RULE 72 reconsideration lacked a notice of hearing.

On January 17,
2006, the Shari'a District Court denied petitioners'
MONTANER V. SHARI’A DISTRICT COURT, GR 174975 opposition. Despite finding that the said motion for
reconsideration "lacked notice of hearing", the district
[G.R. No. 174975. January 20, 2009.] court held that such defect was cured as petitioners "were
notified of the existence of the pleading", and it took
cognizance of the said motion. The Shari'a District Court
LUISA KHO MONTAÑER, also reset the hearing for the motion for reconsideration. 
ALEJANDRO MONTAÑER, JR., CaAIES
LILLIBETH MONTAÑER-BARRIOS,
AND RHODORA ELEANOR In its first assailed order dated August 22, 2006,
MONTAÑER-DALUPAN, petitioners, v the Shari'a District Court reconsidered its order of
s. SHARI'A DISTRICT COURT, dismissal dated November 22, 2005. The district court
FOURTH SHARI'A JUDICIAL allowed private respondents to adduce further evidence. 
DISTRICT, MARAWI CITY, LILING In its second assailed order dated September 21, 2006, the
DISANGCOPAN, AND ALMAHLEEN Shari'a District Court ordered the continuation of trial,
LILING S. MONTAÑER, respondents. trial on the merits, adducement of further evidence, and
pre-trial conference. 
Seeking recourse before this Court, petitioners
DECISION raise the following issues:
I.
RESPONDENT SHARI'A DISTRICT
PUNO, C.J p: COURT-MARAWI CITY LACKS
JURISDICTION OVER PETITIONERS
This Petition for Certiorari and Prohibition seeks WHO ARE ROMAN CATHOLICS AND
to set aside the Orders of the Shari'a District Court, Fourth NON-MUSLIMS.
Shari'a Judicial District, Marawi City, dated August 22,
2006  and September 21, 2006.  EDHC II.

On August 17, 1956, petitioner Luisa Kho RESPONDENT SHARI'A DISTRICT

Montañer, a Roman Catholic, married Alejandro COURT-MARAWI CITY DID NOT
Montañer, Sr. at the Immaculate Conception Parish in ACQUIRE JURISDICTION OVER "THE
Cubao, Quezon City.  Petitioners Alejandro Montañer, Jr., ESTATES AND PROPERTIES OF THE
Lillibeth Montañer-Barrios, and Rhodora Eleanor LATE ALEJANDRO MONTAÑER,
Montañer-Dalupan are their children.  On May 26, 1995, SR.," WHICH IS NOT A NATURAL OR
Alejandro Montañer, Sr. died.  JURIDICAL PERSON WITH
CAPACITY TO BE SUED.
On August 19, 2005, private respondents Liling
Disangcopan and her daughter, Almahleen Liling S. No. Proceedings before the court a quo are
Montañer, both Muslims, filed a "Complaint" for the for the issuance of letters of
judicial partition of properties before the Shari'a District administration, settlement, and
Court.  The said complaint was entitled "Almahleen Liling distribution of the estate of the deceased,
S. Montañer and Liling M. Disangcopan v. the Estates which is a special proceeding, not a civil
and Properties of Late Alejandro Montañer, Sr., Luisa action. Section 3 (c) of the Rules of Court
Kho Montañer, Lillibeth K. Montañer, Alejandro Kho defines a special proceeding as "a remedy
Montañer, Jr., and Rhodora Eleanor K. Montañer", and by which a party seeks to establish a
docketed as "Special Civil Action No. 7-05". In the said status, a right, or a particular fact". This
complaint, private respondents made the following Court has applied the Rules, particularly
allegations: (1) in May 1995, Alejandro Montañer, Sr. the rules on special proceedings, for the
died; (2) the late Alejandro Montañer, Sr. is a Muslim; (3) settlement of the estate of a deceased
petitioners are the first family of the decedent; (4) Liling Muslim.
Disangcopan is the widow of the decedent; (5) Almahleen
Liling S. Montañer is the daughter of the decedent; and A civil action, in which "a party sues
(6) the estimated value of and a list of the properties another for the enforcement or protection
comprising the estate of the decedent.  Private of a right, or the prevention or redress of a
respondents prayed for the Shari'a District Court to order, wrong" necessarily has definite adverse
among others, the following: (1) the partition of the estate parties, who are either the plaintiff or
of the decedent; and (2) the appointment of an defendant. On the other hand, a special
administrator for the estate of the decedent.  proceeding, "by which a party seeks to
establish a status, right, or a particular
Petitioners filed an Answer with a Motion to fact", has one definite party, who petitions
Dismiss mainly on the following grounds: (1) the Shari'a or applies for a declaration of a status,
District Court has no jurisdiction over the estate of the right, or particular fact, but no definite
late Alejandro Montañer, Sr., because he was a Roman adverse party. In the case at bar, it bears
Catholic; (2) private respondents failed to pay the correct emphasis that the estate of the decedent is
amount of docket fees; and (3) private respondents' not being sued for any cause of action. As
complaint is barred by prescription, as it seeks to establish a special proceeding, the purpose of the
filiation between Almahleen Liling S. Montañer and the settlement of the estate of the decedent is
decedent, pursuant to Article 175 of the Family Code.  to determine all the assets of the estate,
pay its liabilities, and to distribute the
On November 22, 2005, the Shari'a District
residual to those entitled to the same.
Court dismissed the private respondents' complaint. The
district court held that Alejandro Montañer, Sr. was not a III.
Muslim, and its jurisdiction extends only to the settlement
and distribution of the estate of deceased Muslims.  RESPONDENT SHARI'A DISTRICT
COURT DID NOT ACQUIRE
On December 12, 2005, private respondents filed JURISDICTION OVER THE
a Motion for Reconsideration.  On December 28, 2005, COMPLAINT OF PRIVATE
petitioners filed an Opposition to the Motion for RESPONDENTS AGAINST
Reconsideration, alleging that the motion for
1
 PETITIONERS DUE TO NON- defective caption", courts are "guided by the substantive
PAYMENT OF THE FILING AND averments of the pleadings". 
DOCKETING FEES.
Although private respondents designated the
IV. pleading filed before the Shari'a District Court as a
"Complaint" for judicial partition of properties, it is a
RESPONDENT SHARI'A DISTRICT petition for the issuance of letters of administration,
COURT-MARAWI CITY COMMITTED settlement, and distribution of the estate of the decedent.
GRAVE ABUSE OF DISCRETION It contains sufficient jurisdictional facts required for the
AMOUNTING TO LACK OF settlement of the estate of a deceased Muslim, such as the
JURISDICTION WHEN IT DENIED fact of Alejandro Montañer, Sr.'s death as well as the
THE OPPOSITION OF PETITIONERS allegation that he is a Muslim. The said petition also
AND THEN GRANTED THE MOTION contains an enumeration of the names of his legal heirs, so
FOR RECONSIDERATION OF far as known to the private respondents, and a probable
RESPONDENTS LILING list of the properties left by the decedent, which are the
DISANGCOPAN, ET AL. WHICH WAS very properties sought to be settled before a probate court.
FATALLY DEFECTIVE FOR LACK OF Furthermore, the reliefs prayed for reveal that it is the
A "NOTICE OF HEARING". intention of the private respondents to seek judicial
settlement of the estate of the decedent. These include the
V.
following: (1) the prayer for the partition of the estate of
RESPONDENT SHARI'A DISTRICT the decedent; and (2) the prayer for the appointment of an
COURT-MARAWI CITY COMMITTED administrator of the said estate. 
GRAVE ABUSE OF DISCRETION
We cannot agree with the contention of the
AMOUNTING TO LACK OF
petitioners that the district court does not have jurisdiction
JURISDICTION WHEN IT SET SPL.
over the case because of an allegation in their answer with
CIVIL ACTION 7-05 FOR TRIAL EVEN
a motion to dismiss that Montañer, Sr. is not a Muslim.
IF THE COMPLAINT PLAINLY
Jurisdiction of a court over the nature of the action and its
REVEALS THAT RESPONDENT
subject matter does not depend upon the defenses set forth
ALMAHLEEN LILING S. MONTAÑER
in an answer or a motion to dismiss.  Otherwise,
SEEKS RECOGNITION FROM
jurisdiction would depend almost entirely on the
ALEJANDRO MONTAÑER, SR.
defendant or result in having "a case either thrown out of
WHICH CAUSE OF ACTION
court or its proceedings unduly delayed by simple
PRESCRIBED UPON THE DEATH OF
stratagem. Indeed, the "defense of lack of jurisdiction
ALEJANDRO MONTAÑER, SR. ON
which is dependent on a question of fact does not render
MAY 26, 1995. ECDAcS
the court to lose or be deprived of its jurisdiction." 
In their Comment to the Petition for Certiorari, private The same rationale applies to an answer with a
respondents stress that the Shari'a District Court must be motion to dismiss. In the case at bar, the Shari'a District
given the opportunity to hear and decide the question of Court is not deprived of jurisdiction simply because
whether the decedent is a Muslim in order to determine petitioners raised as a defense the allegation that the
whether it has jurisdiction.  deceased is not a Muslim. The Shari'a District Court has
Jurisdiction: Settlement of the Estate of Deceased the authority to hear and receive evidence to determine
Muslims whether it has jurisdiction, which requires an a
priori determination that the deceased is a Muslim. If
Petitioners' first argument, regarding the Shari'a after hearing, the Shari'a District Court determines that the
District Court's jurisdiction, is dependent on a question of deceased was not in fact a Muslim, the district court
fact, whether the late Alejandro Montañer, Sr. is a should dismiss the case for lack of jurisdiction.
Muslim. Inherent in this argument is the premise that
there has already been a determination resolving such a Special Proceedings
question of fact. It bears emphasis, however, that the The underlying assumption in petitioners' second
assailed orders did not determine whether the decedent is argument, that the proceeding before the Shari'a District
a Muslim. The assailed orders did, however, set a hearing Court is an ordinary civil action against a deceased
for the purpose of resolving this issue. person, rests on an erroneous understanding of the
Article 143 (b) of Presidential Decree No. 1083, proceeding before the court a quo. Part of the confusion
otherwise known as the Code of Muslim Personal Laws of may be attributed to the proceeding before the Shari'a
the Philippines, provides that the Shari'a District Courts District Court, where the parties were designated either as
have exclusive original jurisdiction over the settlement of plaintiffs or defendants and the case was denominated as a
the estate of deceased Muslims: special civil action. We reiterate that the proceedings
before the court a quo are for the issuance of letters of
ARTICLE 143. Original administration, settlement, and distribution of the estate of
jurisdiction. — (1) The Shari'a District the deceased, which is a special proceeding. Section 3 (c)
Court shall have exclusive original of the Rules of Court (Rules) defines a special proceeding
jurisdiction over: as "a remedy by which a party seeks to establish a status,
xxx xxx xxx a right, or a particular fact". This Court has applied
the Rules, particularly the rules on special proceedings,
(b) All cases involving for the settlement of the estate of a deceased
disposition, distribution and settlement of Muslim. 31 In a petition for the issuance of letters of
the estate of deceased Muslims, probate of administration, settlement, and distribution of estate, the
wills, issuance of letters of administration applicants seek to establish the fact of death of the
or appointment of administrators or decedent and later to be duly recognized as among the
executors regardless of the nature or the decedent's heirs, which would allow them to exercise their
aggregate value of the property. right to participate in the settlement and liquidation of the
estate of the decedent.  Here, the respondents seek to
The determination of the nature of an action or proceeding establish the fact of Alejandro Montañer, Sr.'s death and,
is controlled by the averments and character of the relief subsequently, for private respondent Almahleen Liling S.
sought in the complaint or petition.  The designation Montañer to be recognized as among his heirs, if such is
given by parties to their own pleadings does not the case in fact. IDASHa
necessarily bind the courts to treat it according to the said
designation. Rather than rely on "a falsa descriptio or
2
 Petitioners' argument, that the prohibition against
a decedent or his estate from being a party defendant in a
civil action applies to a special proceeding such as the
settlement of the estate of the deceased, is misplaced.
Unlike a civil action which has definite adverse parties, a
special proceeding has no definite adverse party. The
definitions of a civil action and a special proceeding,
respectively, in the Rules illustrate this difference. A civil
action, in which "a party sues another for the enforcement
or protection of a right, or the prevention or redress of a
wrong" necessarily has definite adverse parties, who are
either the plaintiff or defendant.  On the other hand, a
special proceeding, "by which a party seeks to establish a
status, right, or a particular fact", has one definite party,
who petitions or applies for a declaration of a status, right,
or particular fact, but no definite adverse party. In the case
at bar, it bears emphasis that the estate of the decedent is
not being sued for any cause of action. As a special
proceeding, the purpose of the settlement of the estate of
the decedent is to determine all the assets of the estate,  held that an exception to the rules on notice of hearing is
pay its liabilities,  and to distribute the residual to those
entitled to the same.  not affected. The purpose for the notice of hearing
Docket Fees
Petitioners' third argument, that jurisdiction was
not validly acquired for non-payment of docket fees, is
untenable. Petitioners point to private respondents'
petition in the proceeding before the court a quo, which
contains an allegation estimating the decedent's estate as
the basis for the conclusion that what private respondents
paid as docket fees was insufficient. Petitioners' argument
essentially involves two aspects: (1) whether the clerk of
court correctly assessed the docket fees; and (2) whether
private respondents paid the correct assessment of the
docket fees.
Filing the appropriate initiatory pleading and the
payment of the prescribed docket fees vest a trial court
with jurisdiction over the subject matter. If the party filing
the case paid less than the correct amount for the docket
fees because that was the amount assessed by the clerk of
court, the responsibility of making a deficiency
assessment lies with the same clerk of court. In such a
case, the lower court concerned will not automatically
lose jurisdiction, because of a party's reliance on the clerk
of court's insufficient assessment of the docket fees.  As
"every citizen has the right to assume and trust that a
public officer charged by law with certain duties knows
his duties and performs them in accordance with law", the
party filing the case cannot be penalized with the clerk of
court's insufficient assessment.  However, the party
concerned will be required to pay the deficiency. 
In the case at bar, petitioners did not present the
clerk of court's assessment of the docket fees. Moreover,
the records do not include this assessment. There can be
no determination of whether private respondents correctly
paid the docket fees without the clerk of court's
assessment.
Exception to Notice of Hearing
Petitioners' fourth argument, that private
respondents' motion for reconsideration before the Shari'a
District Court is defective for lack of a notice of hearing,
must fail as the unique circumstances in the present case
constitute an exception to this requirement.
The Rules require every written motion to be set for
hearing by the applicant and to address the notice of
hearing to all parties concerned. The Rules also provide
that "no written motion set for hearing shall be acted upon
by the court without proof of service thereof." However,
the Rules allow a liberal construction of its provisions "in
order to promote [the] objective of securing a just, speedy,
and inexpensive disposition of every action and
proceeding." Moreover, this Court has upheld a liberal
construction specifically of the rules of notice of hearing
in cases where "a rigid application will result in a
manifest failure or miscarriage of justice especially if a
party successfully shows that the alleged defect in the
3
questioned final and executory judgment is not apparent
on its face or from the recitals contained therein."  In
these exceptional cases, the Court considers that "no party
can even claim a vested right in technicalities", and for
this reason, cases should, as much as possible, be decided
on the merits rather than on technicalities.  CAIHaE
The case at bar falls under this exception. To
deny the Shari'a District Court of an opportunity to
determine whether it has jurisdiction over a petition for
the settlement of the estate of a decedent alleged to be a
Muslim would also deny its inherent power as a court to
control its process to ensure conformity with the law and
justice. To sanction such a situation simply because of a
lapse in fulfilling the notice requirement will result in a
miscarriage of justice.
In addition, the present case calls for a liberal
construction of the rules on notice of hearing, because the
rights of the petitioners were not affected. This Court has
where it appears that the rights of the adverse party were
coincides with procedural due process, for the court to
determine whether the adverse party agrees or objects to
the motion, as the Rules do not fix any period within
which to file a reply or opposition. In probate
proceedings, "what the law prohibits is not the absence
of previous notice, but the absolute absence thereof and
lack of opportunity to be heard."  In the case at bar, as
evident from the Shari'a District Court's order dated
January 17, 2006, petitioners' counsel received a copy of
the motion for reconsideration in question. Petitioners
were certainly not denied an opportunity to study the
arguments in the said motion as they filed an opposition
to the same. Since the Shari'a District Court reset the
hearing for the motion for reconsideration in the same
order, petitioners were not denied the opportunity to
object to the said motion in a hearing. Taken together,
these circumstances show that the purpose for the rules of
notice of hearing, procedural process, was duly observed.
Prescription and Filiation
Petitioners' fifth argument is premature. Again,
the Shari'a District Court has not yet determined whether
it has jurisdiction to settle the estate of the decedent. In
the event that a special proceeding for the settlement of
the estate of a decedent is pending, questions regarding
heirship, including prescription in relation to recognition
and filiation, should be raised and settled in the said
proceeding. The court, in its capacity as a probate court,
has jurisdiction to declare who are the heirs of the
decedent. In the case at bar, the determination of the heirs
of the decedent depends on an affirmative answer to the
question of whether the Shari'a District Court has
jurisdiction over the estate of the decedent.
IN VIEW WHEREOF, the petition is DENIED.
The Orders of the Shari'a District Court, dated August 22,
2006 and September 21, 2006 respectively, are
AFFIRMED. Cost against petitioners. DEHcTI
SO ORDERED.
REYNATO S. PUNO
Chief Justice
Carpio, Corona, Azcuna and Leonardo-de
Castro, JJ., concur.
||| (Montañer v. Shari'a District Court, G.R. No. 174975,
[January 20, 2009], 596 PHIL 815-830)
Notes
Petition denied.
Issues:
I. RESPONDENT SHARI'A DISTRICT COURT-MARAWI
CITY LACKS JURISDICTION OVER PETITIONERS WHO
ARE ROMAN CATHOLICS AND NON-MUSLIMS.
II. ON SPECIAL PROCEEDINGS
RESPONDENT SHARI'A DISTRICT COURT-MARAWI
CITY DID NOT ACQUIRE JURISDICTION OVER "THE
ESTATES AND PROPERTIES OF THE LATE
ALEJANDRO MONTAÑER, SR.," WHICH IS NOT A
NATURAL OR JURIDICAL PERSON WITH CAPACITY
TO BE SUED.
AMOUNTING TO LACK OF JURISDICTION WHEN IT
SET SPL. CIVIL ACTION 7-05 FOR TRIAL EVEN IF THE
COMPLAINT PLAINLY REVEALS THAT RESPONDENT
ALMAHLEEN LILING S. MONTAÑER SEEKS
RECOGNITION FROM ALEJANDRO MONTAÑER, SR.
WHICH CAUSE OF ACTION PRESCRIBED UPON THE
DEATH OF ALEJANDRO MONTAÑER, SR. ON MAY 26,
1995. 

Assumption of petitioners: Proceeding before the Shari'a

District Court is an ordinary civil action against a deceased
person.

No. Proceedings before the court a quo are for the issuance of
letters of administration, settlement, and distribution of the
estate of the

deceased, which is a special proceeding, not a civil action.

Section 3 (c) of the Rules of Court defines a special
proceeding as "a remedy by which a party seeks to establish a
status, a right, or a particular fact". This Court has applied the
Rules, particularly the rules on special proceedings, for the
settlement of the estate of a deceased Muslim.

In a petition for the issuance of letters of administration,

settlement, and distribution of estate, the applicants seek to
establish the fact of death of the decedent and later to be duly
recognized as among the decedent's heirs, which would allow
them to exercise their right to participate in the settlement and
liquidation of the estate of the decedent.  Here, the respondents
seek to establish the fact of Alejandro Montañer, Sr.'s death
and, subsequently, for private respondent Almahleen Liling S.
Montañer to be recognized as among his heirs, if such is the
case in fact. I

A civil action, in which "a party sues another for the

enforcement or protection of a right, or the prevention or
redress of a wrong" necessarily has definite adverse parties,
who are either the plaintiff or defendant. On the other hand, a
special proceeding, "by which a party seeks to establish a
status, right, or a particular fact", has one definite party, who
petitions or applies for a declaration of a status, right, or
particular fact, but no definite adverse party. In the case at bar,
it bears emphasis that the estate of the decedent is not being
sued for any cause of action. As a special proceeding, the
purpose of the settlement of the estate of the decedent is to
determine all the assets of the estate, pay its liabilities, and to
distribute the residual to those entitled to the same.

III. RESPONDENT SHARI'A DISTRICT COURT DID NOT

ACQUIRE JURISDICTION OVER THE COMPLAINT OF
PRIVATE RESPONDENTS AGAINST PETITIONERS DUE
TO NON-PAYMENT OF THE FILING AND DOCKETING
FEES.

IV. RESPONDENT SHARI'A DISTRICT COURT-MARAWI

CITY COMMITTED GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OF JURISDICTION WHEN IT
DENIED THE OPPOSITION OF PETITIONERS AND
THEN GRANTED THE MOTION FOR
RECONSIDERATION OF RESPONDENTS LILING
DISANGCOPAN, ET AL. WHICH WAS FATALLY
DEFECTIVE FOR LACK OF A "NOTICE OF HEARING".

V.RESPONDENT SHARI'A DISTRICT COURT-MARAWI

CITY COMMITTED GRAVE ABUSE OF DISCRETION

4
HRS. OF TEOFILO GABATAN V. CA AND LOURDES
EVERO PACANA, GR 150206
[G.R. No. 150206. March 13, 2009.]
HEIRS OF TEOFILO GABATAN,
namely: LOLITA GABATAN,
POMPEYO GABATAN, PEREGRINO
GABATAN, REYNALDO GABATAN,
NILA GABATAN and JESUS
JABINIS, RIORITA GABATAN
TUMALA and FREIRA
GABATAN, petitioners, vs. HON.
COURT OF APPEALS AND
LOURDES EVERO
PACANA, respondents.
DECISION
LEONARDO-DE CASTRO, J p:
Assailed and sought to be set aside in the instant
petition for review on certiorari are the Decision 1 dated
April 28, 2000, and Resolution 2 dated September 12,
2001 of the Court of Appeals (CA), in CA G.R. CV No.
52273. The challenged Decision affirmed the
decision 3 of the Regional Trial Court (RTC) of Cagayan
de Oro City, Branch 19, dated October 20, 1995 in Civil
Case No. 89-092, an action for Recovery of Property and
Ownership and Possession, thereat commenced by
respondent Lourdes Evero Pacana against petitioners,
heirs of Teofilo Gabatan, Jesus Jabinis and Catalino
Acantilado. aIEDAC
Subject of the present controversy is a 1.1062
hectare parcel of land, identified as Lot 3095 C-5 and
situated at Calinugan, Balulang, Cagayan de Oro City.
This lot was declared for taxation in the name of Juan
Gabatan. In the complaint before the RTC, respondent
alleged that she is the sole owner of Lot 3095 C-5, having
inherited the same from her deceased mother, Hermogena
Gabatan Evero (Hermogena). Respondent further claimed
that her mother, Hermogena, is the only child of Juan
Gabatan and his wife, Laureana Clarito. Respondent
alleged that upon the death of Juan Gabatan, Lot 3095 C-5
was entrusted to his brother, Teofilo Gabatan (Teofilo),
and Teofilo's wife, Rita Gabatan, for administration. It
was also claimed that prior to her death Hermogena
demanded for the return of the land but to no avail. After
Hermogena's death, respondent also did the same but
petitioners refused to heed the numerous demands to
surrender the subject property. According to respondent,
when Teofilo and his wife died, petitioners Jesus Jabinis
and Catalino Acantilado took possession of the disputed
land despite respondent's demands for them to vacate the
same.
In their answer, petitioners denied that
respondent's mother Hermogena was the daughter of Juan
Gabatan with Laureana Clarito and that Hermogena or
respondent is the rightful heir of Juan Gabatan. Petitioners
maintained that Juan Gabatan died single in 1934 and
without any issue and that Juan was survived by one
brother and two sisters, namely: Teofilo (petitioners'
predecessor-in-interest), Macaria and Justa. These siblings
and/or their heirs, inherited the subject land from Juan
Gabatan and have been in actual, physical, open, public,
adverse, continuous and uninterrupted possession thereof
in the concept of owners for more than fifty (50) years
and enjoyed the fruits of the improvements thereon, to the
exclusion of the whole world including respondent.
Petitioners clarified that Jesus Jabinis and Catalino
Acantilado have no interest in the subject land; the former
is merely the husband of Teofilo's daughter while the
latter is just a caretaker. Petitioners added that a similar
5
case was previously filed by respondent against Teofilo's
wife, Rita Vda. de Gabatan, on February 21, 1978,
docketed as Civil Case No. 5840 but the case was
dismissed on May 3, 1983 for lack of interest. Finally,
petitioners contended that the complaint lacks or states no
cause of action or, if there was any, the same has long
prescribed and/or has been barred by laches. HDaACI
On June 20, 1989, the complaint was amended
wherein the heirs of Teofilo were individually named, to
wit: Lolita Gabatan, Pompeyo Gabatan, Peregrino
Gabatan, Reynaldo Gabatan, Nila Gabatan and Jesus
Jabinis, Riorita Gabatan Tumal and Freira Gabatan.
On July 30, 1990, petitioners filed an amended
answer, additionally alleging that the disputed land was
already covered by OCT No. P-3316 in the name of the
heirs of Juan Gabatan represented by petitioner Riorita
Gabatan (Teofilo's daughter).
On October 20, 1995, the RTC rendered a
decision in favor of respondent, the dispositive portion of
which reads:
WHEREFORE, judgment is
hereby rendered in favor of the plaintiff
and against the defendants, declaring the
plaintiff the owner of Lot No. 3095 C-5
situated at Calinugan, Balulang, Cagayan
de Oro City; and ordering the defendants
represented by Riorita Gabatan Tumala
to RECONVEY Original Certificate of
Title No. P-3316 in favor of plaintiff
Lourdes Evero Pacana, free of any
encumbrance; ordering the defendants to
pay P10,000.00 by way of moral damages;
P10,000.00 as Attorney's fees; and
P2,000.00 for litigation expenses.
SO ORDERED. 4
Aggrieved, petitioners appealed to the CA
whereat their recourse was docketed as CA-G.R. CV No.
52273.
On April 28, 2000, the CA rendered the herein
challenged Decision affirming that of the RTC.
Dispositively, the Decision reads:
WHEREFORE, premises
considered, the questioned decision of the
lower court dated October 20, 1995 is
hereby AFFIRMED. With costs against
appellants. SDIaHE
SO ORDERED.
Discounting petitioners' argument that
respondent is not related to Juan Gabatan, the CA
declared that respondent's claim of filiation with Juan
Gabatan was sufficiently established during trial. Thus,
the CA echoed a long line of jurisprudence that findings
of fact of the trial court are entitled to great weight and
are not disturbed except for cogent reasons, such as when
the findings of fact are not supported by evidence.
The CA likewise gave weight to the Deed of
Absolute Sale 5 executed by Macaria Gabatan de
Abrogar, Teofilo, Hermogena and heirs of Justa Gabatan,
wherein Hermogena was identified as an heir of Juan
Gabatan:
. . . HERMOGENA GABATAN,
of legal age, married, Filipino citizen and
presently residing at Kolambugan, Lanao
del Norte, Philippines, as Heir of the
deceased, JUAN GABATAN; . . . .
To the CA, the Deed of Absolute Sale on July
30, 1966 containing such declaration which was signed by
Teofilo and the latter's nearest relatives by consanguinity,
is a tangible proof that they acknowledged Hermogena's
status as the daughter of Juan Gabatan. Applying Section
38, Rule 130 6 of the Rules of Court on the declaration
against interest, the CA ruled that petitioners could not
deny that even their very own father, Teofilo formally
recognized Hermogena's right to heirship from Juan
Gabatan which ultimately passed on to respondent.
As to the issue of prescription, the CA ruled that
petitioners' possession of the disputed property could not
ripen into acquisitive prescription because their
predecessor-in-interest, Teofilo, never held the property in
the concept of an owner.
Aggrieved, petitioners are now with this
Court via the present recourse principally contending that
the CA committed the following reversible errors:
FIRST ERROR: The lower
court erred in not declaring that Juan
Gabatan died single and without issue;
SECOND ERROR: The lower
court erred in declaring the plaintiff-
appellee (respondent) as the sole and
surviving heir of Juan Gabatan, the only
child of a certain Hermogena Clareto
"GABATAN";
THIRD ERROR: The lower
court erred in declaring that a certain
Hermogena Clareto "GABATAN" is the
child and sole heir of Juan
Gabatan; ICaDHT
FOURTH ERROR: The lower
court erred in failing to appreciate by
preponderance of evidence in favor of the
defendants-appellants (petitioners) claim
that they and the heirs of Justa and
Macaria both surnamed Gabatan are the
sole and surviving heirs of Juan Gabatan
and, therefore, entitled to inherit the land
subject matter hereof;
FIFTH ERROR: The lower
court erred in not declaring that the cause
of action of plaintiff-appellee (respondent)
if any, has been barred by laches and/or
prescription. 7
Before proceeding to the merits of the case, we
must pass upon certain preliminary matters.
In general, only questions of law may be raised
in a petition for review on certiorari under Rule 45 of
the Rules of Court. Questions of fact cannot be the subject
of this particular mode of appeal, for this Court is not a
trier of facts. 8 It is not our function to examine and
evaluate the probative value of the evidence presented
before the concerned tribunal upon which its impugned
decision or resolution is based. 9
However, there are established exceptions to the
rule on conclusiveness of the findings of fact by the lower
courts, such as (1) when the findings are grounded
entirely on speculation, surmises or conjectures; (2) when
the inference made is manifestly mistaken; (3) when there
is grave abuse of discretion; (4) when the judgment is
based on a misapprehension of facts; (5) when the
findings of facts are conflicting; (6) when in making its
findings the Court of Appeals went beyond the issues of
the case, or its findings are contrary to the admissions of
both the appellant and the appellee; (7) when the findings
are contrary to the trial court; (8) when the findings are
conclusions without citation of specific evidence on
which they are based; (9) when the facts set forth in the
petition as well as in the petitioner's main and reply briefs
are not disputed by the respondent; (10) when the findings
of fact are premised on the supposed absence of evidence
and contradicted by the evidence on record; and (11)
when the Court of Appeals manifestly overlooked certain
relevant facts not disputed by the parties, which, if
properly considered, would justify a different
conclusion. 10 DHCSTa
6
Moreover, our rules recognize the broad
discretionary power of an appellate court to waive the
lack of proper assignment of errors and to consider errors
not assigned. Thus, the Court is clothed with ample
authority to review rulings even if they are not assigned as
errors in the appeal in these instances: (a) grounds not
assigned as errors but affecting jurisdiction over the
subject matter; (b) matters not assigned as errors on
appeal but are evidently plain or clerical errors within
contemplation of law; (c) matters not assigned as errors
on appeal but consideration of which is necessary in
arriving at a just decision and complete resolution of the
case or to serve the interests of justice or to avoid
dispensing piecemeal justice; (d) matters not specifically
assigned as errors on appeal but raised in the trial court
and are matters of record having some bearing on the
issue submitted which the parties failed to raise or which
the lower court ignored; (e) matters not assigned as errors
on appeal but closely related to an error assigned; and (f)
matters not assigned as errors on appeal but upon which
the determination of a question properly assigned, is
dependent. 11
In the light of the foregoing established
doctrines, we now proceed to resolve the merits of the
case.
The respondent's main cause of action in the
court a quo is the recovery of ownership and possession
of property. It is undisputed that the subject property, Lot
3095 C-5, was owned by the deceased Juan Gabatan,
during his lifetime. 12 Before us are two contending
parties, both insisting to be the legal heir(s) of the
decedent.
Jurisprudence dictates that the determination of
who are the legal heirs of the deceased must be made in
the proper special proceedings in court, and not in an
ordinary suit for recovery of ownership and possession of
property. This must take precedence over the action for
recovery of possession and ownership. The Court has
consistently ruled that the trial court cannot make a
declaration of heirship in the civil action for the reason
that such a declaration can only be made in a special
proceeding. Under Section 3, Rule 1 of the 1997 Revised
Rules of Court, a civil action is defined as one by which a
party sues another for the enforcement or protection of a
right, or the prevention or redress of a wrong while a
special proceeding is a remedy by which a party seeks to
establish a status, a right, or a particular fact. It is then
decisively clear that the declaration of heirship can be
made only in a special proceeding inasmuch as the
petitioners here are seeking the establishment of a status
or right. 13 EHACcT
In the early case of Litam, et al. v. Rivera, 14 this
Court ruled that the declaration of heirship must be made
in a special proceeding, and not in an independent civil
action. This doctrine was reiterated in Solivio v. Court of
Appeals 15 where the Court held:
. . . where despite the pendency
of the special proceedings for the
settlement of the intestate estate of the
deceased Rafael Litam, the plaintiffs-
appellants filed a civil action in which
they claimed that they were the children
by a previous marriage of the deceased to
a Chinese woman, hence, entitled to
inherit his one-half share of the conjugal
properties acquired during his marriage to
Marcosa Rivera, the trial court in the civil
case declared that the plaintiffs-appellants
were not children of the deceased, that the
properties in question were paraphernal
properties of his wife, Marcosa Rivera,
and that the latter was his only heir. On
appeal to this Court, we ruled that such
declarations (that Marcosa Rivera was the
only heir of the decedent) is improper, in
Civil Case No. 2071, it being within the
 exclusive competence of the court in
Special Proceedings No. 1537, in which it
is not as yet, in issue, and, will not be,
ordinarily, in issue until the presentation
of the project of partition.
In the more recent case of Milagros Joaquino v.
Lourdes Reyes, 16 the Court reiterated its ruling that
matters relating to the rights of filiation and heirship must
be ventilated in the proper probate court in a special
proceeding instituted precisely for the purpose of
determining such rights. Citing the case of Agapay v.
Palang, 17 this Court held that the status of an illegitimate
child who claimed to be an heir to a decedent's estate
could not be adjudicated in an ordinary civil action which,
as in this case, was for the recovery of property.
However, we are not unmindful of our decision
in Portugal v. Portugal-Beltran, 18 where the Court
relaxed its rule and allowed the trial court in a proceeding
for annulment of title to determine the status of the party
therein as heirs, to wit:
It appearing, however, that in the
present case the only property of the
intestate estate of Portugal is the Caloocan
parcel of land, to still subject it, under
the circumstances of the case, to a
special proceeding which could be long,
hence, not expeditious, just to establish
the status of petitioners as heirs is not
only impractical; it is burdensome to the
estate with the costs and expenses of an
administration proceeding. And it is
superfluous in light of the fact that the
parties to the civil case — subject of the
present case, could and had already in
fact presented evidence before the trial
court which assumed jurisdiction over
the case upon the issues it defined
during pre-trial. cDTSHE
In fine, under the circumstances
of the present case, there being no
compelling reason to still subject
Portugal's estate to administration
proceedings since a determination of
petitioners' status as heirs could be
achieved in the civil case filed by
petitioners (Vide Pereira v. Court of
Appeals, 174 SCRA 154 [1989]; Intestate
Estate of Mercado v. Magtibay, 96 Phil.
383 [1955]), the trial court should proceed
to evaluate the evidence presented by the
parties during the trial and render a
decision thereon upon the issues it defined
during pre-trial, . . . . (emphasis supplied)
Similarly, in the present case, there appears to be
only one parcel of land being claimed by the contending
parties as their inheritance from Juan Gabatan. It would
be more practical to dispense with a separate special
proceeding for the determination of the status of
respondent as the sole heir of Juan Gabatan, specially in
light of the fact that the parties to Civil Case No. 89-092,
had voluntarily submitted the issue to the RTC and
already presented their evidence regarding the issue of
heirship in these proceeding. Also the RTC assumed
jurisdiction over the same and consequently rendered
judgment thereon.
We GRANT the petition.
After a meticulous review of the records of this
case, we find insufficient and questionable the basis of the
RTC in conferring upon respondent the status of sole heir
of Juan Gabatan.
Respondent, in asserting to be entitled to
possession and ownership of the property, pinned her
claim entirely on her alleged status as sole heir of Juan
7
Gabatan. It was incumbent upon her to present
preponderant evidence in support of her complaint.
Under the Civil Code, the filiation of legitimate
children is established by any of the following:
ART. 265. The filiation of
legitimate children is proved by the record
of birth appearing in the Civil Register, or
by an authentic document or a final
judgment. 
ART. 266. In the absence of the
titles indicated in the preceding article, the
filiation shall be proved by the continuous
possession of status of a legitimate child.
ART. 267. In the absence of a
record of birth, authentic document, final
judgment or possession of status,
legitimate filiation may be proved by any
other means allowed by the Rules of
Court and special laws.
Here, two conflicting birth certificates 19 of
respondent were presented at the RTC. Respondent,
during her direct testimony, presented and identified a
purported certified true copy of her typewritten birth
certificate which indicated that her mother's maiden name
was "Hermogena Clarito Gabatan". Petitioners, on the
other hand, presented a certified true copy of respondent's
handwritten birth certificate which differed from the copy
presented by respondent. Among the differences was
respondent's mother's full maiden name which was
indicated as "Hermogena Clarito" in the handwritten birth
certificate.
In resolving this particular issue, the trial court
ruled in this wise:
The parties are trying to outdo
with (sic) each other by presenting two
conflicting Certificate (sic) of Live Birth
of plaintiff herein, Lourdes Evero Pacana,
which are Exhibit "A" for the plaintiff and
Exhibit "1" for the defendants. Which of
this (sic) is genuine, and which is
falsified. These (sic) issue is crucial and
requires serious scrutiny. The Court is of
the observation that Exhibit "A" for the
plaintiff which is a certified true copy is in
due form and bears the "as is and where
is" rule. It has the impression of the
original certificate. The forms (sic) is an
old one used in the 1950's. Her mother's
maiden name appearing thereof is
Hermogina (sic) Clarito Gabatan. While
Exhibit "1", the entries found
thereof (sic) is handwritten which is very
unusual and of dubious source. The form
used is of latest vintage. The entry on the
space for mother's maiden name is
Hermogena Calarito. There seems to be an
apparent attempt to thwart plaintiff's
mother filiation with the omission of the
surname Gabatan. Considering these
circumstances alone the Court is inclined
to believe that Exhibit "A" for the plaintiff
is far more genuine and authentic
certificate of live birth. 20 DTAaCE
Having carefully examined the questioned birth
certificates, we simply cannot agree with the above-
quoted findings of the trial court. To begin with, Exhibit
A, as the trial court noted, was an original typewritten
document, not a mere photocopy or facsimile. It uses a
form of 1950's vintage 21 but this Court is unable to
concur in the trial court's finding that Exhibit 1 22 was of
a later vintage than Exhibit A which was one of the trial
court's bases for doubting the authenticity of Exhibit 1.
On the contrary, the printed notation on the upper left
hand corner of Exhibit 1 states "Municipal Form No. 102
— (Revised, January 1945)" which makes it an older form
than Exhibit A. Thus, the trial court's finding regarding
which form was of more recent vintage was manifestly
contradicted by the evidence on record. No actual
signature appears on Exhibit A except that of a certain
Maximo P. Noriga, Deputy Local Civil Registrar of the
Office of the Local Civil Registrar, Cagayan de Oro City,
who purportedly certified on July 6, 1977 that Exhibit A
was a true copy of respondent's birth certificate. The
names of the attendant at birth (Petra Sambaan) and the
local civil registrar (J.L. Rivera) in 1950 were typewritten
with the notation "(Sgd.)" also merely typewritten beside
their names. The words "A certified true copy: July 6,
1977" above the signature of Maximo P. Noriga on
Exhibit A appear to be inscribed by the same typewriter
as the very entries in Exhibit A. It would seem that
Exhibit A and the information stated therein were
prepared and entered only in 1977. Significantly, Maximo
P. Noriga was never presented as a witness to identify
Exhibit A. Said document and the signature of Maximo P.
Noriga therein were identified by respondent herself
whose self-serving testimony cannot be deemed sufficient
authentication of her birth certificate.
We cannot subscribe to the trial court's view that
since the entries in Exhibit 1 were handwritten, Exhibit 1
was the one of dubious credibility. Verily, the certified
true copies of the handwritten birth certificate of
respondent (petitioners' Exhibits 1 and 8) were duly
authenticated by two competent witnesses; namely, Rosita
Vidal (Ms. Vidal), Assistant Registration Officer of the
Office of the City Civil Registrar, Cagayan de Oro City
and Maribeth E. Cacho (Ms. Cacho), Archivist of the
National Statistics Office (NSO), Sta. Mesa, Manila. Both
witnesses testified that: (a) as part of their official duties
they have custody of birth records in their respective
offices, 23 and (b) the certified true copy of respondent's
handwritten birth certificate is a faithful reproduction of
the original birth certificate registered in their respective
offices. 24 Ms. Vidal, during her testimony, even brought
the original of the handwritten birth certificate before the
trial court and respondent's counsel confirmed that the
certified true copy (which was eventually marked as
Exhibit 1) was a faithful reproduction of the
original. 25 Ms. Vidal likewise categorically testified that
no other copy of respondent's birth certificate exists in
their records except the handwritten birth
certificate. 26 Ms. Cacho, in turn, testified that the
original of respondent's handwritten birth certificate found
in the records of the NSO Manila (from which Exhibit 8
was photocopied) was the one officially transmitted to
their office by the Local Civil Registry Office of Cagayan
de Oro. 27 Both Ms. Vidal and Ms. Cacho testified and
brought their respective offices' copies of respondent's
birth certificate in compliance with subpoenas issued by
the trial court and there is no showing that they were
motivated by ill will or bias in giving their testimonies.
Thus, between respondent's Exhibit A and petitioners'
Exhibits 1 and 8, the latter documents deserve to be given
greater probative weight. ASDCaI
Even assuming purely for the sake of argument
that the birth certificate presented by respondent (Exhibit
A) is a reliable document, the same on its face is
insufficient to prove respondent's filiation to her alleged
grandfather, Juan Gabatan. All that Exhibit A, if it had
been credible and authentic, would have proven was that
respondent's mother was a certain "Hermogena Clarito
Gabatan". It does not prove that same "Hermogena Clarito
Gabatan" is the daughter of Juan Gabatan. Even the CA
held that the conflicting certificates of live birth of
respondent submitted by the parties only proved the
filiation of respondent to Hermogena. 28
It was absolutely crucial to respondent's cause of
action that she convincingly proves the filiation of her
mother to Juan Gabatan. To reiterate, to prove the
relationship of respondent's mother to Juan Gabatan, our
laws dictate that the best evidence of such familial tie was
the record of birth appearing in the Civil Register, or an
8
authentic document or a final judgment. In the absence of
these, respondent should have presented proof that her
mother enjoyed the continuous possession of the status of
a legitimate child. Only in the absence of these two
classes of evidence is the respondent allowed to present
other proof admissible under the Rules of Court of her
mother's relationship to Juan Gabatan.
However, respondent's mother's (Hermogena's)
birth certificate, which would have been the best evidence
of Hermogena's relationship to Juan Gabatan, was never
offered as evidence at the RTC. Neither did respondent
present any authentic document or final judgment
categorically evidencing Hermogena's relationship to Juan
Gabatan. HCTaAS
Respondent relied on the testimony of her
witnesses, Frisco Lawan, Felicisima Nagac Pacana and
Cecilia Nagac Villareal who testified that they personally
knew Hermogena (respondent's mother) and/or Juan
Gabatan, that they knew Juan Gabatan was married to
Laureana Clarito and that Hermogena was the child of
Juan and Laureana. However, none of these witnesses had
personal knowledge of the fact of marriage of Juan to
Laureana or the fact of birth of Hermogena to Juan and
Laureana. They were not yet born or were very young
when Juan supposedly married Laureana or when
Hermogena was born and they all admitted that none of
them were present at Juan and Laureana's wedding or
Hermogena's birth. These witnesses based their testimony
on what they had been told by, or heard from, others as
young children. Their testimonies were, in a word,
hearsay.
Other circumstances prevent us from giving full
faith to respondent's witnesses' testimonies. The records
would show that they cannot be said to be credible and
impartial witnesses. Frisco Lawan testified that he was the
son of Laureana by a man other than Juan Gabatan and
was admittedly not at all related to Juan Gabatan. 29 His
testimony regarding the relationships within the Gabatan
family is hardly reliable. As for Felicisima Nagac Pacana
and Cecilia Nagac Villareal who are children of Justa
Gabatan Nagac, 30 this Court is wary of according
probative weight to their testimonies since respondent
admitted during her cross-examination that her
(respondent's) husband is the son of Felicisima Nagac
Pacana. 31 In other words, although these witnesses are
indeed blood relatives of petitioners, they are also the
mother and the aunt of respondent's husband. They cannot
be said to be entirely disinterested in the outcome of the
case.
Aside from the testimonies of respondent's
witnesses, both the RTC and the CA relied heavily on a
photocopy of a Deed of Absolute Sale 32 (Exhibit H)
presented by respondent and which appeared to be signed
by the siblings and the heirs of the siblings of Juan
Gabatan. In this document involving the sale of a lot
different from Lot 3095 C-5, "Hermogena Gabatan as heir
of the deceased Juan Gabatan" was indicated as one of the
vendors. The RTC deemed the statement therein as an
affirmation or recognition by Teofilo Gabatan, petitioners'
predecessor in interest, that Hermogena Gabatan was the
heir of Juan Gabatan. 33 The CA considered the same
statement as a declaration against interest on the part of
Teofilo Gabatan. 34
However, the admission of this Deed of Absolute
Sale, including its contents and the signatures therein, as
competent evidence was vigorously and repeatedly
objected to by petitioners' counsel for being a mere
photocopy and not being properly authenticated. 35 After
a close scrutiny of the said photocopy of the Deed of
Absolute Sale, this Court cannot uphold the admissibility
of the same. aIETCA
Under the best evidence rule, when the subject of
inquiry is the contents of a document, no evidence shall
be admissible other than the original document
itself. 36 Although the best evidence rule admits of
exceptions and there are instances where the presentation
of secondary evidence would be allowed, such as when
the original is lost or the original is a public record, the
basis for the presentation of secondary evidence must still
be established. Thus, in Department of Education Culture
and Sports v. Del Rosario, 37 we held that a party must
first satisfactorily explain the loss of the best or primary
evidence before he can resort to secondary evidence. A
party must first present to the court proof of loss or other
satisfactory explanation for non-production of the original
instrument.
In the case at bar, a perusal of the transcript of
the testimony of Felicisima Nagac Pacana (who identified
the photocopy of the Deed of Absolute Sale) plainly
shows that she gave no testimony regarding the
whereabouts of the original, whether it was lost or
whether it was recorded in any public office.
There is an ostensible attempt to pass off Exhibit
H as an admissible public document. For this, respondent
relied on the stamped notation on the photocopy of the
deed that it is a certified true xerox copy and said notation
was signed by a certain Honesto P. Velez, Sr., Assessment
Officer, who seems to be an officer in the local assessor's
office. Regarding the authentication of public documents,
the Rules of Court 38 provide that the record of public
documents, when admissible for any purpose, may be
evidenced by an official publication thereof or by a copy
attested by the officer having legal custody of the record,
or by his deputy. 39 The attestation of the certifying
officer must state, in substance, that the copy is a correct
copy of the original, or a specific part thereof, as the case
may be. 40 cCAIES
To begin with, no proof whatsoever was
presented by respondent that an original of Exhibit H was
registered or exists in the records of the local assessor's
office. Furthermore, the stamped certification of Honesto
P. Velez is insufficient authentication of Exhibit H since
Velez's certification did not state that Exhibit H was a true
copy from the original. Even worse, Velez was not
presented as a witness to attest that Exhibit H was a true
copy from the original. Indeed, it is highly doubtful that
Velez could have made such an attestation since the
assessor's office is not the official repository of original
notarized deeds of sale and could not have been the legal
custodian contemplated in the rules.
It is the notary public who is mandated by law to
keep an original of the Deed of Absolute Sale in his
notarial register and to forward the same to the proper
court. It is the notary public or the proper court that has
custody of his notarial register that could have produced
the original or a certified true copy thereof. Instead, the
Deed of Absolute Sale was identified by Felicisima Nagac
Pacana who, despite appearing to be a signatory thereto, is
not a disinterested witness and as can be gleaned from her
testimony, she had no personal knowledge of the
preparation of the alleged certified true copy of the Deed
of Absolute Sale. She did not even know who secured a
copy of Exhibit H from the assessor's office. 41 To be
sure, the roundabout and defective manner of
authentication of Exhibit H renders it inadmissible for the
purpose it was offered, i.e., as proof that Teofilo Gabatan
acknowledged or admitted the status of Hermogena
Gabatan as heir of Juan Gabatan.
Even if we are to overlook the lack of proper
authentication of Exhibit H and consider the same
admissible, it still nonetheless would have only provided
proof that a certain Hermogena Gabatan was the heir of
Juan Gabatan. Exhibit H does not show the filiation of
respondent to either Hermogena Gabatan or Juan
Gabatan. As discussed above, the only document that
respondent produced to demonstrate her filiation to
"Hermogena Gabatan" (respondent's Exhibit A) was
successfully put in doubt by contrary evidence presented
by petitioners.
9
As for the issue of laches, we are inclined to
likewise rule against respondent. According to
respondent's own testimony, 42 Juan Gabatan died
sometime in 1933 and thus, the cause of action of the
heirs of Juan Gabatan to recover the decedent's property
from third parties or to quiet title to their inheritance
accrued in 1933. Yet, respondent and/or her mother
Hermogena, if they were truly the legal heirs of Juan
Gabatan, did not assert their rights as such. It is only in
1978 that respondent filed her first complaint to recover
the subject property, docketed as Civil Case No. 5840,
against Rita Gabatan, the widow of Teofilo
Gabatan. 43 However, that case was dismissed without
prejudice for failure to prosecute. 44 Again, respondent
waited until 1989 to refile her cause of action, i.e., the
present case. 45 She claimed that she waited until the
death of Rita Gabatan to refile her case out of respect
because Rita was then already old. 46 cTECIA
We cannot accept respondent's flimsy reason. It
is precisely because Rita Gabatan and her contemporaries
(who might have personal knowledge of the matters
litigated in this case) were advancing in age and might
soon expire that respondent should have exerted every
effort to preserve valuable evidence and speedily litigate
her claim. As we held in Republic of the Philippines v.
Agunoy: "Vigilantibus, sed non dormientibus, jura
subveniunt, the law aids the vigilant, not those who sleep
on their rights. . . [O]ne may not sleep on a right while
expecting to preserve it in its pristine purity." 47
All in all, this Court finds that respondent
dismally failed to substantiate, with convincing, credible
and independently verifiable proof, her assertion that she
is the sole heir of Juan Gabatan and thus, entitled to the
property under litigation. Aggravating the weakness of
her evidence were the circumstances that (a) she did not
come to court with clean hands for she presented a
tampered/altered, if not outright spurious, copy of her
certificate of live birth and (b) she unreasonably delayed
the prosecution of her own cause of action. If the Court
cannot now affirm her claim, respondent has her own self
to blame.
WHEREFORE, the petition is GRANTED. The
Court of Appeals' Decision in CA-G.R. CV No. 52273,
affirming the decision of the Regional Trial Court in Civil
Case No. 89-092, is hereby REVERSED and SET
ASIDE. The complaint and amended complaint in Civil
Case No. 89-092 are DISMISSED for lack of merit.
SO ORDERED.
||| (Heirs of Gabatan v. Court of Appeals, G.R. No. 150206,
[March 13, 2009], 600 PHIL 112-136)
Notes
Petition granted. After a meticulous review of the records of
this case, we find insufficient and questionable the basis of the
RTC in conferring upon respondent the status of sole heir of
Juan Gabatan.
ON SPECIAL PROCEEDINGS
The respondent's main cause of action in the court a quo is the
recovery of ownership and possession of property. It is
undisputed that the subject property, Lot 3095 C-5, was owned
by the deceased Juan Gabatan, during his lifetime. 12 Before
us are two contending parties, both insisting to be the legal
heir(s) of the decedent.
Jurisprudence dictates that the determination of who are the
legal heirs of the deceased must be made in the proper special
proceedings in court, and not in an ordinary suit for recovery
of ownership and possession of property. This must take
precedence over the action for recovery of possession and
ownership. The Court has consistently ruled that the trial court
cannot make a declaration of heirship in the civil action for the
reason that such a declaration can only be made in a special
proceeding. Under Section 3, Rule 1 of the 1997 Revised
Rules of Court, a civil action is defined as one by which a
party sues another for the enforcement or protection of a
right, or the prevention or redress of a wrong while a special
proceeding is a remedy by which a party seeks to establish a
status, a right, or a particular fact. It is then decisively clear
that the declaration of heirship can be made only in a special
proceeding inasmuch as the petitioners here are seeking the
establishment of a status or right.
In the present case, there appears to be only one parcel of land
being claimed by the contending parties as their inheritance
from Juan Gabatan. It would be more practical to dispense
with a separate special proceeding for the determination of the
status of respondent as the sole heir of Juan Gabatan, specially
in light of the fact that the parties to Civil Case No. 89-092,
had voluntarily submitted the issue to the RTC and already
presented their evidence regarding the issue of heirship in
these proceeding. Also the RTC assumed jurisdiction over the
same and consequently rendered judgment thereon.
Respondent's mother's (Hermogena's) birth certificate, which
would have been the best evidence of Hermogena's
relationship to Juan Gabatan, was never offered as evidence at
the RTC. Neither did respondent present any authentic
document or final judgment categorically evidencing
Hermogena's relationship to Juan Gabatan.
CONFLICTING BIRTH CERTIFICATES AS
PREPONDERANT EVIDENCE
1. Certified true copy of her typewritten birth certificate which
indicated that her mother's maiden name was "Hermogena
Clarito Gabatan".
PHOTOCOPY OF DEED OF ABSOLUTE SALE
Mere photocopy and not being properly authenticated= best
evidence obtainable rule: when the subject of inquiry is the
contents of a document, no evidence shall be admissible other
than the original document itself. Although the best evidence
rule admits of exceptions and there are instances where the
presentation of secondary evidence would be allowed, such as
when the original is lost or the original is a public record, the
basis for the presentation of secondary evidence must still be
established.
Transcript of Felicisima Nagac Pacana (who identified the
photocopy of the Deed of Absolute Sale) plainly shows that
she gave no testimony regarding the whereabouts of the
original, whether it was lost or whether it was recorded in any
public office.
Regarding the authentication of public documents, the Rules
of Court provide that the record of public documents, when
admissible for any purpose, may be evidenced by an official
publication thereof or by a copy attested by the officer having
legal custody of the record, or by his deputy. To begin with,
no proof whatsoever was presented by respondent that an
original of Exhibit H was registered or exists in the records of
the local assessor's office.
LACHES
Juan Gabatan died sometime in 1933 and thus, the cause of
action of the heirs of Juan Gabatan to recover the decedent's
property from third parties or to quiet title to their inheritance
accrued in 1933. Yet, respondent and/or her mother
Hermogena, if they were truly the legal heirs of Juan Gabatan,
did not assert their rights as such. It is only in 1978 that
respondent filed her first complaint to recover the subject
property.

2. Certified true copy of respondent's handwritten birth

certificate which differed from the copy presented by
respondent. Among the differences was respondent's mother's
full maiden name which was indicated as "Hermogena
Clarito" in the handwritten birth certificate

Even assuming purely for the sake of argument that the birth
certificate presented by respondent (Exhibit A) is a reliable
document, the same on its face is insufficient to prove
respondent's filiation to her alleged grandfather, Juan Gabatan.
All that Exhibit A, if it had been credible and authentic, would
have proven was that respondent's mother was a certain
"Hermogena Clarito Gabatan". It does not prove that same
"Hermogena Clarito Gabatan" is the daughter of Juan Gabatan.
Even the CA held that the conflicting certificates of live birth
of respondent submitted by the parties only proved the
filiation of respondent to Hermogena.

TESTIMONY OF WITNESSES

However, none of these witnesses had personal knowledge of

the fact of marriage of Juan to Laureana or the fact of birth of
Hermogena to Juan and Laureana. They were not yet born or
were very young when Juan supposedly married Laureana or
when Hermogena was born and they all admitted that none of
them were present at Juan and Laureana's wedding or
Hermogena's birth. These witnesses based their testimony on
what they had been told by, or heard from, others as young
children. Their testimonies were, in a word, hearsay.

10
ALAN JOSEPH SHEKER V. ESTATE OF ALICE o.
SHEKER, VICTOR S. MEDINA, GR 157912
[G.R. No. 157912. December 13, 2007.]
ALAN JOSEPH A.
SHEKER, petitioner, vs. ESTATE OF
ALICE O. SHEKER, VICTORIA S.
MEDINA-Administratrix, respondent.
DECISION
AUSTRIA-MARTINEZ, J p:
This resolves the Petition for Review
on Certiorari seeking the reversal of the Order 1 of the
Regional Trial Court of Iligan City, Branch 6 (RTC) dated
January 15, 2003 and its Omnibus Order dated April 9,
2003.
The undisputed facts are as follows.
The RTC admitted to probate the holographic
will of Alice O. Sheker and thereafter issued an order for
all the creditors to file their respective claims against the
estate. In compliance therewith, petitioner filed on
October 7, 2002 a contingent claim for agent's
commission due him amounting to approximately
P206,250.00 in the event of the sale of certain parcels of
land belonging to the estate, and the amount of
P275,000.00, as reimbursement for expenses incurred
and/or to be incurred by petitioner in the course of
negotiating the sale of said realties.
The executrix of the Estate of Alice O. Sheker
(respondent) moved for the dismissal of said money claim
against the estate on the grounds that (1) the requisite
docket fee, as prescribed in Section 7 (a), Rule 141 of
the Rules of Court, had not been paid; (2) petitioner failed
to attach a certification against non-forum shopping; and
(3) petitioner failed to attach a written explanation why
the money claim was not filed and served personally.
On January 15, 2003, the RTC issued the
assailed Order dismissing without prejudice the money
claim based on the grounds advanced by respondent.
Petitioner's motion for reconsideration was denied per
Omnibus Order dated April 9, 2003.
Petitioner then filed the present petition for
review on certiorari, raising the following questions:
(a) must a contingent claim filed
in the probate proceeding contain a
certification against non-forum shopping,
failing which such claim should be
dismissed?
(b) must a contingent claim filed
against an estate in a probate proceeding
be dismissed for failing to pay the docket
fees at the time of its filing thereat?
(c) must a contingent claim filed
in a probate proceeding be dismissed
because of its failure to contain a written
explanation on the service and filing by
registered mail? 2
Petitioner maintains that the RTC erred in strictly
applying to a probate proceeding the rules requiring a
certification of non-forum shopping, a written explanation
for non-personal filing, and the payment of docket fees
upon filing of the claim. He insists that Section 2, Rule 72
of the Rules of Court provides that rules in ordinary
actions are applicable to special proceedings only in a
suppletory manner. CacTSI
11
The Court gave due course to the petition for
review on certiorari although directly filed with this
Court, pursuant to Section 2 (c), Rule 41 of the Rules of
Court. 3
The petition is imbued with merit.
However, it must be emphasized that petitioner's
contention that rules in ordinary actions are only
supplementary to rules in special proceedings is not
entirely correct.
Section 2, Rule 72, Part II of the same Rules of
Court provides:
Sec. 2. Applicability of rules of
Civil Actions. — In the absence of
special provisions, the rules provided for
in ordinary actions shall be, as far as
practicable, applicable in special
proceedings.
Stated differently, special provisions under Part
II of the Rules of Court govern special proceedings; but in
the absence of special provisions, the rules provided for in
Part I of the Rules governing ordinary civil actions shall
be applicable to special proceedings, as far as practicable.
The word "practicable" is defined as: possible to
practice or perform; capable of being put into practice,
done or accomplished. 4 This means that in the absence of
special provisions, rules in ordinary actions may be
applied in special proceedings as much as possible and
where doing so would not pose an obstacle to said
proceedings. Nowhere in the Rules of Court does it
categorically say that rules in ordinary actions are
inapplicable or merely suppletory to special proceedings.
Provisions of the Rules of Court requiring a certification
of non-forum shopping for complaints and initiatory
pleadings, a written explanation for non-personal service
and filing, and the payment of filing fees for money
claims against an estate would not in any way obstruct
probate proceedings, thus, they are applicable to special
proceedings such as the settlement of the estate of a
deceased person as in the present case.
Thus, the principal question in the present case
is: did the RTC err in dismissing petitioner's contingent
money claim against respondent estate for failure of
petitioner to attach to his motion a certification against
non-forum shopping?
The Court rules in the affirmative.
The certification of non-forum shopping
is required only for complaints and other initiatory
pleadings. The RTC erred in ruling that a contingent
money claim against the estate of a decedent is an
initiatory pleading. In the present case, the whole
probate proceeding was initiated upon the filing of the
petition for allowance of the decedent's will. Under
Sections 1 and 5, Rule 86 of the Rules of Court, after
granting letters of testamentary or of administration, all
persons having money claims against the decedent are
mandated to file or notify the court and the estate
administrator of their respective money claims; otherwise,
they would be barred, subject to certain exceptions. 5
Such being the case, a money claim against an
estate is more akin to a motion for creditors' claims to be
recognized and taken into consideration in the proper
disposition of the properties of the estate. In Arquiza v.
Court of Appeals, 6 the Court explained thus:
. . . The office of a motion is not
to initiate new litigation, but to bring a
material but incidental matter arising
in the progress of the case in which the
motion is filed. A motion is not an
independent right or remedy , but is
confined to incidental matters in the
progress of a cause. It relates to some
question that is collateral to the main
 object of the action and is connected We thus take this opportunity to
with and dependent upon the principal clarify that under Section 11, Rule 13 of
remedy. 7 (Emphasis supplied) aTcHIC the 1997 Rules of Civil Procedure,
personal service and filing is the general
A money claim is only an incidental matter in the main action rule, and resort to other modes of service
for the settlement of the decedent's estate; more so if the claim and filing, the exception.
is contingent since the claimant cannot even institute a Henceforth, whenever personal service or
separate action for a mere contingent claim. Hence, herein filing is practicable, in the light of the
petitioner's contingent money claim, not being an circumstances of time, place and person,
initiatory pleading, does not require a certification against personal service or filing is mandatory.
non-forum shopping. Only when personal service or filing is not
On the issue of filing fees, the Court ruled practicable may resort to other modes be
in Pascual v. Court of Appeals, 8 that the trial court has had, which must then be accompanied by
jurisdiction to act on a money claim (attorney's fees) a written explanation as to why personal
against an estate for services rendered by a lawyer to the service or filing was not practicable to
administratrix to assist her in fulfilling her duties to the begin with. In adjudging the plausibility
estate even without payment of separate docket fees of an explanation, a court shall likewise
because the filing fees shall constitute a lien on the consider the importance of the subject
judgment pursuant to Section 2, Rule 141 of the Rules of matter of the case or the issues involved
Court, or the trial court may order the payment of such therein, and the prima facie merit of the
filing fees within a reasonable time. 9 After all, the trial pleading sought to be expunged for
court had already assumed jurisdiction over the action for violation of Section 11. (Emphasis and
settlement of the estate. Clearly, therefore, non-payment italics supplied) ACDTcE
of filing fees for a money claim against the estate is not In Musa v. Amor, this Court, on
one of the grounds for dismissing a money claim against noting the impracticality of personal
the estate. service, exercised its discretion and
With regard to the requirement of a written liberally applied Section 11 of Rule 13:
explanation, Maceda v. De Guzman Vda. de
"As [Section 11, Rule
Macatangay 10 is squarely in point. Therein, the Court
13 of the Rules of Court]
held thus:
requires, service and filing of
In Solar Team Entertainment, pleadings must be done
Inc. v. Ricafort, this Court, passing upon personally whenever
Section 11 of Rule 13 of the Rules of practicable. The court notes that
Court, held that a court has the discretion in the present case, personal
to consider a pleading or paper as not filed service would not be
if said rule is not complied with. practicable. Considering the
distance between the Court of
Personal service and filing are Appeals and Donsol,
preferred for obvious reasons. Plainly, Sorsogon where the petition
such should expedite action or resolution was posted, clearly, service by
on a pleading, motion or other paper; and registered mail [sic] would have
conversely, minimize, if not eliminate, entailed considerable time,
delays likely to be incurred if service or effort and expense. A written
filing is done by mail, considering the explanation why service was not
inefficiency of the postal service. done personally might have
Likewise, personal service will do away been superfluous. In any case,
with the practice of some lawyers who, as the rule is so worded with
wanting to appear clever, resort to the the use of "may", signifying
following less than ethical practices: (1) permissiveness, a violation
serving or filing pleadings by mail to thereof gives the court
catch opposing counsel off-guard, thus discretion whether or not to
leaving the latter with little or no time to consider the paper as not filed.
prepare, for instance, responsive pleadings While it is true that procedural
or an opposition; or (2) upon receiving rules are necessary to secure an
notice from the post office that the orderly and speedy
registered mail containing the pleading of administration of justice, rigid
or other paper from the adverse party may application of Section 11, Rule
be claimed, unduly procrastinating before 13 may be relaxed in this case in
claiming the parcel, or, worse, not the interest of substantial
claiming it at all, thereby causing undue justice. (Emphasis and italics
delay in the disposition of such pleading supplied)
or other papers.
In the case at bar, the address of
If only to underscore the respondent's counsel is Lopez, Quezon,
mandatory nature of this innovation to our while petitioner Sonia's counsel's is
set of adjective rules requiring personal Lucena City. Lopez, Quezon is 83
service whenever practicable, Section 11 kilometers away from Lucena City. Such
of Rule 13 then gives the court distance makes personal service
the discretion to consider a pleading or impracticable. As in Musa v. Amor, a
paper as not filed if the other modes of written explanation why service was not
service or filing were not resorted to done personally "might have been
and no written explanation was made as superfluous."
to why personal service was not done in
the first place. The exercise of discretion As this Court held in Tan v.
must, necessarily consider the Court of Appeals, liberal construction of a
practicability of personal service, for rule of procedure has been allowed where,
Section 11 itself begins with the clause among other cases, "the injustice to the
"whenever practicable". adverse party is not commensurate with
12
 the degree of his thoughtlessness in not
complying with the procedure
prescribed." 11 (Emphasis supplied)
In the present case, petitioner holds office in
Salcedo Village, Makati City, while counsel for
respondent and the RTC which rendered the assailed
orders are both in Iligan City. The lower court should
have taken judicial notice of the great distance between
said cities and realized that it is indeed not practicable to
serve and file the money claim personally. Thus,
following Medina v. Court of Appeals, 12 the failure of
petitioner to submit a written explanation why service has
not been done personally, may be considered as
superfluous and the RTC should have exercised its
discretion under Section 11, Rule 13, not to dismiss the
money claim of petitioner, in the interest of substantial
justice.
The ruling spirit of the probate law is the speedy
settlement of estates of deceased persons for the benefit of
creditors and those entitled to residue by way of
inheritance or legacy after the debts and expenses of
administration have been paid. 13 The ultimate purpose
for the rule on money claims was further explained
in Union Bank of the Phil. v. Santibañez, 14 thus:
The filing of a money claim
against the decedent's estate in the probate
court is mandatory. As we held in the
vintage case of Py Eng Chong v. Herrera:
. . . This requirement is for the
purpose of protecting the estate of the
deceased by informing the executor or
administrator of the claims against it,
thus enabling him to examine each claim
and to determine whether it is a proper
one which should be allowed. The plain
and obvious design of the rule is the
speedy settlement of the affairs of the
deceased and the early delivery of the
property to the distributees, legatees, or
heirs. The law strictly requires the
prompt presentation and disposition of
the claims against the decedent's estate
in order to settle the affairs of the estate
as soon as possible, pay off its debts and
distribute the residue. 15 (Emphasis
supplied) DTcASE
The RTC should have relaxed and liberally construed the
procedural rule on the requirement of a written
explanation for non-personal service, again in the interest
of substantial justice.
WHEREFORE, the petition is GRANTED. The
Orders of the Regional Trial Court of Iligan City, Branch
6 dated January 15, 2003 and April 9, 2003, respectively,
are REVERSED and SET ASIDE. The Regional Trial
Court of Iligan City, Branch 6, is hereby DIRECTED to
give due course and take appropriate action on petitioner's
money claim in accordance with Rule 82 of the Rules of
Court.
No pronouncement as to costs.
SO ORDERED.
||| (Sheker v. Sheker, G.R. No. 157912, [December 13, 2007],
564 PHIL 684-695)
NOTES
Petition granted.
Issues: (a) must a contingent claim filed in the probate
proceeding contain a certification against non-forum shopping,
failing which such claim should be dismissed?
13
(b) must a contingent claim filed against an estate in a probate
proceeding be dismissed for failing to pay the docket fees at
the time of its filing thereat?
(c) must a contingent claim filed in a probate proceeding be
dismissed because of its failure to contain a written
explanation on the service and filing by registered mail?
A. YES.
Clarification: However, it must be emphasized that petitioner's
contention that rules in ordinary actions are only
supplementary to rules in special proceedings is not entirely
correct.
Section 2, Rule 72, Part II of the same Rules of
Court provides:
Sec. 2. Applicability of rules of Civil Actions. — In the
absence of special provisions, the rules provided for in
ordinary actions shall be, as far as practicable, applicable in
special proceedings.
Stated differently, special provisions under Part II of the Rules
of Court govern special proceedings; but in the absence of
special provisions, the rules provided for in Part I of the Rules
governing ordinary civil actions shall be applicable to special
proceedings, as far as practicable.
The word "practicable" is defined as: possible to practice or
perform; capable of being put into practice, done or
accomplished. 4 This means that in the absence of special
provisions, rules in ordinary actions may be applied in special
proceedings as much as possible and where doing so would
not pose an obstacle to said proceedings. Nowhere in
the Rules of Court does it categorically say that rules in
ordinary actions are inapplicable or merely suppletory to
special proceedings. Provisions of the Rules of Court requiring
a certification of non-forum shopping for complaints and
initiatory pleadings, a written explanation for non-personal
service and filing, and the payment of filing fees for money
claims against an estate would not in any way obstruct probate
proceedings, thus, they are applicable to special proceedings
such as the settlement of the estate of a deceased person as in
the present case.
Thus, the principal question in the present case is: did the RTC
err in dismissing petitioner's contingent money claim against
respondent estate for failure of petitioner to attach to his
motion a certification against non-forum shopping?
The Court rules in the affirmative.
The certification of non-forum shopping is required only for
complaints and other initiatory pleadings. The RTC erred in
ruling that a contingent money claim against the estate of a
decedent is an initiatory pleading. In the present case, the
whole probate proceeding was initiated upon the filing of
the petition for allowance of the decedent's will. Under
Sections 1 and 5, Rule 86 of the Rules of Court, after granting
letters of testamentary or of administration, all persons having
money claims against the decedent are mandated to file or
notify the court and the estate administrator of their respective
money claims; otherwise, they would be barred, subject to
certain exceptions. 
Such being the case, a money claim against an estate is more
akin to a motion for creditors' claims to be recognized and
taken into consideration in the proper disposition of the
properties of the estate.
The office of a motion is not to initiate new litigation, but to
bring a material but incidental matter arising in the progress of
the case in which the motion is filed. A motion is not an
independent right or remedy, but is confined to incidental
matters in the progress of a cause. It relates to some
question that is collateral to the main object of the action and
is connected with and dependent upon the principal remedy. 7
(Emphasis supplied) aTcHIC

A money claim is only an incidental matter in the main

action for the settlement of the decedent's estate; more so if
the claim is contingent since the claimant cannot even institute
a separate action for a mere contingent claim. Hence, herein
petitioner's contingent money claim, not being an initiatory
pleading, does not require a certification against non-forum
shopping.

B. No.

The trial court has jurisdiction to act on a money claim

(attorney's fees) against an estate for services rendered by a
lawyer to the administratrix to assist her in fulfilling her duties
to the estate even without payment of separate docket fees
because the filing fees shall constitute a lien on the judgment
pursuant to Section 2, Rule 141 of the Rules of Court, or the
trial court may order the payment of such filing fees within a
reasonable time. 9 After all, the trial court had already
assumed jurisdiction over the action for settlement of the
estate. Clearly, therefore, non-payment of filing fees for a
money claim against the estate is not one of the grounds for
dismissing a money claim against the estate.

C. No.

In the present case, petitioner holds office in Salcedo Village,

Makati City, while counsel for respondent and the RTC which
rendered the assailed orders are both in Iligan City. The lower
court should have taken judicial notice of the great distance
between said cities and realized that it is indeed not practicable
to serve and file the money claim personally. Thus,
following Medina v. Court of Appeals, 12 the failure of
petitioner to submit a written explanation why service has not
been done personally, may be considered as superfluous and
the RTC should have exercised its discretion under Section 11,
Rule 13, not to dismiss the money claim of petitioner, in the
interest of substantial justice.

14
RULE 74- SUMMARY SETTLEMENT OF ESTATES
1. UTULO V. PASION VDA. DE GARCIA, 66 PHIL
303
IMPERIAL, J p:
[G.R. No. 45904. September 30, 1938.]
Intestate estate of the deceased
Luz Garcia. PABLO
G. UTULO, applicant-appellee, vs.
LEONA PASION VIUDA DE GARCIA, 
oppositor-appellant.
Feliciano B. Gardiner, for appellant.
Gerardo S. Limliñgan, for appellee.
SYLLABUS
1. EXECUTORS AND ADMINISTRATORS;
JUDICIAL ADMINISTRATION OF ESTATE OF
DECEASED PERSON; EXCEPTIONS. — Section 642
of the Code of Civil Procedure provides in part that "if no
executor is named in the will, or if a person dies intestate,
administration shall be granted" etc. This provision
enunciates the general rule that when a person dies
leaving property in the Philippines Islands, his property
should be judicially administered and the competent court
should appoint a qualified administrator, in the order
established in the section, in case the deceased left no
will, or in case he had left one should he fail to name an
executor therein. This rule, however, is subject to the
exceptions established by sections 596 and 597 of the
same Code, as finally amended. According to the first,
when all the heirs are of lawful age and there are no debts
due from the estate, they may agree in writing to partition
the property without instituting the judicial administration
or applying for the appointment of an administrator.
According to the second, if the property left does not
exceed six thousand pesos,, the heirs may apply to the
competent court, after the required publications, to
proceed with the summary partition and, after paying all
the known obligations, to partition all the property
constituting the inheritance among themselves pursuant to
law, without instituting the judicial administration and the
appointment of an administrator.
2. ID.; ID.; ID. — When a person dies without
leaving pending obligations to be paid, his heirs, whether
of age or not, are not bound to submit the property to a
judicial administration, which is always long and costly,
or to apply for the appointment of an administrator by the
court. It has been uniformly held that in such case the
judicial administration and the appointment of an
administrator are superfluous and unnecessary
proceedings (Ilustre vs. Alaras Frondosa, 17 Phil., 321;
Malahacan vs. Ignacio, 19 Phil., 434; Bondad vs.
Bondad, 34 Phil., 232; Baldemor vs. Malangyaon, 34
Phil., 367; Fule vs. Fule, 46 Phil., 317).
3. ID.; ID.; ID.; CASE AT BAR. — There is no
weight in the argument adduced by the appellee to the
effect that his appointment as judicial administrator is
necessary so that he may have legal capacity to appear in
the intestate of the deceased J. G. S. As he would appear
in the said intestate by the right of representation, it would
suffice for him to allege in proof of his interest that he is a
usufructuary forced heir of his deceased wife who, in turn,
would be a forced heir and an interested and necessary
party if she were living. In order to intervene in said
intestate and to take part in the distribution of the property
it is not necessary that the administration of the property
of his deceased wife be instituted — an administration
which will take up time and occasion inconveniences and
unnecessary expenses.
15
DECISION
This is an appeal taken by the oppositor from the
order of the Court of First Instance of the Province of
Tarlac appointing the applicant as judicial administrator
of the property left by the deceased Luz Garcia.
Juan Garcia Sanchez died intestate, and in the
proceedings instituted in the Court of First Instance of
Tarlac for the administration of his property (special
proceedings No. 3475), Leona Pasion Vda. de Garcia, the
surviving spouse and the herein oppositor, was appointed
judicial administratrix. The said deceased left legitimate
children, named Juan Garcia, jr., Patrocinio Garcia and
Luz Garcia who, with the widow, are the presumptive
forced heirs. Luz Garcia married the applicant Pablo
G. Utulo and during the pendency of the administration
proceedings of the said deceased, she died in the said
province without any legitimate descendants, her only
forced heirs being her mother and her husband. The latter
commenced in the same court the judicial administration
of the property of his deceased wife (special proceedings
NO. 4188), stating in his petition that her only heirs were
he himself and his mother-in-law, the oppositor, and that
the only property, left by the deceased consisted in the
share due her from the intestate of her father,
Juan Garcia Sanchez, and asking that he be named
administrator of the property of said deceased. The
oppositor objected to the petition, opposing the judicial
administration of the property of her daughter and the
appointment of the applicant as administrator. She alleged
that inasmuch as the said deceased left no indebtedness,
there was no occasion for the said judicial administration;
but she stated that should the court grant the
administration of the property, she should be appointed
the administratrix thereof inasmuch as she had a better
right than the applicant. After the required publications,
trial was had and the court, on August 28, 1936, finally
issued the appealed order to which the oppositor excepted
and thereafter filed the record on appeal which was
certified and approved.
The oppositor-appellant assigns five errors
allegedly committed by the trial court, but these assigned
errors raised only two questions for resolution, namely:
whether upon the admitted facts the judicial
administration of the property left by the deceased
Luz Garcia lies, with the consequent appointment of an
administrator, and whether the appellant has a better right
to the said office than the appellee.
1. As to the first question, we have section 642
of the Code of Civil Procedure providing in part that "if
no executor is named in the will, or if a person dies
intestate, administration shall be granted" etc. This
provision enunciates the general rule that when a person
dies leaving property in the Philippine Islands, his
property should be judicially administered and the
competent court should appoint a qualified administrator,
in the order established in the section, in case the
deceased left no will, or in case he had left one should he
fail to name an executor therein. This rule, however, is
subject to the exceptions established by sections 596 and
597 of the same Code, as finally amended. According to
the first, when all the heirs are of lawful age and there are
no debts due from the estate, they may agree in writing to
partition the property without instituting the judicial
administration or applying for the appointment of an
administrator. According to the second, if the property left
does not exceed six thousand pesos, the heirs may apply
to the competent court, after the required publications, to
proceed with the summary partition and, after paying all
the known obligations, to partition all the property
constituting the inheritance among themselves pursuant to
law, without instituting the judicial administration and the
appointment of an administrator.
 Construing the scope of section 596, this court
repeatedly held that when a person dies without leaving
pending obligations to be paid, his heirs, whether of age
or not, are not bound to submit the property to a judicial
administration, which is always long and costly, or to
apply for the appointment of an administrator by the
court. It has been uniformly held that in such case the
judicial administration and the appointment of an
administrator are superfluous and unnecessary
proceedings (Ilustre vs. Alaras Frondosa, 17 Phil., 321;
Malahacan vs. Ignacio, 19 Phil., 434; Bondad vs.
Bondad, 32 Phil., 232; Baldemor vs. Malangyaon, 32
Phil., 367; Fule vs. Fule, 46 Phil., 317).
In enunciating the aforesaid doctrine, this court
relied on the provisions of articles 657, 659 and 661 of the
Civil Code under which the heirs succeed to all the
property left by the deceased from the time of his death.
In the case of Ilustre vs. Alaras Frondosa, supra, it was
said:
"Under the provisions of the
Civil Code (arts. 657 to 661), the rights to
the succession of a person are transmitted
from the moment of his death; in other
words, the heirs succeeded immediately to
all of the property of the deceased
ancestor. The property belongs to the heirs
as the moment of the death of the ancestor
as completely as if the ancestor had
executed and delivered to them a deed for
the same before his death. In the absence
of debts existing against the estate, the
heirs may enter upon the administration of
the said property immediately. If they
desire to administer it jointly, they may do
so. If they desire to partition it among
themselves and can do this by mutual
agreement, they also have that privilege.
The Code of Procedure in Civil Actions
provides how an estate may be divided by
a petition for partition in case they can not
mutually agree in the division. When there
are no debts existing against the estate, is
certainly no occasion for the intervention
of an administrator in the settlement and
partition of the estate among the heirs.
When the heirs are all of lawful age and
there are no debts, there is no reason why
the estate should be burdened with the
costs and expenses of an administrator.
The property belonging absolutely to the
heirs, in the absence of existing debts
against the estate, the administrator has no
right to intervene in any way whatever in
the division of the estate among the heirs.
They are coöwners of an undivided estate
and the law offers them a remedy for the
division of the same among themselves.
There is nothing in the present case to
show that the heirs requested the
appointment of the administrator, or that
they intervened in any way whatever in
the present action. If there are any heirs of
the estate who have not received their
participation, they have their remedy by
petition for partition of the said estate."
In the cases of Malahacan vs. Ignacio, supra,
Bondad vs. Bondad, supra, and Baldemor vs.
Malangyaon, supra, the same doctrine was reiterated. and
in the case of Fule vs. Fule, supra, this court amplified
and ratified the same doctrine in the following language:
"Upon the second question —
Did the court a quo commit an error in
refusing to appoint an administrator for
the estate of Saturnino Fule? — it may be
said (a) that it is admitted by all of the
parties to the present action, that at the
time of his death no debts existed against
16
his estate and (b) that all of the heirs of
Saturnino Fule were of age.
"In this jurisdiction and by virtue
of the provisions of articles 657, 659 and
661 of the Civil Code, all of the property,
real and personal, of a deceased person
who dies intestate, is transmitted
immediately to his heirs. (To Guioc-Co vs.
Del Rosario, 8 Phil., 546; Ilustre vs.
Alaras Frondosa, 17 Phil., 321;
Marin vs. Nacianceno, 19 Phil., 238;
Malahacan vs. Ignacio, 19 Phil., 434;
Nable Jose vs. Uson, 27 Phil., 73;
Bondad vs. Bondad, 34 Phil., 232;
Baldemor vs. Malangyaon, 34 Phil., 367.)
"If then the property of the
deceased, who dies intestate, passes
immediately to his heirs, as owners, and
there are no debts, what reason can there
be for the appointment of a judicial
administrator to administer the estate for
them and to deprive the real owners of
their possession to which they are
immediately entitled? In the case of
Bondad vs. Bondad (34 Phil., 232), Chief
Justice Cayetano Arrellano, discussing
this question, said: 'Under the provisions
of the Civil Code (articles 657 to 661), the
rights to the succession of a person are
transmitted from the moment of his death;
in other words, the heirs succeed
immediately to all of the property of the
deceased ancestor. The property belongs
to the heirs at the moment of the death of
the ancestor as completely as if the
ancestor had executed and delivered to
them a deed for the same before his death.
In the absence of debts existing against
the estate, the heirs may enter upon the
administration of the said property
immediately. If they desire to administer it
jointly, they may do so. If they desire to
partition it among themselves and can do
this by mutual agreement, they also have
that privilege. The Code of Procedure in
Civil Actions provides how an estate may
be divided by a petition for partition in
case they cannot mutually agree in the
division.' (Sections 182-184, 196, and 596
of Act No. 190.)
"When the heirs are all of lawful
age and there are no debts there is no
reason why the estate should be burdened
with the cost and expenses of an
administrator. The administrator has no
right to intervene in any way whatsoever
in the division of the estate among the
heirs when they are adults and when there
are no debts against the estate. (Ilustre vs.
Alaras Frondosa, supra; Bondad vs.
Bondad, supra; Baldemor vs.
Malangyaon, supra.)
"When there are no debts and the
heirs are all adults, their relation to the
property left by their ancestor is the same
as that of any other coöwners or owners in
common, and they may recover their
individual rights, the same as any other
coöwners of undivided party. (Succession
of Story, 3 La Ann., 502; McIntyre vs.
Chappell, 4 Tex., 187; wood et. ux. Ford,
29 Miss., 57.)
xxx xxx xxx
"The right of the heirs in cases
like the one we are discussing, also exists
in the division of personal as well as the
 real property. If they cannot agree as to
the division, then a suit for partition of
such personal property among the heirs of
the deceased owner is maintainable where
the estate is not in debt, the heirs are all of
age, and there is no administration upon
the estate and no necessity thereof.
(Jordan vs. Jordan, 4 Tex. Civ. App. Rep.,
559.)
"It is difficult to conceive of any
one class or item of property susceptible
of being held in common which may not
be divided by the coöwners. It may be of
personal property as well as of real estate;
of several parcels as well as of a single
parcel, and of non-contiguous as well as
of adjacent tracts; or of part only of the
lands of the coöwners as well as of the
whole. (Pickering vs. Moore, 67 N. H.,
533; 31 L. R. A., 698; Pipes vs. Buckner,
51 Miss., 848; Tewksbury vs. Provizzo, 12
Cal., 20.)"
We conceive of no powerful reason which
counsels the abandonment of a doctrine so uniformly
applied. We are convinced that if the courts had followed
it in all cases to which it has application, their files would
no t have been replete with unnecessary administration
proceedings as they are now. There is no weight in the
argument adduced by the appellee to the effect that his
appointment as judicial administrator is necessary so that
he may have legal capacity to appear in the intestate of the
deceased Juan Garcia Sanchez. As he would appear in the
said intestate by the right of representation, it would
suffice for him to allege in proof of his interest that he is a
usufructuary forced heir of his deceased wife who, in turn,
would be a forced heir and an interested and necessary
party if she were living. In order to intervene in said
intestate and to take part in the distribution of the property
it is not necessary that the administration of the property
of his deceased wife be instituted — an administration
which will take up time and occasion inconveniences and
unnecessary expenses.
2. In view of the foregoing, there is no need to
determine which of the parties has preferential right to the
office of administrator.
The appealed order should be reversed, with the
costs of this instance to the applicant-appellee. So
ordered.
||| (Utulo v. Vda. de Garcia, G.R. No. 45904, [September 30,
1938], 66 PHIL 302-310)

17

2. JESUSA DUJALI BUOT V. ROQUE RASAY
DUJALI, GR 199885, 10/2/17
[G.R. No. 199885. October 2, 2017.]
JESUSA DUJALI
BUOT, petitioner, vs. ROQUE RASAY
DUJALI, respondent.
DECISION
JARDELEZA, J p:
This is a petition for review on certiorari 1 under
Rule 45 of the Rules of Court. Petitioner Jesusa Dujali
Buot (Buot) challenged the Orders of Branch 34 of the
Regional Trial Court (RTC), Panabo City, dated
September 19, 2011 2 and December 8,
2011, 3 dismissing her petition and denying her
subsequent motion for reconsideration, respectively.
Buot filed before the RTC a petition 4 for letters
of administration of the estate of deceased Gregorio
Dujali (Gregorio). In her petition, Buot alleged that she
was a surviving heir, along with Roque Dujali, Constancia
Dujali-Tiongson, Concepcion Dujali-Satiembre, Marilou
Sales-Dujali, Marietonete Dujali, Georgeton Dujali, Jr.
and Geomar Dujali, of Gregorio who died
intestate. 5 Buot annexed 6 to her petition a list of
Gregorio's properties that are allegedly publicly known.
She claimed that since Gregorio's death, there had been no
effort to settle his estate. Roque Dujali (Dujali)
purportedly continued to manage and control the
properties to the exclusion of all the other heirs. Buot
further alleged that Dujali for no justifiable reason denied
her request to settle the estate. 7 Thus, Buot asked that:
(1) an administrator be appointed to preserve Gregorio's
estate; (2) a final inventory of the properties be made; (3)
the heirs be established; and (4) the net estate be ordered
distributed in accordance with law among the legal
heirs. 8
Dujali filed an opposition with motion to
dismiss, 9 arguing that Buot had no legal capacity to
institute the proceedings. He asserted that despite Buot's
claim that she was Gregorio's child with his first wife
Sitjar Escalona, she failed to attach any document, such as
a certificate of live birth or a marriage certificate, to prove
her filiation. Dujali, on the other hand, attached a
certificate of marriage between Gregorio and his mother
Yolanda Rasay. This certificate also indicated that
Gregorio had never been previously married to a certain
Sitjar Escalona. Thus, as Buot failed to prove that she is
an heir, Dujali prayed that her petition be dismissed
outright.
Buot filed her comment 10 to Dujali's opposition
with motion to dismiss. She argued that under the Rules
of Court, only ultimate facts should be included in an
initiatory pleading. The marriage certificate and certificate
of live birth which Dujali demands are evidentiary matters
that ought to be tackled during trial. Nevertheless, to
answer Dujali's allegations, Buot attached to her comment
a copy of the necrological services program 11 where she
was listed as one of Gregorio's heirs, a
certification 12 from the municipal mayor that she is
Gregorio's child, and a copy of the Amended Extrajudicial
Settlement 13 dated July 4, 2001 which includes both
Buot and Dujali as Gregorio's heirs. Notably, this
Amended Extrajudicial Settlement pertained to parcels of
land not included in the list of properties annexed in
Buot's petition.
18
On May 3, 2011, the RTC denied Dujali's motion
to dismiss. It agreed with Buot that the issues raised by
Dujali are evidentiary matters that should be addressed
during trial. 14
Dujali filed a motion for reconsideration. 15 He
argued that under the Rules of Court and prevailing
jurisprudence, a party's lack of legal capacity to sue
should be raised in a motion to dismiss. Further, he took
issue with the existence of the Amended Extrajudicial
Settlement. According to him, when an estate has no
debts, recourse to administration proceedings is allowed
only when there are good and compelling reasons. Where
an action for partition (whether in or out of court) is
possible, the estate should not be burdened with an
administration proceeding.
The RTC, in its Order dated September 19, 2011,
granted Dujali's motion for reconsideration. It held that
under the law, there are only two exceptions to the
requirement that the settlement of a deceased's estate
should be judicially administered — extrajudicial
settlement and summary settlement of an estate of small
value. 16 According to the RTC, in the case of Buot's
petition, administration has been barred by the fact that
Gregorio's estate has already been settled extrajudicially
as evidenced by the Amended Extrajudicial Settlement. It
also noted that Gregorio had no creditors since Buot failed
to allege it in her petition. 17 Since recourse to judicial
administration of an estate that has no debt is allowed
only when there are good reasons for not resorting to
extrajudicial settlement or action for partition, the RTC
dismissed Buot's petition. Buot filed a motion for
reconsideration which the RTC denied in its Order dated
December 8, 2011. According to the RTC, not only was
Buot's motion a second motion for reconsideration
prohibited under the Rules, there was also no sufficient
reason to reverse its earlier dismissal of the petition. 18
Buot filed this petition for review
on certiorari under Rule 45 of the Rules of
Court challenging the RTC's Orders on pure questions of
law. In her petition, Buot argues that her motion for
reconsideration is not a prohibited second motion for
reconsideration. Section 2 of Rule 52 of the Rules of
Court states that a prohibited second motion for
reconsideration is one filed by the same party. In this
case, Buot's motion for reconsideration was her first, since
the motion for reconsideration subject of the Order dated
September 19, 2011 was filed by Dujali. She also argued
that the Amended Extrajudicial Settlement did not cover
all of Gregorio's properties. 19
Further, Buot maintains that heirs are not
precluded from instituting a petition for administration if
they do not, for good reason, wish to pursue an ordinary
action for partition. In her case, she claims that there are
good reasons justifying her recourse to administration
proceedings: (1) the Amended Extrajudicial Settlement
did not cover the entire estate; (2) there has been no effort
to partition the property; (3) Dujali seeks to challenge
Buot's status as an heir; (4) other heirs have been deprived
of the properties of the estate; and (5) other heirs,
particularly Constancia Dujali and Marilou Dujali, have
already manifested that they are amenable to the
appointment of an administrator. 20
In his comment, 21 Dujali argues that Buot is not
an interested person allowed to file a petition for
administration of the estate. While she claims to be
Gregorio's heir, public documents, such as Buot's
certificate of live birth and the certificate of marriage
between Gregorio and Yolanda Rasay, reveal otherwise.
Dujali also attached to his comment certain documents
that appear to show that there has been an extrajudicial
settlement of some of the properties of the estate and that
Buot has already received her share from the proceeds of
the sale of these properties by the true heirs. 22 Further,
he explains that Buot was only allowed to participate in
the Amended Extrajudicial Settlement by Gregorio's
legitimate heirs out of humanitarian considerations, not
because she is a true heir. All these, Dujali argues, clearly
indicate that there is no good and compelling reason to
grant Buot's petition for administration. 23
In her reply, 24 Buot contends that the issue of
whether she is a person interested in the estate is a matter
that should be raised during the trial by the RTC of her
petition for administration.
We deny the petition.
First, we must emphasize that this is a petition
for review on certiorari under Rule 45 of the Rules of
Court. This recourse to the Court covers only a review of
questions of law. In this case, the question of law
presented before us is whether the RTC properly
dismissed the petition for administration on the ground
that there has already been an extrajudicial settlement of
certain properties of the estate. An additional question of
procedure raised here is whether the RTC was correct in
holding that Buot's motion for reconsideration should be
denied as it is a prohibited second motion for
reconsideration.
All other issues raised in the pleadings before us
are questions of fact that we cannot resolve at this time.
As we shall shortly explain in this Decision, these
questions of fact ought to be resolved by a trial court in
the appropriate proceeding.
We will first rule on the procedural issue raised
in the petition. In its Order dated September 19, 2011, the
RTC held that Buot's motion for reconsideration is a
second motion for reconsideration prohibited under
the Rules of Court. Thus, the motion was denied. We
reviewed the motions filed by the parties before the RTC
and rule that the RTC erred in its finding.
When Buot filed her petition for administration,
Dujali filed an opposition with a motion to dismiss. When
the RTC denied his motion to dismiss, Dujali filed a
motion for reconsideration. This led to the RTC's issuance
of the Order of September 19, 2011 granting Dujali's
motion for reconsideration and holding that Buot's
petition for administration should be dismissed. It was
only at this point that Buot filed, for the first time, a
motion seeking for reconsideration of the Order which
declared the dismissal of her petition for administration.
Clearly, this is not the motion for reconsideration
contemplated in Section 2 of Rule 52 of the Rules of
Court which states:
Sec. 2. Second motion for
reconsideration. — No second motion
for reconsideration of a judgment or
final resolution by the same party shall
be entertained.
Section 2 of Rule 52 is clear and leaves no room
for interpretation. What it prohibits is a second motion for
reconsideration filed by the same party involving
the same judgment or final resolution. In the present case,
Buot's motion for reconsideration was only her first
motion challenging the Order dismissing her petition for
administration of Gregorio's estate. The RTC clearly erred
in denying her motion on the ground that it is a second
motion for reconsideration prohibited under the Rules.
Nevertheless, we rule that the RTC properly
ordered the dismissal of Buot's petition for administration.
When a person dies intestate, his or her estate
may generally be subject to judicial administration
proceedings. 25 There are, however, several exceptions.
One such exception is provided for in Section 1 of Rule
74 of the Rules of Court. This Section states:
Sec. 1. Extrajudicial settlement
by agreement between heirs. — If the
decedent left no will and no debts and
the heirs are all of age, or the minors are
represented by their judicial or legal
representatives duly authorized for the
purpose, the parties may, without
19
securing letters of administration, divide
the estate among themselves as they see
fit by means of a public instrument filed
in the office of the register of deeds, and
should they disagree, they may do so in
an ordinary action of partition. If there
is only one heir, he may adjudicate to
himself the entire estate by means of an
affidavit filed in the office of the
register of deeds. The parties to an
extrajudicial settlement, whether by
public instrument or by stipulation in a
pending action for partition, or the sole
heir who adjudicates the entire estate to
himself by means of an affidavit shall
file, simultaneously with and as a
condition precedent to the filing of the
public instrument, or stipulation in the
action for partition, or of the affidavit in
the office of the register of deeds, a
bond with the said register of deeds, in
an amount equivalent to the value of the
personal property involved as certified
to under oath by the parties concerned
and conditioned upon the payment of
any just claim that may be filed under
Section 4 of this rule. It shall be
presumed that the decedent left no debts
if no creditor files a petition for letters
of administration within two (2) years
after the death of the decedent.
The fact of the extrajudicial
settlement or administration shall be
published in a newspaper of general
circulation in the manner provided in
the next succeeding section; but no
extrajudicial settlement shall be binding
upon any person who has not
participated therein or had no notice
thereof.
According to this provision, when the deceased
left no will and no debts and the heirs are all of age, the
heirs may divide the estate among themselves without
judicial administration. The heirs may do so
extrajudicially through a public instrument filed in the
office of the Register of Deeds. In case of disagreement,
they also have the option to file an action for partition.
Section 1 of Rule 74, however, does not prevent
the heirs from instituting administration proceedings if
they have good reasons for choosing not to file an action
for partition. In Rodriguez, et al. v. Tan, etc. and
Rodriguez, 26 we said:
[S]ection 1 [of Rule 74] does not
preclude the heirs from instituting
administration proceedings, even if the
estate has no debts or obligation, if they
do not desire to resort for good reasons
to an ordinary action of partition. While
section 1 allows the heirs to divide the
estate among themselves as they may
see fit, or to resort to an ordinary action
of partition, it does not compel them to
do so if they have good reasons to take
a different course of action. Said section
is not mandatory or compulsory as may
be gleaned from the use made therein of
the word may. If the intention were
otherwise the framer of the rule would
have employed the word shall as was
done in other provisions that are
mandatory in character. x x x 27 (Italics
in the original.)
Since such proceedings are always "long,"
"costly," "superfluous and unnecessary," 28 resort to
judicial administration of cases falling under Section 1,
Rule 74 appears to have become the exception rather than
the rule. Cases subsequent to Rodriguez emphasized that
"[w]here partition is possible, either in or out of court, the
estate should not be burdened with an administration
proceeding without good and compelling reasons." 29
In Pereira v. Court of Appeals, 30 we had the
opportunity to explain what the "good reason exception"
means. What constitutes good reason depends on the
circumstances of each case. We said:
"Again the petitioner argues
that 'only when the heirs do not have
any dispute as to the bulk of the
hereditary estate but only in the manner
of partition does section 1, Rule 74 of
the Rules of Court apply and that in this
case the parties are at loggerheads as to
the corpus of the hereditary estate
because respondents succeeded in
sequestering some assets of the
intestate. The argument is
unconvincing, because, as the
respondent judge has indicated,
questions as to what property belonged
to the deceased (and therefore to the
heirs) may properly be ventilated in the
partition proceedings, especially where
such property is in the hands of one
heir."
challenges her status as an heir; (3) that other heirs have
been deprived of the estate; and (4) these heirs are
amenable to the appointment of an administrator, we find
that none of these allegations actually prevent the filing of
an ordinary action for partition. In fact, if it is indeed true
that there has been no effort to partition Gregorio's entire
estate, the filing of an action for partition before the
proper court will leave his heirs with no choice but to
proceed. An action for partition is also the proper venue to
ascertain Buot's entitlement to participate in the
proceedings as an heir. 33 Not only would it allow for the
full ventilation of the issues as to the properties that ought
to be included in the partition and the true heirs entitled to
receive their portions of the estate, it is also the
appropriate forum to litigate questions of fact that may be
necessary to ascertain if partition is proper and who may
participate in the proceedings.
WHEREFORE, this petition for review
on certiorari is DENIED. The Orders of Branch 34 of the
Regional Trial Court, Panabo City, dated September 19,
2011 and December 8, 2011 are AFFIRMED insofar as
they ordered the dismissal of the petition for letters of
administration.
SO ORDERED.
||| (Buot v. Dujali, G.R. No. 199885, [October 2, 2017], 819
PHIL 74-85)

In another case, We held that if

the reason for seeking an appointment
as administrator is merely to avoid a
multiplicity of suits since the heir
seeking such appointment wants to ask
for the annulment of certain transfers of
property, that same objective could be
achieved in an action for partition and
the trial court is not justified in issuing
letters of administration. In still another
case, We did not find so powerful a
reason the argument that the
appointment of the husband, a
usufructuary forced heir of his deceased
wife, as judicial administrator is
necessary in order for him to have legal
capacity to appear in the intestate
proceedings of his wife's deceased
mother, since he may just adduce proof
of his being a forced heir in 2 intestate
proceedings of the latter. 31 (Citations
omitted.)
Thus, in Pereira, we refused to allow
administration proceedings where the only reason why the
appointment of an administrator was sought so that one
heir can take possession of the estate from the other heir.
We held that this was not a compelling reason to order
judicial administration. We added that in cases like this,
"the claims of both parties as to the properties left by the
deceased may be properly ventilated in simple partition
proceedings where the creditors, should there be any, are
protected in any event." 32
We have reviewed the reasons which Buot
proffers to warrant the grant of her petition for letters of
administration and rule that these do not suffice to warrant
the submission of Gregorio's estate to administration
proceedings. That the extrajudicial settlement in this case
did not cover Gregorio's entire estate is, by no means, a
sufficient reason to order the administration of the estate.
Whether the extrajudicial settlement did in fact cover the
entire estate and whether an extrajudicial settlement that
does not cover the entire estate may be considered valid
do not automatically create a compelling reason to order
the administration of the estate. Parties seeking to
challenge an extrajudicial settlement of estate possess
sufficient remedies under the law and procedural rules.
As to Buot's other allegations that: (1) there has
been no effort to partition the estate; (2) that Dujali

20

3. HRS. ERNESTO MORALES V. ASTRID
MORALES AGUSTIN, ET. AL., GR 224849, 6/18/18
[G.R. No. 224849. June 6, 2018.]
HEIRS OF ERNESTO MORALES,
namely: ROSARIO M. DANGSALAN,
EVELYN M. SANGALANG, NENITA
M. SALES, ERNESTO JOSE
MORALES, JR.,RAYMOND
MORALES, and MELANIE
MORALES,petitioners, vs. ASTRID
MORALES AGUSTIN, represented by
her Attorney-in-fact, EDGARDO
TORRES,respondent.
DECISION
REYES, JR., J p:
While the Court could not hold the bonds of
familial relationships together through force, it could
hope to deter any further degradation of this sacred tie
through law.
The Case
Challenged before the Court via this Petition for
Review on Certiorari under Rule 45 of the Rules of
Court is the Decision 1 of the Court of Appeals (CA) in
CA-G.R. CV No. 101991, promulgated on August 13,
2015, which affirmed the Decision 2 of the Regional Trial
Court (RTC),Branch 12 of Laoag City, in Civil Case No.
14438-12, dated November 22, 2013. Likewise
challenged is the subsequent Resolution 3 of the CA
promulgated on April 21, 2016, which upheld the earlier
decision.
The Facts
The respondent, Astrid Morales Agustin, is a
grandchild of Jayme Morales (Jayme),who was the
registered owner of a parcel of land with improvements,
designated as Lot No. 9217-A, and located at Barangay
Sto. Tomas, Laoag City. 4 The subject property is covered
by Transfer Certificate of Title (TCT) No. T-37139, more
particularly described as follows:
A parcel of land (Lot 9217-A,
Psd-01-062563, being a portion of Lot
9217, Cad. 195, Laoag Cadastre, L.R.C.
Rec. No. 1212),situated at Brgy. Sto.
Tomas, City of Laoag, Prov. of Ilocos
Norte, Island of Luzon. Bounded on the
SE.,along line 1-2 by A.M. Regidor St.
(8.00 m.w.);on the SW.,along line 2-3
by Provincial Road (15.00 m.w.);on the
NW.,along line 3-4 by Lot 9217-B of
the subd. plan; on the NE.,along line 4-1
by Lot 9218, Cad. 195, Laoag Cadastre.
Beginning at a point marked "1" of Lot
9217-A on plan, being N. 51 deg. 18'
E.,154.84 m. from BLIM No. 2, Cad.
195, Laoag Cadastre. 5
The respondent initiated the instant complaint,
originally together with Lydia Morales, 6 another one of
Jayme's grandchildren and the respondent's cousin, for the
partition of Jayme's property. They alleged that they,
together with the petitioners and their other cousins, were
21
co-owners of the subject property by virtue of their
successional rights as heirs of Jayme.
For clarity of the discussion, the heirs of Jayme
and his wife, Telesfora Garzon, who both died intestate,
were their four (4) children:
1. Vicente Morales, who was survived by his
children: (a) herein deceased defendant
Ernesto Morales (substituted by his
heirs who are now petitioners herein);
(b) Abraham Morales (also deceased);
(c) former plaintiff and, eventually,
defendant Lydia Morales (now also
deceased);and (d) original defendant
Angelita Ragasa;
2. Simeon Morales, who was survived by his
children: (a) herein respondent Astrid
Morales Agustin; (b) Leonides Morales;
(c) Geraldine Morales-Gaspar; and (d)
Odessa Morales;
3. Jose Morales, who was survived by his
children: (a) Victoria Geron; (b)
Vicente Morales; (c) Gloria Villasenor;
(d) Amalia Alejo; (e) Juliet Manuel; (f)
Rommel Morales; and (g) Virgilio
Morales (now deceased);
4. Martina Morales-Enriquez, who was survived
by her children: (a) Evelina Lopez; (b)
Emeterio Enriquez; (c) Elizabeth
Somera; and (d) Bernardita Alojipan. 7
In response to the respondent's complaint, the
heirs of Jose Morales filed an answer, which admitted the
allegations in the complaint, and interposed no objection
to the partition, "provided that their present positions on
the subject property are respected." 8
On the other hand, Ernesto Morales, as one of
the heirs of Vicente Morales, filed an Answer with
Motion to Dismiss and Compulsory Counter-claims. He
alleged that herein respondent has no cause of action
against the petitioners because: (1) the proper remedy
should not be a complaint for partition but an action for
the settlement of the intestate estate of Jayme and his
wife; and (2) herein respondent has no more right of
participation over the subject property because the same
has long been conveyed to Ernesto Morales (as
substituted by herein petitioners) by the respondent's
parents, Simeon and Leonila Morales. 9
Meanwhile, per the Order of the RTC dated
April 22, 2009, summons to the heirs of Martina Morales-
Enriquez, who were at that time residing abroad, were
allowed to be served personally. 10 They were
subsequently declared to be in default. 11 In response, one
of Martina Morales-Enriquez's heirs, Emeterio Enriquez,
filed a Motion to Dismiss and alleged that the RTC did
not acquire jurisdiction over his person because he was
not furnished with a copy of the Amended Complaint. 12
In the hearing dated February 8, 2012, the RTC
heard the testimony of the respondent. There being no
other witnesses to be presented, the respondent
manifested that she was ready to submit her formal offer
of exhibits. 13
After a protracted hearing on motions and other
incidents of the case, the RTC rendered its decision on
November 22, 2013 via a summary judgment in favor of
herein respondent, the dispositive portion of which reads:
WHEREFORE, IN VIEW OF
ALL THE FOREGOING
DISQUISITIONS, the Court finds
preponderance of evidence in favor of
the plaintiffs and judgment is hereby
rendered:
(1) Decreeing the partition of
Lot No. 9217-A above-stated in the
 following mannfer (sic) and proportion WHEREFORE, the instant
of one-fourth (1/4) share each appeal is DISMISSED. The Decision of
each (sic) of the direct heirs of the late the Regional Trial Court, Branch 12,
spouses Jayme Morales and Telesfora Laoag City dated November 22, 2013 is
Garzon, namely: (1) Vicente Morales, AFFIRMED.
who was succeeded by right of
Despite the petitioners' motion for
representation by his children Ernesto
reconsideration, the CA affirmed its decision via a
Morales (duly substituted by his
Resolution dated April 21, 2016. 21
heirs),Abraham Morales, Angelina
Ragasa and Lydia Morales; (2) Simeon Hence, this petition.
Morales, who was succeeded by right of
representation by his children Odessa A.
Morales, Geraldine Morales Gaspar, The Issues
Leonides A. Morales and Astrid A.
Morales-Agustin; (3) Jose Morales who
was succeeded by right of The petitioners anchor their prayer for the
representation by his children, Ronnel reversal of the CA decision and resolution based on the
Morales, Morales, (sic) Victoria following grounds:
Morales, Vicente Morales, Manuel (1) THE [CA] SERIOUSLY ERRED IN NOT
Morales, Gloria Morales, Virgilio FINDING THAT THE
Morales, Amelia Morales and Juliet PROCEEDINGS IN THE TRIAL
Morales; (4) Martina Morales, who was COURT WERE VOID
succeeded by right of representation by CONSIDERING THAT NOT ALL
her children, Emeterio Morales- THE DEFENDANTS WHO ARE
Enriquez, Evelina Morales Enriquez- INDISPENSABLE PARTIES WERE
Lopez, Elizabeth Morales Enriquez- EVER SERVED WITH SUMMONS IN
Somera and Bernardita Morales VIOLATION OF DUE PROCESS.
Enriquez-Alojipan;
(2) THE [CA] MANIFESTLY ERRED IN
(2) Adjudicating in favor of the FAILING TO CONSIDER THE
above-named heirs by right NECESSITY OF HAVING THE
representation (sic) their respective one- ESTATE OF THE PARTIES'
fourth (1/4) share each of the group of INTESTATE PREDECESSORS
heirs by right of representation over the (i.e.,SPOUSES JAYME AND
above-stated Lot No. 9217-A; and TELESFORA MORALES) BE
(3) Ordering the parties to DETERMINED AND SETTLED
submit their common project of FIRST BEFORE THE
partition of the subject lot with utmost DISTRIBUTION AND/OR
dispatch for approval by the Court; PARTITION OF ANY OF THE
PROPERTIES WHICH FORM PART
(4) To pay the cost of the suit. OF SAID ESTATE.
SO ORDERED. 14 (3) THE [CA] MOST UTTERLY ERRED IN
The RTC ruled that: (1) the estate of a deceased UPHOLDING THE SUMMARY
who died intestate may be partitioned without need of any JUDGMENT OF THE TRIAL COURT
settlement or administration proceeding; 15 and (2) the ALTHOUGH IT WAS
RTC properly and lawfully rendered summary judgment UNDISPUTABLY RENDERED
despite the absence of any motion from any of the parties WITHOUT ANY PRIOR MOTION
praying for the application of the rules thereon. 16 AND HEARING THEREFOR, AND
IN THE FACE OF PENDING
Aggrieved, the petitioners elevated the case to INCIDENTS WHICH INCLUDE THE:
the CA, which thereafter dismissed the appeal and (a) MOTION TO DISMISS OF
affirmed the RTC Decision on August 13, 2015. DEFENDANT EMITERIO
The CA opined that the settlement of the entire ENRIQUEZ ON THE GROUND OF
estate of the late spouses Jayme and Telesfora is "of no LACK OF JURISDICTION OVER HIS
moment in the instant case of partition" 17 because the PERSON ROOTED ON THE LACK
respondent was "asserting her right as a co-owner of the OF SUMMONS SERVED UPON HIM,
subject property by virtue of her successional right from (b) THE NON-SERVICE OF
her deceased father Simeon Morales, who was once a co- SUMMONS TO DEFENDANT
owner of the said property, and not from Jayme and ANGELITA RAGASA, AND (c) THE
Telesfora Morales." 18 MOTION TO WITHDRAW AS
COUNSEL FOR THE PLAINTIFF
Further, the CA ruled that an action for partition (HEREIN RESPONDENT).22
under Rule 69 of the Rules of Court is an action quasi in
rem,and thus, "jurisdiction over the impleaded In essence, the Court is called upon to rule on the
defendants-heirs is not required since the trial court has following issues: (1) whether or not the partition of the
jurisdiction over the res or the subject property which is subject property is proper despite the absence of the
the subject matter of the action for partition." 19 settlement of the estate of the deceased registered owner
thereof; (2) whether or not the RTC could motu
Finally, the CA ruled that summary judgment in proprio apply the rule on Summary Judgment; and (3)
this case is proper despite the absence of any motion from whether or not the RTC could validly render a decision
any of the parties. In support hereto, the CA ratiocinated even in the absence of proof of proper service of
that the parties prayed for resolution of all "pending summons to some of the real parties in interest in a
motions/incidents" during the hearing on September 18, quasi in rem proceeding.
2013, and acceded to the RTC pronouncement therein that
its resolution "shall be considered as a decision in the said
case for partition." 20 The Court's Ruling
The fallo of the CA decision reads:

22
 After a careful perusal of the arguments
presented and the evidence submitted, the Court finds
partial merit in the petition.
First, on the Procedural Issue of Improper
Service of Summons
The petitioners question the acquisition by the
RTC of the jurisdiction to decide on the instant case. After
a judicious study of the relevant factual antecedents, the
Court rules against the petitioner and in favor of the
findings of the RTC and the CA.
The partition of real estate is an action quasi in
rem.23 Jurisprudence is replete with pronouncements that,
for the court to acquire jurisdiction in actions quasi in
rem,it is necessary only that it has jurisdiction over
the res.In the case of Macasaet vs. Co, Jr.,24 the Court
stated that "[j]urisdiction over the defendant in an
action in rem or quasi in rem is not required, and the court
acquires jurisdiction over an action as long as it acquires
jurisdiction over the res that is the subject matter of the
action." 25
In the case of De Pedro v. Romasan
Development Corporation, n 26 the Court clarified that
while this is so, "to satisfy the requirements of due
process, jurisdiction over the parties in in rem and quasi in
rem actions is required." 27 Thus, regardless of the nature
of the action, proper service of summons is imperative
and that a decision rendered without proper service of
summons suffers a defect in jurisdiction. 28
According to De Pedro,the court may acquire
jurisdiction over the thing by actually or constructively
seizing or placing it under the court's custody. 29 In the
landmark case of El Banco Español Filipino vs.
Palanca,30 the Court has already ruled that:
Jurisdiction over the property
which is the subject of the litigation
may result either from a seizure of the
property under legal process, whereby it
is brought into the actual custody of the
law, or it may result from the
institution of legal proceedings
wherein, under special provisions of
law, the power of the court over the
property is recognized and made
effective.(Emphasis supplied)
In this case, the filing of the complaint before the
RTC which sought to partition the subject property
effectively placed the latter under the power of the court.
On this front, none of the parties challenged the RTC's
jurisdiction.
But more than this, in compliance with De
Pedro,there is in this case proper service of summons to
the defendants. In no uncertain terms, the CA found that:
(1) the heirs of Vicente Morales received summons, filed
an Answer, and actively participated in the trial; (2) the
heirs of Jose Morales filed their Answer and admitted to
the allegations in the complaint; and (3) the heirs of
Martina Morales were duly served with summons, copies
of the complaint, and actively participated in the trial. 31
Even the trial court authoritatively concluded the
same in saying that:
As borne out from the record
of the case, Summons and a copy of the
Complaint was served upon and
received by defendant Emeterio
Enriquez in Virginia Beach on June 25,
2009 as per verified Affidavit of Service
of one Nancy G. Wood. Defendant
Bernardita Alojipan in Trenton, MI
received on July 4, 2009 a copy each of
Summons and Complaint as per verified
Affidavit of Service of one Herb
Alexander. Defendant Elizabeth Somera
received in Hanover Dirk, Illinois on
23
June 27, 2009 a copy each of the
Summons and of the Complaint as per
verified Affidavit of Service of one
George Pierce and defendant Evelina
Lopez received in Trenton, Michigan on
July 4, 2009 a copy each of Summons
and Complaint as per verified Affidavit
of Service issued by Herb
Alexander. 32
None of the petitioners' submissions are
sufficient to justify the Court's deviation from these
factual findings by the CA, which affirmed the
jurisdiction of the RTC. By necessary implication,
therefore, the Court must perforce rule against the
petitioners on this ground.
Second, on the Issue of Summary Judgment
A summary judgment in this jurisdiction is
allowed by Rule 35 of the Rules of Court. 33 According
to the case of Wood Technology Corporation, et al. vs.
Equitable Banking Corporation,34 it is a procedure aimed
at weeding out sham claims or defenses at an early stage
of the litigation. It is granted to settle expeditiously a case
if, on motion of either party, there appears from the
pleadings, depositions, admissions, and affidavits that no
important issues of fact are involved, except the amount
of damages. 35 Thus, said the Court in the case of Viajar
vs. Judge Estenzo,36 as cited in Cadirao, etc., et al. vs.
Hon. Estenzo, etc., et al.: n 37
Relief by summary judgment
is intended to expedite or promptly
dispose of cases where the facts
appear undisputed and certain from
the pleadings, depositions, admissions
and affidavits.But if there be a doubt as
to such facts and there be an issue or
issues of fact joined by the parties,
neither one of them can pray for a
summary judgment. Where the facts
pleaded by the parties are disputed or
contested, proceedings for a summary
judgment cannot take the place of a
trial. 38 (Emphasis and underscoring
supplied)
A reading of the foregoing would reveal that, in
the application of the rules on summary judgments, the
proper inquiry would be whether the affirmative defenses
offered by herein petitioners before the trial court
constitute genuine issues of fact requiring a full-blown
trial. 39 In other words, the crucial question is: are the
issues raised by petitioners not genuine so as to justify a
summary judgment? 40
In Evangelista vs. Mercator Finance
Corp.,41 the Court has already defined a genuine issue as
an issue of fact which calls for the presentation of
evidence, as distinguished from an issue which is
fictitious or contrived, 42 set up in bad faith and patently
unsubstantial so as not to constitute a genuine issue for
trial. 43 According to Spouses Pascual vs. First
Consolidated Rural Bank (Bohol), Inc.,44 where the facts
pleaded by the parties are disputed or contested,
proceedings for a summary judgment cannot take the
place of a trial.
More, the propriety of issuing a summary
judgment springs not only from the lack of a genuine
issue which is raised by either party, but also from the
observance of the procedural guidelines for the rendition
of such judgment. Thus, in Cadirao, the Court nullified
the summary judgment issued by the trial court when
the rules on summary judgment was applied despite the
absence of a motion from the respondent asking for the
application thereof. The Court said:
And that is not all,
The (sic) nullity of the assailed
Summary Judgment stems not only
 from the circumstances that such kind
of a judgment is not proper under the
state of pleadings obtaining in the
instant case, but also from the failure to
comply with the procedural guidelines
for the rendition of such a
judgment. Contrary to the
requirements prescribed by
the Rules, no motion for a summary
judgment was filed by private
respondent.Consequently, no notice or
hearing for the purpose was ever
conducted by the trial court. The trial
court merely required the parties to
submit their affidavits and exhibits,
together with their respective
memoranda, and without conducting
any hearing, although the parties
presented opposing claims of ownership
and possession, hastily rendered a
Summary Judgment. The trial court
was decidedly in error in cursorily
issuing the said
Judgment.45 (Emphasis supplied,
citations omitted)
Still, in the more recent case of Calubaquib, et
al. vs. Republic of the Phils.,46 the Court once more was
asked to determine the propriety of the summary
judgment rendered by the trial court judge in the absence
of any motion filed by the parties for that purpose. In that
case, the trial court judge opined that "the basic facts of
the case were undisputed" 47 and that, even after the
parties' refusal to file a motion for summary judgment, the
trial court rendered a judgment sans trial. In ruling for the
nullity of such issued judgment, the Court said that:
The filing of a motion and
the conduct of a hearing on the
motion are therefore
important because these enable the
court to determine if the parties'
pleadings, affidavits and exhibits in
support of, or against, the motion are
sufficient to overcome the opposing
papers and adequately justify the
finding that, as a matter of law, the
claim is clearly meritorious or there is
no defense to the action. 48 (Emphasis
and underscoring supplied)
Even in the pre-trial stage of a case, a motion for
the application of summary judgment is necessary.In the
recent case of Spouses Pascual vs. First Consolidated
Rural Bank (BOHOL), Inc.,49 Justice Bersamin pointed
out that:
To be clear, the rule only spells
out that unless the motion for such
judgment has earlier been filed, the
pre-trial may be the occasion in which
the court considers the propriety of
rendering judgment on the pleadings
or summary judgment. If no such
motion was earlier filed, the pre-trial
judge may then indicate to the proper
party to initiate the rendition of such
judgment by filing the necessary
motion. Indeed, such motion is required
by either Rule 34 (Judgment on the
Pleadings) or Rule 35 (Summary
Judgment) of the Rules of Court.The
pre-trial judge cannot motu
proprio render the judgment on the
pleadings or summary judgment.In
the case of the motion for summary
judgment, the adverse party is entitled
to counter the motion. 50 (Emphasis
and underscoring supplied, citations
omitted)
24
Indeed, Calubaquib even proceeded further in
saying that the "non-observance of the procedural
requirements of filing a motion and conducting a hearing
on the said motion warrants the setting aside of the
summary judgment." 51
On the basis of the foregoing disquisitions, the
Court now focuses its attention to the factual milieu
surrounding the present case. To begin with, the Court is
of the opinion that the petitioners, from the beginning of
the proceedings, have already submitted an issue of fact
that definitively calls for the presentation of evidence.
They have, for all intents and purposes, presented a
genuine issue that should have foreclosed the rendition of
a summary judgment.
Particularly, while the petitioners have not
questioned the fact that the subject property belonged to
their progenitor, Jayme, they have, however, asserted that
herein respondent has "no more right of participation"
over the same. 52 The Answer with Motion to Dismiss
and Compulsory Counter-Claims claimed that:
7.4 Astrid Morales Agustin has no more
right or participation —
Plaintiff's supposed share in the
property, together with her siblings,
have long been conveyed to herein
defendant Ernesto Morales by said
plaintiff's own parents, the late Simeon
Morales and Leonila Morales. Thus,
plaintiff has no more footing to demand
partition of the lot for her benefit. x x
x. 53
In fact, the original respondent in this case, the
father of herein petitioners, attached in his pleading
"several handwritten receipts showing payment of their
share to the property, then called 'camarin.'" 54
In the RTC decision, the trial judge hastily
dismissed this argument and asserted that:
The alleged written documents
of debt of plaintiffs' parents Simeon
Morales and Leonila Albano Morales
are not genuine issue of material facts
because these documents have no effect
on the partition of the subject lot, not
debts of the intestate estate of the
spouses Jayme Morales and Telesfora
Garzon and they are not binding upon
the plaintiffs herein. 55
In affirming this decision, the CA even opined
that the issue raised by herein petitioners is "of no
moment in the instant case of partition" 56 because the
respondent was "asserting her right as a co-owner of the
subject property by virtue of her successional right from
her deceased father Simeon Morales, who was once a co-
owner of the said property, and not from Jayme and
Telesfora Morales." 57
These opinions, however, are reversible errors on
the part of both the trial court and the CA. The question of
who shall inherit which part of the property and in what
proportion is in the province of the partition of the estate
of a deceased. That an heir disposed of his/her aliquot
portion in favor of another heir is a matter that should be
fully litigated on in a partition proceeding — as in this
case.
In the case of Intestate Estate of Josefa Tangco,
et al. vs. De Borja,58 the Court has already ruled that an
heir to an inheritance could dispose of his/her hereditary
rights to whomever he/she chooses. This is because:
[A]s a hereditary share in a
decedent's estate is transmitted or vested
immediately from the moment of the
death of such causante or predecessor in
interest, there is no legal bar to a
successor (with requisite contracting
 capacity) disposing of her or his
hereditary share immediately after such
death, even if the actual extent of such
share is not determined until the
subsequent liquidation of the estate. 59
Further, still according to Intestate Estate of
Josefa Tangco, this alienation by the heirs of their aliquot
portion of the inheritance is recognized by no less than
the Civil Code, viz.:
"[A]nd as already shown, that
eventual share she owned from the time
of Francisco's death and the Court of
Nueva Ecija could not bar her selling it.
As owner of her undivided hereditary
share, Tasiana could dispose of it in
favor of whomsoever she chose. Such
alienation is expressly recognized and
provided for by article 1088 of the
present Civil Code:
Art. 1088. Should any of the
heirs sell his hereditary rights to a
stranger before the partition, any or all
of the co-heirs may be subrogated to the
rights of the purchaser by reimbursing
him for the price of the sale, provided
they do so within the period of one
month from the time they were notified
in writing of the sale of the vendor.
If a sale of a hereditary right
can be made to a stranger, then a
fortiori sale thereof to a coheir could
not be forbidden." 60 (Emphasis and
underscoring supplied)
In yet another case, Alejandrino vs. Court of
Appeals,61 the Court has ruled that "when a co-owner
sells his inchoate right in the co-ownership, he expresses
his intention to 'put an end to indivision among (his) co-
heirs.' Partition among co-owners may thus be evidenced
by the overt act of a co-owner of renouncing his right over
the property regardless of the form it takes." 62 The Court
based this assertion on Article 1082 of the Civil Code,
which states that:
Art. 1082. Every act which is
intended to put an end to indivision
among co-heirs and legatees or devisees
is deemed to be a partition, although
it should purport to be a sale, an
exchange, a compromise, or any other
transaction.(Emphasis and
underscoring supplied)
Thus, when the petitioners herein asserted that
the respondent has "no more right of participation" over
the subject property because the successional rights of the
respondent's parents over the same has already been
conveyed to the petitioners' father, the petitioners
tendered a genuine issue. They were in fact stating that
the respondent's parents exercised their right to sell,
exchange, or compromise their undivided inchoate share
of their inheritance from Jayme, and, as the Court ruled
in Alejandrino, the respondent's parents intended a
partition of the property as defined in Article 1079 of
the Civil Code.63
The truthfulness of this allegation, however,
could only be ascertained through the presentation of
evidence during trial, and not in a summary judgment.
More, the RTC did not only commit reversible
error by rendering a summary judgment despite the
presence of a genuine issue, it also committed reversible
error by applying the rules on summary judgment despite
the absence of any motion from any of the parties that
prayed for the rule's application.
In their Motion for Reconsideration on the RTC
decision, the petitioners argued that none of the parties
25
prayed for the issuance of a summary judgment. They
further averred that the "unilateral declaration of the
trial court that the resolution supposedly on the pending
motions/incidents will also be considered as the resolution
of the partition case cannot take the place of the required
motion and hearing." 64 In fact, they were adamant in
clarifying that:
12.3. The supposed reiteration
by the trial Court of its declaration that
the "pending motions/incidents" were
considered submitted for resolution as
embodied in its Order dated October 29,
2013 could not have warranted the motu
proprio summary judgment. To begin
with, the appellee herself in her
Appellee's Brief, concedes that what
were submitted for resolution during the
October 29, 2013 hearing were the same
pending motions as stated earlier, and
could not have been the case of partition
itself. It can be culled even from the
assailed Decision of the trial Court itself
that what were submitted for resolution
were the then pending incidents and not
the main case for partition
itself. 65 (Citations omitted)
In their petition, the petitioners reiterated this
assertion, to wit:
27. To the clear understanding
of the parties including Atty. Cortes, the
pending incidents at the time were
the Motion to Dismiss filed by
defendant Emeterio Enriquez
questioning the jurisdiction of the trial
court over him for lack of service of
summons; the Opposition thereto filed
by herein respondent; the Reply of
Emeterio Enriquez to the opposition of
the appellee; the Rejoinder to the
reply;and the Motion to
Withdraw filed by therein counsel of
herein respondent.
28. Unpredictably and
beyond the expectation of the
defendants including herein
petitioners, the trial court rendered a
summary judgment as embodied in
its Decision dated 22 November
2013. The presiding judge
and ponente of said decision soon
retired on March 2014. 66
Even the respondent did not deny the petitioners'
allegation that no motion was filed to apply the rules on
summary judgment. In addition, in its decision, the trial
court itself admitted to having issued the same motu
proprio,as none of the parties herein moved for such
summary judgment. It stated that:
x x x [S]ummary judgment
maybe (sic) rendered in this case upon
the own initiative of the Court as none
of the parties moved for such
summary judgment to be rendered in
this instant case despite the glaring and
apparent existence of no genuine issue
on material facts, sham defenses had
been put by the defense or mere general
denial of the cause of action for
partition judicially demanded by the
plaintiffs had been alleged by the
defendants. 67 (Emphasis supplied)
Thus, that the trial court rendered a summary
judgment despite the absence of any motion calling for its
application was in clear contravention of the
established rules of procedure. To be sure, on the strength
of the Court's unequivocal pronouncements
in Cadirao,68 Viajar,69 Calubaquib,70 and Pascual,71 w
hich require the observance of the procedural guidelines
for the rendition of summary judgments, the RTC
committed reversible error, and the RTC and CA
decisions must perforce be annulled and set aside.
On the Issue of Partition and the Settlement of
Estate
On the basis of the discourse above, there should
have been no further necessity to discuss the final issue
herein presented. Nonetheless, for the guidance of the
RTC in resolving the instant case, a discussion of the
nature of the partition is in order.
The petitioners argue that an administration
proceeding for the settlement of the estate of the deceased
is a condition that has to be met before any partition of the
estate and any distribution thereof to the heirs could be
effected.
While the Court does not agree with this
assertion by the petitioners, the Court, nonetheless, agrees
that the trial court should have collated Jayme's other
properties, if any, prior to the promulgation of any
judgment of partition in accordance with the laws on
Succession.
Generally, an action for partition may be seen to
simultaneously present two issues: first, there is the issue
of whether the plaintiff is indeed a co-owner of the
property sought to be partitioned; and second, assuming
that the plaintiff successfully hurdles the first issue, there
is the secondary issue of how the property is to be divided
between the plaintiff and defendants, i.e.,what portion
should go to which co-owner. 72
The Court must emphasize, however, that this
definition does not take into account the difference
between (1) an action of partition based on the
successional rights of the heirs of a decedent, and (2) an
ordinary action of partition among co-owners. While
oftentimes interchanged with one another, and although in
many ways similar, these two partitions draw legal basis
from two different sets of legal provisions in the Civil
Code of the Philippines (Civil Code). 73
To begin with, the laws governing the partition
of inheritance draws basis from Article 777 of the Civil
Code, which states that the rights to the succession are
transmitted from the moment of the death of the decedent.
As such, from that moment, the heirs, legatees, and
devisees' successional rights are vested, and they are
considered to own in common the inheritance left by the
decedent.
Under the law, partition of the inheritance may
only be effected by (1) the heirs themselves
extrajudicially, (2) by the court in an ordinary action for
partition, or in the course of administration proceedings,
(3) by the testator himself, and (4) by the third person
designated by the testator. 74
A reading of the enumeration set above would
reveal instances when the appointment of an executor or
administrator is dispensed with. One is through the
execution of a public instrument by the heirs in an
extrajudicial settlement of the estate. 75 Another, which is
the focal point of this case, is through the ordinary action
of partition. 76
According to Rule 74 of the Rules of Court, the
heirs may resort to an ordinary action of partition of the
estate of the deceased if they disagree as to the exact
division of the estate, and only "[i]f the decedent left no
will and no debts and the heirs are all of age, or the
minors are represented by their judicial or legal
representatives duly authorized for the purpose." 77
The ordinary action for partition therefore is
meant to take the place of the special proceeding on the
settlement of the estate. The reason is that, if the deceased
dies without pending obligations, there is no necessity for
the appointment of an administrator to administer the
26
estate for the heirs and the creditors, much less, the
necessity to deprive the real owners of their possession to
which they are immediately entitled. 78
Thus, an action for partition with regard to the
inheritance of the heirs should conform to the law
governing the partition and distribution of the estate, and
not only to the law governing ordinary partition. These
pertinent provisions of the law could be found in Title IV
(Succession), Chapter 4 (Provisions Common to Testate
and Intestate Successions), Section 6 (Partition and
Distribution of the Estate) of the Civil Code.79
Particularly, according to Article 1078 of
the Civil Code, where there are two or more heirs, the
whole estate of the decedent is owned in common by such
heirs, subject to the payment of debts of the
deceased. 80 Partition, the Civil Code adds, is the
separation, division and assignment of a thing held in
common among those to whom it may belong. 81 Thus,
every act which is intended to put an end to indivision
among co-heirs and legatees or devisees is deemed to be a
partition, although it should purport to be a sale, an
exchange, a compromise, or any other transaction. 82
In addition, and on account of this partition,
Article 1061 of the Civil Code requires the parties to
collate the properties of the decedent which they may
have received by way of gratuitous title prior to the
former's death, to wit:
Article 1061. Every
compulsory heir, who succeeds with
other compulsory heirs, must bring into
the mass of the estate any property or
right which he may have received from
the decedent, during the lifetime of the
latter, by way of donation, or any other
gratuitous title, in order that it may be
computed in the determination of the
legitime of each heir, and in the
account of the partition.(1035a)
(Emphasis supplied)
On the procedural aspect, the partition of the
estate based on the successional rights of the heirs, as
herein mentioned, is required by Rule 74 of the Rules of
Court (Summary Settlement of Estate) to follow
the rules on "ordinary action of partition." This pertains
to Rule 69 (Partition), Section 13 of the same rules, which
states that:
Section 13. Partition of
personal property. — The provisions
of this Rule shall apply to partitions
of estates composed of personal
property, or of both real and personal
property, in so far as the same may be
applicable. (13) (Emphasis supplied)
Once legally partitioned, each heir is conferred
with the exclusive ownership of the property, which was
adjudicated to him/her. 83
In contrast, an ordinary partition of co-owned
property, specifically of real property, is governed by
Title III of the Civil Code on Co-ownership.
Article 484 of the Civil Code provides that there
is co-ownership whenever the ownership of an undivided
thing or right belongs to different persons. 84 It further
provides that no co-owner shall be obliged to remain in
the co-ownership; each co-owner may demand at any time
the partition of the thing owned in common, insofar as his
share is concerned. 85 This partition may be made by
agreement between the parties, or by judicial
proceedings, 86 which, like the procedural aspect of the
partition by virtue of successional rights, is governed
by Rule 69 of the Rules of Court.
Thus, while both partitions make use of Rule 69
as the procedural rule that would govern the manner of
partition, the foregoing disquisitions explicitly elaborate
that the bases of the ownership are different, and in the trial court's decision with regard to the summons
the subject matters concerned are also different — one directed against the warring heirs — as submitted by the
speaks of the partition of the estate to distribute the respondent, but also finds error in the trial court's refusal
inheritance to the heirs, legatees, or devisees, whereas the to delve into the genuine issue concerning the partition of
other speaks of partition of any undivided thing or right to the subject property — as submitted by the petitioners. In
distribute to the co-owners thereof. the end, only a full-blown trial on the merits of each of the
parties' claims — and not a mere summary judgment —
In the case at hand, the parties are the heirs of the
could write finis on this family drama.
late Jayme Morales. The land being sought to be divided
was a property duly registered under Jayme's name. WHEREFORE,premises considered, the
Necessarily, therefore, the partition invoked by the Decision and Resolution of the Court of Appeals in CA-
respondents is the partition of the estate of the deceased G.R. CV No. 101991 dated August 13, 2015 and April 21,
Jayme. 2016, respectively, are hereby REVERSED and SET
ASIDE.The case is ORDERED REMANDED to the
As such, when the petitioners alleged in their
Regional Trial Court, Branch 12, of Laoag City for further
answer that there is yet another property that needs to be
proceedings. The trial court judge is ORDERED to hear
partitioned among the parties, they were actually invoking
the case with dispatch.
the Civil Code provisions, not on Co-ownership, but on
Succession, which necessarily includes Article 1061 of SO ORDERED.
the Civil Code — the provision on collation. It is
||| (Heirs of Morales v. Agustin, G.R. No. 224849, [June 6,
therefore proper for the trial court to have delved into this
issue presented by the petitioner instead of disregarding 2018])
the same and limiting itself only to that singular property
submitted by the respondent for partition. As the case
of Gulang vs. Court of Appeals 87 said:
In case the defendants assert
in their Answer exclusive title in
themselves adversely to the plaintiff,
the court should not dismiss the
plaintiff's action for partition but, on
the contrary and in the exercise of its
general jurisdiction, resolve the
question of whether the plaintiff is co-
owner or not. 88 (Emphasis and
underscoring supplied)
Nonetheless, lest it be misunderstood, the law
does not prohibit partial partition. In fact, the Court, in
administration proceedings, have allowed partition for
special instances. But the Court should caution that this
power should be exercised sparingly. This is because a
partial partition and distribution of the estate does not
put to rest the question of the division of the entire
estate. In the case of Gatmaitan vs. Medina,89 Justice
J.B.L. Reyes warned:
The lower court, we believe,
erred in rendering the order appealed
from. A partial distribution of the
decedent's estate pending the final
termination of the testate or intestate
proceedings should as much as
possible be discouraged by the courts
and, unless in extreme cases, such
form of advances of inheritance
should not be countenanced. The
reason for this strict rule is obvious —
courts should guard with utmost zeal
and jealousy the estate of the decedent
to the end that the creditors thereof be
adequately protected and all the rightful
heirs assured of their shares in the
inheritance. 90 (Emphasis supplied)
In this case, the Court is of the opinion that there
is no cogent reason to render the partition of one of
Jayme's properties and totally ignore the others, if any.
Absent any circumstance that would warrant the partial
partition and distribution of Jayme's estate, the prudent
remedy is to settle the entirety of the estate in the partition
proceedings in the court a quo.Besides, as stated by the
Court in Gulang,it is quite unnecessary to require the
plaintiff to file another action, separate and independent
from that of partition originally instituted. 91 This would
entail wastage of additional time and resources, which
could already be avoided through consolidated
proceedings in the court a quo.
In sum, the factual milieu of this case presents
questions of facts which are crucial in the complete
resolution of the controversy. The Court finds sufficiency
27

4. GERILLA V. CAROLINA VDA. DE
FIGURACION, ET. AL., GR 154322, 8/22/06
[G.R. No. 154322. August 22, 2006.]
EMILIA FIGURACION-
GERILLA, petitioner, vs. CAROLINA
VDA. DE FIGURACION, * ELENA
FIGURACION-ANCHETA, * HILARI
A A. FIGURACION, FELIPA
FIGURACION-MANUEL, QUINTIN
FIGURACION and MARY
FIGURACION-GINEZ, respondents.
DECISION
CORONA, J p:
In this petition for review on certiorari, 1 petitioner
Emilia Figuracion-Gerilla challenges the decision 2 and
resolution 3 of the Court of Appeals (CA) affirming the
decision of the Regional Trial Court (RTC) of Urdaneta City,
Pangasinan, Branch 49, which dismissed her complaint for
partition. The properties involved are two parcels of land
which belonged to her late father, Leandro Figuracion.
The facts of the case follow. 4
Spouses Leandro and respondent Carolina Figuracion
(now both deceased) had six children: petitioner and
respondents Elena Figuracion-Ancheta (now deceased),
Hilaria Figuracion, Felipa Figuracion-Manuel, Quintin
Figuracion and Mary Figuracion-Ginez.
On August 23, 1955, Leandro executed a deed of
quitclaim over his real properties in favor of his six children.
When he died in 1958, he left behind two parcels of land: (1)
Lot 2299 of the Cadastral Survey of Urdaneta consisting of
7,547 square meters with Transfer Certificate of Title (TCT)
No. 4221-P in the name of "Leandro Figuracion, married to
Carolina Adviento" and (2) Lot 705 of the Cadastral Survey of
Urdaneta with an area of 2,900 sq. m. with TCT No. 4220-P
also in the name of "Leandro Figuracion, married to Carolina
Adviento." Leandro had inherited both lots from his deceased
parents, 5 as evidenced by Original Certificate of Title (OCT)
Nos. 16731 and 16610, respectively, issued by the Register of
Deeds of the Province of Pangasinan.
Leandro sold a portion of Lot 2299 to Lazaro
Adviento, as a result of which TCT No. 4221-P was cancelled
and TCT No. 101331 was issued to "Lazaro Adviento, married
to Rosenda Sagueped" as owner of the 162 sq. m. and
"Leandro Figuracion, married to Carolina Adviento" as owner
of 7,385 sq. m. This lot continued to be in the name of
Leandro in Tax Declaration No. 616 for the year 1985.
What gave rise to the complaint for partition,
however, was a dispute between petitioner and her sister,
respondent Mary, over the eastern half of Lot 707 of the
Cadastral Survey of Urdaneta with an area of 3,164 sq. m.
Lot 707 belonged to Eulalio Adviento, as evidenced
by OCT No. 15867 issued on February 9, 1916. When
Adviento died, his two daughters, Agripina Adviento (his
daughter by his first wife) and respondent Carolina (his
daughter by his second wife), succeeded him to it. On
November 28, 1961, Agripina executed a quitclaim in favor of
petitioner over the one-half eastern portion of Lot 707.
Agripina died on July 28, 1963, single and without any issue.
Before her half-sister's death, however, respondent Carolina
adjudicated unto herself, via affidavit under Rule 74 of
the Rules of Court,the entire Lot 707 which she later sold to
respondents Felipa and Hilaria. The latter two immediately
had OCT No. 15867 cancelled, on December 11, 1962. A new
28
title, TCT No. 42244, was then issued in the names of Felipa
and Hilaria for Lot 707.
In February 1971, petitioner and her family went to
the United States where they stayed for ten years. Returning in
1981, 6 she built a house made of strong materials on the
eastern half-portion of Lot 707. She continued paying her
share of the realty taxes thereon. HDAaIc
It was sometime later that this dispute erupted.
Petitioner sought the extrajudicial partition of all properties
held in common by her and respondents. On May 23, 1994,
petitioner filed a complaint in the RTC of Urdaneta City,
Branch 49, for partition, annulment of documents,
reconveyance, quieting of title and damages against
respondents, praying, among others, for: (1) the partition of
Lots 2299 and 705; (2) the nullification of the affidavit of self-
adjudication executed by respondent Carolina over Lot 707,
the deed of absolute sale in favor of respondents Felipa and
Hilaria, and TCT No. 42244; (3) a declaration that petitioner
was the owner of one-half of Lot 707 and (4) damages. The
case was docketed as Civil Case No. U-5826.
On the other hand, respondents took the position that
Leandro's estate should first undergo settlement proceedings
before partition among the heirs could take place. And they
claimed that an accounting of expenses chargeable to the
estate was necessary for such settlement.
On June 26, 1997, 7 the RTC 8 rendered judgment
nullifying Carolina's affidavit of self-adjudication and deed of
absolute sale of Lot 707. It also declared Lots 2299 and 705 as
exclusive properties of Leandro Figuracion and therefore part
of his estate. The RTC, however, dismissed the complaint for
partition, reconveyance and damages on the ground that it
could not grant the reliefs prayed for by petitioner without any
(prior) settlement proceedings wherein the transfer of title of
the properties should first be effected.
On appeal, the CA upheld the dismissal of petitioner's
action for partition for being premature. The CA reversed the
decision, however, with respect to the nullification of the self-
adjudication and the deed of sale. Upholding the validity of
the affidavit of self-adjudication and deed of sale as to
Carolina's one-half pro-indiviso share, it instead partitioned
Lot 707. Dissatisfied, respondents elevated the CA decision to
this Court in G.R. No. 151334, entitled Carolina vda. de
Figuracion, et al. v. Emilia Figuracion-Gerilla. 9
The issue for our consideration is whether or not
there needs to be a prior settlement of Leandro's intestate
estate (that is, an accounting of the income of Lots 2299 and
705, the payment of expenses, liabilities and taxes, plus
compliance with other legal requirements, etc.) before the
properties can be partitioned or distributed.
Respondents claim that: (1) the properties
constituting Leandro's estate cannot be partitioned before his
estate is settled and (2) there should be an accounting before
anything else, considering that they (respondents) had to spend
for the maintenance of the deceased Leandro Figuracion and
his wife in their final years, which support was supposed to
come from the income of the properties. Among other things,
respondents apparently wanted petitioner to share in the
expenses incurred for the care of their parents during the ten
years she stayed in the United States, before she could get her
part of the estate while petitioner apparently wanted her gross
share, without first contributing to the expenses.
In any event, there appears to be a complication with
respect to the partition of Lot 705. The records refer to a case
entitled Figuracion, et al. v. Alejo currently pending in the
CA. The records, however, give no clue or information
regarding what exactly this case is all about. Whatever the
issues may be, suffice it to say that partition is premature when
ownership of the lot is still in dispute. 10
Petitioner faces a different problem with respect to
Lot 2299. Section 1, Rule 69 of the Rules of Court provides:
SECTION 1. Complaint in action
for partition of real estate. — A person
 having the right to compel the partition of
real estate may do so as provided in this
Rule, setting forth in his complaint the
nature and extent of his title and an
adequate description of the real estate of
which partition is demanded and joining
as defendants all other persons interested
in the property.
The right to an inheritance is transmitted immediately
to the heirs by operation of law, at the moment of death of the
decedent. There is no doubt that, as one of the heirs of
Leandro Figuracion, petitioner has a legal interest in Lot 2299.
But can she compel partition at this stage?
There are two ways by which partition can take place
under Rule 69: by agreement under Section 2 11 and through
commissioners when such agreement cannot be reached, under
Sections 3 to 6. 12
Neither method specifies a procedure for determining
expenses chargeable to the decedent’s estate. While Section 8
of Rule 69 provides that there shall be an accounting of the
real property's income (rentals and profits) in the course of an
action for partition, 13 there is no provision for the accounting
of expenses for which property belonging to the decedent's
estate may be answerable, such as funeral expenses,
inheritance taxes and similar expenses enumerated under
Section 1, Rule 90 of the Rules of Court.
In a situation where there remains an issue as to the
expenses chargeable to the estate, partition is inappropriate.
While petitioner points out that the estate is allegedly without
any debt and she and respondents are Leandro Figuracion's
only legal heirs, she does not dispute the finding of the CA
that "certain expenses" including those related to her father's
final illness and burial have not been properly settled. 14 Thus,
the heirs (petitioner and respondents) have to submit their
father's estate to settlement because the determination of these
expenses cannot be done in an action for partition.
In estate settlement proceedings, there is a proper
procedure for the accounting of all expenses for which the
estate must answer. If it is any consolation at all to petitioner,
the heirs or distributees of the properties may take possession
thereof even before the settlement of accounts, as long as they
first file a bond conditioned on the payment of the estate's
obligations. 15
WHEREFORE, the petition is hereby DENIED. The
Court of Appeals' decision and resolution in CA-G.R. CV No.
58290 are AFFIRMED in so far as the issue of the partition of
Lots 2299 and 705 is concerned.
But with respect to Lot 707, we make no ruling on
the validity of Carolina vda. de Figuracion's affidavit of self-
adjudication and deed of sale in favor of Felipa and Hilaria
Figuracion in view of the fact that Carolina vda. de
Figuracion, et al. v. Emilia Figuracion-Gerilla (G.R. No.
151334) is still pending in this Division.
 
Costs against petitioner.
SO ORDERED.
||| (Figuracion-Gerilla v. Vda. de Figuracion, G.R. No.
154322, [August 22, 2006], 531 PHIL 81-88)

29