COMPARATIVE CASES

Nuguid vs Nuguid, No. L-23445, June 23, 1966; 17 SCRA 449, digested

Posted by Pius Morados on January 4, 2012
(Special Proceedings – Difference between Preterition and Disinheritance)
Facts: Rosario died without descendants, legitimate or illegitimate. Surviving her were
her legitimate parents – Felix and Paz, and 6 brothers and sisters.
Remedios, one of the sister filed in court a holographic will allegedly executed by
Rosario instituting the former as the sole, universal heir of all her properties. She prayed
that said will be admitted to probate and that letter of administration be issued to her.

Felix and Paz opposed to the probate of the will on the ground that by the institution of
Remedios as universal heir of the deceased, oppositors – who are compulsory heirs in
the direct ascending line – were illegally preterited and that in consequence, the
institution is void.

Article 854 provides that preterition 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.

Petitioners contention is that the present is a case of ineffective disinheritance rather

than one of preterition drawing the conclusion that Article 854 does not apply in the
case at bar.

Issue:  WON the institution of one of the sister of the deceased as the sole, universal
heir preterited the compulsory heirs.
Held: Yes.  Where the deceased left no descendants, legitimate or illegitimate, but she
left forced heirs in the direct ascending line – her parents, and her holographic will does
not explicitly disinherit them but simply omits their names altogether, the case is one of
preterition of the parents, not a case of ineffective disinheritance.
Preterition “consists in the omission in the testator’s will of the forced heirs or anyone of
them, either because they are not mentioned therein, or, through mentioned, they are
neither instituted as heirs nor are expressly disinherited”. Disinheritance, in turn, “is a
testamentary disposition depriving any compulsory heir of his share in the legitime for
a cause authorized by law”.

Where the one sentence will institutes the petitioner as the sole, universal heir and
preterits the parents of the testatrix, and it contains no specific legacies or bequests,
such universal institution of petitioner, by itself, is void. And intestate succession
ensues.
REMEDIOS NUGUID, petitioner and appellant, 
vs.
FELIX NUGUID and PAZ SALONGA NUGUID, oppositors and appellees.

Custodio O. Partade for petitioner and appellant.

Beltran, Beltran and Beltran for oppositors and appellees.

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 six (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.1äwphï1.ñët

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 presented, 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 be 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 has 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 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. 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:

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 in Article 854 of the Civil Code which, in part,
provides:

ART. 854. The preterition or omission of one, some, or all of the compulsory heirs
in the direct line, whether living at the time of the execution of the will or born
after the death of the testator, shall annul the institution of heir; but the devises
and legacies shall be valid insofar as they are not inofficious. ...
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
betterments4 shall be valid, in so far as they are not inofficious. ...

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

necessity. On this point Manresa comments:

La pretericion consiste en omitar al heredero en el testamento. O no se le nombra

siquiera o aun nombrandole como padre, hijo, etc., no se le instituya 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 aquellos 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.

It may now appear trite bat 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:

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 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:34-35). Madden vs. 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, 14
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
institucion 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:

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 prejudique a
la legitima del deseheredado 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 Sanchez Roman: —

La consecuencia 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, hubiese 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 Supreme, correspondiente a 1908", which in our opinion
expresses the rule of interpretation, viz:

... El art. 814, que preceptua en tales casos de pretericion la nulidad de la

institucion de heredero, no consiente interpretacion alguna favorable a la
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 distribudo 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 sea 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 no autoriza 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 convereste juicio en regla de interpretacion, 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, annullment
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 pretericion"; but added (in reference
to legacies and bequests) "pero subsistiendo ... todas aquellas otras disposiciones que no
se refieren a la institucion de heredero ... . 13 As Manresa puts it, annulment throws open
to intestate succession the entire inheritance including "la porcion libre (que) no hubiese
dispuesto en virtud de legado, mejora o donacion. 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". 15From this, petitioner draws the conclusion that Article 854
"does not apply to the case at bar". This argument fails to appreciate the distinction
between pretention 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 privacion expresa de la
legitima constituye la desheredacion. La privacion tacita de la misma se
denomina pretericion." 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 is 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", put 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, adquiren el derecho a
todo; desheredados, solo les corresponde un tercio o dos tercios, 22 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. Chief Justice Moran in
the Neri case heretofore cited, viz:

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 never have any application at all. And the
remaining provisions contained in said article concerning the reduction of
inofficious legacies or betterments would be a surplusage because they would be
absorbed by Article 817. 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 as a thing separate and distinct from legacies or
betterments. 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

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.

VERSUS

G.R. No. L-19996             April 30, 1965

WENCESLA CACHO, petitioner-appellee, 
vs.
JOHN G. UDAN, and RUSTICO G. UDAN, oppositors-appellants.

Gregorio Dolojan for petitioner-appellee.

Benjamin A. G. Vega and Abad Santos and Pablo for oppositors-appellants.

REYES, J.B.L., J.:

Direct appeal, on questions of law, from an order of the Court of First Instance of
Zambales (Hon. Lucas Lacson presiding), issued on 20 February 1962, in its Special
Proceeding No. 2230, wherein the court disallowed the opposition of John G. Udan and
Rustico G. Udan to the probate of the alleged will of their sister Silvina Udan.

From the records it can be gleaned that on 13 December 1959 one Silvina G. Udan,
single, and a resident of San Marcelino, Zambales, died leaving a purported will
naming her son, Francisco G. Udan, and one Wencesla Cacho, as her sole heirs, share
and share alike. Wencesla Cacho, filed a petition to probate said Will in the Court of
First Instance of Zambales on 14 January 1960 (RA. pp. 1-16). On 15 February 1960
Rustico G. Udan, legitimate brother of the testatrix, filed an opposition to the probate
(RA. pp. 16-18). On 16 February 1960 Atty. Guillermo Pablo, Jr., filed his Appearance
and Urgent Motion for Postponement for and in behalf of his client Francisco G. Udan,
the appointed heir in the Will (RA. pp. 18-22). On 9 June 1960 Francisco G. Udan,
through counsel, filed his opposition to the probate of this will (RA. pp. 33-35). On 15
September 1960 oppositor Rustico G. Udan, through counsel, verbally moved to
withdraw his opposition, dated 13 February 1960, due to the appearance of Francisco G.
Udan, the named heir in the will and said opposition was ordered withdrawn (RA. pp.
55-56). After one witness, the Notary Public who made and notarize the will, had
testified in court, oppositor Francisco G. Udan died on June 1961 in San Marcelino,
Zambales, Philippines (RA. pp. 63-66).

After the death of Francisco G. Udan, John G. Udan and Rustico G. Udan, both
legitimate brothers of the testatrix Silvina G. Udan, filed their respective oppositions on
the ground that the will was not attested and executed as required by law, that the
testatrix was incapacitated to execute it; and that it was procured by fraud or undue
influence (RA. pp. 63-66; 67-71). On 20 January 1962 proponent-appellee, through
counsel, filed a Motion to Dismiss Oppositions filed by the Oppositors (RA. pp. 73-80),
and on 20 February 1962 the Honorable Court of First Instance of Zambales issued an
Order disallowing these two oppositions for lack of interest in the estate and directing
the Fiscal to study the advisability of filing escheat proceedings (RA. pp. 97-99). On 26
and 30 March 1962 both oppositors filed their Motions for Reconsideration, through
their respective counsels, and these motions were both denied by the lower court on 25
April 1962 (RA. pp. 99-122; pp. 131-132). On 7 May 1962 oppositors filed their joint
Notice of Appeal (RA. pp. 132-135).

The first issue tendered by appellants is whether the oppositor brothers, John and
Rustico Udan, may claim to be heirs intestate of their legitimate sister, the late Silvina
Udan. We find that the court below correctly held that they were not, for at the time of
her death Silvina's illegitimate son, Francisco Udan, was her heir intestate, to the
exclusion of her brothers. This is clear from Articles 988 and 1003 of the governing Civil
Code of the Philippines, in force at the time of the death of the testatrix:

ART. 988. In the absence of legitimate descendants or ascendants, the illegitimate

children shall succeed to the entire estate of the deceased.

ART. 1003. If there are no descendants, ascendants, illegitimate children, or a

surviving spouse, the collateral relatives shall succeed to the entire estate of the
deceased in accordance with the following articles.

These legal provisions decree that collateral relatives of one who died intestate inherit
only in the absence of descendants, ascendants, and illegitimate children. Albeit the
brothers and sisters can concur with the widow or widower under Article 1101, they do,
not concur, but are excluded by the surviving children, legitimate or illegitimate (Art.
1003).

That Francisco Udan was the illegitimate son of the late Silvina is not denied by the
oppositor; and he is so acknowledged to be in the testament, where said Francisco is
termed "son" by the testatrix. As the latter was admittedly single, the son must be
necessarily illegitimate (presumptively natural under Article 277).

The trial court, therefore, committed no error in holding that John and Rustico Udan
had no standing to oppose the probate of the will. For if the will is ultimately probated
John and Rustico are excluded by its terms from participation in the estate; and if
probate be denied, both oppositors-appellants will be excluded by the illegitimate son,
Francisco Udan, as sole intestate heir, by operation of law.

The death of Francisco two years after his mother's demise does not improve the
situation of appellants. The rights acquired by the former are only transmitted by his
death to his own heirs at law not to the appellants, who are legitimate brothers of his
mother, for the reason that, as correctly decided by the court below, the legitimate
relatives of the mother cannot succeed her illegitimate child. This is clear from Article
992 of the Civil Code.

ART. 992. An illegitimate child has no right to inherit ab intestato from the

legitimate children and relatives of his father or mother; nor shall such children
or relatives inherit in the same manner from the illegitimate child.

For the oppositors-appellants it is argued that while Francisco Udan did survive his
mother, and acquired the rights to the succession from the moment of her death (Art.
777, Civ. Code), still he did not acquire the inheritance until he accepted it. This
argument fails to take into account that the Code presumes acceptance of an inheritance
if the latter is not repudiated in due time (Civ. Code, Art. 1057, par. 2), and that
repudiation, to be valid, must appear in a public or authentic instrument, or petition to
the court. There is no document or pleading in the records showing repudiation of the
inheritance by Francisco Udan. The latter's own opposition (RA. p. 61) to the probate of
the alleged will is perfectly compatible with the intention to exclude the proponent
Cacho as testamentary coheir, and to claim the entire inheritance as heir ab intestato.

Finally, it is urged that as probate is only concerned with the due execution of a
testament, any ruling on the successional rights of oppositors-appellants is at present
premature. Inquiry into the hereditary rights of the appellants is not premature, if the
purpose is to determine whether their opposition should be excluded in order to
simplify and accelerate the proceedings. If, as already shown, appellants cannot gain
any hereditary interest in the estate whether the will is probated or not, their
intervention would merely result in unnecessary complication.

It may not be amiss to note, however, that the hearing on the probate must still proceed
to ascertain the rights of the proponent Cacho as testamentary heir.

It is urged for the applicant that no opposition has been registered against his petition
on the issues above-discussed. Absence of opposition, however, does not preclude the
scanning of the whole record by the appellate court, with a view to preventing the
conferment of citizenship to persons not fully qualified therefor (Lee Ng Len vs.
Republic, G.R. No. L-20151, March 31, 1965). The applicant's complaint of unfairness
could have some weight if the objections on appeal had been on points not previously
passed upon. But the deficiencies here in question are not new but well-known, having
been ruled upon repeatedly by this Court, and we see no excuse for failing to take them
into account.1äwphï1.ñët

WHEREFORE, the order under appeal is affirmed, without prejudice to further

proceedings in the case, conformably to this opinion. Costs against appellants John G.
Udan and Rustico G. Udan.

Chapter 3. LEGAL OR INTESTATE SUCCESSION

Article: Surviving Spouse, Brothers and Sisters, Nephews and Nieces
Case: Cacho vs Udan L-19996 April 30, 1965
Facts:
Silvina G. Udan, single, and a resident of San Marcelino, Zambales, died leaving
a purported will naming her son, Francisco G. Udan, and one Wencesla Cacho, as her
sole heirs, share and share alike. Wencesla Cacho, filed a petition to probate said Will in
the Court of First Instance of Zambales on 14 January 1960. On 15 February 1960
Rustico G. Udan, legitimate brother of the testatrix, filed an opposition to the probate.
Atty. Guillermo Pablo, Jr., filed his Appearance and Urgent Motion for Postponement
for and in behalf of his client Francisco G. Udan, the appointed heir in the Will.
Francisco G.

Udan, through counsel, filed his opposition to the probate of this will. On 15 September
1960 oppositor Rustico G. Udan, through counsel, verbally moved to withdraw his
opposition, dated 13 February 1960, due to the appearance of Francisco G. Udan, the
named heir in the will and said opposition was ordered withdrawn. After one witness,
the Notary Public who made and notarize the will, had testified in court, oppositor
Francisco G. Udan died on June 1961 in San Marcelino, Zambales, Philippines.

After the death of Francisco G. Udan, John G. Udan and Rustico G. Udan, both
legitimate brothers of the testatrix Silvina G. Udan, filed their respective oppositions on
the ground that the will was not attested and executed as required by law, that the
testatrix was incapacitated to execute it; and that it was procured by fraud or undue
influence.

Issue:

Whether or not, the brothers John and Rustico Udan may claim to be heirs
intestate of their legitimate sister, Silvina?

Held:
No. It is clear from Article 988 and 1003 of the Civil Code of the Philippines, in
force at the time of the death of the testatrix that the brothers may not claim to be heirs
intestate of their legitimate sister, Silvina. The collateral relatives of one
who died intestate inherit only in the absence of descendants, ascendants,
and illegitimate children. Having Francisco Udan as the illegitimate son of the late
Silvina which fact is not denied by the oppositor brothers. He is so acknowledged to be
in the testament, where said Francisco is termed "son" by the testatrix. Hence, the death
of Francisco two years after his mother's demise does not improve the situation of
appellants. The rights acquired by the former are only transmitted by his death to his
own heirs at law not to the appellants, who are legitimate brothers of his
mother, for the reason that, the legitimate relatives of the mother cannot succeed
her illegitimate child. This is clear from Article 992 of the Civil Code. Francisco Udan
did survive his mother, and acquired the rights to the succession from the moment of
her death. While there is no document or pleading in the records showing repudiation
of the inheritance by Francisco Udan. The latter's own opposition to the probate of the
alleged will is perfectly compatible with the intention to exclude the proponent Cacho
as testamentary coheir, and to claim the entire inheritance as heir ab intestato.

G.R. No. L-56504 May 7, 1987

POMPILLO VALERA and EUMELIA VALERA CABADO, petitioners, 

vs.
HON. JUDGE SANCHO Y. INSERTO, in his capacity as Presiding Judge, Court of
First Instance of Iloilo, Branch 1, and MANUEL R. FABIANA, respondents.

Nos. L-59867-68 May 7, 1987

EUMELIA V. CABADO, POMPILLO VALERA and HON. MIDPANTAO L.

ADIL, petitioners-appellants, 
vs.
MANUEL FABIANA, JOSE GARIN and HON. COURT OF APPEALS (Tenth
Division), respondents-appellants.

Eduardo S. Baranda and Avelino T Javellana for petitioners.

Dominador G. Garin for private respondents.

 

NARVASA, J.:

Conflicting claims over a fishpond asserted by the administrators of the estate of

deceased spouses, on the one hand, and by the heirs of a daughter of said spouses and
their lessee, on the other, have given rise to the proceedings now docketed in this Court
as (1) G.R. No. 56504 and (2) G.R. Nos. 59867-68.

Sp. Proc. No. 2223, CFI, Iloilo

In the proceedings for the settlement of the intestate estate of the decedent spouses,
Rafael Valera and Consolacion Sarrosa 1 — in which Eumelia Cabado and Pompiro
Valera had been appointed administrators 2 — the heirs of a deceased daughter of the
spouses, Teresa Garin, filed a motion asking that the Administratrix, Cabado, be
declared in contempt for her failure to render an accounting of her
administration. 3 Cabado replied that no accounting could be submitted unless Jose
Garin, Teresa's husband and the movant heirs' father, delivered to the administrator an
18-hectare fishpond in Baras, Barotoc Nuevo, Iloilo, belonging to the estate and she in
turn moved for the return thereof to the estate, 4 so that it might be partitioned among
the decedents' heirs. Jose Garin opposed the plea for the fishpond's return to the estate,
asserting that the property was owned by his children and this was why it had never
been included in any inventory of the estate.

The Court, presided over by Hon. Judge Midpantao Adil, viewed the Garin Heirs'
motion for contempt, as well as Cabado's prayer for the fishpond's return to the estate,
as having given rise to a claim for the recovery of an asset of the estate within the
purview of Section 6, Rule 87 of the Rules of Court. 5 It accordingly set said incidents for
hearing during which the parties presentee evidence in substantiation of their
positions. 6 Thereafter, the Court issued an Order dated September 17, 1980
commanding the Heirs of Teresa Garin "to reconvey immediately the fishpond in
question * * to the intestate Estate of the Spouses. 7

The Order was predicated upon the Court's factual findings mainly derived from the
testimony of the two administrators that:

1. the fishpond originally belonged to the Government, and had been given in lease to
Rafael Valera in his lifetime;

2. Rafael Valera ostensibly sold all his leasehold rights in the fishpond to his daughter,
Teresa Garin; but the sale was fictitious, having been resorted to merely so that she
might use the property to provide for her children's support and education, and was
subject to the resolutory term that the fishpond should revert to Rafael Valera upon
completion of the schooling of Teresa Garin's Children; and
3. with the income generated by the fishpond, the property was eventually purchased
from the Government by the Heirs of Teresa Garin, collectively named as such in the
Original Certificate of Title issued in their favor.

Upon these facts, Judge Adil ruled that an implied trust had been created, obligating
Teresa Garin's heirs to restore the property to the Valera Spouses' Estate, in accordance
with Articles 1453 and 1455 of the Civil Code providing as follows:

Article 1453. When property is conveyed to a person in reliance upon his

declared intentions to hold it for, or transfer it to another or the grantor,
there is an implied trust in favor of the person for whose benefit it is
contemplated.

Article 1455. When any trustee, guardian or other person holding a

fiduciary relationship uses trust funds for the purchase of property and
causes a conveyance to be made to him or to a third person, a trust is
established by operation of law in favor of the person to whom the fund
belongs.

The Court also held that the action for reconveyance based on constructive trust had not
yet prescribed, Cabado's motion for the fishpond's reversion to the estate having been
filed well within ten (10) years from June 30, 1980, the date on which Teresa Garin's
heirs allegedly acquired title over it. 8

There seems little doubt, however, that the Court's pronouncement regarding the
estate's title to the fishpond was merely provisional in character, made solely to
determine whether or not the fishpond should be included in the inventory of estate
assets. So it was evidently understood by the administrators who have more than once
asserted that "the probate court has jurisdiction to determine the ownership of the
fishpond for purposes of inclusion in the inventory of the properties. 9 So it was made clear
by the Probate Court itself which, at the outset, stated that the hearing on the
matter 10 was meant "merely to determine whether or not the fishpond should be
included as part of the estate and whether or not the person holding it should be made
to deliver and/or return ** (it) to the estate. 11 And so it was emphasized in another
Order, denying reconsideration of the Order of September 17, 1980, which states that:

**(i)t is never the intendment of this court to write a finish to the issue of
ownership of the fishpond in dispute. The movants may pursue their
claim of ownership over the same in an ordinary civil action. Meanwhile,
however, it is the finding of this probate court that the fishpond must be
delivered to the estate.

Clearly, there is no incompatibility between the exercise of the power of

this probate court under Section 6 in relation to Section 7, both of Rule 87,
 and the contention of the movants that the proper forum to settle the issue
of ownership should be in a court of general jurisdiction. 12

Judge Adil afterwards granted the administrators' motion for execution of the order
pending appeal, and directed the sheriff to enforce the direction for the Garin Heirs to
reconvey the fishpond to the estate. 13 The corresponding writ was served on Manuel
Fabiana, the supposed encargado or caretaker. Voicing no objection to the writ, and
declaring to the sheriff that he was a mere lessee, 14 Fabiana voluntarily relinquished
possession of the fishpond to the sheriff. The latter, in turn, delivered it to the
administrators. 15

Later however, Fabiana filed a complaint-in-intervention with the Probate Court

seeking vindication of his right to the possession of the fishpond, based on a contract of
lease between himself, as lessee, and Jose Garin, as lessor. 16 But Judge Adil dismissed
his complaint on the following grounds, to wit:

(1) it was filed out of time because not only had judgment been rendered, but execution
as regards transfer of possession had already taken place; and

(2) the lease contract had not been registered and hence was not binding as against the
estate. 17

G.R. No. 56504

Fabiana thereupon instituted a separate action for injunction and damages, with
application for a preliminary injunction. This was docketed as Civil Case No. 13742 and
assigned to Branch I of the Iloilo CFI, Hon. Sancho Y. Inserto, presiding. 18 Judge
Inserto issued a temporary restraining order enjoining estate administrators from
disturbing Fabiana in the possession of the fishpond, as lessee. 19

The estate administrators filed a motion to dismiss the complaint and to dissolve the
temporary restraining order, averring that the action was barred by the Probate Court's
prior judgment which had exclusive jurisdiction over the issue of the lease, and that the
act sought to be restrained had already been accomplished, Fabiana having voluntarily
surrendered possession of the fishpond to the sheriff. 20 When Judge Inserto failed to act
on their motion within what the administrators believed to be a reasonable time,
considering the circumstances of the Case, the administrators filed with the Supreme
Court a special civil action for certiorari and mandamus, with a prayer for Preliminary
mandatory injunction and temporary restraining order, which was docketed as G.R.
No. 56504. 21 In their petition, the administrators contended that Branch I of the Iloilo
CFI (Judge Inserto, presiding) could not and should not interfere with the Probate Court
(Branch I I, Judge Adil, presiding) in the legitimate exercise of its j jurisdiction over the
proceedings for the Settlement of the estate of the Valera Spouses.

G.R. Nos. 59867-68

In the meantime, Jose Garin — having filed a motion for reconsideration of the above
mentioned order of Judge Adil (declaring the estate to be the owner of the fishpond), in
which he asserted that the Probate Court, being of limited jurisdiction, had no
competence to decide the ownership of the fishpond, 22 which motion had been
denied 23-filed a notice of appeal from said Order. 24 But he quickly abandoned the
appeal when, as aforestated 25 Judge Adil authorized execution of the order pending
appeal, instead, he initiated a special action for certiorari prohibition and mandamus )
with prayer for preliminary injunction) in the Court of Appeals, therein docketed as
CA-G. R. No. SP-1154-R.

Fabiana followed suit. He instituted in the same Court of Appeals his own action for
certiorari and injunction, docketed as CA-G.R. No. SP-11577-R; this, notwithstanding
the pendency in judge Inserto's sala  of the case he had earlier filed. 26

These two special civil actions were jointly decided by the Court of Appeals. The Court
granted the petitions and ruled in substance that:

1. The Probate Court indeed possessed no jurisdiction to resolve the issue of ownership
based merely on evidence adduced at the hearing of a "counter-motion" conducted
under Section 6, Rule 87;

2. The original and transfer certificates of title covering the fishpond stand in the names
of the Heirs of Teresa Garin as registered owners, and therefore no presumption that
the estate owns the fishpond is warranted to justify return of the property on the theory
that it had merely been borrowed; and

3. Even assuming the Probate Court's competence to resolve the ownership question,
the estate administrators would have to recover possession of the fishpond by separate
action, in view of the lessee's claim of right to superior possession, as lessee thereof.

From this joint judgment, the administrators have taken separate appeals to this Court
by certiorari, 27 docketed as G.R. Nos. 59867 and 59868. They ascribe to the Appellate
Court the following errors, viz: Page 542

1) in holding that the Probate Court (Judge Adil, Presiding) had no jurisdiction to take
cognizance of and decide the issue of title covering a fishpond being claimed by an heir
adversely to the decedent spouses;

2) in ruling that it was needful for the administrators to file a separate action for the
recovery of the possession of the fishpond then in the hands of a third person; and

3) in sanctioning the act of a CFI Branch in interfering with and overruling the final
judgment of another branch, acting as probate Court, and otherwise frustrating and
inhibiting the enforcement and implementation of said judgment.
Jurisdiction of Probate Court

As regards the first issue, settled is the rule that a Court of First Instance (now Regional
Trial Court), acting as a Probate Court, exercises but limited jurisdiction, 28 and thus has
no power to take cognizance of and determine the issue of title to property claimed by a
third person adversely to the decedent, unless the claimant and all the Other parties
having legal interest in the property consent, expressly or impliedly, to the submission
of the question to the Probate Court for adjudgment, or the interests of third persons are
not thereby prejudiced, 29 the reason for the exception being that the question of
whether or not a particular matter should be resolved by the Court in the exercise of its
general jurisdiction or of its limited jurisdiction as a special court (e.g., probate, land
registration, etc., is in reality not a jurisdictional but in essence of procedural one,
involving a mode of practice which may be waived. 30

The facts obtaining in this case, however, do not call for the application of the exception
to the rule. As already earlier stressed, it was at all times clear to the Court as well as to
the parties that if cognizance was being taken of the question of title over the fishpond,
it was not for the purpose of settling the issue definitely and permanently, and writing
"finis" thereto, the question being explicitly left for determination "in an ordinary civil
action," but merely to determine whether it should or should not be included in the
inventory. 31 This function of resolving whether or not property should be included in
the estate inventory is, to be sure, one clearly within the Probate Court's competence,
although the Court's determination is only provisional in character, not conclusive, and
is subject to the final decision in a separate action that may be instituted by the
parties. 32

The same norm governs the situation contemplated in Section 6, Rule 87 of the Rules of
Court, expressly invoked by the Probate Court in justification of its holding a hearing
on the issue arising from the parties' conflicting claims over the fishpond. 33 The
examination provided in the cited section is intended merely to elicit evidence relevant
to property of the decedent from persons suspected of having possession or knowledge
thereof, or of having concealed, embezzled, or conveyed away the same. Of course, if
the latter lays no claim to the property and manifests willingness to tum it over to the
estate, no difficulty arises; the Probate Court simply issues the appropriate direction for
the delivery of the property to the estate. On the other hand, if the third person asserts a
right to the property contrary to the decedent's, the Probate Court would have no
authority to resolve the issue; a separate action must be instituted by the administrator
to recover the property. 34

Parenthetically, in the light of the foregoing principles, the Probate Court could have
admitted and taken cognizance of Fabiana's complaint in intervention after obtaining
the consent of all interested parties to its assumption of jurisdiction over the question of
title to the fishpond, or ascertaining the absence of objection thereto. But it did not. It
dismissed the complaint in intervention instead. And all this is now water under the
bridge.

Possession of Fishpond Pending

Determination of Title Thereto

Since the determination by the Probate Court of the question of title to the fishpond was
merely provisional, not binding on the property with any character of authority,
definiteness or permanence, having been made only for purposes of in. conclusion in
the inventory and upon evidence adduced at the hearing of a motion, it cannot and
should not be subject of execution, as against its possessor who has set up title in
himself (or in another) adversely to the decedent, and whose right to possess has not
been ventilated and adjudicated in an appropriate action. These considerations assume
greater cogency where, as here, the Torrens title to the property is not in the decedents'
names but in others, a situation on which this Court has already had occasion to rule.

In regard to such incident of inclusion or exclusion, We hold that if a

property covered by Torrens title is involved, the presumptive
conclusiveness of such title should be given due weight, and in the
absence of strong compelling evidence to the contrary, the holder thereof
should be consider as the owner of the property in controversy until his
title is nullified or modified in an appropriate ordinary action,
particularly, when as in the case at bar, possession of the property itself is
in the persons named in the title. 35

Primary Jurisdiction over Title issue in

Court Taking Cognizance of Separate Action

Since, too, both the Probate Court and the estate administrators are one in the
recognition of the proposition that title to the fishpond could in the premises only be
appropriately determined in a separate action, 36 the actual firing of such a separate
action should have been anticipated, and should not therefore have come as a surprise,
to the latter. And since moreover, implicit in that recognition is also the acknowledge
judgment of the superiority of the authority of the court in which the separate action is
filed over the issue of title, the estate administrators may not now be heard to complain
that in such a separate action, the court should have issued orders necessarily involved
in or flowing from the assumption of that jurisdiction. Those orders cannot in any sense
be considered as undue interference with the jurisdiction of the Probate Court.
Resulting from the exercise of primary jurisdiction over the question of ownership
involving estate property claimed by the estate, they must be deemed superior to
otherwise contrary orders issued by the Probate Court in the exercise of what may be,
regarded as merely secondary, or provisional, jurisdiction over the same question.
WHEREFORE, the petition in G.R. No. 56504 is DISMISSED, for lack of merit. The
petitions in G.R. No. 59867 and G.R. No. 59868 are DENIED, and the judgment of the
Appellate Court, subject thereof, is affirmed in toto. The temporary restraining order
dated April 1, 1981 is lifted. Costs against petitioners.

 
VALERA V. INSERTO
1987; Narvasa,
 J.
Facts:
 
Rafael Valera was granted leasehold rights over an 18hectare fishpond in Iloilo by the
government to last duringhis lifetime.He transferred it by fictitious sale to his
daughter Teresato support her children with the agreement that when thechildren
finishes schooling, the fishpond will be returnedto him.Valera and his spouse
Consolacion Sarosa and their childTeresa died.The heirs of Teresa  her husband Jose
Garin and theirchildren bought the fishpond from the government,acquiring title
thereto.The administrators of the spouses

Rafael Valera andConsolacion Sarrosa claim that the fishpond should bereturned to
the spouses estates.The Probate Court presided by Judge Adil held that therehas been
an implied trust created, therefore the fishpondshould be restored to the estate of the
spouses pursuantto Arts. 1453 and 1455 of the Civil Code
1.Pursuant thereto, he directed the sheriff to enforcereconveyance of the fishpond to the
estate. The fishpond was leased by the Garin Heirs to Fabiana,who although willingly
surrendered it to the sheriff, laterfiled a complaint-in-intervention. This was dismissed
so heinstituted a separate action for injunction and damages.Court of Appeals reversed
(fishpond to be returned toGarin Heirs and their lessee Fabiana) saying that:(1) Probate Court
had no jurisdiction;(2) that the Title of the Garin Heirs is a stronger claim thatrebuts the
presumption that the estate owns thefishpond; and (3) that assuming the Probate Court
had competence toresolve ownership, a separate action has to be filed.

Issue:
WON Probate Court had authority to orderreconveyance of the fishpond?
Held:

NO.

Ratio:
 
The CFI (now RTC), acting as Probate Court, exercises but limited jurisdiction, and thus
has no power to takecognizance of and determine the issue of title to propertyclaimed
by a third person adversely to the decedent,unless the claimant and all the Other parties
having legalinterest in the property consent, expressly or impliedly, tothe submission of
the question to the Probate Court foradjudgment, or the interests of third persons are
notthereby prejudiced. This is issue is not a jurisdictional, butprocedural, involving a
mode of practice which may bewaived.The facts obtaining in this case, however, do not
call forthe application of the exception to the rule. It was at alltimes clear to the Court as
well as to the parties that if cognizance was being taken of the question of title overthe
fishpond, it was not for the purpose of settling theissue definitely and permanently, and
writing "
  f 
ini s"thereto, the question being explicitly left fordetermination "in an ordinary civil
action," but merely todetermine whether it should or should not be included inthe
inventory. This function of resolving whether or notproperty should be included in the
estate inventory is, tobe sure, one clearly within the Probate Court'scompetence,
although the Court's determination is onlyprovisional in character, not conclusive, and
is subject tothe final decision in a separate action that may beinstituted by the
parties.Since the determination by the Probate Court of thequestion of title to the
fishpond was merely provisional,the fishpond cannot be the subject
of execution, asagainst its possessor who has set up title in himself (or inanother)
adversely to the decedent, and whose right topossess has not been ventilated and
adjudicated in anappropriate action. These considerations assume greatercogency
where, as here, the Torrens title to the propertyis not in the decedents' names but in
others.A separate action must be instituted by the administratorto recover the
property.Decision of the CA AFFIRMED.

VERSUS

G.R. No. 75579 September 30, 1991

TOMAS TRINIDAD, petitioner, 
vs.
THE COURT OF APPEALS, respondent.

Tomas Trinidad for himself.

PARAS, J.:p

This is a petition for review on certiorari seeking the reversal of 1) the decision * dated
February 14, 1986 of the then Intermediate Appellate Court (now Court of Appeals) in
AC-G.R. N 01483 entitled: "People of the Philippines vs. Atty. Tom Trinidad," affirming the
decision of the Regional Trial Court Manila dated January 5, 1984, which convicted
herein petitioner of violation of Section 25 in relation to Section 39 of P 957 sentencing
him to pay a fine of P20,000.00 and to suffer the accessory penalties provided by law
and to pay the costs, and the resolution of said appellate court dated May 9, 1986,
denying the motion for reconsideration of herein petitioner.

In an information that was filed in the then Court of First Instance of Manila (now
Regional Trial Court), herein petitioner, Atty. Tomas Trinidad, was charged with
violation of P.D. 957 for non-delivery of title allegedly committed in this manner:

That on or about February 20, 1978 and continuously up to the present, in

Manila, Philippines, and within the jurisdiction of this Honorable Court,
the said accused, being the administrator of the estate of the late NICOLAI
DREPIN, President and General Manager of the Mother Earth Realty
Development Corporation, owner-developer of the Munting Baguio
Village Subdivision, located at Antipolo, Rizal, and having knowledge of
the sale of Lot No. 19, Block No. 51 of the said Subdivision to
FRANCISCA T. DIMABUYO for the purchase price of P14,000,00, did
then and there wilfully, unlawfully and feloniously fail to deliver the title
of said subdivision lot to the said lot buyer upon full payment thereof in
violation of the aforementioned P.D. No. 957. (Rollo, p. 25)

After the accused had been arraigned, pleading not guilty, the prosecution presented
only one witness namely Francisca T. Dimabuyu, who is 49 years old, married, public
school teacher, residing at 311 Poblacion, Mabalacat, Pampanga. In her direct and cross
examination she testified to the following: that she filed a case against the accused
Tomas Trinidad with the Task Force of the Ministry (now Department) of Justice for
Violation of P.D. No. 957 for non-delivery of title and she executed an affidavit in
support of her complaint before the Task Force of the Ministry (now Department) of
Justice. She identified the Affidavit, Exhibit A in her complaint. She filed this complaint
against Tomas Trinidad for the non-issuance of title wherein there was a contract
executed by her with the Mother Earth Realty Development Corporation, and that the
accused Tomas Trinidad was the administrator of the estate of the late Nicolai Drepin.
She identified the contract executed by her presented and marked as Exhibit B and the
total price of the lot bought by her was FOUR THOUSAND PESOS (P4,000.00). She was
paying Thirty Eight Pesos and Sixty Bight Centavos (P38.68) monthly until she made
the full payment. She was given receipts and entered in her booklet presented and
marked as Exhibit C. She was able to pay SEVEN THOUSAND (P7,000.00) PESOS
including amortization, and this lot which she bought is located at Antipolo, Rizal. She
had visited the place before she bought the same. She identified Exhibit D, which is the
certification of the secretary of the accused. She has also receipts to prove her payments
to the Mother Earth Realty Development Corporation, of which the accused is the
President and General Manager and owner developer of the Munting Baguio Village
Subdivision located at Antipolo, Rizal. She identified these receipts of payment paid by
her. Exhibits E, E-1 to E-3 inclusive. She also identified a passbook wherein the payment
made by her were posted by the employee of the said corporation, Exhibits F to F-1. She
further stated that she never me the accused in his office. She called him by phone and
he promised her to deliver the title after she had made the full payment. She waited for
several months but no title was issue to her. She dropped in the office of the accused
and she never saw him there, only a clerk told her that he is busy. Two month after she
paid the last payment she made inquiries of her title. She was able to talk with the
accused in 1978, and the accused told her that she should be patient for her title would
arrive. She went to the office of the accused for so many, many times and inquired
about her title and the office of the accused in situated at Escolta, Regina Building,
Manila. She was able to talk with the accused two times using the telephone in his office
and the accused told her that she must not worry for her title would be forthcoming.
Her son was able to talk with the accused but the accused told her son that her title was
coming. She wen to the National Housing Authority and inquired if the corporation of
the accused is fake. Atty. Lagunsag of the National Housing Authority set a hearing
between her and the accused but the accused did not appear. She received the
notification ("marked as Exhibit G) from the National Housing Authority about the
hearing. The hearing was about the title she was claiming from the accused. A hearing.
was also held at the Ministry (now Department) of Justice on March 7, 1981 but the
accused did not appear. The Ministry (now Department) of Justice handled the case to
help her and it was Fiscal Rodrigo Cosico, state Prosecutor of the Ministry (now
Department) of Justice who handled the case. There was a resolution of the Ministry
(now Department) of Justice in her favor, marked an presented as Exhibit H and H-1.
She did not approach an lawyer for she could not afford to pay a lawyer. Whenever she
comes to Manila to claim her title and confront Tomas Trinidad she used to spend
FIFTY PESOS (P50.00) per day. She felt frustrated and was mad with the accused.

In the cross-examination of this witness she said she had been teaching Grade IV at
Pampanga for 20 years then. She admitted that she is a signatory to the contract, Exhibit
B. admitted that she did not pay the real estate taxes of this land. She admitted that she
did not go to the Probate Court.

In the re-direct, she said that she has not paid the taxes because she was not notified
about the demand of payment. She paid the installment as evidenced by receipts
Exhibits E, E-I E-30 of Lots Nos. 19 and 51 of said subdivision managed by the accused.
She said that the accused was the administrator of land wherein the portion was bought
by her.

After the testimony of the complainant Francesca Dimabuyu, the prosecution rested its
case and offered Exhibits A, B, C, D, E, E-I to E-30, inclusive, F, F-I to F-5, inclusive, and
H, and H-1, which were all admitted by the court. (Ibid., pp. 27-29).
On the other hand, herein petitioner, in his direct testimony and cross, testified to the
fact that in the Intestate Proceedings of the estate of the late Nicolai Drepin, he became
the Judicial Administrator appointed in the year 1976, and he presented his
appointment and marked as Exhibit 3. He testified that he took hold of the property of
the deceased including the Mother Earth Realty Development Corporation, and also the
unregistered property situated at Antipolo, Rizal. The whole lot is titled in the name of
testator. He admitted that he is the administrator of the Mother Earth Realty
Development Corporation, and that said corporation has lots for sale. He continued to
receive payments of lots for sale in installment. In 1978 the National Housing Authority
stopped the sale of lots, and his corporation was told to stop operating the property
now the place being under control of the Ministry of Human Settlements. According to
him the complainant (Ms. Francesca T. Dimabuyu) had not complied with all the
requirements for the complainant had not paid the taxes. He asked the Probate Court as
administrator to allow him to execute a Deed of Sale to his lot buyers and he was
allowed in November 1982, the authority was presented and marked as Exhibit 5. The
Mother Earth Realty Development Corporation, according to him, is not in business
now, and he is not the administrator. He was appointed by the Court as administrator
in place of Atty. Guico, and he has letters of administration presented and marked as
Exhibit 3. His duties as administrator are with the full authority to take possession of all
properties of the deceased.

In the cross examination of this witness he admitted that he was not able to deliver any
title to the complainant for according to him the complainant had not actually paid all
her obligations because there is no adjustment considering the value of the peso which
has declined these days. The complainant has not even paid the taxes of the land so that
the contract has not been duly complied with.

On January 5, 1984, the Regional Trial Court of Manila rendered judgment, the
dispositive portion of which reads:

WHEREFORE IN VIEW OF THE FOREGOING CONSIDERATION, the

guilt of the accused having been proven beyond reasonable doubt for
violation of Sec. 25 in relation to Section 39 of P.D. 957 hereby sentences
him to pay a fine of TWENTY THOUSAND PESOS (P20,000.) and to
suffer the accessory penalties provided by law and to pay the costs. (Ibid.,
P. 62)

Not satisfied with the foregoing decision, herein petitioner elevated the case to the then
Intermediate Appellate Court, which rendered judgment, the dispositive portion of
which reads:

WHEREFORE, the decision appealed from is AFFIRMED in toto with

costs against accused-appellant. (Ibid., p. 34)
The motion for reconsideration having been denied (Ibid., p. 39), herein petitioner filed
the instant petition, raising the following issues:

IT IS AN ABUSE OF JUDICIAL DISCRETION AMOUNTING TO LACK

OF JURISDICTION TO EXPAND THE TERM IN A PENAL PROVISION
OF PD 957 TO INCLUDE THAT WHICH IS NOT SPECIFICALLY
PROVIDED FOR THEREIN. (Ibid., p. 10)

II

THE CONCLUSION OF THE I.A.C. THAT THE ADMINISTRATOR OF

THE MOTHER REALTY DEV. CORP. (sic) FINDS NO SANCTION IN
REASON AND LOGIC AND A GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OF JURISDICTION. (Ibid., 13)

III

IT IS A SERIOUS ERROR OF THE IAC. NOT TO COUNTENANCE THE

SPECIFIC PROVISION OF LAW ON THE EXCLUSIVE JURISDICTION
OF THE PROBATE COURT IN REFERENCE TO THE SETTLEMENT OF
THE ESTATE OF A DECEDENT OF WHICH A DELIVERY OF TITLE TO
A LOT IS ONE SUCH. (Ibid., p. 15)

IV

ENFORCING PD 957 TO RETROACT TO A CONTRACT LONG BEFORE

ESTABLISHED VALID AND LEGAL THEN, VIOLATES THE BILL OF
RIGHTS IN THE 1973 CONSTITUTION, HENCE IT IS REVERSIBLE
ERROR. (Ibid., p. 17)

YOUR PETITIONER, JUDICIAL ADMINISTRATOR OF THE ESTATE OF

NICOLAI DREPIN IS CAUGHT IN THE HORNS OF A DILEMMA AND
A NO WIN POSITION AT THAT. (Ibid., p. 18)

Under the first two assigned errors, herein petitioner assails the judgment of the
respondent appellate court for having expanded the term in a penal provision of PD
957, i.e., Section 39, to include that which is not specifically provided for therein.
Moreover, he assails respondent appellate court's finding that he is also the
administrator of Mother Earth Realty Development Corporation as non sequitur.

The contentions are without merit.

Sections 25 and 39 of Presidential Decree 957 provide, thus:

Sec. 25. Issuance of Title. — The owner or developer shall deliver the title of
the lot or unit to the buyer upon full payment of the lot or unit. No fee,
except those required for the registration of the deed of sale in the
Registry of Deeds, shall be collected for the issuance of such title. In the
event a mortgage over the lot or unit is outstanding at the time of the
issuance of the title to the buyer, the owner or developer shall redeem the
mortgage or the corresponding portion thereof within six months from
such issuance in order that the title over fully paid lo or unit may be
secured and delivered to the buyer in accordance herewith.

Sec. 39. Penalties. — Any person who shall violate any of th provision of

this decree and/or any rule or regulation that may be issued pursuant to
this Decree shall upon conviction, be punished by fine of not more than
twenty thousand (P20,000.00) pesos and/or imprisonment of not more
than ten years: Provided, that in the case of corporations, partnerships,
cooperatives, or associations, the President, Manager or Administrator or
the person who has charge with the administration of the business shall be
criminally responsible for any violation of this Decree and/or the rules
and regulations promulgated pursuant thereto.

From the foregoing, it is clear that any person who violate Section 25 thereof by non-
delivery of the title upon full payment of the lot or in case of a corporation, partnership,
cooperative, or association, the president, manager or administrator or the person who
has charge of the administration of the business shall be criminally responsible.

In the case at bar, Mother Earth Realty Development Corporation is the developer of the
property in question which belongs to the deceased, Nicolai Drepin. As administrator
of the estate of the said decedent, herein petitioner took over the administration of all
the properties of said deceased including the property in question. Thus undeniably he
is also the administrator of the Mother Earth Realty Development Corporation which is
handling the development and disposition of said property. This is demonstrated by the
fact that when said corporation was sued by Ms. Dimabuyu before the Nation Housing
Authority (NHA) for non-issuance of title, herein petitioner appeared as the
administrator of said corporation an appealed to the Minister (now Secretary) of Justice
from resolution of the Task Force Division of said Ministry (no Department) in the same
capacity. In his appeal he did not deny that he is the administrator of the said
corporation and property in behalf of the deceased. What he claims is that the title was
not issued due to the failure of the proper government agency to approve the technical
description of the lot preparatory to the issuance of the corresponding torrens title and
that PD 957 cannot be given retroactive effect to apply to contracts entered into ten
years before its passage. Again, in his letter of December 7, 1982 to Ms. Dimabuyu
delineating the procedure to secure the title of ownership of the property in question,
herein petitioner signed as administrator not only of the testate estate of Nicolai Drepin
but also of the Mother Earth Realty Development Corporation. (Ibid., pp. 31-32).

Under the third assigned error, herein petitioner contends that the trial court and the
respondent appellate court had exceeded their jurisdiction by totally disregarding the
law and penalizing an act when the law shows the manner of performing the same.

The contention is without merit.

Section 41 of Presidential Decree 957 provides, thus:

Section 41. Other Remedies. — The rights and remedies provided in this

Decree shall be in addition to any and all other rights and remedies that
may be available under existing laws.

From the foregoing, it is apparent that whatever rights or remedies accruing to a lot
buyer, Ms. Dimabuyu in this case, under other laws do not foreclose the application of
PD 957.

In the case at bar, it is uncontroverted that Ms. Dimabuyu has fully paid in monthly
installments the agreed purchase price for the lot. Notwithstanding full payment, herein
petitioner has failed and refused to deliver to Ms. Dimabuyu the certificate of title
corresponding to the lot despite numerous demands.

Under the fourth assigned error, herein petitioner maintains that PD 957 impairs the
obligations of the vendee (Ms. Dimabuyu) in the contract to sell and that it is an ex post
facto law as the provision thereof provides retroactive effect.

The contention is likewise without merit.

Quoting the Solicitor General, the respondent appellate court aptly rebutted this
argument, thus:

Under P.D. 957, after the complainant had fully paid for the lo in question,
appellant (herein petitioner) as administrator of t Mother Earth Realty
Development Corporation, was legally bound cause the issuance of the
corresponding transfer certificate of title in the name of the buyer. The
failure of appellant (herein petitioner) to do so is punishable under the
penal provisions of Section 39 of said decree.

Likewise, under P.D. 957, it is not required that the buyer should pay the
taxes. The buyer is only required to pay for the registration of the Deed of
Sale with the Register of Deeds for the issuance of the title but it does not
mention the payment of taxes. With respect to th alleged devaluation of
the peso, suffice it to state that at the time thde contract was executed, the
 full price of the lot was already agreed upon by the complainant and the
corporation.

Lastly, appellant (herein petitioner) asserts that P.D. 957 is an ex post
facto law as the penal provision thereof provides retroactive effect.

P.D. 957 cannot be assailed as an ex post facto law. The act made
punishable thereunder is the failure of the owner-developer or
administrator to deliver the title of the lot or unit to the buyer upon full
payment, not the execution of a deed of sale or contract to sell over such
lot or unit before the passage of the law. In the instant case although the
contract to sell was executed long before the enactment of P.D. 957, the
failure of appellant (herein petitioner) to deliver the title over the lot upon
full payment transpired when the decree was already in effect. Such law is
not ex post facto  for the simple reason that what is being punished is the
failure to deliver such title after the enactment of the Decree on July 12,
1976. (Ibid., pp. 33-34)

We however find that the fifth or last issue to be meritorious and the same deserves Our
careful consideration.

In said issue, herein petitioner maintains that to proceed execute the deed of absolute
sale without the go-signal of th Probate Court is to be recreant to his sworn duty as
administrator, as well as to render void his actuations done without the permission of
the Probate Court.

This contention is correct and is impressed with merit. Inasmuch as the owner-seller of
the property was already deceased and there were proceedings in the Probate Court, it
was incumbent for the Probate Court to first give authorization to administrator of the
estate to deliver titles of lots which had previously been sold. The decedent after all,
might be considered the alter ego of the Mother Earth Realty Development Corporation.
The private complainant had been duly instructs by the accused herein to file the
proper petition or motion wit the Probate Court for delivery of said title but said
complainant for one reason or another, disregarded said instructions. If at anybody
should be blamed, it should be private complainant herself for her failure to obtain the
needed authorization fro the court. Indeed, questions of title to any property apparent
still belonging to estate of the deceased may be passed upon in the Probate Court, with
consent of all the parties, without prejudice to third persons such as the herein private
complainant. In fact, third persons may even intervene in the testate or intestate
proceedings to protect their interest [See Cunanan vs. Amparo, 45 O.G. (No. 9), 3796].
Just as ordinary claimant against the estate of the deceased are duty bound to present
claim before the Probate Court so was private complainant herein required to file her
claim for redress in said Probate Court. This is so because in the ascertainment of claims
against the estate of the decedent, the Probate Court must weigh the extent of the
liability of the estate when compared vis-a-vis it solvency. We uphold petitioner's
contention therefore that if he had proceeded to immediately cause the delivery of the
title of private complainant herein, he could have been held liable for a blatant
disregard of the jurisdiction and function of the Probate Court. Truly, he was caught
between the horns of a dilemma which was not of his own making. We therefore see no
criminal intent whatsoever on his part and accordingly the judgment of the appellate
court is hereby REVERSED and SET ASIDE, with costs de officio.

If the probate proceedings referred to in this case are still going on, the proper remedy
of the private complainant herein is to file before said Probate Court her claim for the
delivery of the title of the lot she has purchased. If on the other hand, said probate
proceedings are already closed and terminated, the Mother Earth Realty Development
Corporation through its present President or General Manager is hereby ordered to
cause the delivery of said title to Ms. Dimabuyu, within the shortest possible time, as
soon as all the requirements therefore have been complied with. We are giving this
remedy to prevent Ms. Dimabuyu from being prejudiced.

SO ORDERED.
G.R. No. L-2211         December 20, 1948

NATIVIDAD I. VDA. DE ROXAS, petitioner, 

vs.
POTENCIANO PECSON, Judge of First Instance of Bulacan, MARIA ROXAS and
PEDRO ROXAS,respondents.

Claro M. Recto and Francisco A. Rodrigo for petitioner.

Estanislao A. Fernandez, Jr., and Gerardo M. Alfonso for respondents.

FERIA, J.:

This is a petition for certiorari  filed against the respondent judge of the Court of First
Instance of Bulacan.

The facts in this case may be summarily stated as follows: Pablo M. Roxas died leaving
properties in Bulacan. The other respondents Maria and Pedro Roxas, sister and brother
respectively of the deceased, filed on August 3, 1946, a petition for the administration of
the latter's estate, in special intestate proceeding No. 1707 of the Court of First Instance
of Bulacan, and Maria Roxas was appointed special administratrix upon an ex-
partepetition. On August 10, 1946, the petitioner Natividad Vda. de Roxas, widow of
Pablo M. Roxas, filed a petition for the probate of an alleged will of her deceased
husband, and for her appointment as executrix of his estate designated is said will, and
the petition was docketed as special proceeding No. 172 of the same court. In said will
the deceased bequeathed one-half of his estate to his widow, the herein petitioner, and
the other half to Reynaldo Roxas, an adulterous child 9 years old of the decedent. Upon
agreement of both parties, the intestate proceeding No. 170 was dismissed and ordered
closed by the court.

In view of the opposition to the probate of the will by the respondents Maria and Pedro
Roxas, the petitioner was appointed on September 10, 1946, special administratrix and
qualified as such over the objection of the respondents Maria and Pedro Roxas, who
sought the appointment of Maria as such. The said respondents filed on October 21,
1946, a motion for reconsideration of the order of the court appointing the petitioner as
special administratrix, with an alternative prayer that Maria Roxas be appointed as
special co-administratrix, which motion was not acted upon.
After hearing on December 15, 1947, the respondent judge rendered a decision denying
the probate of the will presented by the petitioner on the ground that the attesting
witnesses did not sign their respective names in the presence of the testator, from which
the petitioner has appealed, and the appeal is now pending.

On December 29, 1947, the respondents Maria and Pedro Roxas renewed their petition
for the appointment of Maria Roxas as special administratrix or special co-
administratrix, and on May 5, 1948, the respondent judge rendered his resolution
appointing the petitioner Natividad I. Vda. de Roxas as special administratrix only of all
the conjugal properties of the deceased, and Maria Roxas as special administratrix of all
capital or properties belonging exclusively to the deceased Pablo M. Roxas.

The present petition for certiorari has been filed with this Court against the last order or
resolution of the Court of First Instance of Bulacan based on the ground that the
respondent judge acted in excess of the court's jurisdiction in appointing two special co-
administratices of the estate of the deceased Pablo Roxas, one of the capital or
properties belonging exclusively to the deceased, and another of his conjugal properties
with his wife (now widow), the petitioner.

It is well settled that the statutory provisions as to the prior or preferred right of certain
persons to the appointment of administrator under section 1, Rule 81, as well as the
statutory provisions as to causes for removal of an executor or administrator under
section 653 of Act No. 190, now section 2, Rule 83, do not apply to the selection or
removal of special administrator. (21 Am. Jur., 833; De Gala vs. Gonzales and Ona, 53
Phil., 104, 106.) As the law does not say who shall be appointed as special administrator
and the qualifications the appointee must have, the judge or court has discretion in the
selection of the person to be appointed, discretion which must be sound, that is, not
whimsical or contrary to reason, justice or equity.

There is nothing wrong in that the respondent judge, in exercising his discretion and
appointing the petitioner as special administratrix, had taken into consideration the
beneficial interest of the petitioner in the estate of the decedent and her being
designated in the will as executrix thereof. But the respondent's subsequent act of
appointing her as special administratrix only of the conjugal or community property,
and Maria Roxas as special administratrix of the capital or exclusive property of the
decedent, does not seem to be in conformity with logic or reason. The petitioner has or
claims to have the same beneficial interest after the decision of the court disapproving
the will, which is now pending on appeal, as she had prior to it, because the decision is
not yet final and may be reversed by the appellate court.

Besides, even if the will is not probated, the widow in the present case would have,
under the law, the right of usufruct over one-half of the exclusive property of the
decedent, besides her share in the conjugal partnership. The beneficial interest required
as a qualification for appointment as administrator of the estate of a decedent is the
interest in the whole estate and not only in some part thereof. The petitioner being
entitled to one-half in usufruct of all the exclusive properties of the decedent, she would
have as much if not more interest in administering the entire estate correctly, in order to
reap the benefit of a wise, speedy, economical administration of the state, and not suffer
the consequences of the waste, improvidence or mismanagement thereof. The good or
bad administration of the property may affect rather the fruits than the naked
ownership of a property.

However, for the decision of the question involved in this proceeding it is not necessary
for us to determine whether or not the respondent judge has acted with grave abuse of
discretion in rendering the resolution complained of for the reasons just stated, in view
of our conclusion that the respondent judge acted in excess of the court's jurisdiction in
appointing two separate special administratices of the estate of the decedent: one of the
conjugal or community property and another of the capital or exclusive property of the
deceased Pablo M. Roxas.

According to section 2, Rule 75, taken from section 685 of the former Code of Civil
Procedure, Act No. 190, as amended, "when the marriage is dissolved by the death of
the husband or wife, the community property shall be inventoried, administered, and
liquidated, and the debts thereof paid, in the testate or intestate proceedings of the
deceased spouse." That is the reason why, according to section 4, Rule 78, the "letters
testamentary, or letters of administration with the will annexed, shall extend to all the
estate of the testator in the Philippines," and section 6, Rule 79, provides for
appointment of one administrator in case of intestacy, except in certain cases in which
two or more joint, but not separate and independent, administrators may be appointed
under section 3, Rule 82. Therefore the administrator appointed to administer and
liquidate the exclusive property of a deceased spouse shall also administer, liquidate
and distribute the community property, because the estate of a deceased spouse which
is to be settled, that is, administered, liquidated and distributed, consists not only of the
exclusive properties of the decedent, but also of one-half of the assets of the conjugal
partnership, if any, which may pertain to the deceased, as determined after the
liquidation thereof in accordance with the provisions of articles 1421 to 1424 of the Civil
Code.

There is absolutely no reason for appointing two separate administrators, specially if

the estate to be settled is that of a deceased husband as in the present case, for according
to articles 1422 and 1423 of the Civil Code, only after the dowry and parapherna of the
wife and the debts, charges, and obligations of the conjugal partnership have been paid,
the capital or exclusive property of the husband may be liquidated and paid in so far as
the inventoried estate may reach; and if the estate inventoried should not be sufficient
to pay the dowry and the parapherna of the wife and the debts, charges and obligations
of the partnership, the provision of Title XVII of the Civil Code relating to concurrence
and preference of credits shall be observed. If two separate administrators are
appointed as done in the present case, in every action which one of them may institute
to recover properties or credit of the deceased, the defendant may raise the question or
set up the defense that the plaintiff has no cause of action, because the property or
credit in issue belongs to the class which is being administered by the other
administrator, which can not be done if the administrator of the entire estate is only
one.

As under the law only one general administrator may be appointed to administer,
liquidate and distribute the estate of a deceased spouse, it clearly follows that only one
special administrator may be appointed to administer temporarily said estate, because a
special administrator is but a temporary administrator who is appointed to act in lieu of
the general administrator. "When there is delay in granting letters testamentary or of
administration occasioned by an appeal from the allowance or disallowance of will, or
from any other cause, the court may appoint a special administrator to collect and take
charge of the estate of the deceased until the questions causing the delay are decided
and executors or administrators thereupon appointed," (sec. 1, Rule 81). Although his
powers and duties are limited to "collect and take charge of the goods, chattels, rights,
credits, and estate of the deceased and preserve the same for the executor or
administrator afterwards appointed, and for that purpose may commence and maintain
suits as administrator, and may sell such perishable and other property as the court
orders sold. A special administrator shall not be liable to pay any debts of the
deceased." (Section 2, Rule 81.)lawphil.net

In view of all the foregoing, we hold that the court below has no power to appoint two
special administratices of the estate of a deceased husband or wife, one of the
community property and another of the exclusive property of the decedent, and
therefore the respondent judge acted in excess of the court's jurisdiction in rendering or
issuing the order complained of, and therefore said order is hereby set aside, with costs
against the respondents. So ordered.

VERSUS

G.R. No. L-10907             June 29, 1957

AUREA MATIAS, petitioner, 
vs.
HON. PRIMITIVO L. GONZALEZ, ETC., ET AL., respondents.

J. Gonzales Orense for petitioner.

Venancio H. Aquino for respondents.

CONCEPCION, J.:
Petitioner Aurea Matias seeks a writ of certiorari to annul certain orders of Hon.
Primitivo L. Gonzales, as Judge of the Court of First Instance of Cavite, in connection
with Special Proceedings No. 5213 of said court, entitled "Testate Estate of the Deceased
Gabina Raquel."

On May 15, 1952, Aurea Matias initiated said special proceedings with a petition for the
probate of a document purporting to be the last will and testament of her aunt, Gabina
Raquel, who died single on May 8, 1952, at the age of 92 years. The heir to the entire
estate of the deceased — except the properties bequeathed to her other niece and
nephews, namely, Victorina Salud, Santiago Salud, Policarpio Salud, Santos Matias and
Rafael Matias — is, pursuant to said instrument, Aurea Matias, likewise, appointed
therein as executrix thereof, without bond. Basilia Salud, a first cousin of the deceased,
opposed the probate of her alleged will, and, after appropriate proceedings, the court,
presided over by respondent Judge, issued an order, dated February 8, 1956, sustaining
said opposition and denying the petition for probate. Subsequently, Aurea Matias
brought the matter on appeal to this Court (G.R. No. L-10751), where it is now pending
decision.

Meanwhile, or on February 17, 1956, Basilia Salud moved for the dismissal of Horacio
Rodriguez, as special administrator of the estate of the deceased, and the appointment,
in his stead of Ramon Plata. The motion was set for hearing on February 23, 1956, on
which date the court postponed the hearing to February 27, 1956. Although notified of
this order, Rodriguez did not appear on the date last mentioned. Instead, he filed an
urgent motion praying for additional time within which to answer the charges
preferred against him by Basilia Salud and for another postponement of said hearing.
This motion was not granted, and Basilia Salud introduced evidence in support of said
charges, whereupon respondent Judge by an order, dated February 27, 1956, found
Rodriguez guilty of abuse of authority and gross negligence, and, accordingly, relieved
him as special administrator of the estate of the deceased and appointed Basilia Salud as
special administratrix thereof, to "be assisted and advised by her niece, Miss Victorina
Salud," who "shall always act as aide, interpreter and adviser of Basilia Salud." Said
order, likewise, provided that "Basilia Salud shall be helped by Mr. Ramon Plata . . .
who is hereby appointed as co-administrator."

On March 8, 1956, Aurea Matins asked that said order of February 27, 1956, be set aside
and that she be appointed special co-administratrix, jointly with Horacio Rodriguez,
upon the ground that Basilia Salud is over eighty (80) years of age, totally blind and
physically incapacitated to perform the duties of said office, and that said movant is the
universal heiress of the deceased and the person appointed by the latter as executrix of
her alleged will. This motion was denied in an order dated March 10, 1956, which
maintained "the appointment of the three above named persons" — Basilia Salud,
Ramon Plata and Victorina Salud — "for the management of the estate of the late
Gabina Raquel pending final decision on the probate of the alleged will of said
decedent." However, on March 17, 1956, Basilia Salud tendered her resignation as
special administratrix by reason of physical disability, due to old age, and
recommended the appointment, in her place, of Victorina Salud. Before any action
could be taken thereon, or on March 21, 1956, Aurea Matias sought a reconsideration of
said order of March 10, 1956. Moreover, on March 24, 1956, she expressed her
conformity to said resignation, but objected to the appointment, in lieu of Basilia Salud,
of Victorina Salud, on account of her antagonism to said Aurea Matias — she (Victorina
Salud) having been the principal and most interested witness for the opposition to the
probate of the alleged will of the deceased — and proposed that the administration of
her estate be entrusted to the Philippine National Bank, the Monte de Piedad, the Bank
of the Philippine Islands, or any other similar institution authorized by law therefor,
should the court be reluctant to appoint the movant as special administratrix of said
estate. This motion for reconsideration was denied on March 26, 1956.

Shortly afterwards, or on June 18, 1956, respondents Ramon Plata and Victorina Salud
requested authority to collect the rents due, or which may be due, to the estate of the
deceased and to collect all the produce of her lands, which was granted on June 23,
1956. On June 27, 1956, said respondents filed another motion praying for permission to
sell the palay of the deceased then deposited in different rice mills in the province of
Cavite, which respondent judge granted on June 10, 1956. Later on, or on July 10, 1956,
petitioner instituted the present action against Judge Gonzales, and Victorina Salud and
Ramon Plata, for the purpose of annulling the above mentioned orders of respondent
Judge, upon the ground that the same had been issued with grave abuse of discretion
amounting to lack or excess of jurisdiction.

In support of this pretense, it is argued that petitioner should have preference in the
choice of special administratrix of the estate of the decedent, she (petitioner) being the
universal heiress to said estate and, the executrix appointed in the alleged will of the
deceased, that until its final disallowance — which has not, as yet, taken place she has a
special interest in said estate, which must be protected by giving representation thereto
in the management of said estate; that, apart from denying her any such representation,
the management was given to persons partial to her main opponent, namely, Basilia
Salud, inasmuch as Victorina Salud is allied to her and Ramon Plata is a very close
friend of one of her (Basilia Salud's) attorneys; that Basilia Salud was made special
administratrix despite her obvious unfitness for said office, she being over eighty (80)
years of age and blind; that said disability is borne out by the fact that on March 17,
1956, Basilia Salud resigned as special administratrix upon such ground; that the Rules
of Court do not permit the appointment of more than one special administrator; that
Horacio Rodriguez was removed without giving petitioner a chance to be heard in
connection therewith; and that Ramon Plata and Victorina Salud were authorized to
collect the rents due to the deceased and the produce of her lands, as well to sell her
palay, without previous notice to the petitioner herein.

Upon the other hand, respondents maintain that respondent Judge acted with the scope
of his jurisdiction and without any abuse of discretion; that petitioner can not validly
claim any special interest in the estate of the deceased, because the probate of the
alleged will and testament of the latter — upon which petitioner relies — has been
denied; that Horacio Rodriguez was duly notified of the proceedings for his removal;
and that Victorina Salud and Ramon Plata have not done anything that would warrant
their removal.

Upon a review of the record, we find ourselves unable to sanction fully the acts of
respondent Judge, for the following reasons:

1. Although Horacio Rodriguez had notice of the hearing of the motion for his removal,
dated February 17, 1956, the record shows that petitioner herein received copy of said
motion of February 24, 1956, or the date after that set for the hearing thereof. Again,
notice of the order of respondent Judge, dated February 23, 1956, postponing said
hearing to February 27, 1956, was not served on petitioner herein.

2. In her motion of February 17, 1956, Basilia Salud prayed for the dismissal of Horacio
Rodriguez, and the appointment of Ramon Plata, as special administrator of said estate.
Petitioner had, therefore, no notice that her main opponent, Basilia Salud, and the latter's
principal witness, Victorina Salud, would be considered for the management of said. As
a consequence, said petitioner had no opportunity to object to the appointment of
Basilia Salud as special administratrix, and of Victorina Salud, as her assistant and
adviser, and the order of February 27, 1956, to this effect, denied due process to said
petitioner.

3. Said order was issued with evident knowledge of the physical disability of Basilia
Salud. Otherwise respondent Judge would not have directed that she "be assisted and
advised by her niece Victorina Salud," and that the latter "shall always act as aide,
interpreter and adviser of Basilia Salud."

4. Thus, respondent Judge, in effect, appointed three (3) special administrators — Basilia
Salud, Victorina Salud and Ramon Plata. Indeed, in the order of March 10, 1956,
respondent Judge maintained "the appointment of the three (3) above-named persons for
the management of the estate of the late Gabina Raquel."

5. Soon after the institution of said Special Proceedings No. 5213, an issue arose between
Aurea Matias and Basilia Salud regarding the person to be appointed special
administrator of the estate of the deceased. The former proposed Horacio Rodriguez,
whereas the latter urged the appointment of Victorina Salud. By an order dated August
11, 1952, the Court, then presided over by Hon. Jose Bernabe, Judge, decided the matter
in favor of Horacio Rodriguez and against Victorina Salud, upon the ground that,
unlike the latter, who, as a pharmacist and employee in the Santa Isabel Hospital,
resides In the City of Manila, the former, a practicing lawyer and a former public
prosecutor, and later, mayor of the City of Cavite, is a resident thereof. In other words,
the order of resident thereof. In other words, the order of respondent Judge of February
27, 1956, removing Rodriguez and appointing Victorina Salud to the management of the
estate, amounted to a reversal of the aforementioned order of Judge Bernabe of August
11, 1952.

6. Although the probate of the alleged will and testament of Gabina Raquel was denied
by respondent Judge, the order to this effect is not, as yet, final and executory. It is
pending review on appeal taken by Aurea Matias. The probate of said alleged will
being still within realm of legal possibility, Aurea Matias has — as the universal heir
and executrix designated in said instrument — a special interest to protect during the
pendency of said appeal. Thus, in the case of Roxas vs. Pecson* (46 Off. Gaz., 2058), this
Court held that a widow, designated as executrix in the alleged will and testament of
her deceased husband, the probate of which had denied in an order pending appeal,
"has . . . the same beneficial interest  after the decision of the court disapproving the will,
which is now pending appeal, because the decision is not yet final and may be reversed by the
appellate court."

7. The record shows that there are, at least two (2) factions among the heirs of the
deceased, namely, one, represented by the petitioner, and another, to which Basilia
Salud and Victorina Salud belong. Inasmuch as the lower court had deemed it best to
appoint more than one special administrator, justice and equity demands that both
factions be represented in the management of the estate of the deceased.

The rule, laid down in Roxas vs. Pecson (supra), to the effect that "only one special
administrator may be appointed to administrator temporarily" the estate of the
deceased, must be considered in the light of the facts obtaining in said case. The lower
court appointed therein one special administrator for some properties forming part of
said estate, and a special administratrix for other properties thereof. Thus, there were
two (2) separate and independent special administrators. In the case at bar there is
only one (1) special administration, the powers of which shall be exercised jointly by two
special co-administrators. In short, the Roxas case is not squarely in point. Moreover,
there are authorities in support of the power of courts to appoint several special co-
administrators (Lewis vs. Logdan, 87 A. 750; Harrison vs. Clark, 52 A. 514; In re
Wilson's Estate, 61 N.Y.S. 2d., 49; Davenport vs. Davenport, 60 A. 379).

Wherefore, the orders complained of are hereby annulled and set aside. The lower court
should re-hear the matter of removal of Horacio Rodriguez and appointment of special
administrators, after due notice to all parties concerned, for action in conformity with
the views expressed herein, with costs against respondents Victorina Salud and Ramon
Plata. It is so ordered.

MATIAS VS. GONZALES

FACTS:
Aurea Matias, being the universal heiress and named executrix in the purported will of
her Aunt Gabina Raquel who died single, instituted probate proceeding.
However, Basilia, cousin of the deceased and was over 80 y/o, totally blind opposed its
probate and pray for the appointment of her niece Victorina, a pharmacist, as special
administrator. Opposition was sustained by the lower court. So Matias appealed, and
while pending appeal, it was Horacio Rodriguez, a practicing lawyer, former
prosecutor and Mayor of Cavite was appointed special administrator.

Basilia the cousin again opposed and insist his removal and pray that special
administration be issued to Ramon Plata. The Lower court under the respondent judge
granted the opposition and appoint Basilia, Victorina, and Ramon Plata as special
administrator and remove Horacio.

Matias questioned the order and inisist that PNB or BPI be appointed should the court
refused her qualification, but was denied. Later on, due to inability to perform duties,
Basilia withrew.

Hence this petition by Matias against the judge, Victorina and Plata.

ISSUE: w/n judge committed grave abuse of discretion for not appointing the named
executrix and the propriety of appointing more than 1 special administratrix.
HELD: SC found the actions of respondent judge cannot be supported with
1. While the probate of the will was denied, the order to this effect is not yet final and
executory. Matias being universal heiress and executrix still has special interest to
protect.
2. While generally, there should only be 1 special administrator maybe appointed,
probate court in its

G.R. No. L-8409        December 28, 1956

In the Matter of the Intestate of the deceased Andres Eusebio. EUGENIO

EUSEBIO, petitioner-appellee, 
vs.
AMANDA EUSEBIO, JUAN EUSEBIO, DELFIN EUSEBIO, VICENTE EUSEBIO, and
CARLOS EUSEBIO,oppositors-appellants.

Francisco M. Ramos and Valeriano Silva for appellee. 

Filemon Cajator for appellants.

CONCEPCION, J.:

This case instituted on November 16, 1953, when Eugenio Eusebio filed with the Court
of First Instance of Rizal, a petition for his appointment as administrator of the estate of
his father, Andres Eusebio, who died on November 28, 1952, residing, according to said
petition, in the City of Quezon. On December 4, 1953, Amanda, Virginia, Juan, Delfin,
Vicente and Carlos, all surnamed Eusebio, objected to said petition, stating that they are
illegitimate children of the deceased and that the latter was domiciled in San Fernando,
Pampanga, and praying, therefore, that the case be dismissed upon the ground that
venue had been improperly filed. By an order, dated March 10, 1954, said court
overruled this objection and granted said petition. Hence, the case is before us on
appeal taken, from said order, by Amanda Eusebio, and her aforementioned sister and
brothers.

The appeal hinges on the situs of the residence of Andres Eusebio on November 28,
1952, for Rule 75, section 1, of the Rules of Court, provides:

Where estate of deceased persons settled. — If the decedent is an inhabitant of the

Philippines at the time of his death, whether a citizens or an alien, his will shall
be proved, or letters of administration granted, and his estate, in the Court of
First Instance in the province in which he resides at the time of his death, and if
he is an inhabitant of a foreign country, the Court of First Instance of any
province in which he had estate. The court first taking cognizance of the
settlement of the estate of a decedent, shall exercise jurisdiction to the exclusion
of all other courts. The jurisdiction assumed by a court, so far as it depends on
the place of residence of the decedent, or of the location of his estate, shall not be
contested in a suit or proceeding, except in an appeal from that court, in the
original case, or when the want of jurisdiction appears on the record.

It is not disputed that up to, at least, October 29, 1952, Andres Eusebio was, and had
always been, domiciled in San Fernando, Pampanga, where he had his home, as well as
some other properties. Inasmuch as his heart was in bad condition and his son, Dr.
Jesus Eusebio, who treated him, resided at No. 41 P. Florentino St., Quezon City, on
October 29, 1952, Andres Eusebio bought a house and lot at 889-A España Extention, in
said City (Exhibit 2). While transferring his belongings to this house, soon thereafter,
the decedent suffered a stroke (probably heart failure), for which reason Dr. Eusebio
took him to his (Dr. Eusebio's) aforementioned residence, where the decedent remained
until he was brought to the UST Hospital, in the City of Manila, sometimes before
November 26, 1952. On this date, he contracted marriage in articulo mortis with his
common law wife, Concepcion Villanueva, in said hospital. Two (2) days later, he died
therein of "acute left ventricular failure secondary to hypertensive heart disease", at the
age of seventy-four (74) years (Exhibit A). Consequently, he never stayed or even slept
in said house at España Extention.

It being apparent from the foregoing that the domicile of origin of the decedent was San
Fernando, Pampanga, where he resided for over seventy (70) years, the presumption is
that he retained such domicile, and, hence, residence, in the absence of satisfactory
proof to the contrary, for it is well-settled that "a domicile once acquired is retained
until a new domicile is gained" (Minor, Conflict of Laws, p.70; Restatement of the Law
on Conflict of Laws, p. 47; In re Estate of Johnson, 192 Iowa, 78). Under the
circumstances surrounding the case at bar, if Andres Eusebio established another
domicile, it must have been one of choice, for which the following conditions are
essential, namely: (1) capacity to choose and freedom of choice; (2) physical presence at
the place chosen; and (3) intention to stay therein permanently (Minor, Conflict of Laws,
pp. 109-110; Googrich, Conflict of Laws, p. 169; Velilla vs. Posadas, 62 Phil., 624;
Zuellig  vs.  Republic of the Philippines, 46 Off. Gaz. Suppl. No. 11, p. 220). Admittedly,
the decedent was juridically capable of choosing a domicile and had been in Quezon
City several days prior to his demise. Thus, the issue narrows down to whether he
intended to stay in that place permanently.

There is no direct evidence of such intent. Neither does the decedent appears to have
manifested his wish to live indefinitely in said city. His son, petitioner-appellee, who
took the witness stand, did not testify thereon, despite the allegation, in his answer to
the aforemention, opposition of the appellants herein, that "the deceased (had) decided
to reside . . . for the rest of his life, in Quezon City". Moreover, said appellee did not
introduce the testimony of his legitimate full brother and son of the decedent, Dr. Jesus
Eusebio, upon whose advice, presumably, the house and lot at No. 889-A España
Extention was purchased, and who, therefore, might have cast some light on his
(decedent's) purpose in buying said property. This notwithstanding, the lower court
held that the decedent's intent to stay permanently in Quezon City is "manifest" from
the acquisition of said property and the transfer of his belonging thereto. This
conclusion is untenable.lawphil.net

The aforementioned house and lot were bought by the decedent because he had been
adviced to do so "due to his illness", in the very words of herein appellee. It is not
improbable — in fact, its is very likely — that said advice was given and followed in
order that the patient could be near his doctor and have a more effective treatment. It is
well settled that "domicile is not commonly changed by presence in a place merely for
one's own health", even if coupled with "knowledge that one will never again be able,
on account of illness, to return home." (The Conflict of Laws, by Beale, Vol. I, pp. 172-
173; see, also, Shenton vs. Abbott, Md., 15., A. 2d. 906; U.S. vs. Knight, D. C. Mont., 291
Fed. 129).

Again, the decedent did not part with, or alienate, his house in San Fernando,
Pampanga. Moreover, some of his children, who used to live with him in San Fernando,
Pampanga, remained in that municipality. Then, again, in the deed Exhibit 2, by virtue
of which said property at No. 889-A España Extention, Quezon City, was conveyed to
him, on October 29, 1952, or less than a month before his death, the decedent gave San
Fernando, Pampanga, as his residence. Similarly, the "A" and "B" residence certificates
used by the decedent in aknowledging said Exhibit 2, before a notary public, was issued
in San Fernando, Pampanga. Lastly, the marriage contract Exhibit 1, signed by the
deceased when he was married, in articulo mortis, to Concepcion Villanueva, at the UST
Hospital, on November 26, 1952, or two (2) days prior to his demise, stated that his
residence is San Fernando, Pampanga. It is worthy of notice that Alfonso Eusebio, one of
the legitimate full brothers of the herein appellee, was a witness to said wedding, thus
indicating that the children of the deceased by his first marriage, including said
appellee, were represented on that occasion and would have objected to said statement
about his residence, if it were false. Consequently, apart from appellee's failure to prove
satisfactory that the decedent had decided to establish his home in Quezon City, the
acts of the latter, shortly and immediately before his death, prove the contrary. At any
rate, the presumption in favor of the retention of the old domicile 1— which is
particularly strong when the domicile is one of the origin 2as San Fernando, Pampanga,
evidently was, as regards said decedent — has not been offset by the evidence of record.

The lower court, however, rejected said Exhibits 1 and 2, upon being offered in
evidence, and refused to entertain the same in the order appealed from. The reason
therefor are deducible from its resolution in rejecting said documents during the
hearing of the incident at bar. The court then held:

Exihibits "1" and "2" are rejecting but the same may be attached to the records for
whatever action oppositors may want to take later on because until now the
personality of the oppositors has not been established whether or not they have a
right to intervene in this case, and the Court cannot pass upon this question as
the oppositors refuse to submit to the jurisdiction of this Court and they maintain
that these proceedings should be dismissed. (P. 10, t. s. n.)

In short, the lower court believed that said documents should not be admitted in
evidence before appellants had established their "personality" to intervene in the case,
referring seemingly to their filiation. When appellants, however, sought, during said
hearing, to establish their relation with the deceased, as his alleged illegitimate children,
His Honor, the trial Judge sustained appellee's objection thereto stating:

Your stand until now is to question the jurisdiction of this Court, and it seems
that you are now trying to prove the status of your client; you are leading so that.
The main point here is your contention that the deceased was never a resident of
 Quezon City and that is why I allowed you to cross-examine. If you are trying to
establish the status of the oppositors, I will sustain the objection, unless you want
to submit to the jurisdiction of the Court. This is not yet the time to declare who
are persons who should inherit. (p. 1, t. s. n.)

Thus, the lower court refused to consider appellant's evidence on the domicile of the
decedent, because of their alleged lack of "personality", but, when tried to establish such
"personality", they were barred from doing so on account of the question of venue
raised by him. We find ourselves unable to sanction either the foregoing procedure
adopted by the lower court or the inference it drew from the circumstances surrounding
the case.

To begin with, His Honor, the trial Judge had taken inconsistent positions. While, on the
one hand, he declared that appellants could not be permitted to introduce evidence on
the residence of the decedent, for they contestedthe jurisdiction of court, on the other hand,
he held, in the order appealed from, that, by cross-examining the appellee, said
appellants had submitted themselves to the authority of the court.

What is more, this conclusion is refuted by the record. At the beginning of the hearing,
in the lower court, appellants' counsel announced that he would take part therein "only
to question the jurisdiction, for the purpose of dismissing this proceeding," (p. 2, t.s.n.).
During the cross-examination of petitioner herein, said counsel tried to elicit the relation
between the decedent and the appellants. As, the appellee objected thereto, the court
said, addressing appellants' counsel: "Your stand until now is to question the jurisdiction of
the court. . . . It you are trying to establish the status of the oppositors, I will sustain the
objection, unless you want to submit to the jurisdiction of the court" (p. 7, t.s.n.). Thereupon,
appellants' counsel refused to do so, stating: "I will insist on my stand." Then, too, at the
conclusion of the hearing, the court rejected Exhibits 1 and 2, for the reason that
appellants "refuse to submit to the jurisdiction of this court and they maintain that these
proceedings should be dismissed." Thus, appellants specially made of record that they
were not submitting themselves to the jurisdiction of the court, except for the
purpose only of assailing  the same, and the court felt that appellants were not giving up
their stand, which was, and is, a fact.

At any rate, appellants were entitled to establish facts tending to prove, not only their
right to object to appellee's petition, but, also, that venue had been laid improperly.
Such facts were: (a) their alleged relationship with the decedent, 3 which, if true, entitle
them to proceed him under the Civil Code of the Philippines; and (b) his alleged
residence is Pampanga. In other words, the lower court should have admitted Exhibits 1
and 2 in evidence and given thereto the proper effect, in connection with the issue
under consideration.

Appellee, however, asks: "What will happen if this case be dismissed in the Court of
First Instance of Quezon City on the ground of lack of jurisdiction or improper venue?"
In this connection, it appears that on November 14, 1953, the Clerk of the Court of First
Instance of Pampanga received a petition of appellants herein, dated November 4, 1953,
for the settlement of the "Intestate Estate of the late Don Andres Eusebio". Attached to
said petition was petition for the docketing thereof free charge, pursuant to Rule 3,
section 22, of the Rules of Court. The latter petition was granted by an order dated
November 16, 1953, which was received by the cashier of said court on November 17,
1953, on which date the case was docketed as Special Proceedings No. 957. On
December 14, 1953, Jesus, Eugenio, Amando and Alfonso, all surnamed Eusebio (the
children of the decedent by first marriage, including petitioner herein), moved for the
dismissal of said proceedings, owing to the pendency of the present case, before the
Court of First Instance of Rizal, since November 16, 1953. This motion was granted in an
order dated December 21, 1953, relying upon the above Rule 75, section 1, of the Rules
of Court, pursuant to which "the court first taking cognizance of the settlement of the
estate of a decedent, shall exercise jurisdiction to the exclusion of all other courts."

Although said order is now final, it cannot affect the outcome of the case at bar. Said
order did not pass upon the question of domicile or residence of the decedent.
Moreover, in granting the court first taking cognizance of the case exclusive jurisdiction
over the same, said provision of the Rules of Court evidently refers to cases triable
before two or more courts with concurrent jurisdiction. It could not possibly have
intended to deprive a competent court of the authority vested therein by law, merely
because a similar case had been previously filed before a court to which jurisdiction is
denied by law, for the same would then be defeated by the will of one of the parties.
More specially, said provision refers mainly to non-resident decedents who have
properties in several provinces in the Philippines, for the settlement of their respective
estates may undertaken before the court of first instance of either one of said provinces,
not only because said courts then have concurrent jurisdiction — and, hence, the one
first taking cognizance of the case shall exclude the other courts — but, also, because the
statement to this effect in said section 1 of Rule 75 of the Rules of the Court immediately
follows the last part of the next preceding sentence, which deals with non-resident
decedents, whose estate may settled the court of first instance of any province in which
they have properties.lawphil.net

In view, however, of the last sentence of said section, providing that:

. . . The jurisdiction assumed by a court, so far as it depends on the place of

residence of the decedent, or of the location of his estate, shall not be contested in
a suit or proceedings, except in an appeal from that court, in the original case, or
when the want of jurisdiction appears on the record.

if proceedings for the settlement of the estate of a deceased resident are instituted in
two or more courts, and the question of venue is raised before the same, the court in
which the first case was filed shall have exclusive jurisdiction to decide said issue, and
we so held in the case of Taciana Vda. De Borja vs. Tan, L-7792 (July 27, 1955). Should it
be decided, in the proceedings before the said court, that venue had been improperly
laid, the case pending therein should be dismissed and the corresponding proceedings
may, thereafter, be initiated in the proper court.

In conclusion, we find that the decedent was, at the time of his death, domiciled in San
Fernando, Pampanga; that the Court of First Instance of Rizal had no authority,
therefore, to appoint an administrator of the estate of the deceased, the venue having
been laid improperly; and that it should, accordingly, have sustained appellants'
opposition and dismissed appellee's petition.

Wherefore, the order appealed from is hereby reversed and appellee's petition is
dismissed, with costs against the appellee. It is so ordered.

VERSUS

G.R. No. L-40502 November 29, 1976

VIRGINIA GARCIA FULE, and HONORABLE SEVERO A. MALVAR, Presiding

Judge, Court of First Instance of Laguna, Branch Vl, petitioners, 
vs.
THE HONORABLE COURT OF APPEALS, * PRECIOSA B. GARCIA and
AGUSTINA B. GARCIA, respondents.

G.R. No. L-42670 November 29, 1976

VIRGINIA GARCIA FULE, petitioner, 

vs.
HONORABLE ERNANI C. PAÑO, Presiding Judge of Court of First Instance of
Rizal, Quezon City, Branch XVIII, and PRECIOSA B. GARCIA, respondents.

Francisco Carreon for petitioners.

Augusto G. Gatmaytan for private respondents.

MARTIN, J.:

These two interrelated cases bring to Us the question of what the word "resides" in
Section 1, Rule 73 of the Revised Rules Of Court, referring to the situs of the
settlement of the estate of deceased persons, means. Additionally, the rule in the
appointment of a special administrator is sought to be reviewed.

On May 2, 1973, Virginia G. Fule filed with the Court of First Instance of Laguna, at
Calamba, presided over by Judge Severo A. Malvar, a petition for letters of
administration, docketed as Sp. Proc. No. 27-C, alleging, inter alia, "that on April 26,
1973, Amado G. Garcia, a property owner of Calamba, Laguna, died intestate in the
City of Manila, leaving real estate and personal properties in Calamba, Laguna, and
in other places, within the jurisdiction of the Honorable Court." At the same time,
she moved 
ex parte for her appointment as special administratrix over the estate. On even date,
May 2, 1973, Judge Malvar granted the motion.

A motion for reconsideration was filed by Preciosa B. Garcia on May 8, 1973,

contending that the order appointing Virginia G. Fule as special administratrix was
issued without jurisdiction, since no notice of the petition for letters of
administration has been served upon all persons interested in the estate; there has
been no delay or cause for delay in the proceedings for the appointment of a regular
administrator as the surviving spouse of Amado G. Garcia, she should be preferred
in the appointment of a special administratrix; and, Virginia G. Fule is a debtor of the
estate of Amado G. Garcia. Preciosa B. Garcia, therefore, prayed that she be
appointed special administratrix of the estate, in lieu of Virginia G. Fule, and as
regular administratrix after due hearing.

While this reconsideration motion was pending resolution before the Court, Preciosa
B. Garcia filed on May 29, 1973 a motion to remove Virginia G. Fule as special
administratrix alleging, besides the jurisdictional ground raised in the motion for
reconsideration of May 8, 1973 that her appointment was obtained through
erroneous, misleading and/or incomplete misrepresentations; that Virginia G. Fule
has adverse interest against the estate; and that she has shown herself unsuitable as
administratrix and as officer of the court.
In the meantime, the notice of hearing of the petition for letters of administration
filed by Virginia G. Fule with the Court of First Instance of Calamba, Laguna, was
published on May 17, 24, and 31, 1973, in the Bayanihan, a weekly publication of
general circulation in Southern Luzon.

On June 6, 1973, Preciosa B. Garcia received a "Supplemental Petition for the

Appointment of Regular Administrator ' filed by Virginia G. Fule. This
supplemental petition modified the original petition in four aspects: (1) the
allegation that during the lifetime of the deceased Amado G. Garcia, he was elected
as Constitutional Delegate for the First District of Laguna and his last place of
residence was at Calamba, Laguna; (2) the deletion of the names of Preciosa B. Garcia
and Agustina Garcia as legal heirs of Amado G. Garcia; (3) the allegation that
Carolina Carpio, who was simply listed as heir in the original petition, is the
surviving spouse of Amado G. Garcia and that she has expressly renounced her
preferential right to the administration of the estate in favor of Virginia G. Fule; and
(4) that Virginia G. Fule be appointed as the regular administratrix. The admission of
this supplemental petition was opposed by Preciosa B. Garcia for the reason, among
others, that it attempts to confer jurisdiction on the Court of First Instance of Laguna,
of which the court was not possessed at the beginning because the original petition
was deficient.

On July 19, 1973, Preciosa B. Garcia filed an opposition to the original and
supplemental petitions for letters of administration, raising the issues of jurisdiction,
venue, lack of interest of Virginia G. Fule in the estate of Amado G. Garcia, and
disqualification of Virginia G Fule as special administratrix.

An omnibus motion was filed by Virginia G. Fule on August 20, 1973, praying for
authority to take possession of properties of the decedent allegedly in the hands of
third persons as well as to secure cash advances from the Calamba Sugar Planters
Cooperative Marketing Association, Inc. Preciosa B. Garcia opposed the motion,
calling attention to the limitation made by Judge Malvar on the power of the special
administratrix, viz., "to making an inventory of the personal and real properties
making up the state of the deceased."

However, by July 2, 1973, Judge Malvar and already issued an order, received by
Preciosa B. Garcia only on July 31, 1973, denying the motion of Preciosa B. Garcia to
reconsider the order of May 2, 1973, appointing Virginia G. Fule as special
administratrix, and admitting the supplementation petition of May 18,1973.

On August 31, 1973, Preciosa B. Garcia moved to dismiss the petition, because (1)
jurisdiction over the petition or over the parties in interest has not been acquired by
the court; (2) venue was improperly laid; and (3) Virginia G. Fule is not a party in
interest as she is not entitled to inherit from the deceased Amado G. Garcia.
On September 28, 1973, Preciosa B. Garcia filed a supplemental motion to substitute
Virginia G. Fule as special administratrix, reasoning that the said Virginia G. Fule
admitted before before the court that she is a full-blooded sister of Pablo G. Alcalde,
an illegitimate son of Andrea Alcalde, with whom the deceased Amado G. Garcia has
no relation.

Three motions were filed by Preciosa B. Garcia on November 14, 1973, one, to enjoin
the special administratrix from taking possession of properties in the hands of third
persons which have not been determined as belonging to Amado G. Garcia; another,
to remove the special administratrix for acting outside her authority and against the
interest of the estate; and still another, filed in behalf of the minor Agustina B.
Garcia, to dismiss the petition for want of cause of action, jurisdiction, and improper
venue.

On November 28, 1973, Judge Malvar resolved the pending omnibus motion of
Virgina G. Fule and the motion to dismiss filed by Preciosa B. Garcia. Resolving the
motion to dismiss, Judge Malvar ruled that the powers of the special administratrix
are those provided for in Section 2, Rule 80 of the Rules of Court, 1 subject only to the
previous qualification made by the court that the administration of the properties
subject of the marketing agreement with the Canlubang Sugar Planters Cooperative
Marketing Association should remain with the latter; and that the special
administratrix had already been authorized in a previous order of August 20, 1973 to
take custody and possession of all papers and certificates of title and personal effects
of the decedent with the Canlubang Sugar Planters Cooperative Marketing
Association, Inc. Ramon Mercado, of the Canlubang Sugar Planters Cooperative
Marketing Association, Inc., was ordered to deliver to Preciosa B. Garcia all
certificates of title in her name without any qualifying words like "married to Amado
Garcia" does not appear. Regarding the motion to dismiss, Judge Malvar ruled that
the issue of jurisdiction had already been resolved in the order of July 2, 1973,
denying Preciosa B. Garcia's motion to reconsider the appointment of Virginia G.
Fule and admitting the supplemental petition, the failure of Virginia G. Fule to
allege in her original petition for letters of administration in the place of residence of
the decedent at the time of his death was cured. Judge Malvar further held that
Preciosa B. Garcia had submitted to the jurisdiction of the court and had waived her
objections thereto by praying to be appointed as special and regular administratrix of
the estate.

An omnibus motion was filed by Preciosa B. Garcia on December 27, 1973 to clarify
or reconsider the foregoing order of Judge Malvar, in view of previous court order
limiting the authority of the special administratrix to the making of an inventory.
Preciosa B. Garcia also asked for the resolution of her motion to dismiss the petitions
for lack of cause of action, and also that filed in behalf of Agustina B. Garcia.
Resolution of her motions to substitute and remove the special administratrix was
likewise prayed for.
On December 19, 1973, Judge Malvar issued two separate orders, the first, denying
Preciosa B. Garcia's motions to substitute and remove the special administratrix, and
the second, holding that the power allowed the special administratrix enables her to
conduct and submit an inventory of the assets of the estate.

On January 7, 1974, Preciosa B. Garcia moved for reconsideration of the foregoing

orders of November 28, 1973 and December 19, 1973, insofar as they sustained or
failed to rule on the issues raised by her: (a) legal standing (cause of action) of
Virginia G. Fule; (b) venue; (c) jurisdiction; (d) appointment, qualification and
removal of special administratrix; and (e) delivery to the special administratrix of
checks and papers and effects in the office of the Calamba Sugar Planters
Cooperative Marketing Association, Inc.

On March 27, 1973, Judge Malvar issued the first questioned order denying Preciosa
B. Garcia's motion for reconsideration of January 7, 1974. On July 19, 1974, Judge
Malvar issued the other three questioned orders: one, directing Ramon Mercado, of
the Calamba Sugar Planters Cooperative Marketing Association, Inc., to furnish
Virginia G. Fule, as special administratrix, copy of the statement of accounts and
final liquidation of sugar pool, as well as to deliver to her the corresponding amount
due the estate; another, directing Preciosa B. Garcia to deliver to Virginia G. Fule two
motor vehicles presumably belonging to the estate; and another, directing Ramon
Mercado to deliver to the court all certificates of title in his possession in the name of
Preciosa B. Garcia, whether qualified with the word "single" or "married to Amado
Garcia."

During the hearing of the various incidents of this case (Sp. Proc. 27-C) before Judge
Malvar, 2 Virginia G. Fule presented the death certificate of Amado G. Garcia
showing that his residence at the time of his death was Quezon City. On her part,
Preciosa B. Garcia presented the residence certificate of the decedent for 1973
showing that three months before his death his residence was in Quezon City.
Virginia G. Fule also testified that Amado G. Garcia was residing in Calamba,
Laguna at the time of his death, and that he was a delegate to the 1971 Constitutional
Convention for the first district of Laguna.

On July 26, 1974, Preciosa B. Garcia and Agustina B. Garcia commenced a special
action for certiorari and/or prohibition and preliminary injunction before the Court
of Appeals, docketed as CA-G.R. No. 03221-SP. primarily to annul the proceedings
before Judge Malvar in Sp. Proc. No. 27-C of the Court of First Instance of Laguna, or,
in the alternative, to vacate the questioned four orders of that court, viz., one dated
March 27, 1974, denying their motion for reconsideration of the order denying their
motion to dismiss the criminal and supplemental petitions on the issue, among
others, of jurisdiction, and the three others, all dated July 19, 1974, directing the
delivery of certain properties to the special administratrix, Virginia G. Fule, and to
the court.
On January 30, 1975, the Court of Appeals rendered judgment annulling the
proceedings before Judge Severo A. Malvar in Sp. Proc. 27-C of the Court of First
Instance of Calamba, Laguna, for lack of jurisdiction.

Denied of their motion for reconsideration on March 31, 1975, Virginia G. Fule
forthwith elevated the matter to Us on appeal by certiorari. The case was docketed as
G.R. No. L-40502.

However, even before Virginia G. Fule could receive the decision of the Court of
Appeals, Preciosa B. Garcia had already filed on February 1, 1975 a petition for letters
of administration before the Court of First Instance of Rizal, Quezon City Branch,
docketed as Sp. Proc. No. Q-19738, over the same intestate estate of Amado G. Garcia.
On February 10, 1975, Preciosa B. Garcia urgently moved for her appointment as
special administratrix of the estate. Judge Vicente G. Ericta granted the motion and
appointed Preciosa B. Garcia as special administratrix upon a bond of P30,000.00.
Preciosa B. Garcia qualified and assumed the office.

For the first time, on February 14, 1975, Preciosa B. Garcia informed Judge Ericta of
the pendency of Sp. Proc. No. 27-C before Judge Malvar of the Court of First Instance
of Laguna, and the annulment of the proceedings therein by the Court of Appeals on
January 30, 1975. She manifested, however, her willingness to withdraw Sp. Proc. Q-
19738 should the decision of the Court of Appeals annulling the proceedings before
the Court of First Instance of Laguna in Sp. Proc. No. 27-C have not yet become final,
it being the subject of a motion for reconsideration.

On March 10, 1973, Judge Ericta ordered the suspension of the proceedings before his
court until Preciosa B. Garcia inform the court of the final outcome of the case
pending before the Court of Appeals. This notwithstanding, Preciosa B. Garcia filed
on December 11, 1975, an "Urgent Petition for Authority to Pay Estate Obligations."

On December 13, 1975, Virginia G. Fule filed a "Special Appearance to Question

Venue and Jurisdiction" reiterating the grounds stated in the previous special
appearance of March 3, 1975, and calling attention that the decision of the Court of
Appeals and its resolution denying the motion for reconsideration had been
appealed to this Court; that the parties had already filed their respective briefs; and
that the case is still pending before the Court.

On December 17, 1975, Judge Ernani Cruz Pano, who succeeded Judge Ericta, issued
an order granting Preciosa B. Garcia's "Urgent Petition for Authority to Pay Estate
Obligations" in that the payments were for the benefit of the estate and that there
hangs a cloud of doubt on the validity of the proceedings in Sp. Proc. No. 27-C of the
Court of First Instance of Laguna.

A compliance of this Order was filed by Preciosa B. Garcia on January 12,1976.

On February 4,1974, VIRGINIA G. FULE instituted G.R. No. L-42670, a petition for
certiorari with temporary restraining order, to annul the proceedings in Sp. Proc. No.
Q-19738 and to restrain Judge Ernani Cruz Paño from further acting in the case. A
restraining order was issued on February 9, 1976.

We dismiss the appeal in G.R. No. L-40502 and the petition for certiorari in G.R. No.
L-42670 for the reasons and considerations hereinafter stated.

1. Section 1, Rule 73 of the Revised Rules of Court provides: "If the decedent is an
inhabitant of the Philippines at the time of his death, whether a citizen or an alien, his
will shall be proved, or letters of administration granted, and his estate settled, in the
Court of First Instance in the province in which he resides at the time of his death, and
if he is an inhabitant of a foreign country, the Court of First Instance of any province
in which he had estate. The court first taking cognizance of the settlement of the
estate of a decedent, shall exercise jurisdiction to the exclusion of all other courts.
The jurisdiction assumed by a court, so far as it depends on the place of residence of
the decedent, or of the location of his estate, shall not be contested in a suit or
proceeding, except in an appeal from that court, in the original case, or when the
want of jurisdiction appears on the record." With particular regard to letters of
administration, Section 2, Rule 79 of the Revised Rules of Court demands that the
petition therefor should affirmatively show the existence of jurisdiction to make the
appointment sought, and should allege all the necessary facts, such as death, the
name and last residence of the decedent, the existence, and situs if need be, of assets,
intestacy, where this is relied upon, and the right of the person who seeks
administration, as next of kin, creditor, or otherwise, to be appointed. The fact of
death of the intestate and his last residence within the country are foundation facts
upon which all subsequent proceedings in the administration of the estate rest, and
that if the intestate was not an inhabitant of the state at the time of his death, and left
no assets in the state, no jurisdiction is conferred on the court to grant letters of
administration. 3

The aforequoted Section 1, Rule 73 (formerly Rule 75, Section 1), specifically the
clause "so far as it depends on the place of residence of the decedent, or of the
location of the estate," is in reality a matter of venue, as the caption of the Rule
indicates: "Settlement of Estate of Deceased Persons. Venue and Processes. 4 It could
not have been intended to define the jurisdiction over the subject matter, because
such legal provision is contained in a law of procedure dealing merely with
procedural matters. Procedure is one thing; jurisdiction over the subject matter is
another. The power or authority of the court over the subject matter "existed and was
fixed before procedure in a given cause began." That power or authority is not altered
or changed by procedure, which simply directs the manner in which the power or
authority shall be fully and justly exercised. There are cases though that if the power
is not exercised conformably with the provisions of the procedural law, purely, the
court attempting to exercise it loses the power to exercise it legally. However, this
does not amount to a loss of jurisdiction over the subject matter. Rather, it means that
the court may thereby lose jurisdiction over the person or that the judgment may
thereby be rendered defective for lack of something essential to sustain it. The
appearance of this provision in the procedural law at once raises a strong
presumption that it has nothing to do with the jurisdiction of the court over the
subject matter. In plain words, it is just a matter of method, of convenience to the
parties. 5

The Judiciary Act of 1948, as amended, confers upon Courts of First Instance
jurisdiction over all probate cases independently of the place of residence of the
deceased. Because of the existence of numerous Courts of First Instance in the
country, the Rules of Court, however, purposedly fixes the venue or the place where
each case shall be brought. A fortiori, the place of residence of the deceased in
settlement of estates, probate of will, and issuance of letters of administration does
not constitute an element of jurisdiction over the subject matter. It is merely
constitutive of venue. And it is upon this reason that the Revised Rules of Court
properly considers the province where the estate of a deceased person shall be settled
as "venue." 6

2. But, the far-ranging question is this: What does the term "resides" mean? Does it
refer to the actual residence or domicile of the decedent at the time of his death? We
lay down the doctrinal rule that the term "resides" connotes ex vi termini "actual
residence" as distinguished from "legal residence or domicile." This term "resides,"
like, the terms "residing" and "residence," is elastic and should be interpreted in the
light of the object or purpose of the statute or rule in which it is employed. 7 In the
application of venue statutes and rules — Section 1, Rule 73 of the Revised Rules of
Court is of such nature — residence rather than domicile is the significant factor.
Even where the statute uses the word "domicile" still it is construed as meaning
residence and not domicile in the technical sense. Some cases make a distinction
between the terms "residence" and "domicile" but as generally used in statutes fixing
venue, the terms are synonymous, and convey the same meaning as the term
"inhabitant." 8 In other words, "resides" should be viewed or understood in its
popular sense, meaning, the personal, actual or physical habitation of a person, actual
residence or place of abode. It signifies physical presence in a place and actual stay
thereat. In this popular sense, the term means merely residence, that is, personal
residence, not legal residence or domicile. 9 Residence simply requires bodily
presence as an inhabitant in a given place, while domicile requires bodily presence
in that place and also an intention to make it one's domicile. 10 No particular length of
time of residence is required though; however, the residence must be more than
temporary. 11

3. Divergent claims are maintained by Virginia G. Fule and Preciosa B. Garcia on the
residence of the deceased Amado G. Garcia at the time of his death. In her original
petition for letters of administration before the Court of First Instance of Calamba,
Laguna, Virginia G. Fule measely stated "(t)hat on April 26,1973, Amado G. Garcia, a
property owner of Calamba, Laguna, died intestate in the City of Manila, leaving real
estate and personal properties in Calamba, Laguna, and in other places within the
jurisdiction of this Honorable Court." Preciosa B. Garcia assailed the petition for
failure to satisfy the jurisdictional requirement and improper laying of venue. For
her, the quoted statement avers no domicile or residence of the deceased Amado G.
Garcia. To say that as "property owner of Calamba, Laguna," he also resides in
Calamba, Laguna, is, according to her, non sequitur. On the contrary, Preciosa B.
Garcia claims that, as appearing in his death certificate presented by Virginia G. Fule
herself before the Calamba court and in other papers, the last residence of Amado G.
Garcia was at 11 Carmel Avenue, Carmel Subdivision, Quezon City. Parenthetically,
in her amended petition, Virginia G. Fule categorically alleged that Amado G.
Garcia's "last place of residence was at Calamba, Laguna."

On this issue, We rule that the last place of residence of the deceased Amado G.
Garcia was at 11 Carmel Avenue, Carmel Subdivision, Quezon City, and not at
Calamba, Laguna. A death certificate is admissible to prove the residence of the
decedent at the time of his death. 12 As it is, the death certificate of Amado G. Garcia,
which was presented in evidence by Virginia G. Fule herself and also by Preciosa B.
Garcia, shows that his last place of residence was at 11 Carmel Avenue, Carmel
Subdivision, Quezon City. Aside from this, the deceased's residence certificate for
1973 obtained three months before his death; the Marketing Agreement and Power of
Attorney dated November 12, 1971 turning over the administration of his two parcels
of sugar land to the Calamba Sugar Planters Cooperative Marketing Association, Inc.;
the Deed of Donation dated January 8, 1973, transferring part of his interest in certain
parcels of land in Calamba, Laguna to Agustina B. Garcia; and certificates of titles
covering parcels of land in Calamba, Laguna, show in bold documents that Amado
G. Garcia's last place of residence was at Quezon City. Withal, the conclusion
becomes imperative that the venue for Virginia C. Fule's petition for letters of
administration was improperly laid in the Court of First Instance of Calamba,
Laguna. Nevertheless, the long-settled rule is that objection to improper venue is
subject to waiver. Section 4, Rule 4 of the Revised Rules of Court states: "When
improper venue is not objected to in a motion to dismiss, it is deemed waived." In the
case before Us the Court of Appeals had reason to hold that in asking to substitute
Virginia G. Fule as special administratrix, Preciosa B. Garcia did not necessarily
waive her objection to the jurisdiction or venue assumed by the Court of First
Instance of Calamba, Laguna, but availed of a mere practical resort to alternative
remedy to assert her rights as surviving spouse, while insisting on the enforcement
of the Rule fixing the proper venue of the proceedings at the last residence of the
decedent.

4. Preciosa B. Garcia's challenge to Virginia G. Fule's appointment as special

administratrix is another issue of perplexity. Preciosa B. Garcia claims preference to
the appointment as surviving spouse. Section 1 of Rule 80 provides that "(w)hen
there is delay in granting letters testamentary or of administration by any cause
including an appeal from the allowance or disallowance of a will, the court may
appoint a special administrator to take possession and charge of the estate of the
deceased until the questions causing the delay are decided and executors or
administrators appointed. 13 Formerly, the appointment of a special administrator
was only proper when the allowance or disallowance of a will is under appeal. The
new Rules, however, broadened the basis for appointment and such appointment is
now allowed when there is delay in granting letters testamentary or
administration by any cause e.g., parties cannot agree among
themselves. 14 Nevertheless, the discretion to appoint a special administrator or not
lies in the probate court. 15That, however, is no authority for the judge to become
partial, or to make his personal likes and dislikes prevail over, or his passions to rule,
his judgment. Exercise of that discretion must be based on reason, equity, justice and
legal principle. There is no reason why the same fundamental and legal principles
governing the choice of a regular administrator should not be taken into account in
the appointment of a special administrator. 16 Nothing is wrong for the judge to
consider the order of preference in the appointment of a regular administrator in
appointing a special administrator. After all, the consideration that overrides all
others in this respect is the beneficial interest of the appointee in the estate of the
decedent. 17 Under the law, the widow would have the right of succession over a
portion of the exclusive property of the decedent, besides her share in the conjugal
partnership. For such reason, she would have as such, if not more, interest in
administering the entire estate correctly than any other next of kin. The good or bad
administration of a property may affect rather the fruits than the naked ownership of
a property. 18

Virginia G. Fule, however, disputes the status of Preciosa B. Garcia as the widow of
the late Amado G. Garcia. With equal force, Preciosa B. Garcia maintains that
Virginia G. Fule has no relation whatsoever with Amado G. Garcia, or that, she is a
mere illegitimate sister of the latter, incapable of any successional rights. 19 On this
point, We rule that Preciosa B. Garcia is prima facie entitled to the appointment of
special administratrix. It needs be emphasized that in the issuance of such
appointment, which is but temporary and subsists only until a regular administrator
is appointed, 20 the appointing court does not determine who are entitled to share in
the estate of the decedent but who is entitled to the administration. The issue of
heirship is one to be determined in the decree of distribution, and the findings of the
court on the relationship of the parties in the administration as to be the basis of
distribution. 21 The preference of Preciosa B. Garcia is with sufficient reason. In a
Donation Inter Vivos executed by the deceased Amado G. Garcia on January 8, 1973
in favor of Agustina B. Garcia, he indicated therein that he is married to Preciosa B.
Garcia. 22 In his certificate of candidacy for the office of Delegate to the
Constitutional Convention for the First District of Laguna filed on September 1, 1970,
he wrote therein the name of Preciosa B. Banaticla as his spouse. 23 Faced with these
documents and the presumption that a man and a woman deporting themselves as
husband and wife have entered into a lawful contract of marriage, Preciosa B. Garcia
can be reasonably believed to be the surviving spouse of the late Amado G.
Garcia. Semper praesumitur pro matrimonio. 24

5. Under these circumstances and the doctrine laid down in Cuenco vs. Court of
Appeals, 25 this Court under its supervisory authority over all inferior courts may
properly decree that venue in the instant case was properly assumed by and
transferred to Quezon City and that it is in the interest of justice and avoidance of
needless delay that the Quezon City court's exercise of jurisdiction over the
settlement of the estate of the deceased Amado G. Garcia and the appointment of
special administratrix over the latter's estate be approved and authorized and the
Court of First Instance of Laguna be disauthorized from continuing with the case and
instead be required to transfer all the records thereof to the Court of First Instance of
Quezon City for the continuation of the proceedings.

6. Accordingly, the Order of Judge Ernani Cruz Pano of December 17, 1975, granting
the "Urgent Petition for Authority to Pay Estate Obligations" filed by Preciosa B.
Garcia in Sp. Proc. No. Q-19738, subject matter of G.R. No. L-42670, and ordering the
Canlubang Sugar Estate to deliver to her as special administratrix the sum of
P48,874.70 for payment of the sum of estate obligations is hereby upheld.

IN VIEW OF THE FOREGOING, the petitions of petitioner Virginia Garcia Fule in

G.R. No. L-40502 and in G.R. No. L42670 are hereby denied, with costs against
petitioner.

SO ORDERED.