G.R. No.

L-48840 December 29, 1943

ERNESTO M. GUEVARA, petitioner-appellant,

vs.
ROSARIO GUEVARA and her husband PEDRO BUISON, respondent-appellees.

Primacias, Abad, Mencias & Castillo for appellant.

Pedro C. Quinto for appellees.

OZAETA, J.:

Ernesto M. Guevarra and Rosario Guevara, ligitimate son and natural daughter, respectively, of the deceased
Victorino L. Guevara, are litigating here over their inheritance from the latter. The action was commenced on
November 12, 1937, by Rosario Guevara to recover from Ernesto Guevara what she claims to be her strict
ligitime as an acknowledged natural daughter of the deceased — to wit, a portion of 423,492 square meters of
a large parcel of land described in original certificate of title No. 51691 of the province of Pangasinan, issued in
the name of Ernesto M. Guervara — and to order the latter to pay her P6,000 plus P2,000 a year as damages
for withholding such legitime from her. The defendant answered the complaint contending that whatever right
or rights the plaintiff might have had, had been barred by the operation of law.

It appears that on August 26, 1931, Victorino L. Guevara executed a will (exhibit A), apparently with all the
formalities of the law, wherein he made the following bequests: To his stepdaughter Candida Guevara, a pair
of earrings worth P150 and a gold chain worth P40; to his son Ernesto M. Guevara, a gold ring worth P180 and
all the furniture, pictures, statues, and other religious objects found in the residence of the testator in Poblacion
Sur, Bayambang, Pangasinan; "a mi hija Rosario Guevara," a pair of earrings worth P120; to his stepson Piuo
Guevara, a ring worth P120; and to his wife by second marriage, Angustia Posadas, various pieces of jewelry
worth P1,020.

He also made the following devises: "A mis hijos Rosario Guevara y Ernesto M. Guevara y a mis hijastros,
Vivencio, Eduviges, Dionisia, Candida y Pio, apellidados Guevara," a residential lot with its improvements
situate in the town of Bayambang, Pangasinan, having an area of 960 square meters and assessed at P540; to
his wife Angustia Posadas he confirmed the donation propter nuptias theretofore made by him to her of a
portion of 25 hectares of the large parcel of land of 259-odd hectares described in plan Psu-66618. He also
devised to her a portion of 5 hectares of the same parcel of land by way of complete settlement of her
usufructurary right.
1awphil.net

He set aside 100 hectares of the same parcel of land to be disposed of either by him during his lifetime or by
his attorney-in-fact Ernesto M. Guevara in order to pay all his pending debts and to degray his expenses and
those of his family us to the time of his death.

The remainder of said parcel of land his disposed of in the following manner:

(d). — Toda la porcion restante de mi terreno arriba descrito, de la extension superficial aproximada de
ciento veintinueve (129) hectareas setenta (70) areas, y veiticinco (25) centiares, con todas sus
mejoras existentes en la misma, dejo y distribuyo, pro-indiviso, a mis siguientes herederos como sigue:

A mi hijo legitimo, Ernesto M. Guevara, ciento ocho (108) hectareas, ocho (8) areas y cincuenta y
cuatro (54) centiareas, hacia la parte que colinda al Oeste de las cien (100) hectareas referidas en el
inciso (a) de este parrafo del testamento, como su propiedad absoluta y exclusiva, en la cual extension
superficial estan incluidas cuarenta y tres (43) hectareas, veintitres (23) areas y cuarenta y dos (42)
centiareas que le doy en concepto de mejora.

A mi hija natural reconocida, Rosario Guevara, veintiun (21) hectareas, sesenta y un (61) areas y
setenta y un (71) centiareas, que es la parte restante.
 Duodecimo. — Nombro por la presente como Albacea Testamentario a mi hijo Ernesto M. Guevara,
con relevacion de fianza. Y una vez legalizado este testamento, y en cuanto sea posible, es mi deseo,
que los herederos y legatarios aqui nombrados se repartan extrajudicialmente mis bienes de
conformidad con mis disposiciones arriba consignadas.

Subsequently, and on July 12, 1933, Victorino L. Guevarra executed whereby he conveyed to him the southern
half of the large parcel of land of which he had theretofore disposed by the will above mentioned,
inconsideration of the sum of P1 and other valuable considerations, among which were the payment of all his
debts and obligations amounting to not less than P16,500, his maintenance up to his death, and the expenses
of his last illness and funeral expenses. As to the northern half of the same parcel of land, he declared: "Hago
constar tambien que reconozco a mi referido hijo Ernesto M. guevara como dueño de la mitad norte de la
totalidad y conjunto de los referidos terrenos por haberlos comprado de su propio peculio del Sr. Rafael T.
Puzon a quien habia vendido con anterioridad."

On September 27, 1933, final decree of registration was issued in land registration case No. 15174 of the
Court of First Instance of Pangasinan, and pursuant thereto original certificate of title No. 51691 of the same
province was issued on October 12 of the same year in favor of Ernesto M. Guevara over the whole parcel of
land described in the deed of sale above referred to. The registration proceeding had been commenced on
November 1, 1932, by Victorino L. Guevara and Ernesto M. Guevara as applicants, with Rosario, among
others, as oppositor; but before the trial of the case Victorino L. Guevara withdrew as applicant and Rosario
Guevara and her co-oppositors also withdrew their opposition, thereby facilitating the issuance of the title in the
name of Ernesto M. Guevara alone.

On September 27, 1933, Victorino L. Guevarra died. His last will and testament, however, was never
presented to the court for probate, nor has any administration proceeding ever been instituted for the
settlement of his estate. Whether the various legatees mentioned in the will have received their respective
legacies or have even been given due notice of the execution of said will and of the dispositions therein made
in their favor, does not affirmatively appear from the record of this case. Ever since the death of Victorino L.
Guevara, his only legitimate son Ernesto M. Guevara appears to have possessed the land adjudicated to him
in the registration proceeding and to have disposed of various portions thereof for the purpose of paying the
debts left by his father.

In the meantime Rosario Guevara, who appears to have had her father's last will and testament in her custody,
did nothing judicially to invoke the testamentary dispositions made therein in her favor, whereby the testator
acknowledged her as his natural daughter and, aside from certain legacies and bequests, devised to her a
portion of 21.6171 hectares of the large parcel of land described in the will. But a little over four years after the
testor's demise, she (assisted by her husband) commenced the present action against Ernesto M. Guevara
alone for the purpose hereinbefore indicated; and it was only during the trial of this case that she presented the
will to the court, not for the purpose of having it probated but only to prove that the deceased Victirino L.
Guevara had acknowledged her as his natural daughter. Upon that proof of acknowledgment she claimed her
share of the inheritance from him, but on the theory or assumption that he died intestate, because the will had
not been probated, for which reason, she asserted, the betterment therein made by the testator in favor of his
legitimate son Ernesto M. Guevara should be disregarded. Both the trial court and the Court of appeals
sustained that theory.

Two principal questions are before us for determination: (1) the legality of the procedure adopted by the
plaintiff (respondent herein) Rosario Guevara; and (2) the efficacy of the deed of sale exhibit 2 and the effect of
the certificate of title issued to the defendant (petitioner herein) Ernesto M. Guevara.

We cannot sanction the procedure adopted by the respondent Rosario Guevara, it being in our opinion in
violation of procedural law and an attempt to circumvent and disregard the last will and testament of the
decedent. The Code of Civil Procedure, which was in force up to the time this case was decided by the trial
court, contains the following pertinent provisions:
 Sec. 625. Allowance Necessary, and Conclusive as to Execution. — No will shall pass either the real or
personal estate, unless it is proved and allowed in the Court of First Instance, or by appeal to the
Supreme Court; and the allowance by the court of a will of real and personal estate shall be conclusive
as to its due execution.

Sec. 626. Custodian of Will to Deliver. — The person who has the custody of a will shall, within thirty
days after he knows of the death of the testator, deliver the will into the court which has jurisdiction, or
to the executor named in the will.

Sec. 627. Executor to Present Will and Accept or Refuse Trust. — A person named as executor in a
will, shall within thirty days after he knows of the death of the testor, or within thirty days after he knows
that he is named executor, if he obtained such knowledge after knowing of the death of the testor,
present such will to the court which has jurisdiction, unless the will has been otherwise returned to said
court, and shall, within such period, signify to the court his acceptance of the trust, or make known in
writing his refusal to accept it.

Sec. 628. Penalty. — A person who neglects any of the duties required in the two proceeding sections,
unless he gives a satisfactory excuse to the court, shall be subject to a fine not exceeding one
thousand dollars.

Sec. 629. Person Retaining Will may be Committed. — If a person having custody of a will after the
death of the testator neglects without reasonable cause to deliver the same to the court having
jurisdiction, after notice by the court so to do, he may be committed to the prison of the province by a
warrant issued by the court, and there kept in close confinement until he delivers the will.

The foregoing provisions are now embodied in Rule 76 of the new Rules of Court, which took effect on July 1,
1940.

The proceeding for the probate of a will is one in rem, with notice by publication to the whole world and with
personal notice to each of the known heirs, legatees, and devisees of the testator (section 630, C. c. P., and
sections 3 and 4, Rule 77). Altho not contested (section 5, Rule 77), the due execution of the will and the fact
that the testator at the time of its execution was of sound and disposing mind and not acting under duress,
menace, and undue influence or fraud, must be proved to the satisfaction of the court, and only then may the
will be legalized and given effect by means of a certificate of its allowance, signed by the judge and attested by
the seal of the court; and when the will devises real property, attested copies thereof and of the certificate of
allowance must be recorded in the register of deeds of the province in which the land lies. (Section 12, Rule
77, and section 624, C. C. P.)

It will readily be seen from the above provisions of the law that the presentation of a will to the court for probate
is mandatory and its allowance by the court is essential and indispensable to its efficacy. To assure and
compel the probate of will, the law punishes a person who neglects his duty to present it to the court with a fine
not exceeding P2,000, and if he should persist in not presenting it, he may be committed to prision and kept
there until he delivers the will.

The Court of Appeals took express notice of these requirements of the law and held that a will, unless
probated, is ineffective. Nevertheless it sanctioned the procedure adopted by the respondent for the following
reasons:

The majority of the Court is of the opinion that if this case is dismissed ordering the filing of testate
proceedings, it would cause injustice, incovenience, delay, and much expense to the parties, and that
therefore, it is preferable to leave them in the very status which they themselves have chosen, and to
decide their controversy once and for all, since, in a similar case, the Supreme Court applied that same
criterion (Leaño vs. Leaño, supra), which is now sanctioned by section 1 of Rule 74 of the Rules of
Court. Besides, section 6 of Rule 124 provides that, if the procedure which the court ought to follow in
the exercise of its jurisdiction is not specifically pointed out by the Rules of Court, any suitable process
 or mode of procedure may be adopted which appears most consistent to the spirit of the said Rules.
Hence, we declare the action instituted by the plaintiff to be in accordance with law.

Let us look into the validity of these considerations. Section 1 of Rule 74 provides as follows:

Section 1. Extrajudicial settlement by agreement between heirs. — If the decedent left no debts and the
heirs and legatees are all of age, or the minors are represented by their judicial guardians, the parties
may, without securing letters of administration, divide the estate among themselves as they see fit by
means of a public instrument filed in the office of the register of deeds, and should they disagree, they
may do so in an ordinary action of partition. If there is only one heir or one legatee, he may adjudicate
to himself the entire estate by means of an affidavit filed in the office of the register of deeds. It shall be
presumed that the decedent left no debts if no creditor files a petition for letters of administration within
two years after the death of the decedent.

That is a modification of section 596 of the Code of Civil Procedure, which reads as follows:

Sec. 596. Settlement of Certain Intestates Without Legal Proceedings. — Whenever all the heirs of a
person who died intestate are of lawful age and legal capacity and there are no debts due from the
estate, or all the debts have been paid the heirs may, by agreement duly executed in writing by all of
them, and not otherwise, apportion and divide the estate among themselves, as they may see fit,
without proceedings in court.

The implication is that by the omission of the word "intestate" and the use of the word "legatees" in section 1 of
Rule 74, a summary extrajudicial settlement of a deceased person's estate, whether he died testate or
intestate, may be made under the conditions specified. Even if we give retroactive effect to section 1 of Rule 74
and apply it here, as the Court of Appeals did, we do not believe it sanctions the nonpresentation of a will for
probate and much less the nullification of such will thru the failure of its custodian to present it to the court for
probate; for such a result is precisely what Rule 76 sedulously provides against. Section 1 of Rule 74 merely
authorizes the extrajudicial or judicial partition of the estate of a decedent "without securing letter of
administration." It does not say that in case the decedent left a will the heirs and legatees may divide the estate
among themselves without the necessity of presenting the will to the court for probate. The petition to probate
a will and the petition to issue letters of administration are two different things, altho both may be made in the
same case. the allowance of a will precedes the issuance of letters testamentary or of administration (section
4, Rule 78). One can have a will probated without necessarily securing letters testamentary or of
administration. We hold that under section 1 of Rule 74, in relation to Rule 76, if the decedent left a will and no
debts and the heirs and legatees desire to make an extrajudicial partition of the estate, they must first present
that will to the court for probate and divide the estate in accordance with the will. They may not disregard the
provisions of the will unless those provisions are contrary to law. Neither may they so away with the
presentation of the will to the court for probate, because such suppression of the will is contrary to law and
public policy. The law enjoins the probate of the will and public policy requires it, because unless the will is
probated and notice thereof given to the whole world, the right of a person to dispose of his property by will
may be rendered nugatory, as is attempted to be done in the instant case. Absent legatees and devisees, or
such of them as may have no knowledge of the will, could be cheated of their inheritance thru the collusion of
some of the heirs who might agree to the partition of the estate among themselves to the exclusion of others.

In the instant case there is no showing that the various legatees other than the present litigants had received
their respective legacies or that they had knowledge of the existence and of the provisions of the will. Their
right under the will cannot be disregarded, nor may those rights be obliterated on account of the failure or
refusal of the custodian of the will to present it to the court for probate.

Even if the decedent left no debts and nobdy raises any question as to the authenticity and due execution of
the will, none of the heirs may sue for the partition of the estate in accordance with that will without first
securing its allowance or probate by the court, first, because the law expressly provides that "no will shall pass
either real or personal estate unless it is proved and allowed in the proper court"; and, second, because the
probate of a will, which is a proceeding in rem, cannot be dispensed with the substituted by any other
proceeding, judicial or extrajudicial, without offending against public policy designed to effectuate the testator's
right to dispose of his property by will in accordance with law and to protect the rights of the heirs and legatees
under the will thru the means provided by law, among which are the publication and the personal notices to
each and all of said heirs and legatees. Nor may the court approve and allow the will presented in evidence in
such an action for partition, which is one in personam, any more than it could decree the registration under the
Torrens system of the land involved in an ordinary action for reinvindicacion or partition.

We therefore believe and so hold that section 1 of Rule 74, relied upon by the Court of Appeals, does not
sanction the procedure adopted by the respondent.

The case of Leaño vs. Leaño (25 Phil., 180), cited by the Court of Appeals, like section 1 of Rule 74, sanctions
the extrajudicial partition by the heirs of the properties left by a decedent, but not the nonpresentation of a will
for probate. In that case one Paulina Ver executed a will on October 11, 1902, and died on November 1, 1902.
Her will was presented for probate on November 10, 1902, and was approved and allowed by the Court on
August 16, 1904. In the meantime, and on November 10, 1902, the heirs went ahead and divided the
properties among themselves and some of them subsequently sold and disposed of their shares to third
persons. It does not affirmatively appear in the decision in that case that the partition made by the heirs was
not in accordance with the will or that they in any way disregarded the will. In closing the case by its order
dated September 1, 1911, the trial court validated the partition, and one of the heirs, Cunegunda Leaño,
appealed. In deciding the appeal this Court said:

The principal assignment of error is that the lower court committed an error in deciding that the heirs
and legatees of the estate of Dña. Paulina Ver had voluntarily divided the estate among themselves.

In resolving that question this Court said:

In view of the positive finding of the judge of the lower court that there had been a voluntary partition of
the estate among the heirs and legatees, and in the absence of positive proof to the contrary, we must
conclude that the lower court had some evidence to support its conclusion.

Thus it will be seen that as a matter of fact no question of law was raised and decided in that case. That
decision cannot be relied upon as an authority for the unprecedented and unheard of procedure adopted by
the respondent whereby she seeks to prove her status as an acknowledged natural child of the decedent by
his will and attempts to nullify and circumvent the testamentary dispositions made by him by not presenting the
will to the court for probate and by claiming her legitime as an acknowledged natural child on the basis of
intestacy; and that in the face of express mandatory provisions of the law requiring her to present the will to the
court for probate.

In the subsequent case of Riosa vs. Rocha (1926), 48 Phil. 737, this Court departed from the procedure
sanctioned by the trial court and impliedly approved by this Court in the Leaño case, by holding that an
extrajudicial partition is not proper in testate succession. In the Riosa case the Court, speaking thru Chief
Justice Avanceña, held:

1. EXTRAJUDICIAL PARTITION; NOT PROPER IN TESTATE SUCCESSION. — Section 596 of the

Code of Civil Procedure, authorizing the heirs of a person who dies intestate to make extrajudicial
partition of the property of the deceased, without going into any court of justice, makes express
reference to intestate succession, and therefore excludes testate succession.

2. ID.; EFFECTS OF; TESTATE SUCCESSION. — In the instant case, which is a testate succession,
the heirs made an extrajudicial partition of the estate and at the same time instituted proceeding for the
probate of the will and the administration of the estate. When the time came for making the partition,
they submitted to the court the extrajudicial partition previously made by them, which the court
approved. Held: That for the purposes of the reservation and the rights and obligations created thereby,
in connection with the relatives benefited, the property must not be deemed transmitted to the heirs
from the time the extrajudicial partition was made, but from the time said partition was approved by the
court. (Syllabus.)
The Court of Appeals also cites section 6 of Rule 124, which provides that if the procedure which the court
ought to follow in the exercise of its jurisdiction is not specifically pointed out by the Rules of Court, any
suitable process for mode of proceeding may be adopted which appears most conformable to the spirit of the
said Rules. That provision is not applicable here for the simple reason that the procedure which the court ought
to follow in the exercise of its jurisdiction is specifically pointed out and prescribed in detail by Rules 74, 76,
and 77 of the Rules of Court.

The Court of Appeals also said "that if this case is dismissed, ordering the filing of testate proceedings, it would
cause injustice, inconvenience, delay, and much expense to the parties." We see no injustice in requiring the
plaintiff not to violate but to comply with the law. On the contrary, an injustice might be committed against the
other heirs and legatees mentioned in the will if the attempt of the plaintiff to nullify said will by not presenting it
to the court for probate should be sanctioned. As to the inconvenience, delay, and expense, the plaintiff herself
is to blame because she was the custodian of the will and she violated the duty imposed upon her by sections
2, 4, and 5 of Rule 76, which command her to deliver said will to the court on pain of a fine not exceeding
P2,000 and of imprisonment for contempt of court. As for the defendant, he is not complaining of
inconvenience, delay, and expense, but on the contrary he is insisting that the procedure prescribed by law be
followed by the plaintiff.

Our conclusion is that the Court of Appeals erred in declaring the action instituted by the plaintiff to be in
accordance with law. It also erred in awarding relief to the plaintiff in this action on the basis of intestacy of the
decedent notwithstanding the proven existence of a will left by him and solely because said will has not been
probated due to the failure of the plaintiff as custodian thereof to comply with the duty imposed upon her by the
law.

It is apparent that the defendant Ernesto M. Guevara, who was named executor in said will, did not take any
step to have it presented to the court for probate and did not signify his acceptance of the trust or refusal to
accept it as required by section 3 of Rule 76 (formerly section 627 of the Code of Civil Procedure), because his
contention is that said will, insofar as the large parcel of land in litigation is concerned, has been superseded
by the deed of sale exhibit 2 and by the subsequent issuance of the Torrens certificate of title in his favor.

II

This brings us to the consideration of the second question, referring to the efficacy of the deed of sale exhibit 2
and the effect of the certificate of titled issued to the defendant Ernesto M. Guevara. So that the parties may
not have litigated here in vain insofar as that question is concerned, we deem it proper to decide it now and
obviate the necessity of a new action.

The deed of sale exhibit 2 executed by and between Victorino L. Guevara and Ernesto M. Guevara before a
notary public on July 12, 1933, may be divided into two parts: (a) insofar as it disposes of and conveys to
Ernesto M. Guevara the southern half of Victorino L. Guevara's hacienda of 259-odd hectares in consideration
of P1 and other valuable considerations therein mentioned; and (b) insofar as it declares that Ernesto M.
Guevara became the owner of the northern half of the same hacienda by repurchasing it with his own money
from Rafael T. Puzon.

A. As to the conveyance of the southern half of the hacienda to Ernesto M. Guevara in consideration of the
latter's assumption of the obligation to pay all the debts of the deceased, the Court of Appeals found it to be
valid and efficacious because: "(a) it has not been proven that the charges imposed as a condition is [are] less
than the value of the property; and (b) neither has it been proven that the defendant did not comply with the
conditions imposed upon him in the deed of transfer." As a matter of fact the Court of Appeals found" "It
appears that the defendant has been paying the debts left by his father. To accomplish this, he had to alienate
considerable portions of the above-mentioned land. And we cannot brand such alienation as anomalous unless
it is proven that they have exceeded the value of what he has acquired by virtue of the deed of July 12, 1933,
and that of his corresponding share in the inheritance." The finding of the Court of Appeals on this aspect of
the case is final and conclusive upon the respondent, who did not appeal therefrom.
B. With regard to the northern half of the hacienda, the findings of fact and of law made by the Court of
Appeals are as follows:

The defendant has tried to prove that with his own money, he bought from Rafael Puzon one-half of the
land in question, but the Court a quo, after considering the evidence, found it not proven; we hold that
such conclusion is well founded. The acknowledgment by the deceased, Victorino L. Guevara, of the
said transactions, which was inserted incidentally in the document of July 12, 1933, is clearly belied by
the fact that the money paid to Rafael Puzon came from Silvestre P. Coquia, to whom Victorino L.
Guevara had sold a parcel of land with the right of repurchase. The defendant, acting for his father,
received the money and delivered it to Rafael Puzon to redeem the land in question, and instead of
executing a deed of redemption in favor of Victorino L. Guevara, the latter executed a deed of sale in
favor of the defendant.

The plaintiff avers that she withdrew her opposition to the registration of the land in the name of the
defendant, because of the latter's promise that after paying all the debt of their father, he would deliver
to her and to the widow their corresponding shares. As their father then was still alive, there was no
reason to require the delivery of her share and that was why she did not insist on her opposition,
trusting on the reliability and sincerity of her brother's promise. The evidence shows that such promise
was really made. The registration of land under the Torrens system does not have the effect of altering
the laws of succession, or the rights of partition between coparceners, joint tenants, and other
cotenants nor does it change or affect in any other way any other rights and liabilities created by law
and applicable to unregistered land (sec. 70, Land Registration Law). The plaintiff is not, then, in
estoppel, nor can the doctrine of res judicata be invoked against her claim. Under these circumstances,
she has the right to compel the defendant to deliver her corresponding share in the estate left by the
deceased, Victorino L. Guevara.

In his tenth to fourteenth assignments of error the petitioner assails the foregoing findings of the Court of
Appeals. But the findings of fact made by said court are final and not reviewable by us on certiorari. The Court
of Appeals found that the money with which the petitioner repurchased the northern half of the land in question
from Rafael Puzon was not his own but his father's, it being the proceeds of the sale of a parcel of land made
by the latter to Silvestre P. Coquia. Said court also found that the respondent withdrew her opposition to the
registration of the land in the name of the petitioner upon the latter's promise that after paying all the debts of
their father he would deliver to her and to the widow their corresponding shares. From these facts, it results
that the interested parties consented to the registration of the land in question in the name of Ernesto M.
Guevara alone subject to the implied trust on account of which he is under obligation to deliver and convey to
them their corresponding shares after all the debts of the original owner of said land had been paid. Such
finding does not constitute a reversal of the decision and decree of registration, which merely confirmed the
petitioner's title; and in the absence of any intervening innocent third party, the petitioner may be compelled to
fulfill the promise by virtue of which he acquired his title. That is authorized by section 70 of the Land
Registration Act, cited by the Court of Appeals, and by the decision of this Court in Severino vs. Severino, 44
Phil., 343, and the cases therein cited.

Upon this phase of the litigation, we affirm the finding of the Court of Appeals that the northern half of the land
described in the will exhibit A and in original certificate of title No. 51691 still belongs to the estate of the
deceased Victorino L. Guevara. In the event the petitioner Ernesto M. Guevara has alienated any portion
thereof, he is under obligation to compensate the estate with an equivalent portion from the southern half of
said land that has not yet been sold. In other words, to the estate of Victorino L. Guevara still belongs one half
of the total area of the land described in said original certificate of title, to be taken from such portions as have
not yet been sold by the petitioner, the other half having been lawfully acquired by the latter in consideration of
his assuming the obligation to pay all the debts of the deceased.

Wherefore, that part of the decision of the Court of Appeals which declares in effect that notwithstanding
exhibit 2 and the issuance of original certificate of title No. 51691 in the name of Ernesto M. Guevara, one half
of the land described in said certificate of title belongs to the estate of Victorino L. Guevara and the other half
to Ernesto M. Guevara in consideration of the latter's assumption of the obligation to pay all the debts of the
deceased, is hereby affirmed; but the judgment of said court insofar as it awards any relief to the respondent
Rosario Guevara in this action is hereby reversed and set aside, and the parties herein are hereby ordered to
present the document exhibit A to the proper court for probate in accordance with law, without prejudice to
such action as the provincial fiscal of Pangasinan may take against the responsible party or parties under
section 4 of Rule 76. After the said document is approved and allowed by the court as the last will and
testament of the deceased Victorino L. Guevara, the heirs and legatees therein named may take such action,
judicial or extrajudicial, as may be necessary to partition the estate of the testator, taking into consideration the
pronouncements made in part II of this opinion. No finding as to costs in any of the three instances.

Yulo, C.J., and Hontiveros, 1 J., concur.

REMEDIOS NUGUID, Petitioner-Appellant, v. FELIX NUGUID and PAZ SALONGA

NUGUID, Oppositors-Appellees.

Custodio O. Partade for Petitioner-Appellant.

Beltran, Beltran & Beltran for oppositors-appellees.

SYLLABUS

1. PROBATE OF WILL; COURT’S AREA OF INQUIRY LIMITED TO EXTRINSIC VALIDITY OF WILL;

WHEN COURT MAY RULE ON INTRINSIC VALIDITY; CASE AT BAR. — In a proceeding for the
probate of a will, the court’s area of inquiry is limited to an examination of, and resolution on,
the extrinsic validity of the will; the due execution thereof; the testatrix’s testamentary capacity;
and the compliance with the requisites or solemnities prescribed the by law. In the case at bar,
however, a peculiar situation exists. The parties shunted aside the question of whether or not
the will should be allowed probate. They questioned the intrinsic validity of the will. Normally,
this comes only after the court has declared that the will has been duly authenticated. But if the
case were to be remanded for probate of the will, nothing will be gained. In the event of probate
or if the court rejects the will, probability exists that the case will come up once again before this
Court on the same issue of the intrinsic validity or nullity of the will. The result would be waste
of time, effort, expense, plus added anxiety. These practical considerations induce this Court to
meet head-on the issue of the nullity of the provisions of the will in question, there being a
justiciable controversy awaiting solution.

2. SUCCESSION; PRETERITION; OMISSION OF NAMES OF FORCED HEIRS. — The deceased left

no descendants, legitimate or illegitimate. But she left forced heirs in the direct ascending time
— her parents. Her will does not explicitly disinherit them but simply omits their names
altogether. Said will rather than he labelled ineffective disinheritance is clearly one in which the
said forced heirs suffer from preterition.

3. ID.; ID.; PRETERITION DISTINGUISHED FROM DISINHERITANCE. — Preterition "consists in

the omission in the testator’s will of the forced heirs or anyone of them, either because the are
not mentioned therein, or, though mentioned, they are neither instituted as heirs nor are
expressly disinherited." (Neri, Et. Al. v. Akutin, at al., 72 Phil., p. 325.) Disinheritance; in turn,
"is a testamentary disposition depriving any compulsory heir of heir share in the legitime for a
cause authorized by law." (Justice J.B.L. Reyes and R.C. Puno, "An Outline of Philippine Civil
Law," 1956 ed., Vol. III, p. 8, citing cases.) Disinheritance is always "voluntary" ; preterition
upon the other hand, is presumed to be "involuntary." (Sanchez Roman, Estudios de Derecho
Civil, 2nd edition, Volume 20, p. 1131.)

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

6. ID.; ID.; WHEN LEGACIES AND DEVISES MERIT CONSIDERATION. — Legacies and devises
merit consideration only when they are so expressly given as such in a will. Nothing in Article
854 of the Civil Code suggests that the mere institution of a universal heir in a will — void
because of preterition — would give the heir so instituted a share in the inheritance. As to him,
the will is inexistent. There must he, in addition to such institution, a testamentary disposition
granting him bequests or legacies apart and separate from the nullified institution of heir.

7. ID.; ID.; ID.; INSTITUTION OF HEIRS CANNOT BE CONSIDERED LEGACY. — Petitioner insists
that the compulsory heirs ineffectively disinherited are entitled to receive their legitimes, but
that the institution of heir "is not invalidated," although the inheritance of the heir so instituted
is reduced to the extent of said legitimes. This theory, if adopted, will result in a complete
abrogation of Articles 814 and 851 of the Civil Code. If every case of institution of heirs may be
made to fall into the concept of legacies and betterments reducing the bequest accordingly, then
the provisions of Articles 814 and 851 regarding total or partial nullity of the institution, would
be absolutely meaningless and will never have any application at all. And the remaining
provisions contained in said articles concerning the reduction of inofficious legacies or
betterments would be a surplusage because they would be absorbed by Article 817 of the same
code.

DECISION

SANCHEZ, J.:

Rosario Nuguid, a resident of Quezon City, died on December 30, 1962, single, without
descendants, legitimate or illegitimate. Surviving her were her legitimate parents, Felix Nuguid
and Paz Salonga Nuguid, and 6 brothers and sisters namely: Alfredo, Federico, Remedios,
Conrado, Lourdes and Alberto, all surnamed Nuguid.

On May 18, 1963, petitioner Remedios Nuguid filed in the Court of First Instance of Rizal a
holographic will allegedly executed by Rosario Nuguid on November 17, 1951, some 11 years
before her demise. Petitioner prayed that said will be admitted to probate and that letters of
administration with the will annexed be issued to her.

On June 25, 1963, Felix Nuguid and Paz Salonga Nuguid, concededly the legitimate father and
mother of the deceased Rosario Nuguid, entered their opposition to the probate of her will.
Ground therefor, inter alia, is that by the institution of petitioner Remedios Nuguid as universal
heir of the deceased, oppositors — who are compulsory heirs of the deceased in the direct
ascending line — were illegally preterited and that in consequence the institution is void.

On August 29, 1963, before a hearing was had on the petition for probate and objection thereto,
oppositors moved to dismiss on the ground of absolute preterition.
On September 6, 1963, petitioner registered her opposition to the motion to dismiss.

The court’s order of November 8, 1963, held that "the will in question is a complete nullity and
will perforce create intestacy of the estate of the deceased Rosario Nuguid" and dismissed the
petition without costs.

A motion to reconsider having been thwarted below, petitioner came to this Court on appeal.

1. Right at the outset, a procedural aspect has engaged our attention. The case is for the
probate of a will. The court’s area of inquiry is limited — to an examination of, and resolution on,
the extrinsic validity of the will. The due execution thereof, the testatrix’s testamentary capacity,
and the compliance with the requisites or solemnities by law prescribed, are the questions solely
to be represented, and to be acted upon, by the court. Said court — at this stage of the
proceedings — is not called upon to rule on the intrinsic validity or efficacy of the provisions of
the will, the legality of any devise or legacy therein. 1

A peculiar situation is here thrust upon us. The parties shunted aside the question of whether or
not the will should he allowed probate. For them, the meat of the case is the intrinsic validity of
the will. Normally, this comes only after the court has declared that the will been duly
authenticated. 2 But petitioner and oppositors, in the court below and here on appeal, travelled
on the issue of law, to wit: Is the will intrinsically a nullity?

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 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 nullity of the provisions
of the will in question. 3 After all, there exists a justiciable controversy crying for solution.

2. Petitioner’s sole assignment of error challenges the correctness of the conclusion below that
the will is a complete nullity. This exacts from us a study of the disputed will and the applicable
statute.

Reproduced hereunder is the will: jgc:chanrobles.com.ph

"Nov. 17, 1951.

I, ROSARIO NUGUID, being of sound and disposing mind and memory, having amassed a certain
amount of property, do hereby give, devise, and bequeath all of the property which I may have
when I die to my beloved sister Remedios Nuguid, age 34, residing with me at 38-B Iriga, Q.C.
In witness whereof, I have signed my name this seventh day of November, nineteen hundred
and fifty-one.

(Sgd.) Illegible

T/ ROSARIO NUGUID"

The statute we are called upon to apply is Article 854 of the Civil Code which, in part,
provides: jgc:chanrobles.com.ph

"Art. 854. The preterition or omission of one, some, or all of the compulsory heirs in the direct
line, whether living at the time of the execution of the will or born after the death of the
testator. shall annul the institution of heir; the devises and legacies shall be valid insofar as they
are not inofficious . . ." cralaw virtua1aw library

Except for inconsequential variation in terms, the foregoing is a reproduction of Article 814 of
the Civil Code of Spain of 1889, which is similarly herein copied, thus —

"Art. 814. The preterition of one or all of the forced heirs in the direct line, whether living at the
time of the execution of the will or born after the death of the testator, shall void the institution
of heir; but the legacies and betterments 4 shall be valid, in so far as they are not inofficious. .
."
cralaw virtua1aw library

A comprehensive understanding of the term preterition employed in the law becomes a

necessity. On this point Manresa comments: jgc:chanrobles.com.ph

"La pretericion consiste en omitir al heredero en el testamento. O no se le nombra siquiera, o

aun nombrandole como padre, hijo, etc., no se leinstituye heredero ni se le deshereda
expresamente, ni se le asigna parte alguna de los bienes, resultando privado de un modo tacito
de su derecho a legitima.

Para que exista pretericion, con arreglo al articulo 814, basta que en el testamento omita el
testador a uno cualquiera de aquelloa a quienes por su muerte corresponda la herencia forzosa.

Se necesita, pues, a) Que la omision se refiera a un heredero forzoso.) b) Que la omision sea
completa; que el heredero forzoso nada reciba en el testamento. 5

It may now appear trite but nonetheless helpful in giving us a clear perspective of the problem
before us, to have on hand a clear-cut definition of the word annul: jgc:chanrobles.com.ph

"To ‘annul’ means to abrogate, to make void;. . .In re Morrow’s Estate, 54 A. 342, 343, 204 Pa.
484." 6

"The word ‘annul’ as used in the statute requiring court to annul alimony provisions of divorce
decree upon wife’s remarriage means to reduce to nothing; to annihilate; obliterate; blot out; to
make void or of no effect; to nullify; to abolish. N.J.S.A. 2:50 — 38 (now N.J.S.2A:34-25).
Madden v. Madden, 40 A.2d 611, 614, 136 N.J. Eq. 132." 7

"ANNUL. To reduce to nothing; annihilate; obliterate; to make void or of no effect; to nullify; to

abolish; to do away with. Ex parte Mitchell, 123 W. Va. 283, S.E. 2d. 771, 774." 8

And now, back to the facts and the law. The deceased Rosario Nuguid left no descendants,
legitimate or illegitimate. But she left forced heirs in the direct ascending line — her parents,
now oppositors Felix Nuguid and Paz Salonga Nuguid. And, the will completely omits both of
them: They thus received nothing by the testament; tacitly, they were deprived of their
legitime; neither were they expressly disinherited. This is a clear case of preterition. Such
preterition in the words of Manresa "anulara siempre la institución de heredero, dando caracter
absoluto a este ordenamiento," referring to the mandate of Article 814, now 854 of the Civil
Code. 9 The one- sentence will here institutes petitioner as the sole, universal heir — nothing
more. No specific legacies or bequests are therein provided for. It is in this posture that we say
that the nullity is complete. Perforce, Rosario Nuguid died intestate. Says Manresa: jgc:chanrobles.com.ph

"En cuanto a la institucion de heredero, se anula. Lo que se anula deja de existir, en todo o en
parte? No se añade limitacion alguna, como en el articulo 851, en el que se expresa que se
anulara la institucion de heredero en cuanto perjudique a la legitima del desheredado. Debe,
pues, entenderse que la anulacion es completa o total, y que este articulo como especial en el
caso que le motiva, rige con preferencia al 817." 10

The same view is expressed by Sanches Roman: —

"La consequencia de la anulacion o nulidad de la institucion de heredero por pretericion de uno,

varios o todos los forzosos en linea recta, es la apertura de la sucesion intestada, total o parcial.
Sera total, cuando el testador que comete la pretericion, hubiere dispuesto de todos los bienes
por titulo universal de herencia en favor de los herederos instituidos, cuya institucion se anula,
porque asi lo exige la generalidad del precepto legal del art. 814, al determinar, como efecto de
la pretericion el de que ‘anulara la institucion de heredero’. . ." 11

Really, as we analyze the word annul employed in the statute, there is no escaping the
conclusion that the universal institution of petitioner to the entire inheritance results in totally
abrogating the will. Because, the nullification of such institution of universal heir — without any
other testamentary disposition in the will — amounts to a declaration that nothing at all was
written. Carefully worded and in clear terms, Article 854 offers no leeway for inferential
interpretation. Giving it an expansive meaning will tear up by the roots the fabric of the statute.
On this point, Sanchez Roman cites the "Memoria annual del Tribunal Supremo, correspondiente
a 1908," which in our opinion expresses the rule of interpretation, viz: jgc:chanrobles.com.ph

". . . El art. 814, que preceptua en tales casos de pretericion la nulidad de la institucion de
heredero no consiente interpretacion alguno favorable a lo persona instituida en el sentido antes
expuesto, aun cuando parezca, y en algun caso pudiera ser, mas o menos equitativa, porque
una nulidad no significa en Derecho sino la suposicion de que el hecho o el acto no se ha
realizado debiendo; por lo tanto, procederse sobre tal base o supuesto, y consiguientemente, en
un testamento donde falte la institucion, es obligado llamar a los herederos forzosos en todo
caso, como habria que llamar a los de otra clase, cuando el testador no hubiese distribuido todos
sus bienes en legados, siendo tanto mas obligada esta consecuencia legal cuanto que, en
materia de testamentos, sabido es, segun tiene declarado la jurisprudencia, con repeticion, que
no basta que seo conocida la voluntad de quien testa si esta voluntad no aparece en la forma y
en las condiciones que la ley ha exigido para que sea valido y eficaz, por lo que constituiria una
interpretacion arbitraria, dentro del derecho positivo, reputar como legatario a un heredero cuya
institucion fuese anulada con pretexto de que esto se acomodaba mejor a la voluntad del
testador, pues aun cuando asi fuese, sera esto razon para modificar la ley, pero que no outoriza
a una interpretacion contraria a sus terminos y a los principios que informan la
testamentifaccion, pues no porque parezca mejor una cosa en el terreno del Derecho
constituyente, hay razon para convertir este juicio en regla de interpretación, desvirtuando y
anulando por este procedimiento lo que el legislador quiere establecer." 12

3. We should not be led astray by the statement in Article 854 that, annulment notwithstanding,
"the devises and legacies shall be valid insofar as they are not inofficious." Legacies and devises
merit consideration only when they are so expressly given as such in a will. Nothing in Article
854 suggests that the mere institution of a universal heir in a will — void because of preterition
— would give the heir so instituted a share in the inheritance. As to him, the will is inexistent.
There must be, in addition to such institution, a testamentary disposition granting him bequests
or legacies apart and separate from the nullified institution of heir. Sanchez Roman, speaking of
the two component parts of Article 814, now 854, states that preterition annuls the institution of
the heir "totalmente por la preterición" ; but added (in reference to legacies and bequests),
"pero subsistiendo, . . . todas aquellas otras disposiciones que no se refieren a la institución de
heredero . . ." 13 As Manresa puts it, annulment throws open to intestate succession the entire
inheritance including la porción libre (que) no hubiese dispuesto en virtud de legado, mejora o
donación." 14

As aforesaid, there is no other provision in the will before us except the institution of petitioner
as universal heir. That institution, by itself, is null and void. And, intestate succession ensues.

4. Petitioner’s mainstay is that the present is "a case of ineffective disinheritance rather than one
of preterition." 15 From this, petitioner draws the conclusion that Article 854 "does not apply to
the case at bar." This argument fails to appreciate the distinction between preterition and
disinheritance.

Preterition "consists in the omission in the testator’s will of the forced heirs or anyone of them,
either because they are not mentioned therein, or, though mentioned, they are neither instituted
as heirs nor are expressly disinherited." 16 Disinheritance, in turn, "is a testamentary disposition
depriving any compulsory heir of his share in the legitime for a cause authorized by law." 17 In
Manresa’s own words: "La privación expresa de la legitima constituye le desheredación. La
privación tacita de la misma se denomina preterición. 18 Sanchez Roman emphasizes the
distinction by stating that disinheritance "es siempre voluntaria" ; preterition, upon the other
hand, is presumed to be "involuntaria." 19 Express as disinheritance should be, the same must
be supported by a legal cause specified in the will itself. 20

The will here does not explicitly disinherit the testatrix’s parents, the forced heirs. It simply
omits their names altogether. Said will rather than be labeled ineffective disinheritance is clearly
one in which the said forced heirs suffer from preterition.

On top of this the fact that the effects flowing from preterition are totally different from those of
disinheritance. Preterition under Article 854 of the Civil Code, we repeat, "shall annul the
institution of heir." This annulment is in toto, unless in the will there are, in addition,
testamentary dispositions in the form of devises or legacies. In ineffective disinheritance under
Article 918 of the same Code, such disinheritance shall also "annul the institution of heirs," but
only "insofar as it may prejudice the person disinherited," which last phrase was omitted in the
case of preterition. 21 Better stated yet, in disinheritance the nullity is limited to that portion of
the estate of which the disinherited heirs have been illegally deprived. Manresa’s expressive
language, in commenting on the rights of the preterited heirs in the case of preterition on the
one hand and legal disinheritance on the other, runs thus: "Preteridos, adquieren el derecho a
todo; deshereda dos, solo les corresponde un tercio o dos tercios, 22 según el caso." 23

5. Petitioner insists that the compulsory heirs ineffectively disinherited are entitled to receive
their legitimes, but that the institution of heir "is not invalidated," although the inheritance of the
heir so instituted is reduced to the extent of said legitimes. 24

This is best answered by a reference to the opinion of Mr. Justice Moran in the Neri case
heretofore cited, viz:jgc:chanrobles.com.ph

"But the theory is advanced that the bequest made by universal title in favor of the children by
the second marriage should be treated as legado and mejora and, accordingly, it must not be
entirely annulled but merely reduced. This theory, if adopted, will result in a complete
abrogation of articles 814 and 851 of the Civil Code. If every case of institution of heirs may be
made to fall into the concept of legacies and betterments reducing the bequest accordingly, then
the provisions of articles 814 and 851 regarding total or partial nullity of the institution, would
be absolutely meaningless and will]l never have application at all. And the remaining provisions
contained in said articles concerning the reduction of inofficious legacies or betterments would
be a surplusage because they would be absorbed by article 817. Thus, instead of construing, we
would be destroying integral provisions of the Civil Code.
The destructive effect of the theory thus advanced is due mainly to a failure to distinguish
institution of heirs from legacies and betterments, and a general from a special provision. With
reference to Article 814, which is the only provision material to the disposition of this case, it
must be observed that the institution of heirs is therein dealt with a thing separate and distinct
from legacies or betterment. And they are separate and distinct not only because they are
distinctly and separately treated in said article but because they are in themselves different.
Institution of heirs is a bequest by universal title of property that is undetermined. Legacy refers
to specific property bequeathed by a particular or special title. . . But again an institution of heirs
cannot be taken as a legacy,"25 cralaw:red

The disputed order, we observe, declares the will in question "a complete nullity." Article 854 of
the Civil Code in turn merely nullifies "the institution of heir." Considering, however, that the will
before us solely provides for the institution of petitioner as universal heir, and nothing more, the
result is the same. The entire will is null.

Upon the view we take of this case, the order of November 8, 1963 under review is hereby
affirmed. No costs allowed. So ordered.

Concepcion, C.J., J.B.L. Reyes, Barrera, Dizon, Regala, Makalintal, J. P. Bengzon and
Zaldivar, JJ., concur.
[G.R. No. L-31979. August 6, 1980.]

FILOMENA G. PIZARRO, MISAEL G. PIZARRO, AURELIO PIZARRO, JR., LUZMINDA G.

PIZARRO, DELIA-THELMA G. PIZARRO, ROGELIO G. PIZARRO, VIRGILIO G. PIZARRO,
ROSALINDA G. PIZARRO, JOSE ELVIN G. PIZARRO and MARIA EVELYN G.
PIZARRO, Petitioners, v. THE HONORABLE COURT OF APPEALS, HONORABLE MANASES
G. REYES, JUDGE OF BRANCH III OF THE COURT OF FIRST INSTANCE OF DAVAO,
HONORABLE VICENTE P. BULLECER, JUDGE OF BRANCH IV OF THE COURT OF FIRST
INSTANCE OF DAVAO, ALFONSO L. ANGLIONGTO JR., FELICITAS YAP ANGLIONGTO,
GAUDENCIO A. CORIAS, REGALADO C. SALAVADOR, ALICIA P. LADISLA and LYDIA P.
GUDANI, Respondents.

DECISION

MELENCIO-HERRERA, J.:

A review of the Decision of the Court of Appeals in CA-G.R. No. 42507-R, entitled Filomena
Pizarro, Et. Al. v. Hon. Manases G. Reyes, Et Al., dismissing the petition for Certiorari and
Mandamus with Prohibition and Preliminary Injunction which sought to nullify the Order of the
Court of First Instance of Davao, Branch III, dated April 10, 1968, dismissing Civil Case No.
5762.

The controversy stemmed from the following facts: chanrob1es virtual 1aw library

Petitioner Filomena G. Pizarro, is the surviving spouse of the late Aurelio Pizarro, Sr., while the
other petitioners, Misael, Aurelio, Jr., Luzminda, Delia-Thelma, Rogelio, Virgilio, Rosalinda, Jose
Elvin and Maria Evelyn, all surnamed Pizarro, as well as respondents Alicia P. Ladisla and Lydia
P. Gudani, are their children. Upon the death of Aurelio Pizarro, Sr., Special Proceedings No.
1421 entitled "In the Intestate Estate of the Deceased Aurelio Pizarro, Sr.," was instituted by
petitioners through Atty. Regalado C. Salvador on September 21, 1965 in the Court of First
Instance of Davao, Branch I, presided by Judge Vicente P. Bullecer. Listed among the properties
of the estate were parcels of land situated in Agdao, J. Palma Gil, and Claro M. Recto Streets,
Davao City. On December 23, 1965, the Court, upon agreement of the parties, appointed
Gaudencio A. Corias, Clerk of Court of said Court, as Administrator of the estate. chanrobles.com.ph : virtual law library

On January 11, 1967, the Administrator, through Atty. Regalado C. Salvador, filed a Motion for
Authority to Sell the properties located at Agdao and Jose Palma Gil Streets, Davao City, to
settle the debts of the estate initially estimated at P257,361.23, including inheritance and estate
taxes. The heirs, Alicia P. Ladisla and Lydia P. Gudani, opposed the Motion stating that the
claims against the estate had not yet been properly determined and that the sale of the Agdao
lot with an area of 13,014 sq. ms. would be more than sufficient to cover the supposed
obligations of the estate, which they claimed were exaggerated.

The Court, in its Order dated February 7, 1967, authorized the sale "in the interest of the
parties" and since majority of the heirs were in favor of the sale "to avoid unnecessary additional
burden of about P2,000.00 every month." 1 On February 8, 1867, the Administrator moved for
the approval of the conditional sale of the Agdao property to Alfonso L. Angliongto for a total
consideration of P146,820.00 payable in six installments including the down payment. 2 The
document of sale stipulated that the vendor was to cause the ejectment of all occupants in the
property on or before July 31, 1967, otherwise, the vendee was to have the right to rescind the
sale and demand reimbursement of the price already paid. The heirs filed a Motion, also dated
February 8, 1967, to set aside or hold in abeyance the Order authorizing the sale on the ground
that they were negotiating for the sale of said lot to Mr. Benjamin Gonzales, whose theatre was
being constructed on a 1,187 square meter portion thereof. 3

The Court, in its Order dated February 9, 1967, denied the "Motion to Set Aside" stating that the
grounds relied upon by the heirs were "nothing but speculations and had no legal basis." 4 The
heirs moved for reconsideration alleging that they were being deprived of the right to a more
beneficial sale. 5 On February 11, 1967, a hearing was held on the Motion for approval of the
sale of the Agdao lot to Alfonso Angliongto. 6 The heirs maintained their objection on the
grounds that 1) the sale would be improvident and greatly prejudicial; 2) there has been no
determination of the debts or obligations of the estate as yet; and 3) the terms of the sale were
very prejudicial to them. The Court denied reconsideration on February 20, 1967, 7 and
approved the sale on the same date stating that "the sale sought to be approved was more
beneficial."
cralaw virtua1aw library

On February 22, 1967, the Administrator presented another Motion for Authority to Sell the
Claro M. Recto lot stating that the proceeds from the sale of the Agdao lot were not sufficient to
settle the obligations of the estate and that the sale of the property on J. Palma Gil Street was
unanimously opposed by the heirs. Authority was granted by the Court on March 6, 1967. 8

Prior to this, the heirs, in a Motion dated February 27, 1967 prayed that Administrator
Gaudencio A. Corias be asked to resign or be removed for having abused his powers and duties
as such and that Letters of Administration be granted instead to Filomena Pizarro. 9 They also
terminated the services of Atty. Regalado C. Salvador, who had acted likewise as counsel for the
Administrator.

On March 11, 1967, the Administrator moved that he be allowed to resign.

On June 22, 1967, the heirs, except Alicia P. Ladisla and Lydia P. Gudani, filed a "Motion for
Cancellation or Rescission of Conditional Contract of Sale" of the Agdao lot in favor of Alfonso L.
Angliongto reiterating that it was unnecessary and prejudicial to their interests, that the sale of
the lot in Claro M. Recto Street for P370,000.00 was more than sufficient to settle the
obligations of the estate, that it was impossible to eject all nineteen tenants, not later than July
31, 1967, and that the vendee had failed to pay the last four installments due despite repeated
demands. 10 Angliongto’s counsel countered that the condition of the sale requiring the prior
ejectment of squatters had not been complied with so that the vendee would hold in abeyance
payment of the balance of the purchase price until all the squatters were ejected. 11 The Court
denied rescission of the sale in its Order, dated July 3, 1967, stating that the relief prayed for is
not within its power to grant, and that the heirs "should file the necessary action before a
competent Court — not before this Court, and much less by mere motion." 12 The heirs moved
to reconsider the said Order. In the meantime, Judge Bullecer was transferred to the Court of
First Instance at Mati, Davao Oriental. chanrobles law library

On July 6, 1967, the Administrator presented a "Motion to Approve Final Sale" of the Agdao lot
to spouses Angliongtos stating that the latter had paid the full balance of P58,728.00. On the
same date, the Court approved the same. 13 It appears that Transfer Certificate of Title No. T-
19342 was issued in favor of Alfonso Angliongto on July 10, 1967. 14

On July 13, 1967, Gaudencio Corias ceased to be Administrator. 15

Without waiting for the resolution of their Motion for Reconsideration of the Order denying
rescission of the sale, the heirs, except Alicia P. Ladisla and Lydia P. Gudani, filed on October 5,
1967, a verified Complaint for "Cancellation of Authority to Sell and Rescission and Annulment of
Deed of Sale and Damages with Preliminary Injunction" (Civil Case No. 5762, hereinafter called
the Rescission Case) in the Court of First Instance of Davao (raffled to Branch III), against the
Angliongto spouses, Administrator Gaudencio A. Corias, Judge Vicente P. Bullecer, Atty.
Regalado C. Salvador, Alicia P. Ladisla and Lydia P. Gudani, 16 the latter two having refused to
join as plaintiffs. Petitioners contended inter alia that despite all their efforts to block the sale
"the Administrator taking advantage of the name and influence of the presiding Judge"
succeeded in inducing Angliongto to purchase the lot at a price allegedly much higher than the
reported P12.00 per square meter; that the sale contained an impossible condition which was
the ejectment of the tenants before a certain date; that there was connivance between the
Administrator and the vendee with the knowledge of the Judge and Atty. Regalado Salvador;
and that they had suffered actual and moral damages by reason of the sale. They also prayed
that since the vendees had entered the lot and destroyed improvements thereon, that they be
enjoined from doing so. Attached to the Complaint was a letter 17 addressed to the surviving
spouse, Filomena G. Pizarro, from Atty. Raul Tolentino to the effect that the sum of P58,728.00
issued by Alfonso Angliongto in favor of the estate and which was deposited by virtue of a Court
Order had been dishonored by the Bank because of a stop-payment order of Angliongto.

All the defendants except Judge Bullecer and Atty. Corias who filed a Motion to Dismiss,
presented their respective Answers. Eventually, however, they all adopted the same Motion
predicated mainly on plaintiffs’ lack of legal capacity to sue and lack of cause of action. 18 In
addition, the Angliongtos pleaded res judicata, the sale having been approved by the Court as
far back as February 20, 1967 and the final deed on July 6, 1967, and the corresponding title
issued in the name of Alfonso Angliongto on July 10, 1967. Plaintiffs filed an Opposition 19 as
well as a supplemental Opposition. 20

On October 17, 1967, Judge Alfredo I. Gonzales, as Executive Judge, issued an Order enjoining
the Angliongtos, their agents, laborers, representatives, from further cutting and destroying
coconuts, other fruits and improvements on the property pending the final termination of the
action or until a contrary order is issued by the Court, upon the filing of a bond in the amount of
P25,000.00. 21
On April 10, 1968, the trial Court (respondent Judge Manases G. Reyes presiding) dismissed the
Rescission Case (Civil Case No. 5762) on the ground that it could not review the actuations of a
coordinate Branch of the Court besides the fact that a Motion for Reconsideration was still
pending resolution before the Probate Court. 22 Plaintiffs’ Motion for Reconsideration of the
dismissal Order was denied on October 10, 1968.

While the Rescission Case was pending, the Angliongtos filed Civil Case No. 5849 for Damages
(the Angliongtos Case) against the heirs.

On November 25, 1968, petitioners elevated their cause to the Court of Appeals
on" Certiorari and Mandamus with Prohibition and Injunction," charging that respondent Judge
Manases G. Reyes gravely abused his discretion in dismissing the Rescission Case and prayed
that he be required to take cognizance thereof and that the Angliongtos be enjoined from
exercising rights of ownership over the property.

On February 11, 1970, the Court of Appeals dismissed the Petition opining that the Court of First
Instance of Davao, Branch IV, did not abuse its discretion in approving the sale in the Intestate
Case (Sp. Proc. No. 1421), and even granting that it did, the proper remedy was appeal
not Certiorari; that the Court of First Instance, Branch III, neither abused its discretion in
dismissing the Rescission Case (Civil Case No. 5762) as that case sought to review the
actuations of a coordinate Branch which is beyond its judicial competence; and that since said
dismissal was final, the proper remedy was appeal. It also observed that copies of the Orders
sought to be reviewed were not certified true copies and, therefore, violative of Section 1, Rule
65 of the Rules of Court.

The present Petition before us seeks a reversal of the aforestated findings of the Appellate Court
anchored on the principal contentions that the sale of the Agdao property should be rescinded
for failure of the vendees to pay the purchase price, and that actually no review of the
actuations of a co-equal Branch of the Court is being sought. We gave due course to the Petition
on June 8, 1970. chanroblesvirtualawlibrary

In a Manifestation filed by petitioners on March 29, 1976, 23 they disclosed that the Angliongtos
had mortgaged the Agdao property to the Development Bank of the Philippines in Davao City, in
violation of the injunctive Order of the lower Court, and after redeeming the same, caused the
property to be subdivided into three lots and titled in their names. Subsequently, they allegedly
sold the biggest portion containing 11,500 sq. ms. to Yu Cho Khai and Cristina Sy Yu for
P250,000.00 on October 25, 1975. Title to said portion has been allegedly transferred in favor of
said vendees.

The primary point tendered for resolution is the correctness of the ruling of the Court of Appeals
upholding the opinion of the trial Court that the latter was devoid of authority to review the
actuations of a coordinate Branch of the Court. Secondarily, the propriety of the extra-ordinary
remedy of Certiorari despite the existence of the remedy of appeal is also in issue.

Certiorari should lie.

While an Order of dismissal is, indeed, final and appealable as it puts an end to litigation and
leaves nothing more to be done on the merits in the lower Court, 24 so that Certiorari is
ordinarily unavailable, that general rule allows of exceptions, namely, when appeal is inadequate
and ineffectual or when the broader interest of justice so requires. 25 In this case, appeal would
not have afforded the heirs an effective and speedy recourse. It would have entailed a
protracted litigation and in the interim, the heirs stood to suffer as a consequence of the
approval of the sale. The prompt stoppage of that sale was vital to them. Thusly, appeal not
being speedy enough to bring about the desired objective and to be of any utility to the heirs,
their availment of Certiorari must be held to have been proper.

We come now to the question of correctness of the Order of dismissal of the trial Court which the
Appellate Tribunal had upheld. As a strict legal proposition, no actuation of the Probate Court
had to be Reviewed. There is no judicial interference to speak of by one Court in the actuations
of another co-equal Court. The Order authorizing the sale was issued on February 20, 1967, and
on July 6, 1967, the Court gave its stamp of approval to the final sale. Title was issued in favor
of the vendees on July 10, 1967. To all intents and purposes, therefore, that sale had been
consummated; the Order approving the sale, final.

But, what petitioners sought to achieve in filing the Rescission Case was to rescind the sale
mainly for failure of the vendees to pay the full consideration thereof, 26 which is a valid ground
for rescission. That cause of action was within the judicial competence and authority of the trial
Court (Branch III) as a Court of First Instance with exclusive original jurisdiction over civil cases
the subject matter of which is not capable of pecuniary estimation. It was beyond the
jurisdictional bounds of the Probate Court (Branch IV) whose main province was the settlement
of the estate. As a matter of fact, the Rescission Case was instituted after the Probate Court
itself had stated that petitioners’ cause of action was not within its authority to resolve but
should be filed with the competent Court. The cause of action in one is different from that
obtaining in the other. It behooved the trial Court, therefore, to have taken cognizance of and to
have heard the Rescission Case on the merits and it was reversible error for the Court of Appeals
to have upheld its dismissal.

In so far as the non-presentation of a certified true copy of the Order of April 10, 1968, sought
to be reviewed, its concerned, there seems to have been substantial compliance with section 1,
Rule 65, of the Rules of Court since the copy of the Order submitted is a duplicate copy of the
original and bears the seal of the Trial Court. Lawyers should bear in mind, however, that a
faithful compliance with the Rules is still the better practice.

WHEREFORE, the judgment of the Court of Appeals is reversed, and the incumbent Judge of the
Court of First Instance of Davao, Branch III, is hereby ordered to take cognizance of and hear
and decide Civil Case No. 5762 as expeditiously as possible.

SO ORDERED.

G.R. No. L-56340 June 24, 1983

SPOUSES ALVARO PASTOR, JR. and MA. ELENA ACHAVAL DE PASTOR, petitioners,
vs.
THE COURT OF APPEALS, JUAN Y. REYES, JUDGE OF BRANCH I, COURT OF FIRST INSTANCE OF
CEBU and LEWELLYN BARLITO QUEMADA, respondents.

Pelaez, Pelaez, & Pelaez Law Office for petitioners.

Ceniza, Rama & Associates for private respondents.

PLANA, J.:

I. FACTS:
This is a case of hereditary succession.

Alvaro Pastor, Sr. (PASTOR, SR.), a Spanish subject, died in Cebu City on June 5, 1966, survived by his
Spanish wife Sofia Bossio (who also died on October 21, 1966), their two legitimate children Alvaro Pastor, Jr.
(PASTOR, JR.) and Sofia Pastor de Midgely (SOFIA), and an illegitimate child, not natural, by the name of
Lewellyn Barlito Quemada QUEMADA PASTOR, JR. is a Philippine citizen, having been naturalized in 1936.
SOFIA is a Spanish subject. QUEMADA is a Filipino by his mother's citizenship.

On November 13, 1970, QUEMADA filed a petition for the probate and allowance of an alleged holographic will
of PASTOR, SR. with the Court of First Instance of Cebu, Branch I (PROBATE COURT), docketed as SP No.
3128-R. The will contained only one testamentary disposition: a legacy in favor of QUEMADA consisting of
30% of PASTOR, SR.'s 42% share in the operation by Atlas Consolidated Mining and Development
Corporation (ATLAS) of some mining claims in Pina-Barot, Cebu.

On November 21, 1970, the PROBATE COURT, upon motion of QUEMADA and after an ex parte hearing,
appointed him special administrator of the entire estate of PASTOR, SR., whether or not covered or affected
by the holographic will. He assumed office as such on December 4, 1970 after filing a bond of P 5,000.00.

On December 7, 1970, QUEMADA as special administrator, instituted against PASTOR, JR. and his wife an
action for reconveyance of alleged properties of the estate, which included the properties subject of the legacy
and which were in the names of the spouses PASTOR, JR. and his wife, Maria Elena Achaval de Pastor, who
claimed to be the owners thereof in their own rights, and not by inheritance. The action, docketed as Civil Case
No. 274-R, was filed with the Court of First Instance of Cebu, Branch IX.

On February 2, 1971, PASTOR, JR. and his sister SOFIA filed their opposition to the petition for probate and
the order appointing QUEMADA as special administrator.

On December 5, 1972, the PROBATE COURT issued an order allowing the will to probate. Appealed to the
Court of Appeals in CA-G.R. No. 52961- R, the order was affirmed in a decision dated May 9, 1977. On petition
for review, the Supreme Court in G.R. No. L-46645 dismissed the petition in a minute resolution dated
November 1, 1977 and remanded the same to the PROBATE COURT after denying reconsideration on
January 11, 1978.

For two years after remand of the case to the PROBATE COURT, QUEMADA filed pleading after pleading
asking for payment of his legacy and seizure of the properties subject of said legacy. PASTOR, JR. and SOFIA
opposed these pleadings on the ground of pendency of the reconveyance suit with another branch of the Cebu
Court of First Instance. All pleadings remained unacted upon by the PROBATE COURT.

On March 5, 1980, the PROBATE COURT set the hearing on the intrinsic validity of the will for March 25,
1980, but upon objection of PASTOR, JR. and SOFIA on the e ground of pendency of the reconveyance suit,
no hearing was held on March 25. Instead, the PROBATE COURT required the parties to submit their
respective position papers as to how much inheritance QUEMADA was entitled to receive under the wig.
Pursuant thereto, PASTOR. JR. and SOFIA submitted their Memorandum of authorities dated April 10, which
in effect showed that determination of how much QUEMADA should receive was still premature. QUEMADA
submitted his Position paper dated April 20, 1980. ATLAS, upon order of the Court, submitted a sworn
statement of royalties paid to the Pastor Group of tsn from June 1966 (when Pastor, Sr. died) to February
1980. The statement revealed that of the mining claims being operated by ATLAS, 60% pertained to the Pastor
Group distributed as follows:

1. A. Pastor, Jr. ...................................40.5%

2. E. Pelaez, Sr. ...................................15.0%

3. B. Quemada .......................................4.5%
On August 20, 1980, while the reconveyance suit was still being litigated in Branch IX of the Court of First
Instance of Cebu, the PROBATE COURT issued the now assailed Order of Execution and Garnishment,
resolving the question of ownership of the royalties payable by ATLAS and ruling in effect that the legacy to
QUEMADA was not inofficious. [There was absolutely no statement or claim in the Order that the Probate
Order of December 5, 1972 had previously resolved the issue of ownership of the mining rights of royalties
thereon, nor the intrinsic validity of the holographic will.]

The order of August 20, 1980 found that as per the holographic will and a written acknowledgment of
PASTOR, JR. dated June 17, 1962, of the above 60% interest in the mining claims belonging to the Pastor
Group, 42% belonged to PASTOR, SR. and only 33% belonged to PASTOR, JR. The remaining 25% belonged
to E. Pelaez, also of the Pastor Group. The PROBATE COURT thus directed ATLAS to remit directly to
QUEMADA the 42% royalties due decedent's estate, of which QUEMADA was authorized to retain 75% for
himself as legatee and to deposit 25% with a reputable banking institution for payment of the estate taxes and
other obligations of the estate. The 33% share of PASTOR, JR. and/or his assignees was ordered garnished to
answer for the accumulated legacy of QUEMADA from the time of PASTOR, SR.'s death, which amounted to
over two million pesos.

The order being "immediately executory", QUEMADA succeeded in obtaining a Writ of Execution and
Garnishment on September 4, 1980, and in serving the same on ATLAS on the same day. Notified of the
Order on September 6, 1980, the oppositors sought reconsideration thereof on the same date primarily on the
ground that the PROBATE COURT gravely abused its discretion when it resolved the question of ownership of
the royalties and ordered the payment of QUEMADA's legacy after prematurely passing upon the intrinsic
validity of the will. In the meantime, the PROBATE COURT ordered suspension of payment of all royalties due
PASTOR, JR. and/or his assignees until after resolution of oppositors' motion for reconsideration.

Before the Motion for Reconsideration could be resolved, however, PASTOR, JR., this time joined by his wife
Ma. ELENA ACHAVAL DE PASTOR, filed with the Court of Appeals a Petition for certiorari and Prohibition
with a prayer for writ of preliminary injunction (CA-G.R. No. SP- 11373-R). They assailed the Order dated
August 20, 1980 and the writ of execution and garnishment issued pursuant thereto. The petition was denied
on November 18, 1980 on the grounds (1) that its filing was premature because the Motion for Reconsideration
of the questioned Order was still pending determination by the PROBATE COURT; and (2) that although "the
rule that a motion for reconsideration is prerequisite for an action for certiorari is never an absolute rule," the
Order assailed is "legally valid. "

On December 9, 1980, PASTOR, JR. and his wife moved for reconsideration of the Court of Appeal's decision
of November 18, 1980, calling the attention of the appellate court to another order of the Probate Court dated
November 11, 1980 (i.e., while their petition for certiorari was pending decision in the appellate court), by which
the oppositors' motion for reconsideration of the Probate Court's Order of August 20, 1980 was denied. [The
November 11 Order declared that the questions of intrinsic validity of the will and of ownership over the mining
claims (not the royalties alone) had been finally adjudicated by the final and executory Order of December 5,
1972, as affirmed by the Court of Appeals and the Supreme Court, thereby rendering moot and academic the
suit for reconveyance then pending in the Court of First Instance of Cebu, Branch IX. It clarified that only the
33% share of PASTOR, JR. in the royalties (less than 7.5% share which he had assigned to QUEMADA before
PASTOR, SR. died) was to be garnished and that as regards PASTOR, SR.'s 42% share, what was ordered
was just the transfer of its possession to the custody of the PROBATE COURT through the special
administrator. Further, the Order granted QUEMADA 6% interest on his unpaid legacy from August 1980 until
fully paid.] Nonetheless, the Court of Appeals denied reconsideration.

Hence, this Petition for Review by certiorari with prayer for a writ of pre y injunction, assailing the decision of
the Court of Appeals dated November 18, 1980 as well as the orders of the Probate Court dated August 20,
1980, November 11, 1980 and December 17, 1980, Med by petitioners on March 26, 1981, followed by a
Supplemental Petition with Urgent Prayer for Restraining Order.

In April 1981, the Court (First Division) issued a writ of preliminary injunction, the lifting of which was denied in
the Resolution of the same Division dated October 18, 1982, although the bond of petitioners was increased
from P50,000.00 to P100,000.00.
Between December 21, 1981 and October 12, 1982, private respondent filed seven successive motions for
early resolution. Five of these motions expressly prayed for the resolution of the question as to whether or not
the petition should be given due course.

On October 18, 1982, the Court (First Division) adopted a resolution stating that "the petition in fact and in
effect was given due course when this case was heard on the merits on September 7, (should be October 21,
1981) and concise memoranda in amplification of their oral arguments on the merits of the case were filed by
the parties pursuant to the resolution of October 21, 1981 . . . " and denied in a resolution dated December 13,
1982, private respondent's "Omnibus motion to set aside resolution dated October 18, 1982 and to submit the
matter of due course to the present membership of the Division; and to reassign the case to another ponente."

Upon Motion for Reconsideration of the October 18, 1982 and December 13, 1982 Resolutions, the Court en
banc resolved to CONFIRM the questioned resolutions insofar as hey resolved that the petition in fact and in
effect had been given due course.

II. ISSUES:

Assailed by the petitioners in these proceedings is the validity of the Order of execution and garnishment dated
August 20, 1980 as well as the Orders subsequently issued allegedly to implement the Probate Order of
December 5, 1972, to wit: the Order of November 11, 1980 declaring that the Probate Order of 1972 indeed
resolved the issues of ownership and intrinsic validity of the will, and reiterating the Order of Execution dated
August 20, 1980; and the Order of December 17, 1980 reducing to P2,251,516.74 the amount payable to
QUEMADA representing the royalties he should have received from the death of PASTOR, SR. in 1966 up to
February 1980.

The Probate Order itself, insofar as it merely allowed the holographic will in probate, is not questioned. But
petitioners denounce the Probate Court for having acted beyond its jurisdiction or with grave abuse of
discretion when it issued the assailed Orders. Their argument runs this way: Before the provisions of the
holographic win can be implemented, the questions of ownership of the mining properties and the intrinsic
validity of the holographic will must first be resolved with finality. Now, contrary to the position taken by the
Probate Court in 1980 — i.e., almost eight years after the probate of the will in 1972 — the Probate Order did
not resolve the two said issues. Therefore, the Probate Order could not have resolved and actually did not
decide QUEMADA's entitlement to the legacy. This being so, the Orders for the payment of the legacy in
alleged implementation of the Probate Order of 1972 are unwarranted for lack of basis.

Closely related to the foregoing is the issue raised by QUEMADA The Probate Order of 1972 having become
final and executory, how can its implementation (payment of legacy) be restrained? Of course, the question
assumes that QUEMADA's entitlement to the legacy was finally adjudged in the Probate Order.

On the merits, therefore, the basic issue is whether the Probate Order of December 5, 1972 resolved with
finality the questions of ownership and intrinsic validity. A negative finding will necessarily render moot and
academic the other issues raised by the parties, such as the jurisdiction of the Probate Court to conclusively
resolve title to property, and the constitutionality and repercussions of a ruling that the mining properties in
dispute, although in the name of PASTOR, JR. and his wife, really belonged to the decedent despite the
latter's constitutional disqualification as an alien.

On the procedural aspect, placed in issue is the propriety of certiorari as a means to assail the validity of the
order of execution and the implementing writ.

III. DISCUSSION:

1. Issue of Ownership —

(a) In a special proceeding for the probate of a will, the issue by and large is restricted to the extrinsic validity of
the will, i.e., whether the testator, being of sound mind, freely executed the will in accordance with the
formalities prescribed by law. (Rules of Court, Rule 75, Section 1; Rule 76, Section 9.) As a rule, the question
of ownership is an extraneous matter which the Probate Court cannot resolve with finality. Thus, for the
purpose of determining whether a certain property should or should not be included in the inventory of estate
properties, the Probate Court may pass upon the title thereto, but such determination is provisional, not
conclusive, and is subject to the final decision in a separate action to resolve title. [3 Moran, Comments on the
Rules of Court (1980 ed.), p. 458; Valero Vda. de Rodriguez vs. Court of Appeals, 91 SCRA 540.]

(b) The rule is that execution of a judgment must conform to that decreed in the dispositive part of the decision.
(Philippine-American Insurance Co. vs. Honorable Flores, 97 SCRA 811.) However, in case of ambiguity or
uncertainty, the body of the decision may be scanned for guidance in construing the judgment. (Heirs of Presto
vs. Galang, 78 SCRA 534; Fabular vs. Court of Appeals, 119 SCRA 329; Robles vs. Timario. 107 Phil. 809.)

The Order sought to be executed by the assailed Order of execution is the Probate Order of December 5, 1972
which allegedly resolved the question of ownership of the disputed mining properties. The said Probate Order
enumerated the issues before the Probate Court, thus:

Unmistakably, there are three aspects in these proceedings: (1) the probate of the holographic
will (2) the intestate estate aspect; and (3) the administration proceedings for the purported
estate of the decedent in the Philippines.

In its broad and total perspective the whole proceedings are being impugned by the oppositors
on jurisdictional grounds, i.e., that the fact of the decedent's residence and existence of
properties in the Philippines have not been established.

Specifically placed in issue with respect to the probate proceedings are: (a) whether or not the
holographic will (Exhibit "J") has lost its efficacy as the last will and testament upon the death of
Alvaro Pastor, Sr. on June 5, 1966, in Cebu City, Philippines; (b) Whether or not the said will
has been executed with all the formalities required by law; and (c) Did the late presentation of
the holographic will affect the validity of the same?

Issues In the Administration Proceedings are as follows: (1) Was the ex- parte appointment of
the petitioner as special administrator valid and proper? (2) Is there any indispensable necessity
for the estate of the decedent to be placed under administration? (3) Whether or not petition is
qualified to be a special administrator of the estate; and (4) Whether or not the properties listed
in the inventory (submitted by the special administrator but not approved by the Probate Court)
are to be excluded.

Then came what purports to be the dispositive portion:

Upon the foregoing premises, this Court rules on and resolves some of the problems and issues
presented in these proceedings, as follows:

(a) The Court has acquired jurisdiction over the probate proceedings as it hereby allows and
approves the so-called holographic will of testator Alvaro Pastor, Sr., executed on July 31, 1961
with respect to its extrinsic validity, the same having been duly authenticated pursuant to the
requisites or solemnities prescribed by law. Let, therefore, a certificate of its allowance be
prepared by the Branch Clerk of this Court to be signed by this Presiding Judge, and attested by
the seal of the Court, and thereafter attached to the will, and the will and certificate filed and
recorded by the clerk. Let attested copies of the will and of the certificate of allowance thereof
be sent to Atlas Consolidated Mining & Development Corporation, Goodrich Bldg., Cebu City,
and the Register of Deeds of Cebu or of Toledo City, as the case may be, for recording.

(b) There was a delay in the granting of the letters testamentary or of administration for as a
matter of fact, no regular executor and/or administrator has been appointed up to this time and -
the appointment of a special administrator was, and still is, justified under the circumstances to
 take possession and charge of the estate of the deceased in the Philippines (particularly in
Cebu) until the problems causing the delay are decided and the regular executor and/or
administrator appointed.

(c) There is a necessity and propriety of a special administrator and later on an executor and/or
administrator in these proceedings, in spite of this Court's declaration that the oppositors are the
forced heirs and the petitioner is merely vested with the character of a voluntary heir to the
extent of the bounty given to him (under) the will insofar as the same will not prejudice the
legitimes of the oppositor for the following reasons:

1. To submit a complete inventory of the estate of the decedent-

testator Alvaro Pastor, Sr.

2. To administer and to continue to put to prolific utilization of the

properties of the decedent;

3. To keep and maintain the houses and other structures and

belonging to the estate, since the forced heirs are residing in
Spain, and prepare them for delivery to the heirs in good order
after partition and when directed by the Court, but only after the
payment of estate and inheritance taxes;

(d) Subject to the outcome of the suit for reconveyance of ownership and possession of real and
personal properties in Civil Case No. 274-T before Branch IX of the Court of First Instance of
Cebu, the intestate estate administration aspect must proceed, unless, however, it is duly
proven by the oppositors that debts of the decedent have already been paid, that there had
been an extrajudicial partition or summary one between the forced heirs, that the legacy to be
given and delivered to the petitioner does not exceed the free portion of the estate of the
testator, that the respective shares of the forced heirs have been fairly apportioned, distributed
and delivered to the two forced heirs of Alvaro Pastor, Sr., after deducting the property willed to
the petitioner, and the estate and inheritance taxes have already been paid to the Government
thru the Bureau of Internal Revenue.

The suitability and propriety of allowing petitioner to remain as special administrator or

administrator of the other properties of the estate of the decedent, which properties are not
directly or indirectly affected by the provisions of the holographic will (such as bank deposits,
land in Mactan etc.), will be resolved in another order as separate incident, considering that this
order should have been properly issued solely as a resolution on the issue of whether or not to
allow and approve the aforestated will. (Emphasis supplied.)

Nowhere in the dispositive portion is there a declaration of ownership of specific properties. On the contrary, it
is manifest therein that ownership was not resolved. For it confined itself to the question of extrinsic validity of
the win, and the need for and propriety of appointing a special administrator. Thus it allowed and approved the
holographic win "with respect to its extrinsic validity, the same having been duly authenticated pursuant to the
requisites or solemnities prescribed by law." It declared that the intestate estate administration aspect must
proceed " subject to the outcome of the suit for reconveyance of ownership and possession of real and
personal properties in Civil Case 274-T before Branch IX of the CFI of Cebu." [Parenthetically, although the
statement refers only to the "intestate" aspect, it defies understanding how ownership by the estate of some
properties could be deemed finally resolved for purposes of testate administration, but not so
for intestate purposes. Can the estate be the owner of a property for testate but not for intestate purposes?]
Then again, the Probate Order (while indeed it does not direct the implementation of the legacy) conditionally
stated that the intestate administration aspect must proceed "unless . . . it is proven . . . that the legacy to be
given and delivered to the petitioner does not exceed the free portion of the estate of the testator," which
clearly implies that the issue of impairment of legitime (an aspect of intrinsic validity) was in fact not resolved.
Finally, the Probate Order did not rule on the propriety of allowing QUEMADA to remain as special
administrator of estate properties not covered by the holographic will, "considering that this (Probate) Order
should have been properly issued solely as a resolution on the issue of whether or not to allow and approve
the aforestated will. "

(c) That the Probate Order did not resolve the question of ownership of the properties listed in the estate
inventory was appropriate, considering that the issue of ownership was the very subject of controversy in the
reconveyance suit that was still pending in Branch IX of the Court of First Instance of Cebu.

(d) What, therefore, the Court of Appeals and, in effect, the Supreme Court affirmed en toto when they
reviewed the Probable Order were only the matters properly adjudged in the said Order.

(e) In an attempt to justify the issuance of the Order of execution dated August 20, 1980, the Probate Court in
its Order of November 11, 1980 explained that the basis for its conclusion that the question of ownership had
been formally resolved by the Probate Order of 1972 are the findings in the latter Order that (1) during the
lifetime of the decedent, he was receiving royalties from ATLAS; (2) he had resided in the Philippines since
pre-war days and was engaged in the mine prospecting business since 1937 particularly in the City of Toledo;
and (3) PASTOR, JR. was only acting as dummy for his father because the latter was a Spaniard.

Based on the premises laid, the conclusion is obviously far-fetched.

(f) It was, therefore, error for the assailed implementing Orders to conclude that the Probate Order adjudged
with finality the question of ownership of the mining properties and royalties, and that, premised on this
conclusion, the dispositive portion of the said Probate Order directed the special administrator to pay the
legacy in dispute.

2. Issue of Intrinsic Validity of the Holographic Will -

(a) When PASTOR, SR. died in 1966, he was survived by his wife, aside from his two legitimate children and
one illegitimate son. There is therefore a need to liquidate the conjugal partnership and set apart the share of
PASTOR, SR.'s wife in the conjugal partnership preparatory to the administration and liquidation of the estate
of PASTOR, SR. which will include, among others, the determination of the extent of the statutory usufructuary
right of his wife until her death. * When the disputed Probate order was issued on December 5, 1972, there had been no liquidation of the
community properties of PASTOR, SR. and his wife.

(b) So, also, as of the same date, there had been no prior definitive determination of the assets of the estate of
PASTOR, SR. There was an inventory of his properties presumably prepared by the special administrator, but
it does not appear that it was ever the subject of a hearing or that it was judicially approved. The reconveyance
or recovery of properties allegedly owned but not in the name of PASTOR, SR. was still being litigated in
another court.

(c) There was no appropriate determination, much less payment, of the debts of the decedent and his estate.
Indeed, it was only in the Probate Order of December 5, 1972 where the Probate Court ordered that-

... a notice be issued and published pursuant to the provisions of Rule 86 of the Rules of Court,
requiring all persons having money claims against the decedent to file them in the office of the
Branch Clerk of this Court."

(d) Nor had the estate tax been determined and paid, or at least provided for, as of December 5, 1972.

(e) The net assets of the estate not having been determined, the legitime of the forced heirs in concrete figures
could not be ascertained.

(f) All the foregoing deficiencies considered, it was not possible to determine whether the legacy of QUEMADA
- a fixed share in a specific property rather than an aliquot part of the entire net estate of the deceased - would
produce an impairment of the legitime of the compulsory heirs.
(g) Finally, there actually was no determination of the intrinsic validity of the will in other respects. It was
obviously for this reason that as late as March 5, 1980 - more than 7 years after the Probate Order was issued
the Probate Court scheduled on March 25, 1980 a hearing on the intrinsic validity of the will.

3. Propriety of certiorari —

Private respondent challenges the propriety of certiorari as a means to assail the validity of the disputed Order
of execution. He contends that the error, if any, is one of judgment, not jurisdiction, and properly correctible
only by appeal, not certiorari.

Under the circumstances of the case at bar, the challenge must be rejected. Grave abuse of discretion
amounting to lack of jurisdiction is much too evident in the actuations of the probate court to be overlooked or
condoned.

(a) Without a final, authoritative adjudication of the issue as to what properties compose the estate of
PASTOR, SR. in the face of conflicting claims made by heirs and a non-heir (MA. ELENA ACHAVAL DE
PASTOR) involving properties not in the name of the decedent, and in the absence of a resolution on the
intrinsic validity of the will here in question, there was no basis for the Probate Court to hold in its Probate
Order of 1972, which it did not, that private respondent is entitled to the payment of the questioned legacy.
Therefore, the Order of Execution of August 20, 1980 and the subsequent implementing orders for the
payment of QUEMADA's legacy, in alleged implementation of the dispositive part of the Probate Order of
December 5, 1972, must fall for lack of basis.

(b) The ordered payment of legacy would be violative of the rule requiring prior liquidation of the estate of the
deceased, i.e., the determination of the assets of the estate and payment of all debts and expenses, before
apportionment and distribution of the residue among the heirs and legatees. (Bernardo vs. Court of Appeals, 7
SCRA 367.)

(c) Neither has the estate tax been paid on the estate of PASTOR, SR. Payment therefore of the legacy to
QUEMADA would collide with the provision of the National Internal Revenue Code requiring payment of estate
tax before delivery to any beneficiary of his distributive share of the estate (Section 107 [c])

(d) The assailed order of execution was unauthorized, having been issued purportedly under Rule 88, Section
6 of the Rules of Court which reads:

Sec. 6. Court to fix contributive shares where devisees, legatees, or heirs have been in
possession. — Where devisees, legatees, or heirs have entered into possession of portions of
the estate before the debts and expenses have been settled and paid and have become liable
to contribute for the payment of such debts and expenses, the court having jurisdiction of the
estate may, by order for that purpose, after hearing, settle the amount of their several liabilities,
and order how much and in what manner each person shall contribute, and may issue execution
as circumstances require.

The above provision clearly authorizes execution to enforce payment of debts of estate. A legacy is not a debt
of the estate; indeed, legatees are among those against whom execution is authorized to be issued.

... there is merit in the petitioners' contention that the probate court generally cannot issue a writ
of execution. It is not supposed to issue a writ of execution because its orders usually refer to
the adjudication of claims against the estate which the executor or administrator may satisfy
without the necessity of resorting to a writ of execution. The probate court, as such, does not
render any judgment enforceable by execution.

The circumstances that the Rules of Court expressly specifies that the probate court may issue
execution (a) to satisfy (debts of the estate out of) the contributive shares of devisees, legatees
and heirs in possession of the decedent's assets (Sec. 6. Rule 88), (b) to enforce payment of
 the expenses of partition (Sec. 3, Rule 90), and (c) to satisfy the costs when a person is cited for
examination in probate proceedings (Sec. 13, Rule 142) may mean, under the rule of inclusion
unius est exclusion alterius, that those are the only instances when it can issue a writ of
execution. (Vda. de Valera vs. Ofilada, 59 SCRA 96, 108.)

(d) It is within a court's competence to order the execution of a final judgment; but to order the execution of a
final order (which is not even meant to be executed) by reading into it terms that are not there and in utter
disregard of existing rules and law, is manifest grave abuse of discretion tantamount to lack of jurisdiction.
Consequently, the rule that certiorari may not be invoked to defeat the right of a prevailing party to the
execution of a valid and final judgment, is inapplicable. For when an order of execution is issued with grave
abuse of discretion or is at variance with the judgment sought to be enforced (PVTA vs. Honorable Gonzales,
92 SCRA 172), certiorari will lie to abate the order of execution.

(e) Aside from the propriety of resorting to certiorari to assail an order of execution which varies the terms of
the judgment sought to be executed or does not find support in the dispositive part of the latter, there are
circumstances in the instant case which justify the remedy applied for.

Petitioner MA. ELENA ACHAVAL DE PASTOR, wife of PASTOR, JR., is the holder in her own right of three
mining claims which are one of the objects of conflicting claims of ownership. She is not an heir of PASTOR,
SR. and was not a party to the probate proceedings. Therefore, she could not appeal from the Order of
execution issued by the Probate Court. On the other hand, after the issuance of the execution order, the
urgency of the relief she and her co-petitioner husband seek in the petition for certiorari states against requiring
her to go through the cumbersome procedure of asking for leave to intervene in the probate proceedings to
enable her, if leave is granted, to appeal from the challenged order of execution which has ordered
the immediate transfer and/or garnishment of the royalties derived from mineral properties of which she is the
duly registered owner and/or grantee together with her husband. She could not have intervened before the
issuance of the assailed orders because she had no valid ground to intervene. The matter of ownership over
the properties subject of the execution was then still being litigated in another court in a reconveyance suit filed
by the special administrator of the estate of PASTOR, SR.

Likewise, at the time petitioner PASTOR, JR. Med the petition for certiorari with the Court of Appeals, appeal
was not available to him since his motion for reconsideration of the execution order was still pending resolution
by the Probate Court. But in the face of actual garnishment of their major source of income, petitioners could
no longer wait for the resolution of their motion for reconsideration. They needed prompt relief from the
injurious effects of the execution order. Under the circumstances, recourse to certiorari was the feasible
remedy.

WHEREFORE, the decision of the Court of Appeals in CA G.R. No. SP-11373-R is reversed. The Order of
execution issued by the probate Court dated August 20, 1980, as well as all the Orders issued subsequent
thereto in alleged implementation of the Probate Order dated December 5, 1972, particularly the Orders dated
November 11, 1980 and December 17, 1980, are hereby set aside; and this case is remanded to the
appropriate Regional Trial Court for proper proceedings, subject to the judgment to be rendered in Civil Case
No. 274-R.

SO ORDERED.

[G.R. No. L-62952. October 9, 1985.]

SOFIA J. NEPOMUCENO, Petitioner, v. THE HONORABLE COURT OF APPEALS, RUFINA

GOMEZ, OSCAR JUGO ANG CARMELITA JUGO, Respondents.

DECISION
 GUTIERREZ, JR., J.:

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:chanrobles.com:cralaw:red

"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:jgc:chanrobles.com.ph

"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."cralaw virtua1aw library

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 the appellees 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. chanrobles virtual lawlibrary

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: chanrobles law library

x x x

". . . 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 the intrinsic validity or efficacy of the provisions of the
will or the legality of any devise or legacy is premature.

x x x

"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).

x x x

"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: jgc:chanrobles.com.ph

"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:jgc:chanrobles.com.ph

"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): jgc:chanrobles.com.ph

"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. chanrobles virtual lawlibrary

Article 739 of the Civil Code provides: jgc:chanrobles.com.ph

"The following donations shall be void: chanrob1es virtual 1aw library

(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: jgc:chanrobles.com.ph

"The prohibitions mentioned in Article 739, concerning donations inter vivos shall apply to
testamentary provisions." cralaw virtua1aw library

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." cralaw virtua1aw library

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. chanrobles.com : virtual law library

The records do not sustain a finding of innocence or good faith. As argued by the private
respondents: jgc:chanrobles.com.ph

"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." cralaw virtua1aw library

x x x

"3’ If a review of the evidence must be made nonetheless, then private respondents respectfully
offer the following analysis: jgc:chanrobles.com.ph

"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." cralaw virtua1aw library

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. chanrobles.com : virtual law library

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.
[G.R. No. 123486. August 12, 1999.]

EUGENIA RAMONAL CODOY, and MANUEL RAMONAL, Petitioners, v. EVANGELINE R.

CALUGAY, JOSEPHINE SALCEDO, and EUFEMIA PATIGAS, Respondents.

DECISION

PARDO, J.:

Before us is a petition for review on certiorari of the decision of the Court of Appeals 1 and its
resolution denying reconsideration, ruling: jgc:chanrobles.com.ph

"Upon the unrebutted testimony of appellant Evangeline Calugay and witness Matilde Ramonal
Binanay, the authenticity of testators holographic will has been established and the handwriting
and signature therein (exhibit S) are hers, enough to probate said will. Reversal of the judgment
appealed from and the probate of the holographic will in question be called for. The rule is that
after plaintiff has completed presentation of his evidence and the defendant files a motion for
judgment on demurrer to evidence on the ground that upon the facts and the law plaintiff has
shown no right to relief, if the motion is granted and the order to dismissal is reversed on
appeal, the movant loses his right to present evidence in his behalf (Sec. 1 Rule 35 Revised
Rules of Court). Judgment may, therefore, be rendered for appellant in the instant case. chanrobles law library : red

"Wherefore, the order appealed from is REVERSED and judgment rendered allowing the probate
of the holographic will of the testator Matilde Seño Vda. de Ramonal." 2

The facts are as follows: chanrob1es virtual 1aw library

On April 6, 1990, Evangeline Calugay, Josephine Salcedo and Eufemia Patigas, devisees and
legatees of the holographic will of the deceased Matilde Seño Vda. de Ramonal, filed with the
Regional Trial Court, Misamis Oriental, Branch 18, a petition 3 for probate of the holographic will
of the deceased, who died on January 16, 1990.

In the petition, respondents claimed that the deceased Matilde Seño Vda. de Ramonal, was of
sound and disposing mind when she executed the will on August 30, 1978, that there was no
fraud, undue influence, and duress employed in the person of the testator, and the will was
written voluntarily.
The assessed value of the decedent’s property, including all real and personal property was
about P400,000.00, at the time of her death. 4

On June 28, 1990, Eugenia Ramonal Codoy and Manuel Ramonal filed an opposition 5 to the
petition for probate, alleging that the holographic will was a forgery and that the same is even
illegible. This gives an impression that a "third hand" of an interested party other than the "true
hand" of Matilde Seño Vda. de Ramonal executed the holographic will.

Petitioners argued that the repeated dates incorporated or appearing on the will after every
disposition is out of the ordinary. If the deceased was the one who executed the will, and was
not forced, the dates and the signature should appear at the bottom after the dispositions, as
regularly done and not after every disposition. And assuming that the holographic will is in the
handwriting of the deceased, it was procured by undue and improper pressure and influence on
the part of the beneficiaries, or through fraud and trickery.chanrobles law library

Respondents presented six (6) witnesses and various documentary evidence. Petitioners instead
of presenting their evidence, filed a demurrer 6 to evidence, claiming that respondents failed to
establish sufficient factual and legal basis for the probate of the holographic will of the deceased
Matilde Seño Vda. de Ramonal.

On November 26, 1990, the lower Court issued an order, the dispositive portion of which
reads:jgc:chanrobles.com.ph

"WHEREFORE, in view of the foregoing consideration, the Demurrer to Evidence having being
well taken, same is granted, and the petition for probate of the document (Exhibit "S") on the
purported Holographic Will of the late Matilde Seño Vda. de Ramonal, is denied for insufficiency
of evidence and lack of merits." 7

On December 12, 1990, respondents filed a notice of appeal, 8 and in support of their appeal,
the respondents once again reiterated the testimony of the following witnesses, namely: (1)
Augusto Neri; (2) Generosa Senon; (3) Matilde Ramonal Binanay; (4) Teresita Vedad; (5) Fiscal
Rodolfo Waga; and (6) Evangeline Calugay.

To have a clear understanding of the testimonies of the witnesses, we recite an account of their
testimonies.

Augusto Neri, Clerk of Court, Court of First Instance of Misamis Oriental, where the special
proceedings for the probate of the holographic will of the deceased was filed. He produced and
identified the records of the case. The documents presented bear the signature of the deceased,
Matilde Seño Vda. de Ramonal, for the purpose of laying the basis for comparison of the
handwriting of the testatrix, with the writing treated or admitted as genuine by the party against
whom the evidence is offered.

Generosa Senon, election registrar of Cagayan de Oro, was presented to produce and identify
the voter’s affidavit of the decedent. However, the voters’ affidavit was not produced for the
same was already destroyed and no longer available.

Matilde Ramonal Binanay, testified that the deceased Matilde Seño Vda. de Ramonal was her
aunt, and that after the death of Matilde’s husband, the latter lived with her in her parent’s
house for eleven (11) years, from 1958 to 1969. During those eleven (11) years of close
association with the deceased, she acquired familiarity with her signature and handwriting as
she used to accompany her (deceased Matilde Seño Vda. de Ramonal) in collecting rentals from
her various tenants of commercial buildings, and the deceased always issued receipts. In
addition to this, she (witness Matilde Binanay) assisted the deceased in posting the records of
the accounts, and carried personal letters of the deceased to her creditors.chanrobles.com:cralaw:red

Matilde Ramonal Binanay further testified that at the time of the death of Matilde Vda. de
Ramonal, she left a holographic will dated August 30, 1978, which was personally and entirely
written, dated and signed, by the deceased and that all the dispositions therein, the dates, and
the signatures in said will, were that of the deceased.

Fiscal Rodolfo Waga testified that before he was appointed City Fiscal of Cagayan de Oro, he was
a practicing lawyer, and handled all the pleadings and documents signed by the deceased in
connection with the intestate proceedings of her late husband, as a result of which he is familiar
with the handwriting of the latter. He testified that the signature appearing in the holographic
will was similar to that of the deceased, Matilde Seño Vda. de Ramonal, but he can not be sure.

The fifth witness presented was Mrs. Teresita Vedad, an employee of the Department of
Environment and Natural Resources, Region 10. She testified that she processed the application
of the deceased for pasture permit and was familiar with the signature of the deceased, since
the deceased signed documents in her presence, when the latter was applying for pasture
permit.

Finally, Evangeline Calugay, one of the respondents, testified that she had lived with the
deceased since birth, and was in fact adopted by the latter. That after a long period of time she
became familiar with the signature of the deceased. She testified that the signature appearing in
the holographic will is the true and genuine signature of Matilde Seño Vda. de Ramonal. chanrobles law library

The holographic will which was written in Visayan, is translated in English as follows: jgc:chanrobles.com.ph

"Instruction

"August 30, 1978

"1. My share at Cogon, Raminal Street, for Evangeline Calugay.

"(Sgd) Matilde Vda de Ramonal

"August 30, 1978

"2. Josefina Salcedo must be given 1,500 square meters at Pinikitan Street.

"(Sgd) Matilde Vda de Ramonal

"August 30, 1978

"3. My jewelry’s shall be divided among: jgc:chanrobles.com.ph

"1. Eufemia Patigas

"2. Josefina Salcedo

"3. Evangeline Calugay

"(Sgd) Matilde Vda de Ramonal

"August 30, 1978

"4. I bequeath my one (1) hectare land at Mandumol, Indahag to Evangeline R. Calugay

"(Sgd) Matilde Vda de Ramonal

"August 30, 1978

"5. Give the 2,500 Square Meters at Sta. Cruz Ramonal Village in favor of Evangeline R.
Calugay, Helen must continue with the Sta. Cruz, once I am no longer around.

"(Sgd) Matilde Vda de Ramonal

"August 30, 1978

"6. Bury me where my husband Justo is ever buried.

"(Sgd) Matilde Vda de Ramonal

"August 30, 1978

"Gene and Manuel: jgc:chanrobles.com.ph

"Follow my instruction in order that I will rest peacefully.

"Mama

"Matilde Vda de Ramonal

On October 9, 1995, the Court of Appeals, rendered decision 9 ruling that the appeal was
meritorious. Citing the decision in the case of Azaola v. Singson, 109 Phil. 102, penned by Mr.
Justice J. B. L. Reyes, a recognized authority in civil law, the Court of Appeals held: jgc:chanrobles.com.ph

". . . even if the genuineness of the holographic will were contested, we are of the opinion that
Article 811 of our present civil code can not be interpreted as to require the compulsory
presentation of three witnesses to identify the handwriting of the testator, under penalty of
having the probate denied. Since no witness may have been present at the execution of the
holographic will, none being required by law (art. 810, new civil code), it becomes obvious that
the existence of witnesses possessing the requisite qualifications is a matter beyond the control
of the proponent. For it is not merely a question of finding and producing any three witnesses;
they must be witnesses "who know the handwriting and signature of the testator" and who can
declare (truthfully, of course, even if the law does not express) "that the will and the signature
are in the handwriting of the testator." There may be no available witness acquainted with the
testator’s hand; or even if so familiarized, the witness may be unwilling to give a positive
opinion. Compliance with the rule of paragraph 1 of article 811 may thus become an
impossibility. That is evidently the reason why the second paragraph of article 811 prescribes
that —

"in the absence of any competent witness referred to in the preceding paragraph, and if the
court deems it necessary, expert testimony may be resorted to." cralaw virtua1aw library

"As can be seen, the law foresees the possibility that no qualified witness may be found (or what
amounts to the same thing, that no competent witness may be willing to testify to the
authenticity of the will), and provides for resort to expert evidence to supply the deficiency. chanrobles virtual lawlibrary

"It may be true that the rule of this article (requiring that three witnesses be presented if the
will is contested and only one if no contest is had) was derived from the rule established for
ordinary testaments (CF Cabang v. Delfinado, 45 PHIL 291; Tolentino v. Francisco, 57 PHIL
742). But it can not be ignored that the requirement can be considered mandatory only in case
of ordinary testaments, precisely because the presence of at least three witnesses at the
execution of ordinary wills is made by law essential to their validity (Art. 805). Where the will is
holographic, no witness need be present (Art. 10), and the rule requiring production of three
witnesses must be deemed merely permissive if absurd results are to be avoided.

"Again, under Art. 811, the resort to expert evidence is conditioned by the words "if the court
deem it necessary", which reveal that what the law deems essential is that the court should be
convinced of the will’s authenticity. Where the prescribed number of witnesses is produced and
the court is convinced by their testimony that the will is genuine, it may consider it unnecessary
to call for expert evidence. On the other hand, if no competent witness is available, or none of
those produced is convincing, the court may still, and in fact it should resort to handwriting
experts. The duty of the court, in fine, is to exhaust all available lines of inquiry, for the state is
as much interested as the proponent that the true intention of the testator be carried into effect.

"Paraphrasing Azaola v. Singson, even if the genuineness of the holographic will were contested,
Article 811 of the civil code cannot be interpreted as to require the compulsory presentation of
three witnesses to identify the handwriting of the testator, under penalty of the having the
probate denied. No witness need be present in the execution of the holographic will. And the rule
requiring the production of three witnesses is merely permissive. What the law deems essential
is that the court is convinced of the authenticity of the will. Its duty is to exhaust all available
lines of inquiry, for the state is as much interested in the proponent that the true intention of the
testator be carried into effect. And because the law leaves it to the trial court to decide if experts
are still needed, no unfavorable inference can be drawn from a party’s failure to offer expert
evidence, until and unless the court expresses dissatisfaction with the testimony of the lay
witnesses. 10

According to the Court of Appeals, Evangeline Calugay, Matilde Ramonal Binanay and other
witnesses definitely and in no uncertain terms testified that the handwriting and signature in the
holographic will were those of the testator herself.

Thus, upon the unrebutted testimony of appellant Evangeline Calugay and witness Matilde
Ramonal Binanay, the Court of Appeals sustained the authenticity of the holographic will and the
handwriting and signature therein, and allowed the will to probate. chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph

Hence, this petition.

The petitioners raise the following issues: chanrob1es virtual 1aw library

(1) Whether or not the ruling of the case of Azaola v. Singson, 109 Phil. 102, relied upon by the
respondent Court of Appeals, was applicable to the case.

(2) Whether or not the Court of Appeals erred in holding that private respondents had been able
to present credible evidence to prove that the date, text, and signature on the holographic will
were written entirely in the hand of the testatrix.

(3) Whether or not the Court of Appeals erred in not analyzing the signatures in the holographic
will of Matilde Seño Vda. de Ramonal.

In this petition, the petitioners ask whether the provisions of Article 811 of the Civil Code are
permissive or mandatory. The article provides, as a requirement for the probate of a contested
holographic will, that at least three witnesses explicitly declare that the signature in the will is
the genuine signature of the testator.

We are convinced, based on the language used, that Article 811 of the Civil Code is mandatory.
The word "shall" connotes a mandatory order. We have ruled that "shall" in a statute commonly
denotes an imperative obligation and is inconsistent with the idea of discretion and that the
presumption is that the word "shall," when used in a statute is mandatory." 11

Laws are enacted to achieve a goal intended and to guide against an evil or mischief that aims
to prevent. In the case at bar, the goal to achieve is to give effect to the wishes of the deceased
and the evil to be prevented is the possibility that unscrupulous individuals who for their benefit
will employ means to defeat the wishes of the testator.

So, we believe that the paramount consideration in the present petition is to determine the true
intent of the deceased. An exhaustive and objective consideration of the evidence is imperative
to establish the true intent of the testator.
chanrobles law library : red

It will be noted that not all the witnesses presented by the respondents testified explicitly that
they were familiar with the handwriting of the testator. In the case of Augusto Neri, clerk of
court, Court of First Instance, Misamis Oriental, he merely identified the record of Special
Proceedings No. 427 before said court. He was not presented to declare explicitly that the
signature appearing in the holographic was that of the deceased.

Generosa E. Senon, the election registrar of Cagayan de Oro City, was presented to identify the
signature of the deceased in the voters’ affidavit, which was not even produced as it was no
longer available.

Matilde Ramonal Binanay, on the other hand, testified that: chanrob1es virtual 1aw library

Q. And you said for eleven (11) years Matilde Vda de Ramonal resided with your parents at
Pinikitan, Cagayan de Oro City. Would you tell the court what was your occupation or how did
Matilde Vda de Ramonal keep herself busy that time?

A. Collecting rentals.

Q. From where?

A. From the land rentals and commercial buildings at Pabayo-Gomez streets. 12

x x x

Q. Who sometime accompany her?

A. I sometimes accompany her

Q. In collecting rentals does she issue receipts?

A. Yes, sir. 13
 x x x

Q. Showing to you the receipt dated 23 October 1979, is this the one you are referring to as one
of the receipts which she issued to them?

A. Yes, sir.

Q. Now there is that signature of Matilde vda. De Ramonal, whose signature is that Mrs.
Binanay?

A. Matilde vda. De Ramonal.

Q. Why do you say that is a signature of Matilde vda. De Ramonal?

A. I am familiar with her signature.

Q. Now, you tell the court Mrs. Binanay, whether you know Matilde vda de Ramonal kept records
of the accounts of her tenants?

A. Yes, sir.

Q. Why do you say so?

A. Because we sometimes post a record of accounts in behalf of Matilde Vda. De Ramonal.

Q. How is this record of accounts made? How is this reflected?

A. In handwritten. 14

x x x

Q. In addition to collection of rentals, posting records of accounts of tenants and deed of sale
which you said what else did you do to acquire familiarity of the signature of Matilde Vda De
Ramonal? chanrobles.com : virtual law library

A. Posting records.

Q. Aside from that?

A. Carrying letters.

Q. Letters of whom?

A. Matilde

Q. To whom?

A. To her creditors. 15

x x x
Q. You testified that at the time of her death she left a will. I am showing to you a document
with its title "tugon" is this the document you are referring to?

A. Yes, sir.

Q. Showing to you this exhibit "S", there is that handwritten "tugon", whose handwriting is this?

A. My aunt.

Q. Why do you say this is the handwriting of your aunt?

A. Because I am familiar with her signature. 16

What Ms. Binanay saw were pre-prepared receipts and letters of the deceased, which she either
mailed or gave to her tenants. She did not declare that she saw the deceased sign a document
or write a note. chanrobles virtual lawlibrary

Further, during the cross-examination, the counsel for petitioners elicited the fact that the will
was not found in the personal belongings of the deceased but was in the possession of Ms.
Binanay. She testified that: chanrob1es virtual 1aw library

Q. Mrs. Binanay, when you were asked by counsel for the petitioners if the late Matilde Seno vda
de Ramonal left a will you said, yes?

A. Yes, sir.

Q. Who was in possession of that will?

A. I.

Q. Since when did you have the possession of the will?

A. It was in my mother’s possession.

Q. So, it was not in your possession?

A. Sorry, yes.

Q. And when did you come into possession since as you said this was originally in the possession
of your mother?

A. 1985. 17

x x x

Q. Now, Mrs. Binanay was there any particular reason why your mother left that will to you and
therefore you have that in your possession?

A. It was not given to me by my mother, I took that in the aparador when she died.

Q. After taking that document you kept it with you?

A. I presented it to the fiscal.

Q. For what purpose?

A. Just to seek advice.

Q. Advice of what?

A. About the will. 18

In her testimony it was also evident that Ms. Binanay kept the fact about the will from
petitioners, the legally adopted children of the deceased. Such actions put in issue her motive of
keeping the will a secret to petitioners and revealing it only after the death of Matilde Seño Vda.
de Ramonal. chanrobles virtual lawlibrary

In the testimony of Ms. Binanay, the following were established: chanrob1es virtual 1aw library

Q. Now, in 1978 Matilde Seno Vda de Ramonal was not yet a sickly person is that correct?

A. Yes, sir.

Q. She was up and about and was still uprightly and she could walk agilely and she could go to
her building to collect rentals, is that correct?

A. Yes, sir. 19

x x x

Q. Now, let us go to the third signature of Matilde Ramonal. Do you know that there are
retracings in the word Vda.?

A. Yes, a little. The letter L is continuous.

Q. And also in Matilde the letter L is continued to letter D?

A. Yes, sir.

Q. Again the third signature of Matilde Vda de Ramonal the letter L in Matilde is continued
towards letter D.

A. Yes, sir.

Q. And there is a retracing in the word Vda.?

A. Yes, sir. 20

x x x

Q. Now, that was 1979, remember one year after the alleged holographic will. Now, you
identified a document marked as Exhibit R. This is dated January 8,1978 which is only about
eight months from August 30,1978. Do you notice that the signature Matilde Vda de Ramonal is
beautifully written and legible?
A. Yes, sir the handwriting shows that she was very exhausted.

Q. You just say that she was very exhausted while that in 1978 she was healthy was not sickly
and she was agile. Now, you said she was exhausted? cralawnad

A. In writing.

Q. How did you know that she was exhausted when you were not present and you just tried to
explain yourself out because of the apparent inconsistencies?

A. That was I think. (sic)

Q. Now, you already observed this signature dated 1978, the same year as the alleged
holographic will. In exhibit I, you will notice that there is no retracing; there is no hesitancy and
the signature was written on a fluid movement. . . . And in fact , the name Eufemia R. Patigas
here refers to one of the petitioners?

A. Yes, sir.

Q. You will also notice Mrs. Binanay that it is not only with the questioned signature appearing in
the alleged holographic will marked as Exhibit X but in the handwriting themselves, here you will
notice the hesitancy and tremors, do you notice that?

A. Yes, sir. 21

Evangeline Calugay declared that the holographic will was written, dated and signed in the
handwriting of the testator. She testified that:chanrob1es virtual 1aw library

Q. You testified that you stayed with the house of the spouses Matilde and Justo Ramonal for the
period of 22 years. Could you tell the court the services if any which you rendered to Matilde
Ramonal?

A. During my stay I used to go with her to the church, to the market and then to her
transactions.

Q. What else? What services that you rendered?

A. After my college days I assisted her in going to the bank, paying taxes and to her lawyer.

Q. What was your purpose of going to her lawyer?

A. I used to be her personal driver.

Q. In the course of your stay for 22 years did you acquire familiarity of the handwriting of
Matilde Vda de Ramonal?

A. Yes, sir.

Q. How come that you acquired familiarity?

A. Because I lived with her since birth. 22

 x x x

Q. Now, I am showing to you Exhibit S which is captioned "tugon" dated August 30, 1978 there
is a signature here below item No. 1, will you tell this court whose signature is this? chanroblesvirtual|awlibrary

A. Yes, sir, that is her signature.

Q. Why do you say that is her signature?

A. I am familiar with her signature. 23

So, the only reason that Evangeline can give as to why she was familiar with the handwriting of
the deceased was because she lived with her since birth. She never declared that she saw the
deceased write a note or sign a document.

The former lawyer of the deceased, Fiscal Waga, testified that: chanrob1es virtual 1aw library

Q. Do you know Matilde Vda de Ramonal?

A. Yes, sir I know her because she is my godmother the husband is my godfather. Actually I am
related to the husband by consanguinity.

Q. Can you tell the name of the husband?

A. The late husband is Justo Ramonal. 24

x x x

Q. Can you tell this court whether the spouses Justo Ramonal and Matilde Ramonal have
legitimate children?

A. As far as I know they have no legitimate children.25 cralaw:red

x x x

Q. You said after becoming a lawyer you practice your profession? Where?

A. Here in Cagayan de Oro City.

Q. Do you have services rendered with the deceased Matilde vda de Ramonal?

A. I assisted her in terminating the partition, of properties.

Q. When you said assisted, you acted as her counsel? Any sort of counsel as in what case is
that, Fiscal?

A. It is about the project partition to terminate the property, which was under the court before.
26

x x x
Q. Appearing in special proceeding no. 427 is the amended inventory which is marked as exhibit
N of the estate of Justo Ramonal and there appears a signature over the type written word
Matilde vda de Ramonal, whose signature is this? chanrobles law library

A. That is the signature of Matilde Vda de Ramonal.

Q. Also in exhibit n-3, whose signature is this?

A. This one here that is the signature of Mrs. Matilde vda de Ramonal. 27

x x x

Q. Aside from attending as counsel in that Special Proceeding Case No. 427 what were the other
assistance wherein you were rendering professional service to the deceased Matilde Vda de
Ramonal?

A. I can not remember if I have assisted her in other matters but if there are documents to show
that I have assisted then I can recall. 28

x x x

Q. Now, I am showing to you exhibit S which is titled "tugon", kindly go over this document,
Fiscal Waga and tell the court whether you are familiar with the handwriting contained in that
document marked as exhibit "S" ?

A. I am not familiar with the handwriting.

Q. This one, Matilde Vda de Ramonal, whose signature is this?

A. I think this signature here it seems to be the signature of Mrs. Matilde vda de Ramonal.

Q. Now, in item No. 2 there is that signature here of Matilde Vda de Ramonal, can you tell the
court whose signature is this?

A. Well, that is similar to that signature appearing in the project of partition.

Q. Also in item no. 3 there is that signature Matilde Vda de Ramonal, can you tell the court
whose signature is that?

A. As I said, this signature also seems to be the signature of Matilde vda de Ramonal. chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph

Q. Why do you say that?

A. Because there is a similarity in the way it is being written.

Q. How about this signature in item no. 4, can you tell the court whose signature is this?

A. The same is true with the signature in item no. 4. It seems that they are similar. 29

x x x
Q. Mr. Prosecutor, I heard you when you said that the signature of Matilde Vda de Ramonal
Appearing in exhibit S seems to be the signature of Matilde vda de Ramonal?

A. Yes, it is similar to the project of partition.

Q. So you are not definite that this is the signature of Matilde vda de Ramonal. You are merely
supposing that it seems to be her signature because it is similar to the signature of the project
of partition which you have made?

A. That is true. 30

From the testimonies of these witnesses, the Court of Appeals allowed the will to probate and
disregard the requirement of three witnesses in case of contested holographic will, citing the
decision in Azaola v. Singson, 31 ruling that the requirement is merely directory and not
mandatory. chanrobles law library : red

In the case of Ajero v. Court of Appeals, 32 we said 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."
cralaw virtua1aw library

However, we cannot eliminate the possibility of a false document being adjudged as the will of
the testator, which is why if the holographic will is contested, that law requires three witnesses
to declare that the will was in the handwriting of the deceased.

The will was found not in the personal belongings of the deceased but with one of the
respondents, who kept it even before the death of the deceased. In the testimony of Ms.
Binanay, she revealed that the will was in her possession as early as 1985, or five years before
the death of the deceased. cralawnad

There was no opportunity for an expert to compare the signature and the handwriting of the
deceased with other documents signed and executed by her during her lifetime. The only chance
at comparison was during the cross-examination of Ms. Binanay when the lawyer of petitioners
asked Ms. Binanay to compare the documents which contained the signature of the deceased
with that of the holographic will and she is not a handwriting expert. Even the former lawyer of
the deceased expressed doubts as to the authenticity of the signature in the holographic will.

A visual examination of the holographic will convince us that the strokes are different when
compared with other documents written by the testator. The signature of the testator in some of
the disposition is not readable. There were uneven strokes, retracing and erasures on the will.

Comparing the signature in the holographic will dated August 30, 1978, 33 and the signatures in
several documents such as the application letter for pasture permit dated December 30, 1980,
34 and a letter dated June 16, 1978, 35 the strokes are different. In the letters, there are
continuous flows of the strokes, evidencing that there is no hesitation in writing unlike that of
the holographic will. We, therefore, cannot be certain that the holographic will was in the
handwriting by the deceased.

IN VIEW WHEREOF, the decision appealed from is SET ASIDE. The records are ordered
remanded to the court of origin with instructions to allow petitioners to adduce evidence in
support of their opposition to the probate of the holographic will of the deceased Matilde Seño
Vda. de Ramonal. chanroblesvirtual|awlibrary

No costs.

SO ORDERED.

G.R. No. 176831 January 15, 2010

UY KIAO ENG, Petitioner,

vs.
NIXON LEE, Respondent.

DECISION

NACHURA, J.:

Before the Court is a petition for review on certiorari under Rule 45 of the Rules of Court, assailing the August
23, 2006 Amended Decision1 of the Court of Appeals (CA) in CA-G.R. SP No. 91725 and the February 23,
2007 Resolution,2 denying the motion for reconsideration thereof.

The relevant facts and proceedings follow.

Alleging that his father passed away on June 22, 1992 in Manila and left a holographic will, which is now in the
custody of petitioner Uy Kiao Eng, his mother, respondent Nixon Lee filed, on May 28, 2001, a petition for
mandamus with damages, docketed as Civil Case No. 01100939, before the Regional Trial Court (RTC) of
Manila, to compel petitioner to produce the will so that probate proceedings for the allowance thereof could be
instituted. Allegedly, respondent had already requested his mother to settle and liquidate the patriarch’s estate
and to deliver to the legal heirs their respective inheritance, but petitioner refused to do so without any
justifiable reason.3

In her answer with counterclaim, petitioner traversed the allegations in the complaint and posited that the same
be dismissed for failure to state a cause of action, for lack of cause of action, and for non-compliance with a
condition precedent for the filing thereof. Petitioner denied that she was in custody of the original holographic
will and that she knew of its whereabouts. She, moreover, asserted that photocopies of the will were given to
respondent and to his siblings. As a matter of fact, respondent was able to introduce, as an exhibit, a copy of
the will in Civil Case No. 224-V-00 before the RTC of Valenzuela City. Petitioner further contended that
respondent should have first exerted earnest efforts to amicably settle the controversy with her before he filed
the suit.4

The RTC heard the case. After the presentation and formal offer of respondent’s evidence, petitioner
demurred, contending that her son failed to prove that she had in her custody the original holographic will.
Importantly, she asserted that the pieces of documentary evidence presented, aside from being hearsay, were
all immaterial and irrelevant to the issue involved in the petition—they did not prove or disprove that she
unlawfully neglected the performance of an act which the law specifically enjoined as a duty resulting from an
office, trust or station, for the court to issue the writ of mandamus. 5

The RTC, at first, denied the demurrer to evidence.6 In its February 4, 2005 Order,7 however, it granted the
same on petitioner’s motion for reconsideration. Respondent’s motion for reconsideration of this latter order
was denied on September 20, 2005.8 Hence, the petition was dismissed.

Aggrieved, respondent sought review from the appellate court. On April 26, 2006, the CA initially denied the
appeal for lack of merit. It ruled that the writ of mandamus would issue only in instances when no other remedy
would be available and sufficient to afford redress. Under Rule 76, in an action for the settlement of the estate
of his deceased father, respondent could ask for the presentation or production and for the approval or probate
of the holographic will. The CA further ruled that respondent, in the proceedings before the trial court, failed to
present sufficient evidence to prove that his mother had in her custody the original copy of the will. 9 1avvphi1

Respondent moved for reconsideration. The appellate court, in the assailed August 23, 2006 Amended
Decision,10 granted the motion, set aside its earlier ruling, issued the writ, and ordered the production of the will
and the payment of attorney’s fees. It ruled this time that respondent was able to show by testimonial evidence
that his mother had in her possession the holographic will.

Dissatisfied with this turn of events, petitioner filed a motion for reconsideration. The appellate court denied this
motion in the further assailed February 23, 2007 Resolution.11

Left with no other recourse, petitioner brought the matter before this Court, contending in the main that the
petition for mandamus is not the proper remedy and that the testimonial evidence used by the appellate court
as basis for its ruling is inadmissible.12

The Court cannot sustain the CA’s issuance of the writ.

The first paragraph of Section 3 of Rule 65 of the Rules of Court pertinently provides that—

SEC. 3. Petition for mandamus.—When any tribunal, corporation, board, officer or person unlawfully neglects
the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station,
or unlawfully excludes another from the use and enjoyment of a right or office to which such other is entitled,
and there is no other plain, speedy and adequate remedy in the ordinary course of law, the person aggrieved
thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that
judgment be rendered commanding the respondent, immediately or at some other time to be specified by the
court, to do the act required to be done to protect the rights of the petitioner, and to pay the damages sustained
by the petitioner by reason of the wrongful acts of the respondent.13

Mandamus is a command issuing from a court of law of competent jurisdiction, in the name of the state or the
sovereign, directed to some inferior court, tribunal, or board, or to some corporation or person requiring the
performance of a particular duty therein specified, which duty results from the official station of the party to
whom the writ is directed or from operation of law.14 This definition recognizes the public character of the
remedy, and clearly excludes the idea that it may be resorted to for the purpose of enforcing the performance
of duties in which the public has no interest.15 The writ is a proper recourse for citizens who seek to enforce a
public right and to compel the performance of a public duty, most especially when the public right involved is
mandated by the Constitution.16 As the quoted provision instructs, mandamus will lie if the tribunal, corporation,
board, officer, or person unlawfully neglects the performance of an act which the law enjoins as a duty resulting
from an office, trust or station.17

The writ of mandamus, however, will not issue to compel an official to do anything which is not his duty to do or
which it is his duty not to do, or to give to the applicant anything to which he is not entitled by law.18 Nor will
mandamus issue to enforce a right which is in substantial dispute or as to which a substantial doubt exists,
although objection raising a mere technical question will be disregarded if the right is clear and the case is
meritorious.19 As a rule, mandamus will not lie in the absence of any of the following grounds: [a] that the court,
officer, board, or person against whom the action is taken unlawfully neglected the performance of an act
which the law specifically enjoins as a duty resulting from office, trust, or station; or [b] that such court, officer,
board, or person has unlawfully excluded petitioner/relator from the use and enjoyment of a right or office to
which he is entitled.20 On the part of the relator, it is essential to the issuance of a writ of mandamus that he
should have a clear legal right to the thing demanded and it must be the imperative duty of respondent to
perform the act required.21

Recognized further in this jurisdiction is the principle that mandamus cannot be used to enforce contractual
obligations.22 Generally, mandamus will not lie to enforce purely private contract rights, and will not lie against
an individual unless some obligation in the nature of a public or quasi-public duty is imposed.23 The writ is not
appropriate to enforce a private right against an individual.24 The writ of mandamus lies to enforce the
execution of an act, when, otherwise, justice would be obstructed; and, regularly, issues only in cases relating
to the public and to the government; hence, it is called a prerogative writ.25 To preserve its prerogative
character, mandamus is not used for the redress of private wrongs, but only in matters relating to the public. 26

Moreover, an important principle followed in the issuance of the writ is that there should be no plain, speedy
and adequate remedy in the ordinary course of law other than the remedy of mandamus being invoked. 27 In
other words, mandamus can be issued only in cases where the usual modes of procedure and forms of
remedy are powerless to afford relief.28 Although classified as a legal remedy, mandamus is equitable in its
nature and its issuance is generally controlled by equitable principles.29 Indeed, the grant of the writ of
mandamus lies in the sound discretion of the court.

In the instant case, the Court, without unnecessarily ascertaining whether the obligation involved here—the
production of the original holographic will—is in the nature of a public or a private duty, rules that the remedy of
mandamus cannot be availed of by respondent Lee because there lies another plain, speedy and adequate
remedy in the ordinary course of law. Let it be noted that respondent has a photocopy of the will and that he
seeks the production of the original for purposes of probate. The Rules of Court, however, does not prevent
him from instituting probate proceedings for the allowance of the will whether the same is in his possession or
not. Rule 76, Section 1 relevantly provides:

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.

An adequate remedy is further provided by Rule 75, Sections 2 to 5, for the production of the original
holographic will. Thus—

SEC. 2. Custodian of will to deliver.—The person who has custody of a will shall, within twenty (20) days after
he knows of the death of the testator, deliver the will to the court having jurisdiction, or to the executor named
in the will.

SEC. 3. Executor to present will and accept or refuse trust.—A person named as executor in a will shall within
twenty (20) days after he knows of the death of the testator, or within twenty (20) days after he knows that he is
named executor if he obtained such knowledge after the death of the testator, present such will to the court
having jurisdiction, unless the will has reached the court in any other manner, and shall, within such period,
signify to the court in writing his acceptance of the trust or his refusal to accept it.

SEC. 4. Custodian and executor subject to fine for neglect.—A person who neglects any of the duties required
in the two last preceding sections without excuse satisfactory to the court shall be fined not exceeding two
thousand pesos.

SEC. 5. Person retaining will may be committed.—A person having custody of a will after the death of the
testator who neglects without reasonable cause to deliver the same, when ordered so to do, to the court having
jurisdiction, may be committed to prison and there kept until he delivers the will.30

There being a plain, speedy and adequate remedy in the ordinary course of law for the production of the
subject will, the remedy of mandamus cannot be availed of. Suffice it to state that respondent Lee lacks a
cause of action in his petition. Thus, the Court grants the demurrer.

WHEREFORE, premises considered, the petition for review on certiorari is GRANTED. The August 23, 2006
Amended Decision and the February 23, 2007 Resolution of the Court of Appeals in CA-G.R. SP No. 91725
are REVERSED and SET ASIDE. Civil Case No. 01100939 before the Regional Trial Court of Manila is
DISMISSED.
SO ORDERED.

G.R. No. 209651 November 26, 2014

MARCELO INVESTMENT AND MANAGEMENT CORPORATION, and THE HEIRS OF EDWARD T.

MARCELO, NAMELY, KATHERINE J. MARCELO, ANNA MELINDA J. MARCELO REVILLA, and JOHN
STEVEN J. MARCELO, Petitioners,
vs.
JOSE T. MARCELO, JR., Respondent.

DECISION

PEREZ, J.:

The vesting of succession rights on the heirs upon the death of the decedent gives occasion for the baring of
sibling disaccords right at the onset of the estate proceedings which is the determination of the administrator of
the decedent's estate. In such instances, the liquidation, partition and distribution of the decedent's estate is
prolonged and the issue of administration becomes, contrary to its very objective, itself the hindrance to the
ultimate goal of settlement of the decedent's estate. We catch a glimpse of that in this case.

Before us is a petition for review on certiorari under Rule 45 of the Rules of Court assailing the 24 May 2013
Decision of the Court of Appeals in CA-G.R. CV No. 952191 which affirmed the Order2 of the Regional Trial
Court (RTC), Branch 76, Quezon City appointing respondent Jose T. Marcelo, Jr. (Jose, Jr.) as the new regular
administrator of the intestate estate of decedent Jose T. Marcelo, Sr.

The facts herein occurred in two stages: (1) the first litigation between two of Jose Marcelo, Sr.’s (Jose, Sr.)
compulsory heirs, his sons, Edward, (ascendant of herein petitioners, heirs of Edward T. Marcelo, Katherine J.
Marcelo, Anna Melinda J. Marcelo Revilla, and John Steven J. Marcelo) and respondent Jose, Jr., for the
appointment of regular administrator of Jose, Sr.’s estate; and (2) after Edward was appointed regular
administrator of Jose, Sr.’s estate and Edward’s death in 2009, respondent Jose, Jr.’s revival of his pursuit to
administer his father’s, Jose, Sr.’s, estate. These details of these stages follow:

On 24 August 1987, decedent Jose, Sr. died intestate. He was survived by his four compulsory heirs: (1)
Edward, (2) George, (3) Helen and (4) respondent Jose, Jr.

Initially, petitioner Marcelo Investment and Management Corporation (MIMCO) filed a Petition for the issuance
of Letters of Administration of the estate of Jose, Sr. before the RTC, Branch 76, Quezon City docketed as
S.P. Proc. No. Q-88-1448. At first, Helen, along with her brother, Jose, Jr. separately opposed MIMCO’s
petition; the two prayed for their respective appointment as administrator. Edward opposed Helen’s and Jose,
Jr.’s respective petitions for issuance of Letters of Administration in their favor and Edward himself prayed for
his appointment as regular administrator. Ultimately, MIMCO, George and Edward banded together: (1)
opposed Helen’s and Jose, Jr.’s petitions, and (2) prayed for Edward’s appointment as regular administrator of
Jose, Sr.’s estate.

On 21 September 1989, pending issuance of letters of administration, the RTC appointed Helen and Jose, Jr.
as special administrators.

In an Order dated 13 December 1991, the RTC appointed Edward as regular administrator of Jose, Sr.’s
estate:

WHEREFORE, PREMISES CONSIDERED, this Court resolves as it hereby resolves to appoint Edward T.
Marcelo as the Regular Administrator of the estate of the late Jose P. Marcelo, Sr. upon the posting of a bond
amounting to THREE HUNDRED THOUSAND PESOS (₱300,000.00). The aforementioned appointment shall
take effect upon his oath as such and conditioned by a bond of ₱300,000.00 which shall insure the fidelity of
the said regular administrator in the performance of his duties and obligations as such. 3
Taking issue with the RTC’s Order and questioning Edward’s appointment, Jose, Jr. filed successive
oppugnant motions: (1) motion for reconsideration of the 13 December 1991 Order; and (2) omnibus motion
alleging the RTC Acting Presiding Judge Efren N. Ambrosio’s (Judge Ambrocio) unusual interest and
unduehaste in issuing letters of administration in favor of Edward.

In an Order dated 12 March 1992, the RTC, through Judge Ambrosio, denied Jose, Jr.’s motion for
reconsideration:

WHEREFORE, prescinding from the foregoing, and fortified by the balm of clear judicial conscience, the herein
motion is hereby denied. The letters of administration under date of March 4, 1992 issued in favor of Edward T.
Marcelo is maintained with full force and effect. The letters testamentary issued in favor of Special
Administrator, Jose T. Marcelo, Jr. under date of October 2, 1989 as well as the bond posted by him are
hereby ordered cancelled. Likewise, the Special Administrator, Jose T. Marcelo, Jr. is hereby ordered to
forthwith deliver to the regular administrator the goods, chattels, money and estate of the deceased in his
hands.4

In the same vein of denial, the RTC ruled on the Omnibus Motion, thus:

After a re-examination of the evidence adduced by the parties and a consideration of the arguments raised in
the aforecited pleadings, this court arrived at a conclusion that no substantial error was committed by then
Acting Presiding Judge Edren N. Ambrosio which would warrant a reversal of the questioned orders, namely,
the order dated December 13, 1991 and March 12, 1992.5

Adamant on his competence to better administer his father’s estate, Jose, Jr. appealed Edward’s appointment
as regular administrator to the Court of Appeals in CA-G.R. CV No. 43674. However, the appellate court
affirmed in toto6 the Orders dated 1 October 1993, 13 December 1991 and 12 March 1992 of the intestate
court.

The question of who between Edwardand Jose, Jr. should administer their father’s estate reached us in G.R.
No. 123883 (Jose Marcelo, Jr. v. Court of Appeals and Edward Marcelo): we did not find reversible error in the
appellate court’s decision in CA-G.R. CV No. 43674. We disposed of the case via a Minute Resolution dated
22 May 1996,7 ultimately affirming the RTC’s and the appellate court’s separate rulings of Edward’s
competence and better suited ability to actas regular administrator of Jose, Sr.’s estate.

Thereafter, Jose, Jr. persistently opposed Edward’s actions as administrator and his inventory of Jose, Sr.’s
estate. He filed anew serial motions which culminated in the following 23 June 2000 Order of the RTC:

After a careful study of the arguments raised by the parties in support of their respective claims, the Court finds
that the motion filed by oppositor [Jose, Jr.] is not well-taken.

Anent the submission of complete list of stockholders of all the Marcelo group of companies together with the
number and current par value of their respective shareholding, suffice it to say that as correctly pointed out by
regular administrator [Edward], the shares of stock of the decedent will be equally distributed to the heirs that
there is no necessity therefor.

Considering oppositor’s insistence on the submission by regular administrator of a true and updated list as well
as current market values of all real estate and personal properties of the decedent, the [c]ourt hereby directs
herein oppositor [Jose, Jr.] to inform the regular administrator of such data to aid the regular administrator in
the preparation of a complete and accurate inventory of the real and personal properties comprising the estate
of Jose, Sr.

As regards oppositor [Jose, Jr.’s] prayer for the submission by regular administrator of a true and complete
accounting of the subject corporations reckoned from the death of[Jose, Sr.] up to the present, the [c]ourt
likewise sees no need therefor as said corporations are not parties to the case and have separate and distinct
personalities from the stockholders.
With respect to the project ofpartition, it appears that regular administrator had already furnished oppositor
[Jose, Jr.] with a copy thereof. Considering however oppositor [Jose, Jr.’s] oral motion for regular administrator
to identify the heirs of the decedent and to secure their conformity to the project of partition, oppositor [Jose,
Jr.] is given ten (10) days from receipt of the project of partition bearing the conformity of the heirs within to
(sic) to comment thereon. Thereafter, the parties are directed to submit their project of partition for approval
and consideration of the [c]ourt.8 (Emphasis supplied)

On 15 January 2001, Edward filed a Manifestation and Motion stating that:

1. Oppositor [Jose, Jr.] now conforms to, and has accordingly signed, the attached "Liquidation of the
Inventory of the Estate of Jose P. Marcelo, Sr. as of July 26, 2000" x x x.

2. Regular Administrator [Edward]respectfully prays that the Liquidation, duly signed by all four (4)
compulsory heirs, be approved as the project of partition of the Estate of Jose P. Marcelo Sr. 9 and
moved for the approval of the Liquidation of the Inventory of the Estate of Jose, Sr. as the project of
partition of the Estate of Jose, Sr.

The project of partition reads:

LIQUIDATION OF THE INVENTORY OF THE

ESTATE OF JOSE P. MARCELO, SR.
AS OF JULY 26, 2000

I. SETTLEMENT OF THE CLAIMS AGAINST THE ESTATE (SCH IV)

Payables

1. Marcelo Chemical & Pigment Corp. P 1,556,002.06

2. Maria Cristina Fertilizer Corp. 797,487.00
3. Marcelo Rubber & Latex Products, Inc. 542,932.74
4. Marcelo Investment & Mgnt. Corp. 532,066.35
5. Marcelo Steel Corporation 1,108,252.19
6. H. Marcelo & Co., Inc. 2,356,684.99
TOTAL P 6,893,425.33

Considering that the Estateas of June 3, 1999 has no sufficient cash to pay-off the above claims of
₱6,893,425.33, I can work out an offsetting arrangement since the Estate has also receivables from these
companies as shown below:

SCH. III-A SCH. III-B

Shares of Stock Receivables Total

1. MCPC ₱337,018.00 P 0.00 P 337,018.00
2. MCFC 300,000.00 0.00 300,000.00
4. MIMCO 0.00 0.00 0.00
5. MSC 11,370.00 532,419.04 543,789.04
6. H. Marcelo 881,040.00 802,521.15 1,683,561.15
 TOTAL ₱2,818,008.00 P 4,930,440.19 ₱7,748,448.19

If the above receivables and equity with total value of ₱7,748,448.19 will be offset against the claims of
₱6,893,425.33 the net will show the following:

SCH. III-A & B SCH. IV

Equity & Net Claims

Companies Claims
Receivables (Receivables)
1. MCPC ₱337,018.00 ₱1,556,002.06 ₱1,218,984.06
2. MCFC 300,000.00 797,487.00 497,487.00
4. MIMCO 532,066.35 532,066.35
5. MSC 543,789.04 1,108,252.19 564,463.15
6. H. MARCELO & CO., Inc. 1,683,561.15 2,356,684.99 673,123.84
TOTAL ₱7,748,448.19 ₱6,893,425.33 P (855,022.86)

Based on the offsetting except for MRLP, which the Estate has net receivables of ₱4,341,147.26 there will
benet claims or payables of ₱3,486,124.40 as follows:

1. MCPC ₱1,218,984.06
2. MCFC 497,487.00
3. MIMCO 532,066.35
4. MSC 564,463.15
5. H. Marcelo & Co. 673,123.84
TOTAL ₱3,486,124.40

It is recommended that the net from MRLP of ₱4,341,147.26 be deducted to the above claims as shown below:

Net Receivables from MRLP ₱4,341,147.26

Net Claim 3,486,124.40
Net Receivables from MRLP P 855,022.86

II. After the claims are settled based on the above recommendation, the Estate will have the following assets
for distribution to the four (4) of us:

1. PCIB (to be updated) 3,099.81

2. Shares of Stocks No. Of Shares Amount
a. MTRC 12,874 ₱1,287,400.00
b. MRLP 85,502 855,022.86
c. Farmer Fertilizer Corp. 5,000 5,000.00
d. Republic Broadcasting System 18,054 18,054.00
 e.Seafront Resources 6,000,000 60,000.00
f. Industrial Finance 137 1,370.00
g. Astro Mineral 500,000 5,000.00
h. Sta. Mesa Market 42,105 42,105.00
i. Atlas Consolidated Mining 122 2,562.00
j. Phil. Long Distance Telephone 180 130,050.00
k. Jinico (Jabpract Minind) 2,500,000 25,000.00
l. Baguio Country Club 1 12,500.00
4. Receivables – Marcelo Fiberglass 212,729.17

* Based at Par Value

Above assets will be distributed equally by the four (4) of us depending if these will be sold or not. It is very
important to note that equal distribution will be based on actual selling price minus taxes and other deduction if
any, on the above inventories of estate properties.

Sgd.
EDWARD T. MARCELO
Regular Administrator

Conforme:

Sgd.
GEORGE T. MARCELO

Sgd.
JOSE T. MARCELO, JR.

Sgd.
HELEN T. MARCELO10

On 16 February 2001, the RTC issued an Order approving the partition of Jose, Sr.’s estate as proposed by
Edward:

Regular administrator [Edward] manifests that oppositor Jose T. Marcelo, Jr. had already expressed his
conformity to the Liquidation of the Inventory of the Estate of Jose P. Marcelo, Sr., as of July 26, 2000, as
evidenced by his signature therein. He therefore prays that the said document which bears the conformity ofall
four (4) compulsory heirs of Jose P. Marcelo, Sr. be approved as the project of partition of the estate of Jose P.
Marcelo, Sr.

Finding said liquidation of the Inventory of the Estate of Jose P. Marcelo, Sr. to bear the conformity of all the
heirs of the decedent and considering further that the period for filing of money claims against the subject
estate had already lapsed, the Court resolves to approve said liquidation of Inventory as the project ofpartition
of the estate of Jose P. Marcelo, Sr. Nonetheless, let the distribution of the estate of Jose P. Marcelo, Sr.
among his compulsory heirs in accordance with the approved Liquidation of the Inventory of the Estate of Jose
P. Marcelo, Sr. be deferred until herein regular administrator Edward T. Marcelo has submitted to the Court
proof of payment of estate taxes of the subject estate.11

On 14 September 2001, the RTC archived the intestate proceedings, S.P. Proc. No. Q-88-1448, pending
Edward’s submission of proof of payment of estate taxes as directed in the 16 February 2001 Order.12
On 3 July 2009, Edward died,13 ushering in the antecedents to the present controversy. Wasting no time, Jose,
Jr. moved to revive the intestate proceedings involving his father’s estate, S.P. Proc. No. Q-88-1448, and
moved for his appointment as new regular administrator thereof.

Petitioners MIMCO and heirs of Edward, joined by George, opposed Jose, Jr.’s motion and nominated Atty.
Henry Reyes as regular administrator in Edward’s stead.

On 6 January 2010, the RTC issued the assailed Order, now appointing Jose, Jr. as regular administrator of
Jose, Sr.’s estate:

Contrary to the assertion of petitioners, there is no showing that the [c]ourt has previously declared oppositor-
movant [Jose, Jr.] unfit to be appointed as an administrator.

The estate is left with no one who will administer the estate, i.e., to liquidate the estate and distribute the
residue among the heirs. As wellsettled, to liquidate means to determine the assets of the estate and to pay all
debts and expenses. Records clearly show that the estate taxes due to the government have not been paid. It
is, in fact, held that approval of the project of partition does not necessarily terminate administration x x x.
There is a necessity to appoint a new regular administrator. Equally noteworthy is that the judicially approved
inventory was prepared way back on August 30, 2000. It is but imperative that the same be updated.

In the sound judgment of the [c]ourt, oppositor-movant [Jose, Jr.], a legitimate child of the decedent, appears to
occupy higher interest than Atty. Henry A. Reyes in administering the subject estate.

WHEREFORE, premises considered, oppositor Jose T. Marcelo, Jr. is appointed as the new regular
administrator of the estate of Jose T. Marcelo, Sr.

Before he enters upon the execution of his trust, and letters of administration issue, he shall give a bond in the
amount of ₱200,000.00, conditioned as follows:

a. To make and return to the [c]ourt, within three (3) months, an updated inventory of all goods,
chattels, rights, credits, and estate of the deceased which shall come to his possession or knowledge or
to the possession of any other person for him;

b. To administer according to the Rules of Court rules, all goods, chattels, rights, credits, and estate
which shall at any time come to his possession or to the possession of any other person for him, and
from the proceeds to pay and discharge all debts, legacies, and charges on the same, or such
dividends thereon as shall be decreed by the court, not to mention the taxes due to the government;

c. To render a true and just account of his administration to the [c]ourt within one (1) year; and at any
other time when required by the Court; and

d. To perform all orders of the [c]ourt.14

Petitioners filed an Omnibus Motion for Reconsideration of the 6 January 2010 Order and now moved for the
appointment instead of George as administrator of Jose, Sr.’s estate. After Comment on the Omnibus Motion,
the RTC issued another Order dated 23 March 2010, denying the Omnibus Motion and affirming the
appointment of Jose, Jr. as new regular administrator. Petitioners appealed the RTC’s twin Orders dated 6
January 2010 and 23 March 2010 before the appellate court. This time around, the Court of Appeals affirmed
Jose, Jr.’s appointment as new regular administrator. Ruling that the selection of administrator lies in the sound
discretion of the trial court, the Court of Appeals held that:

1. The prior Order dated 13 December 1991 of the RTC appointing Edward as regular administrator
instead of Jose, Jr., which appointment was affirmed by this Court in G.R. No. 123883, did not make a
finding on Jose, Jr.’s fitness and suitableness to serve as regular administrator; and
 2. On the whole, Jose, Jr. iscompetent and "not wanting in understanding and integrity," to act as
regular administrator of Jose, Sr.’s estate.

Hence, this appeal by certiorariascribing grave error in the Court of Appeals’ Decision, to wit:

A.

THERE WAS NO NEED TO APPOINT AN ADMINISTRATOR FOR THE ESTATE OF JOSE P.

MARCELO, SR. AS THERE WAS THEN NO PENDING INCIDENTS IN THE ESTATE PROCEEDINGS
TO WARRANT THE APPOINTMENT OF AN ADMINISTRATOR.

B.

THE COURT OF APPEALS ERRED IN APPOINTING JOSE, JR. AS THE ADMINISTRATOR OF

JOSE, SR.’S ESTATE CONSIDERING THAT JOSE, JR. WAS FOUND, BY A FINAL, IMMUTABLE,
AND UNALTERABLE JUDGMENT, TO BE UNFIT TO ACT AS SUCH. THUS, THE COURT OF
APPEALS WAS CLEARLY MISTAKEN WHEN IT DISREGARDED THE EARLIER
PRONOUNCEMENT ON THE UNFITNESS OF JOSE, JR. TO ACT AS AN ADMINISTRATOR AS IT
GOES AGAINST THE PRINCIPLE OF CONCLUSIVENESS OF JUDGMENT.

C.

THE COURT OF APPEALS VIOLATED THE PETITIONERS’ RIGHT TO DUE PROCESS, WHEN IT
AFFIRMED THE RTC ORDERS, WITHOUT EVEN BOTHERING TO EXPLAIN WHY JOSE, JR. AND
NOT GEORGE, SHOULD BE APPOINTED AS ADMINISTRATOR OF JOSE, SR.’S ESTATE. 15

The appeal is impressed with merit. While we agree with the lower courts that the appointment of a regular
administrator is still necessary, we disagree with the appointment of Jose, Jr. as new regular administrator of
Jose, Sr.’s estate.

We first dispose of the issue of whether the appointment of a regular administrator is still necessary at this
liquidation, partition and distribution stage of the intestate proceedings involving Jose, Sr.’s estate.

Petitioners contend that the appointment of a regular administrator is unnecessary where there remains no
pending matter in the settlement of Jose, Sr.’s estate requiring attention and administration. Specifically,
petitioners point out that there is no existing or unliquidated debt against the estate of Jose, Sr, the settlement
thereof being already at the liquidation, partition and distribution stage. Further on that, the liquidation and
proposed partition had long been approved by the probate court.

We are not convinced. The settlement of Jose, Sr.’s estate is not yet through and complete albeit it is at the
liquidation, partition and distribution stage.

Rule 90 of the Rules of Court provides for the Distribution and Partition of the Estate. The rule provides in
pertinent part:

SECTION 1. When order for distribution of residue made. – x x x

No distribution shall be allowed until payment of the obligations above mentioned has been made or provided
for, unless the distributees, or any of them, give a bond, in a sum tobe fixed by the court, conditioned for the
payment of said obligations within such time as the court directs.

xxxx

SEC. 3. By whom expenses of partition paid. – If at the time of the distribution the executor or administrator
has retained sufficient effects in his hands which may lawfully be applied for the expenses of partition of the
properties distributed, such expenses of partition may be paid by such executor or administrator when it
appears equitable to the court and not inconsistent with the intention of the testator; otherwise, they shall be
paid by the parties in proportion to their respective shares or interest in the premises, and the apportionment
shall be settled and allowed by the court, and, if any person interested in the partition does not pay his
proportion or share, the court may issue an execution in the name of the executor or administrator against the
party not paying for the sum assessed.

In this case, we observe that the Liquidation of the Inventory of the Estate, approved by the RTC in its Order
dated 16 February 2001, is not yet in effect and complete. We further note that there has been no
manifestation forthcoming from any of the heirs, or the parties in this case, regarding the completion of the
proposed liquidation and partition of the estate. In fact, as all parties are definitely aware, the RTC archived the
intestate proceedings pending the payment of estate taxes.

For clarity, we refer to the Liquidation of the Inventory of the Estate, which was divided into two (2) parts: (1)
Settlement of the Claims against the Estate, and (2) After Settlement of the Claims, distribution of the
remaining assets of the estate to the four (4) compulsory heirs. The same document listed payables and
receivables of the estate dependent on a number of factors and contingencies:

1. Payables to various companies where the Marcelo family had equity amounting to ₱6,893,425.33;

Considering that the Estate as of June 3, 1999 has no sufficient cash to pay-off the above claims of
₱6,893,425.33, [Edward] can work out an offsetting arrangement since the Estate has also receivables or
equity from these companies as shown below:16

xxxx

2. Receivables from the same companies amounting to ₱7,748,448.19;

If the above receivables and equity with total value of ₱7,748,448.19 will be offset against the claims of
₱6,893,425.33 the net will show the following:17

xxxx

3. An offsetting of the payables and receivables to be arranged by the then regular administrator, Edward; and

4. Offsetting of the receivables from Marcelo Rubber & Latex Products, Inc. amounting to ₱4,341,147.26
against the net claims against the estate amounting to 3,486,124.40 resulting in net receivables of the estate in
the amount of ₱855,022.86.

There has been no showing from either of the parties that the receivables of, and claims against, Jose, Sr.’s
estate has been actually liquidated, much less, if an offsetting occurred with the companies listed in the
inventory on one hand, and Jose, Sr.’s estate, on the other. Although the Marcelo family, in particular the
compulsory heirs of Jose, Sr., hold equity in the corporations mentioned in the inventory, considering that the
corporations are family owned by the Marcelos’, these corporations are different juridical persons with separate
and distinct personalities from the Marcelo patriarch, the decedent, Jose, Sr.18

More importantly, the liquidation scheme appears yet to be effected, the actual partition of the estate, where
each heir separately holds his share in the estate as that which already belongs to him, remains intangible and
the ultimate distribution to the heirs still held in abeyance pending payment of estate taxes.19

Significantly, even the Liquidation of the Inventory of Jose, Sr.’s estate states that the valuation amount of the
shares of stock as listed therein is based on par value, which may have varied given the passage of time. The
same document delivers a very important notation that the equal distribution of the listed assets of the estate
will depend on the actual selling price of these assets less taxes and other deductions:
Above assets will be distributed equally by the four (4) [compulsory heirs] depending if these will be sold or not.
It is very important to note that equal distribution will be based on actual selling price minus taxes and other
deduction if any, on the above inventories of estate properties.20 To date, more than a decade has passed
since the intestate proceedings were archived, thus, affecting the value of the estate’s assets.

From all of the foregoing, it is apparent that the intestate proceedings involving Jose, Sr.’s estate still requires a
regular administrator to finally settle the estate and distribute remaining assets to the heirs of the decedent.

We now come to the issue of whether Jose, Jr. may be appointed as regular administrator despite the previous
Order of the RTC on 13 December 1991, affirmed by the appellate court and this Court in G.R. No. 123883,
that as between Jose, Jr. and Edward, the latter was better suited to act as regular administrator of their
father’s estate. Stated differently, whether Jose, Jr.’s previous non-appointment as regular administrator of
Jose, Sr.’s estate bars his present appointment as such even in lieu of Edward who is now dead.

A close scrutiny of the records reveals that in all of Jose, Jr.’s pleadings opposing Edward’s appointment as
regular administrator, he simultaneously prayed for his appointment as regular administrator of their father’s
estate. In short, he proffered his competence and qualification to be appointed as regular administrator as a
legal issue for resolution of the courts. Essentially, Jose, Jr. was weighed and found wanting by the RTC, the
appellate court, and this Court.

In its 13 December 1991 Order, the RTC categorically ruled on who between Edward and Jose, Jr. was fit to
administer the estate of Jose, Sr., framing the issue in this wise:

The [c]ourt’s choice as to who among the [compulsory heirs] will be appointed regular administrator of the
estate of Jose, Sr. is now limited to Edward and Jose, Jr. in view of the withdrawal of Helen T. Marcelo.

It is this [c]ourt’s observation that the continuous internal wranglings between the heirs would achieve nothing.
In the meantime, the estate of the late Jose, Marcelo, Sr. isdragged further into the quagmire of dissipation and
loss. It would not be amiss to state that the animosity among the interested [petitioners therein], Edward and
Jose, Jr. have considerably increased since the filing of their respective petitions, but the [c]ourt on the basis of
their qualifications will have to decide whom to appoint as regular administrator. Willingness to act and/or serve
as regular administrator is no longer in issue here as both applicants are undoubtedly willing to serve as such.
However, after subjecting the evidence, both testimonial and documentary to careful judicial study, this [c]ourt
now resolves as it hereby resolves to appoint Edward T. Marcelo as regular administrator of the estate of the
late Jose, Sr.

As aptly cited by petitioner, Edward T. Marcelo, there can be no adverse conclusion that may be inferred from
the withdrawal of a petition or nomination. While it may be true that initially the petition for the issuance of
letters testamentary was filed by Marcelo Investment and Management Corporation (MIMCO for brevity) and
by Danilo O. Ibay as nominee of Edward and George Marcelo, the same did not constitute a waiver on the part
of Edward T. Marcelo. This can be gleaned from the withdrawal of the nomination of DaniloO. Ibay and the
subsequent filing of Edward T. Marcelo of his petition for the appointment as legal administrator on September
14, 1989. Further, nowhere in the provisions of the Revised Rules of Court is sucha nomination of a party other
than a compulsory heir prohibited.

The documents presented by Jose, Jr. purporting to show that the deceased had other assets other than those
enumerated in the original petition filed by MIMCO and which should have been included in the estate cannot
be accorded any weight or credence by this [c]ourt, as the individual who supposedly prepared the document
was never identified and the sources of information notdisclosed. Upon the other hand, the petition filed by
MIMCO was based on the Financial Statements prepared by an independent auditor, A. F. Pablo and
Associates. On the basis of the information provided by MIMCO in the original petition, this [c]ourt can
determine the probable value and nature of the estate of the deceased Jose P. Marcelo, Sr.

There is no argument that both Edward and Jose, Jr. are willing to serve as regular administrator but
undoubtedly, Edward appears to be more responsible and competent that his younger brother, Jose, Jr. This is
bolstered by the fact that the family corporations and his own personal corporation are presently of sound
financial condition. This success, the [c]ourt believes can be attributed to the management skills and the sound
management policies Edward has adopted throughout the years. Likewise, it can be deduced that among the
four(4) children of Jose, Sr., it was Edward whom he trusted the most. The deceased valued the opinion of
Edward on decisions that had to bemade and he would have Edward around in his meetings to discuss matter
relating to the corporations which he managed. Further, as can be gleaned from the evidence presented by
Jose, Jr., it was Edward Marcelo who was appointed as trustee to vote the deceased’s share in a Marcelo
Corporation, Polaris Marketing Corporation. It was also Edward who was made co-signatory when the
deceased deposited money in the bank to be given to the children of Jose, Jr. It is thus quite evident that
Edward was really the most trusted child of the deceased.

Upon the other hand, this court looks with deep concern the manner by which Jose, Jr. treats the corporate
properties of the Marcelo Group of Companies. Evidence shows that sometime October 21, 1998, Jose, Jr.
took evidencing liabilities of the deceased and other pertinent records and up to the present has not returned
them. Jose, Jr. cannot justify the taking of the records/or borrowing of the same by asserting that he is now
keeping them in his capacity asSpecial Administrator as he was appointed Special Administrator only on
September 21, 1989 whereas the records were "borrowed" as early as October 21, 1988. Be that as it may,
what belies Jose, Jr.’s assertion is the fact that the records of the corporation which were allegedly
"borrowed/taken" do not form part of the estate of Jose, Sr. but to the corporation from where they were taken.

Likewise, it should be noted that the appointment of Jose, Jr. as one of the Special Administrators does not
necessarily make him more qualified to be appointed as regular administrator. The records of the case will
bear out, that the appointmentof a Special Administrator was premised on the need to have someone, oversee,
manage and preserve the estate of Jose, Sr., as there was the danger of the estate being dissipated.
Moreover, the [c]ourt never touched on the issue of the qualifications of the applicants, as there was in fact, no
evidence presented on the matter, other than the bare allegations of the applicants that they were all qualified
to act as such.21 (Citations omitted)

Notably, the decision of the trial court appointing Edward as the Administrator of the Estate of Jose, Sr., which
decision had the imprimatur of a final resolution by this Court, was not merely a comparison of the
qualifications of Edward and Jose, Jr., but a finding of the competence of Edward compared to the unfitness of
Jose, Jr.

As against this Order of the RTC, its subsequent opposite Order dated 6 January 2010 appointing Jose, Jr. as
new regular administrator only had two (2) sentences to essentially reverse the previous findings.

Contrary to the assertion of petitioners, there is no showing that the [c]ourt has previously declared [Jose,Jr.]
unfit to be appointed as an administrator.

xxxx

In the sound judgment of the [c]ourt,[Jose, Jr.], a legitimate child of the decedent, appears to occupy a higher
interest than Atty. Henry A. Reyes in administering the subject estate.22

The first sentence contained in the Order of 6 January 2010 is disproven by the definite finding of
"deepconcern" in the original Order. The second sentence does not amount to a finding of a qualification
superior to that of the rest of the children of Jose, Sr.

In affirming the issuance of letters of administration to Jose, Jr., the appellate court dwelt largely on the
considerable latitude allowed a probate court in the determination of a person’s suitability for the office of
judicial administrator. The Court of Appeals only briefly delved into Jose, Jr.’s numerous attempts to be
appointed regular administrator of Jose, Sr.’s estate which were all denied previously by the same probate
court:
The RTC Order dated 13 December 1991, as affirmed by this [c]ourt in Decision dated 30 March 1995, and by
the Supreme Court in the Resolution dated 22 May 1996, did not declare [respondent] Jose, Jr. unfit to serve
as administrator. What was ruled upon by the RTC, and affirmed by this [c]ourt, and by the Supreme Court,
was the appointment of Edward as the administrator of Jose, Sr.’s estate, and the denial of [respondent] Jose,
Jr.’s opposition to Edward’s appointment. Nowhere was there any categorical ruling, or a definite finding, that
[respondent] Jose, Jr. was, unfit to execute the duties of the trust by reason of drunkenness, improvidence, or
want of understanding or integrity, or by reason of conviction of an offense involving moral turpitude. Thus,
there is no merit in [petitioners’] contention that the finding on the unfitness of [respondent] Jose, Jr. became
binding, and precluded the RTC from appointing [respondent] Jose, Jr., as the new regular administrator of
Jose, Sr.’s estate.

Jurisprudence has long held that the selection of an administrator lies in the sound discretion of the trial
court. The determination of a person’s suitability for the office of judicial administrator rests, to a great extent,
1âwphi1

in the sound judgment of the court exercising the power of appointment and said judgment is not to be
interfered with on appeal unless the said court is clearly in error. The RTC did not err in appointing Jose, Jr. as
the new administrator, even though his previous prayer for appointment was denied. Notably, by virtue of
Edward’s death, the office of the regular administrator of Jose, Sr.’s estate was vacated, and it was within the
jurisdiction of the RTC, as probate court, to appoint a new administrator.23

Evidently, the Court of Appeals like the RTC in its second order, closed its eyes on the facts detailed by the
RTC in the first order.

Considering the two (2) sets of conflicting rulings of the RTC and the Court of Appeals in the two stages ofthis
litigation, we put into proper perspective the 13 December 1991 Order of the RTC appointing Edward over
Jose, Jr. as regular administrator of their father’s estate, which Order was upheld by us in G.R. No. 123883.

Section 1, Rule 78 of the Rules of Court provides for the general disqualification of those who wish to serve as
administrator:

SECTION 1. Who are incompetent to serve as executors or administrators.— No person is competent to serve
as executor or administrator who:

(a) Is a minor;

(b) Is not a resident of the Philippines; and

(c) Is in the opinion of the court unfit to execute the duties of the trust by reason of drunkenness,
improvidence, or want of understanding or integrity, or by reason of conviction of an offense involving
moral turpitude.

Section 6 of the same rule, on the other hand, lists an order of preference in instances when there is a contest
of who should be appointed administrator:

SEC. 6. When and to whom letters of administration granted.— If no executor is named in the will, or the
executor or executors are incompetent, refuse the trust, or fail to give bond, or a person dies intestate,
administration shall be granted:

(a) To the surviving spouse, or next of kin, or both, in the discretion of the court, or to such person as
such surviving spouse, or next of kin, requests to have appointed, if competent and willing to serve;

(b) If such surviving spouse, or next of kin, or the person selected by them, be incompetent or unwilling,
or ifthe surviving spouse, or next of kin, neglects for thirty (30) days after the death of the person to
apply for the administration or to request that administration be granted to some other person, it may be
granted to one ormore of the principal creditors, if competent and willing to serve;
 (c) If there is no such creditor competent and willing to serve, it may be granted to such other person as
the court may select.

Because Edward and Jose, Jr. are both compulsory heirs of Jose, Sr., they were, at the time the issue of
administration first cropped, equally preferred to administer Jose, Sr.’s estate. Necessarily, the courts also
delved into the question of their suitableness and fitness to serve as administrator, preferring one over the
other, framing it as Edward being more fit and suited to be administrator:

1. Edward has kept the Marcelo family corporations and his own in good financial condition;

2. The trust reposed by the decedent on Edward who voted on Jose, Sr.’s behalf in a Marcelo
corporation; and

3. Edward being made a co-signatory for money deposited for Jose, Jr.’s own children.

Plainly, the RTC in its Order dated 13 December 1991, found Edward competent to serve as regular
administrator, more competent than Jose, Jr., preferred despite equal status in the Order of Preference,
manifesting none of the disqualifications set by law. Still and all, the same Order likewise judged Jose, Jr.’s
suitableness and fitness,or lack thereof, for the office of administrator, albeit in comparison withEdward and not
with the rest of Jose, Sr.’s children. Jose, Jr. was not what Edward was. The fact however, that Edward was
1âwphi1

made co-signatory for money deposited for Jose, Jr.’s own children is a telling commentary against Jose, Jr.’s
competence, if not integrity.

Then too, the RTC in the original order made a specific finding, "[viewing it] with deep concern," Jose, Jr.’s
handling of the records of the Marcelo Group of Companies. It euphemistically called taking of the records
evidencing liabilities of the decedent as "borrowed/taken." However, the RTC noted that such cannot be
justified as the records and other pertinent documents taken "do not form part of the estate of Jose P. Marcelo,
Sr. but to the corporation from where they were taken."

Contrary to the recent rulings of the RTC and the Court of Appeals appointing Jose, Jr. as administrator, there
is a previous and categorical ruling on Jose, Jr.’s fitness to serve as such:

It is Jose T. Marcelo’s position that he is more competent, qualified and suitable for the position of regular
administrator. This, above all else is the main thrust of this second motion for reconsideration. However, the
1âwphi1

court in the exercise of its sound discretion after a consideration of the evidence adduced by both parties, ruled
otherwise and instead appointed Edward T. Marcelo as regular administrator.

x x x True, Jose T. Marcelo, Jr. was initially appointed as Special Administrator of the estate of their deceased
father but the same was without the benefit of a hearing on the qualifications of the parties concerned. x x x
This did not however confer on Jose Marcelo, Jr. as Special Administrator a better right to the office of regular
administrator. x x x.

xxxx

The third assigned error raised by [Jose, Jr.] "that both trial judges erred in not appointing Special
Administrator Jose T. Marcelo, Jr. as Regular Administrator considering his tested probity and competence as
special administrator, his good name and integrity in accordance with the evidence," is devoid of merit, as
already discussed earlier.

The findings of the lower court in this regard deserve full consideration x x x.24

Undoubtedly, there has been a declaration that Jose, Jr. is unfit and unsuitable to administer his father’s
estate.
To obviate further delay in the settlement of Jose, Sr.’s estate, we emphasize that such is already at the
liquidation and distribution stage which project of partition had long been conformed to by the parties.

We note that this case has been unnecessarily prolonged and resulted in added litigation by the non-payment
of estate taxes which is the ultimate responsibility of the heirs having inchoate right in the estate, should there
be assets remaining, to be partitioned and distributed. The inheritance tax is an obligation of the estate,
indirectly the heirs:

SECTION 1. When order for distribution of residue made. – When the debts, xxx, and inheritance tax, if any,
chargeable to the estate in accordance with law, have been paid, xxx.

No distribution shall be allowed until payment of the obligations above mentioned has been made or provided
for, unless the distributees, or any of them, give a bond, in a sum to be fixed by the court, conditioned for the
payment of said obligations within such time as the court directs.25

Given the factual considerations that led to the prior findings on the unfitness of Jose, Jr. to act as regular
administrator; the Affidavit of Helen26 preferring George as administrator; and the conformity on record of the
rest of Jose, Sr.’s heirs to George’s administration as reflected in petitioners’ Appellants’ Briefbefore the Court
of Appeals:

More importantly, consistent with Section 6, Rule 78 of the Rules of Court, not only is George the eldestson of
Jose, Sr. and, therefore, his most immediate kin, he has, moreover, been chosen by the rest of the heirs of
Jose, Sr. to perform the functions of an administrator. In this regard, in addition to George and the heirs of
Edward, Helen executed an Affidavit to manifest her opposition to Jose, Jr. and to support the appointment of
George and herself as joint administrators, a copy of which was given to the [Court of Appeals.] 27 we thus issue
Letters of Administration to George to facilitate and close the settlement of Jose, Sr.’s estate. 28

WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals in CA-G.R. CV No. 95219 and
the Order dated 6 January 2010 of the Regional Trial Court, Branch76, Quezon City in S.P. Proc. No. Q-88-
1448 are REVERSED and SET ASIDE. Letters of Administration shall issue to George T. Marcelo upon
payment of a bond to be set by the Regional Trial Court, Branch 76, Quezon City. The Regional Trial Court,
Branch 76, Quezon City is likewise directed to complete the settlement of the decedent's, Jose T. Marcelo, Sr.
's, estate with dispatch starting from an Order setting a deadline for the parties to pay the estate taxes and to
inform this Court when such has been paid.

G.R. No. 167975 June 17, 2015

GILDA JARDELEZA, (DECEASED), SUBSTITUTED BY HER HEIRS, NAMELY: ERNESTO ARDELEZA,

JR., TEODORO MARIA JARDELEZA, ROLANDO L. JARDELEZA, MA GLENDA JARDELEZA-UY, and
MELECIO GIL JARDELEZA, Petitioners,
vs.
SPOUSES MELECIO and ELIZABETH JARDELEZA, JMB TRADERS, INC., and TEODORO
JARDELEZA, Respondents.

DECISION

BERSAMIN, J.:

The petitioner directly appeals the order of January 31, 20051 dismissing her complaint for reconveyance and
damages, and the order of April 7, 20052 denying her motion for reconsideration,3 both issued by the Regional
Trial Court (RTC) in Iloilo City in Civil Case No. 23499, contending that the dismissal was grossly erroneous
under the law and pertinent jurisprudence.

The antecedents follow.

On March 7, 1997, the Spouses Gilda Jardeleza and Dr. Ernesto Jardeleza, Sr. (Ernesto) commenced Civil
Case No. 23499 against respondents Spouses Melecio and Elizabeth Jardeleza, JMB Traders, Inc., and
Teodoro Jardeleza (Teodoro) respecting several parcels of their conjugal lands. Civil Case No. 23499 was
raffle d to Branch 33 of the RTC. On January 13, 2004, during the pendency of Civil Case No. 23499, Ernesto
died. Hence, administration proceedings (Special Proceedings No. 04-7705) were commenced in the RTC
(assigned to Branch 38), and Teodoro was appointed as the administrator of the estate. The other heirs
questioned the appointment in the Court of Appeals (CA).

Meanwhile, Teodoro, in his capacity as the administrator, filed a motion to dismiss in Civil Case No. 23499 on
the ground that because Melecio, one of the defendants, was also an heir of Ernesto, the properties subject of
the action for reconveyance should be considered as "advances in the inheritance," and, accordingly, the claim
for reconveyance should be heard in Special Proceedings No. 04-7705 by Branch 38.

Branch 33 issued the first assailed order dated January 31, 2005 granting the motion to dismiss, viz.:

Considering that the Motion to Dismiss dated December 15, 2004 carries with it the signature of all parties and
their respective counsels in the above-entitled case, the prayer for the dismissal of the complaint and the
counterclaims in this case are hereby granted.

SO ORDERED.4

Gilda sought reconsideration, arguing that she had a personal cause of action of her own distinct from that of
Ernesto; that she neither signed nor consented to the dismissal of Civil Case No. 23499; and that Teodoro
should have first sought the approval of Branch 38 as the intestate court considering that the estate could
potentially recover properties belonging to it.

On April 7, 2005, Branch 33 issued the second assailed order denying Gilda’s motion for reconsideration.
Hence, Gilda has directly appealed the adverse rulings of the RTC.

Did Branch 33 err in dismissing Civil Case No. 23499?

Ruling of the Court

The appeal is meritorious.

Firstly, although Branch 33 based its dismissal of Civil Case No. 23499 on the fact that the motion to
dismiss5 filed by Teodoro, in his capacity as administrator, bore the signatures of all the parties and their
respective counsel, the records show that the motion to dismiss carried only the conformity of Teodoro. In
addition to the cited ground being obviously a misrepresentation, Teodoro’s conformity to the dismissal would
stand only for the intestate estate of Ernesto, and did not bind Gilda without whose express conformity the
dismissal of Civil Case No. 23499 was ineffectual. Gilda’s express conformity was not merely necessary but
indispensable considering that the properties sought to be reconveyed pertained to the conjugal partnership of
Gilda and Ernesto.

Secondly, Gilda correctly posits that the action for reconveyance, which survived the intervening death of
Ernesto as co-plaintiff, should be maintained independently of Special Proceedings No. 04-7705. Indeed,
whether an action survives or not depends on its nature.6 In a cause of action that survives, the wrong
complained of primarily and principally affects property and property rights, the injuries to the person being
merely incidental; in a cause of action that does not survive, the injury complained of is to the person, the
property and rights of property affected being incidental.7 This rule is applicable regardless of whether it is the
plaintiff or the defendant who dies, or whether the case is in the trial or in the appellate courts.8 Verily, Civil
Case No. 23499 survived the death of Ernesto.

Thirdly, the jurisdiction of the RT C as a probate court relates only to matters having to do with the settlement
of the estate and probate of a will of a deceased person, and does not extend t the determination of a question
of ownership that arises during the proceedings.9 This is true whether or not the property is alleged to belong to
the estate,10 unless the claimants to the property are all heirs of the deceased and they agree to submit the
question for determination by the probate or administration court and the interests of third parties are not
prejudiced;11 or unless the purpose is to determine whether or not certain properties should be included in the
inventory, in which case the probate or administration court may decide prima facie the ownership of the
property, but such de termination is not final and is without prejudice to the right of interested parties to
ventilate the question of ownership in a proper action.12 Otherwise put, the determination is provisional, not
conclusive, and is subject to the final decision in a separate action to resolve title by a court of competent
jurisdiction.13

In this regard, it bears mentioning that Civil Case No. 23499 had been instituted in 1997 and was pending trial
before Branch 33 prior to the bringing of the probate proceedings in 2004. In dismissing Civil Case No. 23499,
Branch 33 shirked from its responsibility to decide the issue of ownership and to let the probate court decide
the same. Branch 33 thereby did not consider that any decision that Branch 38 as a probate court would
render on the title and on whether or not property should be included or excluded from the inventory of the
assets of the estate would at best be merely provisional in character, and would yield to a final determination in
a separate action.

Lastly, the comments of the heirs of Gilda, who had meanwhile also passed away, and Ernesto reveal that they
had no longer any objection to the overturning of the dismissal. In his comment,14 Teodoro prayed that the
1âwphi1

dismissal be undone. Rolando Jardeleza’s own comment15 expressed his support for the petition of Gilda to
have the dismissal reversed so that the properties allegedly donated to the respondents would be brought back
to the estate of his late parents and be included in its final settlement. In her comment16 and consolidated reply
to comments,17 Glenda Jardeleza manifested her intention to substitute the late Gilda, her mother, and prayed
that Civil Case No. 23499 be remanded to Branch 33 for further proceedings. With all the heirs of Gilda and
Ernesto having thus united to seek the undoing of the dismissal in order to have a trial on the merits on the
question of ownership of the affected properties, the dismissal should now be undone.

WHEREFORE, the Court GRANTS the petition for review on certiorari; REVERSES and SETS ASIDE the
assailed orders issued on January 31, 2005 and April 7, 2005 in Civil Case No. 23499 by the Regional Trial
Court, Branch 33, in Iloilo City; REINSTATES Civil Case No. 23499; DIRECTS the Regional Trial Court,
Branch 33, in Iloilo City to continue the proceedings in Civil Case No. 23499 with dispatch; and ORDERS the
respondents to pay the costs of suit.

SO ORDERED.

G.R. No. 199885, October 02, 2017

JESUSA DUJALI BUOT, Petitioner, v. ROQUE RASAY DUJALI, Respondent.

DECISION

JARDELEZA, J.:

This is a petition for review on certiorari1 under Rule 45 of the Rules of Court. Petitioner Jesusa
Dujali Buot (Buot) challenged the Orders of Branch 34 of the Regional Trial Court (RTC), Panabo
City, dated September 19, 20112 and December 8, 2011,3 dismissing her petition and denying
her subsequent motion for reconsideration, respectively.

Buot filed before the RTC a petition4 for letters of administration of the estate of deceased
Gregorio Dujali (Gregorio). In her petition, Buot alleged that she was a surviving heir, along with
Roque Dujali, Constancia Dujali-Tiongson, Concepcion Dujali-Satiembre, Marilou Sales-Dujali,
Marietonete Dujali, Georgeton Dujali, Jr. and Geomar Dujali, of Gregorio who died
intestate.5 Buot annexed6 to her petition a list of Gregorio's properties that are allegedly publicly
known. She claimed that since Gregorio's death, there had been no effort to settle his estate.
Roque Dujali (Dujali) purportedly continued to manage and control the properties to the
exclusion of all the other heirs. Buot further alleged that Dujali for no justifiable reason denied
her request to settle the estate.7 Thus, Buot asked that: (1) an administrator be appointed to
preserve Gregorio's estate; (2) a final inventory of the properties be made; (3) the heirs be
established; and (4) the net estate be ordered distributed in accordance with law among the
legal heirs.8

Dujali filed an opposition with motion to dismiss,9 arguing that Buot had no legal capacity to
institute the proceedings. He asserted that despite Buot's claim that she was Gregorio's child
with his first wife Sitjar Escalona, she failed to attach any document, such as a certificate of live
birth or a marriage certificate, to prove her filiation. Dujali, on the other hand, attached a
certificate of marriage between Gregorio and his mother Yolanda Rasay. This certificate also
indicated that Gregorio had never been previously married to a certain Sitjar Escalona. Thus, as
Buot failed to prove that she is an heir, Dujali prayed that her petition be dismissed outright.

Buot filed her comment10 to Dujali's opposition with motion to dismiss. She argued that under
the Rules of Court, only ultimate facts should be included in an initiatory pleading. The marriage
certificate and certificate of live birth which Dujali demands are evidentiary matters that ought
to be tackled during trial. Nevertheless, to answer Dujali's allegations, Buot attached to her
comment a copy of the necrological services program11 where she was listed as one of Gregorio's
heirs, a certification12 from the municipal mayor that she is Gregorio's child, and a copy of the
Amended Extrajudicial Settlement13 dated July 4, 2001 which includes both Buot and Dujali as
Gregorio's heirs. Notably, this Amended Extrajudicial Settlement pertained to parcels of land not
included in the list of properties annexed in Buot's petition.

On May 3, 2011, the RTC denied Dujali's motion to dismiss. It agreed with Buot that the issues
raised by Dujali are evidentiary matters that should be addressed during trial.14

Dujali filed a motion for reconsideration.15 He argued that under the Rules of Court and
prevailing jurisprudence, a party's lack of legal capacity to sue should be raised in a motion to
dismiss. Further, he took issue with the existence of the Amended Extrajudicial Settlement.
According to him, when an estate has no debts, recourse to administration proceedings is
allowed only when there are good and compelling reasons. Where an action for partition
(whether in or out of court) is possible, the estate should not be burdened with an
administration proceeding.

The RTC, in its Order dated September 19, 2011, granted Dujali's motion for reconsideration. It
held that under the law, there are only two exceptions to the requirement that the settlement of
a deceased's estate should be judicially administered—extrajudicial settlement and summary
settlement of an estate of small value.16 According to the RTC, in the case of Buot's petition,
administration has been barred by the fact that Gregorio's estate has already been settled
extrajudicially as evidenced by the Amended Extrajudicial Settlement. It also noted that
Gregorio had no creditors since Buot failed to allege it in her petition.17 Since recourse to judicial
administration of an estate that has no debt is allowed only when there are good reasons for not
resorting to extrajudicial settlement or action for partition, the RTC dismissed Buot's petition.
Buot filed a motion for reconsideration which the RTC denied in its Order dated December 8,
2011. According to the RTC, not only was Buot's motion a second motion for reconsideration
prohibited under the Rules, there was also no sufficient reason to reverse its earlier dismissal of
the petition.18

Buot filed this petition for review on certiorari under Rule 45 of the Rules of Court challenging
the RTC's Orders on pure questions of law. In her petition, Buot argues that her motion for
reconsideration is not a prohibited second motion for reconsideration. Section 2 of Rule 52 of the
Rules of Court states that a prohibited second motion for reconsideration is one filed by
the same party. In this case, Buot's motion for reconsideration was her first, since the motion
for reconsideration subject of the Order dated September 19, 2011 was filed by Dujali. She also
argued that the Amended Extrajudicial Settlement did not cover all of Gregorio's properties.19

Further, Buot maintains that heirs are not precluded from instituting a petition for administration
if they do not, for good reason, wish to pursue an ordinary action for partition. In her case, she
claims that there are good reasons justifying her recourse to administration proceedings: (1) the
Amended Extrajudicial Settlement did not cover the entire estate; (2) there has been no effort to
partition the property; (3) Dujali seeks to challenge Buot's status as an heir; (4) other heirs
have been deprived of the properties of the estate; and (5) other heirs, particularly Constancia
Dujali and Marilou Dujali, have already manifested that they are amenable to the appointment of
an administrator.20

In his comment,21 Dujali argues that Buot is not an interested person allowed to file a petition
for administration of the estate. While she claims to be Gregorio's heir, public documents, such
as Buot's certificate of live birth and the certificate of marriage between Gregorio and Yolanda
Rasay, reveal otherwise. Dujali also attached to his comment certain documents that appear to
show that there has been an extrajudicial settlement of some of the properties of the estate and
that Buot has already received her share from the proceeds of the sale of these properties by
the true heirs.22 Further, he explains that Buot was only allowed to participate in the Amended
Extrajudicial Settlement by Gregorio's legitimate heirs out of humanitarian considerations, not
because she is a true heir. All these, Dujali argues, clearly indicate that there is no good and
compelling reason to grant Buot's petition for administration.23

In her reply,24 Buot contends that the issue of whether she is a person interested in the estate is
a matter that should be raised during the trial by the RTC of her petition for administration.

We deny the petition.

First, we must emphasize that this is a petition for review on certiorari under Rule 45 of the
Rules of Court. This recourse to the Court covers only a review of questions of law. In this case,
the question of law presented before us is whether the RTC properly dismissed the petition for
administration on the ground that there has already been an extrajudicial settlement of certain
properties of the estate. An additional question of procedure raised here is whether the RTC was
correct in holding that Buot's motion for reconsideration should be denied as it is a prohibited
second motion for reconsideration.

All other issues raised in the pleadings before us are questions of fact that we cannot resolve at
this time. As we shall shortly explain in this Decision, these questions of fact ought to be
resolved by a trial court in the appropriate proceeding.

We will first rule on the procedural issue raised in the petition. In its Order dated September 19,
2011, the RTC held that Buot's motion for reconsideration is a second motion for reconsideration
prohibited under the Rules of Court. Thus, the motion was denied. We reviewed the motions filed
by the parties before the RTC and rule that the RTC erred in its finding.

When Buot filed her petition for administration, Dujali filed an opposition with a motion to
dismiss. When the RTC denied his motion to dismiss, Dujali filed a motion for reconsideration.
This led to the RTC's issuance of the Order of September 19, 2011 granting Dujali's motion for
reconsideration and holding that Buot's petition for administration should be dismissed. It was
only at this point that Buot filed, for the first time, a motion seeking for reconsideration of the
Order which declared the dismissal of her petition for administration. Clearly, this is not the
motion for reconsideration contemplated in Section 2 of Rule 52 of the Rules of Court which
states:

Sec. 2. Second motion for reconsideration. - No second motion for reconsideration of a judgment
or final resolution by the same party shall be entertained.
Section 2 of Rule 52 is clear and leaves no room for interpretation. What it prohibits is a second
motion for reconsideration filed by the same party involving the same judgment or final
resolution. In the present case, Buot's motion for reconsideration was only her first motion
challenging the Order dismissing her petition for administration of Gregorio's estate. The RTC
clearly erred in denying her motion on the ground that it is a second motion for reconsideration
prohibited under the Rules.

Nevertheless, we rule that the RTC properly ordered the dismissal of Buot's petition for
administration.

When a person dies intestate, his or her estate may generally be subject to judicial
administration proceedings. There are, however, several exceptions. One such exception is
provided for in Section 1 of Rule 74 of the Rules of Court. This Section states:
Sec. 1. Extrajudicial settlement by agreement between heirs. - If the decedent left no will and
no debts and the heirs are all of age, or the minors are represented by their judicial or legal
representatives duly authorized for the purpose, the parties may, without securing letters of
administration, divide the estate among themselves as they see fit by means of a public
instrument filed in the office of the register of deeds, and should they disagree, they may do so
in an ordinary action of partition. If there is only one heir, he may adjudicate to himself the
entire estate by means of an affidavit filed in the office of the register of deeds. The parties to an
extrajudicial settlement, whether by public instrument or by stipulation in a pending action for
partition, or the sole heir who adjudicates the entire estate to himself by means of an affidavit
shall file, simultaneously with and as a condition precedent to the filing of the public instrument,
or stipulation in the action for partition, or of the affidavit in the office of the register of deeds, a
bond with the said register of deeds, in an amount equivalent to the value of the personal
property involved as certified to under oath by the parties concerned and conditioned upon the
payment of any just claim that may be filed under Section 4 of this rule. It shall be presumed
that the decedent left no debts if no creditor files a petition for letters of administration within
two (2) years after the death of the decedent.

The fact of the extrajudicial settlement or administration shall be published in a newspaper of

general circulation in the manner provided in the next succeeding section; but no extrajudicial
settlement shall be binding upon any person who has not participated therein or had no notice
thereof.
According to this provision, when the deceased left no will and no debts and the heirs are all of
age, the heirs may divide the estate among themselves without judicial administration. The heirs
may do so extrajudicially through a public instrument filed in the office of the Register of Deeds.
In case of disagreement, they also have the option to file an action for partition.

Section 1 of Rule 74, however, does not prevent the heirs from instituting administration
proceedings if they have good reasons for choosing not to file an action for partition.
In Rodriguez, et al. v. Tan, etc. and Rodriguez,26 we said:
[S]ection 1 [of Rule 74] does not preclude the heirs from instituting administration proceedings,
even if the estate has no debts or obligation, if they do not desire to resort for good reasons to
an ordinary action of partition. While section 1 allows the heirs to divide the estate among
themselves as they may see fit, or to resort to an ordinary action of partition, it does not compel
them to do so if they have good reasons to take a different course of action. Said section is not
mandatory or compulsory as may be gleaned from the use made therein of the word may. If the
intention were otherwise the framer of the rule would have employed the word shall as was done
in other provisions that are mandatory in character. x x x.27 (Italics in the original.)
Since such proceedings are always "long," "costly," "superfluous and unnecessary,"28 resort to
judicial administration of cases falling under Section 1, Rule 74 appears to have become the
exception rather than the rule. Cases subsequent to Rodriguez emphasized that "[w]here
partition is possible, either in or out of court, the estate should not be burdened with an
administration proceeding without good and compelling reasons."29

In Pereira v. Court of Appeals30 we had the opportunity to explain what the "good reason
exception" means. What constitutes good reason depends on the circumstances of each case.
We said:
"Again the petitioner argues that only when the heirs do not have any dispute as to the bulk of
the hereditary estate but only in the manner of partition does section 1, Rule 74 of the Rules of
Court apply and that in this case the parties are at loggerheads as to the corpus of the
hereditary estate because respondents succeeded in sequestering some assets of the intestate.
The argument is unconvincing, because, as the respondent judge has indicated, questions as to
what property belonged to the deceased (and therefore to the heirs) may properly be ventilated
in the partition proceedings, especially where such property is in the hands of one heir."
In another case, We held that if the reason for seeking an appointment as administrator is
merely to avoid a multiplicity of suits since the heir seeking such appointment wants to ask for
the annulment of certain transfers of property, that same objective could be achieved in an
action for partition and the trial court is not justified in issuing letters of administration. In still
another case, We did not find so powerful a reason the argument that the appointment of the
husband, a usufructuary forced heir of his deceased wife, as judicial administrator is necessary
in order for him to have legal capacity to appear in the intestate proceedings of his wife's
deceased mother, since he may just adduce proof of his being a forced heir in 2 intestate
proceedings of the latter.31 (Citations omitted.)
Thus, in Pereira, we refused to allow administration proceedings where the only reason why the
appointment of an administrator was sought so that one heir can take possession of the estate
from the other heir. We held that this was not a compelling reason to order judicial
administration. We added that in cases like this, "the claims of both parties as to the properties
left by the deceased may be properly ventilated in simple partition proceedings where the
creditors, should there be any, are protected in any event."32

We have reviewed the reasons which Buot proffers to warrant the grant of her petition for letters
of administration and rule that these do not suffice to warrant the submission of Gregorio's
estate to administration proceedings. That the extrajudicial settlement in this case did not cover
Gregorio's entire estate is, by no means, a sufficient reason to order the administration of the
estate. Whether the extrajudicial settlement did in fact cover the entire estate and whether an
extrajudicial settlement that does not cover the entire estate may be considered valid do not
automatically create a compelling reason to order the administration of the estate. Parties
seeking to challenge an extrajudicial settlement of estate possess sufficient remedies under the
law and procedural rules.

As to Buot's other allegations that: (1) there has been no effort to partition the estate; (2) that
Dujali challenges her status as an heir; (3) that other heirs have been deprived of the estate;
and (4) these heirs are amenable to the appointment of an administrator, we find that none of
these allegations actually prevent the filing of an ordinary action for partition. In fact, if it is
indeed true that there has been no effort to partition Gregorio's entire estate, the filing of an
action for partition before the proper court will leave his heirs with no choice but to proceed. An
action for partition is also the proper venue to ascertain Buot's entitlement to participate in the
proceedings as an heir.33 Not only would it allow for the full ventilation of the issues as to the
properties that ought to be included in the partition and the true heirs entitled to receive their
portions of the estate, it is also the appropriate forum to litigate questions of fact that may be
necessary to ascertain if partition is proper and who may participate in the proceedings.

WHEREFORE, this petition for review on certiorari is DENIED. The Orders of Branch 34 of the
Regional Trial Court, Panabo City, dated September 19, 2011 and December 8, 2011
are AFFIRMED insofar as they ordered the dismissal of the petition for letters of administration.

SO ORDERED.