, contrary to petitioner's protestation, the
parties waived a known and existing interest — their hereditary right
which was already vested in them by reason of the death of their
father. Article 777 of the Civil Code provides that "(t)he rights to the
succession are transmitted from the moment of death of the decedent."
Hence, there is no legal obstacle to an heir's waiver of his/her hereditary
share "even if the actual extent of such share is not determined until the
subsequent liquidation of the estate." 48 At any rate, such waiver is
consistent with the intent and letter of the law advocating compromise as
a vehicle for the settlement of civil disputes. 49
 Finally, petitioners contend that Private Respondent Rosalia T.
Lugod's alleged fraudulent acts, specifically her concealment of some of the
decedent's properties, attended the actual execution of the compromise
agreement. 50 This argument is debunked by the absence of any substantial
and convincing evidence on record showing fraud on her part. As aptly
observed by the appellate court:
the parties on April 13, 1970 and referred to above reads:
"[Herein petitioners] accuse [herein private
respondent] Rosalia of fraud or deception by alleging, inter
alia, that the parcel of land given to them never conformed
to the stated area, i.e., forty-eight (48) hectares, as stated
in the compromise agreement. We find this argument
unconvincing and unmeritorious. [Herein petitioners']
averment of fraud on the part of [herein private
respondent] Rosalia becomes untenable when We
consider the memorandum of agreement they later
executed with [herein private respondent] Rosalia wherein
said compromise agreement was modified by correcting
the actual area given to [herein petitioners] from forty-eight
(48) hectares to thirty-six (36) hectares only. If the actual
area allotted to them did not conform to the 48 hectare
area stated in the compromise agreement, then why did
they agree to the memorandum of agreement whereby
their share in the estate of their father was even reduced
to just 36 hectares? Where is fraud or deception there?
Considering that [herein petitioners] were ably represented
by their lawyers in executing these documents and who
presumably had explained to them the import and
consequences thereof, it is hard to believe their charge
that they were defrauded and deceived by [herein private
respondent] Rosalia.
If the parcel of land given to [herein petitioners],
when actually surveyed, happened to be different in area
to the stated area of 48 hectares in the compromise
agreement, this circumstance is not enough proof of fraud
or deception on [herein private respondent] Rosalia's part.
Note that Tax Declaration No. 06453 plainly discloses that
the land transferred to [herein petitioners] pursuant to the
compromise agreement contained an area of 48 hectares
(Annex 'A', Supplemental Reply). And when [herein
petitioners] discovered that the land allotted to them
actually contained only 24 hectares, a conference between
the parties took place which led to the execution and
signing of the memorandum of agreement wherein [herein
petitioners'] distributive share was even reduced to 36
hectares. In the absence of convincing and clear evidence
to the contrary, the allegation of fraud and deception
cannot be successfully imputed to [herein private
respondent] Rosalia who must be presumed to have acted
in good faith." 51
The memorandum of agreement freely and validly entered into by
"MEMORANDUM OF AGREEMENT
The parties assisted by their respective counsel
have agreed as they hereby agree:
1. To amend the compromise agreement executed
by them on October 30, 1969 so as to include the
following:
a. Correction of the actual area being
given to the petitioners and intervenors, all
illegitimate children of the late Juan C. Sanchez,
forty-eight (48) hectares, thirty-six (36) ares as
embodied in the aforementioned compromise
agreement to thirty-six (36) hectares only, thus
enabling each of them to get six (6) hectares each.
b. That the said 36-hectare area shall be
taken from that parcel of land which is now
covered by O.C.T. No. 146 (Patent No. 30012)
and the adjoining areas thereof designated as Lot
A and Lot C as reflected on the sketch plan
attached to the record of this case prepared by
Geodetic Engineer Olegario E. Zalles pursuant to
the Court's commission of March 10, 1970
provided, however, that if the said 36-hectare area
could not be found after adding thereto the areas
of said lots A and C, then the additional area shall
be taken from what is designated as Lot B,
likewise also reflected in the said sketch plan
attached to the records;
c. That the partition among the six
illegitimate children of the late Juan C. Sanchez
(petitioners and intervenors) shall be effective
among themselves in such a manner to be agreed
upon by them, each undertaking to assume
redemption of whatever plants found in their
respective shares which need redemption from the
tenants thereof as well as the continuity of the
 tenancy agreements now existing and covering compromise. 53 This Court has consistently ruled that "a party to a
the said shares or areas. compromise cannot ask for a rescission after it has enjoyed its
benefits." 54 By their acts, the parties are ineludibly estopped from
d. The subdivision survey shall be at the questioning the validity of their compromise agreement. Bolstering this
expense of the said petitioners and intervenors conclusion is the fact that petitioners questioned the compromise only nine
prorata. years after its execution, when they filed with the trial court their Motion to
Defer Approval of Compromise Agreement, dated October 26, 1979. 55 In
e. That the administratrix agrees to deliver
hindsight, it is not at all farfetched that petitioners filed said motion for the
temporary administration of the area designated
sole reason that they may have felt shortchanged in their compromise
as Lot 5 of the Valles Sketch Plan pending final
agreement or partition with private respondents, which in their view was
survey of the said 36 hectare area.
unwise and unfair. While we may sympathize with this rueful sentiment of
Cagayan de Oro City, April 13, 1970. petitioners, we can only stress that this alone is not sufficient to nullify or
disregard the legal effects of said compromise which, by its very nature as a
(Sgd.) perfected contract, is binding on the parties. Moreover, courts have no
jurisdiction to look into the wisdom of a compromise or to render a decision
LAURETA TAMPOS different therefrom. 56 It is a well-entrenched doctrine that "the law does not
For herself and as Guardian relieve a party from the effects of an unwise, foolish, or disastrous contract,
ad-litem of Rolando, Mierly, entered into with all the required formalities and with full awareness of what
Alfredo and Myrna, all he was doing" 57 and "a compromise entered into and carried out in good
surnamed Sanchez faith will not be discarded even if there was a mistake of law or fact,
Assisted by: (McCarthy vs. Barber Steamship Lines, 45 Phil. 488) because courts have no
(Sgd.) power to relieve parties from obligations voluntarily assumed, simply
because their contracts turned out to be disastrous deals or unwise
TEOGENES VELEZ, Jr. investments." 58 Volenti non fit injuria.
Counsel for Petitioners
Corollarily, the petitioners contend that the Court of Appeals gravely
(Sgd.) abused its discretion in deeming Special Proceedings Nos. 44-M and 1022
"CLOSED and TERMINATED," arguing that there was as yet no order of
ROSALIA S. LUGOD distribution of the estate pursuant to Rule 90 of the Rules of Court. They add
Administratrix that they had not received their full share thereto. 59 We disagree. Under
Assisted by: Section 1, Rule 90 of the Rules of Court, an order for the distribution of the
estate may be made when the "debts, funeral charges, and expenses of
(Sgd.) administration, the allowance to the widow, and inheritance tax, if any," had
been paid. This order for the distribution of the estate's residue must contain
PABLO S. REYES the names and shares of the persons entitled thereto. A perusal of the whole
Counsel for Administratrix record, particularly the trial court's conclusion, 60 reveals that all the
(Sgd.) foregoing requirements already concurred in this case. The payment of the
indebtedness of the estates of Juan C. Sanchez and Maria Villafranca in the
MARIA RABOSO SANCHEZ amount of P51,598.93 was shouldered by Private Respondent Rosalia, who
Intervenor" 52 also absorbed or charged against her share the advances of Rolando T.
Lugod in the sum of P8,533.94, in compliance with Article 1061 of the Civil
Not only did the parties knowingly enter into a valid compromise Code on collation. 61 Furthermore, the compromise of the parties, which is
agreement; they even amended it when they realized some errors in the the law between them, already contains the names and shares of the heirs to
original. Such correction emphasizes the voluntariness of said deed. the residual estate, which shares had also been delivered. On this point, we
agree with the following discussion of the Court of Appeals:
It is also significant that all the parties, including the then minors, had
already consummated and availed themselves of the benefits of their
 "But what the (trial court) obviously overlooked in
its appreciation of the facts of this case are the
uncontroverted facts that (herein petitioners) have been in
possession and ownership of their respective distributive
shares as early as October 30, 1969 and they have
received other properties in addition to their distributive
shares in consideration of the compromise agreement
which they now assail. Proofs thereof are Tax Declarations
No. 20984, 20985, 20986, 20987, 20988, 20989 and
20990 (Annexes 'B' to 'H', Supplemental Reply) in the
respective names of (herein petitioners), all for the year
1972. (Herein petitioners) also retained a house and lot, a
residential lot and a parcel of agricultural land (Annexes 'I',
'J' and 'K', Ibid.) all of which were not considered in the
compromise agreement between the parties. Moreover, in
the compromise agreement per se, it is undoubtedly stated
therein that cash advances in the aggregate sum of
P8,533.94 were received by (herein petitioners) after
October 21, 1968 (Compromise Agreement, par. 5)" 62
All the foregoing show clearly that the probate court had essentially
finished said intestate proceedings which, consequently, should be deemed
closed and terminated. In view of the above discussion, the Court sees no
reversible error on the part of the Court of Appeals.
Third Issue: Fraud and Collation
Petitioners fault Respondent Court for not ordering Private
Respondent Rosalia T. Lugod to deliver to them the deficiency as allegedly
provided under the compromise agreement. They further contend that said
court erred in not directing the provisional inclusion of the alleged deficiency
in the inventory for purposes of collating the properties subject of the
questioned deeds of sale. 63 We see no such error. In the trial court, there
was only one hearing conducted, and it was held only for the reception of the
evidence of Rosalia S. Lugod to install her as administratrix of the estate of
Maria Villafranca. There was no other evidence, whether testimonial or
otherwise, "received, formally offered to, and subsequently admitted by the
probate court below"; nor was there "a trial on the merits of the parties'
conflicting claims." 64 In fact, the petitioners "moved for the deferment of the
compromise agreement on the basis of alleged fraudulent concealment of
properties — NOT because of any deficiency in the land conveyed to them
under the agreements." 65 Hence, there is no hard evidence on record to
back up petitioners' claims.
In any case, the trial court noted Private Respondent Rosalia's
willingness to reimburse any deficiency actually proven to exist. It
subsequently ordered the geodetic engineer who prepared the certification
and the sketch of the lot in question, and who could have provided evidence
for the petitioners, "to bring records of his relocation survey." 66 However,
Geodetic Engineer Idulsa did not comply with the court's subpoena duces
tecum and ad testificandum. Neither did he furnish the required relocation
survey. 67 No wonder, even after a thorough scrutiny of the records, this
Court cannot find any evidence to support petitioner's allegations of fraud
against Private Respondent Rosalia.
Similarly, petitioners' allegations of fraud in the execution of the
questioned deeds of sale are bereft of substance, in view of the palpable
absence of evidence to support them. The legal presumption of validity of the
questioned deeds of absolute sale, being duly notarized public documents,
has not been overcome. 68 On the other hand, fraud is not presumed. It
must be proved by clear and convincing evidence, and not by mere
conjectures or speculations. We stress that these deeds of sale did not
involved gratuitous transfers of future inheritance; these were contracts of
sale perfected by the decedents during their lifetime. 69 Hence, the
properties conveyed thereby are not collationable because, essentially,
collation mandated under Article 1061 of the Civil Code contemplates
properties conveyed inter vivos by the decedent to an heir by way of
donation or other gratuitous title.
In any event, these alleged errors and deficiencies regarding the
delivery of shares provided in the compromise, concealment of properties
and fraud in the deeds of sale are factual in nature which, as a rule, are not
reviewable by this Court in petitions under Rule 45. 70 Petitioners have failed
to convince us that this case constitutes an exception to such rule. All in all,
we find that the Court of Appeals has sufficiently addressed the issues raised
by them. Indeed, they have not persuaded us that said Court committed any
reversible error to warrant a grant of their petition. liblex
WHEREFORE, the petition is hereby DENIED and the assailed
Decision of the Court of Appeals is AFFIRMED.
SO ORDERED.
Narvasa, C .J ., Romero, Melo and Francisco, JJ ., concur.
||| (Sanchez v. Court of Appeals, G.R. No. 108947, [September 29, 1997],
345 PHIL 155-194)
THIRD DIVISION
[G.R. No. 123968. April 24, 2003.]
 URSULINA GANUELAS, METODIO GANUELAS and
ANTONIO GANUELAS, petitioners, vs. HON. ROBERT
T. CAWED, Judge of the Regional Trial Court of San
Fernando, La Union (Branch 29), LEOCADIA G.
FLORES, FELICITACION G. AGTARAP, CORAZON G.
SIPALAY and ESTATE OF ROMANA GANUELASDE LA
ROSA, represented by GREGORIO DELA ROSA,
Administrator, respondents.
Tañada Vivo & Tan for petitioners.
SYNOPSIS
The late Celestina Ganuelas executed a Deed of Donation of Real
Property in favor of Ursulina Ganuelas. Private respondents alleged that the
deed was a void disposition mortis causa as it lacks the legal requirement of
acknowledgment by attesting witnesses thereto before the notary public.
Petitioners, however, insist that the donation was inter vivos.
Whether the donation was inter vivos or mortis causa, the Court
ruled that, it was mortis causa. It noted that there was nothing in the
Donation which indicates that any right, title or interest in the donated
properties was to be transferred to Ursulina prior to the death of Celestina.
The phrase therein "to become effective upon the death of the DONOR"
admits no other interpretation but that Celestina intended to transfer the
ownership of the properties to Ursulina on her death, not during her lifetime.
It was also provided therein that if the donee should die before the donor, the
donation shall be deemed rescinded and of no further force and effect. The
deed even contains an attestation clause expressly confirming the donation
as mortis causa. Nevertheless, as there was failure to comply with the
formalities of a will, the Court ruled that the donation was void.
SYLLABUS
1. CIVIL LAW; MODES OF ACQUIRING OWNERSHIP; DONATION
INTER VIVOS DISTINGUISHED FROM DONATION MORTIS CAUSA. —
Crucial in the resolution of the issue whether the donation is inter
vivos or mortis causa is the determination of whether the donor intended to
transfer the ownership over the properties upon the execution of the deed.
Donation inter vivos differs from donation mortis causa in that in the former,
the act is immediately operative even if the actual execution may be deferred
until the death of the donor, while in the latter, nothing is conveyed to or
acquired by the donee until the death of the donor-testator. The following
ruling of this Court in Alejandro v. Geraldez is illuminating: If the donation is
made in contemplation of the donor's death, meaning that the full or naked
ownership of the donated properties will pass to the donee only because of
the donor's death, then it is at that time that the donation takes effect, and it
is a donation mortis causawhich should be embodied in a last will and
testament. But if the donation takes effect during the donor's lifetime or
independently of the donor's death, meaning that the full or naked ownership
(nuda proprietas) of the donated properties passes to the donee during the
donor's lifetime, not by reason of his death but because of the deed of
donation, then the donation is inter vivos. The distinction between a
transfer inter vivos and mortis causa is important as the validity or revocation
of the donation depends upon its nature. If the donation is inter vivos, it must
be executed and accepted with the formalities prescribed by Articles 748 and
749 of the Civil Code, except when it is onerous in which case the rules on
contracts will apply. If it is mortis causa, the donation must be in the form of a
will, with all the formalities for the validity of wills, otherwise it is void and
cannot transfer ownership.
2. ID.; ID.; SUCCESSION; DONATION MORTIS CAUSA;
DISTINGUISHING CHARACTERISTICS. — The distinguishing
characteristics of a donation mortis causa are the following: 1. It conveys no
title or ownership to the transferee before the death of the transferor; or, what
amounts to the same thing, that the transferor should retain the ownership
(full or naked) and control of the property while alive; 2. That before his
death, the transfer should be revocable by the transferor at will, ad nutum;
but revocability may be provided for indirectly by means of a reserved power
in the donor to dispose of the properties conveyed; 3. That the transfer
should be void if the transferor should survive the transferee. CTAIDE
3. ID.; ID.; ID.; ID.; ID.; PRESENT IN CASE AT BAR. — In the
donation subject of the present case, there is nothing therein which indicates
that any right, title or interest in the donated properties was to be transferred
to Ursulina prior to the death of Celestina. The phrase "to become effective
upon the death of the DONOR" admits of no other interpretation but that
Celestina intended to transfer the ownership of the properties to Ursulina on
her death, not during her lifetime. More importantly, the provision in the deed
stating that if the donee should die before the donor, the donation shall be
deemed rescinded and of no further force and effect shows that the donation
is a postmortem disposition. As stated in a long line of cases, one of the
decisive characteristics of a donation mortis causa is that the transfer should
be considered void if the donor should survive the donee. More. The deed
contains an attestation clause expressly confirming the donation as mortis
causa.
4. ID.; ID.; ID.; ID.; MOTIVATION. — To classify the donation as inter
vivos simply because it is founded on considerations of love and affection is
erroneous. That the donation was prompted by the affection of the donor for
the donee and the services rendered by the latter is of no particular
significance in determining whether the deed constitutes a transfer inter
vivos or not, because a legacy may have an identical motivation. In other
words, love and affection may also underline transfers mortis causa.
5. ID.; ID.; ID.; ID.; REQUIRES FORMALITIES OF A WILL. — As the
subject deed then is in the nature of a mortis causa disposition, the
formalities of a will under Article 728 of the Civil Code should have been
complied with, failing which the donation is void and produces no effect. As
noted by the trial court, the attesting witnesses failed to acknowledge the
deed before the notary public, thus violating Article 806 of the Civil Code
which provides: Art. 806. Every will must be acknowledged before a notary
public by the testator and the witnesses. The notary public shall not be
required to retain a copy of the will, or file another with the office of the Clerk
of Court. (Italics supplied) TcICEA
DECISION
CARPIO MORALES, J p:
The present petition for review under Rule 45 of the Rules of Court
assails, on a question of law, the February 22, 1996 decision 1 of the
Regional Trial Court of San Fernando, La Union, Branch 29, in Civil Case
No. 3947, an action for declaration of nullity of a deed of donation.
The facts, as culled from the records of the case, are as follows:
On April 11, 1958, Celestina Ganuelas Vda. de Valin (Celestina)
executed a Deed of Donation of Real Property 2 covering seven parcels of
land in favor of her niece Ursulina Ganuelas (Ursulina), one of herein
petitioners.
The pertinent provision of the deed of donation reads,
quoted verbatim:
xxx xxx xxx
That, for and in consideration of the love and
affection which the DONOR has for the DONEE, and of
the faithful services the latter has rendered in the past to
the former, the said DONOR does by these presents
transfer and convey, by way of DONATION, unto the
DONEE the property above, described, to become
effective upon the death of the DONOR; but in the event
that the DONEE should die before the DONOR, the
present donation shall be deemed rescinded and of no
further force and effect.
xxx xxx xxx. 3
On June 10, 1967, Celestina executed a document denominated as
Revocation of Donation 4 purporting to set aside the deed of donation. More
than a month later or on August 18, 1967, Celestina died without issue and
any surviving ascendants and siblings. cDSAEI
After Celestina's death, Ursulina had been sharing the produce of the
donated properties with private respondents Leocadia G. Flores, et
al., nieces of Celestina.
In 1982, or twenty-four years after the execution of the Deed of
Donation, Ursulina secured the corresponding tax declarations, in her name,
over the donated properties, to wit: Tax Declarations Nos. 18108, 18109,
18110, 18111, 18112, 18113 and 18114, and since then, she refused to give
private respondents any share in the produce of the properties despite
repeated demands.
Private respondents were thus prompted to file on May 26, 1986 with
the RTC of San Fernando, La Union a complaint 5 against Ursulina, along
with MetodioGanuelas and Antonio Ganuelas who were alleged to be
unwilling plaintiffs. The complaint alleged that the Deed of Donation executed
by Celestina in favor of Ursulina was void for lack of acknowledgment by the
attesting witnesses thereto before notary public Atty. Henry Valmonte, and
the donation was a disposition mortis causawhich failed to comply with the
provisions of the Civil Code regarding formalities of wills and testaments,
hence, it was void. The plaintiffs-herein private respondents thus prayed that
judgment be rendered ordering Ursulina to return to them as intestate heirs
the possession and ownership of the properties. They likewise prayed for the
cancellation of the tax declarations secured in the name of Ursulina, the
partition of the properties among the intestate heirs of Celestina, and the
rendering by Ursulina of an accounting of all the fruits of the properties since
1982 and for her to return or pay the value of their shares.
The defendants-herein petitioners alleged in their Answer 6 that the
donation in favor of Ursulina was inter vivos as contemplated under Article
729 of the Civil Code, 7 hence, the deed did not have to comply with the
requirements for the execution of a valid will; the Revocation of Donation is
null and void as the ground mentioned therein is not among those provided
by law to be the basis thereof; and at any rate, the revocation could only be
legally enforced upon filing of the appropriate complaint in court within the
prescriptive period provided by law, which period had, at the time the
complaint was filed, already lapsed.
 By Decision of February 22, 1996, the trial court, holding that the
provision in the Deed of Donation that in the event that the DONEE should
predecease the DONOR, the "donation shall be deemed rescinded and of no
further force and effect" is an explicit indication that the deed is a
donation mortis causa, 8 found for the plaintiffs-herein private respondents,
thus:
WHEREFORE the Court renders judgment
declaring null and void the Deed of Donation of Real
Property executed by Celestina Ganuelas, and orders the
partition of the estate of Celestina among the intestate
heirs.
SO ORDERED. 9
The trial court also held that the absence of a reservation clause in
the deed implied that Celestina retained complete dominion over her
properties, thus supporting the conclusion that the donation is mortis
causa, 10 and that while the deed contained an attestation clause and an
acknowledgment showing the intent of the donor to effect a postmortem
disposition, the acknowledgment was defective as only the donor and donee
appear to have acknowledged the deed before the notary public, thereby
rendering the entire document void. 11
Lastly, the trial court held that the subsequent execution by Celestina
of the Revocation of Donation showed that the donor intended the
revocability of the donation ad nutum, thus sustaining its finding that the
conveyance was mortis causa. 12
On herein petitioners' argument that the Revocation of Donation was
void as the ground mentioned therein is not one of those allowed by law to
be a basis for revocation, the trial court held that the legal grounds for such
revocation as provided under the Civil Code arise only in cases of
donations inter vivos, but not in donations mortis causa which are revocable
at will during the lifetime of the donor. The trial court held, in any event, that
given the nullity of the disposition mortis causa in view of a failure to comply
with the formalities required therefor, the Deed of Revocation was a
superfluity. 13
Hence, the instant petition for review, petitioners contending that the
trial court erred:
I. . . . WHEN IT DECLARED NULL AND VOID THE
DONATION EXECUTED BY
CELESTINA GANUELAS;
II. . . . WHEN IT UPHELD THE REVOCATION OF
DONATION;
III. . . . IN RENDERING ITS DECISION ADVERSE TO
PETITIONER URSULINA GANUELAS. 14
Petitioners argue that the donation contained in the deed is inter
vivos as the main consideration for its execution was the donor's affection for
the donee rather than the donor's death; 15 that the provision on the
effectivity of the donation — after the donor's death — simply meant that
absolute ownership would pertain to the donee on the donor's death; 16 and
that since the donation is inter vivos, it may be revoked only for the reasons
provided in Articles 760, 17 764 18 and 765 19 of the Civil Code.
In a letter of March 16, 1992, 20 private respondent Corazon
Sipalay, reacting to this Court's January 28, 1998 Resolution requiring
private respondents "to SHOW CAUSE why they should not be disciplinarily
dealt with or held in contempt" for failure to submit the name and address of
their new counsel, explains that they are no longer interested in pursuing the
case and are "willing and ready to waive whatever rights" they have over the
properties subject of the donation. Petitioners, who were required to
comment on the letter, by Comment of October 28, 1998, 21 welcome private
respondents' gesture but pray that "for the sake of enriching jurisprudence,
their [p]etition be given due course and resolved."
The issue is thus whether the donation is inter vivos or mortis causa.
Crucial in the resolution of the issue is the determination of whether
the donor intended to transfer the ownership over the properties upon the
execution of the deed. 22
Donation inter vivosdiffers from donation mortis causa in that in the
former, the act is immediately operative even if the actual execution may be
deferred until the death of the donor, while in the latter, nothing is conveyed
to or acquired by the donee until the death of the donor-testator. 23 The
following ruling of this Court inAlejandro v. Geraldez is illuminating: 24
If the donation is made in contemplation of the
donor's death, meaning that the full or naked ownership of
the donated properties will pass to the donee only because
of the donor's death, then it is at that time that the donation
takes effect, and it is a donation mortis causa which should
be embodied in a last will and testament.
But if the donation takes effect during the donor's
lifetime or independently of the donor's death, meaning
that the full or naked ownership (nuda proprietas) of the
donated properties passes to the donee during the donor's
lifetime, not by reason of his death but because of the
deed of donation, then the donation is inter vivos.
 The distinction between a transfer inter vivos and mortis causa is
important as the validity or revocation of the donation depends upon its
nature. If the donation is inter vivos, it must be executed and accepted with
the formalities prescribed by Articles 748 25 and 749 26 of the Civil Code,
except when it is onerous in which case the rules on contracts will apply. If it
is mortis causa, the donation must be in the form of a will, with all the
formalities for the validity of wills, otherwise it is void and cannot transfer
ownership. 27
The distinguishing characteristics of a donation mortis causa are the
following:
1. It conveys no title or ownership to the transferee
before the death of the transferor; or, what amounts to the
same thing, that the transferor should retain the ownership
(full or naked) and control of the property while alive;
2. That before his death, the transfer should be
revocable by the transferor at will, ad nutum; but
revocability may be provided for indirectly by means of a
reserved power in the donor to dispose of the properties
conveyed;
3. That the transfer should be void if the transferor
should survive the transferee. 28
In the donation subject of the present case, there is nothing therein
which indicates that any right, title or interest in the donated properties was to
be transferred to Ursulina prior to the death of Celestina. CTSDAI
The phrase "to become effective upon the death of the DONOR"
admits of no other interpretation but that Celestina intended to transfer the
ownership of the properties to Ursulina on her death, not during her
lifetime. 29
More importantly, the provision in the deed stating that if the donee
should die before the donor, the donation shall be deemed rescinded and of
no further force and effect shows that the donation is a postmortem
disposition.
As stated in a long line of cases, one of the decisive characteristics
of a donation mortis causa is that the transfer should be considered void if
the donor should survive the donee. 30
More. The deed contains an attestation clause expressly confirming
the donation as mortis causa:
SIGNED by the above-named donor,
Celestina Ganuelas, at the foot of this deed of donation
mortis causa, consisting of two (2) pages and on the left
margin of each and every page thereof in the joint
presence of all of us who at her request and in her
presence and that of each other have in like manner
subscribed our names as witnesses. 31 (Emphasis
supplied)
To classify the donation as inter vivos simply because it is founded
on considerations of love and affection is erroneous. That the donation was
prompted by the affection of the donor for the donee and the services
rendered by the latter is of no particular significance in determining whether
the deed constitutes a transfer inter vivos or not, because a legacy may have
an identical motivation. 32 In other words, love and affection may also
underline transfers mortis causa. 33
In Maglasang v. Heirs of Cabatingan, 34 the deeds of donation
contained provisions almost identical to those found in the deed subject of
the present case:
That for and in consideration of the love and
affection of the DONOR for the DONEE, . . . the DONOR
does hereby, by these presents, transfer, convey, by way
of donation, unto the DONEE the above-described
property, together with the buildings and all improvements
existing thereon, to become effective upon the death of the
DONOR; PROVIDED, HOWEVER, that in the event that
the DONEE should die before the DONOR, the present
donation shall be deemed automatically rescinded and of
no further force and effect. (Emphasis supplied)
In that case, this Court held that the donations were mortis causa, for the
above-quoted provision conclusively establishes the donor's intention to
transfer the ownership and possession of the donated property to the
donee only after the former's death. Like in the present case, the deeds
therein did not contain any clear provision that purports to pass
proprietary rights to the donee prior to the donor's death. CcTIDH
As the subject deed then is in the nature of a mortis
causa disposition, the formalities of a will under Article 728 of the Civil Code
should have been complied with, failing which the donation is void and
produces no effect. 35
As noted by the trial court, the attesting witnesses failed to
acknowledge the deed before the notary public, thus violating Article 806 of
the Civil Code which provides:
Art. 806. Every will must be acknowledged before
a notary public by the testator and the witnesses. The
notary public shall not be required to retain a copy of the
 will, or file another with the office of the Clerk of Court.
(Emphasis supplied)
The trial court did not thus commit any reversible error in declaring
the Deed of Donation to be mortis causa.
WHEREFORE, the petition is hereby DENIED for lack of
merit. STECAc
SO ORDERED.
Panganiban, Sandoval-Gutierrez and Corona, JJ., concur.
Puno, J., took no part. Knows one of the parties.
||| (Ganuelas v. Cawed, G.R. No. 123968, [April 24, 2003], 449 PHIL 465-
477)
THIRD DIVISION
[G.R. No. 110427. February 24, 1997.]
The Incompetent, CARMEN CAÑIZA, represented by
her legal guardian, AMPARO
EVANGELISTA, petitioner, vs. COURT OF APPEALS
(SPECIAL FIRST DIVISION), PEDRO ESTRADA and his
wife, LEONORA ESTRADA, respondents.
Priscilla A. Villacorta for petitioner.
Montilla Law Office for private respondents.
SYLLABUS
1. REMEDIAL LAW; JURISDICTION; DETERMINED BY THE
ALLEGATIONS IN THE COMPLAINT. — It is axiomatic that what determines
the nature of an action as well as which court has jurisdiction over it, are the
allegations of the complaint and the character of the relief sought. An inquiry
into the averments of the amended complaint in the Court of origin is thus in
order.
2. ID.; PROVISIONAL REMEDIES; ACTION FOR UNLAWFUL
DETAINER; IT IS SUFFICIENT TO ALLEGE THAT THE DEFENDANT IS
UNLAWFULLY WITHHOLDING POSSESSION FROM THE PLAINTIFF. — It
is settled that in an action for unlawful detainer, to allege that the defendant
is unlawfully withholding possession from the plaintiff is deemed sufficient,
and a complaint for unlawful detainer is sufficient if it alleges that the
withholding of possession or the refusal to vacate is unlawful without
necessarily employing the terminology of the law.
3. ID.; ID.; ID.; PROPER WHEN A PERSON WHO OCCUPIES, OUT
OF GENEROSITY, THE LAND OF ANOTHER AND FAILS TO VACATE
THE SAME UPON DEMAND BY THE OWNER; CASE AT BAR. — More
than once has this Court adjudged that a person who occupies the land of
another at the latter's tolerance or permission without any contract between
them is necessarily bound by an implied promise that he will vacate upon
demand, failing which a summary action for ejectment is the proper remedy
against him, The situation is not much different from that of a tenant whose
lease expires but who continues in occupancy by tolerance of the owner, in
which case there is deemed to be an unlawful deprivation or withholding of
possession as of the date of the demand to vacate. In other words, one
whose stay is merely tolerated becomes a deforciant illegally occupying the
land or property the moment he is required to leave. Thus, in Asset
Privatization Trust vs. Court of Appeals, 229 SCRA 627, 636 [1994] where a
company, having lawfully obtained possession of a plant upon its undertaking
to buy the same, refused to return it after failing to fulfill its promise of
payment despite demands this Court held that "(a)fter demand and its
repudiation, . . . (its) continuing possession . . . became illegal and the
complaint for unlawful detainer filed by the . . . (plant's owner) was its proper
remedy." It may not be amiss to point out in this connection that where there
had been more than one demand to vacate, the one-year period for filing the
complaint for unlawful detainer must be reckoned from the date of the last
demand the reason being that the lessor has the option to waive his right of
action based on previous demands and let the lessee remain meanwhile in
the premises.
4. CIVIL LAW; SUCCESSION; A WILL HAS NO EFFECT
WHATEVER AND NO RIGHT CAN BE CLAIMED THEREUNDER UNTIL IT
IS ADMITTED TO PROBATE. — A will is essentially ambulatory; at any time
prior to the testator's death, it may be changed or revoked; and until admitted
to probate, it has no effect whatever and no right can be claimed thereunder,
the law being quite explicit: "No will shall pass either real or personal
property unless it is proved and allowed in accordance with the Rules of
Court" (ART. 838, CIVIL CODE). An owner's intention to confer title on the
future to persons possessing property by his tolerance, is not inconsistent
with the former's taking back possession in the meantime for any reason
deemed sufficient. And that in this case there was sufficient cause for the
owner's resumption of possession is apparent: she needed to generate
income from the house on account of the physical infirmities afflicting her,
arising from her extreme age.
 5. REMEDIAL LAW; SPECIAL PROCEEDINGS; GUARDIANSHIP;
DUTIES OF THE GUARDIAN; CASE AT BAR. — Amparo Evangelista was
appointed by a competent court the general guardian of both the person and
the estate of her aunt, Carmen Cañiza. Her Letters of Guardianship dated
December 19, 1989 clearly installed her as the "guardian over the person
and properties of the incompetent CARMEN CAÑIZA with full authority to
take possession of the property of said incompetent in any province or
provinces in which it may be situated and to perform all other acts necessary
for the management of her properties . . ." By that appointment, it became
Evangelista's duty to care for her aunt's person, to attend to her physical and
spiritual needs, to assure her well-being, with right to custody of her person
in preference to relatives and friends. It also became her right and duty to get
possession of, and exercise control over, Cañiza's property, both real and
personal, it being recognized principle that the ward has no right to
possession or control of his property during his incompetency. That right to
manage the ward's estate carried with it right to take possession thereof and
recover it from anyone who retains it and bring and defend such actions as
may be needful for this purpose. Actually, in bringing the action ofdesahucio,
Evangelista was merely discharging the duty to attend to "the comfortable
and suitable maintenance of the ward" explicitly imposed on her by Section
4, Rule 96 of the Rules of Court.
6. ID.; PROVISIONAL REMEDIES; EJECTMENT CASE; EFFECT
OF THE DEATH OF A PARTY; CASE AT BAR. — While it is indeed well-
established rule that the relationship of guardian and ward is necessarily
terminated by the death of either the guardian or the ward, the rule affords no
advantage to the Estradas. Amparo Evangelista, as niece of Carmen Cañiza,
is one of the latter's only two (2) surviving heirs, the other being Cañiza's
nephew, Ramon C. Nevado. On their motion and by resolution of this Court
of June 20, 1994, they were in fact substituted as parties in the appeal at bar
in place of the deceased, in accordance with Section 17, Rule 3 of the Rules
of Court. To be sure, an EJECTMENT case survives the death of a party.
Cañiza's demise did not extinguish the desahucio suit instituted by her
through her guardian. That action, not being a purely personal one, survived
her death; her heirs have taken her place and now represent her interests in
the appeal at bar.
DECISION
NARVASA, C .J p:
On November 20, 1989, being then ninety-four (94) years of age,
Carmen Cañiza, a spinster, a retired pharmacist, and former professor of the
College of Chemistry and Pharmacy of the University of the Philippines, was
declared incompetent by judgment 1 of the Regional Trial Court of Quezon
City, Branch 107, 2 in a guardianship proceeding instituted by her niece,
Amparo A. Evangelista. 3 She was so adjudged because of her advanced
age and physical infirmities which included cataracts in both eyes and
senile dementia. Amparo A. Evangelista was appointed legal guardian of her
person and estate.
Cañiza was the owner of a house and lot at No. 61 Tobias St.,
Quezon City. On September 17, 1990, her guardian Amparo Evangelista
commenced a suit in the Metropolitan Trial Court (MetroTC) of Quezon City
(Branch 35) to eject the spouses Pedro and Leonora Estrada from said
premises. 4 The complaint was later amended to identify the incompetent
Cañiza as plaintiff, suing through her legal guardian, Amparo Evangelista.
The amended Complaint 5 pertinently alleged that plaintiff Cañiza
was the absolute owner of the property in question, covered by TCT No.
27147; that out of kindness, she had allowed the Estrada Spouses, their
children, grandchildren and sons-in-law to temporarily reside in her house,
rent-free; that Cañiza already had urgent need of the house on account of
her advanced age and failing health, "so funds could be raised to meet her
expenses for support, maintenance and medical treatment.;" that through her
guardian, Cañiza had asked the Estradas verbally and in writing to vacate
the house but they had refused to do so; and that "by the defendants' act of
unlawfully depriving plaintiff of the possession of the house in question, they .
. . (were) enriching themselves at the expense of the incompetent, because,
while they . . . (were) saving money by not paying any rent for the house, the
incompetent . . . (was) losing much money as her house could not be rented
by others." Also alleged was that the complaint was "filed within one (1) year
from the date of first letter of demand dated February 3, 1990."
In their Answer with Counterclaim, the defendants declared that they
had been living in Cañiza's house since the 1960's; that in consideration of
their faithful service they had been considered by Cañiza as her own family,
and the latter had in fact executed a holographic will on September 4, 1988
by which she "bequeathed" to the Estradas the house and lot in question.
Judgment was rendered by the MetroTC on April 13, 1992 in
Cañiza's favor, 6 the Estradas being ordered to vacate the premises and pay
Cañiza P5,000.00 by way of attorney's fees.
But on appeal, 7 the decision was reversed by the Quezon City
Regional Trial Court, Branch 96. 8 By judgment rendered on October 21,
1992, 9 the RTC held that the "action by which the issue of defendants'
possession should be resolved is accion publiciana, the obtaining factual and
legal situation . . . demanding adjudication by such plenary action for
recovery of possession cognizable in the first instance by the Regional Trial
Court." cdphil
 Cañiza sought to have the Court of Appeals reverse the decision of
October 21, 1992, but failed in that attempt. In a decision 10 promulgated on
June 2, 1993, the Appellate Court 11 affirmed the RTC's judgment in toto . It
which court has jurisdiction over it, are the allegations of the complaint and
ruled that (a) the proper remedy for Cañiza was indeed an accion
the character of the relief sought. 17 An inquiry into the averments of the
publiciana in the RTC, not an accion interdictal in the MetroTC, since the
amended complaint in the Court of origin is thus in order. 18
"defendants have not been in the subject premises as mere tenants or
occupants by tolerance, they have been there as a sort of adopted family of
Carmen Cañiza," as evidenced by what purports to be the holographic will of
the plaintiff; and (b) while "said will, unless and until it has passed probate by
the proper court, could not be the basis of defendants' claim to the property, .
. . it is indicative of intent and desire on the part of Carmen Cañiza that
defendants are to remain and are to continue in their occupancy and
possession, so much so that Cañiza's supervening incompetency can not be
said to have vested in her guardian the right or authority to drive the
defendants out." 12
Through her guardian, Cañiza came to this Court praying for reversal
of the Appellate Court's judgment. She contends in the main that the latter
erred in (a) holding that she should have pursued an accion publiciana, and
not an accion interdictal; and in (b) giving much weight to "a xerox copy of an
alleged holographic will, which is irrelevant to this case." 13
In the responsive pleading filed by them on this Court's
requirement, 14 the Estradas insist that the case against them was really not
one of unlawful detainer; they argue that since possession of the house had
not been obtained by them by any "contract, express or implied," as
contemplated by Section 1, Rule 70 of the Rules of Court, their occupancy of
the premises could not be deemed one "terminable upon mere demand (and
hence never became unlawful) within the context of the law." Neither could
the suit against them be deemed one of forcible entry, they add, because
they had been occupying the property with the prior consent of the "real
owner," Carmen Cañiza, which "occupancy can even ripen into full
ownership once the holographic will of petitioner Carmen Cañiza is admitted
to probate." They conclude, on those postulates, that it is beyond the power
of Cañiza's legal guardian to oust them from the disputed premises.
Carmen Cañiza died on March 19, 1994, 15 and her heirs — the
aforementioned guardian, Amparo Evangelista, and Ramon C. Nevado, her
niece and nephew, respectively — were by this Court's leave, substituted for
her. 16
Three issues have to be resolved: (a) whether or not an ejectment
action is the appropriate judicial remedy for recovery of possession of the
property in dispute; (b) assuming desahucio to be proper, whether or not
Evangelista, as Cañiza's legal guardian had authority to bring said action;
and (c) assuming an affirmative answer to both questions, whether or not
Evangelista may continue to represent Cañiza after the latter's death.
I
It is axiomatic that what determines the nature of an action as well as
The amended Complaint alleges:19
"6. That the plaintiff, Carmen Cañiza, is the sole
and absolute owner of a house and lot at No. 61 Scout
Tobias, Quezon City, which property is now the subject of
this complaint;
xxx xxx xxx
9. That the defendants, their children,
grandchildren and sons-in-law, were allowed to live
temporarily in the house of plaintiff, Carmen Cañiza, for
free, out of her kindness;
10. That the plaintiff, through her legal guardian,
has duly notified the defendants, for them to vacate the
said house, but the two (2) letters of demand were ignored
and the defendants refused to vacate the same. . .
11. That the plaintiff, represented by her legal
guardian, Amparo Evangelista, made another demand on
the defendants for them to vacate the premises, before
Barangay Captain Angelina A. Diaz of Barangay Laging
Handa, Quezon City, but after two (2) conferences, the
result was negative and no settlement was reached. A
photocopy of the Certification to File Action dated July 4,
1990; issued by said Barangay Captain is attached,
marked Annex "D" and made an integral part hereof;
12. That the plaintiff has given the defendants
more than thirty (30) days to vacate the house, but they
still refused to vacate the premises, and they are up to this
time residing in the said place;
13. That this complaint is filed within one (1) year
from the date of first letter of demand dated February 3,
1990 (Annex "B") sent by the plaintiff to the defendants, by
her legal guardian — Amparo Evangelista;
14. By the defendants' act of unlawfully depriving
the plaintiff of the possession of the house in question,
they are enriching themselves at the expense of the
 incompetent plaintiff, because, while they are saving
money by not paying any rent for the house, the plaintiff is
losing much money as her house could not be rented by
others;
15. That the plaintiff's health is failing and she
needs the house urgently, so that funds could be raised to
meet her expenses for her support, maintenance and
medical treatment;
16. That because of defendants' refusal to vacate
the house at No. 61 Scout Tobias, Quezon City, the
plaintiff, through her legal guardian, was compelled to go
to court for justice, and she has to spend P10,000.00 as
attorney's fees."
Its prayer 20 is quoted below:
"WHEREFORE, in the interest of justice and the
rule of law, plaintiff, Carmen Cañiza, represented by her
legal guardian. Amparo Evangelista, respectfully prays to
this Honorable Court, to render judgment in favor of
plaintiff and against the defendants as follows:
1. To order the defendants, their children,
grandchildren, sons-in-law and other persons claiming
under them, to vacate the house and premises at No. 61
Scout Tobias, Quezon City, so that its possession can be
restored to the plaintiff, Carmen Cañiza: and
2. To pay attorney's fees in the amount of
P10,000.00;
3. To pay the costs of the suit."
In essence, the amended complaint states:
1) that the Estradas were occupying Cañiza's house by
tolerance — having been "allowed to live
temporarily . . . (therein) for free, out of . . .
(Cañiza's) kindness;"
2) that Cañiza needed the house "urgently" because her
"health . . . (was) failing and she . . . (needed)
funds . . . to meet her expenses for her support,
maintenance and medical treatment;"
3) that through her general guardian, Cañiza requested the
Estradas several times, orally and in writing, to
give back possession of the house;
4) that the Estradas refused and continue to refuse to give
back the house to Cañiza, to her continuing
prejudice; and
5) that the action was filed within one (1) year from the last
demand to vacate.
Undoubtedly, a cause of action for desahucio has been adequately
set out. It is settled that in an action for unlawful detainer, it suffices to allege
that the defendant is unlawfully withholding possession from the plaintiff is
deemed sufficient, 21 and a complaint for unlawful detainer is sufficient if it
alleges that the withholding of possession or the refusal to vacate is unlawful
without necessarily employing the terminology of the law. 22
The Estradas' first proffered defense derives from a literal
construction of Section 1, Rule 70 of the Rules of Court which inter
alia authorizes the institution of an unlawful detainer suit when "the
possession of any land or building is unlawfully withheld after the expiration
or termination of the right to hold possession, by virtue of any contract,
express or implied." They contend that since they did not acquire possession
of the property in question "by virtue of any contract, express or implied" —
they having been, to repeat, "allowed to live temporarily . . . (therein) for free,
out of . . . (Cañiza's) kindness" — in no sense could there be an "expiration
or termination of . . . (their) right to hold possession, by virtue of any contract,
express or implied." Nor would an action for forcible entry lie against them,
since there is no claim that they had "deprived (Cañiza) of the possession of
. . . (her property) by force, intimidation, threat, strategy, or stealth."
The argument is arrant sophistry. Cañiza's act of allowing the
Estradas to occupy her house, rent-free, did not create a permanent and
indefeasible right of possession in the latter's favor. Common sense, and the
most rudimentary sense of fairness clearly require that act of liberality be
implicitly, but no less certainly, accompanied by the necessary burden on the
Estradas of returning the house to Cañiza upon her demand. More than once
has this Court adjudged that a person who occupies the land of another at
the latter's tolerance or permission without any contract between them is
necessarily bound by an implied promise that he will vacate upon demand,
failing which a summary action for ejectment is the proper remedy against
him. 23 The situation is not much different from that of a tenant whose lease
expires but who continues in occupancy by tolerance of the owner, in which
case there is deemed to be an unlawful deprivation or withholding of
possession as of the date of the demand to vacate. 24 In other words, one
whose stay is merely tolerated becomes a deforciant illegally occupying the
land or property the moment he is required to leave. 25 Thus, in Asset
Privatization Trust vs. Court of Appeals, 26 where a company, having lawfully
obtained possession of a plant upon its undertaking to buy the same, refused
to return it after failing to fulfill its promise of payment despite demands, this
Court held that "(a)fter demand and its repudiation, . . . (its) continuing
possession . . . became illegal and the complaint for unlawful detainer filed
by the . . . (plant's owner) was its proper remedy."
It may not be amiss to point out in this connection that where there
had been more than one demand to vacate, the one-year period for filing the
complaint for unlawful detainer must be reckoned from the date of the last
demand, 27 the reason being that the lessor has the option to waive his right
of action based on previous demands and let the lessee remain meanwhile in
the premises. 28 Now, the complaint filed by Cañiza's guardian alleges that
the same was "filed within one (1) year from the date of the first letter of
demand dated February 3, 1990." Although this averment is not in accord
with law because there is in fact a second letter of demand to vacate, dated
February 27, 1990, the mistake is inconsequential, since the complaint was
actually filed on September 17, 1990, well within one year from the second
(last) written demand to vacate.
The Estradas' possession of the house stemmed from the owner's
express permission. That permission was subsequently withdrawn by the
owner, as was her right; and it is immaterial that the withdrawal was made
through her judicial guardian, the latter being indisputably clothed with
authority to do so. Nor is it of any consequence that Carmen Cañiza had
executed a will bequeathing the disputed property to the Estradas; that
circumstance did not give them the right to stay in the premises after demand
to vacate on the theory that they might in future become owners thereof, that
right of ownership being at best inchoate, no transfer of ownership being
possible unless and until the will is duly probated.
Thus, at the time of the institution of the action of desahucio, the
Estradas had no legal right to the property, whether as possessors by
tolerance or sufferance, or as owners. They could not claim the right of
possession by sufferance, that had been legally ended. They could not
assert any right of possession flowing from their ownership of the house;
their status as owners is dependent on the probate of the holographic will by
which the property had allegedly been bequeathed to them — an event
which still has to take place; in other words; prior to the probate of the will,
any assertion of possession by them would be premature and inefficacious.
In any case, the only issue that could legitimately be raised under the
circumstances was that involving the Estradas' possession by tolerance, i.e.,
possession de facto, not de jure. It is therefore incorrect to postulate that the
proper remedy for Cañiza is not ejectment but accion publiciana, a plenary
action in the RTC or an action that is one for recovery of the right to
possession de jure.
II
The Estradas insist that the devise of the house to them by Cañiza
clearly denotes her intention that they remain in possession thereof, and
legally incapacitated her judicial guardian, Amparo Evangelista, from evicting
them therefrom, since their ouster would be inconsistent with the ward's will.
A will is essentially ambulatory; at any time prior to the testator's
death, it may be changed or revoked; 29 and until admitted to probate, it has
no effect whatever and no right can be claimed thereunder, the law being
quite explicit: "No will shall pass either real or personal property unless it is
proved and allowed in accordance with the Rules of Court" (ART.
838, Id.). 30 An owner's intention to confer title in the future to persons
possessing property by his tolerance, is not inconsistent with the former's
taking back possession in the meantime for any reason deemed sufficient.
And that in this case there was sufficient cause for the owner's resumption of
possession is apparent: she needed to generate income from the house on
account of the physical infirmities afflicting her, arising from her extreme age.
Amparo Evangelista was appointed by a competent court the general
guardian of both the person and the estate of her aunt, Carmen Cañiza. Her
Letters of Guardianship 31 dated December 19, 1989 clearly installed her as
the "guardian over the person and properties of the incompetent CARMEN
CAÑIZA with full authority to take possession of the property of said
incompetent in any province or provinces in which it may be situated and to
perform all other acts necessary for the management of her properties . .
." 32 By that appointment, it became Evangelista's duty to care for her aunt's
person, to attend to her physical and spiritual needs, to assure her well-
being, with right to custody of her person in preference to relatives and
friends. 33 It also became her right and duty to get possession of, and
exercise control over, Cañiza's property, both real and personal, it being
recognized principle that the ward has no right to possession or control of his
property during her incompetency. 34 That right to manage the ward's estate
carries with it the right to take possession thereof and recover it from anyone
who retains it, 35 and bring and defend such actions as may be needful for
this purpose. 36
Actually, in bringing the action of desahucio, Evangelista was merely
discharging the duty to attend to "the comfortable and suitable maintenance
of the ward" explicitly imposed on her by Section 4, Rule 96 of the Rules of
Court, viz.:
"SEC. 4. Estate to be managed frugally, and
proceeds applied to maintenance of ward. — A guardian
must manage the estate of his ward frugally and without
waste, and apply the income and profits thereof, so far as
maybe necessary, to the comfortable and suitable
maintenance of the ward and his family, if there be any;
 and if such income and profits be insufficient for that
purpose, the guardian may sell or encumber the real
estate, upon being authorized by order to do so, and apply
to such of the proceeds as may be necessary to such
maintenance."
Finally, it may be pointed out in relation to the Estradas' defenses in
the ejectment action, that as the law now stands, even when, in forcible entry
and unlawful detainer cases, the defendant raises the question of ownership
in his pleadings and the question of possession cannot be resolved without
deciding the issue of ownership, the Metropolitan Trial Courts, Municipal Trial
Courts, and Municipal Circuit Trial Courts nevertheless have the undoubted
competence to resolve. "the issue of ownership . . . only to determine the
issue of possession." 37
III
As already stated, Carmen Cañiza passed away during the
pendency of this appeal. The Estradas thereupon moved to dismiss the
petition, arguing that Cañiza's death automatically terminated the
guardianship, Amparo Evangelista lost all authority as her judicial guardian,
and ceased to have legal personality to represent her in the present appeal.
The motion is without merit.
deceased, without requiring the appointment of an
executor or administrator and the court may appoint
guardian ad litem for the minor heirs.
To be sure, an ejectment case survives the death of a party.
Cañiza's demise did not extinguish the desahucio suit instituted by her
through her guardian. 41 That action, not being a purely personal one,
survived her death; her heirs have taken her place and now represent her
interests in the appeal at bar.
WHEREFORE, the petition is GRANTED. The Decision of the Court
of Appeals promulgated on June 2, 1993 — affirming the Regional Trial
Court's judgment and dismissing petitioner's petition for certiorari — is
REVERSED and SET ASIDE, and the Decision dated April 13, 1992 of the
Metropolitan Trial Court of Quezon City, Branch 35, in Civil Case No. 3410 is
REINSTATED and AFFIRMED. Costs against private respondents. cda
SO ORDERED.
Davide, Jr., Melo, Francisco and Panganiban, JJ., concur.
||| (Cañiza v. Court of Appeals, G.R. No. 110427, [February 24, 1997], 335
PHIL 1107-1121)

While it is indeed well-established rule that the relationship of

guardian and ward is necessarily terminated by the death of either the
SECOND DIVISION
guardian or the ward, 38 the rule affords no advantage to the Estradas.
Amparo Evangelista, as niece of Carmen Cañiza, is one of the latter's only
two (2) surviving heirs, the other being Cañiza's nephew, Ramon C. Nevado. [G.R. No. 156536. October 31, 2006.]
On their motion and by Resolution of this Court 39 of June 20, 1994, they
were in fact substituted as parties in the appeal at bar in place of the
deceased, in accordance with Section 17, Rule 3 of the Rules of Court, JOSEPH CUA, petitioner, vs. GLORIA A. VARGAS,
viz.: 40 AURORA VARGAS, RAMON VARGAS, MARITES
VARGAS, EDELINA VARGAS AND GEMMA
"SEC. 17. Death of a party. — After a party dies VARGAS,respondents.
and the claim is not thereby extinguished, the court shall
order, upon proper notice, the legal representative of the
deceased to appear and be substituted for the deceased
within a period of thirty (30) days, or within such time as DECISION
may be granted. If the legal representative fails to appear
within said time, the court may order the opposing party to
procure the appointment of a legal representative of the
AZCUNA, J p:
deceased within a time to be specified by the court, and
the representative shall immediately appear for and on
This is a petition for review under Rule 45 of the Rules of
behalf of the interest of the deceased. The court charges
Court seeking the reversal of the decision 1 dated March 26, 2002, and
involved in procuring such appointment, if defrayed by the
the resolution 2 dated December 17, 2002, of the Court of Appeals in
opposing party, may be recovered as costs. The heirs of
CA-G.R. SP No. 59869 entitled "Gloria A. Vargas, Aurora Vargas,
the deceased may be allowed to be substituted for the
Ramon Vargas, Marites Vargas, Edelina Vargas and Gemma Vargas v.
Joseph Cua."
The facts are as follows:
A parcel of residential land with an area of 99 square meters
located in San Juan, Virac, Catanduanes was left behind by the late
Paulina Vargas. On February 4, 1994, a notarized Extra Judicial
Settlement Among Heirs was executed by and among Paulina Vargas'
heirs, namely Ester Vargas, Visitacion Vargas, Juan Vargas, Zenaida V.
Matienzo, Rosario V. Forteza, Andres Vargas, Gloria Vargas, Antonina
Vargas and Florentino Vargas, partitioning and adjudicating unto
themselves the lot in question, each one of them getting a share of 11
square meters. Florentino, Andres, Antonina and Gloria, however, did
not sign the document. Only Ester, Visitacion, Juan, Zenaida and
Rosario signed it. The Extra Judicial Settlement Among Heirs was
published in the Catanduanes Tribune for three consecutive weeks. 3
On November 15, 1994, an Extra Judicial Settlement Among
Heirs with Sale 4 was again executed by and among the same heirs over
the same property and also with the same sharings. Once more, only
Ester, Visitacion, Juan, Zenaida and Rosario signed the document and
their respective shares totaling 55 square meters were sold to Joseph
Cua, petitioner herein.
According to Gloria Vargas, the widow of Santiago Vargas and
one of respondents herein, she came to know of the Extra Judicial
Settlement Among Heirs with Sale dated November 16, 1994 only when
the original house built on the lot was being demolished sometime in
May 1995. 5 She likewise claimed she was unaware that an earlier Extra
Judicial Settlement Among Heirs dated February 4, 1994 involving the
same property had been published in the Catanduanes Tribune. 6
After knowing of the sale of the 55 square meters to petitioner,
Gloria Vargas tried to redeem the property, with the following
letter 7 sent to petitioner on her behalf: HTSAEa
29th June 1995
Mr. Joseph Cua
Capilihan, Virac, Catanduanes
Sir:
This is in behalf of my client, Ms. Aurora Vargas, 8 (c/o
Atty. Prospero V. Tablizo) one of the lawful heirs of the late
Paulina Vargas, original owner of Lot No. 214 of Virac,
Poblacion covered by ARP No. 031-0031 in her name.
I understand that a document "Extra Judicial Settlement
Among Heirs with Sale" was executed by some of my
client's co-heirs and alleged representatives of other co-
heirs, by virtue of which document you acquired by
purchase from the signatories to the said document, five
(5) shares with a total area of fifty-five square meters of
the above-described land.
This is to serve you notice that my client shall exercise her
right of legal redemption of said five (5) shares as well as
other shares which you may likewise have acquired by
purchase. And you are hereby given an option to agree to
legal redemption within a period of fifteen (15) days from
your receipt hereof.
Should you fail to convey to me your agreement within
said 15-day-period, proper legal action shall be taken by
my client to redeem said shares.
Thank you.
Very truly yours,
(Sgd.)
JUAN G. ATENCIA
When the offer to redeem was refused and after having failed to
reach an amicable settlement at the barangay level, 9 Gloria Vargas filed
a case for annulment of Extra Judicial Settlement and Legal Redemption
of the lot with the Municipal Trial Court (MTC) of Virac, Catanduanes
against petitioner and consigned the amount of P100,000 which is the
amount of the purchase with the Clerk of Court on May 20,
1996. 10 Joining her in the action were her children with Santiago,
namely, Aurora, Ramon, Marites, Edelina and Gemma, all surnamed
Vargas.
Subsequently, Carlos Gianan, Jr. and Gloria Arcilla, heirs of the
alleged primitive owner of the lot in question, Pedro Lakandula,
intervened in the case. 11
Respondents claimed that as co-owners of the property, they
may be subrogated to the rights of the purchaser by reimbursing him the
price of the sale. They likewise alleged that the 30-day period following a
written notice by the vendors to their co-owners for them to exercise the
right of redemption of the property had not yet set in as no written notice
was sent to them. In effect, they claimed that the Extra Judicial
Settlement Among Heirs and the Extra Judicial Settlement Among Heirs
with Sale were null and void and had no legal and binding effect on
them. 12
After trial on the merits, the MTC rendered a decision 13 in favor
of petitioner, dismissing the complaint as well as the complaint-in-
intervention for lack of merit, and declaring the Deed of Extra Judicial
Settlement Among Heirs with Sale valid and binding. The MTC upheld
the sale to petitioner because the transaction purportedly occurred after
the partition of the property among the co-owner heirs. The MTC opined
that the other heirs could validly dispose of their respective shares.
Moreover, the MTC found that although there was a failure to strictly
comply with the requirements under Article 1088 of the Civil Code 14 for
a written notice of sale to be served upon respondents by the vendors
prior to the exercise of the former's right of redemption, this deficiency
was cured by respondents' actualknowledge of the sale, which was more
than 30 days before the filing of their complaint, and their consignation of
the purchase price with the Clerk of Court, so that the latter action came
too late. Finally, the MTC ruled that respondents failed to establish by
competent proof petitioner's bad faith in purchasing the portion of the
property owned by respondents' co-heirs. 15
On appeal, the Regional Trial Court (RTC), Branch 42, of Virac,
Catanduanes affirmed the MTC decision in a judgment dated November
25, 1999. The matter was thereafter raised to the Court of Appeals
(CA). ASHEca
The CA reversed the ruling of both lower courts in the assailed
decision dated March 26, 2002, declaring that the Extra Judicial
Settlement Among Heirs and the Extra Judicial Settlement Among Heirs
with Sale, dated February 4, 1994 and November 15, 1994, respectively,
were void and without any legal effect. The CA held that, pursuant to
Section 1, Rule 74 of the Rules of Court, 16 the extrajudicial settlement
made by the other co-heirs is not binding upon respondents considering
the latter never participated in it nor did they ever signify their consent to
the same.
His motion for reconsideration having been denied, petitioner
filed the present petition for review.
The issues are:
Whether heirs are deemed constructively notified
and bound, regardless of their failure to participate therein,
by an extrajudicial settlement and partition of estate when
the extrajudicial settlement and partition has been duly
published; and,
Assuming a published extrajudicial settlement and
partition does not bind persons who did not participate
therein, whether the written notice required to be served by
an heir to his co-heirs in connection with the sale of
hereditary rights to a stranger before partition under Article
1088 of the Civil Code 17 can be dispensed with when
such co-heirs have actual knowledge of the sale such that
the 30-day period within which a co-heir can exercise the
right to be subrogated to the rights of a purchaser shall
commence from the date of actual knowledge of the sale.
Petitioner argues, as follows:
Firstly, the acquisition by petitioner of the subject property
subsequent to the extrajudicial partition was valid because the partition
was duly published. The publication of the same constitutes due notice to
respondents and signifies their implied acquiescence thereon.
Respondents are therefore estopped from denying the validity of the
partition and sale at this late stage. Considering that the partition was
valid, respondents no longer have the right to redeem the property.
Secondly, petitioner is a possessor and builder in good faith.
Thirdly, the MTC had no jurisdiction over the complaint because
its subject matter was incapable of pecuniary estimation. The complaint
should have been filed with the RTC.
Fourthly, there was a non-joinder of indispensable parties, the
co-heirs who sold their interest in the subject property not having been
impleaded by respondents.
Fifthly, the appeal to the CA should have been dismissed as it
was not properly verified by respondents. Gloria Vargas failed to indicate
that she was authorized to represent the other respondents (petitioners
therein) to initiate the petition. Moreover, the verification was inadequate
because it did not state the basis of the alleged truth and/or correctness
of the material allegations in the petition.
The petition lacks merit.
The procedure outlined in Section 1 of Rule 74 is an ex
parte proceeding. The rule plainly states, however, that persons who do
not participate or had no notice of an extrajudicial settlement will not be
bound thereby. 18 It contemplates a notice that has been sent out or
issued before any deed of settlement and/or partition is agreed upon
(i.e., a notice calling all interested parties to participate in the said deed
of extrajudicial settlement and partition), and not after such an
agreement has already been executed 19 as what happened in the
instant case with the publication of the first deed of extrajudicial
settlement among heirs.
The publication of the settlement does not constitute constructive
notice to the heirs who had no knowledge or did not take part in it
because the same was notice after the fact of execution. The
requirement of publication is geared for the protection of creditors and
was never intended to deprive heirs of their lawful participation in the
decedent's estate. In this connection, the records of the present case
confirm that respondents never signed either of the settlement
documents, having discovered their existence only shortly before the
filing of the present complaint. Following Rule 74, these extrajudicial
settlements do not bind respondents, and the partition made without their
knowledge and consent is invalid insofar as they are concerned. TASCDI
This is not to say, though, that respondents' co-heirs cannot
validly sell their hereditary rights to third persons even before the
partition of the estate. The heirs who actually participated in the
execution of the extrajudicial settlements, which included the sale to
petitioner of their pro indiviso shares in the subject property, are bound
by the same. Nevertheless, respondents are given the right to redeem
these shares pursuant to Article 1088 of the Civil Code.The right to
redeem was never lost because respondents were never notified in
writing of the actual sale by their co-heirs. Based on the provision, there
is a need for written notice to start the period of redemption, thus:
Should any of the heirs sell his hereditary rights to
a stranger before the partition, any or all of the co-heirs
may be subrogated to the rights of the purchaser by
reimbursing him for the price of the sale, provided they
do so within the period of one month from the time
they were notified in writing of the sale by the vendor.
(Emphasis supplied.)
It bears emphasis that the period of one month shall be reckoned
from the time that a co-heir is notified in writing by the vendor of the
actual sale. Written notice is indispensable and mandatory, 20 actual
knowledge of the sale acquired in some other manner by the
redemptioner notwithstanding. It cannot be counted from the time
advance notice is given of an impending or contemplated sale. The law
gives the co-heir thirty days from the time written notice of the actual sale
within which to make up his or her mind and decide to repurchase or
effect the redemption. 21
Though the Code does not prescribe any particular form of
written notice nor any distinctive method for written notification of
redemption, the method of notification remains exclusive, there being no
alternative provided by law. 22 This proceeds from the very purpose of
Article 1088, which is to keep strangers to the family out of a joint
ownership, if, as is often the case, the presence of outsiders be
undesirable and the other heir or heirs be willing and in a position to
repurchase the share sold. 23
It should be kept in mind that the obligation to serve written
notice devolves upon the vendor co-heirs because the latter are in the
best position to know the other co-owners who, under the law, must be
notified of the sale. 24 This will remove all uncertainty as to the fact of
the sale, its terms and its perfection and validity, and quiet any doubt that
the alienation is not definitive. 25 As a result, the party notified need not
entertain doubt that the seller may still contest the alienation. 26
Considering, therefore, that respondents' co-heirs failed to
comply with this requirement, there is no legal impediment to allowing
respondents to redeem the shares sold to petitioner given the former's
obvious willingness and capacity to do so.
Likewise untenable is petitioner's contention that he is a builder
in good faith. Good faith consists in the belief of the builder that the land
the latter is building on is one's own without knowledge of any defect or
flaw in one's title. 27 Petitioner derived his title from the Extra Judicial
Settlement Among Heirs With Sale dated November 15, 1994. He was
very much aware that not all of the heirs participated therein as it was
evident on the face of the document itself. Because the property had not
yet been partitioned in accordance with the Rules of Court, no particular
portion of the property could have been identified as yet and delineated
as the object of the sale. This is because the alienation made by
respondents' co-heirs was limited to the portion which may be allotted to
them in the division upon the termination of the co-ownership. Despite
this glaring fact, and over the protests of respondents, petitioner still
constructed improvements on the property. For this reason, his claim of
good faith lacks credence.
As to the issue of lack of jurisdiction, petitioner is estopped from
raising the same for the first time on appeal. Petitioner actively
participated in the proceedings below and sought affirmative ruling from
the lower courts to uphold the validity of the sale to him of a portion of
the subject property embodied in the extrajudicial settlement among
heirs. Having failed to seasonably raise this defense, he cannot, under
the peculiar circumstances of this case, be permitted to challenge the
jurisdiction of the lower court at this late stage. While it is a rule that a
jurisdictional question may be raised at any time, an exception arises
where estoppel has already supervened.
Estoppel sets in when a party participates in all stages of a case
before challenging the jurisdiction of the lower court. One cannot
belatedly reject or repudiate its decision after voluntarily submitting to its
jurisdiction, just to secure affirmative relief against one's opponent or
after failing to obtain such relief. The Court has, time and again, frowned
upon the undesirable practice of a party submitting a case for decision
and then accepting the judgment, only if favorable, and attacking it for
lack of jurisdiction when adverse. 28
Petitioner's fourth argument, that there is a non-joinder of
indispensable parties, similarly lacks merit. An indispensable party is a
party-in-interest without whom there can be no final determination of an Court deems it sufficient that she signed the petition on their behalf and
action and who is required to be joined as either plaintiff or as their representative.
defendant. 29 The party's interest in the subject matter of the suit and in
WHEREFORE, the petition is DENIED for lack of merit. Costs
the relief sought is so inextricably intertwined with the other parties that
against petitioner.
the former's legal presence as a party to the proceeding is an absolute
necessity. Hence, an indispensable party is one whose interest will be SO ORDERED.
directly affected by the court's action in the litigation. In the absence of
Puno, Sandoval-Gutierrez, Corona and Garcia, JJ., concur.
such indispensable party, there cannot be a resolution of the controversy
before the court which is effective, complete, or equitable. 30 ||| (Cua v. Vargas, G.R. No. 156536, [October 31, 2006], 536 PHIL 1082-
In relation to this, it must be kept in mind that the complaint filed 1097)
by respondents ultimately prayed that they be allowed to redeem the
shares in the property sold by their co-heirs. Significantly, the right of the
other heirs to sell their undivided share in the property to petitioner is not THIRD DIVISION
in dispute. Respondents concede that the other heirs acted within their
hereditary rights in doing so to the effect that the latter completely and
effectively relinquished their interests in the property in favor of [G.R. No. 175720. September 11, 2007.]
petitioner. Petitioner thus stepped into the shoes of the other heirs to
become a co-owner of the property with respondents. As a result, only CRESENCIANA TUBO RODRIGUEZ (now
petitioner's presence is absolutely required for a complete and final deceased),substituted by SUSANA A.
determination of the controversy because what respondents seek is to LLAGAS, petitioner,vs.EVANGELINE RODRIGUEZ,
be subrogated to his rights as a purchaser. ECHSDc BELEN RODRIGUEZ and BUENAVENTURA
Finally, petitioner contends that the petition filed by respondents RODRIGUEZ, respondents.
with the CA should have been dismissed because the verification and
certificate of non-forum shopping appended to it were defective, citing
specifically the failure of respondent Gloria Vargas to: (1) indicate that
DECISION
she was authorized to represent her co-respondents in the petition, and
(2) state the basis of the alleged truth of the allegations.
The general rule is that the certificate of non-forum shopping
must be signed by all the plaintiffs or petitioners in a case and the YNARES-SANTIAGO, J p:
signature of only one of them is insufficient. 31 Nevertheless, the rules
on forum shopping, which were designed to promote and facilitate the This petition for review on certiorari assails the Decision 1 of the
orderly administration of justice, should not be interpreted with such Court of Appeals in CA-G.R. SP No. 91442 dated June 27, 2006, which
absolute literalness as to subvert their own ultimate and legitimate set aside the Decision of the Regional Trial Court (RTC) of Makati City,
objective. Strict compliance with the provisions regarding the certificate Branch 134, in Civil Case No. 03-517, and reinstated the Decision of the
of non-forum shopping merely underscores its mandatory nature in that Metropolitan Trial Court (MTC) of Makati City, Branch 63, in Civil Case
the certification cannot be altogether dispensed with or its requirements No. 75717, dismissing the complaint for ejectment; as well as the
completely disregarded. 32 Under justifiable circumstances, the Court Resolution denying the motion for reconsideration.
has relaxed the rule requiring the submission of such certification Juanito Rodriguez owned a five-door apartment located at San
considering that although it is obligatory, it is not jurisdictional. 33 Jose Street, Guadalupe Nuevo, Makati City, and covered by TCT No.
Thus, when all the petitioners share a common interest and 144865. 2 On October 27, 1983, Juanito executed a "Huling Habilin at
invoke a common cause of action or defense, the signature of only one Testamento" giving petitioner Cresenciana Tubo Rodriguez, his live-in
of them in the certification against forum shopping substantially complies partner, apartments D and E, and his children Benjamin Rodriguez (the
with the rules. 34 The co-respondents of respondent Gloria Vargas in deceased husband of respondent Evangeline Rodriguez),apartment A,
this case were her children. In order not to defeat the ends of justice, the respondent Buenaventura Rodriguez, apartment B, and respondent
Belen Rodriguez, apartment C. 3 SHIcDT
 However, on June 14, 1984, Juanito executed a Deed of
Absolute Sale over the property in favor of petitioner. 4 Thus, TCT No.
144865 was cancelled and a new TCT No. 150431 was issued in the
name of the petitioner. 5 aEIcHA
The case arose when petitioner filed on September 20, 2001 a
complaint for unlawful detainer against the respondents, alleging that she
is the lawful and registered owner of the property; and that in 1984, she
allowed respondents Evangeline, Buenaventura and Belen, out of
kindness and tolerance, to personally occupy units A, B and D,
respectively. However, without her knowledge and consent, respondents
separately leased the units to Montano Magpantay, Mel Navarro and
Socorro Escota, who despite repeated demands, failed and refused to
vacate the premises and to pay the rentals thereof. 6
In their Answer, respondents claimed ownership over the subject
property by succession. They alleged that while petitioner is the
registered owner of the property, however, she is not the lawful owner
thereof because the June 14, 1984 Deed of Absolute Sale was simulated
and void. As in Civil Case No. 01-1641 now pending before the RTC of
Makati City, Branch 141, which they filed to assail the validity of the said
sale, respondents maintain that petitioner exerted undue influence over
their father, who at that time was seriously ill, to agree to the sale of the
property for only P20,000.00 after knowing that only two apartments
were given to her in the Huling Habilin at Testamento. Further, she had
no cause of action against them for being a party to the August 23, 1990
Partition Agreement wherein they recognized each other as co-owners
and partitioned the property in accordance with the provision of the last
will and testament. 7
On February 26, 2002, the MTC rendered a judgment in favor of
the respondents and held that the deed of sale was simulated otherwise
petitioner would not have entered into the Partition Agreement, which
legally conferred upon each heir exclusive ownership over their
respective shares, thus:
WHEREFORE, the Complaint is DISMISSED.
Plaintiff is ordered to pay attorney's fees of P10,000.00
and the costs of suit in favor of defendants.
SO ORDERED. 8
On appeal, the RTC reversed the decision of the MTC. It held
that petitioner's certificate of title is a conclusive evidence of ownership of
the land described therein; and that unless and until said title has been
annulled by a court of competent jurisdiction, such title is existing and
valid. This is true also with respect to the deed of sale. The present
action, which involves only the issue of physical or material possession,
is not the proper action to challenge it. Further, the MTC erred when it
relied heavily on the "Huling Habilin at Testamento," which was not
probated hence has no effect and no right can be claimed therein. The
Partition Agreement which was allegedly entered into pursuant to
the Huling Habilin at Testamento should not also be considered. Thus:
WHEREFORE, premises considered, the decision
rendered by the Metropolitan Trial Court, Branch 63,
Makati City, is hereby ordered REVERSED AND SET
ASIDE. Consequently, judgment is hereby rendered
ordering the defendants and all persons claiming rights
under them to vacate the premises and surrender the
possession thereof to the plaintiff. Defendants are likewise
ordered to pay jointly and severally the plaintiff an amount
of P5,000.00 a month per unit beginning 13 August 2001
until they finally vacate the premises and the costs of this
suit. HETDAC
SO ORDERED. 9
Aggrieved, respondents filed a petition for review before the
Court of Appeals which reversed and set aside the decision of the RTC
and reinstated the decision of the MTC. It held that the MTC correctly
received evidence on ownership since the question of possession could
not be resolved without deciding the issue of ownership. Further,
the Huling Habilin at Testamento transmitted ownership of the specific
apartments not only to the respondents but also to the petitioner; and
pursuant thereto, the parties executed the Partition Agreement in
accordance with the wishes of the testator, thus:
WHEREFORE, this Court resolves to REVERSE
and SET ASIDE the Decision of the Regional Trial Court.
The decision dated February 26, 2002 of the Metropolitan
Trial Court, Branch 63, Makati City in Civil Case No. 75717
dismissing the complaint for ejectment is hereby
REINSTATED. cHECAS
SO ORDERED. 10
The motion for reconsideration was denied hence, petitioner filed
the present petition for review raising the following errors:
I.
THE COURT OF APPEALS COMMITTED A
REVERSIBLE ERROR OF LAW AND GRAVE ABUSE OF
DISCRETION IN REVERSING AND SETTING ASIDE
THE DECISION OF THE REGIONAL TRIAL COURT AND
REINSTATING THE DECISION OF THE
METROPOLITAN TRIAL COURT DISMISSING
 PETITIONER'S COMPLAINT FOR UNLAWFUL
DETAINER. aTIEcA
II.
THE COURT OF APPEALS COMMITTED A However, when the issue of ownership is raised the court is not
REVERSIBLE ERROR OF LAW AND GRAVE ABUSE OF
DISCRETION IN DECLARING THAT THE PROPERTY, A
PARCEL OF LAND UPON WHICH A FIVE-UNIT
APARTMENT STANDS, BECAME THE SUBJECT OF
JUANITO RODRIGUEZ'S HULING HABILIN AT
TESTAMENTO WHEREIN THE PROPERTY WAS
DISTRIBUTED TO HIS HEIRS (HEREIN
RESPONDENTS) INCLUDING THE RESPONDENT
(PETITIONER HEREIN). 11
Petitioner alleges that as the registered owner of the subject
property, she enjoys the right of possession thereof and that question of
ownership cannot be raised in an ejectment case unless it is intertwined
with the issue of possession. While the court may look into the evidence
of title or ownership and possession de jure to determine the nature of
possession, it cannot resolve the issue of ownership because the
resolution of said issue would effect an adjudication on ownership which
is not proper in the summary action for unlawful detainer. Petitioner
insists that the Court of Appeals erred in ruling that the Huling Habilin at
Testamentotransmitted ownership of the specific apartments
disregarding the fact that the same is not probated yet and that the
testator changed or revoked his will by selling the property to petitioner
prior to his death.
Contrarily, respondents pray that the instant petition for review
be dismissed since the resolution of the question of ownership by the
MTC and the Court of Appeals was provisional only to resolve the issue
of possession. Petitioner can always avail of legal remedies to have the
issue of ownership passed upon by the proper court. Aware of the
provisional nature of the resolution on ownership in ejectment cases,
respondents filed Civil Case No. 01-1641 to assail the validity of the
deed of sale of the property and the registration thereof in petitioner's
name. DHITSc
The petition has merit.
An action for unlawful detainer exists when a person unlawfully
withholds possession of any land or building against or from a lessor,
vendor, vendee or other persons, after the expiration or termination of
the right to hold possession, by virtue of any contract, express or
implied. 12 The sole issue to be resolved is the question as to who is
entitled to the physical or material possession of the premises or
possession de facto. 13 Being a summary proceeding intended to
provide an expeditious means of protecting actual possession or right to
possession of property, the question of title is not involved 14 and should
be raised by the affected party in an appropriate action in the proper
court. 15 HIAcCD
ousted of its jurisdiction. Section 16 of Rule 70 of the Rules of
Court provides:
SEC 16. Resolving defense of ownership. —
When the defendant raises the defense of ownership in his
pleadings and the question of possession cannot be
resolved without deciding the issue of ownership, the issue
of ownership shall be resolved only to determine the issue
of possession. TcSAaH
Thus, all that the trial court can do is to make an initial determination of
who is the owner of the property so that it can resolve who is entitled to
its possession absent other evidence to resolve ownership. 16 But this
adjudication is only provisional and does not bar or prejudice an action
between the same parties involving title to the property. 17
In the case at bar, petitioner's cause of action for unlawful
detainer was based on her alleged ownership of land covered by TCT
No. 150431 and that she merely tolerated respondents' stay thereat.
However, when respondents leased the apartments to other persons
without her consent, their possession as well as those persons claiming
right under them became unlawful upon their refusal to vacate the
premises and to pay the rent. On the other hand, respondents assailed
petitioner's title by claiming that the deed of sale upon which it was
based was simulated and void. They insisted that they were co-owners
thus, they have the right to possess the said property. To prove their
claim, they presented the Huling Habilin at Testamento of Juanito
Rodriguez and the Partition Agreement. CTcSIA
The lower courts considered the following documentary evidence
in arriving at their respective decisions, albeit the RTC decision
contradicts that of the MTC and Court of Appeals: 1) Huling Habilin at
Testamento executed by Juanito Rodriguez on October 27, 1983; 2)
Deed of Sale of the property executed by Juanito Rodriguez and the
petitioner on June 14, 1984; 3) TCT No. 150431 in the name of the
petitioner; and 4) the August 23, 1990 Partition Agreement executed by
both the respondents and the petitioner. cEAHSC
Based on the foregoing documentary evidence, we find that
there is preponderance of evidence in favor of the petitioner's claim.
Respondents failed to prove their right of possession, as the Huling
Habilin at Testamento and the Partition Agreement have no legal effect
since the will has not been probated. Before any will can have force or
validity it must be probated. This cannot be dispensed with and is a
matter of public policy. 18 Article 838 of the Civil Code mandates
that "[n]o will shall pass either real or personal property unless it is
proved and allowed in accordance with the Rules of Court." As the will
was not probated, the Partition Agreement which was executed pursuant
thereto can not be given effect. Thus, the fact that petitioner was a party
to said agreement becomes immaterial in the determination of the issue
of possession. ECcTaH
Moreover, at the time the deed of sale was executed in favor of
the petitioner, Juanito Rodriguez remained the owner thereof since
ownership would only pass to his heirs at the time of his death. Thus, as
owner of the property, he had the absolute right to dispose of it during his
lifetime. Now, whether or not the disposition was valid is an issue that
can be resolved only in Civil Case No. 01-1641, an action instituted by
the respondents for that purpose. DCcIaE
We are, thus, left with the deed of sale and the certificate of title
over the property to consider.
We agree with the RTC that a certificate of title is a conclusive
evidence of ownership of the land described therein; the validity of which
shall not be subject to a collateral attack, especially in an ejectment case
which is summary in nature. DSATCI
In Ross Rica Sales Center, Inc. v. Ong, 19 the Court held that:
The long settled rule is that the issue of ownership
cannot be subject of a collateral attack. IcTEAD
In Apostol v. Court of Appeals, this Court had the
occasion to clarify this:
. . . Under Section 48 of Presidential
Decree No. 1529, a certificate of title shall not be
subject to collateral attack. It cannot be altered,
modified or cancelled, except in a direct
proceeding for that purpose in accordance with
law. The issue of the validity of the title of the
respondents can only be assailed in an action
expressly instituted for that purpose. Whether or
not the petitioners have the right to claim
ownership over the property is beyond the power
of the court a quo to determine in an action for
unlawful detainer. SECcIH
Further, in Co v. Militar, 20 it was held that:
[T]he Torrens System was adopted in this country
because it was believed to be the most effective measure
to guarantee the integrity of land titles and to protect their
indefeasibility once the claim of ownership is established
and recognized. IaTSED
It is settled that a Torrens Certificate of title is
indefeasible and binding upon the whole world unless and
until it has been nullified by a court of competent
jurisdiction. Under existing statutory and decisional law,
the power to pass upon the validity of such certificate of
title at the first instance properly belongs to the Regional
Trial Courts in a direct proceeding for cancellation of
title. aIcDCA
As the registered owner, petitioner had a right to
the possession of the property, which is one of the
attributes of ownership. ...
We emphasize, however, that our ruling on the issue of
ownership is only provisional to determine who between the parties has
the better right of possession. It is, therefore, not conclusive as to the
issue of ownership, which is the subject matter of Civil Case No. 01-
1641. Our ruling that petitioner has a better right of possession was
arrived at on the basis of evidence without prejudice to the eventual
outcome of the annulment case, where the issue as to who has title to
the property in question is fully threshed out. As the law now stands, in
an ejectment suit, the question of ownership may be provisionally ruled
upon for the sole purpose of determining who is entitled to possession de
facto. EScAID
WHEREFORE, in view of the foregoing, the Decision of the
Court of Appeals in CA-G.R. SP No. 91442 dated June 27, 2006 is
REVERSED and SET ASIDE. The Decision of the Regional Trial Court
of Makati City, Branch 134, in Civil Case No. 03-517, reversing the
Decision of the Metropolitan Trial Court (MTC) of Makati City, Branch 63,
in Civil Case No. 75717, is REINSTATED.
SO ORDERED.
Austria-Martinez, Chico-Nazario, Nachura and Reyes,
JJ., concur.
||| (Rodriguez v. Rodriguez, G.R. No. 175720, [September 11, 2007], 559
PHIL 398-408)